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
RECONSIDERATION DECISION
Adjudicator: Jennifer Scott
Indexed as: R.B. v. Keewatin-Patricia District School Board
WRITTEN SUBMISSIONS
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”). The applicant alleged that he was discriminated against in school in his Grades 2 and 3 school years because of his disability.
2The Application was expedited by the Tribunal in its Interim Decision dated September 11, 2012, 2012 HRTO 1721.
3On October 22, 2012, R.B. was excluded from Grade 3. He was returned to school on February 19, 2013 by order of the Tribunal in the Interim Decision dated January 25, 2013, 2013 HRTO 130 (the “Interim Decision”).
4The Application was heard by the Tribunal in a series of hearing dates in February, April and June, 2013. The allegations of discrimination before the Tribunal were confined to the period of June 2011 to February 19, 2013, the date R.B. was ordered returned to school by the Tribunal.
5By Decision dated August 21, 2013, 2013 HRTO 1436 (the “Decision”), the Tribunal held R.B. was discriminated against when the respondent: cut his Educational Assistant (“EA”) support in half in Grade 2; failed to provide R.B. with an appropriate behaviour management plan from Grade 2 onwards; excluded R.B. from school in Grade 3 without appropriate educational instruction; and imposed a permanent communication ban on R.B.’s mother, S.F., in December 2011. The Tribunal held these acts denied R.B. meaningful access to education. The Tribunal held further that the respondent failed to justify this discrimination.
6On September 20, 2013, the applicant sought Reconsideration of the Tribunal’s decision. The respondent amended the Reconsideration Request on October 4, 2013. The Tribunal did not ask the applicant to respond to the Request for Reconsideration.
Decision
7The Request for Reconsideration is denied.
The Reconsideration Test
8Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.
45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.
(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.
9The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers. Rule 26 of the Tribunal’s Rules of Procedure states:
26.1 Any party may request reconsideration of a final decision of the Tribunal within 30 days from the date of the decision
26.5 A Request for Reconsideration will not be granted unless the Tribunal is satisfied that
(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or
(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or
(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or
(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.
10The Tribunal’s Practice Direction on Reconsideration begins with the following statements:
Decisions of the HRTO are final and are not subject to appeal. However, parties may request that the HRTO reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Generally, the HRTO will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.
Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case
11In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that Reconsideration is not an opportunity to re-argue a case. Once the parties have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.
12As is clearly enunciated in the Practice Direction on Reconsideration and in the Tribunal's jurisprudence, Reconsideration is not an appeal or an evaluation of alleged errors in a decision. See Latronico v. York Region District School Board, 2012 HRTO 637, and 4137566 Canada Ltd. v. Clements, 2011 HRTO 1008.
13The respondent’s submission that the Tribunal made factual errors in its Decision does not establish grounds for Reconsideration unless the errors are serious enough to affect the outcome of the Decision and outweigh the interest in the finality of the decision pursuant to sub-rule 26.5(d). As found below, none of the errors raised by the respondent affect the outcome of the Decision; however, for the completeness of the record in this proceeding, I will address each of the alleged factual errors.
ANALYSIS
14The respondent argues the Decision contains the following errors:
The Tribunal erred when it failed to consider the level of support provided by the Special Education Resource Teacher (the “SERT”) in Grade 1 and Grade 2.
The Tribunal erred when it found the zoom chair allegation was outside the scope of the evidence before the Tribunal.
The Tribunal erred when it failed to find that S.F. “lied” when she denied R.B. had brought a recording device brought to school.
The Tribunal erred when it found R.B.’s level of aggression was assessed as “highly elevated” by his Grade 2 teacher.
The Tribunal erred when it failed to apply the test for reprisal.
SERT Support
15In the Decision, the Tribunal held the respondent discriminated against R.B. when it cut the EA support in his classroom from 100% to 50% for Grade 2 without an objective assessment of the impact of that reduction on R.B. The respondent argues the Tribunal failed to distinguish between the kind of SERT support offered in Grades 1 and 2 and, had it done so, it would not have made this finding.
16I agree with the respondent that the SERT support in Grade 1 was different from the SERT support in Grade 2. In Grade 1, the SERT support was provided to the classroom. In Grade 2, R.B. received direct SERT support twice a week for 30 minutes each session.
