HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Thomas Klassen
Applicant
-and-
Toronto District School Board
Respondent
DECISION
Adjudicator: Brian Eyolfson
Indexed as: Klassen v. Toronto District School Board
APPEARANCES
Thomas Klassen, Applicant Self-represented
Toronto District School Board, Respondent Glorie Alfred, Counsel
Introduction
1The applicant, who is a parent of children attending school with the respondent, Toronto District School Board (“TDSB”), filed this Application under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on October 18, 2011. The Application alleges discrimination with respect to goods, services and facilities on the basis of disability.
2More particularly, the allegations in the Application concern the applicant’s request that, as a person with a disability that impacts his ability to communicate, the respondent allow him to communicate with his children’s teachers by email. The applicant’s children were in junior and senior kindergarten during the 2010/2011 and 2011/2012 school years, respectively.
The applicant’s allegations
3In his Application, the applicant alleges that, on March 8, 2011, he sent an email to the Principal of his children’s school, noting that he has a disability that impacts his communication ability, and asking if he could communicate with his children’s teachers by email.
4On March 9, 2011, the Principal responded by email, indicating that email communication with teachers was not possible.
5On March 10, 2011, the applicant received another email from the Principal stating that, due to the applicant’s exceptional circumstances, his children’s teachers generously agreed to make an exception to the rule and communicate through email on a trial basis, but that the school’s policy had not changed. The email also stated that the respondent “would appreciate it if [the applicant] would keep this to [himself].”
6Beginning on March 11, 2011, the applicant made a series of contacts with the office of the Superintendent of Education, seeking clarification of the message from the Principal and the TDSB’s policy.
7On March 27, 2011, the applicant replied to the Principal, stating that he could not accept the offer and conditions in the Principal’s March 10, 2011 email. On March 29, 2011, he copied the Superintendent on his March 27, 2011 reply to the Principal.
8On April 27, 2011, the applicant wrote to the Director of Education, asking that he be provided with the TDSB’s policy regarding email communication between parents and teachers.
9On June 1, 2011, the applicant received a letter from the Superintendent (dated May 30, 2011), in response to his April 27, 2011 letter to the Director. The Superintendent’s letter stated that teachers at his children’s school had once again “chosen other means to communicate with the community besides e-mail.” The letter from the Superintendent also stated that “[i]t is still left to the individual teachers or staff to use the communication vehicle of their choice as long as communication occurs in a reasonable time.”
10On June 7, 2011, after additional emails with the Superintendent, the Superintendent agreed with the applicant’s request to not make it a condition that the respondent “would appreciate it if [the applicant] would keep [his email access to teachers] to [himself]”.
The respondent’s position
Background
11In its Response to the Application, the respondent explains that its Parent and Community Involvement Policy and Procedure provide, in part, as follows:
A variety of communication procedures shall be developed and maintained at the school and system level to ensure access to educational information needed by diverse parents and communities, and to facilitate two-way communication between parents and schools, and among parent groups…
Each school, in consultation with the school council, will establish a plan for improving two-way communication with parents at the classroom and school level, including the use of a variety of oral and written forms of communication which build on existing mechanisms such as parent-teacher interviews, curriculum nights, school newsletters and parent meetings…
12In the 2009/2010 school year, the Principal of the applicant’s children’s school discussed direct emailing as a form of parent-teacher communication with school staff. Teachers expressed concerns that direct emailing between parents and teachers would not prove to be the most effective means of communication. Some of the concerns included the potential for misinterpretation, delayed teacher responses if there was a large volume of email, and not being able to check and respond to school-based email as quickly while balancing the demands of teaching.
13Parent communication was also addressed at a School Council meeting on September 20, 2010. During the Principal’s Message, email, telephone calls and scheduled meetings were conveyed as means of communicating with the Principal, while writing in a student’s agenda, telephone calls, and scheduled meetings were conveyed as means of communicating with teachers. Email was conveyed as a method not to be used by parents with teachers.
14Communication between parents, administration and teachers, including parent-teacher email, was also addressed at a staff meeting on September 23, 2010. The concerns staff had expressed in the 2009/2010 school year, with respect to email as a form of parent-teacher communication, were still present, and the Principal was satisfied that many effective means for parents to communicate with both staff and administration were available to parents.
15At Curriculum Night for the 2010/2011 school year, which took place on September 28, 2010, many means of communication with the school were conveyed to the parents in attendance. Some of the means of communication mentioned included: writing in student agendas for those students in grades two to five; emailing, calling or meeting with the Principal; and, calling or writing notes to teachers. Email was mentioned as a means of parent-teacher communication not to be used.
16During a School Council meeting on October 18, 2010, the Principal specifically noted that parents of students in kindergarten to grade two could speak to teachers during pick-up and drop-off times, call teachers, and schedule meetings with teachers to discuss progress. Overall, it was noted that appointments with teachers were easy to schedule, and parents were satisfied with letters/newsletters from the school.
17During the 2010/2011 school year, parent participation was supported by both one-way and two-way communication. Two-way communication included email communication with the Principal and Office Administrator, notes, telephone conversations and messages, and meetings, including those that might have occurred while students were dropped off or picked up.
The applicant’s request
18The respondent states that, in his March 8, 2011 email to the Principal, the applicant stated that he was writing with respect to a practice at the school that prevents parents from contacting teachers by email. The applicant noted that, because he stutters, making phone calls is particularly stressful, and, at times, nearly impossible. Further, because English was not his wife’s first language, the applicant stated that she preferred to communicate by email to avoid misunderstandings. The applicant requested that a means be provided for both of them to communicate with their children’s teachers, when required and appropriate, as the school’s practice hindered their ability to support the learning that occurred in their children’s classrooms and to develop a successful partnership with the school.
19The respondent submits that the Principal did not send the applicant a response indicating that email communication with teachers was not possible, as alleged. Rather, on March 9, 2011, the Principal responded to the applicant by email, stating that the applicant was welcome to email him or the Office Administrator to relay a message where a matter was urgent, and to write a note where a matter was not urgent. Following this email response, on March 9, 2011, the Principal encountered the applicant at a school book fair, and a brief conversation regarding the applicant’s request ensued. The Principal told the applicant that it was the school’s practice to advise parents not to use email as a method of communication with teachers. The Principal explained to the applicant that this message was conveyed to parents at the request of teachers, and that he supported teachers wanting to maintain a positive working relationship with parents, as emails had the potential of being misinterpreted. The Principal further indicated that the applicant was more than welcome to email either the Office Administrator or himself if a matter was urgent, and that the applicant could always send his children’s teachers notes. The applicant stated that he disagreed with the Principal, and the conversation concluded with the Principal indicating to the applicant that his request would not be facilitated.
20The respondent explains that, in the Principal’s experience, notes to and from teachers proved to be a very effective means of communicating for parents, especially amongst kindergarten students, and also allow for information to be received and responded to quickly where required. While the Principal and the Office Administrator checked their email frequently throughout the day, the Principal’s expectation of staff was that they checked school-based email once a day, which could lead to a delayed receipt of information and/or a response. Further, the applicant had not indicated that he had any issues meeting with his children’s teachers, or school administration, as a means of communication, a practice he had engaged in throughout the year.
