HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
J.F. by his litigation guardian C.F.
Applicant
-and-
Waterloo Catholic District School Board
Respondent
DECISION
Adjudicator: Laurie Letheren
Indexed as: J.F. v. Waterloo Catholic District School Board
APPEARANCES
J.F. by his litigation guardian C.F., Applicant
Laura M. McKeen, Counsel
Waterloo Catholic District School Board, Respondent
Nadya Tymochenko, Counsel
Introduction
1This Application was filed on April 18, 2016 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). It alleges the applicant experienced discrimination on the basis of his disability when the respondent refused his request to have his autism assistance guide dog ("his guide dog") attend in class with him. The applicant also alleges that the respondent's conduct during its process of reviewing and responding to this request breached his Code rights.
2The applicant is a child who has been diagnosed with Autism Spectrum Disorder ("ASD"). In April 2014, he was accepted into the Autism Assistance Guide Dog Program that is implemented by the Lions Foundation of Canada.
3During the 2014/2015 school year, when the applicant was enrolled in grade two at an elementary school within the respondent Board, his father, C.F. made a request on his behalf that his guide dog be allowed to accompany him in class.
4The respondent denied this request. That denial is the basis of this Application.
5A hearing took place over the course of seven days on March 13 and 14; June 6-8, and June 20 and 21, 2017. During the hearing, evidence was heard from C.F.; an applied behaviour analyst who has worked with the applicant; and the director of programs development at the Lions Foundation of Canada Guide Dogs. I did not hear evidence from the applicant, who turned nine during the course of the hearing.
6The respondent called its Superintendent of Special Education; its special education resource liaison; a special education teacher at the applicant's school; and a psychologist who works with the respondent to provide evidence.
7My decision does not detail all of the extensive evidence that was entered during the hearing, but refers to the evidence that I concluded was necessary to determine the issues in this Application.
PUBLICATION BAN REQUEST
8Throughout the course of this hearing a number of reporters from various media outlets were present in the hearing room. On one of the last days of the hearing, the respondent made a request that I order a partial publication ban on the media from disclosing the names of two of its witness, the special education teacher at the applicant's school and the psychologist.
9The basis for the request was that in the previous days the Twitter feeds of the respondent's Director of Education and the Superintendent of Special Education had been "highjacked." A character or two of their Twitter accounts had been altered and their photos were attached to the new accounts. The respondent did not know who was sending the tweets over the new accounts but because the characters of these accounts were so close to their actual accounts and because their photos were associated with the accounts, the public could mistakenly believe the messages had been sent by the Director of Education or the Superintendent of Special Education. The language used in a number of the tweets could offend many. Many of the tweets also made statements against the respondent and what the authors of the tweets alleged were its positions on allowing service dogs in its schools.
10The respondent asked that I ban the media from publishing the name of the special education teacher who was to provide evidence in order to attempt to curtail those who may read the media reports about his evidence from subjecting him to personal attacks. It alleged such attacks could impact his ability to properly support the students in need of his assistance in the school. It requested the ban on the publication of the name of the psychologist to shield her from personal attacks. It alleged such attacks could impact her reputation and negatively affect her private practice.
11I denied the publication ban on the day it was requested in an oral decision on the basis that I did not find that the basis for the request met the high threshold that is required in order for the Tribunal to curtail the right to freedom of expression that is protected under the Canadian Charter of Rights and Freedoms (the "Charter"). My written reasons for the denial are as follows.
12As the Tribunal stated in Cybulski v. Canadian Corps of Commissionaires, Ottawa Division, 2013 HRTO 1773 at paragraph 14:
The Tribunal's Rules of Procedure make clear in Rules 3.10-3.12 that the default position is that Tribunal proceedings are public proceedings. Implicit in that general principle is the recognition that a publication ban is an extraordinary remedy which impinges on constitutionally-protected rights such as the freedom of expression of the parties and of third parties, including observers of Tribunal hearings and the media.
13The Supreme Court of Canada has stated that the party seeking a publication ban bears the onus of proving that the proposed ban is necessary in order to prevent a real and substantial risk to the fairness of the trial and that reasonably available alternative measures will not prevent the risk; the request relates to an important objective that cannot be achieved through another means; that the proposed ban is as limited as possible; and that there is a proportionality between the salutary and deleterious effects of the ban [see, Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, ("Dagenais")].
14The respondent did not indicate that the publication ban was necessary to preserve the fairness of the Tribunal proceeding. Protecting a witness from the possibility that others may express opinions or interpret or misrepresent a witness' evidence in a way that personally attacks the individual or could offend that witness does not outweigh the important principles of transparency in having open hearings.
15I found that the respondent's request did not meet the test as set out in Dagenais. The publication ban is denied.
16I understand that the subject matter of this Application has had a significant amount of media coverage in which the applicant's name may have been reported; however, in applications made on behalf of a minor child, the Tribunal's practice is to anonymize the applicant's name. This is done in recognition of the fundamental value of the legal system to protect children. Unlike adult applicants, the applicant did not have to consent to the filing of this Application and he did not make the decisions about how the Application would proceed through the Tribunal process. The applicant is a young child with a disability and I have attempted to remove all possible identifiers of him, including the teachers' and school's names, and his dog's name in order to preserve his privacy and dignity in the Tribunal's process.
ACCESSIBILITY FOR ONTARIANS WITH DISABIILITIES ACT, Integrated Accessibility Standard and the Code
17The Accessibility for Ontarians with Disabilities Act, ("AODA") in an Ontario statute that aims to identify, remove, and prevent barriers for people with disabilities. The Integrated Accessibility Standards, O. Reg. 191/11 ("Standards") is a Regulation made pursuant to the AODA that impose obligations on government, businesses, non-profits and public sector organizations in an effort to become more accessible. The applicant submits that his guide dog meets the definition of a service animal under section 80.47 of the Standards. He submits that under section 80.47 of the Standards, he has a legal right to be accompanied by his guide dog when accessing services that are open to the public which includes his school. He submits that as a result of the rights provided to him under the Standards, the respondent does not have the right to require him to demonstrate his need for his guide dog prior to allowing his dog access to school. The applicant argues that even if I do not find that schools are open to the public, the applicant has the right to attend his school with his dog.
18The applicant submits that it is not disputed that he is a person with a disability and that his dog is a service dog as defined in the Standards. He submits that the respondent's requirement that he demonstrate that the dog is needed for him to access the curriculum is an additional burden imposed on him and that imposition is not in compliance with the Standards or the Code. He submits that this imposition creates as distinction between those who have an invisible disability and those whose disability is more obvious.
19The respondent submits that schools are not open to the public as public access to schools is restricted under the Education Act, R.S.O. 1990, c E.2, as amended ("Education Act") and its regulations. It submits that section 80.47 of the Standards provides for an exception to access if it is excluded by law. It further submits that under subsection 80.47(3) of the Standards if it is excluding access to the guide dog, it must make other measures available to ensure that the applicant has and continues to have access to its educational services. It submits that it has met this obligation.
20The Tribunal's jurisdiction is to apply the Code. It does not have the jurisdiction to apply and enforce the Accessibility for Ontarians with Disabilities Act 2005, S.O. 2005 c. 11 ("AODA") or the Standards. See Clipperton-Boyer v. McDonalds Restaurants of Canada Limited, 2016 HRTO 967 at para, 20; Thomas v. Sobeys Capital Incorporated, 2014 HRTO 299 at para. 25; and Martel v. Ontario (Community and Social Services), 2014 HRTO 1367 at para. 15.
21However as the Tribunal has noted in a number of its decisions, the Code's provisions need to be considered together with the AODA and its Standards. See: Sprague v. RioCan Empress Walk Inc., 2015 HRTO 942.
22Section 80.47 of the Integrated Standard reads:
(1) This section applies if goods, services or facilities are provided to members of the public or other third parties at premises owned or operated by the provider and if the public or third parties have access to the premises.
(2) If a person with a disability is accompanied by a guide dog or other service animal, the provider shall ensure that the person is permitted to enter the premises with the animal and to keep the animal with him or her, unless the animal is otherwise excluded by law from the premises. O. Reg. 165/16, s. 16.
(3) If a service animal is excluded by law from the premises, the provider shall ensure that other measures are available to enable a person with a disability to obtain, use or benefit from the provider's goods, services or facilities.
23The public and third parties do not have access to school premises. Section 305 of the Education Act stipulates that the "Minister may make regulations governing access to school premises" and "No person shall enter or remain on school premises unless he or she is authorized by regulation to be there on that day or at that time."
24Ontario Regulation 474/00 governs access to school premises under section 305 of the Education Act. Subsection 2(1) of O. Reg. 474/00 states:
Subject to any restrictions set out in this regulation, the following persons are permitted to be on school premises when the premises are being used for a purpose authorized by the board:
A person enrolled as a pupil in the school.
25The applicant is correct when he states that as a student he has the right to access his school. However, since the public does not have access to the school, the Standard does not impose any obligation on the respondent to ensure the applicant is permitted into the school with his guide dog.
26Once the applicant is permitted to attend his school, the respondent has a legal obligation to deliver educational services to him in a manner that does not breach his rights as protected by the Code. The Tribunal has jurisdiction over the protections provided by the Code.
