HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
L.B., as represented by his Litigation Guardian S.B.
Applicant
-and-
Toronto District School Board
Respondent
DECISION
Adjudicator: Eva Nichols
Indexed as: L.B. v. Toronto District School Board
APPEARANCES
L.B., as represented by his Litigation Guardian S.B., Applicant
David Baker and Emily Shepard, Counsel
Toronto District School Board, Respondent
Brenda J. Bowlby and Laurie Reesor, Counsel
OVERVIEW
1This is an Application 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 services because of disability.
2A hearing in this matter took place in Toronto on January 14, 15, February 24, March 13, and April 20, 21, 22, 24 and 28, 2015. Written submissions were received from the parties on May 27, June 30, and July 17, 20 and 21, 2015.
3The applicant is now a 17 year old boy who has been diagnosed with multiple disabilities which include learning disabilities, attention deficit hyperactivity disorder (ADHD) and mental health disabilities which primarily manifest themselves as anxiety and depression.
4Currently, the applicant attends a private boarding school in Toronto, which provides small classes and has a particular focus on elite sports, including but not limited to, hockey and lacrosse. In September 2015, he started Grade 12 and expects to graduate in December 2016 ready for post-secondary education.
5During the period the Application focuses upon, the applicant was a resident pupil in Grade 9 in one of the large collegiate institutes, operated by the respondent Toronto District School Board (“TDSB”). At that time, he was 14 years old.
6The applicant alleges that discrimination resulted from the failure of the TDSB to accommodate his disability-related needs to the point of undue hardship. His Litigation Guardian, who is his mother, had no option but, as a result of the lack of such appropriate and needed accommodations, to remove him from the collegiate and enroll him at the private boarding school that he currently attends.
7The Application primarily focussed upon the provision and/or funding of a residential placement and/or the regular involvement of someone, such as a school staff member or mentor, to motivate him to attend school on a regular basis. He claims that the current private school placement accommodates his needs by providing a residential school placement which is his primary requirement and allowing him to overcome his anxiety by allowing him to focus on a key motivator, namely hockey.
8The applicant seeks a series of remedies. These include:
Compensation for injury to dignity, feelings and self-respect in the amount of $50,000;
Compensation in the amount of $144,559.42 for tuition and other costs, including residence, already paid since April 2013 and payable until December 2016 to the private school that he currently attends;
reimbursement for the 2011 psycho-educational assessment paid for by the parent, in the amount of $3,000;
Compensation in the amount of $500 representing the cost of the applicant’s tablet that his mother purchased;
pre- and post-judgement interest; and
a series of public interest and systemic remedies related to the provision of services, supports and accommodations to students with mental health needs by the respondent school board.
9The respondent denies all allegations of discrimination and states that the applicant was accommodated appropriately within the school board’s mandate under the Code and the Education Act, R.S.O. 1990, c.E.2, as amended.
10The respondent claims that the key accommodations sought by the applicant call for services that are outside the legislated mandate of a school board in Ontario.
11Further, the respondent argues that, in the alternative, if the applicant’s primary focus is on his mental health needs which actually prevented him from getting to school, he perhaps should have been deemed to be unable to attend school, which, in accordance with Section 17 of the Code, relieves the respondent from having to accommodate him to the point of undue hardship.
12A further alternative offered by the respondent is that it was unable to accommodate the applicant to the point of undue hardship, due to the applicant’s mother’s actions, which frustrated the respondent’s accommodation efforts.
13In any case, the respondent asks that the Application be dismissed.
14I heard from many witnesses throughout this lengthy hearing. I will only refer in this decision to the evidence and legal arguments that in my opinion are necessary to decide the issues in this case.
15I agree with the respondent that the establishment, or funding for, a residential school with or even without a focus on hockey or other sports is not within its legislated mandate and is not a “service” for the purposes of the Code, to be provided by school boards under the Education Act. The legislative grounds for this finding, i.e., a school board’s obligations under the Education Act, and the description of the service provided by school boards are set out in paragraphs 97 to 105 of this decision.
16Similarly, section 264(1) of the Education Act, in describing the duties of teachers, does not call for teachers to go to the homes of pupils to motivate them to attend school. All duties of teachers described in this section are related to tasks performed under the direction of a principal and in accordance with the Education Act. Their primary role is to teach classes or subjects assigned to them by the principal within the school to which they have been assigned. Attending a student’s home and motivating the student to attend school is again not a “service” that the Education Act mandates teachers to provide.
17Nevertheless, as discussed below, and in defining the services that school boards are obligated to provide to their resident pupils, I find that the respondent did not, in fact, accommodate the applicant to the point of undue hardship, in accordance with the Code and its obligations under the Education Act. In particular, I find that the respondent failed to provide services and supports to the applicant that were or should have been reasonably available, such as attendance counselling, the support of a social worker as well as in-school special education programming supports that were included in the applicant’s Individual Education Plan (“the Grade 9 IEP”) and which could have assisted in meeting the applicant’s identified disability-related needs. While the primary focus of this Application was on the matter of the residential school placement and the involvement of teachers to motivate L.B, to attend school, the applicant’s mother discussed her son’s appropriate and needed accommodation needs regarding these services both with the personnel of the collegiate and in the evidence provided at the hearing. Both parties to the Application were aware that these issues with respect to accommodation to the point of undue hardship were also being considered by the Tribunal and their written post-hearing submissions reflected this including the respondent’s position that it accommodated L.B. in all respects to the point of undue hardship.
18As such, I accept that during the period of September 2012 to April 2013, during the period when the applicant was enrolled at the collegiate, the respondent breached the Code by not accommodating the applicant to the point of undue hardship.
19The issues that I need to address in this decision are the following:
a. Is L.B. a student with a disability as defined by the Code?
b. Did the applicant establish a prima facie case of discrimination?
c. In response to the allegation of discrimination, did the respondent school board provide a non-discriminatory explanation for its actions?
d. If I find that discrimination did take place, what is the appropriate remedy?
BACKGROUND INFORMATION
The nature of the applicant’s disability
20In 2006, the applicant’s mother, S.B., on the basis of her concerns about the applicant’s difficulties, including but not limited to anxiety about attending school and the accompanying behaviours that she observed, arranged for the applicant to be assessed by Dr. Michael Allan, a psychologist now in private practice who was formerly a school board psychologist.
21Dr. Allan was accepted as an expert witness, in the area of educational psychology and for the purposes of giving opinion evidence about his assessments of the applicant’s disabilities and related needs.
22Dr. Allan first assessed the applicant, L.B., when he was in Grade 2. He reported on February 24, 2006, that L.B. has a specific learning disability in the area of phonemic knowledge, which has affected his reading skills. He was also identified as having weak grapho-motor skills, which slow down his written language production. Dr. Allan also diagnosed the applicant with a Generalized Anxiety Disorder, Social Anxiety Disorder and Oppositional Defiant Disorder. At the time of this testing, L.B. did not formally meet the criteria for ADHD.
23In October 2011, when L.B. was in Grade 8, his mother arranged for a follow up assessment with Dr. Allan. Both his mother and his Grade 8 teachers completed a series of questionnaires, as requested by Dr. Allan. On the basis of the assessment data and the feedback received from his teachers and his mother, Dr. Allan confirmed that L.B. now met the criteria for an ADHD diagnosis, predominantly the inattentive type. He continued to demonstrate the presence of specific learning disability in the areas of working memory and processing speed. He also was diagnosed again with a Generalized Anxiety Disorder, which, in combination with the ADHD, resulted in significant coping challenges and difficulties both at school and at home. The diagnostic information did not specify that L.B. had school phobia.
24Both assessments were provided in full to the school, on the basis of which, as described below, the applicant was identified as an exceptional student by the school board’s Identification Placement Review Committee (“IPRC”). The initial IPRC and the following annual reviews relied on and cited as a reference Dr. Allan’s assessments, which were included in L.B.’s Ontario Student Record (“OSR”). The applicant was never assessed by a psychologist who worked for the TDSB.
25Dr. Allan included a series of recommendations for implementation at home and at school and a statement that he would be pleased to discuss the results with the applicant’s mother, his teachers or any other relevant professionals.
