CMC v. Toronto Catholic District School Board, 2016 HRTO 531

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

CMC, as represented by her litigation guardian, MC

Applicant

-and-

Toronto Catholic District School Board

Respondent

DECISION

Adjudicator: Jennifer Scott Date: April 22, 2016 Citation: 2016 HRTO 531 Indexed as: CMC v. Toronto Catholic District School Board

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The parties have agreed to resolve this Application and have filed a Form 25 with the Tribunal confirming their settlement and requesting that the Tribunal issue a consent order in accordance with subsection 45.9(2) of the Code.

2Having regard to the parties' agreement, the Tribunal issues a consent order on the terms attached hereto as Schedule "A".

3The Application is finally disposed of.

Dated at Toronto, this 22nd day of April, 2016.

"Signed by"

Jennifer Scott Vice-chair

SCHEDULE "A"

Implementation of Accessibility Policy and Procedure

1. In recognition of the importance of ensuring appropriate communication respecting accessibility issues, the Toronto Catholic District School Board ("TCDSB") will implement an Accessibility Best Practices Policy and Procedure, as attached, consistent with the Ontario Human Rights Commission "Policy and guidelines on disability and the duty to accommodate",¹ ("Policy") pursuant to its protocol for creation and implementation of new policies.

2. With the goal of promoting accessibility and streamlining the procedure for ensuring accessibility accommodation needs are promptly met, the TCDSB will communicate the policy and procedure to all elementary, secondary and other learning facilities, and will make the above policy and procedure readily available to students and parents through its website, and in accordance with the information and communication standards set out in the Integrated Accessibility Standard Regulation² under the Accessibility for Ontarians with Disabilities Act (AODA).

3. The policy and procedure will be implemented, communicated and posted to the TCDSB website no later than September 30, 2016.

Amendment to Policies to Address Age / Size Barriers

4. The TCDSB confirms its existing and ongoing commitment to the principles of universal barrier-free access, and to ensuring that those principles are considered in facility design and planning decisions.

5. In particular, the TCDSB will ensure that its policies respecting accessibility for individuals with disabilities, including its Accessibility Standards Policy Statement³ and Multi-Year Accessibility Plan,⁴ are reviewed to ensure that the policies include consideration of the unique accessibility needs of small children, and that any review conducted with respect to accessibility within TCDSB property will recognize that accessibility and removal of physical barriers for small children as well as adults.

6. The TCDSB will recommend that the TCDSB Accessibility Working Group, under Sections 10 of the 2012-2017 Multi-Year Accessibility Plan, review barrier removal and prevention strategies, and plan for increased accessibility, with respect to the issue of accessibility for small children with disabilities.

7. In the next Accessibility Annual Status Report under Section 11 of the Multi-Year Accessibility Plan, the TCDSB will confirm that going forward, in addition to meeting the minimum requirements under the Ontario Building Code and AODA, it will further meet the requirements of the Ontario Human Rights Code, subject to undue hardship, to take appropriate steps to ensure physical barriers are eliminated for all individuals with disabilities, including small children.

Direction to TCDSB Facilities and Planning Department

8. The TCDSB will provide a direction to its Facilities and Planning Department that planning related to new elementary school facilities or major renovations will include consideration of providing barrier-free access for small children, including appropriate placement of automatic door openers, and inclusion of washrooms accessible for small children with disabilities.

Accessibility Best Practices Policy and Procedure

Process for assessing requests respecting accessibility for students with disabilities

Introduction

Accommodating students' accessibility needs

The Ontario Human Rights Code guarantees everyone the right to equal treatment, and it applies to schools. Where a student requires accessibility accommodation as a result of a disability, a school board has the duty to accommodate the Code related needs of students, to make sure that school board property is free of barriers for people identified by Code grounds.

The duty to accommodate involves giving serious attention to requests or needs that are already known or may be suspected. Both the school board and the student and/or their parents or guardians, have a shared responsibility to cooperate in the process, each to the best of their ability. This might involve providing relevant medical or other personal information. A school board has a duty to keep this information private.

Even when an appropriate accessibility accommodation is identified, it may not always be possible to provide without resulting in undue hardship in terms of cost or health and safety. When the best possible accommodation would cause undue hardship, there is still a duty to put in interim or next-best solutions. Whatever steps are decided on, the school board need to put the accessibility accommodation in place as quickly as possible.

Accessibility accommodation will be provided in accordance with the principles of dignity, individualization, and inclusion. The school board will work cooperatively, and in a spirit of respect, with all partners in the accommodation process.

