R.B. v. Keewatin-Patricia District School Board, 2013 HRTO 130

Human Rights Tribunal of Ontario

Between:

R.B. by his next friend S.F. Applicant

-and-

Keewatin-Patricia District School Board Respondent

Interim Decision

Adjudicator: Jennifer Scott Date: January 25, 2013 Citation: 2013 HRTO 130 Indexed as: R.B. v. Keewatin-Patricia District School Board

Written Submissions

R.B. by his next friend S.F., Applicant David Baker, Counsel

Keewatin-Patricia District School Board, Respondent Donald Shanks, Counsel

Introduction

1This Application was filed on August 3, 2012, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). It alleges the applicant R.B. was discriminated at school because of his disability during the 2011/2012 and 2012/2013 school years. The Application was expedited by the Tribunal by Interim Decision dated September 11, 2012, 2012 HRTO 1721. A hearing has been scheduled for February 19-22, 2013 and March 20-22, 2013.

2The applicant, R.B., is a nine-year-old student in grade 3. He was excluded from school on October 22, 2012. The Application was subsequently amended to add further allegations of discrimination and reprisal in relation to the exclusion.

3In summary, the Application alleges R.B. was discriminated against by the respondent when it failed to accommodate his disability at school, when it disciplined him for disability-related behaviours, when it excluded him from school, and when it failed to provide an appropriate education during an absence from school in May and June 2012 and during the period of exclusion. The Application also alleges acts of reprisal by the respondent, most of which involve S.F.

4R.B. was excluded from school by the school principal for inappropriate behaviour including swearing, using profanity, spitting, yelling, cutting a child’s sweatshirt, stomping on a child’s leg, throwing material and being non-compliant with his teacher, educational assistant, vice-principal and principal. The Notice of Exclusion stated R.B.’s return to school was conditional upon the completion of a psychological assessment by the respondent’s school psychologist, Dr. Michael Stambrook, and the respondent being confident R.B.’s return would not compromise the physical and mental well-being of R.B. and his classmates.

5Dr. Stambrook completed his assessment of R.B. on November 12, 2012. He reviewed his findings with S.F. on November 26, 2012, including the diagnostic issues relating to R.B.’s mild intellectual delay, language processing problems, articulation weaknesses, ADHD (attention deficit hyperactivity disorder), PDD NOS (pervasive developmental disorder not otherwise specified), and the apparent Tic Disorder, as well as his behaviour that led to the Exclusion Order. He noted these diagnoses occur in the context of a lack of trust between S.F. and the school, and the custody/access issues that are ongoing between S.F. and her former spouse.

6Dr. Stambrook made recommendations concerning the steps required to transition R.B. back to school in his report dated November 26, 2012. They are as follows:

a. R.B. should be in an integrated school environment with a full-time EA (Educational Assistant), shared in the classroom;

b. R.B. requires a formal behaviour/feeling management plan that reinforces appropriate behaviour in all domains and has a proportional intervention process when his behaviour is discordant and at risk to himself and others. This plan will need to be professionally developed and signed off by the guardian, his mother and the school.

c. R.B. requires an up-to-date review of his academic and learning skills to assist in the titration of his current program.

d. There should be a single point of contact for S.F. and the school board. The superintendent of education was suggested as that contact person.

e. There should be regularly scheduled meetings every four to six weeks (included in the report of November 12, 2012).

f. There should be no further e-mail contact between S.F. and the school/school board.

g. There should be regular contact between S.F. and the school teacher via the school journal.

7Dr. Stambrook recommended the transition process not begin until there was resolution of the human rights issue because the relationship between S.F. and the school was fraught with discord and lack of trust. He stated there must be a re-establishment of a working relationship and trust before R.B. can return to school.

8On November 30, 2012, the superintendent of education for the respondent wrote to S.F. and advised her that it was prepared to implement Dr. Stambrook’s recommendations and return R.B. to school if she agreed to two conditions: first, S.F. must agree to Dr. Stambrook’s recommendations; and second, the human rights process must be completed.

9S.F. objects to the respondent’s requirement that R.B. cannot return to school until this proceeding has been concluded. She agrees with Dr. Stambrook’s substantive recommendations, although she requests increased home instruction during the period R.B. is out of school and during his transition back to school. She may also disagree with some of Dr. Stambrook’s recommendations regarding the contact between S.F. and the school/school board.

