HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
L.B., as represented by Litigation Guardian S.B.
Applicant
-and-
Toronto District School Board
Respondent
RECONSIDERATION DECISION
Adjudicator: Eva Nichols
Indexed as: L.B. v. Toronto District School Board
WRITTEN SUBMISSIONS
L.B., as represented by Litigation Guardian S.B., Applicant
David Baker and Emily Shepard, Counsel
Toronto District School Board, Respondent
Lauri Reesor, Counsel
OVERVIEW
1This was 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.
3On November 30, 2015, the Tribunal issued a decision (the “Decision”). The Decision held that the Tribunal was satisfied that the applicant is a person with a disability under the Code. Further, that the applicant established a prima facie case of discrimination and that the respondent did not accommodate him to the point of undue hardship during the seven month period from September 2012 to April 2013.
4The Decision further stated that the Tribunal accepted that the applicant’s mother felt (emphasis added) that, as a result of the discrimination that the applicant faced, she had no option but to remove L.B. from the TDSB collegiate and to enroll him in his current private boarding school. The Decision also held that this step by the applicant’s mother, having regard to the provisions of the Education Act, effectively truncated and eventually eliminated the respondent’s ongoing obligations to accommodate him under the Code.
5Lastly, the Decision held that the Tribunal accepted the respondents’ arguments that a public school board cannot provide a residential school placement to match the one that the applicant’s mother 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 school boards provide as part of their statutory obligations, denying this, as the Tribunal held, is not a breach of the Code.
6On the basis of the above findings, the Tribunal ordered a payment by the respondent in the amount of $35,000 as monetary compensation for injury to the applicant’s dignity, feelings and self-respect.
7The applicant’s request for “special damages”, namely the full cost of his private residential school education until the end of his high school education in the amount of $144,559.42, as well as some other smaller amounts of financial compensation, were denied.
8The Application also contained non-monetary public interest and systemic remedies, which were also addressed, without an accompanying order, in the Decision.
9The applicant submitted a reconsideration request on December 30, 2015.
10The Tribunal received further written submissions on this matter from the respondents on January 5, 2016 and a reply from the applicant on the same day.
11Having considered the details of the applicant’s Request for Reconsideration, as discussed below, and the legal reconsideration test set out in the Code, in the Tribunal’s Rules and the relevant Practice Direction on Reconsideration, the applicant’s request for reconsideration is denied.
THE RECONSIDERATION TEST
12Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.
45.7 (1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.
(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.
13The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers. Rule 26 of the Tribunal’s Rules of Procedure states:
26.1 Any party may request reconsideration of a final decision of the Tribunal within 30 days from the date of the decision
26.5 A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:
(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or
(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or
(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or
(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.
14The Tribunal’s Practice Direction on Reconsideration begins with the following statements:
Decisions of the HRTO are final and are not subject to appeal. However, parties may request that the HRTO reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Generally, the HRTO will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.
Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.
15In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that Reconsideration is not an opportunity to re-argue a case. Once the parties have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.
16As is clearly enunciated in the Practice Direction on Reconsideration and in the Tribunal’s jurisprudence, reconsideration is not an appeal or an evaluation of alleged errors in a decision. See Latronico v. York Region District School Board, 2012 HRTO 637. It is a discretionary step on the part of the Tribunal, based on the grounds set out in Rule 26.5 of the Tribunal’s Rules of Procedure.
THE SUBSTANCE OF THE APPLICANT’S REQUEST FOR RECONSIDERATION
17The applicant takes no issue with the Tribunal’s primary findings, namely that L.B. is a person with a disability under the Code and that the TDSB discriminated against him by not accommodating him to the point of undue hardship during the period that he attended the named Collegiate Institute (the “C.I.”).
18Similarly, the applicant takes no issue with the Tribunal’s award of compensation or the disposition of the systemic remedies sought by the applicant.
19The applicant’s reconsideration request only addresses the “narrow issue of the applicant’s entitlement to special damages for the cost of his education at the named private boarding school.” Thus, it is clear that the applicant’s Request for Reconsideration disagreement is solely with respect to the remedy ordered by the Tribunal, rather than with the Tribunal’s findings regarding the breach of the Code or the order of general damages.
