HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
R.B. by his next friend S.F.
Applicant
-and-
Keewatin-Patricia District School Board
Respondent
DECISION
Adjudicator: Jennifer Scott
Indexed as: R.B. v. Keewatin-Patricia District School Board
APPEARANCES
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”) and amended on January 8, 2013. It alleges the applicant R.B. was discriminated against at school because of his disability in Grades 2 and 3, the 2011/2012 and 2012/2013 school years.
2The Application was expedited by the Tribunal by Interim Decision dated September 11, 2012, 2012 HRTO 1721.
3R.B. was excluded from Grade 3 on October 22, 2012. By Interim Decision dated January 25, 2013, 2012 HRTO 130, the Tribunal ordered R.B. be transitioned back to school on February 19, 2013.
4The scope of the allegations of discrimination before the Tribunal are confined to Grades 2 and 3, up until the time R.B. returned to school on February 19, 2013.
5A hearing took place over the course of eleven days on February 19-22, 2013, April 3 and 4, 2013, and June 24-28, 2013. Written submissions dated July 12 and August 2, 2013 were filed the parties. The parties have requested that I issue my decision before the commencement of the next school year on August 26, 2013. This Decision has been expedited for that reason.
6The next friend, S.F., is the biological mother of R.B. and his older brother. A.B. is their biological father. By consent order dated February 4, 2011, the court ordered sole custody and primary care of R.B. and his brother to S.F. Under the terms of the consent order, S.F. was given the authority to make all significant decisions involving the children’s education. A.B. was entitled to information pertaining to the children, including information about their education, which he could obtain directly from teachers and the school board.
7S.F. has since re-married. S.F.’s new spouse is a high school teacher with the respondent.
8During the hearing, the applicant called R.B.’s psychologist Dr. Sullivan, R.B.’s counsellor Trevor Sullivan and R.B.’s pediatrician Dr. Warkentin. I did not hear evidence from R.B., who was nine years old at the time of the hearing.
9The respondent called R.B.’s Grade 2 teacher, Grade 2 Educational Assistant (“EA”), Grade 3 teacher, Vice-Principal, Principal, Superintendent, and Dr. Stambrook, the psychologist retained by the respondent (the “Board-retained psychologist”).
AGREED STATEMENT OF FACTS
10The following facts are taken from the parties’ Agreed Statement of Facts and the documents referred to therein that were filed into evidence. These facts are provided as context only as there are no allegations of discrimination concerning R.B.’s Junior Kindergarten (“JK”), Senior Kindergarten (“SK”) and Grade 1 school years, the time period covered by the Agreed Statement of Facts.
11R.B. was born in January 2004. When he was 53 months of age, he was assessed as “having probable delay in fine motor, expressive language, gross motor, auditory attention and memory, and visual attention and memory skills”. He appeared to be within the average range in receptive language, self-help skills and social skills. Further assessment was recommended.
Junior Kindergarten (2008/2009 School Year)
12R.B. started JK at Riverview Elementary School (“Riverview”) in September 2008. For most of the school year, R.B. went to school on a reduced school day.
13In February 2009, R.B.’s pediatrician, Dr. Warkentin, diagnosed R.B. with Pervasive Developmental Delay Not Otherwise Specified (“PDD”). R.B.’s PDD was manifested by mixed expressive and receptive language delay, gross and fine motor delays, attention, learning and memory difficulties.
14In February 2009, Dr. Warkentin requested that an Identification Placement Review Committee (“IPRC”) meeting be held and that R.B. be formally recognized as an exceptional student. Dr. Warkentin indicated that “first and foremost, [R.B.] should attend full days at school as is appropriate for other children his age”. Dr. Warkentin provided a list of essential accommodations that he recommended be put in place to ensure R.B. would be able to successfully access the school curriculum. Those recommendations included an individualized disciplinary plan appropriate for R.B.’s developmental level, focusing on time-outs, distraction and redirection.
15In March 2009, R.B. was provided with an Individual Education Plan (“IEP”). His area of strength was as a visual learner and his area of need was his behaviour management skills. Under the IEP, he was placed in the regular classroom with indirect support that did not include support from an EA. The environmental accommodations were strategic seating and alternate space for breaks. R.B.’s annual program goal regarding his behaviour management skills was to reduce the frequency of his aggressive behaviour by 50%. S.F. and A.B. signed this IEP.
16In June 2009, R.B. was issued a Speech-Language Pathology Transition/Discharge report that indicated he had made great progress, but continued to present with delays in articulation and language skills. The report recommended that R.B. receive speech-language services through the school as often as possible and be assigned EA assistance to help him understand classroom procedures and respond to questions and situations in his next school year.
17Dr. Warkentin’s PDD diagnosis was confirmed in a psychological assessment conducted by Dr. Sullivan in July 2009. Dr. Sullivan also diagnosed R.B. with an intellectual disability (mild range), but noted that due to his severe articulation problems and deficits in expressive and receptive language, this diagnosis was provisional. Dr. Sullivan recommended that R.B. have an IEP and noted he would require substantial learning assistance in the classroom in the form of an EA.
The assessment was provided to the respondent.
18R.B. obtained his final report card for JK in June 2009. It stated his articulation and language difficulties as well as his aggressive behaviours were a barrier to social development.
Senior Kindergarten (2009/2010 School Year)
19R.B. attended SK at Riverview in September 2009. He was provided with a second IEP in October 2009 where he was placed in a regular classroom setting with indirect support. R.B.’s areas of strength and need were unchanged from his JK IEP. His annual program goal regarding his behaviour management skills was to reduce the frequency of his aggressive behaviours by 75%. R.B. was to be provided with a full-time shared EA in the classroom and speech therapy sessions for 20-30 minutes each week.
20R.B. was provided a second IEP in March 2010. The content of this IEP was the same as the first IEP except the annual program goal was to reduce the frequency of his aggressive behaviours during outside recess by 75% and to communicate appropriately in the classroom 75% of the time, both by June 2010. S.F. signed this IEP.
21In R.B.’s final report card in SK, it was noted that the majority of his personal and social development skills were beginning to develop, while most areas of his language and math skills were graded as either needing more time and experience or beginning to develop. R.B.’s teacher indicated he had been very successful playing with his peers on the playground using socially appropriate behaviour, although noted that this may have been in part due to “proximity control on behalf of his EA”.
Grade 1 (2010/2011 School Year)
22R.B. attended Grade 1 at Riverview. He was provided with an IEP in October 2010. R.B. was placed in a regular classroom setting with indirect support. R.B. was provided with the assistance of a Special Education Resource Teacher (“SERT”) as required, a shared EA for 310 minutes a day in all school-related settings, and a speech therapist for 20 to 30 minutes a week. This represented full-time EA support in the classroom. S.F. and A.B. signed this IEP. R.B.’s area of strength was as a visual learner and one of his areas of need was his behaviour management skills.
23R.B.’s initial Grade 1 report card dated November 24, 2010 noted that R.B. had exhibited satisfactory skills and work habits in the areas of responsibility, collaboration, initiative, and self-regulation and needed improvement in the areas of organization and independent work. R.B. was noted as progressing well in all applicable subject areas, except physical education where he was noted as progressing with difficulty. His Grade 1 teacher noted:
[R.B.] can be a very social child. He will work in a group with other children. He attempts to do the job assigned to him in the group. Sometimes he needs a little prompting from his peers to keep on track. [R.B.] is able to take on the responsibility of a classroom job. [R.B.] tries to start work on his own. He needs one-to-one assistance to finish most tasks. He needs someone to remind him of the directions for the activity. [R.B.] needs to work on asking for assistance when he is working independently and needs help to finish the assignment or he forgets the instruction.
24In R.B.’s mid-term report card dated February 16, 2011, the teacher stated R.B. “needs one-to-one assistance to complete his written work”. She stated further that
R.B. knows most of the classroom rules. In the beginning of the year he was able to follow the rules. In the latter part of this term he has started acting out a bit. He is not listening to some adults in the room and he is starting to bother some of the children around him.
25R.B. underwent a further psychological assessment by Dr. Sullivan in March 2011. In her report dated March 24, 2011, R.B. was noted as having met the diagnostic criteria for Intellectual Disability (Mild) and for Attention Deficit Hyperactivity Disorder (“ADHD”), Combined Type, and she confirmed the earlier diagnosis of PDD. The report recommended that R.B. be formally identified with Multiple Exceptionalities, including Behaviour (ADHD) and Intellectual (Mild Intellectual Disability) through the IPRC process.
26Dr. Sullivan also recommended that given R.B.’s significant learning challenges, he would continue to require an IEP that outlined accommodations and/or modifications to his academic program and would require substantial learning assistance in the classroom in the form of an EA.
27Dr. Sullivan’s report addressed R.B.’s behaviour. As part of her assessment she had R.B.’s teacher and S.F. complete the Connors 3 test, a test to assess a student’s social/emotional/behavioural functioning. R.B.’s teacher rated his defiance and aggression as “very elevated”, giving him a score of 84. Defiance and aggression were defined as “physically and/or verbally aggressive, may be argumentative, may have poor control of anger and/or aggression”. Dr. Sullivan recommended the following strategies to deal with R.B.’s behaviour:
a structured, predictable classroom environment;
a customized, visual schedule;
an awareness by the school team of sensory factors that may be aversive or distracting and environmental changes when possible; and,
allow breaks and “time-outs” – a predetermined amount of time to retreat to a safe haven, such as the library or private cubicle at the rear of the classroom, when needed.
This assessment was provided to the respondent.
28In his final Grade 1 report card dated June 23, 2011, R.B.’s learning skills and work habits were all satisfactory. R.B.’s teacher commented that R.B. usually needs someone by his side to keep him focused and on task when it involves writing”. R.B. had “some trouble” following the school and classroom rules and he became “a little excited during unstructured times during the day”.
BACKGROUND FACTS
29During the Grades 2 and 3 school years, almost all of the interactions between S.F. and the school/school board were reduced to writing. Hundreds of pages of written communications were filed into evidence. The records of the witnesses are given significant weight by me because they were made at the time the events unfolded. The following facts are taken from these contemporaneous notes and the oral evidence before me, where that evidence is not contentious.
GRADE 2 (2011/2012 School Year)
Reduction in EA Support
30On June 21, 2011, the Vice-Principal contacted the Superintendent and Director of Special Education to advise them that S.F. had accused the school of not providing adequate EA support. The Vice-Principal stated the following:
Last June about the same time, she had a similar conversation (at 3:10 in the hallway) to ensure [R.B.] had an EA this year. I know she’s doing this because she’s trying to build a case to ensure he has 100%, 1:1 support. He recently got an assessment back diagnosing him Mild Intellectual and his behaviours are quite minimal. He will only have 0.5 support next year and I know she won’t be satisfied with that. I haven’t told her that he will have only 0.5 next year, but did try to communicate to her that our EAs have been significantly reduced for next year and that our severe behaviour students have priority to ensure everyone’s safety.
31The Superintendent responded to the e-mail and advised the Vice-Principal that it was important to let S.F. know that there was going to be a change in R.B.’s EA allocation the following year.
32On June 22, 2011, S.F. wrote to the Vice-Principal and asked her to confirm the level of EA support that the school would be providing to R.B. in Grade 2. S.F. referred to the March 2011 Sullivan report.
33On June 23, 2011, the Vice-Principal advised S.F. that there would be a half-time EA assigned to R.B.’s classroom the next school year at Open Roads Public School (“Open Roads”). Open Roads is a school that amalgamated Riverview and another school. The Vice-Principal advised S.F. that a reduction in Ministry of Education funding had significantly reduced the school’s EA support. She further advised that the school team was confident R.B. would do very well with half-time EA support because of his growth in independence and maturity and the progress he had made in Grade 1.
34On September 2, 2011, S.F. attended the first IPRC meeting for R.B. with legal counsel. Counsel gave a detailed presentation about R.B.’s exceptionality based on the assessments that had been performed by Drs. Warkentin (February 2009) and Sullivan (2009 and 2011) and the services and supports that he required to meet his needs. Counsel advocated for the provision of full-time direct EA support for R.B. because she submitted that in the past, insufficient EA support resulted in behavioural problems, inattentiveness and lack of progress.
35The IPRC placed R.B. in a regular class with withdrawal assistance. The IPRC did not address the level of EA support. The IPRC recommended that indirect support be provided by the SERT or the Literacy Teacher, at times.
36On September 20, 2011, S.F. communicated with the SERT and advocated for the return of full-time EA support for R.B. She advised the SERT that she believed the assessments by Drs. Mazurski, Warkentin and Sullivan all stated R.B. required substantial EA support in the classroom, that R.B. had full-time EA support for the last two years, and there was no explanation as to how and why R.B. could manage with less help.
37On September 20, 2011, Dr. Warkentin wrote to R.B.’s family physician Dr. Mazurski to advise her that it was his view R.B. would benefit the most by continuing his previous level of support in the form of a full-time EA. This letter was copied to the Superintendent.