26During the period following the second assessment and since that time, Dr. Allan has provided therapeutic counselling to L.B. on a regular basis and was in regular contact with the applicant and his mother.
Elementary schooling prior to the grade 9 year that is the focus of the Application
27From Grade 2 to Grade 8, L.B. attended the local elementary school closest to his home, where he lived with his mother. Prior to that, in Grade 1 he was enrolled in French Immersion at a different elementary school. In Grade 2, he moved to the English stream in the school where he continued until Grade 8.
28On the basis of Dr. Allan’s first assessment, L.B. initially had an Individual Education Plan (IEP) without being identified as an exceptional student by the IPRC. His placement at this time was regular class with indirect support. This placement changed to regular class with resource assistance during the early part of his Grade 4 year.
29During the Grade 4 year, a referral was made, on parental request, for social work support. The social worker did not meet with L.B., but recommended to the applicant’s mother to contact a developmental pediatrician. S.B. testified that she followed up on this recommendation and thereafter, L.B. was seen by many medical and mental health professionals at numerous locations.
30In April, 2008, near the end of L.B.’s Grade 4 year, he was identified as an exceptional student by the IPRC, with “multiple exceptionality”, consisting of behaviour and communication - learning disability. The school board relied upon the assessment carried out by Dr. Allan, as provided to it by S.B. Although the assessment did not identify L.B. as having ADHD at this stage, this identification was also included in the IPRC determination. Although the IPRC statement did not explicitly specify the rationale for the behaviour exceptionality, this was likely based in the “excessive fears and anxieties” descriptor within this exceptionality in the Ministry of Education’s descriptors of the various exceptionalities.
31In Grade 5, L.B.’s IEP recorded that his placement had been changed to regular class with withdrawal assistance. His areas of need, as reported in his IEP, again reflected the assessment carried out by Dr. Allan. This placement continued through his Grade 6 and 7 years and changed to regular class with resource assistance during his Grade 8 year.
32Although L.B. had an IEP each year of his elementary education, his report cards did not record that he had an IEP until the Grade 8 year.
33In January 2010, during L.B.’s Grade 6 year, the school support team made a referral for L.B. to meet with the school’s social worker. During the following months, the social worker met with the applicant six to eight times for counselling and support.
34In June 2012, the IPRC changed L.B.’s identification to communication exceptionality – learning disability. This change, the elimination of the behaviour exceptionality, was proposed by the elementary school’s special education teacher and was not opposed by the applicant’s mother.
35During his Grade 8 year, attendance became a growing problem for L.B. His year-end report card noted that he had been absent over 35 days. The school responded to this evolving problem, as requested by S.B., by making another referral to the social worker assigned to the school, who was also the attendance counsellor. This dual role for staff is quite usual in the elementary panel of a school board. The attendance counsellor met with both the applicant and his mother and visited the applicant’s home a couple of times.
36In addition, one of the teachers, on his own volition, agreed to go to the applicant’s home first thing in the morning several times over a short-term period, to encourage the applicant to get up and get to school. This proved to be successful and resulted in the applicant returning to school and attending somewhat more regularly.
37L.B.’s home-room teacher also contacted Dr. Allan to discuss the most appropriate approach to reduce L.B.’s anxieties and improve his attendance.
38Several staff members of the elementary school gave evidence. While some of this evidence contradicted the evidence provided by the applicant’s mother, since the alleged breach of the Code does not relate to the time that the applicant spent at the elementary school, I see no need to review in detail the evidence provided by the staff of the elementary school.
39None of this evidence from the elementary school teachers contradicted the assessment data identifying L.B. as a student with a disability. The information contained in his report cards and the evidence of the witnesses confirmed the fact that L.B. struggled with anxiety while in elementary school, which, during his Grade 8 year, resulted in significant periods of non-attendance at school.
40While some of the witnesses suggested that the anxiety, absences and observed behaviours reflected L.B.’s apparent / assumed relationship difficulties with his mother as well as his identified disabilities, none of the witnesses suggested that the behaviours were not observable or that the absences did not happen.
41Because it is generally recognized that exceptional students typically find transition from the elementary panel to the secondary panel quite challenging, the Ministry of Education sets out specific steps to facilitate the transition process. These are contained in the Ministry of Education’s Transition Documents and the TDSB’s transition directions, entered into evidence. The evidence given showed that the elementary school complied with these recommendations. L.B. had an updated IEP, dated June 2012; containing specific recommendations for transition to secondary school as well as for accommodations for once he was in a secondary program.
Transfer to the collegiate in the fall of 2012
42In spite of the respondent’s Optional Attendance Policy, which restricts a parent’s ability to arbitrarily choose the school they wish their child to attend, L.B. was registered at a different secondary school from the one that he was expected to attend. His mother relied on the postal address of the applicant’s estranged father to enroll him in the selected collegiate. She explained that she chose to do this because at one point she thought that L.B. might live some of the time with his father and further, that several of L.B.’s friends from the hockey team that he played on and students who had been in French Immersion at his elementary school also attended this collegiate. She believed that this would help with the attendance problems that were so evident during his Grade 8 year.
43In early September 2012, it became evident to the staff of the collegiate that L.B. was registered at their school on the basis of apparently false information. This resulted in an immediate discord between S.B. and the school’s administration. However, after due consideration and following discussions with S.B. and among the school’s administrators, it was agreed, on compassionate grounds, that L.B. should not be immediately transferred to the other secondary school, although that step was taken for another student in similar circumstances. It was stated that at the start of the following school year, i.e., at the beginning of Grade 10, L.B. would be expected to attend the other designated secondary school.
44On September 13, 2012, S.B. had a meeting with the Vice-principal and the Head of Guidance for the collegiate. The purpose of this meeting, requested by S.B., was to discuss her concerns about the provision of supports for L.B. and putting into place some transition strategies that would prevent the development of the problems, including but not limited to attendance issues, that were evident during the applicant’s Grade 8 year.
45At that stage, just over one week into the school year, L.B. had already missed three days of school. S.B. stated that this had been due to depression and anxiety. She also referred to L.B.’s identification by the IPRC as an exceptional student with ADHD, specific learning disability and Generalized Anxiety Disorder.
46At this meeting, a number of potential accommodations were discussed. The Vice-principal explained that some of these, such as asking a teacher to go the applicant’s house to ensure that he attends school, were simply not possible to implement. Others, such as a reduced workload, required a medical certificate, which the applicant would have to provide.
47The Vice-principal agreed to explore some other potential supports, such as peer mentoring, peer tutoring and providing L.B. with some sports leadership-related opportunities that might motivate him to engage with the secondary school experience.
48The Vice-principal also agreed that she would communicate with the applicant’s teachers about these matters. There is no evidence that there was any immediate follow up with L.B.’s teachers from the Vice-principal, i.e., that she followed up on her commitment in this regard.
49At the same time, S.B. sent a note to the applicant’s teachers to alert them to the challenges faced by L.B. and to ask them to keep her aware of any emerging issues.
50S.B. also specifically asked for an early referral for the involvement of a social worker and/or attendance counsellor, both as an accommodation and as a preventative step to avert the redevelopment of attendance problems.
51During his Grade 9 year at the collegiate, L.B. continued to be identified as an exceptional student on the basis of the June 2012 IPRC determination. His placement was regular class with withdrawal assistance, which in this case meant the opportunity to attend a GLE class on a regular basis. This is a credit-bearing learning strategies program provided to students who have an IEP, but who are not necessarily identified as exceptional by an IPRC. Based on the evidence of the special education teacher who has responsibility for the GLE class, the applicant did not attend the GLE class on a regular basis.
52The Grade 9 IEP, prepared in October 2012, stated that L.B. was to receive 150 minutes of special education support with other students from the special education teacher and 150 minutes with other students from an educational assistant. These were to be provided in the GLE resource room. It was not clarified whether this was to be a total of 150 minutes per week or 300 minutes per week. There was no evidence that an educational assistant had been involved with L.B. at any time during the Grade 9 year.
53L.B.’s Grade 9 IEP reflected some, but not all, of the recommendations contained in the exit IEP prepared at the elementary school. The special education teacher responsible for preparing the Grade 9 IEP stated that secondary school IEPs are different from those prepared for and utilized at the elementary level and do not typically contain any specific socio-emotional components. This statement is not supported by the Ministry of Education’s IEP Resource Document.
