R.B. v. Keewatin-Patricia District School Board, 2013 HRTO 611

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

INTERIM DECISION

Adjudicator: Jennifer Scott Date: April 12, 2013 Citation: 2013 HRTO 611 Indexed as: R.B. v. Keewatin-Patricia District School Board

WRITTEN SUBMISSIONS

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

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

Introduction

1The applicant, R.B., is a student in Grade 3 with the respondent school board. He was excluded from school on October 22, 2012. S.F. is R.B.’s mother. Since December 2011, S.F. and her spouse have been prohibited from entering school property because of a Trespass Notice that was issued to them on December 5, 2011.

2By Interim Decision dated January 25, 2013 (2012 HRTO 130), the Tribunal ordered that R.B. return to school on the terms recommended by the school board psychologist, Dr. Stambrook. The terms were summarized at paragraph 6 of the Interim Decision as follows:

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

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

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

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

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

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

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

3The Tribunal ordered R.B. to return to school on February 19, 2013. The Tribunal left it to the parties to determine whether R.B. should return on a graduated basis.

4At paragraph 28 of the Interim Decision, the Tribunal noted that there may be issues between the parties once R.B. is back at school. On this point, the Tribunal stated:

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

5By letter dated January 30, 2013, S.F. agreed to abide by the interim communication restrictions set out in paragraph 6 of the Interim Decision: communication through the superintendent of education, regularly scheduled meetings every four to six weeks, no e-mail contact, and journal contact between S.F. and R.B.’s teacher.

6R.B. returned to school on February 19, 2013, under a transition plan dated February 11, 2013. There was a dispute between the parties regarding the transition plan and whether it complied with the Tribunal’s Interim Order. The respondent subsequently amended the transition plan on February 22, 2013.

7On February 28, 2013, the principal of R.B.’s school wrote to S.F. and advised her that she was in breach of the Trespass Notice when she entered school property and walked R.B. up to the school door on February 26, 2013. The principal advised S.F. to have someone other than S.F. or her spouse escort R.B. to the school door, except when expressly permitted. With respect to obtaining permission to enter school property, the principal stated:

To avoid such liability [for breach of the Trespass Notice], please have someone else other than yourself or your husband escort [R.B.] to the door in the future, and refrain from entering onto school property except when expressly permitted.

Due to the order of the Human Rights Tribunal of Ontario issued January 25, 2013, which limits your ability to contact School Board personnel, to make a request for permission to enter onto school property, please have your legal representative forward same to counsel for the School Board, Donald Shanks of Cheadles LLP.

8On March 6, 2013, S.F.’s legal counsel 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 Education Assistant 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”.

9The respondent investigated the allegation that R.B. had been strapped into a zoom chair and concluded that the incident had not occurred. The school staff allegedly involved in the incident were very upset that the allegation had been made.

10It appears from the material filed that R.B. has not attended school since March 4, 2013.

11On March 22, 2013, the respondent filed a Request for Order During Proceedings (“RFOP”) seeking an order relieving the respondent from complying with the Interim Order requiring the respondent to return R.B. to school. The reason for the request is that S.F. breached her written agreement dated January 30, 2013 regarding the communication restrictions.

12On March 22, 2013, the applicant filed a response to the RFOP seeking a dismissal of the respondent’s request. On the same day, the applicant filed a Request for Interim Order seeking an amendment of the Interim Order by permitting direct communication between R.B.’s teacher and S.F., including a weekly meeting with S.F., R.B.’s teacher and his Special Education Resource Teacher, and the removal of the Trespass Notice and accompanying communication ban.

DECISION

13The school board argues that the zoom chair allegation is unfounded, false and malicious and as such, breaches the purpose of the communication restrictions, which is to re-stabilize and renew the relationship between S.F. and the school/school board. While I am very sympathetic to the impact of the allegation on school staff, I decline to make a finding at this time. One of the central issues in this case concerns the strategies used to respond to R.B.’s behaviour. In my view, findings on this issue should be determined after all of the evidence has been heard. At this point in time, we are only halfway through the evidence.

14The respondent argues further that the letter of March 6, 2013 from S.F.’s legal counsel constitutes a breach of S.F.’s agreement to cease engaging in ad hoc communication with the school/school board. The respondent asserts that communication between S.F. and the school was to take place in regularly scheduled meetings with a focus on R.B.’s academic progress and issues specific to his progress. The respondent submits the March 6, 2013 letter constitutes a breach of these terms because S.F. is doing indirectly what she was prohibited from doing directly.

15The terms relied upon by the respondent in its RFOP are not contained in the Interim Order. They are contained in the communication plans attached to the two transition plans. The issue before the Tribunal is not whether S.F. breached the communication plans, because there has been no determination that the transition plans/communications plans comply with the Interim Order. That question has not been put to the Tribunal. The issue before the Tribunal is whether S.F. is in breach of the Tribunal’s Interim Order dated January 15, 2013, as that can be the only basis upon which the school board can assert the Interim Order no longer stands.

16R.B. had been out of school for four months at the time the Interim Decision was released. Given the complex history between the parties, it was anticipated by the Tribunal that issues would arise once R.B. was back in school. The fact that an issue arose and was communicated by S.F.’s legal counsel (by e-mail) does not constitute a breach of the Interim Order by S.F. To hold otherwise would mean S.F.’s legal counsel is prohibited from raising concerns while R.B. is in school. I would also note that the school/school board anticipated that communication between counsel would take place. In her letter of February 28, 2013, the principal of R.B.’s school advised S.F. that if she sought permission to enter school property, the request should be made by her counsel to the respondent’s counsel.

17The Interim Order anticipated the ongoing involvement of legal counsel when R.B. returned to school. The Tribunal’s expectation was that legal counsel would work together to resolve those issues. The fact that this did not occur does not mean that S.F. is in breach of the Interim Order. I therefore find that S.F. is not in breach of the Interim Order and R.B. is entitled to be in school on the terms set out in the Interim Order dated January 25, 2013. I will now turn to the applicant’s request to amend the Interim Order.

18The Tribunal ordered R.B. return to school on the terms recommended by Dr. Stambrook. The Tribunal accepted Dr. Stambrook’s communication restrictions and his rationale for them: to re-stabilize and renew the relationship between S.F. and the school. That goal continues to be important. These terms should not be revisited halfway through the hearing for the same reason as stated for the zoom chair allegation. The remedy sought by the applicant on the Request for Interim Order can be raised at the conclusion of the hearing once all of the evidence has been heard. As such, the communication restrictions will remain.

19As a result of the findings in this Interim Decision, R.B. is entitled to be in school under the terms of the January 25, 2013 Order. One of the impediments in returning R.B. to school is the Trespass Notice which prevents R.B.’s parents from walking him to the school door. It does not seem practical to require R.B.’s parents to find a third party to walk R.B. to the school door. In my view there are two possible solutions to this problem: R.B.’s EA can meet R.B. at S.F.’s car and escort him to the school building, or the school can provide permission to S.F. and her husband to walk R.B. to the school door with the communication restrictions in place. The parties, with their counsel, should agree on one of these two options to enable R.B. to arrive at school safely.

20One final note. There may be further issues between the parties when R.B. returns to school once more. I would encourage the parties and their counsel to find a way to both raise and resolve issues without the need to resort to litigation. As stated in the Interim Decision, it was the Tribunal’s hope that in making the Interim Order, it would not result in further issues of dispute between the parties as that would likely prolong the litigation process and make it more difficult for R.B. to succeed at school.