21The respondent submits that, with respect to the applicant’s concern, expressed in his March 8, 2011 email, about the effect of his stutter on being able to communicate with the school by telephone, the means of communication the Principal presented in both his email and meeting with the applicant on March 9, 2011, addressed the applicant’s concerns. However, following his conversation with the applicant on March 9, 2011, the Principal observed that the applicant was visibly upset by the conversation they had. Consequently, although the Principal felt that the applicant’s concerns had been addressed, he approached the applicant’s children’s teachers about the applicant’s request to communicate with them by email.
22The teachers were agreeable to communicating with the applicant as he had expressed that his ability to communicate with the school by telephone was affected by his stutter. However, both teachers expressed concerns that they may not be able to read or respond to emails immediately and that email communication had the potential of being misinterpreted.
23The Principal then sent the applicant an email on March 10, 2011, stating that the teachers had agreed to communicate with the applicant by email, due to his exceptional circumstance, that being the effect of his stutter on his ability to communicate with the school by telephone. With respect to stating that the email communication would be on a trial basis, the respondent explains that the Principal wanted to determine if email communication between the applicant and the teachers would be an effective means of communication for all parties involved.
24The respondent also explains that, in asking the applicant to keep this information to himself, the Principal wished to avoid other parents approaching him to inquire why the applicant was emailing teachers directly when they were not. In respecting the applicant’s privacy, the Principal would be unable to respond to these inquiries. However, at no time was the applicant prevented, by any agent of the TDSB, from sharing the fact that he could email teachers with whomever he wished.
25In response to the applicant’s allegation that, beginning on March 11, 2011, he made a series of contacts with the office of the Superintendent to seek clarification of the message from the Principal and the TDSB’s policy, the respondent submits that, on March 22, 2011, the Administrative Liaison to the Superintendent sent the applicant an email regarding parent-teacher communication. The Liaison stated that she had spoken with the Principal and that it was her understanding that the issue had been resolved as the applicant had been informed that the school was agreeable to him communicating with teachers by email. The Liaison also made reference to direct parent-teacher email not being the standard practice, as telephone and parent conferences were encouraged instead.
26The respondent submits that, on March 27, 2011, the applicant replied to the Principal’s March 10, 2011 email, stating that he was unable to accept direct email communication with his children’s teachers as he and his wife would not be able to inform other parents of this fact.
27The respondent also explains that the Superintendent wrote to the applicant on May 30, 2011, in response to the applicant’s letter to the Director dated April 27, 2011, wherein the applicant requested any existing TDSB policy regarding email communication between parents and teachers. In her response, the Superintendent stated, in part, that individual teachers could use the communication vehicle of their choice as long as communication occurs in a reasonable time.
28The respondent submits that, on June 5, 2011, the applicant emailed the Superintendent, thanked her for her letter of May 30, 2011, and stated that he would be resubmitting his request to the Principal. The Superintendent responded to the applicant’s email on June 5, 2011, advising that she was confused by his email, as it was her understanding that email communication with his children’s teachers had been offered and refused. The respondent explains that the Principal and the Superintendent’s understanding as to why the applicant had initially refused email communication with the teachers also included the fact that email communication with teachers had not been made available to other parents at the school.
29On June 7, 2011, the applicant replied to the Superintendent’s email of June 5, 2011 and stated that he and his wife would accept parent-teacher email communication if the condition “we would appreciate it if you wold keep this to yourself” was removed or modified. The Superintendent replied to the applicant on June 7, 2011, stating that the applicant could consider the section he had classified as a “condition” removed as per his request. The Superintendent stated that the Principal had asked the applicant to keep the fact that he would be emailing teachers to himself in order to respect his privacy and to avoid other parents inquiring why this was the case.
Additional allegation
30In his witness statement provided in preparation for the hearing, the applicant stated that, as of September 4, 2012, he no longer had email access to his children’s teachers, and the TDSB policy and procedures that resulted in the withdrawal of the accommodation granted were not known to him. The applicant gave evidence with respect to this allegation at the hearing. The respondent had no objection to the Application being amended to include this additional allegation, set out in the last paragraph of the applicant’s witness statement, provided the respondent had time to respond.
31In the circumstances, the Application was amended to include the applicant’s additional allegation, referred to above, and the respondent was provided with an opportunity to give evidence with respect to this allegation at a subsequent continuation date. Prior to the continuation date, the respondent was also provided with an opportunity to respond, in writing, to the additional allegation, and the applicant was provided with an opportunity to reply. The parties were also permitted to provide additional witness statements and documents to be relied upon, prior to the continuation date.
WITNESSES
32The applicant gave evidence at the hearing, and the respondent called the following witnesses:
(i) Joanna Lanning, a teacher who taught one of the applicant’s children during the 2010/2011 school year;
(ii) Cindy Greiver, a teacher who also taught one of the applicant’s children during the 2010/2011 school year;
(iii) Paul Farrell, Principal of the school the applicant’s children attended during the 2010/2011 and 2011/2012 school years;
(iv) Johanne Messner, Superintendent of Education during the 2010/2011 school year for the jurisdiction that included the school that the applicant’s children attended;
(v) Nicolle Correia, a teacher who taught one of the applicant’s children Grade 1, commencing in September 2012;
(vi) Casey Green, a teacher who also taught one of the applicant’s children Grade 1, commencing in November 2012; and
(vii) Susan Wires, the Principal at the school the applicant’s children attended, commencing in September 2012.
SUMMARY OF EVIDENCE
33Much of the evidence was not in dispute, and the applicant had no objection to two volumes of documents provided by the respondent being admitted as exhibits at the hearing. Where the evidence does conflict, I have made findings on credibility in accordance with the principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at paras. 356-357:
…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
Respondent policies and practices
34Mr. Farrell testified that he was the Principal at the school the applicant’s children attend until June 2012. He reported to Ms. Messner.
35Mr. Farrell referred to the TDSB’s Parent and Community Involvement Policy, which provides, in part, that a variety of communication procedures shall be developed and maintained to ensure access to education information needed by diverse parents and communities, and to facilitate two-way communication between parents and schools. He also referred to the respondent’s Parent and Community Involvement Procedure, which provides, in part, that each school, in consultation with the school council, will establish a plan for improving two-way communication with parents at the classroom and school level, including the use of a variety of oral and written forms of communication. Mr. Farrell also explained that the TDSB’s Human Rights Policy applies to every member of the TDSB community, including families. He testified that he received human rights training at the TDSB. He also referred to the TDSB’s Accessibility Standards for Customer Service Policy, which provides, in part, that “[t]o ensure greater awareness and responsiveness to the needs of a person with disabilities, the Board will provide appropriate training for all staff…” Mr. Farrell confirmed that he received such training.
