A.J.J. v. Toronto District School Board, 2013 HRTO 1189

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.J.J. by his next friend F.M.J.

Applicant

-and-

Toronto District School Board

Respondent

DECISION

Adjudicator: Ruth Carey

Date: July 9, 2013

Citation: 2013 HRTO 1189

Indexed as: A.J.J. v. Toronto District School Board

APPEARANCES

A.J.J. by his next friend F.M.J., Applicant

Self-represented

Toronto District School Board, Respondent

Brenda Bowlby, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services, and facilities because of perceived disability.

2The applicant was a student of the respondent school board from September, 2007 to December, 2008. The Application alleges that shortly after the applicant started school, a teacher suggested to the applicant’s mother that he might have a learning disability. The applicant denies having a disability but he does agree that he needed additional services in the classroom because of his particular learning style. A number of meetings were held between the applicant’s mother and the school but the respondent did not provide the supports and services the applicant requested. The Application alleges that because the respondent perceived the applicant to have a disability, it had a duty to accommodate him, and by refusing to provide the supports and services the applicant needed, the respondent breached the Code.

3By Case Assessment Direction (“CAD”) dated February 21, 2013, the Tribunal scheduled this Application for a summary hearing to determine whether the Application should be dismissed in whole or in part because of delay, or on the basis that there is no reasonable prospect that the Application will succeed.

4The summary hearing took place by teleconference on May 30, 2013.

5Rule 19A.1 of the Tribunal’s Rules of Practice states:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

6Details about the nature of a summary hearing were described as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

7The issues in this Application involve the first type of analysis.

ANALYSIS

Factual Background

8According to the Application, the respondent observed the applicant having difficulties learning in school so it called the applicant’s mother and met with her to discuss those difficulties. The Application alleges that the applicant’s mother requested extra help within the classroom to support the applicant’s needs and the respondent provided a brief period of reading remediation. The respondent also offered to remove the applicant from the regular classroom to a smaller group part-time so he would receive more attention, and it offered an Individual Education Plan (“IEP”). The applicant’s mother would not consent to the applicant being withdrawn from the regular classroom and would not sign the IEP. The Application also alleges that the applicant’s mother asked the respondent to send daily work home for review and this request was ignored. Essentially the Application alleges that what the respondent was offering was not adequate or appropriate to meet the applicant’s needs, and the supports the applicant needed and asked for were refused.

9The applicant’s next friend does not dispute the following statements of the respondent contained in its Response that were repeated during the summary hearing: the applicant’s mother refused to consent to an assessment to determine whether or not the applicant had a learning disability; and, it is unknown if the applicant has a disability as his difficulties in learning may be because of normal variations in childhood development. Attached to the Response and not disputed by the applicant’s next friend is correspondence between the parties which indicates that on December 9, 2008, the applicant’s mother demanded one-on-one educational support inside the classroom for the applicant. When the respondent indicated that it would send an appropriate professional to observe the applicant in the classroom before determining whether or not to provide that support, the applicant’s mother stopped sending him to the respondent’s school and enrolled him in a private school.

The Code

10In the Application the applicant’s next friend checked off disability as the grounds of discrimination and wrote in longhand beside it “assumption of”.

11Section 10(3) of the Code says:

10.(3) The right to equal treatment without discrimination because of disability includes the right to equal treatment without discrimination because a person has or has had a disability or is believed to have or to have had a disability.

12Pursuant to s. 10(3), a person who is not disabled may claim a breach of the Code where he or she is perceived to be disabled and is subject to discriminatory treatment because of that belief.

13Section 1 of the Code says:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

14It is undisputed that the provision of education to students by school boards is a service within the meaning of s. 1 of the Code. However, the Application does not allege that the applicant was treated differently as compared with non-disabled students or with students who have a different disability, nor does it allege that he was harassed because he was perceived to be disabled. The substance of the Application is that the respondent failed to accommodate the applicant’s needs.

15For the reasons stated below I am satisfied that, assuming the applicant’s allegations to be true, there is no reasonable prospect of success with respect to this Application.

16Primarily this is because there is no free standing, independent right to accommodation under the Code. The Code does not impose on the respondent a duty to accommodate needs that are not related to one of the Code grounds.

17A number of Tribunal decisions have noted that the duty to accommodate is not a free standing right. For example, see: Baber v. York Region District School Board, 2011 HRTO 213; Matthews v. Chrysler Canada Inc., 2011 HRTO 1939; Preddie v. Saint Elizabeth Health Care, 2011 HRTO 2098; and J.O. v. London District Catholic School Board, 2012 HRTO 732. As stated in Baber (at paras. 89-90):

Section 4.2 of the Ontario Human Rights Commission’s Policy and Guidelines on Disability and The Duty To Accommodate succinctly explains how the duty to accommodate disability-related needs arises under the Code:

Section 11 of the Code, combined with section 9, prohibits discrimination that results from requirements, qualifications, or factors that may appear neutral but which have an adverse effect on persons with disabilities. This is often called “adverse effect,” or “constructive” discrimination. Section 11 allows the person responsible for accommodation to demonstrate that the requirement, qualification or factor is reasonable and bona fide by showing that the needs of the group to which the complainant belongs cannot be accommodated without undue hardship.