54L.B.’s Grade 9 IEP also contained no reference to any previous or current attendance issues or any specific transition plans or needs.
55Based on the evidence provided, none of the staff involved with L.B. at this time, including the Vice-principal, the special education teacher and the guidance counsellor had read Dr. Allan’s assessment or made contact with him to discuss L.B.’s educational or accommodation needs. They stated that they were not aware of Dr. Allan’s involvement with or his past assessments of the applicant, although both L.B.’s OSR and his IEP from the elementary school referenced these assessments.
56On October 17, 2012, L.B. was given an application form for requesting a peer tutor. Although he was assigned a peer tutor, this did not prove successful and the accommodation was discontinued very quickly. This apparently was due, in part, to the fact that there were institutional issues at the school board resulting from a work to rule by the teachers union.
57At some point during the first term of Grade 9, the Vice-principal initiated the referral process for L.B. for TDSB support services. The first version of this referral document, dated November 22, 2012, and entered into evidence, did not specify which support services were required or which TDSB support services were currently or previously provided to the applicant. It did not include a reference to the involvement of social work, attendance and special education service providers during L.B.’s elementary school years. It also did not have a date specified for when the referral was to be discussed with the parent. Such a discussion with the parent is mandatory before the referral can proceed. There was no evidence that this document was discussed with S.B. at this stage or forwarded to the central office for processing.
58The second revised version of the document admitted into evidence indicated that the referral was for social work services, not attendance, and that the referral was discussed with the applicant’s parent on January 15, 2013, almost two months later. It also stated that the applicant previously had TDSB psychology services involved, which was not correct.
59Due to some organizational issues at the school and at the relevant regional office of the TDSB and the illness of the school’s regular social worker, L.B. was not in fact seen by a TDSB social worker, attendance counsellor or psychologist during his Grade 9 year. The school’s guidance counsellor reported that, although she was aware of the applicant, she had very limited direct involvement with him.
60L.B.’s attendance problems increased during the winter months. He effectively stopped attending school. S.B. requested that his teachers provide him with work that he could do at home during his periods of absence. In spite of the contradictory evidence received from both parties’ witnesses regarding the frequency, regularity and quantity of homework provided, I accept that he was provided with some work, which he completed with his mother’s assistance. While this approach is not “home instruction” as determined by school board policy, it did ensure that L.B. had access to some education.
61There was no record or evidence of any formal discussions among school staff or with S.B. that he might benefit from formal home instruction, as an adjunct to this process of sending him work via his mother. Based on the evidence, there was also no suggestion that one of the TDSB’s child and youth care workers or child and youth care counsellors could become involved in assisting L.B. with his challenges.
62On February 6, 2013, S.B. met with the school guidance counsellor and special education teacher, who had direct responsibility for the services provided to L.B. During this meeting, the matter of assisting L.B. to overcome his severe anxiety was discussed. According to all three participants and the notes provided, the discussion at the meeting included a wide range of topics, including the matter of missed school work and L.B.’s completion of the required number of community service hours. S.B. also spoke of some other potential options that she had been reviewing with the professionals whom L.B. saw on a regular basis, including referral to a hospital-based therapeutic program, attending school elsewhere within the TDSB or another school board, and even the option of a boarding school. She informed the two teachers present that she had been exploring the possibility of sending L.B. to a private boarding school in Ottawa that focused on hockey. She asked if the school could complete a recommendation form for L.B.’s admission to this school.
63On February 12, 2013, the collegiate’s guidance counsellor completed the requisite form, “highly recommending” L.B. for admission to this private school. The form describes the applicant as pleasant, mature and conscientious. While it does refer to his “several absences”, it also states that he makes every attempt to catch up and complete missed work. The guidance counsellor clarified in evidence that she completed this form as requested, because it was not her job to stand in the way of a parent’s wish to send her child to another school.
64The guidance counsellor confirmed that she did not suggest any alternative placements or programming to facilitate L.B.’s attendance and success during the remainder of the Grade 9 year. She stated that she was not asked for such recommendations and she did not see this, i.e. suggesting any such alternatives, as her job.
65On March 8, 2013, the In School Support Team (“ISST”) finally met to consider the applicant’s situation. Neither L.B. nor S.B. attended this meeting. The ISST is typically a first step in the provision of support services to students. However, this ISST meeting took place at an unusual time during the school year and L.B. was already an identified exceptional student who had had an IEP for many years and who had previously received social work and attendance services from the TDSB.
66The notes from this meeting indicate that it was reported that L.B. has specific learning disability, deals with anxiety and oppositional defiance disorder, had been assessed by a private psychologist and was receiving on-going support from a number of professional sources including (but not limited to) the Hospital for Sick Children and the Dellcrest Centre. There are references to his very poor attendance and to the fact that “his mother has tried everything.” The notes do not indicate that the matter of a potential residential school placement was raised with staff by S.B.
67It was decided that, after the March break, the guidance counsellor would contact S.B. L.B.’s situation would be revisited at the next ISST meeting in April, with a potential referral to the School Support Team (“SST”) after that.
68Following the March break, prior to being notified that L.B. was going to attend a private boarding school and not return to the collegiate, it was decided by the school’s administration that instead of awaiting another ISST meeting, L.B. could be referred to the SST. This could have likely expedited his referral for social work support.
69At the same time, for the first time during the school year, apparently on the basis of a written note from S.B., the school decided to contact Dr. Allan to discuss the applicant’s situation. However, before this contact was actually made, S.B. notified the school that L.B. had been enrolled in a private boarding school effective immediately. Therefore, the contact with Dr. Allan was deemed unnecessary and did not happen.
70L.B. did not return to the collegiate after March break. Since that time, he has ceased to be a resident pupil of the TDSB.
Transfer to a private boarding school with an elite sports program
71Starting on April 2, 2013, L.B. transferred to a private boarding school. Judging from his report cards, which are in the standard Ontario Report Card format, he is apparently doing well. He continues to receive counselling and treatment, as needed, from various professionals. His involvement in sports apparently continues to act as a motivator for attendance. But, this school is not a special education school established to provide learning disability and other disability focussed programming to students with similar disabilities to those of L.B. Also, based on the evidence, his attendance issues were not fully resolved.
72The principal of the school described the educational accommodations that have particularly benefitted L.B. in this placement, although he confirmed that his school is not a special education institution. These included: small class sizes, no larger than 15 and often as low as 8 to 9; as well as access to 1:1 resource assistance and tutoring from his teachers.
73The principal stressed the benefits of the non-educational components, such as: the residential setting, which reduces the need for “getting to school” on a daily basis; the access to elite sports as a motivator; and the company of other boys who have similar interests.
Preliminary issues relevant to the decision
Ruling re: limitations on the evidence
74In Interim Decision, 2015 HRTO 132, dated January 28, 2015, I issued the following orders, which, I found to be relevant to deciding the merits of this Application.
75I ordered that the applicant need not call evidence, nor is the respondent entitled to call evidence, on the following two matters:
a) That the applicant’s mother, S.B., was not pursuing appropriate medical treatment for the applicant, L.B., thereby relieving the TDSB of its duty to accommodate L.B.; and
b) That L.B. should have been in a residential psychiatric treatment program, thereby relieving the TDSB of its duty to accommodate L.B.
76I declined to make a third requested order that the applicant need not call evidence nor is the respondent entitled to call evidence on the third part of the applicant’s request, namely “that S.B. took any action that prevented the TDSB from accommodating L.B.”
77The Interim Decision sets out my reasons for issuing an order with respect to the first two points, as follows:
(a) School boards have an obligation under the Code to accommodate their students with disabilities to the point of undue hardship, regardless of whether the students are receiving any medical treatment in the community or not;
(b) School boards cannot order or demand of parents to place their children into residential psychiatric treatment programs and cannot deny or withhold accommodations to the point of undue hardship on the grounds that the student should be in such a program. While I have no evidence to show that this was the case here, that does not alter the principle;
(c) School boards have an obligation under the Education Act to provide appropriate special education placements, programs and services to their exceptional students. Parental conduct or lack of parental authority cannot be used as a justification for not meeting an exceptional student’s needs; and
(d) I agree with the decision in R.B. v. Keewatin-Patricia District School Board, (R.B./Keewatin) 2013 HRTO 1436, an HRTO decision cited by both parties in this case, at para 265, that a parent’s “fierce advocacy” for his or her child must not and cannot prevent a school board from accommodating the child’s needs to the point of undue hardship.