38An IEP was developed for R.B. on October 5, 2011. R.B. was assigned the support of a SERT twice a week for 30 minutes per session and 150 minutes per day of shared EA support. S.F. did not sign the IEP, but provided comments.
39On October 24, 2011, the Principal wrote to S.F. and advised her that her comments and expectations on the IEP could not be accommodated as they did not reflect the agreements and determinations of the IPRC. The Principal informed S.F. that while they hoped she would agree to the IEP by signing it as R.B.’s parent, they would proceed to implement it so that his needs could continue to be met.
40On October 24, 2011, S.F. wrote to the Superintendent and requested dates to meet with the Special Education Committee to discuss the IEP.
41On November 3, 2011, the Principal wrote to S.F. and advised her that the Special Education Special Assignment Teacher (the “Special Assignment Teacher”) had offered to meet with her to provide clarification and education regarding the development of IEPs based on Ontario Ministry of Education documentation.
42On November 18, 2011, the level of shared EA support was increased by 50 minutes per day and a specific EA was assigned to the classroom. The increase in EA support was not communicated to S.F. because it was not intended to be permanent.
43In mid to late January 2012, the level of shared EA support was increased by an additional 50 minutes, bringing the EA support in the classroom to a total of 250 minutes per day. S.F. was not advised of this increase in EA support for the same reason.
44A second IEP was developed for R.B. on February 21, 2012. R.B. was provided with the same SERT and EA support as set out in the October 2011 IEP. In addition, he was provided the services of a student counsellor once every two weeks, speech/language pathologist by the Community Care Access Centre (“CCAC”) for eight visits from October 2011 to January 2012, and speech/language pathologist from the respondent once a week. S.F. did not sign this IEP.
45At the commencement of Grade 2, there were two students who received EA support in the classroom. A third student was added in late fall.
R.B.’s Behaviour
46On September 16, 2011, R.B.’s teacher advised S.F. that R.B. had complained about being hit on his bottom and his privates. S.F. subsequently advised the teacher the name of the student involved in the incident. The teacher said she would speak to both students about it. S.F. reported another incident involving the same student on September 22, 2011. She reported the student grabbed both of R.B.’s cheeks and twisted the skin on both sides while getting ready for the bus.
47On November 2, 2011, R.B.’s teacher e-mailed S.F. to advise her that R.B. had a really hard time behaving. She inquired whether R.B. got his medication on the days that he was at his dad’s the night before.
48On November 3, 2011, R.B.’s teacher advised S.F. that they had had another trying day with R.B. She advised S.F. that there was a new student in the class who also had problems and wondered whether that was bothering R.B.
49On November 4, 2011, S.F. wrote to the teacher and thanked her for keeping her informed on how R.B. was doing at school. She requested a meeting with her to discuss these issues.
50On November 4, 2011, the teacher contacted S.F. to advise her that R.B. had a better day and asked if S.F. could think of any reason why they were encountering problems like this.
51R.B.’s teacher met with S.F. and her spouse on November 9, 2011. R.B.’s teacher reported on the meeting to the Principal that day and advised she had a good conversation with S.F. and her spouse. She advised the Principal that S.F. and her spouse had concerns about R.B. and that she was glad to talk to them because R.B. had very poor behaviour lately. One of their concerns was that R.B. was being bullied on the playground. A second concern involved the addition of a new student to the classroom.
52On November 13, 2011, R.B.’s teacher reported to S.F. an incident that had occurred between R.B. and other students at lunch recess where the other students were breaking off twigs on a tree, knowing that it was not good for the tree. She advised S.F. that R.B. had stuck his tongue out and motioned across his neck like he had a knife and was cutting a throat to a boy in the other class.
53S.F. responded to the e-mail the same day and told the teacher that R.B. had come home very upset about the tree incident and did not understand why he got in trouble. S.F. thanked the teacher for looking into the matter and advised her they would encourage R.B. to go to the EAs at recess when others are hurting him.
54On November 16, 2011, R.B.’s teacher contacted S.F. to report that he had not had a good day and again inquired whether he got medication on the days that he came from his dad’s. She reported he was unsettled all day, had problems with yelling and not listening to her or the EA, was running around the classroom and was totally out of hand. At one point he left the classroom without permission. She reported that he was antagonizing some of the students in the bus line and the EA had asked R.B.’s brother to sit and talk to R.B.
55S.F. responded to the e-mail on November 16, 2011. She reported that another student (the new student in the classroom) had punched R.B. in the face at recess and that while waiting for the school bus, another student was pushing R.B. fairly hard. The EA instructed R.B.’s brother to leave his friends and to sit with the boys. S.F. stated dealing with bullying was the responsibility of staff, not other students. S.F. attributed the behaviour and bullying issues to the lack of EA support. She stated the following:
Behaviour issues and bullying were both issues in JK when [R.B.] had no EA support. In SK and in Grade 1 when [R.B.] did have full-time shared Educational Assistant support behaviour issues and bullying were not an issue. [R.B.’s] Psychological Assessment as well as all of his medical doctors have all stated that [R.B.] should continue with his full-time EA support that he has had for the last two years of his education. Now with the school not providing [R.B.] his full-time shared EA support that he has had for the last two years we are encountering the same behaviour and bullying issues we had in JK.
56The teacher responded on November 17, 2011. She stated that she had asked R.B. about the scratches on his face and neck after lunch and he told her he did not know what happened. He also did not inform her that he had been punched at recess. She asked the EA and was told by the EA that she had dealt with the incident at the time that it happened. S.F. was not told how the EA addressed the incident.
57On November 22, 2011, S.F. complained to the teacher and the Principal about another incident in the line for the bus and R.B.’s brother being asked to intervene.
58On November 23, 2011, S.F. complained to the Principal that R.B.’s brother had felt reprimanded by the Principal when she pulled him out of class. The Principal responded that she did not reprimand R.B.’s brother, that she was simply asking him questions about what had happened.
59On November 24, 2011, S.F. advised R.B.’s teacher about another incident where R.B. had been punched and pushed by another student.
60On November 30, 2011, S.F. wrote to R.B.’s teacher and complained about R.B. being removed from class by the gym teacher. She also complained that R.B. had been teased at recess that he was not strong. R.B. pushed the other student to show that he was strong. He then had to sit in the office. S.F. stated it was “unacceptable that the school is segregating [R.B.] and targeting behaviour issues from [R.B.] when they are not providing [R.B.] his required full-time shared EA support”.
61In the November 30, 2011 e-mail, S.F. advised R.B.’s teacher that R.B. informed her that he would have to write an apology note to the student and his parents “for an incident that occurred during recess (a period during the day when the school is not providing [R.B.] his required full-time shared EA support)”. S.F. asked for a copy of the note R.B. wrote to the student and his parents. She also requested copies of all of the apology notes R.B. had received from the students to date this year who had scratched, hit, punched, pushed and name-called him. She advised R.B.’s teacher that she would pick up the notes the following day.
62On December 1, 2011, R.B.’s teacher e-mailed S.F. and advised her that R.B. had put his boot in the student’s face and that the student had done nothing to R.B. so the teacher had R.B. write a note to say he was sorry. The teacher did not advise S.F. that the note was not directed to the student’s parents.
63On December 1, 2011, the Principal advised S.F. that her statements about R.B.’s behaviour were not accurate and that her continued correspondence with members of her staff were unprofessional and unacceptable in tone and direction. She advised S.F. that she had directed R.B.’s teacher to forward any further communication from S.F. to the Principal and to not respond to S.F.’s correspondence. She advised S.F. that they would not provide apology notes to S.F. from other students as demanded, but she was happy to discuss it with her. S.F. responded to this e-mail the same day and asked what part of her e-mail was untrue.
64On December 1, 2011, R.B.’s teacher advised the Principal that she had spoken to A.B. the night before and he advised her that he did not give medication to R.B. nor had he been directed by S.F. to do so. He agreed to talk to S.F. about his concern regarding the consistency of medication when R.B. was at his home without letting S.F. know that R.B.’s teacher had called.
65At the end of the day on December 1, 2011, S.F. and her spouse attended a meeting with Principal and Vice-Principal. What occurred during this meeting is in dispute between the parties and is addressed later on in this decision. What is not in dispute is that S.F. and her spouse were issued a trespass notice and communication ban on that day because of an alleged threat made during the meeting by S.F.’s spouse. As a result, all communication with S.F. from this point forward was through the Superintendent.
Letter to the School Board Trustees
66On January 27, 2012, on the advice of her then legal counsel, S.F. wrote to the school board trustees and complained about the lack of parental input into the IEP, the defensive tone of the school, the school’s failure to address the documented need for R.B. to have EA assistance and the failure of the school to address the issues of bullying. In that letter, S.F. denied that she and her spouse threatened the principal either verbally or physically.
Complaints to the Superintendent in Grade 2
67Early in the morning on February 6, 2012, S.F. complained to the Superintendent that R.B.’s EA grabbed his hand/wrist so tight that it hurt. When R.B. asked the EA to let go, she refused. R.B. then “karate chopped” her hand trying to make her let go of him. S.F. reported to the Superintendent that when another EA saw this she said to R.B., “If I ever see that again I am going to strangle you”. S.F. requested that the physical contact from staff towards R.B. stop and inquired whether staff would be disciplined for their mistreatment of R.B.
68The Superintendent responded to S.F. shortly after receiving the e-mail and advised her that she had forwarded her concerns to the school to investigate and take action as required.
69Almost immediately after receiving the e-mail from the Superintendent, the Principal contacted the Director of Special Education and requested a meeting. She advised him the situation was “complete nonsense” and that the EA had come to see her the previous Friday about R.B. “faking that she is hurting him when they walk down the hall and says he is going to tell his mom”. The Principal advised the Director of Special Education that the EA held R.B.’s hand because he ran everywhere. She also advised him that they watched the cameras on Friday and R.B.’s behaviour was very blatant. Finally, she told the Director of Special Education that unless he stated otherwise, she was going to ignore S.F.’s e-mails.
70S.F. contacted the police about this matter. The Principal met with the police and reported back to the Superintendent on February 10, 2012. She advised the Superintendent that the police officer had suggested the school consider having one-way communication by sending S.F. updates on how R.B. was doing. The Principal reported to the Superintendent that the police officer was of the view that S.F. had gone to the police because she had not received a response from the school to her e-mail. The Principal reported that she told the police officer that they communicate regularly with A.B.
71On February 14, 2012, S.F. wrote to the Superintendent and complained about the Principal asking R.B. how his weekend was with his dad. She advised the Superintendent that weekends do not go well with A.B. and the question had upset R.B. She also advised her that R.B.’s teacher and the EA told R.B. that he is going to jail when he grows up.
72The Superintendent responded to S.F. the next day. She advised S.F. that the EA was sitting with R.B. at his desk when he commented that he liked to be bad to people. The EA responded that if you are bad to people when you are older, people go to jail. She confirmed that the Principal had asked R.B. if he had had a good weekend and that he responded he had fun and that he had watched wrestling on the computer.
73On April 27, 2012, S.F. met with the Superintendent regarding the communication ban. On April 30, 2012, S.F. wrote to the Superintendent to confirm that the Superintendent had made the following commitments in terms of opening up the communication between the school and S.F.:
a. Ongoing communication between the teachers for R.B. and his brother in their agendas;
b. The SERT would e-mail S.F. at the beginning of each week and inform her of when she planned to work with R.B. and what she would be working on with him;
c. S.F. could continue to communicate with two board members;
d. S.F. could communicate with a staff person from CCAC;
e. S.F. could communicate with the school secretary via phone or e-mail;
f. S.F. could start to communicate with R.B. and his brother’s teachers via e-mail;
g. S.F. could enter Open Roads School to attend special school and classroom events, programs and activities.
74On May 9, 2012, the Superintendent wrote to S.F. and informed her that since their meeting on April 27, they had received two letters from her lawyer, which were sent to the school board’s lawyer. She advised S.F. that under the direction of their lawyer, he was handling the situation and that he had asked her not to respond in writing until the situation was resolved. The Superintendent advised S.F. that the school board’s lawyer was aware that she had given verbal permission for S.F. to attend special events at the school. The Superintendent advised S.F. that she still had permission to attend the special event on that day.
April 2012 IPRC
75A Review IPRC was held on April 12, 2012. At the beginning of the meeting, S.F. asked if she could say a few words to the committee. The Superintendent agreed. S.F. thanked the committee for arranging the IPRC meeting. She stated she wanted to re-establish respectful, constructive, ongoing communication between the school and herself and to work together in the most beneficial way to support R.B.’s educational needs. In her written presentation to the IPRC, S.F. requested that R.B. have full-time shared EA support as he had had for the past two years of his education, that the school execute R.B.’s accommodations in the Sullivan assessment, that a safety plan for R.B. be developed and used, and for the bullying and segregation to stop.