27Section 1 of the Code provides:
Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.
28In Moore v. British Columbia (Education), 2012 SCC 61, the Supreme Court of Canada has confirmed the traditional prima facie test for discrimination in the context of the provision of education services. The Court held that to demonstrate discrimination, applicants must show 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 a prima facie case of discrimination has been established, the evidentiary burden 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).
29The 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.
30The Court held at para. 36 that a school board has provided meaningful access to a student if it has delivered the mandate and objectives of public education to that particular student. One of the stated purposes of the Education Act in Ontario is:
(2) The purpose of education is to provide students with the opportunity to realize their potential and develop into highly skilled, knowledgeable, caring citizens who contribute to their society.
31The applicant has the burden of proving that he experienced discrimination when the respondent breached his Code rights. To demonstrate prima facie discrimination he must show he has a characteristic protected from discrimination; that he has experienced an adverse impact with respect to the decisions or actions of the respondent in the delivery of education services and that the protected characteristic was a factor in the adverse impact.
32The applicant submits that he experienced adverse treatment when the respondent failed to accommodate his disability related need to have his guide dog accompany him in school.
33The duty to accommodate is imposed under section 11 of the Code which provides:
- (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
34There is both a procedural and a substantive aspect to the duty to accommodate an individual in the provision of services. See: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 at paras. 62-68.
35The procedural duty to accommodate requires a respondent to take adequate steps to explore what accommodations are needed and to assess accommodation options. The procedural component requires that the respondent undertake a reasonable investigation to understand the applicant's disabilities and needs for accommodation. The applicant must request the accommodation and provide the information that is necessary for the respondent to understand the needs associated with the disability.
36The 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 modifications, accommodations and programs identified and implemented by the respondent for the applicant.
37The applicant alleges that the respondent has failed in both the procedural and substantive components of its duty to accommodate his disability related needs. It is these issues, within the context of the Code that the Tribunal must determine in this Application.
DID THE RESPONDENT FAIL IN THE PROCEDURAL COMPONENT OF ITS DUTY TO ACCOMODATE?
38There was very little dispute in the evidence provided by the parties.
The Autism Guide Dog
39C.F. provided evidence about the steps he undertook in his request that the applicant's guide dog attend school with him. He explained how the applicant's family had applied for a dog for the applicant through the Lions Foundation of Canada Dog Guides program but that he was not that involved in that application process. He understood that the application was completed in early May 2013. Documents entered into evidence supported this timing. At the time of applying, the applicant was almost five years old and according to C.F. he had been running out of the house and down street and bolting away from them when they were on outings from the house. The applicant's mother had done some research, which lead them to think that a trained dog could help with this bolting behaviour. In the application to the Lions Foundation, it is indicated that the applicant's family hoped that the dog would help to keep him from bolting; would assist him with his mood regulation; would calm him at night; and would ground him so that he could sit still for longer periods of time.
40C.F. testified that they learned that the applicant had been chosen to participate in the guide dog program in early 2014 and in April 2014 C.F. attended training where he learned about dog behaviour, commands and how to care for and handle the dog. He then taught the applicant's mother and grandmother what he had learned and the guide dog was introduced to the applicant and his family. He explained that the applicant does not have the strength or agility to handle the guide dog on his own. An adult is required to handle the dog and to give the dog the commands.
The Initial Request to Have the Guide Dog in School
41He stated that he had been told that the guide dog needed time to bond with the applicant and that she should not be accompanying the applicant to school until they had been together for six months to a year. Emails that were entered into evidence indicate that on April 28, 2014, C.F. sent an email to the principal and the special education teacher at the applicant's school. The email indicated that the guide dog was to assist with the applicant's potential flight risk. C.F. proposed that the guide dog could begin attending in January 2015 and states, "the other requirement is for an [educational assistant] to be the only designated handler for [the guide dog] at [the school] as [the applicant] is only permitted to be the client." He also offers that the Lions Foundation is available to provide more information and answer questions.
42The special education teacher responded on April 29, 2014 and the principal responded on April 30, 2014. They indicated that they were not familiar with the respondent's policy on service dogs and that they would get back to C.F. once they had discussed his request with the respondent. On May 23, 2014, the principal sent C.F. an email in which he apologized for the delay in responding and stated that the Board had very rigid guidelines around having a dog in the schools and that it looked like the applicant would not qualify. C.F. then asked for clarification and they had a telephone conversation in early June 2014. C.F.'s recollection of the discussion with the principal was that the principal indicated that the applicant was doing very well and that having the dog might make him "stick out like a sore thumb" and that other students might have a negative reaction to the dog in the school.
The Formal Request
43C.F. testified that during this time, the applicant had a very busy schedule with school and Intensive Behavioural Intervention ("IBI") therapy so he did not follow-up on his request for about 17 months. On November 10, 2015 he made what he characterized as a "formal request" to the superintendent of special education, Dr. Laura Shoemaker. In his email to Dr. Shoemaker, he emphasized that the dog is a trained autism service dog. He set out his opinion that the guide dog would benefit the applicant by assisting in regulating emotions and controlling outbursts. He also stated that the applicant had expressed how his guide dog helps him feel more comfortable when he is doing homework and explains how the IBI therapist has been teaching the applicant to use the guide dog to help to regulate his emotions when facing tasks he finds challenging.
44Dr. Shoemaker responded to C.F.'s email on November 11, 2015. In her email she stated that the respondent generally applies the service dog policy to students with vision disabilities but the respondent is committed to accommodating students and must consider the needs of all students. She states that the inquiries she made indicated that the applicant was doing very well in transitioning to grade two and that usually the respondent is able to address the needs of student through the many supports and therapies that are set out in the student's Individual Education Plan ("IEP") and professional support. She asked if he had any "particular concern that the dog would address that is not or could not be addressed through other means." She invited C.F. to send any opinions or recommendations of professionals that he would want her to consider.
45In his response on November 15, 2015 C.F. reported to Dr. Shoemaker that the applicant was doing very well at his school, it was a fantastic environment for him and that he loved it at his school. He indicated that he would send documents from health professionals. The documents entered into evidence by the applicant demonstrate that C.F. sent Dr. Shoemaker some letters from medical professionals on November 19, 2015.
46A meeting was held on December 2, 2015 with C.F., the school principal, the special education teacher, the applicant's classroom teacher, and Dr. Shoemaker.
47C.F. testified that during the meeting he advised those present that the applicant was often very wound up when he returns home from school and that he was experiencing great anxiety. His recollection was that special education teacher thought the dog could be a crutch that the applicant could rely on the dog too much instead of fending for himself and that the principal said the dog was not needed.
48He answered a series of questions about the guide dog and her qualifications and behaviours; how she would be integrated into the applicant's school routines; how she is to be handled; and how C.F. thought she would aid the applicant. C.F. testified that he later reflected on these questions and his answers in combination with comments that he had heard Dr. Shoemaker make about service snakes, ducks and ponies. He wondered if he should have had someone from the Lions Foundation better answer these questions. In cross-examination he stated that he was frustrated that these questions had not been sent to him in advance so that he could have talked to Ian Ashworth, the Director of the guide dogs program, who is more expert and could provide better answers about how the service dog would be worked into the programming and strategies that the applicant has at school. However, he did agree that he had been able to answer most of the questions during the meeting. He again stated in cross-examination that what had upset him was Dr. Shoemaker's comments about service snakes, ducks and ponies and he was concerned that perhaps she was not aware of what a service animal is.
49He signed the required consent to have the behaviour support team attend in class to observe the applicant. He stated that upon later reflection he became concerned about the true purpose of such an assessment. He wrote an email to Dr. Shoemaker later that day, which was entered into evidence, to ask her how the behaviour team would provide a better assessment of the applicant's needs and abilities than those described by his two psychologists.
50Dr. Shoemaker's testimony was that she wanted to have the school personnel who had seen the applicant in the school environment provide their observations on how he was doing in school and also wanted to hear what the applicant's family was observing so she asked that they all meet. The classroom teacher, the special education teacher and the principal had all indicated that the applicant was doing very well in school. The notes of the meeting reflect this. The notes also indicate that the classroom teacher reported that he was focused in doing school work, "wiggly but engaged and listening, playing with friends, a "math superstar."
51It was the evidence of the special education teacher that during this meeting he and the principal both expressed their concerns that the guide dog would set the applicant back in his independence and great progress and that he could become reliant on her rather than working with his peers and teachers. It was his recollection that all reports indicated that the applicant was having a good year at school. This is reflected in the meeting notes.
52Dr. Shoemaker's testimony was that she had made the comment about snakes, ducks and ponies in the context of what was at the time reflected on the respondent's website about AODA compliance as the respondent was in the midst of revising its policy on service animals. It was her evidence that she made this statement because she wanted to be clear that the respondent's new policy would only be addressing the process for dogs.