20The applicant states that he is seeking reconsideration under Rule 26.5(c), i.e., that the Tribunal’s decision is in conflict with established jurisprudence and the proposed reconsideration involves a matter of general or public importance. It is important to note that Rule 26.5 (c) requires that the applicant establish both of these factors, rather than just one or the other. The applicant’s submissions do not comply with this conjunctive requirement.
21The applicant alleges that the Tribunal’s factual findings, namely that there had been a breach of the Code, clearly support an award of special damages consisting of the full costs of the applicant’s private school education. Further, the applicant alleges that the Tribunal drew a series of erroneous legal conclusions to support its denial of awarding the requested special damages as well as providing no legally tenable or sound reason for not following the Supreme Court’s decision in Moore. The applicant also refers to a “backdrop of several factual omissions, which led to an erroneous conclusion.”
22Although these allegations, other than the specific reference to Moore, do not directly relate to the dual requirements of Rule 26(5), the points raised by the applicant are addressed below using the headings used by the applicant.
Regarding the factual background issues cited by the applicant
23The applicant has identified several factual issues contained in the Decision that he alleges led to an erroneous decision.
24First, the applicant states that the Tribunal accepted that S.B. had no option but to remove L.B. from the collegiate. In fact, the Decision stated that the Tribunal accepted that “S.B. felt that she had no option but to remove L.B. from the TDSB” (see para. 155 in the Decision). These two statements are not analogous. In fact, the Decision stated that the step of removing the applicant from the public system in March 2013, was premature. The applicant, I believe, claims this to imply that the Tribunal, apparently having accepted that this step was the only step available to the applicant at this time, should therefore have ordered the requested special damages as a logical conclusion. The applicant’s suggestion is not correct because the Decision did not find that this was the only option available to the applicant at this time. Also, this allegation has no connection to the requirements of Rule 26(5)(c).
25Secondly, the applicant states that the Tribunal failed to use the terms “school refusal” and “school phobia”, when describing L.B.’s disability. In the section of the Decision headed “The nature of the applicant’s disability”, paragraphs 20 to 26, L.B.’s identification and diagnostic information are covered. In paragraph 23, the Decision noted that the term “school phobia” was not included in the diagnostic information, on the basis of which L.B.’s exceptionality was determined. While it is true that Dr. Allan did refer to the conditions of “school phobia” and “school refusal”, he also stated that these are not conditions that are included in the Diagnostic and Statistical Manual of Mental Disorders (DSM V) and that he did not use so-called school refusal instruments to assess L.B., but rather relied on more general anxiety instruments.
26There was no disagreement between the parties that L.B. is a student with a disability. The Decision noted this. The Decision held that the respondent did not accommodate the applicant’s disability related needs, as a result of which the respondent was ordered to pay compensation to the applicant. These facts would not have been different if the terminology used to describe the applicant’s disabilities would have relied on or included the terms “school phobia” or “school refusal”. Further, this again, cannot be considered a factor in Rule 26(5)(c).
27I noted in the Decision that Dr. Allan stressed the importance of getting L.B. to attend school, which, in his opinion, was the best potential treatment for the ongoing difficulties faced by L.B. In much of his evidence, Dr. Allan did not explicitly address the necessity of a residential school placement or a private school. He commented on the importance of hockey as a motivator and he was complimentary about the benefits of the specific private hockey school placement where L.B. is in school now.
28The applicant also cites in his reconsideration request a statement ascribed to Dr. Allan: “I was no longer sure that just simply returning to a regular school program was going to help him that much.” In my opinion, this did not categorically and exclusively promote and/or support the placement of the applicant in the private residential school as the only or even the necessary option for meeting his needs. I accept and am glad to be told that, according to his mother, he is doing well, but a similar outcome may have been achieved if he had been appropriately and fully accommodated by the TDSB at the C.I. or in another appropriate placement.