76The IPRC identified R.B. as having multiple exceptionalities and placed him in a regular class with resource assistance. The only recommendation made by the IPRC was to maintain regular communication between home and school via an agenda, as an example. At the IPRC, S.F. and A.B. inquired about the process to voice their concern about full-time EA support for R.B. for the upcoming year. The Special Assignment Teacher explained the process and indicated the school board was reviewing its funding for the next year. The process involved the school indicating their school needs to a special board committee made up of Special Assignment Teachers and the Director of Special Education. The Special Assignment Teacher advised A.B. and S.F. that they would not have a definitive answer until much later in the year.
Withdrawal
77In March 2012, R.B. started to see his therapist Trevor Sullivan for anxiety.
78In May 2012, R.B. was withdrawn from school. A medical note dated May 14, 2012 was written by Dr. Mazurski that R.B. was unable to attend school due to medical reasons. In the note she stated the following:
I anticipate that he will be off for the remainder of the school year. He would benefit from ongoing educational assistance (provision of his school work and marking of same) to ensure he is able to maintain his education while absent from school.
79On June 7, 2012, the school sent home a bag of books for R.B., to be returned in September.
80On July 31, 2012, Dr. Mazurski wrote a further note to clarify the medical issues referred to in her note of May 14, 2012. She stated:
It was my understanding that [R.B.] was demonstrating symptoms of anxiety and fear regarding his school attendance. This was confirmed by a letter received from Trevor and Dr. Jennifer Sullivan dated April 11, 2012 and as reported by his mother, [S.F.].
It also appeared to me that there had been a complete breakdown of the relationship between [S.F.] and the school board and school officials to a point that there was no longer an environment conducive to learning. I did feel that [R.B.] would benefit from keeping up with his education at home and requested that the school board provide his mother with learning material that he could work on at home to prevent him from becoming behind in his school work. If you require further information please contact me.
GRADE 3 (2012/2013 School Year)
September IRPC
81A Review IPRC was held on September 10, 2012 for R.B.’s Grade 3 year. R.B.’s identification and placement remained the same. The IPRC recommended full-time shared EA support during classroom setting, outdoor playground and bus line. Ongoing communication between home and school using the school agenda was to continue. The notes attached to the IPRC indicated that the Principal had advised S.F. that R.B. was currently benefiting from a full-time shared EA in the classroom and that R.B. received EA support during nutrition breaks in a shared capacity. The Principal advised S.F. that the EA was assigned specifically to R.B. during the bus line up and the EA personally escorted R.B. to his bus as that was a difficult time of the day for him due to the high noise and student traffic in the hallways.
82An IEP was developed for the Grade 3 year and signed by the Vice-Principal on October 10, 2012. It provided R.B. with support from the SERT, twice a week for 30 minutes per session, a full-time shared EA, direct service from an external speech/language pathologist, and speech/language pathologist from the respondent one day per week.
83S.F. signed the IEP on October 16, 2012. She attached comments to the IEP where she complained about the lack of consultation in the preparation of the IEP and the lack of contact between her and R.B.’s SERT and classroom teacher since the beginning of the school year at the end of August.
84The school amended the IEP on October 30, 2012, to respond to some of S.F.’s comments.
Behaviour
85On September 13, 2012, the Superintendent forwarded an e-mail from the Vice-Principal to S.F. about an incident that had occurred in school that day. While a supply teacher was reading a story to the class, R.B. was directed by the EA and the teacher to sit at a desk because he was fidgety and was having difficulty paying attention. While he was sitting in a chair, he took out a pair of scissors and cut another student’s sweater that was hanging on the chair. The Vice-Principal did not discipline R.B. for this incident because he did not understand the consequences of his action.
86On September 20, 2012, S.F. complained to the Superintendent that R.B. had struggled with segregation in and outside of the classroom, had been teased and bullied by other students and that other students had gotten R.B. in trouble. She advised the Superintendent that R.B. was upset that he was not allowed to play with others at recess and was segregated from the recess routine. She stated R.B. informed her that when he was at school, he felt his heart racing fast, had breathing difficulties and felt as though he was going to have a heart attack. She requested a meeting with the classroom teacher to help resolve these issues and R.B.’s anxiety.
87The Superintendent sent the e-mail to the classroom teacher. On September 21, 2012, the classroom teacher advised the Superintendent that the accusations were absolutely false and that she would be contacting her union before responding. She advised the Superintendent that on Monday his EA was with him and he played outside as usual, Tuesday he played soccer at recess, Wednesday was a rainy day and they had indoor recess where he played with Plasticine with others, and Thursday he played soccer. The teacher stated the only reason his heart would have been racing was because he played soccer so hard.
88The Superintendent advised S.F. that she had spoken to the school and the events that she had complained about had not occurred. She asked S.F. where she had received her information.
89On September 24, 2012, S.F. was advised by the classroom teacher that R.B. had some difficulty in class – breaking pencils, shouting inappropriate words and saying he didn’t want to do his work.
90On October 1, 2012, the Grade 3 classroom teacher contacted S.F. about R.B.’s behaviour and his use of profanity. She advised S.F. that he had used the expression “ass face” in the vicinity of the EA, said “who shit their pants” during the class photograph session, and used the “f” word and “ass face” in class. The teacher acknowledged that inappropriate language occurred with R.B., perhaps as a coping strategy.
91On October 15, 2012, R.B. attended school wearing a t-shirt that said “Stop The Bullying at Open Roads”.
92During the week of October 15, 2012, R.B. attended school wearing a key fob that the school believed was an audio recording device.
93On October 15, 2012, the classroom teacher advised S.F. that she had observed new behaviours that were concerning. When the classroom teacher asked R.B. to stop using inappropriate language, R.B. told her to “shut up” and did some name calling. Once removed, he continued to shout “stop the fucking bullying” and used phrases such as “f’ing bitch” and “f’ing asshole”. Prior to lunch, he went after another student with a sharp pencil shouting “I’m going to stab you”. The classroom teacher advised S.F. that she had notified the parent of the student who R.B. threatened. She advised S.F. further that R.B. hit one of the teachers and was swinging his fists pretending to hit another adult in the building. That afternoon, he called his classroom teacher “fuck face” and threw many items in the hallway all over the floor. The teacher stated the following:
I am very concerned about the aggressive nature of his language and actions towards the teachers and the students in the school. I hope this behaviour lessens considerably.
94On October 16, 2012, S.F. wrote to the Superintendent. She advised her that R.B. had been away from school the previous Thursday and Friday because of an incident that occurred in the classroom. Regarding the inappropriate language, S.F. advised the Superintendent that they had all heard this language from A.B., that they discussed the incident with R.B., and he was very upset and had apologized. She thanked the Superintendent for continuing to work with R.B. in a positive way.
95The Superintendent responded to S.F. on October 17, 2012, and asked for more information about the incident that had occurred the prior week so that it could be addressed to ensure R.B. did not miss any more school. S.F. did not respond.
96The school developed a behaviour management plan for R.B. dated October 15, 2012, and provided it to S.F. on October 19, 2012.
97On October 21, 2012, S.F. complained to the superintendent that R.B. was required to wear large ear muffs and a heavy weighted jacket at school. On October 22, 2012, the Superintendent responded and advised S.F. that R.B. had never worn ear muffs as he wears his musician ear plugs daily as recommended by his IEP. She also confirmed that he had never been instructed to wear a heavy weighted jacket at school.
Exclusion
98On October 22, 2012, R.B. was excluded from school by the school Principal for inappropriate behaviour including swearing, using profanity, spitting, yelling, cutting a child’s sweater, 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.
99During the exclusion, R.B. was provided with instruction from an itinerant teacher three hours per week in the public library. S.F. supplemented this instruction. S.F. developed a good rapport with the itinerant teacher and R.B. made significant academic gains under her instruction. For example, when he was excluded, R.B. was reading at level 2. By February 2013, he was reading at level 7.
Dr. Stambrook Assessment
100Dr. 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, 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.
101Dr. Stambrook made recommendations concerning the steps required to transition R.B. back to school in his report dated November 26, 2012. They were as follows:
a. R.B. should be in an integrated school environment with a full-time EA, 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.
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.
102Dr. 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. could return to school.
103On November 30, 2012, the Superintendent 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 around communication restrictions; and second, the human rights process that was ongoing must be completed.
Return to School
104By Interim Decision dated January 25, 2013, 2013 HRTO 130, the Tribunal ordered R.B. be transitioned back to school on February 19, 2013, on the terms recommended by Dr. Stambrook, except the requirement that the human rights process be resolved before R.B. could return to school.
105An Educational Assessment was conducted on R.B. on January 17, 2013, and the report was released on February 4, 2013. In the assessment, R.B.’s academic skills were assessed in reading, writing and math. The assessor found that when compared to other students in Grade 3.5, R.B. was performing below the 1st percentile and more like that of an average student in Grade 1.
106On February 11, 2013, the respondent developed a transition plan for R.B. to return to school the week of February 19, 2013 on a graduated basis. Under the plan, R.B. was to attend school in the school library with an educator from February 19 to June 17, 2013. His first interaction with other students was to occur at lunch the week of March 18 and was to be graduated to other school settings. R.B. was to start school on half-days, which were gradually increased to full days, so that by the week of June 10, R.B. was attending school full-time.
107The Transition Plan included a communication plan, a preventative strategies plan and a proportional intervention plan.
108R.B. returned to school on February 19, 2013. At that point in time, he had been out of school for almost four months.
109The Transition Plan was amended during the week of February 19, 2013, but was not entered into evidence before the Tribunal because it was beyond the scope of the allegations before the Tribunal.
110By Interim Decision dated April 12, 2013, 2013 HRTO 611, the Tribunal denied the respondent’s request for an order relieving it from complying with the Interim Order to return R.B. to school because of an alleged breach of the communication restrictions by S.F. The Tribunal held the fact that the applicant’s counsel raised a new concern/allegation did not constitute a breach by S.F. The Tribunal held it was anticipated that ongoing issues during the transition period would be dealt with by counsel.
CONTENTIOUS FACTS: ALLEGATIONS OF MISCONDUCT BY S.F.
111The respondent submits that S.F.’s conduct must be examined when determining whether the applicant has made out his case. I agree that S.F.’s procedural duty to cooperate in the accommodation process must be considered when assessing the applicant’s case. If I find that the applicant has established discrimination, S.F.’s conduct is considered again when determining whether the respondent has justified the discrimination.
112The communications between S.F. and the school/school board set out above are clearly relevant to the respondent’s allegations regarding S.F.’s conduct. They are considered here, but are not repeated. I have considered the documentary evidence and the testimony before me and have made findings as to whether S.F. engaged in misconduct or interfered in the accommodation process. The allegations concerning S.F.’s conduct have been separated by school year.
GRADE 2
Unfounded Allegations of Bullying by S.F.
113The respondent alleges S.F. made unfounded allegations that R.B. was bullied in Grade 2. In her evidence, R.B.’s Grade 2 teacher admitted that R.B. had been inappropriately touched by another student. She stated:
I took [S.F.’s] information to be true that one student in my class was touching his (R.B.’s) bottom and privates. I moved the student away and I talked to both of them. I let [R.B.] and [S.F.] know if he heard about it again, to let me know.
114When asked if she was aware of situations where R.B. had been physically assaulted by other students, she stated:
I know nothing comes to my head, but there probably was. I cannot tell about a particular incident. A lot of things happen in a Grade 2 class. There were times when he may have felt that way.
115R.B.’s teacher testified that she saw scratches on R.B.’s face in November 2011 and asked R.B. about it. She also asked the EA about it, who advised the teacher that she had dealt with it outside at the time it happened, but provided no explanation as to how it was addressed.
116R.B.’s teacher was aware of another incident between R.B. and the same student involved in the November occurrence. R.B. had on a muddy boot and put it up to the student’s face. This was the incident where R.B. was asked to write an apology note and S.F. believed R.B. was instructed to write an apology note to the student’s parents. The Grade 2 teacher did not advise S.F. that R.B. had not been required to write a note to the student’s parents when S.F. requested copies of the note. Instead, she referred the matter to the Principal because she felt S.F. was being unreasonable and threatening. The Principal then stopped all communication between S.F. and the Grade 2 teacher.
117The Grade 2 teacher testified further that she recalled an incident where R.B. was being teased by other students. She stated they were getting him to say a word because he said it in a funny way and said “There were a few things that happened in a teasing way”.
118Based on the respondent’s own evidence, I cannot find that S.F. made unfounded allegations of bullying in R.B.’s Grade 2 school year.
Unfounded Allegations of Segregation
119The respondent asserts that S.F. falsely accused the school of segregating R.B. in Grade 2.