17The respondent bore the burden of establishing that the direct SERT support in Grade 2 compensated for the reduction in EA support in that school year. It failed to do so. The respondent increased the EA support during the Grade 2 school year from the initial 50% to 80%, in addition to the direct SERT support. It returned to 100% EA support in Grade 3, and continued the direct SERT support. The psychologist retained by the respondent agreed that R.B. requires full-time EA support today. This evidence was addressed at paragraph 232 of the Decision.
18These facts establish that the different kind of SERT support in Grade 2 did not compensate for the reduction in EA support, and support the Tribunal’s finding that the reduction in EA support denied R.B. meaningful access to education. The fact that the Tribunal did not distinguish between the kind of SERT support in Grades 1 and 2 had no effect on this finding.
Zoom Chair
19The respondent argues the Tribunal erred in failing to address the issue of whether R.B. was strapped in a zoom chair. The Tribunal held it would not address this issue because it was outside of the scope of the hearing.
20The zoom chair issue arose when the respondent prepared a transition plan dated February 11, 2013 to return R.B. to school on February 19, 2013, as ordered by the Tribunal in its Interim Decision. A behaviour support plan was attached to the transition plan that indicated a zoom chair could be used as a strategy for addressing R.B.’s behaviour.
21The respondent states R.B.’s legal counsel raised the issue of the zoom chair in correspondence dated February 13, 2013 to the respondent’s legal counsel. The respondent argues the date of this letter is within the time period before the Tribunal. That coupled with the fact that the Tribunal heard evidence about the zoom chair means the Tribunal should have dealt with it. The letter of February 13, 2013 is not in evidence before the Tribunal.
22The issue of the zoom chair arose in February 2013 in connection with the respondent’s transition plan dated February 11, 2013. The Tribunal did not address the respondent’s transition plan because it did not come into effect until February 19, 2013, and all parties agreed that this was the cut-off date for the scope of the hearing. Although the applicant wanted to introduce documents relating to R.B.’s transition back to school in February and March, 2013, the Tribunal ruled it would not admit this evidence because the issues in dispute between the parties would become a moving target and the hearing was at risk of not finishing.
23Because the Tribunal did not deal with the February 11, 2013 transition plan, it did not address the zoom chair as a behavioural strategy. It also did not address whether the transition plan was in compliance with the Interim Decision nor did it address whether the transition plan itself was discriminatory because it returned R.B. to the school library as opposed to the classroom, as ordered by the Tribunal. The transition plan was amended during the week of February 19, 2013. The amended transition plan was not put into evidence.
24On March 6, 2013, the applicant’s legal counsel wrote to the respondent’s legal counsel and advised him that when S.F. picked up R.B. at school that day, R.B. disclosed that he had been strapped into the zoom chair. The applicant’s legal counsel conceded that R.B.’s perception may not have been accurate. This is the allegation that R.B. had been strapped in the zoom chair and it is clearly outside of the timeframe for the hearing.
25The refusal of the Tribunal to address an allegation outside of the scope of the hearing does not impact the findings of discrimination in the Decision. The Tribunal’s Rules of Procedure (Rule 1.7) allow the Tribunal to define and narrow the issues before it, and to limit the evidence on any issue.
Credibility Findings Regarding S.F.
26The respondent argues the Tribunal erred in failing to make a finding that S.F. “lied” to the Tribunal when she denied R.B. brought a key fob recording device to school. The respondent suggests that the Tribunal’s finding that R.B. brought a recording device to school affects S.F.’s credibility more broadly and the findings in this case.
27Contrary to the respondent’s submissions, the findings in this case did not require broad credibility findings to be made about S.F. The Tribunal’s finding that R.B was discriminated against when his EA support was cut in half, when his behaviour was not addressed with an appropriate behaviour management plan in Grade 2, when he was excluded from school and provided with only three hours a week of instruction in Grade 3, and when a permanent trespass notice and communication ban were put in place because of the conduct of S.F.’s spouse, did not require credibility findings to be made about S.F.