Observations by the Behaviour Support Team
53Dr. Shoemaker stated that because there was an apparent disconnect between what the school was reporting about the applicant's success and what C.F. was reporting about the applicant while he is at home, she decided that the behaviour support team should attend in the applicant's class to do an independent assessment of his needs and challenges. She stated that the two psychologists who had written the reports that C.F. had submitted had never observed the applicant in school or communicated with the school. Her opinion was that in order to assess the needs of a student, the student is to be observed in the education setting to be able to track the root causes of any behaviours and challenges displayed in school. She stated that they wanted to respect and work along-side with the applicant's family to better understand the need for the guide dog. It was her opinion, that the people on the behaviour team have the best perspective on what a student's learning needs could be. Her reason for asking for a behaviour team assessment and the team members' qualifications to make such an assessment were not challenged by the applicant.
54On December 2, 2015 C.F. also sent an email to Dr. Shoemaker in which he asks if she would have time to meet with him and a representative from the Lions Foundation. He also asked her about the utility of the behaviour team assessment. Dr. Shoemaker responded on December 3, 2015 and explained that the behaviour team would do a functional skills' assessment and would have a discussion with him and the applicant's mother to ensure that the school's accommodations are optimal for the applicant. She discusses the disconnect between the school's view of how the applicant is doing and C.F.'s view and indicated that behaviour team assessment would benefit the applicant's programming.
55When asked how he felt about Dr. Shoemaker response he stated that he felt reassured about the next steps. However, the emails submitted into evidence show that on December 3, 2015 C.F. sent an email to Loretta Notten the Director of Education for the respondent. In his email, he asks to arrange a telephone discussion with Ms. Notten. He stated, I "feel that I'm being stonewalled by the Superintendent, Laura Shoemaker. I don't get the impression that she has any desire to learn about the benefits of these animals." He made reference to Dr. Shoemaker's statements about service snakes, ducks and ponies and stated that Dr. Shoemaker had ignored his request to have a representative from the Lions Foundation meet with the respondent.
56C.F. testified that he sent this email to Ms. Notten because it was unclear where they were in the process and he wanted to expedite the process as it was moving slowing in his opinion. He stated by that point they had the guide dog for about one and one half years and in his opinion, she was spending too much time at home. However later in his testimony, in cross-examination, he stated that at this point he was not frustrated or disappointed that the process was taking too much time.
57He testified that he was not sure of the purpose of the behaviour team. He had not seen such an assessment referenced in any policy so he thought that suggesting this behaviour team observation was a tactic by the respondent to slow down the process for getting a guide dog in school.
58C.F. described his discussion in early December 2015 with Ms. Notten as adversarial and he felt he was being stonewalled. She was backing up Dr. Shoemaker and she did not appear too upset by Dr. Shoemaker's conduct. He had hoped that Ms. Notten would suggest that she would look into the matter to make sure this process was proceeding as it should.
59C.F. sent a further email to Dr. Shoemaker on December 3, 2015 in which he proposes that he and Mr. Ashworth meet with her, Ms. Notten, the special education teacher and the principal to have Mr. Ashworth explain how the guide dog would be an asset to many in the school. Ms. Notten responded the same evening to suggest she have a phone conversation with C.F. to discuss the process. On December 7, 2015 C.F. wrote again to everyone to propose a meeting with the Lions Foundation and provided dates of Mr. Ashworth's availability.
60In response that same day, Ms. Notten sent an email to C.F. to explain the timing and process for the behaviour team assessment. In the email she stated that as she had explained to him in the telephone conversation, the behaviour team assessment is an instrumental starting point for the conversation of next steps. She explained that once the assessment had been completed there would be a case conference that Mr. Ashworth would be welcome to attend.
61The evidence shows that there was a case conference on January 13, 2016. In addition to those who had already been in meetings with C.F., the members of the behaviour team, the principal of special education, the applicant's mother, the applicant's IBI therapist, Mr. Ashworth and C.F.'s legal counsel were among the attendees. C.F. testified that the behaviour team provided its report from the two weeks of observation of the applicant in the class. He recalled that the behaviour team reported that they had not flagged any major issues.
62At the end of the meeting steps were outlined which included advising the school community of possible dog attendance, setting criteria to review the success, the need to have signed consents to speak with applicant's medical professionals and the presence of the guide dog was to be discussed at a parent council meeting. C.F.'s testimony was that he was hopeful after this meeting that the process was advancing in the right direction and the tone was more accommodating.
63C.F. testified that he believed they had discussed a start date for when the dog would begin to attend school with the applicant. Some of the correspondence that was introduced into evidence reflects that he was proposing a start date for after the March break that year. Dr. Shoemaker's evidence was that there had never been any agreement on a start date. Correspondence from Ms. Notten to C.F. appears to reflect that in her opinion a start date had not been determined. Ms. Notten did not provide evidence at the hearing.
Parent Council and Trustees Meetings
64It was C.F.'s evidence that he and Mr. Ashworth met with parent council on March 2, 2016. Mr. Ashworth answered many questions.
65The evidence indicates that on March 10, 2016, a meeting was held between C.F., the applicant's mother and representatives from the respondent. It was C.F.'s evidence that at this meeting the respondent told them that they were "hard pressed to find a path of improvement" which he stated that he interpreted to mean that having his service animal at school would not make the applicant's situation better. He testified that they were told the respondent could not identify any need for having the service animal as an accommodation as they did not see the absence of the service animal as impacting his education and that the school supports would continue to work on social skills. He recalled being told that according to those who taught and observed the applicant at school and according to the members of the behaviour team who had observed the applicant in his classroom, the applicant was experiencing academic success and socializing well. The respondent's representative expressed the opinion that the applicant was experiencing success in the goal of moving towards independence and that as a result, they had determined there was no need for the guide dog.
66On March 11, 2016 C.F. made a request to the trustees of the respondent board that he be added to the agenda of their March 21, 2016 meeting to give a presentation which he described as his request to address the denial by Ms. Notten and Dr. Shoemaker to allow his son to have his service dog in school. In his testimony he stated that in his opinion the Director of Education reported to the trustees so he thought that they might be able to direct the respondent to take another look at the request to have the service dog attend with the applicant.
67On March 21, 2016 C.F. made a presentation to the trustees and superintendents and he answered questions. According to C.F., the applicant and his service dog were both in attendance.
68C.F. testified that it was his understanding that following this March 21, 2016 meeting, there would be a report to the trustees at next board meeting to clarify what had transpired. C.F. attended the next board meeting on April 11, 2016 and when he arrived he saw that the respondent's legal advisors were making a presentation on a new policy that addressed service dogs. He stated that in watching the presentation he noted that the definition of "handler" had been changed. It was his opinion, that under the new definition if a child was unable to control the dog, the child would not be the handler for the purposes of the respondent's policy. He stated that when he saw this, it was his opinion that the intent in making this change was to allow the respondent to line up its policy with its opinion of the applicant's guide dog was just a comfort dog. It was C.F.'s opinion that this was a way to exclude the applicant from the definition and therefore he would not meet the criteria that the respondent required for a student to bring a support dog into the school.
69C.F. stated that he left this meeting in disgust as he felt he had wasted everyone's time and his efforts had been pointless.
70On April 13, 2016, C.F. received an email from the board of trustees in which he was advised that under the Education Act, it was not within the powers of the trustees to overturn the decision to deny the request to have the applicant's service animal accompany him in school. In response, C.F. asked for a written decision from the staff to detail the reasons for the denial. He also requested information on the section of the Education Act to support the trustees' position and an explanation as to why the lack of power had not previously been discovered.
71On April 18, 2016, Ms. Notten sent an email to C.F. in which she explained the respondent's reason for the denial. She stated that the applicant had been assessed by his teacher and the behaviour team and they reported that the applicant is "experiencing academic success and is socializing well." In this email it is stated, "Our goal with all students is to move them towards independence and [the applicant] is functioning quite well in the school environment toward that goal. Further, as [the applicant] is not old enough to function as [the] handler at this time, she would be identified as a comfort dog, rather than a service dog."
Applicant's School Programming since Decision to Deny his Guide Dog
72Both parties presented evidence about the assessments, collaborative team meetings, development of IEPs, class-room strategies and other means by which the applicant's strengths and needs continue to be assessed. I also heard evidence about the ways that the variety of tools and strategies are often changed or tweaked. The applicant did not make any allegations that the respondent failed in its duty to accommodate in other ways beyond the allegation that respondent failed in its procedural duty in the process to determine whether the applicant's service animal would accompany him to school.
ANALYSIS OF THE PROCEDURAL DUTY TO ACCOMMODATE
73The applicant submits that the respondent failed in its procedural duty to accommodate when it insisted on the application of its own procedures to determine if the applicant had a demonstrated the need to have his service animal with him in order to access the curriculum. As stated above, the applicant submits that he established that his dog met the definition of a service animal under O. Reg. 191/11, so the respondent had an obligation to allow his service animal to accompany him in his classrooms.
74The respondent submits that it fulfilled its procedural duty to accommodate the applicant by engaging in a full assessment of the applicant's needs in accessing curriculum. It submits that it has an obligation under s. 170 of the Education Act to provide the programs and services that the applicant needs to develop his strengths and allow his to have meaningful access to the services it provides its students The respondent submits that because it has this responsibility it also have the right to determine how to exercise that responsibility. It submits that its own policies set out a collaborative and comprehensive process for exercising this responsibility. It further submits that it would be inconsistent with the case law that has established the meaning of the duty to accommodate and would nullify its responsibility under the Education Act, if it were required to allow the service animal into the classroom without doing an assessment to determine if the service animal is needed as an accommodation of his disability.