10On January 11, 2013, the applicant filed a Request for Interim Remedy seeking an order from the Tribunal to transition R.B. back to school on a gradual basis with full-time assistance from an Educational Assistant. The applicant also filed a Request for Order During Proceeding seeking further production from the respondent on the same day.

Interim Remedy

11The test for awarding an interim remedy is set out in Rule 23.2 of the Tribunal’s Rules of Procedure:

The Tribunal may grant an interim remedy where it is satisfied that:

a) the Application appears to have merit;

b) the balance of harm or convenience favours granting the interim remedy requested; and,

c) it is just and appropriate in the circumstances to do so.

12Rule 23 envisages an expedited process where parties are required to serve the Request for Interim Remedy and Response to the Request directly, and evidence is received by way of signed declaration. The Tribunal may schedule a hearing, but may decide the Request based only on the written materials filed by the parties. As a result, the Tribunal relies on the parties to provide full and complete materials in support of their respective positions. Due to the urgency of this matter, this Request for Interim Remedy has been decided based on the comprehensive written submissions filed by both parties, including the detailed declarations submitted.

13The approach that the Tribunal takes in determining requests for interim remedies is set out in detail in TA v. 60 Montclair, 2009 HRTO 369 (“TA”). TA and subsequent decisions have articulated various principles that apply to requests for interim remedies. They include the following:

• The focus of the inquiry is on whether an interim remedy is necessary to ensure a complete, appropriate and effective remedy at the end of a hearing (TA at paras. 15-27).

• Interim remedies are extraordinary remedies and an applicant has a significant onus to meet in demonstrating that an interim remedy is necessary (TA at paras. 28-29).

• To satisfy the first element of the test, the Tribunal need generally only be satisfied that there is an arguable case and the claim is not frivolous or vexatious (TA at paras. 30-32).

• The second factor involves a balancing of the harm to the applicant against the harm to the respondent (TA at paras. 33-34).

• The third factor calls upon the Tribunal member to decide whether the request is necessary to further the remedial purposes of the Code and is fair in all of the circumstances (TA at para. 35).

• The three criteria should not be seen as successive hurdles, but the decision should consider the collective impact of all factors and the purpose of the provision as a whole (TA at para. 36).

• The Tribunal is more reluctant to order a proposed interim remedy that would create a new state of affairs than one which would preserve an existing state of affairs (Cochrane v. Iroquois Falls (Town), 2010 HRTO 2350 at para. 8).

These principles were recently affirmed by the Tribunal in J.L. v. York Region District School Board, 2012 HRTO 2229 at para. 8).

14The applicant has been out of school since October 22, 2012. He submits his education has been limited to completing instructional material assessed by his teacher and receiving one-on-one instructional support from a qualified teacher one half-day (three hours) per week. The report filed by Trevor Sullivan and Dr. Jennifer Sullivan, R.B.’s counsellor and psychologist respectively, states this level of instruction is inadequate for R.B. to access education. The report states further that R.B. will suffer harm if he remains out of school indefinitely and will fall further and further behind his peers in terms of his cognitive, academic, and social development. An excerpt of the report is reproduced below:

…. [R.B.] will suffer harm if he remains out of school indefinitely. In all likelihood, [R.B.] will fall further and further behind his peers in terms of his cognitive, academic, and social development. Given his intellectual disability, [R.B.] is already functioning one to two years below his peers, and this gap will likely widen if [R.B.] remains out of school indefinitely. Further, I would expect that the transition back to school will be increasingly difficult for [R.B.] as time passes, as he will lose familiarity with the school setting, the class routine, and his friends and peer group. I am highly concerned that [R.B.] may be ostracized by his peer group upon his return if he is not allowed to return to school indefinitely.

15In his Request for Interim Remedy, the applicant also relies on the report of his paediatrician, Dr. Warkentin, dated January 3, 2013 (incorrectly dated January 3, 2012). In Dr. Warkentin’s view, R.B.’s behaviours reflect his extreme distress towards his environment, which includes “the increasing social gap he is experiencing with his peer group, the academic pressure of increasing intellectual demands and independent learning expectations and any perceived conflict that he is processing from his personal life as well as his parents’ relationship with the [school] and staff”.

16The respondent submits the Application is without merit and the Request for Interim Order is improper because the interim remedy requested (a full-time Educational Assistant) is the same remedy sought on the Application, the merits of which have not been determined. The respondent believes Dr. Stambrook’s recommendations (which include full-time EA support, shared in the classroom) must be implemented in order to successfully transition R.B. back to school. It asserts a hasty transition back to the classroom will be detrimental to R.B.’s education plan, to the education of other students in R.B.’s classroom and to the confidence placed by parents in the school itself. The respondent states the applicant’s delay in bringing the Request for Interim Order undermines his claim of irreparable harm. Finally, the respondent challenges the Sullivan and Warkentin reports on the basis that the authors did not meet with any school personnel and have not reviewed R.B.’s current work or tests to conclude his needs are not being met with the current level of instruction being provided.