Purpose

The purpose of this Accessibility Best Practices Policy and Procedure is to:

• Ensure that all TCDSB ("School Board") employees, students and parents are aware of their rights and responsibilities under the Ontario Human Rights Code with respect to accessibility accommodation;
• Set out in writing the School Board's best practice for addressing accessibility accommodation requests and the responsibilities of each of the parties to the process.

Application

This Best Practice applies to accessibility accommodation requests for all students or prospective students of the School Board. It applies to all School Board locations.

This Best Practice does not apply to accommodations provided as part of special education programs and services for exceptional students under Identification and Placement of Exceptional Pupils, O.Reg. 181/98, made under the Education Act, RSO 1990, c E.2.

Requests for Accessibility Accommodation

Requests for accessibility accommodation should be made to the school principal.

Requests should, whenever possible, be made in writing. The accommodation request should indicate:

• The reason why accommodation is required, including enough information to confirm the existence of a need for accommodation; and
• The specific accessibility needs related to the student's disability

The School Board also encourages students and/or parents to suggest how accessibility may be improved. In addition, the Board encourages the student and/or parent or guardian to provide reports, letters, and/or other documents from doctors or other health care professionals relating to the disability and the impairments or restrictions which give rise to the need for accommodation, and which could be of assistance in implementing appropriate accessibility changes.

When the school principal receives a request, the school will sent a letter or email confirming that the request has been received. The request will be considered in as expeditious a manner as possible. The request will be addressed and the appropriate accommodation will be provided in a way that respects the dignity of the student. Amongst the things considered in assessing the request are:

• The student's disability and the arising impairment or restrictions
• The medical evidence provided, and/or, depending on the circumstances, additional medical evidence obtained with the permission of the student and/or parents or guardians;
• The accessibility accommodations requested;
• Other possible accommodations that may address the student's impairment or restrictions;
• Whether the accessibility accommodations would cause undue hardship to the School Board, taking into account cost, outside sources of funding, and health and safety.

Throughout the process the School Board follows in assessing the request, the school principal will maintain carriage of the process on behalf of the School Board, and will generally be the person who contacts the student and/or parent or guardian. The principal is also the person the student and/or parent or guardian should contact if they have any information to provide or if they have any questions, concerns or input into the process.

The school principal will, where appropriate, escalate any issues concerning accessibility to the following School Board personnel:

• The Superintendent of Human Resources
• The Superintendent of Special Education
• The Superintendent of Facilities
• Legal Counsel

Once the request has been assessed, the principal will contact the student and/or parent or guardian in writing or by email to advise of the decision with respect to the request. Depending on the circumstances, the decision may be to:

• Accommodate the student in the way requested
• Accommodate the student in a different way that will still meet her or his disability needs
• Implement the appropriate accessibility accommodation at a later time, if immediate accommodation would result in undue hardship
• Implement an interim accommodation until a permanent accommodation can be put in place
• Deny the request

If the decision is to accommodate the student other than in the way requested, written reasons will also be provided explaining the decision.

Joint Responsibility

Accommodation is a two-way street. In other words, it is a process that requires mutual cooperation. The school will need the help of the student and/or parent or guardian to implement appropriate accessibility accommodations for the student's disability. This may include:

• Meeting with the school to discuss the impairments or restrictions the disability raises
• Taking part in discussions on possible accessibility changes and solutions
• Cooperating with the School Board in obtaining information from doctors and other health care professionals necessary to implement appropriate accessibility accommodations
• Cooperating with any outside professionals the School Board may retain to assess or implement accessibility accommodations, including building contractors, designers, and consultants

Likewise, the school will participate in the accommodation process in accordance with the principles of dignity, individualization and inclusion. We will work cooperatively, and in a spirit of respect, with all partners in the accommodation process. This may include:

• Accepting the accommodation request in good faith, unless there are legitimate reasons for doing otherwise
• Ensuring that the student or parent/guardian are provided with regular updates on the accommodation request
• Taking an active role in ensuring that alternative approaches and possible solutions are investigated
• Getting expert opinion or advice where appropriate
• Respecting confidentiality and privacy, and only sharing · information with individuals directly involved in the accommodation process
• Limiting requests for information to what is reasonably related to the accommodation
• Dealing with the accessibility accommodation request in a timely way

Footnotes

1. 1http://ohrc.on.ca/sites/default/files/attachments/Policy_and_guidelines_on_disability_and_the_duty_to_accommodate.pdf
2. 2Integrated Accessibility Standards, O Reg 191/11 (http://canlii.ca/t/8pfx)
3. 3https://www.tcdsb.org/FORSTUDENTS/AccessibilityPlan/Pages/default.aspx
4. 4https://www.tcdsb.org/Board/Policies/Documents/TCDSB%20IASR%20PLAN-%20Final.pdf