75I have found that the respondent has not failed in its procedural duty to accommodate.
76It has long been established through the case law on the duty to accommodate in the human rights context that the procedural duty to accommodate requires a respondent to demonstrate that it has undertaken a reasonable investigation and individualized assessment to understand the applicant's disabilities and needs for accommodation. See: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 SCR 868 at paras. 42-44; and Schafer v. Toronto District School Board, 2010 HRTO 403 at paras. 14-15.
77I cannot agree that the respondent breached its procedural duty to accommodate when it insisted that it undertake a process to determine if an assessment of the applicant's needs demonstrated that his service animal was required to accommodate those needs in accessing the respondent's services. Rather, I find that the respondent was required to engage in this process in order to fulfill its procedural duty.
78The respondent acted in a timely manner in responding to the applicant's initial request to have his service dog in the class with him. The special education teacher and the principal responded within a day or two of this first inquiry in late April 2015. It was necessary for the principal to canvas more information about the respondent's policies and once he had that information he responded quickly to C.F. It was C.F.'s evidence that he had not followed up again until about 17 months had passed. When he did write to Ms. Shoemaker in November 2015, she responded within a day and arranged a case conference between the applicant's parents and those who were working with the applicant in school in early December 2015.
79I find that such a meeting was an important and necessary part of the respondent's duty to investigate in response to the accommodation request. C.F.'s testimony was that he had never observed the applicant in his classroom and the medical professionals who had authored the reports C.F. submitted in support of the request had not observed the applicant at school. In addition, C.F. and Dr. Shoemaker were consistent in their evidence that there was a disconnect between what the school personnel had described about the applicant's successes at school and what the applicant's parents were reporting.
80I accept that C.F. was upset by Dr. Shoemaker's comments about service snakes, ducks, and ponies and Ms. Notten's reaction to this may have also caused him concern in that he believed the respondent did not understand the purpose of service animals. However, I accept Dr. Shoemaker's explanation for the comment and I do not find that there is any evidence that could demonstrate that Dr. Shoemaker or Ms. Notten improperly hindered the process to have the applicant's request properly investigated and assessed based on inappropriate or uninformed assumptions concerning the benefits of guide dogs.
81I also find that it was an important part of the respondent's procedural duty to arrange to have the behaviour team attend the applicant's class to do an assessment of him in the classroom environment. I accept Dr. Shoemaker's evidence that the assessment of the applicant was made a priority and the team got into the classroom to observe as soon as possible and the observing was done in mid-December 2015. The timing of the assessment was not disputed by the applicant. It was also not disputed that the members of the behaviour team had expertise in assessing needs of children in an education context and could provide a neutral perspective through the lens of education. It was also not disputed that due to their expertise the team members have the best perspective into learning needs.
82A meeting to discuss the findings of the behavioural team with the applicant's parents and their legal counsel was held within a reasonable time of the observations.
83The respondent provided its final decision to deny the request on March 10, 2016 in a meeting where the applicant's parents, his IBI therapist, the principal, Ms. Notten and Dr. Shoemaker were present.
84I find that the respondent completed a thorough and timely investigation and assessment of the applicant's disability-related needs in the education context.
85The applicant's allegation that the respondent failed in their procedural duty to accommodate is dismissed.
DID THE RESPONDENT FAIL IN THE SUBSTANTIVE COMPONENT OF THE DUTY TO ACCOMMODATE?
86As was stated previously the Supreme Court of Canada has determined that in order to demonstrate discrimination in the education context, applicants must show they have a characteristic protected from discrimination; that they have experienced an adverse impact by being denied meaningful access to education mandated by the Education Act; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the evidentiary burden shifts to the respondent to justify the conduct within the framework of the exemptions available under human rights statutes.
87The applicant alleges that by denying him the opportunity to have his service animal attend with him in the classroom, he experienced a substantial breach of his Code rights on the basis of his disability.
88The respondent alleges that the applicant was not denied meaningful access to his education when his request to have the service dog attend school with him was denied. It is the respondent's position that the applicant did not experience any adverse impact as a result of this denial.
89Again, there is not a great deal of dispute in the evidence provided by the parties.
90There is no dispute that the applicant is a student with and ASD diagnosis and that he therefore is a person with a disability.
C.F.'s Evidence about the Applicant's Disability, Early School Years and his Guide Dog
91As indicated previously, C.F. gave evidence that he and the applicant's mom thought a dog would assist in keeping the applicant from running into unsafe environments; could help him to sleep; and to be able to sit still longer. The application made to the Lions Foundation contained a description of the safety concerns that result from his running from parents, leaving the house and running into the road. It also describes problems sleeping; his difficulty in sitting still for periods of time; and his disagreements with his siblings.
92The part of the application that was completed by a medical profession reads, "no safety concept, unsafe outside house." C.F. was not able to state whether the family had asked this medical professional to write this or whether he had written it on his own. C.F. stated that the applicant's mom completed the application process. This medical professional and the applicant's mother did not testify at the hearing. In cross-examination, C.F. stated that there was no independent assessment of the applicant done as part of the Lions Foundation application process.
93During his testimony, C.F. stated that it was mostly due to safety concerns that they thought the guide dog would assist.
94C.F. testified about the vest the applicant's guide dog wears to identify her as a working service dog and the collar and leash she wears. It was his evidence that during the Lions Foundation training, he did not learn anything specific to how the guide dog would assist the applicant in a classroom setting.
95It was C.F.'s evidence that the applicant has learned to go to his dog to assist in calming him when he is upset or agitated. He testified that the applicant is directed to hug his dog or the dog is given the command to hug and she lies across his lap. It was C.F.'s evidence that this calms the applicant and that the applicant often speaks to his dog to tell her what is wrong or why he is feeling overwhelmed. C.F. testified that the applicant has told him that his dog helps him feel grounded. He stated that the applicant's "meltdowns" are less frequent and do not last as long since he has had his guide dog. It was C.F.'s testimony that an adult may still be required to get the applicant calmed enough to sit down and then the adult will give the hug command to his dog. Having his dog lie across his lap helps the applicant to quickly deescalate from his heightened emotions. C.F. testified that he has noticed at other times when the applicant is getting anxious and may be "ready to erupt", if he touches his dog it deescalates him.
96C.F. stated that since the applicant had his dog, he has also observed positive changes in the applicant when he is out in the community. He has noted that the applicant is more confident about communicating with other people. C.F. described how the dog has assisted with the applicant as he has not bolted from their home since the applicant has had his dog. When they go out of the home, the applicant is tethered to his guide dog by a lead that clips from the dog to the applicant's belt. An adult is holding the dog's leash. The dog will listen to the person holding the leash. C.F. stated that when tethered to his dog, the applicant understands that he is not going anywhere out of range. If the applicant attempts to get away, the adult gives the dog the "stay" command and the applicant cannot get beyond the end of the tether because the dog weighs more than the applicant.
97C.F. stated that in IBI therapy the applicant had been taught to make eye contact with people when he is speaking to them. C.F. stated that the applicant has learned to put a hand on his dog when he is interacting with another person and that acts as a trigger to the applicant to make eye contact. He has observed that the applicant is more engaged with others and having his dog allows for an opening topic of conversation.
98C.F. testified that he had never observed the applicant in his classroom setting. He stated that he attended about two of every ten meetings to discuss the applicant's situation in school and that he would be involved in about two of every ten communications that the school had with the applicant's parents. He stated that it was the applicant's mother who was more involved and that because he worked evenings, she was often seeing the applicant's behaviours after school.
99It was C.F.'s evidence that in 2015-2016 the applicant was telling his parents that he was having a hard time at school. He testified that the applicant told them that other students were calling him a monster and that they would not play with him because he is different. When asked how his dog would help the applicant in such situations, C.F. stated that he did not know.
100In cross-examination, C.F. was asked whether the applicant would be tethered to his dog in school. C.F. stated the he thought typically the applicant's dog would sit beside him at his desk. He would not typically be tethered to him but if the applicant became agitated it would be up to the teacher and the educational assistant to decide when the applicant should be tethered.
101It was C.F.'s opinion that the school would decide whether the applicant would be tethered to his dog at recess but that he assumed the school would want him to be tethered to be to prevent him from bolting.
102When C.F. was asked whether the school had ever advised the family that the applicant had left the school his evidence was that the respondent had not. He referred to a note (detailed further in paragraph 123 below) that had been sent home by the educational assistant that stated that the applicant had tried to leave the school yard that day. He stated that he thought that this single incident warranted tethering his son to his guide dog.