17Dr. Stambrook filed a further report dated January 17, 2013 in support of the respondent’s Response to the Request for Interim Order. Dr. Stambrook believes R.B. should be back at school, but feels there is no easy way for him to return in the context of the level of acrimony and distrust that has developed. In the report he states “The simple issue is that from what I have heard and seen, there is a fracture in the parent/school ‘contract’ that cannot be simply remedied by the child attending school”.

18On the importance of R.B. returning to school, Dr. Stambrook writes:

I have reviewed specifically the report from Sullivan and Associates, and Dr. Warkentin, and there is absolutely no disagreement that this child needs to be back in an integrated school environment in the context of aide support, a well-developed and agreed to behaviour support plan, a feeling management plan and an educational plan that would target his skill level, tolerance, psychosocial needs, skills and feeling management. The sooner he is back in a school environment the better. In my view, the best education for him will occur in a school environment. This should occur as soon as is feasible but I do not agree that he is at this point suffering from irreparable harm. (emphasis added)

19In considering the criteria in Rule 23.2, the Tribunal must be satisfied after reviewing the materials filed by the parties that there is an arguable case and the claim is not frivolous or vexatious. The Tribunal, in its earlier Interim Decision expediting the Application, has already found the Application has merit.

20The Tribunal must also be satisfied that the balance of convenience favours granting an interim remedy. The question before the Tribunal is the harm to R.B. in denying the interim remedy compared to the harm to the respondent in granting it. When assessing the harm to R.B., the issue is not what harm has been caused to R.B. to date, but rather, what harm will result if the interim order is not made.

21The hearing in this matter is proceeding in February and March 2013. It is likely that a decision following the hearing will not be made until April or May 2013, at the earliest. At that time, R.B. will have lost most of his grade 3 year. If the decision is further delayed because of the complexity of the issues raised or the hearing is not completed, there will be further delay. It is quite possible that any order, if made, will not be effective until the next school year (2013/2014). A cycle is thereby created making it increasingly difficult for R.B. to transition back to school and impeding his ability to succeed once there.

22There is significant harm to R.B. in denying the interim remedy. It is beyond dispute that excluding a nine-year-old child from school for an entire school year causes irreparable harm that cannot be compensated by three hours of instruction per week, especially when that child has the kind of complex needs that R.B. has. While R.B. may not have suffered irreparable harm today, he will no doubt experience irreparable harm if he is not returned to school until September 2013. The respondent’s psychologist agrees with the applicant’s specialists that R.B. should be back in school.

23There is not the same degree of harm to the respondent in returning one of its students to school. The declarations filed by the respondent affirm that R.B.’s return to the classroom must be done properly and according to the advice of Dr. Stambrook. The superintendent of education declares if R.B. is transitioned and returned to school in advance of Dr. Stambrook’s recommendations being implemented, R.B. will continue his increasingly disturbing behaviour, which was placing other students, teachers and himself in jeopardy. In my view, the harm to the respondent is in returning R.B. to school prematurely before a transition plan can be properly implemented. Dr. Stambrook has not expressed an opinion that R.B. presents a risk in returning to school. Rather, his recommendations are aimed at a successful transition. Furthermore, in November 2012, the respondent agreed R.B. could return to school, provided two conditions were met. This militates against a finding that that there is a risk to the safety of R.B. and other students if he returns to school.

24As of the date of this Interim Decision, R.B. has been out of school for three months. I disagree that in the circumstances of this case, he can simply return to school (on a gradual basis) with a full-time Educational Assistant, as suggested by the applicant. There must be a plan to transition him back to school. I have reviewed Dr. Stambrook’s transition plan and his recommendations for transitioning R.B. back to school make good sense. Dr. Stambrook’s plan is supported by Dr. Warkentin, except that he believes R.B. should return to school immediately.

25The test under Rule 23.2 requires the Tribunal to decide whether the interim remedy is necessary to ensure a complete, appropriate and effective remedy at the end of a hearing. In my view, it is. In the event an infringement of the Code is found after the conclusion of the hearing, there is no order the Tribunal can make that would remedy the loss of an entire school year, at a critical stage in R.B.’s education. I would note that “the regular state of affairs” as referenced in Cochrane is for R.B. to be in school, not out of school, regardless of the outcome of the Application. I therefore find the applicant has met the significant onus of demonstrating the need for this extraordinary remedy.