28The respondent bore the burden of justifying the discrimination found by the Tribunal. For S.F.’s conduct to be relevant, the respondent had to establish that S.F. failed to cooperate in the accommodation process or that her conduct constituted undue hardship which prevented the respondent from being able to accommodate R.B. The respondent failed to meet this burden.
29The only allegation that S.F. did not cooperate in the accommodation process related to her failure to advise the school that R.B. was no longer taking medication in Grade 2. The Tribunal held the respondent failed to establish that S.F.’s non-disclosure of medication changes prevented it from accommodating R.B. because the Grade 2 teacher obtained the medical information directly from R.B.
30The Tribunal held further that the respondent failed to establish undue hardship because of the conduct of S.F. The Tribunal did not accept that S.F. had made unfounded allegations of segregation and bullying. While it accepted the respondent’s evidence that R.B. came to school with a key fob recording device, that fact alone did not amount to undue hardship because there was no evidence the device recorded anything.
31The issue in this case is whether R.B. was denied meaningful access to education. The Tribunal found that he was. The respondent failed to justify this denial. The respondent focused its case on S.F., but failed to establish that her conduct prevented it from providing R.B. with meaningful access to education. Put simply, for S.F.’s conduct to be relevant, it must relate to the respondent’s ability to accommodate her son. The respondent failed to establish this link. Similarly, S.F.’s conduct is not relevant to the Reconsideration Request unless it impacts the Tribunal’s Decision. The fact that the Tribunal did not accept S.F.’s denial about the key fob does not impact the Tribunal’s finding that R.B. was denied meaningful access to education because of the respondent’s actions that had nothing to do with S.F.’s credibility.
Assessment of R.B.’s Aggression in March 2011 Assessment
32The respondent argues the Tribunal erred in finding R.B.’s Grade 2 teacher assessed his levels of aggression and defiance as “highly elevated” for the March 2011 psychological assessment when it was the Grade 1 teacher who made this assessment. The respondent asserts that because of this factual error, the finding that full-time EA assistance was required in Grade 2 is wrong.
33The Tribunal agrees that it was the Grade 1 teacher who made this assessment and not the Grade 2 decision as stated in the Decision. However, the assessment of increased aggression and defiance was relevant to the question of whether the respondent discriminated against R.B. by failing to provide him with a behaviour management plan in Grade 2. It was not relied upon to make findings about EA support. Even if the Grade 1 assessment had been considered, it would not have changed the Tribunal’s finding that the reduction in EA support in Grade 2 was discriminatory.
34The correction of when R.B. was assessed with elevated aggression and defiance (Grade 1, not Grade 2) is consistent with and supports the Tribunal’s finding that R.B. had a history of behavioural problems from JK onwards and that he required a behaviour management plan in Grade 2 for all of the reasons stated in the Decision.
Reprisal
35The respondent argues the Tribunal erred by melding the test for discrimination and the test for reprisal into one test, thereby ignoring the test for reprisal.
36The Tribunal found the applicant was discriminated against 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 Grade 3 without appropriate educational instruction and when the communication ban was placed on S.F. These allegations, with the exception of the communication ban, were allegations of discrimination. This is confirmed in correspondence from the applicant’s legal counsel dated January 17, 2013 summarizing the allegations of discrimination and reprisal before the Tribunal.
37Although the applicant argued the communication ban was an act of reprisal, it acknowledged in its written submissions dated July 12, 2013 that in law, it could also be an accommodation issue. The Tribunal addressed the communication ban as an act of discrimination, not reprisal. The Tribunal did not apply the test of reprisal because no findings of reprisal were made. The Tribunal applied the correct test of discrimination as set out by the Supreme Court of Canada in Moore v. British Columbia (Education), 2012 SCC 61.
DECISION
38The Request for Reconsideration is essentially an attempt to re-argue matters that were already presented or argued at the hearing. To the extent that the Decision contains a factual error, correction of that error would not alter the outcome of the Decision.
39In my view, the respondent has provided no reason to conclude that compelling and extraordinary circumstances exist that outweigh the public interest in finality of decisions. The Request for Reconsideration is denied on that basis.
Dated at Toronto, this 20th day of November, 2013.
“Signed by”
Jennifer Scott
Vice-chair