103C.F. provided evidence about the applicant's transition to senior kindergarten and then grade one at his school in the respondent Board. Some of the documents prepared as part of the transition process were entered into evidence. There is nothing in these documents that would demonstrate that the school personnel had any concerns about the applicant bolting from a classroom or entering an unsafe environment. The focus of the concerns was on the applicant's difficulties in transitioning from one activity to another; learning to take his turn; and learning how to cope with situations where he becomes agitated or upset when what he is doing does not go the way he feels it should. It is also noted that the Behaviour/Safety Support Plan which C.F. indicated was prepared in consultation with him and the applicant's mother did not mention any strategies for avoiding bolting. The plan does mention wandering and C.F. explained that the applicant did like to wander around but he also would run around screaming. C.F. agreed that there has never been any indication from the applicant's educators that he was flight risk. C.F. stated that they had never received a call from the school that the applicant had tried to bolt but it was happening at home.
104The applicant's grade one report card issued in February 2015 does not note any safety concerns. Again the steps for improvement highlight strategies that he needs to continue to work on to assist him when he gets frustrated because he does not understand or is having difficulty with his work in class. The report card indicated that through strategies implemented in the class, the applicant calms and re-attends to his work. The report cards and IEPs for this period of time were reviewed with C.F. and he agreed that the description sound accurate for the applicant. The applicant had received A's and B's in a modified curriculum.
105C.F. testified that up until November 2015, the applicant was not in full-time attendance at school because he was continuing with IBI therapy during school hours for two and a half days each week. He testified that the IBI therapy was always done in their home and that the applicant's service dog was always present at his side during the therapy. It was C.F.'s evidence that through the IBI therapy, the applicant's communication skills developed and he was able to better express his emotions.
106C.F. stated that November 2015 was the first time the applicant was in school full-time so his parents anticipated there would be an increase in his eruptions because full-time school would require the applicant to have a new level of concentration. They believed that having his guide dog in school would help with this transition.
107It was C.F.'s testimony that at this time there were some weeks when the applicant would be at home screaming and raging. He would lash out. It was C.F.'s evidence that these eruptions could go on for hours and sometimes all night. C.F. testified that sometimes it would take him hours to tell his family what was upsetting him and often they would learn that the applicant was upset about an incident at school.
108As noted earlier, on November 10, 2015 C.F. made what he considered to be a formal request to have the applicant's guide dog accompany him to class.
109His evidence confirmed there was a disconnect between what they were witnessing at home and what they were hearing from the school. The school was telling the applicant's family that he was not having behaviour issues at all. He stated that that the educational assistant would at times tell them that the applicant had a rough day but when they got anything written from the school "all appeared rosy".
110The notes from a collaborative team meetings held in October, November and December, 2015 were introduced into evidence. They support C.F.'s statement that there was this disconnect. In October, the update from home section says that the applicant was happy when he came home from school but he was saying that kids were calling him loser on the bus and in the yard. The teacher reported in October that the applicant was doing very well; "only had tears a couple of times; doesn't seem stressed at school." In November, the teacher reported that she had been monitoring the school yard interactions and she had not seen any signs of kids calling the applicant a loser. In November, the applicant's mom reported that he replays his entire day at home at night and "he tends to over emphasize the bad." The classroom teacher reported that when he is upset it only lasted a couple of minutes. In December, the applicant's mom reported that most of his behaviours were due to siblings "pushing his buttons." The teacher reported that at this time no one in class agitated him.
111In the February 29, 2016 collaborative team meeting, the classroom teacher reported that the applicant was engaging in more negative talk and that his reactions to small issues were a bit "over the top" and gave the example of the applicant saying "you have ruined my life" when he was upset about something in class. When asked, C.F. emphatically agreed that at times the applicant's reactions were inconsistent with the actual thing he is experiencing.
112It was C.F.'s evidence that in the spring of 2016, the applicant resumed IBI therapy. In the April 4, 2016 collaborative team notes it states that the IBI therapists had seen meltdowns where the applicant would run around screaming, throw chairs at the therapist and that this occurs almost every time. C.F. stated that this was consistent with his understanding of what was happening but he felt it would be much worse if the applicant's guide dog were not present.
Evidence of the Applicant's Behaviour Analyst
113The behaviour analyst working with the applicant during this time confirmed these incidents. She testified that other skills that had been used to calm the applicant were not as effective as his guide dog. She stated that she observed the applicant go to his dog and lie on her and talk to her about the reason for the escalation in his behaviour. She stated that the applicant would become calm very quickly after he went to this dog and that when he talked to her it gave her a glimpse into the reasons for his behaviour which she might not get otherwise. It was her opinion that the inconsistency of having the service animal at home and not at school was hard for the applicant. However, she had never observed that applicant in his school environment.
114When the behaviour analyst was asked if she had worked with other children with autism who had service dogs she indicated that she had worked with three others "but these others had higher needs than [the applicant] and their dog was to keep them from engaging in aggressive behaviour or bolting." She stated that she had not observed such behaviours in the applicant.
115She stated that she did not know why the use of a guide dog was chosen as a strategy to aid the applicant. She had not been involved in the process of developing strategies for the ways the dog could assist the applicant. The applicant had his dog when she began working with him. She stated that she saw the dog as a replacement behaviour that works for him.
116It was he behaviour analyst's evidence that the service dog would not prevent the applicant's behaviour from quickly escalating into "meltdowns." She stated that she had no way of tracking whether going to his dog actually calmed him faster than he might have with other strategies but it was her opinion that he calmed faster with the dog. She had not however worked with the applicant before he had his guide dog. She observed that the dog was the applicant's preferred strategy to calm him. She stated that she was not suggesting that without the service dog, the IBI therapy would not have worked. She stated that she could not say whether the service dog was reinforcement for the applicant's escalated behaviours because such data had not been tracked and it was not her role in his therapy to track the causes of his behaviours.
117The behaviour analyst also stated that she had observed that having his guide dog has built the applicant's confidence. She said that because of his social and communication impairments it is great to see him approach his peers and have his peers approach him and the dog serves as a nice introductory topic. It was not clear when she had seen the applicant interact with his peers as she did the therapy in the home. She described a music therapy class that was outside the home but the only attendees were the applicant and his siblings.
C.F.'s Evidence about the Applicant's 2015-16 and 2016-17 School Years
118The applicant's report cards from 2015 and 2016 were reviewed in evidence by C.F. When he was asked about his assessment of the applicant's grades, C.F. answered that he saw "self-regulation as something the applicant will struggle with for rest of his life and I think we can get better out of him but this is a pretty decent report card. Academically modified he achieves well and is meeting his grade level targets." His understanding of modified was that, especially in writing, the applicant may be asked to produce less and may be able to give oral answers. He noted that there was a bit of regression from the first to the final report in that year as some marks had gone down a bit and that he was absolutely convinced the applicant could do better if he had his guide dog in the class. He did not explain how having the dog would help the applicant to approve in his grade levels.
119He stated that at the time that he asked to have the applicant's guide dog attend in class, there were no flight-risk behaviours being demonstrated by the applicant in school.
120C.F. was aware that the behaviour team had gone into the applicant's classroom to observe. He stated that he had seen an email through the document disclosure in preparation for the hearing in which the behaviour analyst on the team wrote to Dr. Shoemaker "After glancing at the data, it appears that this student is not tolerating his day well and that there may be some skills deficits...My concern is that if the parents are advocating on behalf of their child because he is not managing his do well, the data may in fact support their theory... Our team does not have the ability to consult around the use of a service dog..." His concern from reading this email was that perhaps the data had supported his theory but the respondents were not honest. However, he stated that he had no concern about the final report given by the behaviour team. This behaviour therapist was not called to give evidence at the hearing so there was no evidence to explain the meaning of this email. The applicant did not provide any evidence to support a finding that the data did not support what the behaviour team reported from their observations of the applicant.
121On May 27, 2016 the school conducted an educational assessment with the applicant. The report of this assessment was introduced into evidence and reviewed with C.F. He agreed that this report showed that the applicant was a fairly successful student who is achieving at grade level in grade two. The applicant did not challenge the accuracy of this testing and report.
122C.F. testified that at this time the applicant was experiencing melt downs at home that lasted for a couple of hours and were increasing in intensifying to the point where it would wake the whole family. He testified that there was one incident where they took the applicant to emergency unit of a hospital. He stated that he did not tell the school about these escalating behaviours.
123The applicant's February 2017 grade three report card was introduced into evidence. At this point, his curriculum was not modified and he was using technology to assist him with output of his work. He received all B's and B pluses and C.F. agreed the applicant was doing quite well.
124C.F. raised concern about the note that was sent home dated February 15, 2017 from the educational assistant. The note described an incident where the applicant left the classroom and the school yard with the educational assistant and told the educational assistant that he was escaping. The note states that the educational assistant brought the applicant to the principal who spoke with him. C.F. indicated that he did not think the applicant would leave the classroom if his dog were present because he would not leave her behind. He then stated the he did not know what the dog would do in a situation where the applicant became frustrated with his work and decided to leave class. The note from the educational assistant has a reply from the applicant's mother which states that she spoke to the applicant about the incident. C.F. stated that he did not speak to anyone at the school about this incident.