26As such, I order R.B. be transitioned back to school on the terms recommended by Dr. Stambrook, with the exception that the transition be delayed until the conclusion of the human rights process. These terms must be implemented by February 15, 2013. It appears that the further testing recommended by Dr. Stambrook has already been done and the only substantive step that must be completed is the development of the behaviour management plan. That plan should be completed at the respondent’s expense. This timetable will allow R.B. to return to school on February 19, 2013. I will leave it to the parties to determine whether R.B. should return on a graduated basis.

27The transition plan involves S.F. and therefore requires her agreement. As such, this order is contingent upon S.F. agreeing to Dr. Stambrook’s recommendations, with the obvious exception that R.B. return after the conclusion of the human rights process. This includes her agreement with the communications restrictions suggested by Dr. Stambrook: communication through the superintendent of education, regularly scheduled meetings every four to six weeks, no email contact, and journal contact between S.F. and R.B.’s teacher. This order does not detract from the previous interim remedy granted by the Tribunal requiring the respondent to promptly contact S.F. in the event of emergencies, including urinary and fecal accidents. If S.F. does not agree in writing to Dr. Stambrook’s recommendations, the respondent is not required to implement this interim order.

28I am fully aware that there may be issues between the parties once R.B. is back at school. It is my expectation that any disagreement be worked out by the parties, with the assistance of their legal counsel. Both parties are represented by senior counsel with a breadth of experience in education-related matters. It is the Tribunal’s hope that in making this interim order, it does not result in further issues of dispute between the parties. This will likely prolong the litigation process and make it more difficult for R.B. to succeed at school.

29In making this interim order I am mindful of the reason for Dr. Stambrook’s recommendation that R.B. not be returned to school until the human rights issue is resolved. I agree that resolution would give R.B. the greatest chance of success. However, it does not appear that resolution is possible at this time and it goes without saying that it cannot be forced. S.F. and the school/school board must work together in the best interests of R.B. A final decision from the Tribunal at the end of the litigation process may not help them do that. There is, therefore, no certain benefit in waiting for the outcome of the litigation process to help the parties’ relationship and the cost to R.B. is simply too great.

30Finally, the applicant has requested a further interim remedy of increasing the home instruction currently being provided to R.B. during the period R.B. remains out of school and during his gradual transition back to school. I decline to make this order. The interim remedy requested is not necessary to ensure the Tribunal will be able to provide a full, effective and appropriate remedy should the Application be decided in favour of the applicant, nor is it required to give effect to the remedial objects of the Code. The applicant may seek leave to amend the Application to include additional costs, if any, that are incurred during this period.

Request for Production

31The applicant has sought additional production from the respondent concerning documents in the respondent’s possession relating to the 2011/2012 and 2012/2013 school years. It is unknown whether these documents exist. The applicant has also sought production of Dr. Stambrook’s complete file in relation to R.B. The respondent did not respond to this Request.

32It is well-established that the basic principle in determining a production request is whether the requested documents are “arguably relevant” to the issues in dispute in the proceeding.

33On January 17, 2013, the Tribunal issued a Case Assessment Direction confirming the allegations of discrimination concern the 2011/2012 and 2012/2013 school years, grades 2 and 3 respectively. All documents in the respondent’s possession relating to R.B. for these school years must be produced to the applicant. This includes the documents requested by the applicant in the Request for Order During Proceedings at Appendix “A”. If the documents do not exist, the respondent must advise the applicant and the Tribunal. Dr. Stambrook’s complete file should also be produced as requested by the applicant. All documents must be produced by February 6, 2013.

Order

34The Request for Interim Remedy is granted on the following terms:

a. The respondent will begin immediately to implement Dr. Stambrook’s transition plan dated November 12, 2012 and summarized on November 26, 2012;

b. The assessments and behaviour management plan under the transition plan will be completed at the respondent’s expense;

c. The transition plan should be fully implemented by February 15, 2013 and R.B. can return to school on February 19, 2013.

d. S.F. must provide her written agreement to Dr. Stambrook’s transition plan. If she fails to provide her written agreement, the respondent does not have to implement this order.

e. The documents requested by the applicant in his Request for Order dated January 11, 2013 must be produced (if they exist) to the applicant by February 6, 2013.