29The applicant also refers to what he describes as “the uncontested evidence” and “overwhelming clinical opinions” of Dr. Allan and Dr. Marshall regarding the fact that the applicant required residential schooling to have his needs met. As the Decision held, the respondent did not call any evidence to counter the expert evidence provided by Dr. Allan regarding the applicant’s identified disabilities. However, it is important to note that Dr. Marshall did not attend the hearing and provided no evidence, other than the letter that was admitted as “hearsay”. Therefore, this information could only be afforded very little weight. It is important to note that none of these facts regarding the applicant’s identified disability relate to the requirements of Rule 26(5)(c) to justify the reconsideration request.
The legal arguments submitted by the applicant
30The applicant cited the so-called “but for” test to argue that the Tribunal’s determination that there had been a breach of the Code by the TDSB is sufficient to justify the award of special damages to the applicant for the full cost of his private school education.
31The applicant claims that the Tribunal committed a legal error when it stated that a public school board cannot be required to provide and fund a residential school placement as an accommodation and therefore could not be expected to pay for the applicant’s private school education. He argues that the fact that a residential placement with or without a focus on elite sports is not deemed to be a service provided by a public school board under the Code is irrelevant in the instant case.
32In this argument, the applicant refers to the Tribunal’s established jurisprudence. He cited several HRTO decisions where respondents were ordered to cover the costs of medical expenses, usually short-term counselling, as a remedy related to findings of discrimination. The circumstances in these decisions are not analogous to the instant case. For example, in Vipond v. Ben Wicks Pub and Bistro, 2013 HRTO 695 at para 58, the counselling services funded were short term, the costs were minor and the respondents, unlike school boards, did not function under legal definitions of their role and the services that they can and must provide.
33Similarly in Persaud v. TDSB, 2010 HRTO 1788, the transportation cost recovery ordered by the Tribunal was short term, of limited amount, and retroactive. Further, schools frequently provide students with public transportation tickets under special circumstances. The current situation and the amount requested for special damages are not in any way comparable to the decision cited.
34The applicant further submits that I erred in requiring him to demonstrate that the private residential sports-focused school was the “only” appropriate accommodation, as opposed to the most appropriate accommodation or the accommodation that best meets his identified needs and most respects his dignity. In my view, the Decision indicates that I did not accept that the applicant had established that the private residential school was the most appropriate accommodation or the accommodation that best met his needs or most respected his dignity, on the basis that there were other potential options available within the public system. I noted that these potential options, that in my view could have met his needs, had not been fully considered or explored.
Regarding the argument that the Tribunal did not rely on the Supreme Court’s decision in Moore and thereby did not rely on established jurisprudence
35In the Decision, the Moore analysis was cited and relied upon in paragraphs 114 to 120. Further, in para 164, I set out the reasons why I did not accept the applicant’s reliance on Moore. The applicant submits that by distinguishing the instant case from Moore, I made a significant legal error. I do not believe that that is the case. Without repeating all the arguments here, I wish to reiterate that the circumstances of this case are not analogous to the situation in Moore.
36As stated in the Decision, Jeffrey Moore had been in a special education program which met his needs and which was fully within the school board’s legislative mandate to provide. This program was discontinued by the school board for funding reasons. After that, he had no access to an “education”, which, according to the Supreme Court’s decision is the relevant service, rather than “special education”.
37On the advice of school board staff, his parents sought out a learning disability specific program, which enabled him to graduate from secondary school and to pursue a vocational option.
38The applicant argued that S.B. was supported by the staff of the C.I. in making the decision to transfer the applicant to the private school, similarly to the advice provided to the parents of Jeffrey Moore. I did not and do not accept the applicant’s statement that the C.I.’s guidance counsellor completing the form for the applicant for a hockey school is analogous to the recommendations provided to the parents in the Moore case (see para 145 of the Decision).
39I disagree with the applicant when he submits that because L.B. did not receive the accommodations he required in the public school system during the seven months that he was a registered pupil at the C.I., therefore he did not have any other options available for a public education. As stated in the Decision, other public education options could have been explored and made available.