36With respect to two-way communication during the 2010/2011 school year, Mr. Farrell testified that, if a parent had concerns, he would ask the parent to come in and meet with him, or phone him, rather than use email. If a parent used email, he would sometimes ask them to come in, or speak to them on the telephone. He also testified that parents sometimes emailed him, or the Office Administrator, for a variety of reasons, and that parents could contact teachers through notes. He explained that, for students in kindergarten to Grade 1, there was a “Friday File”, and students would bring notes back and forth between teachers and parents, in addition to the Friday File, as needed.
37Mr. Farrell testified that the school’s practice of not permitting parents to email teachers directly came about through a discussion about email at a staff meeting with teachers, in light of concerns that were raised and in order to be consistent. Mr. Farrell testified that the respondent wants to work with parents and keep communication as positive as possible. At a staff meeting, teachers were cautioned to use email sparingly and keep emails brief. Teachers were advised to ask parents to come in, or have a phone call with parents, if parents had concerns, rather than have discussions through email which could be cumbersome and challenging. Some staff also said that they were not comfortable emailing and do not email. Mr. Farrell also testified that there was a concern regarding the “immediacy” of email, and that parents may want a quick response which is not always possible. He explained that teachers may check email early in the morning and then not until the next evening, and there was a concern about not being able to respond to email the same day if, for example, a parent wanted a child to be picked up by someone else that day. Mr. Farrell also testified that there was a concern that the tone of emails could be misinterpreted, and teachers found that it was usually best to meet in person, or have a phone conversation, to discuss concerns. He also testified that teachers of kindergarten to Grade 1 students said that their students were very good with notes.
38Ms. Lanning testified that school staff discussed email communication and decided that they preferred other forms of communication because emails are sometimes lengthy and can get misconstrued or misunderstood. She also testified that it is very difficult to access a computer while with students all day, and that it is sometimes hard to get to emails. She also testified that her union cautions teachers to be careful when emailing parents, and states that notes and face-to-face meetings are better.
39Ms. Lanning referred to a union document titled, “Practice Caution: Guidelines for Electronic Communications”, which states, in part, as follows:
For communications with parents, ETFO recommends face-to-face meetings or telephone conversations with parents to discuss any issues that students may be facing. If e-mail is used, teachers should only use their school email accounts during regular business hours. Sending e-mails late at night can give rise to unrealistic expectations on the part of parents who may get the impression that teachers are available at any time of day.
40Ms. Lanning testified that she communicates with parents with newsletters, notes and phone calls. With respect to the exchange of notes, she uses a “Friday File” that goes home with children every Friday and is returned. Notes can also be sent with children to be handed to her when they arrive at school, and she responds by putting notes in their “book bag” with their reading for that night, or in their knapsack.
41Ms. Greiver testified that she agreed with not using email to communicate with parents. She testified that she communicates with parents through face-to-face contact when they are dropping off and picking up their children, through parent interviews, notes and phone calls. Ms. Greiver explained that parents give children notes to hand to her when they arrive, and she reads the notes as soon as she can, if not immediately. Sometimes she writes a response right on the note, and hands it directly to the parent when they pick up their child, or she puts it in the child’s bag.
42Mr. Farrell testified that teachers are required to communicate with parents in an effective and timely manner regarding any concerns and reporting on the progress of students, and he was satisfied that they could do that with the policy of not having parents email teachers directly. He also explained that, at times, parents would send him an email and ask him to forward it to a teacher, or group of teachers, and he would do that.
43Ms. Messner testified that the respondent’s policy is to respond to parents effectively in a timely manner, and that there are a variety of means of communication. She testified that the policy does not specifically state that a teacher can or cannot use a particular form of communication, including email, and that teachers may choose the means of communication, as long as it is effective. She also testified that notes and email are not replacements for telephone conversations, but are other means of communication.
44Ms. Messner also testified that principals cannot direct teachers to respond to emails during their lunch breaks, or when they are not at school, and that if teachers respond to emails at these times it is at their own initiative.
45Ms. Lanning testified that she is with students during most of the day. She arrives at the school between 8:20 and 8:30 a.m. and sets up the classroom. The students arrive at 8:55 a.m., and are dismissed at 11:30 a.m. She then meets with her colleagues to talk about the day, after which she takes her lunch break, and the afternoon class arrives. They are dismissed at 3:30 p.m., after which she plans for the next school day, and leaves at 3:45 p.m. Ms. Greiver testified that she just works in the morning, so she goes home between 12:30 and 1:00 p.m., after meeting with her colleagues and preparing for the following day.
46Ms. Lanning testified that it is difficult to speak on the phone during the day, but that parents can call and leave a message and she will return their call at lunch or right after school when the children are dismissed. She receives one or two phone calls from parents per week, and tries her best to respond within a day or two. Ms. Greiver testified that she only receives one or two phone calls from parents per month. She testified that, usually, if parents call, it is not just a quick answer but more of concern, or it could be to set up an appointment.
47With respect to checking email, Ms. Lanning testified that it depends as some days are busy and she does not check email until she gets home at night, or not until the next morning. She testified that it probably takes her about the same amount of time to respond to a note or an email, but notes are received faster, and she can respond immediately, whereas she does not know when she will receive an email.
48Ms. Greiver testified that notes are easier for her than email, and that she finds email a little problematic because she does not check email at all when she is at school because she is too busy, and would not go on the computer during instructional time. She testified that she checks email at home most days but not on weekends. She explained that, when she receives a note, she can answer back right on the note that day.
49Mr. Farrell testified that parents were informed of various communication measures in the respondent’s “parent handbook”, at Curriculum Night, through himself, and at information sessions held by individual teachers. The parent handbook addresses communication, in part, as follows:
Communication between home and school is critical to a successful partnership. Teachers regularly contact parents through the planner, newsletters, and work in progress, completed, and assessed sent home regularly. Please contact your child’s teacher about any questions, concerns, or information you may have to share. We welcome your participation in your child’s education. Messages can be left for teachers through the school office. Students in grades 2 – 5 have planner books in which notes to the teacher can be written. Every Friday, parents receive a short email from the principal about events of the week and upcoming events.
50Mr. Farrell testified that the parent handbook does not include an exhaustive list of communication means as there is informal contact with parents when their children are dropped off, and the handbook does not mention formal interviews. Minutes of a September 20, 2010 School Council meeting also mention emailing the Principal with suggestions, and phoning and/or scheduling a meeting with the Principal to discuss concerns or problems. With respect to teachers, the minutes indicate that email is not allowed, but that teachers can be phoned or an appointment can be made. Mr. Farrell explained that only a small proportion of parents attend School Council meetings, but the minutes were shared with the school community. He testified that the applicant was involved in the School Council.
51Mr. Farrell’s preparation notes for Curriculum Night also indicate “no emails for staff”, but that he can be emailed “for quick questions or positive comments”, and to “call or interview for concerns”. His comments set out in minutes from an October 18, 2010 School Council meeting also state that parents with children in kindergarten to Grade 2 can talk to teachers during pick-up and drop-off times, and parents can call teachers to discuss issues and set up scheduled times to discuss child progress.