78The same Interim Decision set out the reasons for denying the applicant’s more general request that the respondent be prohibited from calling evidence that S.B. took “any action that prevented the TDSB from accommodating L.B.”, as follows:
There are certain services, programs and accommodations which cannot be explored or implemented by school boards without parental consent. These include, but are not limited to, the provision of psycho-educational assessments, placement in a congregated exceptionality-specific special education class, referral for placement in a Provincial school or a Section 23 care and treatment program. While I have no reason to believe at this time that S.B. denied consent to the TDSB for the implementation of any of these potential accommodations, it would be unfair to deny the Board the opportunity to enter into evidence all relevant information relating to L.B.’s education and accommodation, if any, while he was a resident pupil of the TDSB.
79In determining the merits of this Application, I have relied on this reasoning set out in paragraph 78, above.
A School Board’s Obligations under the Law
80Counsel for the applicant requested that I issue a “summary judgment” in the applicant’s favour without hearing the respondent’s case. The respondent opposed this request, but argued that it would welcome a “summary judgment” on the basis that the applicant has no prima facie grounds for his claims of discrimination. On the grounds of procedural fairness, I declined to issue an order in favour of either party. I note that while the Tribunal has a process for summary hearings, it does not issue summary judgments, nor does it have a procedure for such a step.
81At the same time, counsel for the applicant also asked me to make a ruling on the “narrow issue of whether the TDSB is legally required to provide residential schooling and transportation / home instruction accommodation under the [Human Rights] Code, where this is required due to a student’s disability or whether these specific forms of accommodations are precluded by operation of law.”
82In Interim Decision, 2015 HRTO 490, I declined to make a ruling on this matter, stating that such a decision would be premature and could jeopardize a fair and just hearing of the respondent’s case.
Other evidentiary issues
83L.B. did not testify. There is no question that this was a significant omission in terms of the applicant’s case. The respondent is correct that at the start of the hearing I commented on the fact that hearing from the student in question and taking into consideration his or her opinion about the situation is important and beneficial to an adjudicator. However, I saw no reason in the instant case to compel the applicant to testify, given Dr. Allan’s statement that this could potentially be detrimental to the applicant’s mental health.
84I recognize that the Tribunal has, in the past, drawn an adverse inference from the non-appearance of a witness. However, I would not go as far as to support the respondent’s assertion that the applicant’s absence must result in an inference that his evidence would not have supported his mother’s assertions, as given in evidence.
85The respondent also questioned S.B.’s testimony, both in terms of credibility and in terms of motivation. As I find that the respondent’s duty to accommodate the applicant to the point of undue hardship excludes the applicant’s principal position that the respondent should have provided a residential school placement within its jurisdiction with a hockey focus or that it should have provided a daily staff member escort to get the applicant to school, much of the applicant’s mother’s testimony becomes secondary in importance. My findings that the respondent did not accommodate L.B. to the point of undue hardship during the period that he was a resident pupil at the collegiate are based principally on the evidence of the school staff rather than that of S.B.
86I do not need to make findings on her credibility in her description of her interaction with the collegiate’s staff or assign any particular contradictory weight to the fact that she sent thank you notes to some of the teachers after the applicant had left the collegiate for the boarding school placement.
87The respondent asserted that one conclusion that I may draw from the facts of this case is that the applicant precluded the respondent from engaging in the accommodation process, even while L.B. was a student at the collegiate. But, in fact, the only substantive allegation in this regard is that L.B. apparently asked his mother not to elaborate on the so-called bullying incident, referenced in the evidence, which prevented the respondent from following up on this matter and thereby addressing an apparently key factor in L.B.’s absence from school. The accommodations that I view as potentially helpful and needed by L.B., such as the referral for social work and attendance support, the provision of counselling and information about alternative placements, etc., were not in any way directly related to the actions of S.B.
88The respondent also questioned the validity of some of Dr. Allan’s evidence. Dr. Allan was the only psychologist who assessed the applicant. It was on the basis of his two psychological assessments that the respondent identified the applicant as an exceptional student. There is no evidence before me to indicate that that the respondent questioned Dr. Allan’s qualifications, or his ability to administer the requisite tests or interpret and draw inferences from the results. The second assessment also relied on questionnaires completed by some of the applicant’s Grade 8 teachers.
89I accept the respondent’s assertion that much of Dr. Allan’s evidence, other than the assessment data, was based upon hearsay information provided to him by the applicant and his mother. However, since I have made no rulings in relation to and was not influenced by the contents of the Disability Tax Credit Application, entered into evidence by the respondent and questioned vigorously as evidence of Dr. Allan’s apparent bias, I do not need to make any determination about their credibility or validity.
90The respondent also raised the question of what weight I should give to the letter from Dr. Marshall, since this was also based primarily on hearsay and, since Dr. Marshall was not called as a witness, she could not be questioned and cross-examined on the purported facts. I accept that Dr. Marshall is an expert in child and adolescent psychiatry, who had seen and treated L.B. for his mental health needs. I read her report. While I accept her general comments about the importance of motivating and supporting individuals who are anxious and note that, in her opinion, the applicant has benefitted from his current “treatment” in his educational placement, since I find that the “services’ to be provided by the respondent do not include providing the applicant or any student with a residential school placement with a hockey focus, or funding for such a placement within the private sector, this opinion was not particularly helpful in making my decision.
91There was no significant disagreement between the parties about the credibility of the respondent’s witnesses. The only exception to this is the applicant’s disagreement with some of the evidence of the collegiate’s Vice-principal. While I noted that some of the witnesses, in particular the guidance and special education staff of the collegiate did not recall many aspects of the events of L.B.’s Grade 9 year, I did not interpret this as a lack of credibility or an intent to mislead.
92In my view, these witnesses, and in particular the special education teacher and the guidance counsellor, were quite forthright and entirely believable in their descriptions of their very limited involvement with and knowledge of L.B. during the period between September 2012 and April 2013.
ANALYSIS
The Applicant’s Status as a Person with a Disability in Accordance with the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)
93In an Application that alleges discrimination on the grounds of disability, the first matter that needs to be determined is whether the applicant is a person with a disability, as defined by the Code, and is therefore deemed to be eligible for protection under the Code.
94The respondent clearly accepted that L.B. is a person with a disability. The IPRC identified him as an exceptional pupil, relying on the psychological assessment data provided by the applicant. The respondent did not introduce any evidence to suggest that this identification was erroneous or that L.B. is not a person with a disability.
95The respondent questioned much of Dr. Allan’s evidence, such as the Disability Tax Credit Form information, as being based on hearsay, i.e., being based on L.B.’s and S.B.’s statements, rather than his own knowledge or observations. The respondent also questioned whether Dr. Allan could be deemed an impartial expert due to his ongoing involvement with and the provision of pro bono services to the applicant. However, the respondent did not challenge the results of Dr. Allan’s assessments and recommendations nor did it lead contradictory evidence of its own to challenge L.B.’s identification as an exceptional pupil.
96Disability is defined under section 10(1) of the Code and includes both a learning disability and a mental disorder, which covers anxiety and other related conditions. Therefore, I find that L.B. is a person with a disability, as defined by the Code.
Is residential schooling a “service” mandated under the [Human Rights Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)?
97Since the primary focus of the Application was the provision of residential schooling or the purchasing of a residential school placement for the applicant, I must determine whether this is indeed a “service” mandated under the Code obligations of school boards.
98Education is deemed a “service” under the Code. While the Code does not explicitly describe the obligations or “expected services” of school boards, its provisions for accommodating persons with disabilities to the point of undue hardship, its determination regarding direct and adverse effect discrimination and its provisions on special programs in Section 14 are all relevant for the operations of school boards. Since the Code has primacy over all other legislation in the Province, it is expected and must be assumed that school boards implement the Education Act in accordance with their Code obligations.