120R.B.’s Grade 2 teacher testified that she used several strategies to deal with his behaviour in Grade 2. These strategies included putting a piece of tape on the floor with an X to identify the spot where R.B. could sit. The special spot was close to the door in case he needed to leave if he was being disruptive. She also placed his desk 15 inches towards the window where he would sit by himself with the EA. There was also a desk in the hallway where R.B. would sit when he needed time to calm down. She admitted that there was a tent in the special education resource room where students could go to relax and help them settle down. It is unclear on the evidence whether R.B. used this tent.
121The Grade 2 teacher testified further that she was not concerned about S.F.’s assertion that R.B. ate his lunch on the floor one day because she did not believe that he did. She stated that she told S.F. that normally a student eats in the hall if they are not behaving, but they are sitting on a bench. She stated if R.B. chose to eat on the floor, then that was his choice.
122The respondent relies on the March 2011 Sullivan assessment to suggest the teacher’s placement of R.B. on the tape was a strategy recommended in that assessment. The Sullivan report attached an article titled “Teaching Children With Developmental Disabilities: Classroom Ideas”. That article recommended using visual cues to orient a student in the classroom. The article recommended the use of coloured tape on the floor to represent boundaries between spaces that are used for different functions - play or study - so that students know what to do in these different spaces. The article did not recommend the use of tape on the floor to mark a place for a particular student.
123The March 2011 Sullivan report recommends a safe haven for R.B. in the classroom for breaks and time-outs, such as a cubicle in the back of the classroom, for a pre-determined amount of time. It did not recommend that R.B.’s permanent place in the classroom be away from the other students.
124Based on this evidence, I cannot conclude that S.F. made unfounded allegations of segregation in R.B.’s Grade 2 school year.
Jail Comment
125The respondent submits that when S.F. made complaints and was given explanations, she refused to accept them. An example of this is when the EA told R.B. that people go to jail if they do bad things.
126There was a context for this comment. The EA testified that R.B. entered the classroom carrying his agenda and he hit a couple of students over the head with the agenda. The EA explained to R.B. that his classmates did not like that. She testified that he responded he liked to be bad with people because it was fun. The EA explained to R.B. that if he was bad to people, they may not want to play with him. He continued to say he liked to be bad. The EA then said “when you are an adult and you’re bad to people, sometimes you can get into trouble and go to jail”.
127The evidence of the Grade 2 EA establishes that the jail comment was made. S.F. was upset about this comment. There is certainly an issue as to how R.B., with his intellectual deficits, understood this comment. In any event, S.F. was concerned about the comment and communicated that concern. It was not a false allegation on her part.
128The report of Dr. Sullivan and Trevor Sullivan dated January 3, 2013 describes Trevor Sullivan’s sessions between March 2012 and May 2012. In those discussions, R.B. described situations that made him feel upset and sad at school:
…. having his desk in a different area than the other students in his class, having to eat lunch by himself in the hallway, and having to spend long periods of time in the class tent. Also during this time period, [R.B.] told the therapist that his teacher didn’t like him, and that he would go to jail if he told his mom what was happening at school or if he did bad things. He also told the therapist that his teacher yelled a lot, gave him “mean looks”, that he got a stomach ache and his heart “beat faster” whenever his teacher talked to him
129R.B.’s reports to his therapist were consistent with many of the findings above.
Refusal to Advise School of Medication Changes
130The respondent argues S.F. interfered with the accommodation process when she did not advise the Grade 2 teacher that R.B. was no longer taking medication in response to her inquiries in the fall of 2011, at a time when his behaviour was escalating. The evidence from Dr. Warkentin was R.B. was off medication by the end of October 2011.
131The Grade 2 teacher testified that she spoke to R.B. directly about this in the classroom in early December 2011. Her evidence on this incident was as follows:
I took R.B. quietly to the front of the class. I think I said you seem to be having a lot of problems lately. I know your mum gave you medication at the beginning and I asked him if he was still taking it. He said no, he wasn’t, but he didn’t sound very sure. He said it tasted bad, hurt his stomach and one other reason.
132The Grade 2 teacher testified that she did not think other students in the classroom heard this discussion because she had R.B. behind her desk and was talking to him very quietly.
133Dr. Warkentin testified that sometimes he advises parents not to inform the school that a student is on medication because he wants an unbiased view of the student’s behaviour from the school.
134During cross-examination, Dr. Warkentin was asked whether R.B.’s anxiety and behaviour would have improved if he had stayed on medication. He stated that he did not know. He stated further that if he treated R.B. today, his acting out behaviour would be improved if his environment was supportive of him. He testified medication could do something, but behaviour is affected by the external environment.
135Dr. Stambrook testified that it is important for the school to be told of changes in medication use because it can impact their treatment of the student.
136The respondent argues S.F. interfered with its ability to accommodate R.B. because she held back this information. Beyond this general statement, there is no evidence that the respondent would have done something different had S.F. disclosed this information. Indeed, there is no evidence that the school took any steps regarding R.B.’s behaviour after obtaining medication information directly from him. To establish interference with the accommodation process, there must be evidence that the failure to disclose information had a concrete effect on the duty to accommodate. In this case, the assertion is really “we should have been told” and nothing more.
137For these reasons I cannot find that S.F.’s failure to disclose the fact that R.B. was no longer taking medication in the fall of 2011 interfered with the school’s ability to accommodate R.B.
December 1, 2011 Meeting
138S.F. and her spouse attended at the school on December 1, 2011 to meet with R.B.’s Grade 2 teacher. The teacher was not at school and they requested a meeting with the Principal. The parties agree that the Principal informed S.F. and her spouse that she did not have a lot of time to meet with them. The Principal testified that she had an appointment scheduled at her home that she had to attend to.
139The Principal testified that S.F. started the meeting by asking what part of her e-mail of November 30th was not factual. The principal advised S.F. that she had spoken to the gym teacher and what she said had not occurred. S.F. then asked why her son was required to eat lunch on the floor and she wanted to see video footage showing the location of her son. The Principal advised S.F. that video footage was school board property. S.F. responded that she had people that could make the Principal show her the video footage. The Principal testified that at that point, she told S.F. and her spouse that she felt that she was being threatened. The Principal testified further that S.F.’s spouse then jumped out of his chair, lunged towards her and yelled “do you want threatening, I’ll show you fucking threatening”. The Principal testified that she asked S.F. and her spouse to leave and informed them that she was going to call the police. At that point, S.F. was shouting that her son was forced to write apology notes and that it was wrong. The Principal testified that she called 911 and left the room.
140Once out of the room, the Principal testified that she asked a teacher to call the Director of Special Education. The Director of Special Education advised her that the Superintendent was on her way. The Superintendent arrived and spoke to S.F. and her spouse. The police issued a 24-hour trespass notice. The Principal later contacted the Superintendent to issue a permanent trespass notice and communication ban. Both of these remain in place today.
141The Vice-Principal corroborated the Principal’s evidence, except she testified S.F.’s spouse stepped towards the Principal before the Principal said she felt threatened. Regardless of the precise timing of the comment, the Vice-Principal and Principal agree that the Principal told S.F. and her spouse that she felt threatened and S.F.’s spouse responded with his comment.
142S.F. conceded that her spouse used the words “fucking” and “threatening”, but stated he did not motion towards the Principal or threaten her. S.F. testified her spouse made the comment and sat down.
143I find that S.F.’s spouse made the statement to the Principal “if you want threatening, I’ll show you fucking threatening”. This statement was a verbal threat. There is no evidence before me that S.F.’s spouse physically threatened the Principal. Although the Principal testified he lunged towards her, the Vice-Principal testified he stepped towards her. Neither witness testified that he made any physical threat. The Principal left the room and the police were called.
144The fact that S.F.’s spouse made this comment cannot be attributed as misconduct on S.F.’s part. Further, there is no connection between the comment and the accommodation process for R.B.
Police Complaint
145In February 2012, S.F. complained to the Superintendent that R.B.’s Grade 2 EA was holding his hand too tight and he was forced to “karate chop” her hand to let him go. This incident is noted in the EA’s notes. The Superintendent forwarded the complaint to the school and asked them to take action as required. The school did not respond to the complaint and S.F. went to the police to complain about the EA’s conduct, that R.B. was required to go into the tent and also that R.B. had been forced to wear a weighted jacket. The police officer told the Principal that the reason for the complaint was the school had failed to respond to S.F.’s inquiry. The police recommended that the school communicate with S.F. The school advised the police that it communicated with A.B. on a regular basis.
146Although the Principal testified that there is a weighted vest in the school, there is no evidence that R.B. was required to wear it.
147I agree with the observations of the police that S.F. went to the police because she did not receive a response from the school to her concerns. The evidence is unclear whether R.B. used the tent and I cannot make a finding based on the evidence that he was required to do so. There is also no evidence that he was required to wear a weighted jacket or vest. While there is a weighted vest at the school, there is direct no evidence that R.B. wore it.
148The issue is whether these assertions were unfounded and if they were, whether that interfered with the respondent’s ability to accommodate R.B.
149It is not disputed that R.B. complained to the EA about the way she was holding his hand. The school thought R.B. was faking it. R.B. reported this incident to S.F. and she in turn reported it to the Superintendent. Whether or not R.B.’s perceptions were accurate, S.F. was concerned enough to contact the school. When it did not respond, she contacted the police.
150There is no question that elevating school complaints to the police made the relations between S.F. and the school very difficult and impacted their ability to communicate, an essential component of accommodation. The problem is that the police were called by both parties. I cannot find that S.F. shut down the accommodation process unilaterally when she called the police in February 2012, when the school called the police on December 1, 2011. Notwithstanding my finding that a verbal threat was made by S.F.’s spouse, there was a context for the threat. The Principal made little attempt to de-escalate the anger and upset of S.F. and her spouse that R.B. was eating his lunch on the floor and writing an apology note to another student’s parents. There was no suggestion by the respondent that either of these requirements was appropriate for R.B.
Withdrawal from School
151The respondent asserts that S.F. improperly withdrew R.B. from school in May 2012. It submits that Dr. Mazurski withdrew R.B. from school based on the information provided by S.F. The respondent disputes the accuracy of what S.F. was reporting to Dr. Mazurski and criticizes Dr. Mazurski for withdrawing R.B. based on the information of S.F. only. S.F. admitted that R.B. was not in attendance when she saw Dr. Mazurski.
152I agree with the respondent that once R.B. was withdrawn, it could not have accommodated his needs at school. However, it could have provided school work as requested. It did not do so until a bag of books was sent home on June 7, 2012, to be returned in September. This was not the kind of educational support that was requested.
153I therefore find R.B.’s exclusion in May 2012 did not prevent the respondent from providing the accommodation requested after the withdrawal occurred.
Conclusion Grade 2
154Based on the above evidence, I cannot conclude that S.F.’s conduct prevented the school from accommodating R.B. in Grade 2. Even accepting that her conduct made her relationship with the school staff extremely difficult, there is no evidence that this difficult relationship prevented the school from meeting R.B.’s educational needs in Grade 2. Put simply, there is no evidence to establish a connection between S.F.’s conduct and the accommodation process for R.B.
GRADE 3
August 28, 2012
155S.F. testified that on Tuesday, August 28, 2012, R.B. came home from school very upset. He stayed home from school the following day. On Friday, August 31, 2012, he told S.F. that earlier in the week, the Principal had come to his classroom and had taken him to meet with A.B. S.F. stated that R.B. told her that he was required to answer questions about why he was not visiting his dad and questions about S.F. and her spouse. S.F. said R.B. told her the Principal said she would fix it and he would go back to his dad’s.
156On Monday, September 3, 2013 (Labour Day), S.F.’s spouse contacted the Grade 3 teacher and the EA at their personal residences to inquire whether the Principal had removed R.B. from the classroom because R.B. was very upset over the weekend. The Grade 3 teacher told S.F.’s spouse that the Principal had not taken R.B. out of the classroom.
157On September 5, 2012, S.F. advised the Grade 3 teacher via the school agenda that R.B. was terrified his dad was going to show up at school again, as he had done the previous week.
158The Principal and the Vice-Principal deny that this meeting took place. They testified that camera footage shows A.B. arrived at the school and left two minutes and forty seconds minutes later. The Vice-Principal testified that A.B. came to the school because he wanted to see his children. The Vice-Principal testified that she advised A.B. that she did not believe S.F. would consent. A.B. advised her that his children had been withheld from him for several months. He mentioned the human rights Application to the Vice-Principal. The Vice-Principal testified that she told A.B. that he could understand there was significant tension between S.F. and the school. The camera footage showing A.B. entering and leaving the school was not entered into evidence.