The applicant’s March 8, 2011 request to communicate with teachers by email
52The applicant testified that he asked to be able to communicate with teachers by email on March 8, 2011. In a March 8, 2011 email to Mr. Farrell, the applicant asked that he and his spouse be able to communicate with teachers by email, “when required and appropriate”. He stated that, as a person who stutters, making telephone calls is particularly stressful and, at times, nearly impossible, and English is not his spouse’s first language.
53When asked, in cross-examination, about his request to use email, the applicant stated that his request to use email was “because of the telephone calls”, but he also indicated that, at times, telephone calls would be necessary, such as if there was an emergency. He also testified that if there was an emergency, he would drive to the school, make a phone call if he could, or email the principal. The applicant also explained that he would not use email every day, and that he would not use email if a matter was not appropriate for email. Also, if a “face-to-face” meeting was needed, that is what he would arrange. He agreed that he was not saying that he only wanted to use email.
54The applicant was also asked if, at the time of his request, he was aware of the option of emailing the Principal. He testified that he did not think it was the Principal’s job to forward email messages back and forth between parents and teachers. He also testified that he had the impression from Mr. Farrell at Curriculum Night that emailing the Principal was for school-wide things, and not for classroom-related activities. He was also pretty sure from Curriculum Night that emailing teachers was not possible, and that if you wanted to speak to a teacher you had to call for an interview.
55The applicant testified that, in response to his request, Mr. Farrell said that communicating by email with teachers was not possible. In an email to the applicant dated March 9, 2011, in response to the applicant’s March 8, 2011 request, Mr. Farrell stated as follows: “… if it is urgent, you are always welcome to email me or [the Office Administrator] to relay a message. If it is not urgent, you are always welcome to write a note, and the teachers are quite good about responding to notes promptly.”
56Mr. Farrell testified that he understood that the applicant wanted permission to be able to email teachers because making telephone calls was stressful and he needed to communicate in written form. Mr. Farrell testified that if there was something urgent, the applicant could email him or the Office Administrator, and he could always write a note. Mr. Farrell also testified that children in kindergarten were very good with notes, so the applicant had the ability to communicate in written form. He also testified that he saw the applicant fairly regularly in the morning, and that he had met with the applicant before and understood that the applicant was comfortable with in-person meetings.
57Mr. Farrell also explained that both he and the Office Administrator check email numerous times during the day, so they would be able to respond right away, whereas with teachers there is no guarantee that they will receive an email message on the same day it is sent. He also testified that he has received time-sensitive emails from parents, such as emails saying that they are stuck in traffic and will be late picking up their child, and asking that he let the teacher know. Mr. Farrell testified that when he received the applicant’s request to communicate directly with teachers by email, he thought that it was not necessary as he thought that the applicant’s need to communicate in written form was being met.
58The applicant testified that, on March 9, 2011, he also had an unplanned encounter with Mr. Farrell at a school book fair, and Mr. Farrell repeated to him what was in his March 8, 2011 email to the applicant. The following day, the applicant received a second email from Mr. Farrell.
59Mr. Farrell confirmed that, shortly after he wrote his March 9, 2011 email to the applicant, he saw the applicant at a school book fair. He testified that he communicated the content of his email to the applicant, advising him that he was more than welcome to email him or the Office Administrator, and, together with writing notes to the teacher, that would meet his needs. He testified that the applicant was not satisfied with his response, was very insistent, and did not appear to accept his reasoning.
60Mr. Farrell testified that, after he spoke to the applicant at the book fair, he realized that it was very important to the applicant, so he spoke to the applicant’s children’s teachers and said it was important to the applicant and they may want to consider having the applicant email them. The teachers, Ms. Lanning and Ms. Greiver, both agreed. Mr. Farrell testified, however, that the teachers were concerned that the applicant might expect that they respond to emails right away. In an email to Mr. Farrell dated March 9, 2011, Ms. Lanning states that she thinks that an exception should be made to the “no email rule”, and that she has no problem talking to the applicant about the issue. She also states that she would be sure to explain that she cannot guarantee when she would read his mail, and that a note is the best communication, but she is open to receiving his emails. She also stated that she would ask that he please keep them brief.
61Ms. Lanning testified that she agreed to communicate with the applicant by email, and explained that she indicated that a note is the best communication because it can be received and responded to in a timely manner and she has found that it is a form of communication that works well.
62In an email to the applicant, dated March 10, 2011, Mr. Farrell stated, in part, as follows:
I have spoken to Ms. Lanning and Ms. Greiver about your request. Due to your exceptional circumstances, they have generously agreed to make an exception to the rule and communicate through email on a trial basis. Please understand that the policy has not changed for the school, and we would appreciate it if you would keep this to yourself. We will reassess this process after a month or so.
As far as email communication goes, it is important to understand that the teachers may not always respond immediately to your emails. They are often able to respond the same day, but there may be times when two days are needed before they will be able to respond. If there are any issues of great concern, you are encouraged to send them your main points, then meet to discuss. If there is an urgent matter, you are encouraged to call the school or email [the Office Administrator] or myself as we are more frequently emailing.
63Mr. Farrell testified that he said it would be on a “trial basis” because, after a while, they would see if it was meeting the needs of “both parties”.
64Ms. Greiver testified that she agreed with the suggestion in Mr. Farrell’s email to the applicant that, if there were any issues of great concern, he send his main points and then meet to discuss. She explained that she did not want to get into a “back and forth” email discussion about something of great concern, and face-to-face meetings were preferable to email or telephone conversations in such circumstances.
65The applicant testified that, in light of Mr. Farrell’s March 10, 2011 email to him, he was accommodated generally. To his knowledge, no “reassessment” was completed. Mr. Farrell testified that, by the end of the 2010/2011 school year, the applicant had only sent one email to the teachers, and he thought that the applicant continued to meet with teachers, so no reassessment was done.
66The applicant also testified, however, that he was confused because the March 10 email said the opposite of the March 9 email, and he was not sure if what was in the March 10 email was TDSB policy, school policy or individual class policy. As a result, he wrote to the Director of Education asking about the respondent’s policy.
67The applicant also testified that he found the phrase, “we would appreciate it if you would keep this to yourself”, in Mr. Farrell’s March 10, 2011 email to him, to be offensive, demeaning and degrading. In cross-examination, the applicant testified that it was implicit in Mr. Farrell’s email that he was not able to tell other parents that he was able to email his children’s teachers, and that, if he did, he would no longer be able to email the teachers. In an email to Mr. Farrell dated March 27, 2011, the applicant stated, in part, as follows:
My spouse and I are most appreciative of the offer you have made to allow us to communicate with teachers via email. However, after lengthy deliberation over the past two weeks we have decided we are unable to accept the offer.
That we could not let other parents know of the exception the school has made for us would prevent us from being fully honest with other parents. This, we concluded, would not be fair to fellow parents or to us.
Although our family situation is unique, we are also aware of many other parents for whom English is not the first language, as well as parents who have disabilities, and parents whose employment commitments (sometimes outside of Canada) prevent telephone conversation during school hours.
We hope our family’s circumstances might be considered in any future review of parent-teacher communication at the school.