Section 17 also creates an obligation to accommodate, specifically under the ground of disability. Section 17 states that a right is not infringed if the person with a disability is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right. However, this defence is not available unless it can be shown that the needs of the person cannot be accommodated without undue hardship.

In other words, what the Code prohibits is discrimination – whether direct or adverse effect. The Code does not require accommodation in the absence of discrimination. Thus, an applicant who claims that her employer has breached its duty to accommodate her is really claiming that she has experienced direct or adverse effect discrimination because of disability, and that her employer cannot justify the discrimination by showing that the applicant could not be accommodated without undue hardship.

18The duty to accommodate arises from the interpretation of ss. 11(2), 17(2) and 24(2) of the Code.

19Sections 11 and 17 read as follows:

11(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

(3) The Tribunal or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship.

17(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

(3) In determining for the purposes of subsection (2) whether there would be undue hardship, a tribunal or court shall consider any standards prescribed by the regulations.

20For the applicant to succeed on a claim under the Code based on a breach of the duty to accommodate under s. 11, the applicant must first be able to point to a requirement, qualification or factor imposed by the respondent that has a discriminatory impact on him because of disability. Once that has been established, the respondent may argue pursuant to s. 11(1)(a) that the requirement, qualification or factor is justified because it is reasonable and bona fide. Only then does s. 11(2) come into play. It says the Tribunal shall not find a requirement, qualification or factor reasonable unless satisfied that the needs of the applicant cannot be accommodated without undue hardship. Similarly, section 17 contains a defence under the Code that is only applicable once discrimination has been found. As with s. 11(2), the defence in section 17 is qualified and narrowed by the duty to accommodate. This is not to say that a perceived disability can never give rise to a duty to accommodate; just that an applicant must be able to point to discriminatory conduct or impact before the duty arises.

21However, in this Application, the applicant does not allege any behaviour by the respondent, or point to any requirement, qualification or factor imposed by it, that had a differential impact on the applicant related to disability or perceived disability. Rather, the respondent offered additional services to the applicant, but the applicant wanted different supports that were suited to his learning style but not connected with a disability.

22As stated by the Supreme Court of Canada in Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27, [2000] 1 S.C.R. 665 (at para. 84): “in most cases, the applicants will have the burden of proving (1) the existence of a distinction, exclusion or preference…; (2) that the distinction, exclusion or preference is based on a ground enumerated …, and (3) that the distinction, exclusion or preference has the effect of nullifying or impairing the right to full and equal exercise of human rights and freedoms.” Thus the burden rests on the applicant to point to some requirement, qualification or factor that has a discriminatory impact on the applicant. As the Application does not contain any allegations of direct or indirect discrimination because of disability on the part of the respondent, it cannot be alleged that the respondent failed to accommodate the applicant in breach of the Code.

23If the applicant’s position was that he did have a disability and that disability caused him difficulties learning in the regular classroom, the respondent would have a duty to accommodate the applicant. If that were the situation, I would note it is a well-established principle that accommodation is a collaborative process. (See: Shaikh v. York Condominium Corporation #60, 2012 HRTO 1588; Leong v. Ontario (Attorney General), 2012 HRTO 1685; Scarlett v. Hamilton Health Sciences Corporation, 2010 HRTO 5.) In Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, the Supreme Court said (at paras. 43-44):

To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.

This does not mean that, in addition to bringing to the attention of the employer the facts relating to discrimination, the complainant has a duty to originate a solution. While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer's business. When an employer has initiated a proposal that is reasonable… and would, if implemented, fulfil the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept reasonable accommodation…. The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer's duty is discharged.

24Here the applicant’s next friend did not dispute the respondent’s statements in its Response that the applicant’s mother refused to have the applicant tested to determine whether or not he had a learning disability, refused to sign the IEP, and refused to permit the applicant to be removed from the regular classroom. Rather, the only accommodation that she would accept was one-on-one support in the classroom. When the respondent indicated that it would send an appropriate professional to observe the applicant in the classroom before determining whether or not to provide that support, the applicant’s mother stopped sending him to the respondent’s school and enrolled him in a private school. Applying the reasoning above in Renaud, I would conclude that even if the applicant’s Application said he has a learning disability, the respondent is entitled to a finding that it discharged its obligation to accommodate the applicant based upon the undisputed facts agreed to by the parties.

25Therefore, I am satisfied that there is no reasonable prospect that the Application will succeed and it shall be dismissed.

26Given my finding that the Application has no reasonable prospect of success, there is no need to address the issue of whether or not the Application was out of time pursuant to s. 34 of the Code.

DECISION

27The Application is dismissed.