159In determining issues of credibility, I rely on the following three principles found in the British Columbia Court of Appeal’s judgment in Faryna v. Chorney, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:
Individuals can have a sincere belief in a mistaken set of facts;
An adjudicator must look at the “[o]pportunities for knowledge, powers of observation, judgment and memory” among other factors; and
An adjudicator must examine whether the evidence is in “harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”
160For the following reasons, I accept S.F.’s evidence that R.B. had told her this meeting had taken place with his dad:
a. R.B. was absent from the school the day after the alleged meeting occurred;
b. R.B. told S.F. about the meeting on Friday, August 31, 2012. On September 3, 2012 (Labour Day), S.F.’s spouse contacted the teacher and the EA at their homes to ask whether R.B. had been removed from the classroom. This was a significant step for him to take.
c. S.F. informed the teacher on September 5, 2012, that R.B. was upset about the possibility of his dad showing up at the school again as he had the previous week;
d. At some point, A.B. confirmed with S.F. that he was at the school on August 28, 2012. S.F. testified that he did not confirm this on that day, although her notes indicate otherwise;
e. S.F. relayed this information at a point in time where communications were very positive between her and the Grade 3 teacher and things were going well.
161The fact that I have found R.B. told S.F. about the meeting is not the same as finding the meeting occurred. On the evidence before me, I do not know. It is unclear to me how R.B. would have been able to create such an elaborate story. The only explanation could be that S.F. made up the story. However, her actions do not support that conclusion and are not otherwise consistent with her behaviour vis-à-vis the school. Although I do not question that S.F. may well have misperceived and exaggerated her concerns with respect to R.B.’s treatment, the evidence shows that her complaints had some basis in fact. Further, I do not think her spouse would have taken the step of contacting the Grade 3 teacher and EA at home if S.F. had fabricated the story.
Further Allegations of Segregation
162S.F. made further allegations of segregation in the classroom and at recess in Grade 3. With respect to the first allegation, S.F. wrote the following in R.B.’s school agenda on September 19: “[R.B.] hopes his desk will be moved back with his classmates today and not be segregated by himself”.
163R.B.’s Grade 3 teacher testified that she moved R.B.’s desk one and one-half to two feet away from the other students because he was grabbing other students’ journals, putting his hands in their desk and laughing. She testified that she moved the desk for one day only and then put it back. When asked during cross-examination whether she told S.F. that she had moved the desk back quickly, she stated:
No, I didn’t respond to that because I didn’t feel it was segregation. It was a strategy. I was not going to respond to segregation. She asked me to read the Sullivan report and I did. They were strategies she wanted me to use in the classroom.
164The Grade 3 teacher disputed the allegation that R.B. had been segregated during recess. She wrote to the Superintendent on September 21, 2012 and confirmed that R.B. had not been excluded from recess.
165The Grade 3 teacher testified that when the allegation of segregation was made regarding the removal of recess, she requested a meeting to talk to S.F. about things. This was sometime after September 21, 2012. She sent a note to the Superintendent, who was willing to set up the meeting. The Grade 3 teacher then spoke to the Principal, who cautioned her against having such a meeting because of S.F.’s history of misconstruing things. Her evidence on this point is set out below:
After the allegations about segregation in taking recesses away, I wrote a note to the [Superintendent] and said I was wondering if I had a meeting with [S.F.] to explain how things run in my class and she would have a better understanding. I said I was willing to meet with her with a witness to let her know how things are run in my class to alleviate her concerns. The [Superintendent] was willing to set up a meeting. I spoke to the [Principal] and my Federation. It was at that point that she (the Principal) told me to be very cautious because it was common history if you met with [S.F.], the next day things that were said could be misconstrued. I did re-think it. I talked to my Federation. I wrote to [the Superintendent] and declined the meeting.
166The Grade 3 teacher testified that the only meeting she had with S.F. was on the first day of school and that she had never had difficult relations with S.F. face-to-face.
167The evidence is insufficient to establish that S.F. made false allegations of segregation. R.B.’s desk had been moved. S.F. was not informed that it was only for one day. S.F. was wrong that R.B. had been denied recess; however, on the advice of the Principal, the Grade 3 teacher did not sit down and meet with S.F. about these concerns.
168The communications between S.F. and the Grade 3 teacher were confined to R.B.’s school agenda. S.F.’s communications with the Grade 3 teacher are in issue, and as such, I have reproduced all of her communications up until the date of the exclusion. There are no allegations concerning the Grade 3 teacher’s communications to S.F. and it is for this reason that they have not been included below:
Date Communication to teacher by S.F.
August 27, 2012 Thanks [teacher], we read this book with [R.B.] this weekend
August 30, 2012 Thank you for [R.B.’s] Outstanding Student Award. This made [R.B.] and I very happy. Your kind words about R.B. were greatly appreciated. This made [R.B.] feel really proud. Thank you for making [R.B.] feel so welcome to come back to school. This has helped him this week
August 31, 2012 Not sure if you are aware of [R.B.’s] Echolalia. You may start to notice that [R.B.] will repeat and copy what others say and do. This was diagnosed by his doctors with his other diagnosis. I will pick [R.B.] up today at 12:40
September 4, 2012 I will be picking [R.B.] up at 12:40 today.
September 5, 2012 [R.B.] said he had a bad day yesterday at school because he was terrified his dad was going to show up at the school again as he did last week. I will be picking [R.B.] up at 11:15 this morning for a doctor’s appointment. Could you please send any work home [R.B.] has missed in the afternoons.
September 10, 2012 Thank you for [R.B.’s] good behaviour certificate last Friday. This made [R.B.] and I feel very happy and proud. How has [R.B.’s] progress been in the (indecipherable). Could you please send home a weekly timetable
September 11, 2012 I will be picking R.B. up at 2:15 today
September 12, 2012 I will pick R.B. up at 10:45 am for an appointment and return him to school after he is done his appointment. [R.B.] will ride the bus home today
September 13, 2012 Thanks for [R.B.’s] timetable. [R.B.] will ride the bus home today. [R.B.] will be out of town tomorrow and absent from school. R.B. came without his sweater and he thinks he may have forgotten it at school. Could you please take a look
September 19, 2012 [R.B.] hopes his desk will be moved back with his classmates today and not be segregated by himself
September 26, 2012 I will be picking R.B. up at 3:10 pm after school today
October 1, 2012 [first part indecipherable] I cleaned ear plugs and container and sent them back to school with [R.B.] Please send them home every couple of weeks and I will…
October 2, 2012 Could you please confirm that yesterday (Monday) was [R.B.’s] picture day.
October 5, 2012 [friend’s name] will be picking [R.B. and his brother] up today.
October 9, 2012 Thanks [teacher]. We are always working with [R.B.] on him using appropriate language. [R.B.] has heard these inappropriate words from [A.B.] many times. [R.B.] has significant anxiety issues in relation to [Principal]. Please ensure Principal stays away from R.B.
October 15, 2012 [R.B.] was home sick Thursday and Friday with severe symptoms of anxiety due to some incident that occurred in the classroom last week. Please send home the work [R.B.] missed
October 17, 2012 [R.B.] told us about the incident that happened at school yesterday morning. I have not received anything from [Superintendent] yet. [R.B.] said he mentioned to you and [EA] it was loud in the classroom. Did he have his ear plugs in as background noise really bothers him. [R.B.] is still very upset about last week
October 19, 2012 Thank you for continuing to work with [R.B.] in a positive way. I sent a response to you via [Superintendent] … will be picking [R.B.] up at some point this afternoon (Oct. 19) for an appointment.
October 22, 2012 [R.B.] has been mentioning that another student has been throwing scissors at him in the classroom. Another student in [R.B.’s] classroom has told us that this is correct. [R.B.] and other students in the class informed me that [R.B.] has been required to wear large ear muffs and a heavy weighted jacked at school. I did not consent … for these items to be used on [R.B.] Please do not put them on him again.
T-Shirt
169On Monday October 15, 2012, R.B. attended school wearing a t-shirt that said “Stop the Bullying at Open Roads”. There is no dispute between the parties that this occurred. It is also implicit that S.F. was communicating a message to the school when she sent R.B. to school wearing this t-shirt. There is no question that this negatively impacted S.F.’s relationship with the Grade 3 teacher and the school.
Key Fob
170On Monday October 15, 2012, R.B. came to school with a key fob on his belt. A key fob is the electronic device that opens a car door automatically. R.B.’s name was on the key fob. The respondent alleges that the key fob was an electronic audio recording device.
171The Grade 3 teacher testified the key fob had weight to it. R.B. wore it all week and by Thursday, the teacher became suspicious because of an occurrence the previous day when R.B. had been playing mini sticks in the hall. Several times that day, he went to the fountain to get a big drink. When a water bottle appeared the next day, the teacher wondered whether the device was a recording device. In addition, R.B.’s grandmother attended in the classroom on October 18, 2012 and she made sure R.B. was wearing the key fob. The Grade 3 teacher went home at lunch and Googled “key fob recording devices”. An image matching the key fob came up. The device records audio conversations.
172The Grade 3 teacher approached the Vice-Principal about the device. She also researched the device, came up with the same information, and contacted the Superintendent. The Vice-Principal plugged in the USB port on the key fob into her computer. The lights were on the USB port, but her computer was unable to read it.
173The Vice-Principal contacted the Superintendent. The police were called. A police officer attended on October 18, 2011. He advised the Superintendent and the Vice-Principal that it would be best to return the device to the student and that if they wanted to file a complaint, to come to the station.
174The Superintendent wrote to S.F. on Thursday, October 18 and instructed her not to send the recording device with R.B. the next day. The next day R.B. attended school with the key fob, but it was much lighter in weight. There was no USB port and no lights. It was a hollow shell.
175The parents of the students in the Grade 3 class were contacted by the Principal and advised that their children may have been recorded.
176The Superintendent was unsatisfied with the police response. The Director of Education contacted the Chief of Police and a new investigation was undertaken. It remains ongoing today.
177I accept the Vice-Principal’s and Superintendent’s evidence that the key fob originally had weight and an active USB port. I also accept the documentary evidence that this device is an audio recording device. When R.B. returned to school on October 19, the device had been gutted and was no longer operational. Based on this evidence, I find that S.F. sent R.B. to school with an audio recording device.
178Whether or not the device recorded anything is another issue. The device was not played and there is no evidence of any recordings. As such, I cannot conclude that staff and students were actually recorded.
Complaints
179On October 18, 2012, the Grade 3 teacher wrote the Director of Education asking that R.B. remain at home or attend school in another venue while staff await legal advice regarding R.B. wearing the recording device.
180On October 21, 2012, the Grade 3 teacher prepared a complaint of harassment. The grounds of the complaint included being contacted by S.F.’s spouse at home, the allegations of segregation by S.F., family members and friends attending the classroom, R.B. wearing the anti-bullying t-shirt, R.B.’s language towards the teacher and the EA, and the recording device.
181On Sunday, October 21, 2012, the Grade 3 teacher received a phone call at home from a parent of a student in her class. R.B.’s brother had called her son at home and asked whether R.B.’s teacher put a weighted jacket and ear muffs on R.B. The Grade 3 teacher testified that she felt extremely harassed and that she needed to contact her Federation’s lawyers about her next steps. The Grade 3 teacher did not attend school on October 22, 2012, because she was not emotionally ready to return to the classroom.
182On October 23, 2012, the Grade 3 teacher spoke to a parent in response to his letter of October 20, 2012 complaining about R.B.’s behaviour in the classroom. The parent felt that R.B.’s offensive language and unacceptable behaviour had escalated to the point that it was disrupting his child’s learning.
183The Superintendent testified that she received three phone calls from parents in R.B.’s class regarding the recording device. They were upset that their child was recorded.
184The Superintendent testified that on October 24, 2012, she contacted the Children’s Aid Society (“CAS”) because she had concerns about R.B. and his brother in S.F.’s care. She testified further that the Principal wrote a letter to the CAS. The letter was not admitted into evidence because it was not relevant to the issues before me.
Allegations Post Exclusion
185The applicant made further assertions in the Amended Application and through her counsel while the hearing was ongoing which the respondent argues were false. In the Amended Application, the applicant stated that the only incident that could have been connected to R.B.’s behaviour during the week of October 15, 2012 occurred on October 10, 2012. R.B. reported to S.F. that he was held back from attending gym class and was asked to stay in the classroom with the Principal, the Vice-Principal, the Grade 3 teacher and the Grade 3 EA and asked questions about his home, S.F., S.F.’s spouse, R.B.’s father and an incident that occurred last year with an EA. This meeting was denied by the Principal, Vice-Principal and Grade 3 teacher.
186On March 6, 2013, S.F.’s lawyer wrote to the respondent’s legal counsel and advised him that when S.F. went to pick up R.B. at school on March 4, 2013, R.B. disclosed on his own that his EA had put him in a zoom chair. R.B. described the chair as hard and indicated he was strapped in the chair. S.F.’s legal counsel advised R.B. was very agitated as he is afraid of the chair and it creates significant anxiety issues for him. S.F.’s legal counsel stated “Whether or not [R.B.’s] description of the zoom chair is accurate, it is clear that the chair causes him significant anxiety. As such, I am requesting written confirmation that it will not be used on [R.B.] going forward”.
187The zoom chair allegation is outside the scope of the evidence before me, that being June 2011 (decision to reduce EA support) to February 19, 2013 (date R.B. ordered returned to school).