99Section 0.1(2) of the Education Act states that the purpose of education is to provide students with the opportunity to realize their potential and develop into highly skilled, knowledgeable, and caring citizens who contribute to their society. This is further expanded in section 169.1 of the Education Act, which sets out the criteria for creating an inclusive and accepting school environment in accordance with the Code for the purposes of assuring appropriate and meaningful access to education for all pupils.
100It is important to note that the service provided by school boards is a day school educational program. Regulation 298, Operation of Schools – General, specifies that schools offer daily sessions to their students and sets out the length of the instructional day as five hours between the hours of 8 a.m. and 5 p.m. Similarly, Regulation 304, School Year Calendar defines the terms “instructional day” and “school day”. The Education Act sets out the process for extending the school day in section 258 for the purposes of full day kindergarten programming. However, the extension cited does not include residential programming. It is clear throughout the Education Act and its Regulations as well as the relevant Policy and Program Memoranda that any variations from this approach of providing regular day programming, as the service provided by school boards, requires explicit ministerial approval (see section 13 of the Education Act).
101Under the legislative scheme of the Education Act, it is clear that it is the Ministry of Education, and not a local school board, that has the power to establish, maintain and operate residential “demonstration schools” to provide special education programs and services to exceptional students: see s. 13(4.1), (5) and (7). The Ministry operates several such schools which include residential placements. There are specific regulations governing admission to these schools, fees, the duties of pupils, teachers and residential counsellors, and the responsibilities of parents. No similar structure exists under the Education Act that empowers a local school board to establish, maintain or operate a residential school, let alone a residential school with a focus on elite sports.
102It is relevant to this case to note that the Province directly provides residential programming for students with severe learning disabilities who show signs of moderate levels of distress or who are depressed or anxious. This is the Learning for Emotional and Academic Development (“LEAD”) Program at the Trillium Demonstration School in Milton. While school boards do not determine the eligibility of a student for this program nor can an IPRC make this the placement for an exceptional student, school boards can and do facilitate the admission application in co-operation with a parent. At the very least, they can inform parents about the possibility of such a placement that certainly benefits many students.
103In my view, this legislative scheme supports the conclusion that the provision of, or funding for, a residential school placement for a student does not fall within the scope of the “services” provided by a local school board, within the meaning of s. 1 of the Code. I am fortified in this conclusion by reference to the specific provisions under the Education Act which limit the power of a local school board even to pay for board and lodging for a student. For example, where a secondary school student resides in the jurisdiction of a local school board and lives in a municipality, the school board is only empowered to pay for board and lodging if the student lives 48 km away from the closest secondary school: see s. 190(10). In my view, the specific provision for and restrictions upon a local school board’s power to pay for board and lodging, and the absence of any specific authorization under the Education Act to establish, maintain or operate a residential school, support that the provision of or payment for attendance at a residential school does not fall within the “services” provided by a local school board.
104Further, while the Education Act does provide specific authorization for a local school board to acquire schools for natural science programs or other out-of-school programs under s. 197, the ability of a school board to pay for board and lodging for students attending such schools is limited to a period of up to two weeks: see s. 197(10). If a local school board had the general power to provide full-term residential schooling for its pupils, this provision and the limitation on the ability to pay for board and lodging for a natural science program or other out-of-school program would be superfluous.
105As a result, I find that the provision of or payment for a residential school placement for the applicant simply does not fall within the scope of the “services” provided by the respondent as a local school board. Given my finding that this would essentially amount to a different service it follows that there is no basis to conclude there are any circumstances in which it could amount to an appropriate accommodation in the provision of the educational services that are provided. I do not accept the applicant’s argument that enabling students to spend a few nights at one of the outdoor education / camping programs provided by the respondent to its students means that the board is able to or expected to provide a regular residential program year round.
Transportation, home instruction, attendance counsellors and the duties of teachers
106There is no question that transportation to and from school and the provision of home instruction, where these are determined to be necessary as a temporary or even permanent accommodation to meet the identified needs of an exceptional pupil, are accommodations mandated under the duties of school boards. They are not “the service” in and of themselves. Section 190 of the Education Act sets out a series of circumstances in which school boards may or will provide transportation for students who need to travel to attend school. These include, but are not limited to, children who reside a significant distance from their local school, students who have certain disabilities and identified needs, students who attend the residential schools operated by the Province for exceptional pupils, or students who attend facilities operated under other legislation such as the Mental Health Act, the Child and Family Services Act and the Public Hospitals Act.
107Another service that the applicant argued should have been provided to him by the respondent school board is for a teacher or other school staff member to come to his home to ensure that he attended school. I appreciate that, in the applicant’s Grade 8 year, at least one teacher was prepared to do this on a voluntary basis. However, the fact that a teacher was prepared to do this voluntarily does not mean that the respondent is required to do this as part of its duty to accommodate under the Code. While the respondent did not explicitly claim that satisfying this particular accommodation request would represent “undue hardship” for the school board, it is certainly beyond any reasonable expectation and definitely falls outside the definition of “service” that is expected to be provided by teachers.
108I note that, under the Education Act, provision is made for school attendance counsellors (s. 25) and that the powers and duties of such counsellors include, but are not limited to, taking a child to school if the child is “illegally absent” from school and even entry to a dwelling where there is consent (s. 26). In this regard, I note that, pursuant to s. 21(2)(b), a child is excused from attendance if she or he is unable to attend school due to sickness. As a result, where the applicant was not in attendance at the collegiate due to anxiety, it is questionable whether he would properly be regarded as being “illegally absent” from school, so as to empower a school attendance counsellor to come to his home to take him to school. Neither party addressed this particular matter.
109However, I note that the provisions of the Education Act regarding school attendance and the powers and duties of school attendance counsellors are part of an enforcement scheme to ensure the proper attendance of children at school, as opposed to forming part of an accommodation plan for a student with a disability. However, this does not mean that attendance counsellors are prohibited from providing counselling services to students for whom attendance is a significant problem, as was provided to the applicant during his Grade 8 year. I also note that the primary responsibility for ensuring that a child attends school resides with the child and parent: see s. 21(5). This responsibility is enforceable through potential prosecution and fines.
110In my view, given the legislative purpose for which school attendance counsellors are empowered, which is to ensure attendance at school by pupils who are illegally absent, it does not properly fall within the scope of the services provided by such counsellors to require them on an ongoing basis to ensure that a pupil like the applicant gets to school as an accommodation for a disability. Nor in my view does such responsibility reside elsewhere with teachers or other school staff. Accordingly, I find that it is not within the proper scope of the duty to accommodate to require the respondent to have sent its staff to the applicant’s home in order to get him to school.
111As described earlier in this decision and specified under Section 170 of the Education Act, school boards have an obligation to provide, or purchase from another school board, appropriate special education programs and services to meet the needs of their exceptional students. These programs and services are expected to be within the context of the regular service provided by school boards, namely a regular daily education program. While school boards are expected to modify their programs and services to meet the needs of their students and to accommodate the students’ needs to the point of undue hardship, there is no obligation on them to develop and provide a service that is wholly different from their legislated mandate. Their current obligation does not extend to the purchase of services from private schools, even when those schools are established exclusively for the provision of special education programming. Where it is determined that a student requires more intensive programming or services beyond those provided by school boards, school boards may refer students to services provided by the Ministry of Education or other designated service providers, such as other government agencies.
112Where the requested service is outside the school board’s legislated mandate, such as the development of a residential school with a focus on elite sports or the requirement that teachers attend the homes of reluctant attenders to motivate them to go to school, then indeed they have no statutory obligation to provide these. The fact that these were not available to the applicant within the school board does not, in my view, constitute a breach of the Code.
113In summary, school boards are expected to accommodate the needs of their resident exceptional pupils to the point of undue hardship, including but not limited to the provision of transportation, home instruction, attendance counselling or referral to alternative educational settings, which may be residential or not, provided under other legislation. They may also establish alternative educational programs such as Schools for the Arts or academies or schools with some other special focus, such as sports or outdoor education. But it is not within their legislated mandate, as described under Section 170 of the Education Act under the headings of their duties and/or powers to establish or provide funding for full-time residential schools with a focus on elite sports. Therefore, the fact that the respondent did not provide this for the applicant does not represent a breach of the Code.