68Mr. Farrell testified that he indicated in his March 10, 2011 email to the applicant that he “would appreciate it if [the applicant] would keep [it to himself]” because if somebody said to him that the applicant was allowed to email teachers and asked why they could not, he was not at liberty to disclose any information. He explained that he did not want either himself or the teachers to be put in that position, and testified that it was not a condition, but a request, and that he had no control over what the applicant chose to tell other parents. Mr. Farrell testified that if the applicant had told him that he considered it to be a condition, he would have told the applicant that it was fine if he wanted to tell other parents. He also testified that it was his understanding that the applicant turned down the offer because other parents were not allowed to email teachers and not because the applicant considered the offer to be conditional on not telling other parents.
69In an email dated June 17, 2011 to a TDSB Trustee that the applicant had emailed regarding email communication practices, Mr. Farrell advised the Trustee that he offered an exception for the applicant, but the applicant declined because he said it was not fair that he was going to allow him and not others.
Further communications between the applicant and the respondent
70In an email to the applicant, dated March 22, 2011, Ms. Messner’s Administrative Liaison states that she spoke with the Principal about the applicant’s concern and understood that the issue was resolved. She states that, in response to the applicant’s request, special permission was given to him to communicate with teachers by email, however, “this is not standard procedure as we encourage personal contact via telephone or parent conference.”
71In a letter dated April 27, 2011, from the applicant to the TDSB’s Director of Education, the applicant indicated that he was writing on behalf of a group of parents about the practice at his children’s school that prohibits parents from using email to communicate with teachers. The letter also stated, in part, as follows:
As parents we are concerned that phone and in-person communication is difficult, if not impossible, for a considerable number of parents. As I’m sure you appreciate, many parents have employment and other responsibilities that restrict their ability to communicate on the telephone or via in-person meetings during the times that teachers are available.
In some cases parents work outside the city or country making telephone and in-person communication entirely impractical. Other parents have disabilities (communication, mobility and related) that make telephone and in-person conference impossible. Lastly, many parents in Toronto do not have English as their first language and find it much easier to write an email which can be composed in an unhurried manner, rather than to have a telephone conversation.
As taxpayers we are concerned that only one group within the education system has the power to decide how teachers communicate with parents.
Given the importance of parent-teacher communication in supporting the success of students, we ask that you be so kind as to forward to me the existing TDSB policy regarding email communication between parents and teachers.
72On May 10, 2011, the applicant also provided Ms. Messner with the results of a survey he conducted with parents of kindergarten students at the school his children attend. The applicant indicates that he sent 21 emails to parents on a “quasi-random” basis and received 12 responses. He states that there was a unanimous view that email communication with teachers should be possible, and that parents indicated they wished to communicate by email for the following 3 reasons: 1) its convenience and widespread use; 2) being better able to support the learning process of a child; and, 3) problems with using telephone and in-person communication (language, time and disability).
73The applicant also testified that, in response to his April 27, 2011 letter to the Director of Education, he received a response from Ms. Messner. In a letter to the applicant dated May 30, 2011, Ms. Messner indicated that she was responding to the applicant’s letter to the Director of Education concerning the teacher practice at the school his children attend of not using email to communicate with parents. Ms. Messner’s letter stated, in part, as follows:
… I have consulted with [Mr. Farrell] and I requested that he meet with his teachers to once again present your concern about using e-mail to communicate between teachers and parents about their students. In their recent April staff meeting, teachers once again have chosen other means to communicate with the community besides e-mail. The teachers have stated they prefer communicating with parent by appointment, telephone conversations, through newsletters and personal notes or individual student journals.
As educators, teachers want to communicate with parents on a regular basis and make every effort to do so. They are required to have at least one parent teacher conference face to face per year, and to initiate other parent conferences if necessary plus to respond to parent requests as they arise. It is still left to the individual teachers or staff to use the communication vehicle of their choice as long as communication occurs in a reasonable time.
74Mr. Farrell testified and Ms. Messner confirmed that, at some point after the applicant turned down their offer, Ms. Messner suggested to Mr. Farrell that he may want to revisit with staff the issue of “emailing parents”. He testified that he did and they agreed to keep the same policy.
75Ms. Messner testified that Mr. Farrell advised her that teachers did not want to use email to communicate with parents because of their work load and because of having to be “in front” of the children on a constant basis, and that experienced teachers felt that responding to notes from parents was more timely and effective than email. Ms. Messner also testified that the respondent felt that teachers were meeting communication needs by continuing to use a variety of forms of communication.
76I note that, prior to sending the applicant a letter on May 30, 2011, Ms. Messner proposed to the applicant, by email dated May 27, 2011, that he give her a time to call him, or that he call her regarding his concerns about the use of email as a form of communication at the school. The applicant responded by email dated May 31, 2011, asking if June 2 would be a convenient time for a telephone conversation, and indicating that if Ms. Messner let him know a specific time, he would be pleased to call her. Ms. Messner testified that she never spoke to the applicant on the phone, although her Administrative Liaison did.
77When the applicant asked her in cross-examination, Ms. Messner also confirmed that she communicated to Mr. Farrell that the applicant was available to meet with him.
78In an email to Ms. Messner, dated June 5, 2011, regarding communication with parents at the school his children attend, the applicant stated that he decided to “resubmit” his request to the Principal. Ms. Messner responded on June 5, 2011, stating that the applicant’s note is somewhat confusing, as it was her understanding that he declined the offer to communicate with his children’s teachers by email. Ms. Messner confirmed that the offer still stands.
79In an email to Ms. Messner dated June 7, 2011, the applicant indicated that he regretted if there had been any misunderstanding. He asked that the “condition or request” that “we would appreciate it if you would keep this to yourself”, in Mr. Farrell’s March 10, 2011 email to him, be removed or modified.
80Ms. Messner testified that she did not understand the request in Mr. Farrell’s email to the applicant, that the applicant keep it to himself, to be a condition, and that it was not intended as a condition. She testified that it was unfortunate that the applicant understood it that way, and that the respondent always emphasizes that personal information is not to be divulged to anyone else in the school community. Ms. Messner also testified that, prior to June 7, 2011, the applicant had not raised that he felt the request in Mr. Farrell’s March 10, 2011 email to him was a “condition”.
81Mr. Farrell testified, and Ms. Messner confirmed, that he received a call from Ms. Messner, and told her that he had not intended his statement in his email to the applicant to be a condition, and that it could be removed.
82Ms. Messner responded to the applicant, by email on June 7, 2011, stating, “[c]onsider the section removed at your request”. Ms. Messner also stated in her email and testified that the comment was not meant to offend the applicant, but was meant to protect the individual attention given to his request.
The applicant’s use of email to communicate with his children’s teachers
83The applicant testified that during the 14-month period, between March 10, 2011 and June 2012, he sent a total of three emails to his children’s teachers, in regard to matters related to his children in the classroom. In a joint email to his children’s teachers dated Sunday, June 19, 2011, the applicant indicated that Wednesday, June 22, 2011 would be the last day his children attended school for the year as they were leaving on a vacation. In an email to Ms. Greiver dated October 6, 2011, the applicant asked if there were proofs for his son from “picture taking day” as his daughter had hers for several days. By email dated Friday, October 7, 2011, Ms. Greiver responded that she sent the proofs in that day’s “Friday File”.