188The October 10, 2012 allegation is similar to the August 28, 2012 one concerning the school’s attempt to obtain information from R.B. that relates to his home life. Again, it is unclear to me if R.B. would have been able to make up this story. The suggestion could be made that S.F. fabricated the story. I am not sure why she would do so. There were likely reasons why R.B.’s behaviour escalated the way it did during the week of October 15, 2012 and this was S.F.’s explanation, whether or not it was true. Based on the conflicting evidence between S.F. and the school staff, I cannot make a finding that this meeting did not occur. However, even if I found that it did not occur, the allegation was made after the exclusion and was not relevant to the decision to exclude.
ANALYSIS
PRELIMINARY ISSUES
Request that Tribunal Adopt Findings of Fact in Family Law Matter
189On June 19, 2013, the respondent filed a Request for Order During Proceedings seeking an order from the Tribunal that it accept the findings of fact in the judgment of the Superior Court dated May 6, 2013 (the “Judgment”), a decision which found S.F. in contempt of a court order giving A.B. access to his children. The respondent asks the Tribunal to accept the following findings of fact set out in the Judgment and deny S.F. the opportunity to re-litigate them:
a. Although A.B. attended the children’s school on August 28, 2012, he met with the Vice-Principal, not the Principal, and he did not see R.B. or his brother that day;
b. Dr. Warkentin’s opinion that R.B. could or would lie;
c. That it is evident that R.B. fabricated other complaints about the school, unrelated to the father and that it is likely that R.B. has learned to say what his mother wants to hear;
d. That S.F. has made false allegations of A.B. abusing alcohol and drugs, which affect her credibility;
e. That R.B. acts out both at school and while in S.F.’s care. His acting out includes swearing;
f. That the events of the meeting of December 1, 2011 leading to the trespass notice and communication restriction being issued occurred as outlined in the Response to the Application, and in particular, that S.F. acted aggressively;
g. That S.F. has transferred her irrational fears to R.B.
190The basis for the respondent’s request is that it would be an abuse of process to re-litigate the findings of fact in the Judgment. At the reconvening of the hearing on June 24, 2013, I advised the parties that I would hear submissions on the abuse of process argument in final argument.
191The respondent, in its written submissions of August 2, 2013, argues it would be an abuse of process to re-litigate the findings of fact in the contempt proceeding. In addition, it argues for the first time that those findings of fact constitute similar fact evidence.
192The findings the respondent wants me to adopt all go the issue of S.F.’s credibility. In my view, findings of credibility should be made based on the evidence of the witnesses who testified before me, evidence which was subject to cross-examination. I would note that it does not appear that the affidavit evidence in the contempt proceeding was subject to cross-examination. Moreover, some of the factual findings by the court were based on the respondent’s Response to the human rights Application. The court held the Response was relevant to issues of credibility in the contempt proceeding. In my view, a Response to an Application is not evidence: it is simply a party’s pleading in the human rights matter.
193Further, the issue in the family law matter was whether the applicant was in contempt of the court order providing A.B. with access to his children. The court found that she was. It is apparent in the decision that the court did not accept S.F.’s evidence concerning A.B.’s drug and alcohol abuse and her reports of such abuse to the CAS and the police.
194S.F.’s allegation of drug and alcohol abuse against her former spouse in a family law matter is of little relevance in a case involving allegations of discrimination against a school. The issues are fundamentally different. The fact that S.F.’s allegations of drug and alcohol abuse were not accepted by the court in the contempt proceeding does not lead to the conclusion that her allegations against the school, even where they are also made to the police, should also not be accepted.
195In any event, even if I were to give weight to the overall finding of the court about S.F.’s credibility, many of my findings regarding S.F.’s conduct are based on the evidence of the respondent’s witnesses, not S.F.
196For these reasons, I find that it is not an abuse of process to determine S.F.’s credibility based on all of the evidence before me.
Treating Specialists
197The applicant sought to introduce the evidence of R.B.’s treating specialists as expert evidence. I ruled they were providing evidence on the treatment they provided to R.B. and were not giving opinion evidence.
198I held further that as treating specialists, they did not have the impartiality required to provide opinion evidence. They were, in effect, on “R.B.’s side”. This finding is supported by Dr. Warkentin, who started his evidence by saying he was not at the hearing to represent anyone other than R.B. Similarly, the Board-retained psychologist, Dr. Stambrook, was first retained by the respondent in 2009 and in that year, worked 12 to 15 days for the respondent. His work with the respondent has increased over time.
199Trevor Sullivan is R.B.’s counsellor. He provides cognitive behavioural therapy to R.B. for issues relating to his anxiety. Dr. Warkentin is R.B.’s pediatrician and provides R.B. with medical care. Dr. Sullivan was retained by S.F. to complete psychological assessments of R.B. in 2009 and 2010. Her assessments were used by the parties to prepare the Agreed Statement of Facts.
200The applicant filed the reports of Trevor Sullivan and Dr. Sullivan and Dr. Warkentin, dated January 3, 2013. The respondent filed the reports of Dr. Stambrook dated November 12, 2012, November 26, 2012, January 17, 2013 and February 11, 2013. In many respects, these reports go to the very issues I have been asked to decide, such as the reduction in EA support, the failure to put a behavioural plan in place, the appropriateness of the communication ban, and the impact of R.B.’s exclusion from school. More importantly, these reports did not exist at the time decisions were made by the respondent. If the school did not have this information at the time of the events, it is of little import. My findings are based on the information in the school’s possession at the time the relevant decisions were made.
201The fact that I held these witnesses were not permitted to give opinion evidence does not mean that they did not have important evidence to give and that their evidence was not given significant weight. Their testimony assisted my understanding of the treatment and support that R.B. has received and what he requires in the future. It has also assisted me in assessing the reasonableness of the decisions that were made in the accommodation process.
202At this juncture, it is important to note that there is no real disagreement between the applicant’s treating specialists and Dr. Stambrook on one of the main issues before the Tribunal, R.B.’s educational needs. Dr. Stambrook stated in his letter of January 17, 2013 to respondent’s legal counsel the following:
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.
203In his evidence when commenting on the instruction provided to R.B. during the exclusion, Dr. Stambrook stated quite candidly that “nobody would believe that having a teacher one-half day a week in the library is an adequate education”.
ANALYSIS
The Legal Framework for the Discrimination Analysis
204The Supreme Court of Canada has recently set out the test for discrimination in education cases in Moore v. British Columbia (Education), 2012 SCC 61. The Court held that to demonstrate discrimination, applicants must show they have a characteristic protected from discrimination; that they have experienced an adverse impact with respect to their education; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to have occurred (para. 33).
205The issue in Moore was whether a student was denied meaningful access to the general education available to all students in British Columbia because of his disability (dyslexia) when the school board cancelled its special education program for students with severe learning disabilities.
206The Court held at para. 36:
(…) if the evidence demonstrates that the government failed to deliver the mandate and objectives of public education such that a given student was denied meaningful access to the service based on a protected ground, this will justify a finding of prima facie discrimination.
207The Court in Moore addressed the question of whether the “service” in special education cases is “special education” or education more generally. The Court held the service is education, not special education. The Court stated special education is not the service, it is the means by which those students get meaningful access to the general education services available to all students. At paragraph 28, the Court adopts the decision of Justice Rowles, in her dissenting judgment at the Court of Appeal, where she states:
It is accepted that students with disabilities require accommodation of their differences in order to benefit from educational services. Jeffrey is seeking accommodation, in the form of special education through intensive remediation, to enable him equal access to the “mainstream” benefit of education available to all. (...) In Jeffrey’s case, the specific accommodation sought is analogous to the interpreters in Eldridge: it is not an extra “ancillary” service, but rather the manner by which meaningful access to the provided benefit can be achieved. Without such special education, the disabled simply cannot receive equal benefit from the underlying service of public education.
208The legal framework in Moore can be applied to the Code. Section 1 of the Code prohibits discrimination in the provision of services on the basis of disability. It is well established that education is a service under the Code. The onus lies on the applicant to prove on a balance of probabilities that he has a disability and experienced differential treatment linked to that disability. Disability is defined under section 10(1) of the Code to include a condition of mental impairment or a developmental disability.
209In response to an allegation of discrimination, a school board can deny that differential treatment took place or rely on the defence in section 11 or section 17 of the Code.
210Section 11 of the Code provides that a right is infringed where a requirement, qualification or factor exists that is not discrimination on its face, but results in the exclusion, restriction or preference of a group identified by a prohibited ground of discrimination and a person is a member of the group. There is an exception to this right and that is where the requirement, qualification or factor is reasonable and bona fide in the circumstances or it is declared in the Code that to discriminate because of such a ground is not an infringement of a right (other than in section 17 of the Code).
211Section 17(1) of the Code specifies that if the individual with a disability is “incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of a disability”, then differential treatment is not an infringement of that person’s rights.
212Both sections 11 and 17 incorporate the duty to accommodate. Section 11(2) states the Tribunal shall not find a requirement is reasonable and bona fide unless it is satisfied that the person cannot be accommodated without undue hardship when considering the cost, outside sources of funding and health and safety requirements. Section 17(2) specifies that a person with a disability shall not be found incapable of performing the essential duties if the person can be accommodated without undue hardship. In determining the question of undue hardship under section 17(2), the Code identifies the same two considerations: cost (including outside sources of funding) and health and safety requirements.
213In either case, the legal framework in Moore applies. Has the applicant established that he was denied meaningful access to the educational service provided to all students in Ontario because of a disability? If so, a prima facie case of discrimination has been established.
214The burden then shifts to the respondent to establish that the applicant was incapable of fulfilling the right (in this case, to a Grade 2 and 3 education) or that the rule that adversely affected the applicant was reasonable and bona fide. In order to establish either of these, the respondent must demonstrate that it was unable to accommodate the needs of R.B. to the point of undue hardship. If the evidence shows the respondent was unable to accommodate R.B., the Application fails.
215This is the first case before the Tribunal to consider and apply Moore.
216The respondent relies on the Tribunal’s decision in Schafer v. Toronto District School Board, 2010 HRTO 403, which held that in order to establish discrimination under the Code, the evidence must demonstrate that the accommodations provided by a school were significantly inappropriate or inadequate. In my view, if a special needs student is denied meaningful access to education, it is implicit that the accommodations provided were either inappropriate or inadequate.
217Both parties have referred to the Ontario Court of Appeal’s decision in Bonnah v. Ottawa-Carleton District School Board, 2003 CanLII 19087. That decision dealt with the statutory power of a principal under the Education Act to exclude a student for legitimate safety reasons. The principal’s statutory power to exclude R.B. is not in issue in this case. The issue here is whether the exclusion discriminated against R.B. by denying him meaningful access to general education.
Application of the Legal Framework
218The applicant’s assertion that he was denied meaningful access to an education can be summarized as follows:
a. Failure to provide EA support and learning strategies;
b. Failure to provide appropriate behavioural strategies and to assess R.B.’s academic and behavioural regression in a timely way;
c. Failure to provide appropriate educational programming during the withdrawal and exclusion.
219In addition, the applicant argues he was reprised against in the following ways:
a. The reduction of EA support in Grade 2 because of the advocacy of S.F.;
b. R.B.’s exclusion from school on October 22, 2012;
c. The communication ban.
220In my view, the applicant’s legal argument is overly compartmentalized and ignores the intersection or relationship between requests for accommodation and reprisal. For example, an ongoing and persistent assertion by an applicant that a respondent must accommodate his or needs may be met with a refusal to accommodate because of the forcefulness of the request and not because of a substantive inability to accommodate.
221In this case, S.F. continually asserted her son’s rights. She was a strong advocate for her son and the strength of her advocacy was, at times, interpreted negatively the respondent. In June 2011, the Vice-Principal expressed the view that S.F. was trying to “build a case to ensure he [R.B.] has 100% support”. She referred to the school’s history with S.F. and described S.F. as very demanding in insisting on EA support. The Vice-Principal testified further that at the first IPRC in September 2011, S.F. brought a lawyer and it was the first time, in her experience, that this had happened. Dr. Stambrook, in his November 26, 2012 report, asserted the human rights issue had to be resolved before R.B. could return to school. While he stated in his evidence that he did not realize the human rights proceeding would be so lengthy, it was well-known at that time that hearing dates had been set for January 2013 (later re-scheduled to February 2013). This requirement was also made by the Superintendent in her letter of November 30, 2012. All of this evidence leads me to conclude that the respondent viewed S.F.’s advocacy in a negative light, including her decision to involve legal counsel and pursue this Application before the Tribunal.