Regarding the matter of the Tribunal’s expertise in the field of special education
40The applicant objects to the fact that I put forward some potential alternatives that might have met L.B.’s needs and would have been within the TDSB’s legislated mandate to pursue. The objections raised do not in any way relate to the Tribunal’s Rule regarding reconsideration. Nevertheless, I shall address them because the applicant suggests that this involved an expert opinion on the part of the Tribunal – which would have meant that the Tribunal has predetermined its view on the issue of accommodation.
41This Tribunal is recognized as a specialized expert Tribunal. Over the years, the Tribunal has issued decisions in special education and disability-related Applications, i.e., it has established case law regarding such matters. On this basis, in my view, this Tribunal has broader scope for considering and taking into account social facts and contexts in making its decisions, including such matters as the scope and extent of programming and accommodation services available to school boards and their pupils. Indeed, the Tribunal is mandated by the Code, in appropriate circumstances, to assess the extent of the programming and accommodation services available at school boards.
42The applicant references in the Request for Reconsideration that I have a specialized background in education and cites my membership on the Ontario Special Education Tribunal (“OSET”) and my position as a former school trustee as acceptable grounds for taking “judicial notice” (the term used by the applicant in his reconsideration request) of educational legislation and the duties and workings of school boards. Both parties referred several times during the lengthy hearing to my particular knowledge and understanding of the way the educational system functions in Ontario and in particular the way special education is mandated in this Province.
43It is not necessary to take “judicial notice” of the expertise of a particular Member or Vice-chair of the Tribunal, though it is clear that the past experience and expertise of Members or Vice-chairs is an important consideration in the appointment process. Applications filed with the Tribunal that are within the jurisdiction of the Tribunal are matters exclusively related to allegations of discrimination under the Code. These are all matters that are within the expertise of the Tribunal, regardless of the social area or context in which an Application may arise.
44The applicant objects in the reconsideration request to the fact that the Decision referenced certain publicly funded alternatives that the TDSB could have offered to the applicant and which could, potentially, have allowed him to continue within the public school system. He alleges that the Tribunal formulated an expert opinion on the suitability of these programs for the applicant. In addition, the applicant alleges that the Tribunal contravened “established jurisprudence on judicial notice” by referencing these options and by not inviting submissions on the options identified by the Tribunal.
45The Decision was not the first time that there was reference made to alternative programming, including, but not limited to, the Trillium Provincial Demonstration School for students with learning disabilities. During the hearing, I asked Dr. Allan whether he was aware of the Trillium School and its programming for students with similar needs to those of the applicant. He responded that he was aware of the school, but had not referred any students to it when he worked as a psychologist of a public school board.
46I asked a similar question of the relevant staff member of the C.I., who stated that she was not aware of this program. Therefore, my reference to the LEAD program at the Trillium School in the Decision was grounded in the evidence before me and should not have come as a surprise to the parties. It is important to note also that I did not state in the Decision that the Trillium School should have been the placement for L.B., had he remained with or returned to the jurisdiction of the TDSB.
Regarding the school board’s obligations under the law to provide a residential placement or program
47Clearly, this issue has no bearing on the matter of reconsideration in accordance with Rule 26(5)(c). However, since it was raised several times during the hearing and once again in the applicant’s reconsideration request, I am addressing the issue as a potential matter of public interest.
48At an early stage in the hearing, counsel for the applicant requested that I make a ruling and issue a summary judgement 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.”
49In 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. In that decision and more fully in the Decision issued on November 30, 2015, (2015 HRTO 1622), I discussed the obligations of school boards, including whether they are expected and/or able to provide residential programming similar to the one that the applicant receives in his current private residential educational placement.
50Without reiterating all of that information, I confirm that I based my decision on the following facts. School boards are expected to accommodate the needs of their exceptional pupils to the point of undue hardship, including but not limited to the provision of special education programs and services, transportation, home instruction, attendance counselling or referral to alternative educational settings provided under other legislation. They are expected to do this by either providing or purchasing from another school board special education services. 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 to establish full-time residential schools. It was my finding that the Education Act precludes them from doing so. This finding is further reinforced by the specific definitions of “school”, “private school”, and “pupil” in the Education Act.