Evidence of the Superintendent of Special Education
125Dr. Shoemaker provided evidence about the respondent's policies and procedures for assessing students' needs and determining appropriate strategies, tools and accommodations. She described how the respondent learned about the applicant's needs through all his background documentation and the continual transition meetings that the respondent had with his service providers. She described her understanding of the applicant's learning profile and her knowledge of his strengths and struggles. She described the various tools and strategies that have been put in place that those who are involved in the applicant's education believe will help him to demonstrate his knowledge without becoming overwhelmed or frustrated. She discussed the means they use to track the applicant's struggles and what triggers his escalated behaviour and then how this data is used to modify the teaching and testing methods and to determine what tools and programs he needs. She explained that tools and strategies have been put in place that his educators have been determined to assist him with his academics and with the development of his social skills. There was no evidence introduced to contradict Dr. Shoemaker's descriptions of the applicant and the tools and strategies his educators have implemented.
126Dr. Shoemaker stated that the goal is to recognize the applicant's strengths and barriers and work with those to have the applicant be an independent learner. Those who support the applicant at school continue to work towards having him identify what tools he can use to be most successful and to manage his emotions and best allow him to access his learning. It was her opinion, that the applicant has tremendous potential to be very successful and very independent. No evidence was introduced to counter Dr. Shoemaker's opinions.
127She explained that she did not see how the applicant's guide dog could assist him in the school environment and that she would be concerned that if the applicant was involved in activity that was frustrating for him he may just avoid the activity and go to his dog. She thought this might cause difficulty in having him return to task. It was her opinion that the respondent had not been provided with any evidence through the documents provided by the applicant's parents or through the respondent's own assessments and observations that the dog would assist to meet the applicant's needs by identifying the source of his behaviours; or help him to write or process information. In her opinion, the service dog cannot ensure that his programming is aligned with how he learns and how he takes in the information. In her opinion, in order for the applicant to learn, his profile of needs must be very well understood and this will allow him to continue to build his success. It was her evidence that through the tools and assessments, and access to professionals with expertise, the respondent can understand the applicant's needs and implement what is needed for his academic success. In her opinion, the applicant is very independent and capable and he does not need his guide dog for his independence or to build his resilience. She stated that a dog is not able to teach him how to use the computer or prompt him to use the tools he has to lessen his frustrations, teach him social skills, keep him on task and ease his transitions which she says those who observe him in class have identified as his challenges. Again no evidence was introduced to challenge Dr. Shoemaker's opinions.
128Dr. Shoemaker explained how the respondent had decided to update its policy on service dogs prior to the request made by C.F. She states that it was one of the policies that the respondent had identified as needing to be updated to ensure it was in compliance with the AODA and that it was opened up beyond the old policy which only addressed the use of dogs for persons with vision disabilities. She accepted that the applicant's dog was a certified service dog. It was her understanding that because the applicant did not control the dog without an adult he would not be considered the handler under their policy. She stated that it is her opinion that each situation of a request to have a dog in school must be assessed individually. In her opinion, the respondent could still allow a dog in if an adult was needed to be the handler and that even in situations where the student was the handler the respondent would still need to determine if the dog was needed as an accommodation of the student's needs in accessing the curriculum.
129During her testimony, Dr. Shoemaker was asked to review a number of letters that were written by various medical professionals is support of the applicant's request that he be able to bring his service animal to school. Dr. Shoemaker stated that it was her understanding that these professionals had not observed the applicant in school and had not had any discussions with the school about their observations of the applicant. It was her opinion that the data obtained by the behaviour team during their observations of the applicant did not support the need for the dog in the class. She stated that based on the recommendations and observations of the behaviour team, the special education and the classroom teachers and the educational assistants; the applicant's report cards; discussions with his transition team; and the recommendations made by the psychologist who completed the applicant's psycho-educational assessment, the respondent did not have any evidence to demonstrate that the dog in the class was needed to allow him to succeed.
Evidence of the Special Education Liaison
130Ms. Sharon Addie gave evidence at the hearing. She is the special education liaison for the respondent. In this role, she heads up a team of people who work in collaboration with her to support students who have identified needs and challenges in accessing education.
131She indicated that she is familiar with the applicant and his learning profile. She is part of the collaborative team that meets regularly with the applicant's parents, teachers, educational assistants and others who provide support to him in school. Over the last few years, she has observed the applicant in his classroom settings and has worked with his teacher and the educational assistant in his classes to develop strategies and introduce tools that she says assist him to work through his challenges.
132She described the applicant as a very bright student who seems to enjoy school and the learning he is engaged in. It was her evidence that her observations were that he has a lot of friends and other students want to work with him. Her testimony was that he is working at his grade level with a modified curriculum. He has strong computation skills and appears to enjoy science but he struggles with transitions; not getting frustrated when he finds things hard; and getting his thought processes on paper. She described the various technologies that he and others in his classroom have access to. She explained that the respondent had a "bring your own device to school" policy which she said means that many students are comfortable using electronic devices and it does not make those who use devices for disability-related needs appear different. She stated that during her observations, the applicant happily used a computer to write answers which allowed him to keep up with the other students in the class.
133She also described the strategies that are used in his class to break down the work into more manageable chunks; to cue students when they are transitioning from one task to another; and to help them navigate various social situations. It was her evidence that although the applicant needs these strategies to meet his individual needs many of the same strategies and tools are used by all students in his class.
134She described how strategies and tools are often tweaked because over time as the student develops, their needs and challenges can change.
135She described a tool that is used by all students in the applicant's class called "Zones of Regulation." With this tool students self-identify when their emotions are moving from calm or good (green) to frustrated or anxious or angry (red) and can use a strategy ranging from breathing to take a break to go for a walk to help bring the student back to "green."
136She stated that she has observed the applicant articulate "I need a break. I need to walk" and walked to the office and then came back to his work. It was her evidence that when the applicant was younger he would have needed an educational assistant to help him to recognize how he was feeling and then prompt him to a strategy to help him de-escalate. She stated that in her experience, most of time if it is noticed that the applicant is "amping up" with prompting and redirection he gets himself back on task.
137Her evidence was that the educational assistant no longer sits right beside the applicant because he has gained independence and he looks around to see what others in the class are doing and takes cues from his peers. Ms. Addie explained that it is the goal that students rely on an educational assistant less and less to the point where a student is fully independent. She explained that in her opinion, the applicant has not reached full independence but he has the skills to get there.
138Ms. Addie explained that the applicant attempts to avoid tasks that he finds challenging so the tasks need to be made more manageable through strategies and tools so that he is encouraged by his progress and has perseverance rather than avoidance. She stated that in her opinion, having the applicant's dog in the class and allowing him to go to her when he is feeling frustrated could reinforce avoidance and will not allow him to feel he can be successful and independent. It was her evidence, however, that she does not have any experience working with students with service animals.
139Other than her opinion on the potential benefits of having his service dog in school, Ms. Addie's evidence about her observations of the applicant and her opinions on his abilities were not challenged by the applicant.
Evidence of Director of Program Development, Lions Foundation of Canada Guide Dogs
140Mr. Ian Ashworth provided evidence on his experience in working with service dogs who assist children and adults with a variety of disabilities. He stated that since 2008, the Lions Foundation has placed over 300 dogs across Canada from the autism program. Of the 300, there are about 280 who are currently active and of those, he knows of 60 who attend school with the student with a disability.
141He explained the assessment process for deciding if a person qualifies for a dog and the training of the adults with the dogs in the autism program. His evidence was consistent with C.F.'s evidence.
142Mr. Ashworth recalled the case conference he attended at the applicant's school in January 2016, the parent council meeting and the meeting with the special education advisory council. The details he provided about what was discussed and how he participated in these meetings was consistent with C.F.'s evidence. It was his recollection that the meetings were positive and that there seemed to be support for the applicant bringing his dog into the school. He was surprised when he heard that the respondent had denied access.
143It was Mr. Ashworth's evidence that he had never seen the applicant in school. He described what he thought could be a potential situation for the applicant in school with his dog where the dog would be laying on her mat beside the applicant and if he is not coping, with prompting from an adult, he can ask for hug, go sit on the ground and have the dog lie across his lap. He thought then the pressure of the dog would calm the applicant and then the applicant could go back to his task. Later in his evidence he stated that depending on the situation and the environment either an adult or the applicant could give the commands. When he was asked what would happen in a situation where the educational assistant gave one command and the applicant gave a different command, his testimony was that it would depend on who the dog is most responsive to. If the dog is most responsive to the applicant then there could be a bit of power dynamic between the applicant and the educational assistant.
144It was Mr. Ashworth's evidence that he understood that the applicant is a flight risk. His description of the harness, handle and lease and what would happen if the applicant were to try to run away was consistent with C.F.'s evidence. It was his evidence that the information he had from the applicant's parents is that the applicant is getting upset in class and entering unsafe situations. He state that in a typical school situation the educational assistant would tether the applicant to the dog and the educational assistant would hold the lead when they leave the classroom. In his view, the child is to gain a sense of responsibility and the child feels safe holding the handle because the child's their best friend working with him or her.
145He described the situation where he had recently accompanied the applicant and his mother and the applicant began to wander but he got to the end of his tether and he was directed back to hold onto the dog's handle. When asked why an adult could not just hold his hand or speak to him to redirect him, Mr. Ashworth explained that it could have resulted in a situation where the applicant could have run off and then had a tantrum but this tether allowed him to passively return. He testified that having the child tethered to the dog can relieve stress on parents as the child cannot run away. He agreed that the dog cannot help the parent to understand why the child might be running and what might be making the child anxious. He agreed that the situation he was involved in, the applicant was not anxious and did not run off or have a tantrum. He had just wandered towards the shop that interested him.
