JF v. Waterloo Catholic District School Board, 2016 HRTO 953

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

JF as represented by his Litigation Guardian CF

Applicant

-and-

Waterloo Catholic District School Board

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: July 20, 2016

Citation: 2016 HRTO 953

Indexed as: JF v. Waterloo Catholic District School Board

APPEARANCES

CF as represented by his Litigation Guardian JF, Applicant

Laura McKeen, Counsel

Waterloo Catholic District School Board, Respondent

Nadya Tymochenko, Counsel

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to goods, services and facilities because of disability.

2This Interim Decision addresses a Request for Interim Remedy filed by the applicant. The applicant is a student in the respondent school board. There is no dispute that the applicant has been diagnosed as being on the Autism Spectrum. In the Application, the applicant alleges that the respondent violated his Code rights because it refused to allow him to attend school with his Autism Service Dog. The respondent denies that it failed to accommodate the applicant’s disability related needs and states that the applicant can be accommodated without his Autism Service Dog.

3The interim remedy the applicant requests is an order requiring the respondent to allow the applicant to attend school with his Autism Service Dog. The applicant’s parents are prepared to facilitate the dog’s attendance by providing the necessary documentation, equipment and advice regarding the animal’s needs (water, toileting etc.). A term of the order the applicant seeks would be to require the respondent to assign an Educational Assistant to be the handler for the Autism Service Dog with primary responsibility for the dog during school hours. The respondent would be responsible for training the Educational Assistant to be a handler.

DECISION

4The conditions for awarding an interim remedy are set out in Rule 23.2:

The Tribunal may grant an interim remedy where it is satisfied that:

a. the Application appears to have merit;

b. the balance of harm or convenience favours granting the interim remedy requested; and,

c. it is just and appropriate in the circumstances to do so.

5Normally, the Tribunal’s power to order respondents to do or refrain from doing something is contingent upon a finding that they have violated the Code. Interim remedies are extraordinary in that they constitute an order to do or refrain from doing something in the absence of a finding that the Code has been violated. For this reason, an applicant bears a “significant onus” in establishing that the Tribunal should award an interim remedy: TA v 60 Montclair, 2009 HRTO 269. The Tribunal has generally been more reluctant to order an interim remedy that will create a new state of affairs than one that would preserve an existing state of affairs: VandenBroek v. Villa Otthon, 2011 HRTO 279.

6In TA v. 60 Montclair, the Tribunal stated that since the Code is remedial legislation, the fundamental consideration in determining whether to award an interim remedy is “whether an interim remedy is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found.”

7When considering a request for an interim remedy, the threshold for determining whether an application has merit is that there be an arguable case and the claim is not frivolous or vexatious. See TA v. 60 Montclair at paragraphs 30-32. In my view, the applicant easily meets this requirement.

8I am not convinced, however, that the balance of convenience favours granting the interim remedy. The applicant filed declarations from his father, his IBI Consultant, his pediatrician and the Director of Program Development for Lions Foundation of Canada/Dog Guides Canada (the “Director”). All four identify the applicant as a flight risk and state that the applicant’s Autism Service Dog significantly mitigates the risk that the applicant will bolt from situations when faced with challenging or frustrating circumstances. The applicant’s father states that without his Autism Service Dog at school the applicant often comes home from school in a highly agitated state and experiences meltdowns (screaming, punching, kicking) for extended periods. The applicant’s father states that the applicant’s needs causes his parents to pay less attention to their other children and the need to address the applicant’s needs has strained his parents’ marriage. The applicant’s father states that the applicant’s needs are exacerbated because his service dog does not attend school with him. The applicant’s IBI Consultant, pediatrician and the Director each state that the applicant’s Autism Service Dog has assisted the applicant with anxiety when dealing with new environments and can be expected to assist him at school when he experiences new and stressful situations. Similarly, the Autism Service Dog has assisted the applicant in regulating his emotions at home and in the community, which will also assist him at school.

9The respondent submitted a declaration of the respondent’s Superintendent of Education – Special Education (the “Superintendent”), which included the following. The applicant’s behaviour is being successfully regulated while at school and that the respondent has provided appropriate special education programs for him. The applicant has never displayed fleeing/running/bolting behaviour while at school. The applicant is making progress at school and his skills and work habits are all in the satisfactory or good range. The applicant has made some good friends in the past school year and worked well with his classmates. The respondent conducted a Functional Behaviour Assessment of the applicant. The assessment determined that the applicant has some mild anxiety that can be quickly addressed. The applicant has not displayed behaviour that was out of control or that put himself or others at significant risk of harm while at school and the respondent has implemented strategies that have successfully addressed situations where the applicant demonstrated anxiety. The respondent must consider the needs of staff and other students, e.g., asthma, allergies, anxiety regarding dogs and cultural sensitivities, when assessing a request to allow a service dog into school.

10I do not doubt the declarations made in support of the Request for an Interim Remedy or the challenges the applicant’s family has experienced in connection with the applicant’s disability related behaviour. However, the material before me does not support the conclusion that the interim remedy requested is needed to ensure that the applicant has access to education or to avoid harm to him while at school while this Application progresses. The material submitted by the respondent, including the applicant’s report card, indicates that the applicant is making progress and does not exhibit the behaviours sometimes observed at home or in the community. On the other hand, granting the interim remedy would require the respondent to assign an employee to handle the applicant’s service dog, which, as noted in the Response, it may not be entitled to do, as well as pay for the training. Introducing a dog into a classroom setting may have adverse effects on the other students and staff that cannot be assessed at this time. This conclusion does not mean that the Application does not have merit, but that the balance of harm or convenience does not favour granting the Interim Remedy.

11The Request for Interim Remedy is denied.

12I note that the respondent has indicated that it is willing to participate in expedited mediation. Within seven days of the date of this Interim Decision, the applicant is directed to indicate whether he is willing to participate in expedited mediation. If so, the Tribunal will endeavour to schedule an early mediation.

13I am not seized.