84Ms. Lanning testified that she only received the one email from the applicant, referred to above, during the year, and that it could have been sent and responded to by note. Ms. Greiver also testified that the emails referred to above that she received from the applicant could have been conveyed to her and responded to with notes.
85The applicant agreed that his emails were not very long and did not require lengthy responses, but disagreed that the content could have been conveyed in a note. He queried whether a note would reach the teacher, explaining that it could take several days while he reminded his children to give the note to the teacher. He testified that sometimes email would be his preference, if he had to be sure the message got there on that day. He agreed, however, that his children do not go to school on their own, and arrive at school accompanied by an adult who could give a note to the teacher. He also testified that he sent a “whole bunch” of notes during the same 14-month time period that he sent only one joint email to his children’s teachers and one other email to Ms. Greiver.
86While Mr. Farrell agreed in cross-examination that sending notes would not work when the applicant’s children were not at school due to illness or being on vacation, he testified that the applicant could always email him or the Office Administrator.
87The applicant also acknowledged that when he sends an email to a teacher, the teacher does not receive it instantaneously. He also stated that it is the same thing with the telephone as, just because you pick up the telephone does not mean that you will speak to a teacher because the teacher is teaching.
The 2012/2013 school year
88The applicant testified that when his children started Grade 1, their teachers changed, the school’s principal changed, and the accommodation he was provided was no longer in place.
89Mr. Farrell testified that when he changed schools at the end of the 2011/2012 school year, he believed he spoke to the new Principal, Susan Wires, and told her there was a Tribunal case and a concern about emailing with parents. He let her know about staff’s feelings about email, and that the applicant had been emailing Ms. Lanning and Ms. Greiver, and that they were open to that.
90Ms. Wires testified that she met with Mr. Farrell in July 2012, and he indicated that he would be required to appear at the Tribunal with regard to the applicant, that the applicant has a stutter and did not want to use the telephone to communicate, and that there was an ongoing issue around emailing teachers. She testified that Mr. Farrell advised her that staff had agreed that they were not going to email parents. She did not recall Mr. Farrell advising her that the applicant’s children’s teachers in 2011/2012 had agreed to communicate with the applicant by email.
91Ms. Wires testified that, in December 2012, she became aware that there was an allegation that something the applicant had requested had been withdrawn, but that she was not aware that anything had been taken away. She testified that she sent the applicant a letter dated December 18, 2012 that stated, in part, as follows:
It has recently come to my attention that you have raised an accommodation issue with regards to how the school and your children’s teachers currently communicate with you. Please be assured that open communication is of the upmost importance to the teachers and to me.
Teachers will continue to send notes and updates in the ‘Friday File’. As an alternative to phone calls you may exchange notes with the teachers and you may also schedule in-person meetings with the teachers as required.
The letter also advised the applicant that Ms. Green can be contacted through email, and asked that the applicant email Ms. Wires and/or another particular individual with any urgent matters that need to be conveyed to the teachers. Ms. Wires also advised the applicant that, as always, he was welcome to email her with any concerns or updates regarding the progress of his children.
92Ms. Green testified that she supported the decision not to email the parent community, as she thinks that there are a lot of issues with email, in terms of responding in a reasonable time, and the tone of emails being misconstrued. She did, however, agree to communicate with the applicant by email.
93Ms. Green testified that she tries to check email once a day, but that with everyone trying to log on in the mornings, there can be a 10 or 12 minute delay that makes it difficult. She does not check email during the day when she is with students. Generally, she checks email after the school day is finished.
94Ms. Green testified that she regularly communicates with parents through monthly newsletters, “Friday Folders” with Friday newsletters, face-to-face at drop off times and notes. Ms. Green explained that when students come in they pass her anything that they have to give to her in the morning when she greets them. She also sends notes home in the Friday Folder, or home reading folder, or puts them in lunch boxes.
95Ms. Green also testified that she received notes signed by the applicant on two separate days in January 2013, indicating that his child was going home with another parent on those days. She also testified that those matters are sometimes communicated through the school office, instead of the teacher, and that parents can contact the school office by phone or email.
96Ms. Green testified that she also sent the applicant two separate notes thanking him for agreeing to volunteer in the classroom, and for doing so in February 2013. Although it was communicated to the applicant on December 18, 2012, that she was agreeable to communicating with him by email, as of March 19, 2013, Ms. Green and the applicant had not exchanged any emails. She testified that she thought the practice of notes going back and forth worked really well.
97In cross-examination, Ms. Green testified that she had about four telephone calls with parents in the previous approximately 4 months. She also testified that two of the calls were with the same parent, took time after the school day, and could have, in her opinion, happened more effectively in writing.
98Ms. Correia testified that she was informed in December 2012 that the applicant requested email access to teachers because he has a stutter and has difficulty using the phone. She testified that she thought that, in terms of communication, she used notes, face-to-face meetings, a Friday Folder, and monthly newsletters, and that those were effective means of communicating. She explained that she had a safety concern about using email because her computer is at the back of the classroom and if she were to compose an email she would not be able to supervise the children effectively, whereas she can write a note where she can still supervise effectively. She also testified that she saw the applicant when he dropped off and picked up his children, and that she had spoken to him at “progress report night” in November as well.
99Ms. Correia testified that she regularly communicates with parents of her Grade 1 students face-to-face when the students are dropped off and picked up by parents, and by notes that are sent. She explained that she has a bin in which children place notes from home in the morning, and she goes through the notes in the morning. She also testified that she is very busy as a teacher and not able to check email on a daily basis. She explained that she cannot always respond to email in a timely manner, whereas she is able to respond much more quickly with notes.
100Ms. Correia was referred to notes to her from the applicant dated November 7 and December 11, 2012, regarding his child, which she testified were read by her the same day. She was also referred to notes from three separate days in January 2013 that were signed by the applicant and indicated that his child would be picked up by another particular parent on those days. She testified that she typically requires this information in writing, and that the applicant’s signature on the notes was important.
101In cross-examination, Ms. Correia acknowledged that, at times, she communicates with parents by phone. She testified that she had communicated with parents by phone approximately 10 or 15 times in the previous seven or eight months, or two or three times per month. She also receives anywhere from two to seven emails per day, some of which require a response, and, at times, she is not able to respond in a timely manner. She sometimes responds to emails from her Principal by walking down the hall and speaking to her. She also testified that she does not regularly use the phone to communicate with parents, and that she was told the applicant had difficulty using the phone and she would not have contacted him by phone.
ANALYSIS AND DECISION
Relevant Code provisions
102Sections 1, 9, and 11 of the Code state as follows:
Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of… disability.
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
103In addition, “disability” is defined in s. 10(1) of the Code, in part, as follows:
“disability” means,
(a) 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, …
Does the applicant have a disability within the meaning of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)?
104In his Application, the applicant alleges that he has a disability that impacts on his ability to communicate.