222It is difficult to examine the allegations of discrimination and reprisal separately when the alleged denial of R.B.’s education may have been influenced by S.F.’s advocacy. It is more helpful to examine the allegations together and determine whether R.B. was discriminated against at school. In the language of Moore, I must determine whether R.B. was denied meaningful access to an education based on all of the evidence before me and if he was, the burden shifts to the respondent to establish that R.B. was incapable or that it could not have accommodated R.B. without incurring undue hardship. There is no suggestion that R.B. did not have the capacity to learn. Therefore, the only issue is one of accommodation.
223The respondent submits that it did accommodate R.B. at school, that S.F.’s conduct interfered with the accommodation process, and that it was undue hardship for R.B. to remain in school at the time he was excluded. The bulk of the respondent’s submissions concern the conduct or alleged misconduct of S.F.
224For the reasons that follow, I find that R.B. was denied access to a meaningful education. I find further that the respondent has failed to establish that it was unable to accommodate R.B. to the point of undue hardship.
Reduction in EA Support
225The applicant asserts that one of the reasons that he was denied meaningful access to an education was the reduction in EA support in his Grade 2 year. The Vice-Principal testified the decision to reduce R.B.’s EA support was made by the in-school support team, which was comprised of the Vice-Principal, the SERT, classroom teachers and EAs, in early June 2011. She testified the decision was made because R.B. had progressed in his level of independence and academics in Grade 1, and the ultimate goal for all students is to make them independent and not create an over-dependence on EAs.
226The decision to reduce EA support by 50% in a classroom was a significant one. There was no discussion with S.F. prior to the decision being made. The decision was made by the respondent by June 21, 2011, and communicated to S.F. in an email by the Vice-Principal on June 23, 2011. The Vice-Principal advised S.F. that there was a reduction in EA support due to a reduction in Ministry funding. She stated they felt confident R.B. would do well with half-time shared EA support. Although denied by the Vice-Principal in her evidence, on the face of this e-mail, it is clear that funding was at least a factor in the decision to reduce the level of EA support in R.B.’s classroom.
227There is no evidence before me of an objective assessment of the impact of the EA reduction on R.B. by the in-school support team. While it is clear that R.B. had gained more independence in Grade 1, there was no objective assessment of the role the EA played in R.B. achieving that independence. The documentary evidence in the possession of the school did not suggest that R.B. no longer needed this intensive support. In addition, the reduction in EA support was not offset by the SERT support, because R.B. had SERT support in Grade 1.
228The school was in possession of R.B.’s most recent psychological assessment from Dr. Sullivan dated March 24, 2011. The assessment found R.B. met the diagnostic criteria for Intellectual Disability (Mild) and ADHD, and that the results were consistent with the 2009 assessment where R.B. was diagnosed with PDD. Dr. Sullivan stated R.B. required ongoing program modifications and accommodations, including EA support in the classroom, to achieve his full academic potential. The assessment noted that based on both parent and teacher ratings provided, R.B. was displaying significant symptoms of inattentiveness, hyperactivity, and impulsiveness in both school and home settings. There was no suggestion that these symptoms were abating.
229In R.B.’s final Grade 1 report card dated June 23, 2011, the teacher stated R.B. usually needed someone by his side to keep him focused and on task when it involved writing. She stated further that R.B. had some trouble following the school and classroom rules. In the anecdotal report attached to the report card, R.B.’s teacher stated R.B. had become a little more independent this term.
230The respondent argues R.B.’s behaviour deteriorated in November 2011 because R.B. was taken off medication. The evidence of Dr. Warkentin does not support this assertion. He was asked in cross-examination whether R.B.’s behaviour would have improved had he stayed on medication and Dr. Warkentin replied that he did not know. He testified that he hoped medication today (i.e., two years later) would be more useful. He stated medication in addition to a supportive environment would decrease R.B.’s acting out. Dr. Warkentin also disagreed with the counsel’s assertion that taking a child on and off medication is a problem. He testified that he often tells parents to take children off medication during weekends and holidays.
231If intensive support akin to full-time shared EA support is reduced significantly, it is incumbent on a school to undertake an objective assessment of the impact of such a reduction on a student reliant on such support. There is no evidence before me that such an assessment was done regarding R.B. Instead, the school relied on the fact that R.B. had progressed behaviourally and academically without assessing how the EA support contributed to that. If the school wanted to have a trial period of providing R.B. with less EA support to objectively determine whether his level of independence was dependent on that support, it could have done so provided there was input from S.F. and if necessary, R.B.’s psychologist who had done an assessment only three months before.
232Given the events that unfolded, it appears that S.F. was correct in her assessment of R.B.’s need for full-time shared EA support in Grade 2. The support was increased in November 2011 and again in January 2012. By January, R.B. had 250 minutes of full-time shared EA support in the classroom. Full-time EA support (310 minutes) was provided at the commencement of Grade 3. Dr. Stambrook agrees that R.B. requires full-time shared EA support in the classroom today.
Behavioural Strategies
233The applicant argues the school board discriminated against him when it failed to implement behavioural strategies until the Behaviour Management Plan dated October 15, 2012. This plan was provided to S.F. on October 19, 2012. R.B. was excluded from school on October 22, 2012 because of his behaviour. The school submits R.B. did not have significant behavioural problems until October 2012.
234The documentary evidence before me shows that R.B. had a history of behavioural difficulties in school. In his final report card in JK, the teacher stated “His articulation and language difficulties as well as his aggressive behaviours have been a barrier to social development”.
235In SK, R.B. had full-time shared EA in the classroom. Even with that support, R.B.’s annual program goal in his IEP was to reduce the frequency of his aggressive behaviours during recess by 75%.
236Behaviour management skills were identified as an area of need in R.B.’s Grade 1 and Grade 2 IEPs.
237The evidence is also clear that R.B. had significant behavioural problems in Grade 2 at a time when the EA support was cut in half. R.B.’s behaviour was so troubling that it required his teacher to communicate with S.F., sometimes on a daily basis. R.B.’s report card for February 15, 2012 stated the following, after discussing R.B.’s more positive first term:
[R.B.] seems to be upset every day and he has difficulty following any routines quietly. He has been very loud and disrupts many classroom activities. He is often defiant and refuses to follow any adult requests. He will not follow the rules and quite often hurts other students as he walks by them. He is flippant and silly. His visual reminders are no longer effective. He accuses students and adults of things that are often impossible or totally irrational. He has difficulty focusing on his work and little learning is being done. At times he needs to be removed from the classroom to calm down and the class get their work done. [R.B.’s] friends are no longer willing to help him because he is so loud and they are scared of him, afraid they will be accused of doing something they have not done.
238In the March 2011 assessment, Dr. Sullivan recommended that R.B. be formally identified as an exceptional student with multiple exceptionalities, including behaviour, and recommended behaviour management strategies. The teacher completed the Connors 3 for that assessment and assessed R.B.’s level of aggression and defiance as “very elevated”, giving him a score of 84 out of 100.
239In her written presentation to the IPRC on April 12, 2012, S.F. requested a safety plan.
240R.B.’s behaviour clearly worsened in Grade 3 to the point that he was excluded from school less than two months into the school year.
241It is unclear to me why the school did not implement a behaviour management plan in Grade 2 when R.B.’s behaviour was clearly escalating in the fall of 2011. R.B.’s grade 2 teacher assessed his level of aggression and defiance as “very elevated” for the March 2011 Psychological Assessment. She had communicated with S.F. on many occasions about his behavioural problems. S.F. requested a safety plan in her written presentation to the April 2012 IPRC. Additional EA support was brought into the classroom in November 2011 and January 2012.
242In the Sullivan report of January 3, 2013, the view is expressed that it was unfortunate that the respondent did not request a psychological assessment from Dr. Stambrook earlier in the progression of R.B.’s behaviour because he could have provided key insights into R.B.’s sudden and rapid behavioural change and could have provided important recommendations for the development of a safety plan and a behavioural management plan. The report states that “had Dr. Stambrook been called in to assess [R.B.] much earlier in the progression of his situation, the drastic step of excluding [R.B.] could have been avoided”.
243While I have not accepted the Sullivan report as opinion evidence, the comments set out in the report are really common sense. It is logical that had a behavioural plan been put in place at the time R.B.’s behaviour began to escalate and he was assessed with highly elevated aggression and defiance by the Grade 2 teacher, it is likely individualized support targeted at his negative behaviours would have had some positive impact. Instead, a behavioural plan was not developed until October 15, 2012 and not provided to S.F. for her input until Friday, October 19, 2012. R.B. was excluded from school on Monday, October 22, 2012. There was no time to put the plan in place and assess its effectiveness. I do not accept the respondent’s assertion that R.B. did not have behavioural problems until October 2012 because the objective evidence before me does not support that assertion.
244The first time R.B.’s behaviour was objectively assessed was by Dr. Stambrook in his reports dated November 12 and 26, 2012. Dr. Stambrook was of the opinion that R.B. required a formal behaviour/feeling management plan that reinforced appropriate behaviour in all domains, with a proportional intervention process when his behaviour is discordant and at risk to himself and others. He stated the plan needed to be professionally developed and signed off by R.B.’s mother and the school.
245In my Interim Decision, I ordered R.B. be returned to school on February 19, 2013 on the terms set out in Dr. Stambrook’s report. For the first time, a Behaviour Support Plan was developed for R.B. and attached to the Transition Plan of February 11, 2013.
Education Programming During Withdrawal and Exclusion
246The applicant argues R.B. received insufficient education programming during his withdrawal from May 15, 2012 and during the period of his exclusion from October 22, 2012 until February 19, 2013.
247Dr. Mazurski’s letter of May 14, 2012 stated R.B. would benefit from ongoing educational assistance during the period of the withdrawal and she requested school work be provided and marked. On June 7, 2012, the school sent home a bag of books for R.B. and asked that they be returned in September.
248During the period of the exclusion, R.B. was provided with instruction from an itinerant teacher for three hours per week in the public library.
Communication Ban
249From December 1, 2011 to today, the applicant has been under a trespass notice and communication ban. The applicant is permitted to have written communications with the school through the Superintendent and with the teachers via R.B.’s school agenda. She is unable to meet directly with teachers and discuss any problems concerning R.B. and have input into how to fix them.
250As a result of the communication ban, S.F. cannot attend special school functions including “meet the teacher night” without prior approval. She cannot walk R.B. to the door of the school, she cannot have face-to-face meetings with educators to talk about mutual strategies to be used at home and school, she cannot go into the classroom to see R.B.’s work and she cannot get complete information to provide to R.B.’s treating specialists. She has not been able to do this for the past 18 months.
251Finally, S.F. is the custodial parent of her children. As a result of the communication ban, the school communicated with A.B., making him, in effect, the custodial parent. In addition, it was the conduct of S.F.’s spouse that led to the trespass notice and communication ban. The school could have limited the trespass notice to S.F.’s spouse.
S.F.’s Conduct Must Be Considered
252The respondent argues that S.F.’s conduct must be considered in determining whether it has met its duty to accommodate and whether S.F.’s misconduct and refusal to provide necessary information altered the respondent’s duty to accommodate. In essence, it is arguing that I cannot determine that R.B. was not accommodated without assessing S.F.’s conduct in the accommodation process.
253The respondent has failed to establish that S.F.’s conduct prevented it from accommodating R.B. for the following reasons. First, I have failed to find that S.F. engaged in the numerous acts of misconduct asserted by the respondent. For example, S.F. had a valid concern about bullying and segregation in Grade 2. Second, even where I have found that S.F. behaved badly or, in the words of the respondent, engaged in misconduct, that conduct did not relate to the accommodation process. The worst example of her conduct was the recording device. The act of sending R.B. to school with a recording device did not prevent the respondent from meeting R.B.’s educational needs. Third, I have not accepted the respondent’s assertion that S.F.’s failure to provide information relating to the withdrawal of medication prevented it from meeting R.B.’s educational needs in Grade 2.
254There may well be examples of parental conduct that prevents the accommodation process from occurring. For example, if a parent refuses to provide relevant information concerning a child’s disability, refuses to acknowledge the child needs accommodation, and refuses to consent to an assessment of the child, that conduct may interfere with the accommodation process and prevent a school from meeting that child’s needs. That was not the case here.
Conclusion
255The applicant has established that he was denied a meaningful education when his EA support was cut in half in Grade 2, when he did not have an appropriate behaviour management plan from Grade 2 onwards, when he was excluded from school in October 2012 without appropriate educational instruction, and when the communication ban denied S.F. the opportunity to meet with R.B.’s teachers and EAs in order to ensure that his needs were met.
256When a student is excluded from school, he is denied an education. No one would suggest that providing a student three hours of instruction per week in a public library, regardless of the effectiveness of that instruction, is an appropriate education. Dr. Stambrook agreed.
257Further, communication is an integral part of education, especially for a student with high needs. While there was written communication between S.F. and the teacher via the school agenda, S.F. was not permitted the opportunity to meet with staff to discuss R.B.’s needs. I agree that the trespass notice and communication ban may have been appropriate on December 1, 2011 for S.F.’s spouse because of the events that occurred that day. The original trespass order was for 24 hours and it should have remained a short-term measure. Instead, it became permanent.