In that case, did the applicant prove a prima facie case of discrimination?
114The Supreme Court of Canada had set out the test for discrimination for education cases in Moore v. British Columbia (Education), (“Moore”) 2012 SCC 61. The Court held that to demonstrate discrimination, applicants must show: that they have a characteristic protected from discrimination; that they have experienced an adverse impact with respect to their education; and that the protected characteristic was a factor in the adverse impact. Once such a prima facie case has been established, the evidentiary burden then shifts to the respondent to justify the conduct within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to have occurred (para. 33).
115The issue in Moore was whether a student was denied meaningful access to the general education available to all students in British Columbia because of his disability (dyslexia) when the school board cancelled its special education program for students with severe learning disabilities.
116The Court in Moore addressed the question of whether the protected “service” in special education cases is the provision of “special education” or education more generally. The Court held that the service contemplated by the Code is education, not special education. The Court clarified that special education is not and must not be the service itself, but the means by which students with certain kinds of disabilities get meaningful access to the general education services available to all students.
117The legal framework in Moore can and has been applied to the Code. Section 1 of the Code prohibits discrimination in the provision of services on the basis of disability. It is recognized and well established that education is a service under the Code. The onus then lies on the applicant to prove, on a balance of probabilities, that (a) he has a disability and (b) he experienced differential or adverse treatment or impact linked to that disability.
118The applicant relied on both the Moore and R.B. v. Keewatin-Patricia District School Board, 2013 HRTO 1436 (“R.B./Keewatin”), decisions to establish that the applicant faced discrimination resulting from the lack of appropriate accommodations to meet his identified needs.
119The respondent countered that this case is not the same as either Moore or R.B./Keewatin. The respondent argued that in both those cases the school boards were found to have discriminated against the applicant students as a result of their direct actions. In one case, the board cancelled an existing special education program and in the other it excluded the child from attending school. As a result of which, the applicant students had no access to education at all.
120I agree that this case is not analogous to the Moore and R.B./Keewatin cases. In both those cases it was indeed the direct action of the school board that resulted in discrimination. However, it is my view that this does not mean that, if a school board omits to provide access to specific and needed services and accommodations that are within its mandate to provide, it is not discriminating against the student, i.e., discrimination through omission as opposed to direct discrimination. In this case, L.B. did not receive access to educational services offered by the respondent and one or more of his disabilities were a factor in this. As such, the applicant has established a prima facie case of discrimination.
121This view has been supported by the courts. For example, in Eldridge v. British Columbia (Attorney General) 1997 CanLII 327 (SCC), 1997 3 S.C.R. 624, the Court held that the provision of an accommodation, in that case sign language interpretation, is not an “extra ancillary service, but rather the manner by which meaningful access to the provided benefit can be achieved.”
Did the TDSB accommodate L.B, to the point of undue hardship?
122It is my view that the applicant has not adequately shown that the elite sports academy/residential school placement is the only appropriate accommodation for L.B. and that therefore the TDSB should be expected to either provide or purchase this for L.B. There were other potential accommodations that, in my opinion, could and would have benefitted L.B. and, if provided by the TDSB, could potentially have allowed him to remain within the public educational system.
123While I have found that the applicant did not establish a prima facie case of discrimination on grounds that exceeded the legislative mandate of the respondent, this does not end the analysis. The evidence established that the school board delayed, over almost a full school year, the referral of the applicant for appropriate and clearly needed support services, requested by S.B. during the early September interview with the Vice-principal and Head of Guidance of the collegiate, including but not limited to social work, attendance counselling and psychology, which are legitimate services within its mandate and did not pursue the provision of additional supports such as home instruction, peer tutoring and, peer mentoring. It also did not apparently consider or recommend to S.B. any potential alternative placements, including but not limited to Section 23 programs or a Provincial Demonstration School for students with severe learning disabilities and ADHD, when she informed the special education teacher and guidance counsellor that she was seeking alternatives for her son during the meeting in February 2013. This omission, can, in my view, be deemed discriminatory, even though these options are not provided to every student within the TDSB.
124Therefore, I am satisfied that, in spite of the fact that the Application primarily focused on the residential school placement and the expectation that a teacher should have undertaken the task of getting L.B. to school on a daily basis, there is adequate evidence to make a prima facie case for discrimination during the seven months that L.B. was registered in Grade 9 at the collegiate. The respondent submitted that on the balance of probabilities the applicant has failed to demonstrate that the respondent discriminated against him; or alternatively, that the respondent accommodated the applicant appropriately; or alternatively, due to his mental health needs beyond his identified disability, L.B. could not benefit from the education provided by the TDSB; or in a further alternative, the applicant’s mother precluded the respondent from engaging in the accommodation process by her actions.
125Both parties relied on the fact that there is both a procedural and a substantive aspect to the provision of accommodation. The procedural component requires that the respondent undertake a reasonable investigation to understand the applicant’s disabilities and needs for accommodation. The substantive component is concerned with the exploration of all legitimate options to provide accommodations to the point of undue hardship, including a determination of the adequacy and/or appropriateness of the proposed accommodations, if any.
126The respondent submitted that it cannot be found to have discriminated against the applicant in the provision of a service, if the respondent does not provide the service to the general public. The services that this statement focused upon were the provision or purchasing of residential schooling with a focus on elite sports and the requirement that a teacher accompany L.B. to school on a daily basis. But, as set out above, the respondent does have a legislated mandate to provide special education programming, attendance and social work counselling and other supports to students on an as-needed basis. Therefore, I do not accept the above statement under the current circumstances. On the basis of that statement, all special education programs, services and accommodations could conceivably be cancelled, because they are not provided to all students. This argument was cited in Moore to clarify why the protected service is education and not special education.
127The respondent also submitted that the Human Rights Tribunal of Ontario is not analogous to the Ontario Special Education Tribunal and therefore, it has no mandate to apply the “best interests of the child” comparator in determining discrimination under the Code. The respondent relied on Schafer v. Toronto District School Board 2010 HRTO 403, where the Tribunal held that “as long as the substantive accommodations as recommended by the IPRC and IEP are generally implemented, the substantive standard of the duty to accommodate will be met.”
128As discussed in R.B./Keewatin at para 216, the above statement has been interpreted to mean that in order to demonstrate discrimination, the evidence must demonstrate that the accommodations provided by a school were significantly inappropriate or inadequate. I agree with this decision that if an identified exceptional student is denied meaningful access to education, it is implicit that the accommodations provided were either inappropriate or inadequate.
129Where services, supports and accommodations, such as the referral for social work and attendance counselling support or discussion of alternative placements are delayed significantly or do not take place at all, the accommodations are clearly inadequate. These are services that are within the mandate of all school boards. Thus, denying or substantially delaying access to these services, in my view, can amount to a substantive breach of the Code. In making this statement, I also relied on the decision of the Supreme Court in Eaton v. Brant County Board of Education 1997 CanLII 366 (SCC), [1997] 1 S.C.R. 241, that mandates a focus on the best interests of a child when determining special education approaches.
130I note that the respondent’s submissions have focused primarily on the two specific issues that are indeed outside its mandate to provide. But in my view the respondent did not adequately address the lack of appropriate accommodations during the seven months while L.B. was still a resident Grade 9 pupil of the school board. These were accommodations that are indeed within the school board’s mandate to provide.
131Not surprisingly, the parties disagree on the effectiveness of the respondent’s exploration of the applicant’s disabilities and the accommodations that could or would have helped to enable the applicant to remain at the collegiate for the balance of his Grade 9 year and as a resident pupil of the TDSB at the collegiate or elsewhere beyond that year.
132At the beginning of the school year in September 2012, when S.B. met with the Vice-principal and made a series of requests for immediate accommodations for L.B., the Vice-principal chose to adopt a “wait and see” approach. She stated in evidence that this was the school’s general approach to enable students to transition back to school after the summer and that this was particularly important for Grade 9 students who were new to the system.
133However, in the case of L.B., the need for accommodations was well known and documented in his OSR and IEP, as well as in the psychological assessments available to the school. Further, as an identified exceptional student, he was entitled to expect a planned transition process to ensure that his start in secondary school was as smooth and appropriate as possible.