105At the hearing, the applicant testified that he stutters, and that it is a disability that “comes and goes”. He explained that he is a professor, and that stuttering is a disability that takes different “shapes” at different times and in different situations. In particular, he explained that talking on a telephone is very difficult for him as there is no “eye-to-eye” contact, and that if he were to speak on the telephone, one may hang up on him thinking it is a “prank call”.
106In its Response, the respondent does not dispute that the applicant has a disability within the meaning of the Code. In addition, at the hearing, the respondent submitted that it did not question the applicant’s disability, and that it was not challenging that he stutters.
107“Disability” is defined, in part, in s. 10 of the Code as including a “speech impediment”. In the circumstances, I find that the applicant has a disability within the meaning of the Code.
Was the applicant subjected to discrimination on the basis of disability in the provision of services?
108At the hearing, the applicant submitted that this case is about discrimination based on disability. He submitted that Mr. Farrell’s March 9, 2011 offer that he could write notes to teachers, or email Mr. Farrell or the Officer Administrator, could not be considered accommodation because these communication means are available to all parents. He also submitted, however, that it is clear from the evidence that he has consistently used these forms of communication, especially notes.
109The applicant also testified that email would be a form of communication that would, to some extent, substitute for the telephone that other parents use. He stated that “people without a disability have notes or the phone”, whereas “people with a disability only have notes”.
110The respondent submitted that the applicant has not established a prima facie case of discrimination, as there is no evidence that the school’s practice of not using email for direct parent-teacher communication resulted in any adverse impact on the applicant. The respondent submitted that the applicant did not have any difficulty using any of the other forms of communication available, other than the telephone; notes were the best alternative to the telephone, which is not a regular means of parent-teacher communication in any event; in-person meetings are a primary means of sharing information regarding education; and, the applicant could also email the Principal or the Office Administrator.
111The respondent also submitted that it is not sufficient for the applicant to simply assert that parents without a disability have access to the phone as another means of communication. The respondent submitted that the issue is not merely the number of communication options available to the applicant, but the quality of the forms of communication available, and whether there is any adverse impact on the applicant relative to other parents because of disability. The respondent referred to the Tribunal’s decision in Contini v. Rainbow District School Board, 2012 HRTO 295, wherein the applicant alleged that she was subjected to discrimination because she was not able to take her children to school because of a disability affecting her mobility, and the respondent would not bus her children because of their age and the proximity of their home to the school. In that case, the Tribunal concluded that the applicant was not able to show that she was adversely impacted by the respondent’s bussing policy, as, although the applicant preferred that her children be bussed, there were other options available, including a “walking school bus” in which children walk to school with a group of other students, supervised by a parent.
112The respondent submitted that, while the applicant may prefer email, there is no evidence of a particular need to use email to communicate with his children’s teachers directly. I also understand the respondent’s position to be that, although some of the applicant’s children’s teachers agreed to communicate directly with the applicant by email, they were not required to do so under the Code, as the applicant’s disability-related needs were already being met by the other forms of communication available.
Has the applicant established a prima facie case of discrimination on the basis of disability?
113As the Tribunal explained in Baber v. York Region District School Board, 2011 HRTO 213 at para. 88, the duty to accommodate is not a free-standing obligation under the Code. The Tribunal in Baber provided the following comments with respect to the duty to accommodate in cases alleging discrimination in employment, at paras. 91 to 93:
As is always the case under the Code, the applicant bears the initial onus of establishing a prima facie case of discrimination. Only at that point does the inquiry shift to whether the respondent employer fulfilled its duty to accommodate the applicant to the point of undue hardship: Ontario Human Rights Commission v. Simpsons-Sears Limited, 1985 CanLII 18 (S.C.C.), [1985] 2 S.C.R. 536 at para. 28.
In this case, if the duty to accommodate does arise, it must arise under s. 11 of the Code. It does not arise under s. 17 of the Code because the respondent does not assert that the applicant was incapable of performing the essential duties of her job and/or seek to avail itself of the defence in s. 17(1) of the Code.
In order to trigger the duty to accommodate under s. 11 of the Code, the applicant would have to show that a neutral “requirement, qualification or factor” – such as the requirement that she undergo a TPA or perform her regular teaching assignment – had an adverse effect on because of her disabilities. If the applicant thus made out a prima facie case of adverse effect discrimination, the onus would shift to the respondent to show that its requirement(s) were reasonable and bona fide, including, but not limited to, by showing that the applicant’s disability-related needs could not be accommodated without undue hardship (s. 11(1)(a) and s. 11(2)). (See also British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (S.C.C.), [1999] 3 S.C.R. 3 (“Meiorin”), at para. 54).
114In addition, as the Tribunal explained in Harrington v. Hamilton (City), 2010 HRTO 2395, the Code is concerned with substantive discrimination:
As stated in C.M. v. York Region District School Board, 2010 HRTO 1494 at para. 4, the Code does not aim to eliminate all differences in treatment, but rather discrimination, in the form of disadvantage, prejudice and stereotyping, on the grounds set out in the Code: see generally Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143 at p. 174; R. v. Kapp, 2008 SCC 41; Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at paras. 80-84. Not all actions that may have an impact on people identified by a ground constitute substantive discrimination.
115While I have found that the applicant in the present case has a disability within the meaning of the Code, for the following reasons, I do not find that the applicant has established that the respondent’s policies and practices concerning parent communication with teachers have resulted in discrimination against the applicant on the basis of his disability, as I do not find that the applicant has established that he has been adversely affected as a result of the respondent’s communication policies and practices. In my view, the applicant has not established that the forms of communication available to him are insufficient such that having difficulty with or not being able to phone adversely impacts his ability to communicate with his children’s teachers in a timely and effective way.
116It appears undisputed that there are a variety of means by which parents can communicate with their children’s teachers, and that the applicant was aware of these various means at his children’s school. In particular, students can deliver notes back and forth between parents and teachers. For students in kindergarten to Grade 1, there is also a Friday File that is sent home and returned. Parents can also email the Principal or Office Administrator, and messages can be relayed to teachers. Parents can also meet with teachers in-person, including face-to-face meetings when picking up or dropping off their children, pass notes to teachers when picking up or dropping off their children, and have telephone conversations with teachers.
117Mr. Farrell and the teachers who testified expressed concerns about teachers being able to respond to email communications in a timely manner, and, in particular, on the same day. Ms. Lanning, Ms. Greiver and Ms. Correia all gave evidence that they preferred notes as a form of communication, and felt that they were better able to read and respond to notes in a timely way, as compared to email. Ms. Green gave evidence that she regularly uses notes as a form of communication, and thought that notes work really well.
118Ms. Lanning testified that it is difficult to speak to parents on the phone during the day. It also appears from the evidence of the teachers that testified that they do not speak to parents on the phone very often. Ms. Greiver also testified that face-to-face meetings are preferable to email or telephone conversations, where there is something of great concern to be discussed. Ms. Green testified that she had about four telephone calls with parents in an approximately four-month period, and that two of the calls took time after school, and could have, in her opinion, been dealt with more effectively in writing.