258I recognize that S.F. was a difficult parent to communicate with. There were hundreds of pages of e-mails between her and the school/Superintendent. The communication difficulties between the parties may have improved had face-to-face meetings with the teachers occurred to alleviate S.F.’s concerns about how her son was being treated.
259The respondent has failed to establish that S.F.’s conduct prevented it from accommodating R.B.’s needs, or in the language of Moore, prevented it from providing R.B. with meaningful access to an education. A school board has a high burden to prove it cannot educate a student because of the conduct of a parent. There is no question that S.F. acted inappropriately at times. For example, she should not have sent R.B. to school wearing a t-shirt that inflamed the situation nor should she have sent him to school with an audio recording device. However, that conduct occurred over the course of a short period of time and did not constitute an appropriate basis for removing R.B. from school and denying him an education.
260There were less drastic options available to the school. It could have temporarily placed R.B. in a segregated setting at school pending an assessment as to why his behaviour was escalating so significantly. It could have set up a meeting with S.F., Dr. Sullivan and the educators to determine how to deal with R.B.’s behaviour pending the assessment. When the assessment was prepared by Dr. Stambrook after the exclusion, R.B. should have been transitioned back to the regular classroom on a gradual basis with a behaviour plan in place. Dr. Stambrook did not identify any risk in returning R.B. to school provided the appropriate supports were in place.
261Perhaps most importantly, the respondent could have dealt with S.F.’s behaviours directly by meeting with her to inform her that using her child as an anti-bullying advertisement or as a recording device was not appropriate and made it difficult for the respondent to work with her in his interests. Instead, the respondent punished R.B. because of the conduct of his mother.
262The respondent argues that it could not have kept R.B. in school because of the events that occurred during the week of October 15, 2012, the impact of R.B.’s escalating behaviours and the impact of the recording device on other students and staff. The respondent submits that the safety and well-being of other students required the Principal to act because it was to the point of undue hardship to leave R.B. in the classroom in the state that he was in. The respondent argues further that the exclusion was only in effect for the time required to complete the psychological assessment to assess R.B.’s risk to the safety of others.
263I do not accept this argument for the following reasons. While there is no question that R.B.’s behaviours in mid-October 2012 were extremely disconcerting, it consisted primarily of swearing and uttering profanities. The fact that other parents complained about this behaviour does not mean that R.B. was a safety risk. Similarly, parental complaints about the recording device (when there is no evidence children were recorded) does not lead to the conclusion that R.B. was a risk in the classroom. It was S.F.’s conduct that led to the recording device being put in the classroom. When Dr. Stambrook assessed R.B. three weeks after the exclusion, he determined that R.B. was not a safety risk. Even with that determination, R.B. was not placed back in school because S.F. refused to “resolve” the human rights Application.
264It is difficult for the respondent to argue undue hardship when it made no real effort to work with S.F. about R.B.’s concerning behaviours during the week of October 15, 2012. The respondent states S.F. should have advised it of the cause of R.B.’s escalation – the alleged October 10, 2012 meeting between R.B., the Principal and the Vice-Principal. This is a difficult argument for the respondent to make given that it denies that the meeting took place. Even accepting that S.F. should have talked to the school, there was little time. The meeting allegedly took place on October 10 and R.B. was excluded from school a week later. The most significant fact regarding the respondent’s failure to work with S.F. is the behaviour plan itself. It was provided to S.F. for her input on Friday, October 19, 2012, and R.B. was excluded the following Monday. For these reasons, I do not accept the respondent’s assertion that excluding R.B. from school was necessary because it would have constituted undue hardship to keep him there. As such, the respondent has failed to establish that it could not accommodate R.B. to the point of undue hardship.
265Before concluding this Decision, it is important to make one final comment. S.F. is a fierce advocate for her son. When she believed his needs were being met in SK and Grade 1, there were no significant issues between her and the school. When R.B.’s EA support was dramatically reduced at the beginning of Grade 2, she disagreed and commenced on a path to change that. The school responded negatively to her advocacy. At the end of November 2011, the Principal stopped all communication between S.F. and the Grade 2 teacher. In December 2011, the respondent banned S.F. from the school because of the actions of her spouse. From that point on, S.F. was unable to sit down with the teaching staff to discuss R.B.’s needs and how to meet them. The teaching staff developed the view that S.F. was a problem. For example, when S.F. raised concerns at the beginning of Grade 3, the teacher’s first response was to contact her union. The more S.F. was shut down, the more she spiralled out of control. None of this is to excuse her conduct, but it is the context in which she acted. It is a context that cannot be ignored.
266In making this finding I am mindful of the impact of these events on the teaching staff. However, at the end of the day, R.B. was denied meaningful access to the education provided to students in Ontario because of the respondent’s relationship with his mother and not because the respondent was unable to meet his needs. This is not an appropriate basis to justify the discrimination.
REMEDY
267The Tribunal’s remedial powers are set out in section 45.2 of the Code:
On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party out to do to promote compliance with this Act.
268Section 45.2(1) of the Code authorizes the Tribunal to order compensation for injury to dignity, feelings and self-respect. In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ONSC), the Divisional Court confirmed that there is no ceiling on the amount of compensation that can be awarded. In speaking about compensation in the nature of general damages, the Court noted at paragraph 153:
Among the factors that Tribunals should consider when awarding general damages are humiliation; hurt feelings; the loss of self respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant and the seriousness of the offensive treatment.
Monetary Compensation
269The applicant is requesting compensation for out of pocket losses in the amount of $12,762.12 in counselling fees for Trevor Sullivan, and hotel and travel costs to attend the counselling appointments with Mr. Sullivan in Thunder Bay. S.F. and R.B. were required to stay overnight in Thunder Bay due to the distance between it and their home. The applicant also requests compensation for future counselling and travelling costs in the amount of $7,292.64 for an additional period of 36 weeks.
270Mr. Sullivan testified that R.B. originally went to see him in March 2012 for school-based anxiety. By June 2012, R.B. had additional anxiety issues relating to A.B. Mr. Sullivan testified those issues continue today.
271There were many factors that contributed to R.B.’s anxiety. Those factors included his treatment at school, his relationship with A.B., the obvious conflict between A.B. and S.F., and the conflict between the school and S.F. It is impossible to separate out the distinct causes of R.B.’s anxiety. As such, it is not appropriate for the respondent to bear the financial burden of paying R.B.’s current and future counselling costs.
272Notwithstanding this finding, I accept Mr. Sullivan’s evidence that R.B. was anxious at school and he attended for counselling for this reason, among others. While I reject the claim for reimbursement for counselling and travelling expenses, I find this evidence is relevant to assessing the award of monetary compensation for injury to dignity, feelings and self-respect.
273The decision to exclude R.B. was a serious one. It was in response to the conduct of S.F., not R.B. The respondent failed to consider less drastic measures when it excluded R.B. from school and made his return conditional on the resolution of the human rights Application. R.B. is a student with significant needs. His exclusion from school no doubt widened the academic and social gap between him and his peers.
274In light of R.B.’s young age (eight years old at the time of the exclusion), his vulnerability because of his cognitive disabilities, the lengthy period of the exclusion, the impact of the exclusion, the inadequacy of the instruction provided during the exclusion, and the anxiety which he experienced as a result of his challenges at school and the expulsion, I find that R.B. is entitled to a significant award of compensation for injury to his dignity, feelings and self-respect. Had the respondent put in place a behaviour management plan in place in Grade 2, in consultation with S.F. and Drs. Sullivan or Stambrook, his behaviour may not have escalated as it did in October 2012. Had the school met with S.F. to alleviate her concerns in the fall of 2012, her own conduct may not have spiralled out of control. For these reasons, I find $35,000.00 is an appropriate amount in compensation for injury to RB’s dignity, feelings and self-respect.
275The applicant is seeking $36,000.00 for the private care and education provided by S.F. to R.B. during his withdrawal and exclusion. I decline to make this award for the following reasons. S.F. did not incur costs to privately educate her son. She provided this service herself. S.F. is not a trained educator and did not give up private work to provide this support. Further, S.F. did not earn less employment income because she took time to educate R.B. The pay stubs entered into evidence for 2012 and 2013 show the same salary being paid to S.F. when R.B. was in school and when he was excluded. S.F.’s own evidence was she tutored R.B. in addition to her regular job.
276The applicant is seeking reimbursement for the 2009 and 2011 psychological assessments. These assessments are outside of the timeframe for the Application. As such, no award can be made for these costs.
Non-Monetary Compensation
277The applicant is seeking the following non-monetary orders:
a. Withdrawal of the exclusion order and an order placing R.B. in a regular class with resource assistance, appropriate learning and behavioural plans and a full-time EA in his classroom for the 2013/2014 school year and thereafter as required;
b. Speech and language therapy for 30 minutes per week for the 2013/2014 school year and thereafter;
c. In the event R.B. needs to be removed from the classroom because of his behaviour, he will be placed in a supervised location within the school and provided with the support of an EA, SERT and other qualified personnel. R.B. will only be removed from the classroom where it is not possible to accommodate him in the classroom and for no longer than is necessary;
d. The respondent will consider and incorporate the recommendations of R.B.’s treating professionals in his IEP. For the 2013/2014 school year, R.B.’s IEP will incorporate the recommendations of the March 24, 2011 Sullivan assessment as well as the reports of Drs. Sullivan and Warkentin dated January 3, 2013;
e. In cases of emergency involving R.B. and his brother, S.F. or her designate must be contacted;
f. S.F. be allowed to participate and exercise rights under the Education Act in IPRC meetings and the development of IEPs with respect to R.B.;
g. The trespass and communication ban on S.F. and her spouse be lifted and the respondent will participate in ongoing communication with S.F. regarding R.B.’s education.
278I am in substantial agreement with these non-monetary requests. I have already ordered R.B. back to school. There is no need to make a further order. R.B. is entitled to speech and language therapy under his current IEP. He should be provided with speech language support for 30 minutes per week in the next school year. R.B. requires an appropriate behaviour management plan for the 2013/2014 school year. S.F. is entitled to participate in the development of that plan, with the assistance of R.B.’s treating specialists. That plan must be in place when R.B. returns to school in the 2013/2014 school year. A behaviour plan was developed by Dr. Stambrook. That plan should form the interim plan until the parties can finalize a behaviour management plan.
279There will be an updated IEP for R.B. for the next school year. I agree the IEP should consider the psychological assessment of Dr. Sullivan dated March 24, 2011 and the assessment of Dr. Stambrook dated November 12, 2012. I disagree that it should consider the reports of Drs. Sullivan and Warkentin dated January 3, 2013, as those reports were prepared for the purpose of this litigation. The respondent must contact S.F. with respect to emergencies involving R.B. That order has already been made by the Tribunal. This order should be extended to R.B.’s brother for obvious reasons. Finally, S.F. is entitled to participate in IPRCs and the development of IEPs for R.B.
280The applicant has requested the removal of the trespass ban and communication plan. I agree. Those measures are intended to be short-term. In this case, they became permanent and negatively impacted the parties’ ability to work together.
ORDER
281The Tribunal orders the following;
a. Payment by the respondent in the amount of $35,000.00 as monetary compensation for the injury to the applicant’s dignity, feelings and self-respect;
b. R.B. will return to school in the 2013/2014 school year with a full-time shared EA in the classroom, speech/language support for 30 minutes per week and an appropriate behaviour management plan that has been agreed to by S.F. in consultation with R.B.’s treating specialists.
c. S.F. is entitled to fully participate in the IPRC review meeting for the 2013/2014 school year and the development of R.B.’s IEP for this year;
d. The trespass notice and communication ban issued in December 2011 is lifted.
282The applicant has requested remedies for the 2013/2014 school year and beyond. The education process for students with special needs is an annual process that depends upon a current assessment of the student’s needs. It would not be appropriate for the Tribunal to constrain this process by adding future conditions. That said, if the respondent intends to remove the level of support provided to R.B. in the 2013/2014 school year, there must be an objective assessment of the impact of that removal.
283As I am sure is clear from this Decision, the relationship between the parties has been severely compromised. I am very concerned about R.B. returning to school under these circumstances. As I stated in my Interim Decision 2013 HRTO 130, I was unsure how the litigation process and my final decision was going to assist the parties in repairing their relationship. For this reason, I am ordering the respondent to retain a third party facilitator/mediator acceptable to the applicant to facilitate the reparation of S.F.’s relationship with the school and its staff. This order, made under section 45.2(3) of the Code, is necessary to ensure future compliance with the non-compensatory orders above. That person must be on retainer by the respondent for the 2013/2014 school year. In the event there are difficulties between S.F. and the school during this time, they will be mediated by the third party facilitator/mediator. The costs of this person must be paid by the respondent.
Dated at Toronto, this 21st day of August, 2013.
“Signed by”
Jennifer Scott
Vice-chair