134Although he did not go to the secondary school that he was expected to attend, once the collegiate staff were aware of his presence and of his needs, the anticipated appropriate transition process should have been implemented.
135The Vice-principal also stated that referral to attendance counselling would have been premature, that the school was without a regular social worker at this time and in any case, the limited social work support that any one school is able to access does not allow for the social worker to provide counselling or therapy to a single student. This statement is contradicted by the TDSB’s description of its Social Work and Attendance Services, a document that was entered into evidence and is available to the public on its website.
136As stated earlier, neither the special education nor the guidance staff looked at Dr. Allan’s assessment of the applicant or spoke with the staff of the elementary school about L.B.’s specific disabilities and socio-emotional needs. They apparently were not aware of the attendance issues that significantly impacted L.B.’s Grade 8 year or the accommodations that enabled him to progress to Grade 9.
137For these reasons, it is difficult to accept the respondent’s assertion that the school fully satisfied its procedural and substantive accommodation obligations.
138The respondent stated in its submissions and in setting out the three alternative explanations for its actions, that if it is deemed that it did not accommodate L.B. adequately, then this was due to the fact that perhaps his Generalized Anxiety Disorder made it impossible for him to attend school and to access regular education even with accommodations. In other words, it attempted to rely on s.17 of the Code, suggesting that L.B. was incapable of participating in the collegiate’s educational program because of his disability. Further, it stressed that in these circumstances L.B. required treatment rather than education and it is not the mandate of school boards to provide treatment to their students. I do not accept this argument. L.B. was accommodated and attended school through much, though not all, of his Grade 8 year. Therefore, he cannot be deemed to be a student whose needs prevent him from accessing an education and who requires significant treatment options, which are outside the mandate of the school board.
139While I accept that the school’s staff found the applicant’s mother a difficult and demanding parent to work with, this does not justify the lack of proactive steps being taken to ensure that L.B. was accommodated to the point of undue hardship.
140I heard a great deal of evidence asserting that if the applicant had not left at the beginning of April, 2013, much could have and would have happened to accommodate him through the involvement of a social worker, the School Support Team (“SST”), etc. Regrettably, that proved to be too late. The TDSB asserts in its description of social work and attendance services that SSTs meet every month at every secondary school to identify and decide on a plan of support to benefit students. Regrettably, this was not the case at the collegiate during the fall and winter of 2012/13.
141Further, this argument clearly contradicts the earlier assertions that either the applicant was fully accommodated or he could not be accommodated at school because he needed treatment rather than education. L.B.’s needs were no different in March 2013 than they were in September 2012. If on the later date it was determined that he needed the support of an attendance counsellor and/or social worker, then those supports should have been available to him at the start of his Grade 9 year.
142I heard evidence that both the Principal and the Vice-principal were new to the school in that year; that the guidance counsellor was new to her job; that the school social worker was ill and that there was a work to rule by teachers. There is no question that all of these factors must have made the circumstances present at the collegiate more complicated and challenging than anyone would have wished. However, none of these factors justify the lack of accommodation for L.B. during the relevant months of Grade 9.
143I note that none of the staff involved discussed with S.B. any alternative options for her son, which could have been substantive accommodations for his disabilities including, but not limited to, his anxiety. These could have included: moving L.B. to an alternative school operated by the TDSB, some of which are much smaller and have different timetables and attendance expectations; or transferring him at the end of January 2013 to a semestered secondary school to enable him to make a new beginning; or making a referral to a Section 23 program as a potential treatment option; or making a referral to the LEAD program described above. If not before, these would have been appropriate topics of discussion at the February 2013 meeting that the applicant’s mother had with the special education teacher and guidance counsellor and where they were asked to complete the form for the Ottawa hockey school application.
144Staff members involved in this meeting stated in evidence that S.B. did not ask about any such options. In my view, whether a parent specifically asks for alternative options or not, it is up to school board staff to offer such suggestions when it became clear that L.B. was not attending school and S.B. was clearly searching for a solution to her son’s non-attendance. Under these circumstances, providing such information to parents is part of the job of a guidance counsellor, in my view.
145I do not accept applicant’s counsel’s assertion that completing the form for the hockey school was analogous to the situation in Moore, where a school psychologist recommended that the parents move the student to a special-education focussed private school, where he could have his learning disabilities appropriately accommodated, since the school board no longer provided this service to its students. L.B.’s teachers did not make the initial suggestion that L.B. would be better served by a private educational facility.
146However, I view the statement of staff with responsibilities for guidance and special education that they would consider it inappropriate and “not their job” to make suggestions for an alternative option to moving a student to a private hockey school, in order to have his disabilities accommodated surprising and concerning. It certainly does not support the assertion that the applicant’s disabilities were fully accommodated or if not, that this was due to a lack of co-operation on the part of the applicant and/or the actions of his mother.
147Although I did not hear evidence about an alleged bullying incident, I note that this was cited as one of the ways in which S.B. was claimed to have undermined the accommodation effort. If the bullying incident indeed occurred on the school premises, then school staff has an obligation to explore this. However, it is my view that even if the bullying incident did happen, it may have exacerbated L.B.’s anxiety, but would not have been a primary cause of it.
148I also considered the statements made by several of the respondent’s witnesses that L.B. and S.B. had a difficult relationship at this time and that S.B. had decided that the way she was going to improve her own life was by sending L.B. to a boarding school. That may or may not be true. Adolescent children and their mothers frequently have a stormy relationship. However, that circumstance, even if true, does not absolve the staff of the TDSB from accommodating L.B. to the point of undue hardship.
149While I understand S.B.’s frustration about the circumstances at the collegiate. and the lack of accommodations that she felt were essential for meeting L.B.’s identified needs, her decision to remove L.B. from the collegiate and enroll him in a private school effectively truncated the TDSB’s obligations to accommodate L.B. after the beginning of April 2013. That is why the period during which the TDSB discriminated against L.B. is only the first seven months of L.B.’s Grade 9 year.
150The respondent’s argument that the TDSB was legally prevented from accommodating L.B. to the point of undue hardship once he was removed from the collegiate is correct. A school board is not accountable for the education of its former students. But this does not justify, retroactively, the ongoing lack of accommodation during the relevant seven month period.
151The argument put forward by board staff that the school expected L.B. to be moved to a private hockey school at some point, perhaps imminently, did not eliminate their earlier accommodation obligations. Further, the notes from the March 8, 2013 ISST meeting contradict this argument and suggest that they expected L.B. to return to the collegiate after the March break.
152Lastly, I do not accept the argument that the respondent was prevented from accommodating L.B. to the point of undue hardship by the actions of his mother. During the relevant seven month period, between September 2012 and the end of March 2013, L.B. was a resident pupil of the school board and the school board had an obligation to accommodate him to the point of undue hardship. This did not happen. He was not seen by any professional staff, he did not have access to all the supports included in his IEP and his mother was not informed of any potential alternatives to removing him from the collegiate to meet his needs. Yet until the moment that S.B. enrolled L.B. at a private school, none of her actions prevented the provision of accommodations that could have met his needs.
DECISION
153Based on all of the above, I am satisfied that the applicant is a person with a disability under the Code.
154I am also satisfied that the applicant established a prima facie case of discrimination by demonstrating that the respondent did not accommodate him to the point of undue hardship during the seven month period from September 2012 to April 2013. It was this adverse treatment that led to S.B.’s decision to remove him from the collegiate and send him to another school.
155I accept that, as a result, S.B. felt that she had no option but to remove L.B. from the collegiate and to enroll him in his current school. But this was a decision that, having regard to the Education Act, effectively truncated and eventually eliminated the TDSB’s ongoing obligations to accommodate him under the Code.
156I accept the respondents’ arguments that a public school board cannot provide a residential school placement to match the one that S.B. has chosen as “the most enabling educational placement” for her son. Since the provision or funding of a residential placement with or without a focus on elite sports is not a “service” that the Code expects school boards to provide as part of their obligations, denying this, in my opinion, is not a breach of the Code. Therefore, the respondent is not responsible for covering the costs of L.B.’s education from April 2013 to the end of his high school education.