146He stated that the Lion's Foundation does not have anyway of tracking whether those with an autism guide dog are developing skills to assist them in knowing when to stop themselves without the tether to the dog. He stated that having the dog to bring a child back has a positive association, keeps the child calm and this allows for the lesson discussion.
147It was his evidence that having the dog also helps with communication as the dog provides a topic for opening the conversation and makes the child less anxious and more comfortable in communication. It was his evidence the he did not have opportunity to observe the applicant interacting with non- family members while they were out in the community.
148When asked what role the dog could play for the applicant who does not currently have any issues moving through school areas, Mr. Ashworth stated the dog could provide extra comfort for those transitions as we cannot know how the applicant is feeling exactly. He stated that we do not know how much more the dog will help but this is hard to answer as he has not observed the applicant in school.
149When he was told that the applicant does not have an EA who is by his side to move about, and that he likes going out for recess, Mr. Ashworth stated that in that situation, the dog can have down time in the crate during recess.
150He stated having the dog as an aid when the child is stressed, the dog "is like an iPad; time out; go for walk or whatever the child likes to do to de-stress and the dog is another tool for distressing or an award for work done."
151When it was stated that if the applicant were to abuse his iPad privileges, the iPad could be taken away and Mr. Ashworth was asked what would be done if the applicant was not returning to task from his dog, Ms. Ashworth stated that the ultimate sanction could be that the dog is no longer coming to school with the applicant.
152He stated that to his knowledge there are no studies that researched the impact of the use of guide dogs in schools on children's education.
153It was Mr. Ashworth's evidence that it would be up to the school to determine the programming for the applicant and the school would determine where the use of the dog would fit into the programming. He stated that his training is not on the behaviour of children with autism or educational principles.
154Mr. Ashworth agreed that in the applicant's situation there is no way of knowing whether his progress in his cognitive development was the result of the efforts made by his parents, the IBI therapy or having his dog.
Evidence of the Applicant's Special Education Teacher
155The applicant's special education teacher testified that he has worked as a special education teacher for about 21 years and has been working at the applicant's school for the last nine years. He described his role in working with classroom teachers to provide supports in the development and implementation of the students' IEPs and to provide resources on ways to modify the educational programs for students. He has had direct involvement in the development and implementation of the applicant's IEP.
156The special education teacher described many of the tools, resources and strategies that have been put in place to assist the applicant in navigating social situations; make classroom work more manageable; motivate the applicant to persevere; and help him to feel successful. He explained that in his experience in working with the applicant he has seen that the applicant can become overwhelmed with a task so by breaking it down into steps and chunks, the applicant will work through the task. He described the applicant's struggles with writing and described him as "slow and meticulous." It was his evidence that key boarding and assistive technology have helped the applicant and he becomes less frustrated and overwhelmed. He described the computer program that is in most of the classrooms so it is common that the applicant as well as the other students in the class to use it. His evidence about the applicant's challenges and the various tools and strategies that have been implemented for him was consistent with that of Ms. Addie and it was not challenged by the applicant.
157He described the educational achievement test he conducted on May 27, 2016 with the applicant. He agreed that the results demonstrate that the applicant was achieving close to or at grade level in most of the curriculum. His areas of challenge were identified as listening comprehension, oral and written expression. He explained his recommendations which he indicated were focused on making the work more manageable for the applicant so he would be motivated by his success. The recommendations are similar to the strategies that he had described in his oral testimony. They were consistent with Ms. Addie's evidence.
158He stated that from his observations the applicant has a number of friends and recess is not difficult for him. He stated that he sees him playing soccer with friends at recess. It was his evidence that the EA is always in the visual and auditory range.
159He testified that the applicant has gone on school outings with his class and no concerns about his safety or behaviour were raised.
160The special education teacher's evidence was that the applicant "is not a bolter." He was asked about the incident that was written in the note to the applicant's mother about the applicant leaving the school yard. He explained that his understanding was that when the applicant and the educational assistant were out for a walk at the applicant's request, the applicant walked toward the gate in the yard and when the educational assistant told the applicant that if he got to the gate the EA would tell the principal, upon hearing this the applicant turned around. It was his evidence that the applicant's safety at school has never been a concern. He testified that the applicant navigates around the school, to the library and to the washroom without any trouble. He testified that in his observations, the applicant does not have any difficulty with instruction and he is generally compliant.
161When the special education teacher was asked if he saw a use for the applicant's dog at school, he stated that he is not an expert of how to work the dog into the program and he would expect the Lion's Foundation to provide that expertise. He expected they would show him best practices as how it would work to have the dog implemented into the programming and strategies.
162It was his opinion that perhaps the only piece would be if the dog was needed to calm the applicant. It was his evidence that more recently the applicant is not reaching "meltdown" states. He stated that the applicant is in a pretty calm state and is just refusing to do the work. His evidence was that the applicant is now just smirking when he refuses to do something.
163The special education teacher was asked about a situation noted in the behaviour tracking sheets that described as "tried to climb out window." He stated that he was called down to the class during this incident and his recollection was that the applicant was acting like a robot and he said he was going to go out the window. The teacher said to the applicant "don't you dare" and the applicant stopped. He stated that the applicant continued to act like a robot and motioned to do things he should not do and each time the teacher warned him, he stopped. It was his observation that throughout this, the applicant was not visibly upset. He was asked about an incident that C.F. had noted in his presentation to the trustees in which C.F. alleged that it had been noted on a zones of regulation sheet that the applicant had tried to throw a chair. He responded that he had no knowledge of such a situation and to his knowledge the applicant had never done anything to intentionally injure himself or others.
164The applicant's June 2016 grade two report card was reviewed in evidence by the special education teacher. He reviewed the strengths/next steps section of the report where it is written the applicant "shows preference for typing... has success when writing is chunked and given timed break...is learning to calmly and politely ask for assistance.. takes pride in accomplishment.. made a few good friends ... works well with everyone in the class...has worked hard and has been a great addition to our class." He stated that matches his observations and assessments of the applicant.
165He stated that the applicant's dependence on an EA has lessened in the last couple of years. She no longer sits right beside him but she still has a role in prompting him and keeping him on task.
166When the behaviour tracking sheets for grade three were reviewed with the special education teacher, he agreed that they reflected his recollection that the applicant's behaviours increased and he was struggling in the late part of the 2016. He stated that he could only speculate about the reasons for the increased behaviour and that it could be because of increased expectation on him in grade three. He stated that in his opinion it is possible that there could be other stressors that contribute to his behaviour and he would like psychological educational assessment to be completed to assist in better understanding the applicant but the parents have not consented to this.
167When asked about an incident when the applicant allegedly said he wanted to die one day in the school yard. It was his testimony that the applicant is very dramatic. When he is having a meltdown he may say things like he is going to burn down the school or call 911.
Evidence of Clinical Psychologist
168Dr. Coralee Popham Lane is a clinical psychologist who works with the respondent's behaviour support team. She gave evidence on her education and experience in work with children who are diagnosed with ASD. She explained how persons with this diagnosis have a very wide ranging skills and challenges. She explained that persons with ASD may or may not have cognitive deficits. Some have other underlying disabilities or disorders such as a learning disability or anxiety disorder.
169In her opinion, the goal in education is always to provide the least amount of intrusive support with the goal of achieving independence. The emphasis should be on competence so that students are not left to feel they cannot achieve on their own.
170When the applicant's assessments and reports were reviewed with her in evidence she testified that she could see that he struggles with getting his thoughts written down and that he gets frustrated which can result in "meltdowns." She stated that from a clinical psychologist perspective there should be continued accurate assessment of his capabilities and deficits and then get an understanding of the tools that can be put to allow him to succeed in the task without anxiety or avoidance so that he achieves what he is capable of.
171Dr. Lane provided evidence about her observation of the applicant in his class in December 2015. She stated that from the observations her conclusion was that the applicant did not present with behaviours that required any further interventions. She testified that it appeared to her that the applicant had tools and strategies in place to allow him to succeed. It was her evidence that the applicant was showing mild avoidance; was fairly engaging; was taking part in class activities; was easily directed by his teacher; was talking to peers and getting himself back on task when he got distracted or frustrated.
172She stated that from her review of reports and her observations she could conclude that the applicant has cognitive skills and strengths that can be built. She stated that the applicant has "good prognostic indicators" in that he has many strategies and tools of assistance and good parent advocates.
173She explained that although the dog may provide a topic of conversation, the deficit for many children with ASD is how to engage in active listening and appropriately responding to the tone and non-verbal cues in the conversations. In her opinion, this cannot be learned in a clinic but is learned by "coaching in the moment" by parents, teachers, educational assistance and peers when in the community. She stated that the applicant appeared to have developed these skills as she saw him engaging with other students, taking cues from his peers and responding to direction from his teacher.
