Human Rights Tribunal of Ontario
B E T W E E N:
U.M., as represented by his Litigation Guardian W.M.
Applicant
-and-
York Region District School Board
Respondent
A N D B E T W E E N:
M.M., as represented by her Litigation Guardian, W.M
Applicant
-and-
York Region District School Board
Respondent
DECISION
Adjudicator: Eva Nichols
Indexed as: U.M. v. York Region District School Board
APPEARANCES
U.M., as represented by his Litigation Guardian W.M. and M.M., as represented by her Litigation Guardian W.M., Applicants
Self-represented
York Region District School Board, Respondent
Kathryn J. Bird, Counsel
OVERVIEW
1These are two Applications, filed on August 13, 2015, under s. 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”), alleging discrimination with respect to disability in the provision of educational services. They were filed by the two applicants’ Litigation Guardian, hereafter referred to as W.P.M., and it was decided that the two Applications should be consolidated and heard together.
2The hearing in this matter took place in Markham, Ontario on the following dates: December 7, 13, 14, 16, 2016; January 23, 24, February 28, March 1, 20, 21, April 6, 7, 20, 21, September 18 and 19, 2017. In addition to these hearing days, there were several case management teleconferences convened with the parties and I issued a number of Case Assessment Directions (“CAD”) and Interim Decision 2017 HRTO 1101 to manage the hearing process more efficiently. The venue for the hearing and the shortened hearing days were agreed to by the Tribunal, as an accommodation to the applicants’ Litigation Guardian. The respondents concurred with these arrangements.
3The two applicants are U.M. and M.M. U.M. is currently 11 years of age and attends a junior public school within the jurisdiction of the respondent school board. At the time of the alleged discriminations U.M. was initially in Grade 2 and then Grade 3 at the same junior public school. M.M. is 8 years old now and also attends the same junior public school. At the time of the alleged discriminations she was in Senior Kindergarten (“SK”) at the same school.
4Both U.M. and M.M. have been diagnosed with Autism Spectrum Disorder (“ASD”). Although there were no up to date psychological or other relevant assessments before me at the time of the hearing, there was no dispute between the parties that, based on the assessment information and the school board’s Identification Placement Review Committee (“IPRC”) decisions, both applicants are persons with a disability within the meaning of that term under the Code.
5The Applications focused on the alleged shortcomings in the educational services that the respondent provided to U.M. in grades 2 and 3 and to M.M. in SK. Their Litigation Guardian stated that they faced discrimination and were not accommodated to the point of undue hardship, as mandated by the Code, as a result of the actions of the respondent school board.
6I confirmed that the scope of the Application is limited to the events, circumstances and allegations set out in the CAD, dated December 12, 2016, and does not include matters relating to the respondent’s general compliance with certain unrelated aspects of the Education Act, R.S.O, 1990, c. E.2, as amended (“Education Act”) its record-keeping and financial management practices or its reporting to the Ministry of Education on these and other matters.
7Further, I stated in a January 12, 2017 CAD that, since neither party is calling any expert witnesses, I shall not consider any opinion evidence from the parties about the application, use or benefits (or otherwise) of any therapies, including, but not limited to, Applied Behaviour Analysis (“ABA”) or Intensive Behavioural Intervention (“IBI”) in an educational setting. School boards are responsible for providing educational services to all their students. Educators are not engaged in providing therapy to students. In making this statement, I rely on the Ministry of Education’s Policy/Program Memorandum No. 140, which was entered into evidence. This document provides direction to school boards about providing educational services to students with ASD. It states that “school boards must offer students with ASD special education programs and services, including, where appropriate, special education programs using ABA methods.” The parties’ opinions about such therapies are not relevant to the specific allegations before the Tribunal. Therefore, I do not intend to make any decisions about this issue in addressing the merits of these Applications.
8The Applications submitted by W.P.M. alleged several breaches of the Code for each of the children. It took some time to clarify the substance and specific nature of these allegations. Eventually, in a CAD dated December 12, 2016, I clarified that the specific allegations on which I shall make a decision are as follows:
U.M.’s exclusion from school between January and June 2014;
The contravention of parental wishes, awareness and rights, regarding U.M.’s and M.M.’s educational placement in the “community class”;
The initial exclusion of M.M. from the summer camp program offered by the school; and
The respondent ignoring U.M.’s and M.M’s educational needs.
9Following a teleconference with the parties on April 10, 2017, these allegations were further refined in the CAD issued on April 12, 2017, as follows:
That….the particulars regarding the respondent’s alleged “ignoring of the children’s educational needs” should include but not be limited to the following points:
How were U.M.’s educational needs met during the period of U.M.’s alleged exclusion from school between January and June 2014?
How were M.M.’s educational needs met during the period of late February to early March 2015, when it was alleged that her daily attendance was limited by the respondent?
How were the children’s educational needs met in light of the allegations that:
o Both children were placed in a self-contained autism class during September 2014, contrary to their IPRC statements of decision and explicit parental wishes; and
o That this placement resulted in a denial of meaningful access to education as requested and determined by W.P.M.
How were U.M.’s educational needs met in light of the allegation that his specific Individual Education Plan (“IEP”) goals and certain other IEP components, such as his exclusion from EQAO testing and describing him as “non-verbal”, resulted in a denial of meaningful access to education, as determined by W.P.M.?
How were the children’s educational needs met in light of the allegation that their IEPs did not demonstrate an honest effort to educate the children, as appropriate?
10As directed in a CAD issued on December 12, 2016, the parties did not address the matter of remedies during the hearing. It was agreed that, if I make a decision that there has been a breach of the Code in relation to one or more or all the above allegations, the parties will be invited to make written submissions on the matter of appropriate remedies.