REMEDY
157The Tribunal’s remedial powers are set out in section 45.2(1) of the Code:
On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
MONETARY COMPENSATION
158As described in the first section of this decision, the applicant is asking for monetary compensation under three distinct headings.
159Regarding the request for compensation for injury to dignity, feelings and self-respect, I agree that L.B. is entitled to receive compensation for the respondent’s actions resulting in the lack of appropriate accommodations to the point of undue hardship during the period in question, i.e., September 2012 to April 2013. I am aware that the amount that I am ordering in this decision, while significantly less than that requested by the applicant, is more than the Tribunal usually orders as compensation in similar circumstances. I have chosen this amount to indicate that the Tribunal takes such breaches of the Code very seriously and understands the difficulties and frustrations faced by the parents of children with disabilities whose needs are not being fully accommodated by the school system. At the same time, I am aware of the fact that the role of the Tribunal is restorative and never punitive. I believe that the compensation ordered cannot be deemed to be punitive in this case.
160I note that In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ONSC), the Divisional Court confirmed that there is no ceiling on the amount of compensation that can be awarded and that the Tribunal should consider the vulnerability of the complainant and the seriousness of the offensive treatment.
161I also note that in R.B./Keewatin, the monetary award was based in part on the fact that R.B. was anxious and attended counselling for that reason (i.e., anxiety) among others. L.B. was also anxious and I heard evidence that in spite of his new school placement and improved school experiences, he still needs and receives regular counselling.
162I also note that awards typically reflect and recognize the applicant’s particular experience in response to the discrimination. Compensation will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38 and Arunachalam v. Best Buy Canada, 2010 HRTO 1880 at paras. 44 to 54. These are, in my opinion, relevant to this case. While I did not hear directly from L.B., the evidence of his mother confirmed that L.B. struggled with significant anxiety and emotional difficulties during the time that he was a resident pupil of the collegiate. This had a negative impact on his relationship with his mother and with his team mates on his hockey team. Having regard to the foregoing, I am ordering compensation for injury to dignity, feelings and self-respect in the amount of $35.000.
163Regarding the request for compensation representing tuition and all other costs for L.B.’s attendance at the private elite sports boarding school for the period of April 2013 to the end of December 2016, I decline to make this order for compensation in this case.
164I do not accept the applicant’s reliance of the decision in Moore, where the Court ordered the reimbursement of the fees paid by the student’s parents. The situations are not the same. In Moore, the school board cancelled its special education program, which had been an appropriate service to meet the student’s needs and was within the mandate of the school board. In this case, the private school education chosen by S.B. for her son was not fully determined on the specific recommendation of the professionals involved nor is it a school that specifically focuses on remediating disabilities of the type that L.B. has. I am aware that S.B. is satisfied with the education that L.B. is receiving and I note that professional opinion has been rendered that this placement serves as an “appropriate treatment” for L.B. However, I do not see that it would be appropriate to order the TDSB to pay for the costs involved. At no time after April 2013, did S.B. pursue the question of whether L.B. could be appropriately accommodated by the school board, if he were to return there to complete his education. Therefore, after April 2013, she eliminated, by her own actions, the respondent’s duty to accommodate her son, since he was no longer a resident pupil of the school board.
165I also considered the respondent’s assertion that, given Ontario’s educational legislation, namely the right of parents to appeal the decisions of school boards regarding their exceptional children’s special educational identification and placement to the Ontario Special Education Tribunal (“OSET”) which can order school boards to provide programming in the best interests of the student, the situation of Moore would not have happened in this Province. The implication that I was perhaps expected to draw from this assertion is that the applicant’s mother could have pursued L.B.’s educational accommodations through OSET. I am not prepared to draw a negative inference from the fact that S.B. did not choose to appeal to OSET, and instead pursued her son’s situation through an Application to the Human Rights Tribunal.
166Regarding the request for compensation related to the cost of the psychological assessment carried out by Dr. Allan in 2011, I note that the Application specified the time frame of September 2012 to April 2013, the period during which L.B. attended the collegiate. The assessment, however important to the accommodations that L.B. needed, was carried out well before the time frame covered by the Application. Therefore, I find that it would not be appropriate to make such an award in this case.
167Regarding the request for compensation related to the purchase of the tablet for L.B., this was a purchase made by S.B. at the request of her son. L.B. had regular access to computers at school, when he attended school, both through a special equipment grant application and in the GLE classroom. It is not a school board’s obligation to provide each student with electronic equipment to be used at home. Therefore, I shall not order this award.
NON-MONETARY REMEDIES
168I would have been inclined to order the implementation of certain very specific accommodations, as remedies, that would benefit L.B. and that would enable him to participate in a public school educational placement that would meet his needs. Since it has been made clear that L.B. will continue at the private elite sports boarding school for the balance of his secondary education, there is no reason for me to make such orders.
169However, I would be remiss if I did not focus on the non-monetary public interest remedies sought by the applicant. The applicant’s requests in this regard called for the Tribunal to order the TDSB to:
develop a suitable mental health policy;
provide staff training;
create a permanent mental health Ombudsperson position to work with TDSB students who have mental health needs and their families;
hire a permanent educational advisor to assist families with navigating the system and to identify available resources for students with disabilities within and beyond the TDSB; and
establish mental health teams at each school which would include both staff and parents.
170The applicant requests that I order the implementation of all of these to occur within six months of the date of this decision. I decline to make that order.
171Since 2013 there has been an increased focus on the provision of mental health services within Ontario’s educational institutions. The Ministry of Education has issued a resource document in 2013, called Supporting Minds: an Educator’s Guide to Promoting Students’ Mental Health and Well-being. It would be helpful to many students like L.B. and to many parents like S.B., if the recommendations of this document were fully and promptly implemented by the TDSB.
172Similarly, it would also be helpful to many students with learning disabilities with or without ADHD and students with mental health needs, including but not limited to anxiety, if the TDSB offered the full range of educational placements, ranging from monitoring in a regular classroom to fully self-contained exceptionality specific classes to referrals to alternative placements such as the Section 23 and Provincial schools. In a memorandum dated December 19, 2011, regarding the categories of exceptionalities, the Ministry of Education reminded all school boards that all students who have demonstrable learning based needs are entitled to appropriate accommodations in the form of special education programs and services. In the same memorandum, school boards were also reminded that the explicit inclusion of certain medical conditions in its exceptionality definitions, such as autism, is not intended to exclude other medical conditions that may result in learning difficulties. ADHD and anxiety are among the frequently noted medical conditions which are not identified as a specific exceptionality, but which clearly impact student learning.
173I note that Ontario school boards are already expected to develop and implement a suitable mental health policy and to ensure that all relevant school board staff are adequately trained to meet the mental health needs of their students. For these reasons, it is unnecessary for me to make such an order in this decision. However, in order to promote compliance with the Code, it is important that the respondent school board ensures that it complies with these expectations.
174Regarding the request that I order the establishment of mental health teams at each school and a mental health ombudsman for the school board, I am not convinced that this is the most effective way to meet the needs of students with mental health issues. Therefore, I decline to make this order at this time.
175Regarding the applicant’s request that I order the TDSB to hire an educational advisor to help and guide parents through the special education system within the TDSB and the resources available in the community, I decline to make such an order. Under the Education Act and Regulation 181/98, every school has an IPRC, which has, as part of its mandate, the requirement to inform the parents of exceptional students about the special education process and to assist exceptional pupils and their families to access needed services and accommodations. It is up to the IPRC to ensure that parents are aware of all this information. Although the applicant in this instance was not accommodated to the point of undue hardship, this was not the result of an institutional failure on the part of the TDSB, but rather certain specific circumstances which resulted in the adverse treatment faced by the applicant resulting in his removal from the public system.
ORDER
180Therefore, I order the following:
Payment by the respondent in the amount of $35,000 as monetary compensation for the injury to the applicant’s dignity, feelings and self-respect. This amount is to be paid within 30 days of the receipt of this decision.
In the event that this amount has not been paid on time, post-judgement interest is to be paid to the applicant on the above amount in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43.
Dated at Toronto, this 30th day of November, 2015.
“Signed by”
Eva Nichols
Member