174When she was asked to respond to the applicant's more recent behaviours of refusal to do a task and calling out "I want [name of dog]!", Dr. Lane stated that it would be important to understand why he is avoiding the tasks and experiencing stress. She felt it was important to understand whether calling out for his dog is his way of communicating the anxiety and stress or whether this is his way of avoiding work at school because he knows that his dog is at home.
175The applicant did not present any evidence to challenge the expertise and opinions that Dr. Lane expressed with respect to her observations of the applicant.
Analysis of the Substantive Duty to Accommodate
176As stated above, in Moore, above, the Supreme Court of Canada has set out the test for discrimination in the context of educational services. The Court held that to demonstrate discrimination, applicants must show;
- 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 a prima facie case has been established, the evidentiary burden shifts to the respondent to justify the conduct.
CHARACTERISTICS PROTECTED FROM DISCRIMINATION
177There is no dispute that the applicant is a person with a disability. Disability is a ground protected from discrimination under the Code.
DID THE APPLICANT EXPERIENCE AN ADVERSE IMPACT AS A RESULT OF THE DENIAL TO HAVE HAS SERVICE DOG ATTEND WITH HIM AT SCHOOL
178The applicant submits that he experienced a serious and significant adverse impact when the respondent refused to allow him to have his dog accompany him to school. He submits that his emotional well-being has been impacted which is demonstrated by his increased and escalating behaviours and his increased anxiety.
179He submits that the evidence demonstrates the positive impact his dog has on his well-being, his ability to be comfortable in social interactions and his overall success. He submits that his dog is needed to accommodate his disability in accessing his education.
180I have found that the applicant has not demonstrated on a balance of probabilities that he was adversely impacted by the respondent's decision. He has therefore not established a prima facie case of discrimination.
181I accept the evidence of C.F. about the positive impact that having his guide dog has had on the applicant as credible. I also found that the behaviour analyst was credible when she gave evidence of her observations how the applicant is able to calm himself much easier with his guide dog. The respondents did not present any evidence to dispute their evidence. However, the evidence of both these witnesses is that they had never observed the applicant at school.
182In the medical reports that C.F. provided to the respondent, the applicant's medical professional expressed their opinions on the potential benefits of having the guide dog in the school with the applicant. I accept the evidence of Dr. Shoemaker that these professionals had not observed the applicant in school or consulted with the respondent at any time.
183As these medical professionals were not called to give evidence at the hearing, I cannot give any weight to the contents of these reports in making my determinations in this Application.
184I also accept Mr. Ashworth's evidence about his experiences in working with the dogs and the families in the Autism Services Program. His evidence about his observations of improvements in children's safety and the de-escalation of behaviours is accepted as credible. The respondent did not challenge his evidence about his experiences and observations. Mr. Ashworth had not observed the applicant in his school environment. It was his evidence that he based his understanding of the challenges the applicant was having in school on what he had been informed by the applicant's family. He testified that from the application form that the applicant's family completed for the Lions Foundation, he could see that the applicant was a prone to bolting, had "meltdowns" and that he had difficulties sleeping. According to Mr. Ashworth it was this information in the application that the Program considered when it made its assessment of whether the applicant should qualify for a dog. He stated that the use of the dog in school was not part of their assessment. He stated that it would be hard for him to advise how the service dog could assist the applicant with transitioning from tasks as he has not been in the class. He stated that the expertise of the Lions Foundation is with dogs working with children with autism. Their expertise is not with children with autism.
185Mr. Ashworth's experience was not in working with children with ASD. He had no experience in educational programming appropriate for the applicant's disability related needs and only learned of the applicant's challenges at school from what he had been told by the applicant's parents. As a result, his evidence about the ways in which the guide dog could assist the applicant in school was only speculative. I therefore, cannot accept his opinions as evidence to demonstrate that the applicant's guide dog was needed as an accommodation of his individual needs in accessing education services.
186The evidence demonstrates that at the time the respondent made its decision to deny the request to have the guide dog in class with the applicant, he was doing well academically. He had achieved A's and B's on his report cards. C.F. agreed that the report cards were "pretty decent." The unchallenged evidence of the respondent's witnesses was that the applicant's work was chunked into pieces so that it was more manageable for him which they explained was a way of preventing him from getting frustrated or overwhelmed by the work and allowed him to feel that he could succeed. There was no evidence presented on how having the dog present could assist the applicant by making the expectations about the work he was to produce more manageable. Mr. Ashworth stated that the service dog could not assist the applicant in getting his thoughts on paper.
187The academic assessment conducted by the educational assistant a couple of months after the respondent's decision showed that the applicant was at grade level in grade two. The applicant did not challenge the accuracy of this testing and report of the results.
188C.F. agreed that at the time of the respondent's decision, applicant was not exhibiting any bolting behaviours in school. I accept the evidence of the respondent's witnesses that the applicant's safety was not a concern; that he navigated around the school independently and safely; and that although an EA may be within range to observe the applicant's interactions with others at recess, recess is not difficult for him as he has friends he plays with such as playing soccer. The evidence did not demonstrate any need for the applicant to be tethered to his service dog for his safety or to reduce his anxiety when manoeuvring around the school or when out in the yard at recess.
189C.F. raised the more recent incidents of the applicant leaving the school yard and trying to jump out the window as indications that his behaviours were putting him at risk. I found the explanations provided by the special education teacher as to what had really happened during these incidents to be credible. He had observed the applicant when he had threatened to go out the window and it was his evidence that when warned, the applicant had redirected himself. I accept his explanation that the applicant was not in any danger. He clarified that the applicant had never left the school yard. Although he had only learned the details of this incident through the recount provided by the educational assistant, I find that since the applicant's parents were not told that the applicant left the school yard, it is more plausible that the applicant's safety was not at risk and that he only threatened to leave the school yard but was redirected. The note from the applicant's mother says she spoke to the applicant about this incident and C.F.'s evidence was that he had not contacted the school to discuss the incident. The applicant did not present any evidence to challenge the accuracy of the special education teacher's account of these events or present any evidence to demonstrate that the applicant's safety was ever at risk.
190The un-contradicted and consistent evidence of the respondent's witnesses was that areas where the applicant experienced the most challenges were in oral and written comprehension and expression. There was no evidence presented on how the applicant's guide dog would assist that applicant with these challenges. Although the evidence of the applicant's witness was that he was often running and screaming during the IBI sessions in the spring of 2016, the evidence provided by the special education teacher, the special education liaison and was corroborated by Dr. Lane demonstrates that the applicant was not exhibiting these types of behaviours at school at this time. Their evidence was not challenged by the applicant.
191The evidence given by the special education teacher was that the applicant had recently been heard yelling, "I want [name of his dog]!" Although he would not likely yell this if he had his dog with him at school, the evidence is clear that his dog could not provide indicators about why the applicant may be feeling so stressed at school. As well, both C.F. and the special education teacher stated in their evidence that the applicant was prone to exaggeration about the severity of his situation.
192Based on the totality of the evidence, I find that the respondent's decision to deny the applicant's request to have his guide dog accompany him at school did not have an adverse impact on his right to meaningful access to the educational services provided by the respondent. I find that the evidence demonstrates that the supports and strategies that the respondent has provided to accommodate his disability related needs are providing him "the opportunity to realize [his] potential and develop into [a] highly skilled, knowledgeable, caring citizen who contribute[s] to [his] society, a defined purpose of Ontario's Education Act." The accommodations are provided in an inclusive and dignified manner. Many of the tools and strategies are used by his peers so he is not singled out as different. The allegation that the respondent breached its substantive duty to accommodate the applicant is dismissed.
193The applicant submits that the respondent's procedures memorandum on service dogs makes a distinction between those who handle their dog independently and those who cannot. He submits that the result is that students like him will never qualify to have their dog attend with them at school. It was C.F.'s opinion that the new definition of handler in the memorandum was written so that the memorandum was in line with the respondent's decision to deny the applicant's service animal access. Although, the memorandum does appear to make distinctions between those who handle their dog and those who cannot for the factors that are considered when a request to have a dog attend, a complete reading of the respondent's current memorandum would indicate that in each situation the respondent will engage in the duty to accommodate process in response to a request. The memorandum states that when the student is the handler entry "is decided after extensive consultation and is not automatically approved. Decisions regarding the admittance and integration of Certified Service Dogs into the school environment for the benefit of a student are made on a case-by-case basis." In the section of the memorandum pertaining to students who are not the handlers it states, "When the student is not able to 'handle' the dog, the dog will not be considered a Certified Service Dog for the purposes of these procedures, but the student may still receive a benefit from utilizing a service dog as an accommodation... requests to permit the service dog to attend and be integrated into the school environment will be considered individually, in accordance with the duty to accommodate to the point of undue hardship pursuant to the Human Rights Code."
194While the memorandum may be somewhat confusing and may appear to be somewhat contradictory as it is currently written, it is clear that in either instance the respondent is acknowledging that under the Code that it has a duty to accommodate the needs of all students with disabilities.
195Just as this decision is based on the evidence specific to this applicant and his particular needs, the disability-related needs of all students who may be asking to have their guide or service dog attend at school must be determined on an individual case by case basis.
order
196This Application is dismissed.
Dated at Toronto, this 30th day of August, 2017.
"Signed By"
Laurie Letheren
Vice-chair