51The applicant also argues in his reconsideration request that, even if it were accepted that the respondent did not have the statutory authority to establish or fund a full-time residential school placement, the applicant should still receive compensation for the educational component, as opposed to the residential component, of the cost of attending the private school. This argument is a new issue that was not raised during the hearing by the applicant and therefore, should not be a part of the reconsideration request. While there is no need to address this matter, I in fact disagree with this argument. Once again, the applicant’s submission pre-supposes that no alternative appropriate accommodations or placements were available for the applicant within the public school system. The Decision clearly stated that this had not been established in this case.
The matter of whether the applicant was a “resident pupil” of the TDSB after he was withdrawn from the C.I.
52This issue is once again outside the parameters set out in Rule 26(5)(c). The applicant objects to my reference to the matter that L.B. was no longer a “resident pupil” of the TDSB, once he had been withdrawn, sent to a private school and had his Ontario Student Record transferred from the C.I. to the private school. He states that this reference is irrelevant to the matter of damages and further, that this issue was not raised by the respondent. He claims that in effect the Tribunal argued the respondents’ case for them.
53The respondents’ brief letter of January 5, 2016, counters both of the above points. They state that both these points, i.e., their inability to establish a residential school under the Education Act and the matter of providing services and/or funding for “non-resident pupils”, i.e., for a student who does not meet the Education Act’s definition of “pupil” was indeed raised by them both during the hearing and in their written submissions.
54In this regard, I agree with the respondents. I reject the applicant’s veiled suggestion that I was in some way unfair in the hearing process or in my decision making, especially given my finding that the applicant had indeed established discrimination under the Code.
The matter of general or public importance
55The applicant states that reconsideration of the special damages component of the Tribunal’s decision involves a matter of public importance. He claims that this decision is the first of its kind in Canada, namely that it is the first time that a school board has been found to have discriminated against a student on the basis of his mental health. I accept that the decision is important.
56However, it is my opinion that what makes it important is the fact that a school board has been found to have breached the Code by not accommodating a student to the point of undue hardship. The Decision itself and the payment of compensation by the school board to the applicant, which apparently happened very shortly after the release of the Decision, are significant and may result in some systemic changes not just at the TDSB but also throughout Ontario’s publicly funded school boards.
57The matter of the requested and denied special damages, i.e., the payment of the full cost of the applicant’s education at the private elite sports boarding school, is, in my opinion, less significant from a public interest perspective than the determination that there had been a breach of the Code. The compensation ordered and paid reflects an acknowledgement and recognition that the Code demands the accommodation of students with disabilities to the point of undue hardship within the publicly funded educational system. This is, in my view, the issue of general or public importance – the finding that the publicly funded school system did not accommodate a student with a disability to the point of undue hardship in contravention of the Code.
58The applicant asserts that the Decision does not answer the question of what legal options a parent in Ontario has when the public school system has demonstrated that it will not accommodate a student’s mental health needs and has not provided any alternatives. In this he is correct, inasmuch that the Decision was focused on the individual Application regarding L.B.’s accommodation to the point of undue hardship by the TDSB and not on wide-ranging systemic issues.
Regarding the applicant’s references to judicial review and the request for an opportunity for oral arguments
59The applicant is free to pursue any further steps that he wishes to take.
60In accordance with all of the above, I find that the applicant has not met the burden of establishing any of the criteria for justifying reconsideration. He has not presented any new, compelling or extraordinary facts to justify reconsideration. In particular, I do not accept the applicant’s assertion that this Decision, although of public interest, is in conflict with the established jurisprudence of the Tribunal. Therefore, I see no need to invite oral submissions from the parties on this matter or to proceed with reconsideration.
DECISION
61The applicant’s Request for Reconsideration, focusing exclusively on the financial remedies ordered by the Tribunal, rather than the principal finding that there has been a breach of the Code, is essentially an attempt to re-argue this one singular aspect of the Decision. The Request for Reconsideration is denied on that basis.
Dated at Toronto, this 15th day of March, 2016.
“Signed by”
Eva Nichols
Member```