119The applicant also acknowledged that when he sends an email to a teacher, the teacher does not receive it instantaneously. He also stated that it is the same thing with the telephone as, just because you pick up the telephone does not mean that you will speak to a teacher because the teacher is teaching. As such, it appears from the evidence that both telephone and email communication with teachers may not result in a timely response.
120In terms of the applicant’s actual use of email with the teachers that agreed to communicate with him by email, it appears that the applicant sent a joint email to Ms. Lanning and Ms. Greiver on June 19, 2011. He also sent an email to Ms. Greiver on October 6, 2011, to which she responded on October 7, 2011.
121Both Ms. Lanning and Ms. Greiver testified that the emails they received from the applicant could have been sent and responded to with notes. While the applicant disagreed at the hearing that the content of these emails could have been conveyed in a note, it is not clear why. He queried whether a note would reach the teacher, explaining that it could take several days while he reminded his children to give the note to the teacher. The applicant, however, did not refer to any actual instances where either of his children did not deliver a time-sensitive note to a teacher within time. He also agreed that his children do not go to school on their own, and arrive at school accompanied by an adult who could give a note to the teacher. He also testified that he sent a “whole bunch” of notes during the same time period that he sent the above emails to Ms. Lanning and Ms. Greiver.
122It also appears that a teacher substituting for Ms. Green sent the applicant an email on November 12, 2012 about scheduling an interview on November 14, 2012. It appears that the applicant responded to her on November 12, 2014, and the teacher replied on November 13, 2012. There does not appear to be any evidence that the applicant ever sent any other emails to any of his children’s teachers other than the emails mentioned above.
123With respect to opportunities for face-to-face meetings, Mr. Farrell testified that he saw the applicant fairly regularly in the mornings, and that that he had met with the applicant before and understood that he was comfortable with in-person meetings. Ms. Correia also testified that she saw the applicant when he dropped off and picked up his children.
124The applicant also testified that, if there was an emergency, he would drive to the school, make a phone call if he could, or email the principal. Also, if a face-to-face meeting was needed, that is what he would arrange. The applicant did not provide any evidence, nor did he make any submissions that he had any difficulties meeting with his children’s teachers in person.
125The applicant seeks to be able to email his children’s teachers directly on the basis that telephone conversations are difficult or stressful, and, at times, nearly impossible for him. However, in terms of being able to have a conversation with his children’s teachers, there is no indication that he cannot arrange to meet with them, or speak to them during pick-up or drop-off times. It also appears, based on the evidence, that teachers are often not able to respond to email in a timely way, and that email may not be a good substitute for conversations that take place in-person or on the telephone.
126With respect to written communication, it appears from the evidence that the applicant makes frequent use of notes, and that he can also email the principal and office administrator if anything is urgent, and have them relay messages to teachers. The applicant also appears to have made very infrequent use of email with the teachers who agreed to communicate with him directly by email.
127In all of the circumstances of this particular case, I am not satisfied that the applicant has established, on a balance of probabilities, that he was disadvantaged on the basis of disability by the respondent’s communication policies and practices, including the respondent’s practices with respect to email communication with teachers. In my view, the applicant has not established a prima facie case of discrimination under the Code.
128Put another way, while the applicant may prefer to be able to email his children’s teachers directly, it appears based on all the evidence that the respondent’s communication policies and practices met the applicant’s disability-related needs, and it is a well-established principle that the Code requires the accommodation of Code-related needs, and not preferences. See Yeats v. Commissionaires Great Lakes, 2010 HRTO 906 at para. 54, and Jeffrey v. Dofasco Inc., 2004 HRTO 5, aff’d Ontario (Human Rights Comm.) v. Dofasco Inc. (No. 2), 2007 CanLII 41275 (Ont. Div. Ct.).
Mr. Farrell’s March 10, 2011 email to the applicant
129I note that the applicant also argues that when Mr. Farrell accommodated him by indicating that he could email his children’s teachers, he included two “conditions” in his March 10, 2011 email that violated the Code: his request that the applicant keep it to himself, and his indication that the respondent would reassess the process after a month or so.
130I have found that the applicant has not established a prima facie case of discrimination within the meaning of the Code. In my view, in the particular circumstances of this case, the respondent was not required to permit the applicant to email his children’s teachers directly to accommodate the applicant within the meaning of the Code, and it is not necessary for me to consider the issue of accommodation short of undue hardship. I have, however, considered whether or not the content of Mr. Farrell’s March 10, 2011 email to the applicant otherwise violated the Code in any way on the basis of disability.
131At the hearing, the applicant submitted that the “condition” that he keep it to himself was offensive and demeaning, and implied that accommodation must be kept secret. The respondent, on the other hand, submitted that there was no such “condition” and that Mr. Farrell was interested in protecting the applicant’s privacy. The respondent referred to the Ontario Human Rights Commission’s “Policy and guidelines on disability and the duty to accommodate”, which states, at page 18-19, in the context of duties and responsibilities in the accommodation process in employment, that an employer is required to “maintain confidentiality”.
132The applicant testified that it was implicit in Mr. Farrell’s email that he was not able to tell other parents that he was able to email his children’s teachers, and that, if he did, he would no longer be able to email the teachers. Both Mr. Farrell and Ms. Messner testified that the request that the applicant keep it to himself was not intended as a condition, and that it was essentially a request that was made based on privacy concerns. As Mr. Farrell explained, he did not want either the teachers or himself to be put in the position of being asked by others why the applicant was able to directly email teachers and they were not. I also note that when the applicant asked Ms. Messner on June 7, 2011 that the “condition or request” be removed or modified, she promptly responded on the same day, advising the applicant to consider “the section” removed.
133While it appears to me that the parties may have interpreted the tone of Mr. Farrell’s March 10, 2011 email differently, I prefer the evidence of Mr. Farrell and Ms. Messner that the request that the applicant keep it to himself was just that, a request as opposed to a condition. I also have some difficulty with the applicant’s evidence that it was implicit that, if he told other parents, he would no longer be able to email his children’s teachers. I also note that the applicant referred to the request as a “condition or request” in his email to Ms. Messner dated June 7, 2011. In any event, in all of the circumstances, I do not find that the applicant has established that Mr. Farrell simply requesting in his March 10, 2011 email to him, that he keep it to himself, amounts to discrimination on the basis of disability in services within the meaning of the Code.
134The applicant also asserts that Mr. Farrell’s indication in his March 10, 2011 email to him, that the respondent would reassess the process of the applicant emailing teachers after a month or so, was also discriminatory. As I understand the applicant’s argument, he submits that this “condition” made his email communication with teachers subject to arbitrariness, as it could be withdrawn at any time. On the other hand, the applicant acknowledged in his evidence that he recognizes the importance of assessing. In all of the circumstances, I also do not find that the applicant has established that Mr. Farrell simply indicating in his March 10, 2011 email, that the process would be reassessed after a month or so, amounts to discrimination on the basis of disability in services within the meaning of the Code.
135In all of the circumstances, the Application is dismissed.
Dated at Toronto, this 11th day of February, 2014.
"Signed by"
Brian Eyolfson
Vice-chair