HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

J.L. by his next friend J.L.

Applicant

-and-

York Region District School Board

Respondent

A N D B E T W E E N:

R.L. by her next friend J.L.

Applicant

-and-

York Region District School Board

Respondent

DECISION

Adjudicator: Ruth Carey

Date: May 30, 2013

Citation: 2013 HRTO 948

Indexed as: J.L. v. York Region District School Board

APPEARANCES

J.L. and R.L. by their next friend, J.L., Applicants

J.L., Next Friend

York Region District School Board, Respondent

Brenda Bowlby, Counsel

Introduction

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

2J.L. and R.L. are brother and sister and students with the respondent school board. Both have been diagnosed with pes planus, the medical term for flat feet or fallen arches. They live approximately 1.1 kilometers from their school. It is the respondent’s policy to limit bussing services to those children who live more than 1.6 kilometers from school. Despite this policy, the respondent provided bussing services to J.L. and R.L. until the 2012-13 school year. These Applications are about the decision of the respondent to stop bussing the applicants.

3There is a dispute between the parties over the reason the applicants received bussing services before the 2012-13 school year. According to the respondent, it was because of an administrative error affecting a number of parents. According to the applicants, it was because their pes planus was being accommodated. The resolution of this Application does not require that this issue be determined.

4When the Board advised the applicants’ parents that they would not receive bussing in 2012-13, they asked or renewed their request for accommodation. Medical notes to support the accommodation request were provided to the respondent. The notes, identical for each applicant, stated that they had been diagnosed with pes planus, that orthotics were prescribed, and the prognosis was “good”.

5In J.L. v. York Region District School Board, 2012 HRTO 2229, issued November 28, 2012, the Tribunal ordered the applicants to file the medical evidence they intend to rely on in support of their Applications. The applicants complied. By Case Assessment Direction (“CAD”) dated January 10, 2013, the Tribunal scheduled these Applications for a summary hearing to determine whether or not there was a reasonable prospect of success given the medical documentation provided.

6The summary hearing took place by teleconference on May 21, 2013.

7The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure, as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

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

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

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

9These Applications require both of these types of inquiry. First, can pes planus constitute a disability under the Code; and second, if it can be considered a disability under the Code, is there any evidence the applicants can point to that would establish it is a disability for them giving rise to a duty to accommodate on the part of the respondents?

THE PROCEDURAL QUESTION

10At the beginning of the hearing I asked the parties if, during the summary hearing, they wished to pursue two issues set out in their respective correspondence to the Tribunal involving allegations of bias and abuse of process. The applicants, who had raised the bias issue, indicated they were prepared to proceed with the summary hearing to address the issues set out in the CAD. The respondent was the party that raised the abuse of process issue prior to the hearing. It declined the right to make substantive submissions regarding this during the summary hearing, but explicitly reserved the right to raise it in the future, if necessary.

ANALYSIS

Can Pes Planus Constitute a Disability under the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)?

11The reason this question arises is because, and as the documentation filed by the applicants says, most children are born with flat feet and develop arches as they grow. Pes planus is a physiological variant which may, only occasionally, cause disability.

12Subsection 10(1) of the Code defines “disability” in very broad terms to include:

any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device

13Although not expressed in these terms, the applicants put forward the position that pes planus is a “physical disability” or “malformation” caused by “birth defect” and therefore constitutes a disability under the Code. The respondent essentially takes the position that pes planus is a normal physical variant like eye colour and cannot constitute a “physical disability” or “malformation”.

14In Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27, the Supreme Court said:

Although I believe that health may constitute a “handicap” and thus be a prohibited ground of discrimination under s. 10 of the Charter, the same cannot be said of personal characteristics or “normal” ailments. There is not normally a negative bias against these kinds of characteristics or ailments, and they will generally not constitute a “handicap” for the purposes of s. 10. As the emphasis is on obstacles to full participation in society rather than on the condition or state of the individual, ailments (a cold, for example) or personal characteristics (such as eye colour) will necessarily be excluded from the scope of “handicap”, although they may be discriminatory for other reasons.

15The medical literature filed by the parties indicates that in many cases, pes planus in children is asymptomatic, but not always. Where the condition becomes problematic and painful, surgical options are available for children whose symptoms cannot be controlled with shoe changes and orthotic arch supports.

16What I take from this is that for the majority of individuals, pes planus causes no functional limitations whatsoever. It presents no obstacles to full participation in society and is akin to eye colour. In those cases, pursuant to the reasoning in Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), pes planus would not constitute a disability under the Code. However, in some individuals, pes planus can become very painful to the point that surgery is recommended. In those cases, presumably the pain is debilitating and causes functional limitations, and pes planus would be considered a disability under the Code.

The Applicants’ Circumstances

17Although pes planus can be a disability, I am not satisfied the applicants have a reasonable prospect of success in establishing they have a disability which required accommodation by the respondent.

18The applicants provided the respondent with identical notes from their family physician that simply stated the diagnosis of pes planus, the prescription of “orthotics to fit” and “prognosis is good”. Pursuant to the November 28, 2012 Interim Decision, the applicants delivered and filed another set of identical notes from their family physician which say: “[R.L./J.L.] has problems with his/her feet and may require reduction and intermittent rest period during physical activities on her [sic] feet.” No other medical information was provided.

19There is no evidence that the applicants cannot walk the 1.1 kilometers to school. Nor is there any medical evidence that would support the proposition that if the applicants walk to school they will experience pain or discomfort. Rather, the medical notes provided merely indicate that the applicants “may” need to stop and rest occasionally. The applicants have not produced any medical support for their claim that they must be bussed to school. Therefore, there is no reasonable prospect that the applicants can establish discrimination and the duty to accommodate on the part of the respondent does not arise.

20The applicants allege that the respondent failed in its procedural duty to accommodate them by failing to request additional medical documentation after receiving the initial doctor’s notes. Given that the initial notes supplied said the prognosis was good and did not indicate any restrictions in ability to walk to school, there was no basis for the respondent to take any further steps upon receiving this information.

ORDER

21The Applications are dismissed.