11Since there is no dispute between the parties that both U.M. and M.M. have a disability, as defined by the Code, the issues that I have to determine are the following:
Are the allegations made in these two Applications factual, i.e., did the respondent school board actually take the specific steps alleged by W.P.M. and if so, did they occur as described by W.P.M.?
If I am satisfied, based on the evidence, that these events occurred as alleged by the applicants, are they (both the events and the related actions of the respondent) breaches of the Code? In other words, did the applicants establish a prima facie case of discrimination? The term prima facie in this context means that sufficient corroborating evidence has been presented to support the facts of the allegation.
If a prima facie case of discrimination is established, did the respondent school board provide an acceptable non-discriminatory reason for its actions, namely that it was prevented from providing the appropriate accommodations to the applicants by the actions of the applicants’ Litigation Guardian or did the respondent establish the defence of undue hardship under the Code? If no prima facie case of discrimination is established, then I do not have to consider further the school board’s actions or make a determination whether they accommodated the applicants to the point of undue hardship.
12Much of the applicants’ evidence relied on written documents, most of which was read verbatim into evidence. This consisted primarily of the hundreds of e-mails exchanged between W.P.M. and school board personnel, in particular the former principal (J.C.) and the current principal (K.M.) of the junior public school where the children were and are still in attendance.
13From W.P.M.’s evidence it became clear that he is a very involved parent, who primarily relies on his own opinions about his children’s general and specific needs and schooling. He made it clear that he rejected the psycho-educational and medical assessment data available for his children; he did not agree to any re-assessments, in spite of these having been recommended, because he does not trust the professionals. For example, he was highly critical about the benefits and impact of the services provided by Kinark Child and Family Services (“Kinark”), an agency that provides ABA and IBI training for children with ASD and provided such services for U.M. prior to the period covered by this Application. His distrust apparently also extended to the school board’s Autism Team, to some of the teachers and EAs at his children’s school and he was described by the school board’s witnesses as a parent who wanted to make all decisions about his children’s education. Yet some of W.P.M.’s communication with the school was also complimentary about the fact that both J.C. and K.M. frequently tried to act on his (W.P.M.’s) requests. K.M. summarized W.P.M.’s frequent interaction with the school, as follows: “he asked – we would say that that is not a great idea – he persisted – and eventually we gave in and agreed. And that was it until next time.”
14In addition to himself, W.P.M. called only one witness (D.F.), a centrally assigned school principal who acts as a student services co-ordinator for the region of the school board where the applicants attend school. D.F. stressed that, although she was not directly involved with the children at their school, she had a role in staff allocation, such as the requests for additional EA support for U.M. and M.M.; and was made aware of the many staffing changes made at W.P.M.’s request. She stated that she was assured that U.M. and M.M. were both thriving in the community class placement, while that lasted. She stated that she regretted that this turned out to be rather short term, as a result of W.P.M.’s demand for a changed placement for both his children. In response to W.P.M.’s direct question she confirmed that all children are entitled to attend school full time. But she clarified this statement by adding that sometimes full time attendance is delayed or modified by a planned gradual transition process, when such a transition is deemed to be in the best interests of the child. I noted D.F.’s comment that she regretted that the two children were not able to access the education “that they deserved.”
15The respondent initially also called just one witness, K.M., who is the current principal of the school where the applicants attend. In addition, on the Tribunal’s direction, two additional witnesses were called by the respondent to address some specific questions. These were J.C., the former principal of the applicants’ school and K.T., the former student services co-ordinator for the region where the applicants attend school. Both J.C. and K.T. no longer work for the respondent school board. All three respondent witnesses described the extent to which they tried to work with W.P.M., and to comply with his many requests, including, but not limited to, his demands regarding the EA allocation, both in terms of the role of the EAs as well as who the actual EA was, the changing of the children’s placement and the timing of their attendance. They worked hard to build trust between W.P.M. and the school, because they hoped that this would benefit the children, establish greater trust between the family and the school, and reduce stress for the whole family.
16The respondent denied all allegations of discrimination made by the applicants and stated that both applicants were accommodated appropriately at all times within the school board’s mandate under the Code and the Education Act.
17The respondent stated that the applicants were provided at all times with a “meaningful access to education”, in accordance with the Supreme Court’s decision in Moore v. British Columbia (Education) 2012 SCC 61 (“Moore”) and that, if there were any limitations or omissions in this regard, these were the result of, or were, at the very least, directly related to W.P.M.’s requests, statements, actions and/or decisions. They were aware that W.P.M. resisted the ASD label, especially when it was qualified as “severe”, and that W.P.M. claimed to be the primary expert on meeting his children’s needs, including their educational needs, which he viewed as much less important than their developmental, behavioural and social needs. The respondent’s witnesses acknowledged that for children with ASD developmental, behavioural and social needs are all very important considerations. But, focusing on these in an educational rather than therapeutic setting cannot eliminate or replace their obligations to meet those educational needs that are specified for all children, including children who are identified as exceptional learners, by the legislation governing the mandate of school boards.
18I noted that the respondent’s witnesses all spoke of their ongoing concerns about what they described as “an emotionally fragile family setting” and felt that it was important for them to tread carefully. They said that, even while they thought that certain educational placements and interventions might have helped the children, forcing these, in light of strong parental resistance, would have led to a traumatic experience for the children. This is why they allowed W.P.M. to spend time in the classroom with M.M., and in the school corridor outside his children’s classrooms during the school day to reassure W.P.M. that all was going as well as could be expected with his children.
19The respondent further stated that the Tribunal should consider that the Code does not expect school boards to provide special education programming to students in the “best interests of the child”, as set out by the Supreme Court in Eaton v. Brant County Board of Education [1997] 1. S.C.R. 241, (“Eaton”) which, in the respondent’s opinion, is only relevant to the work of the Ontario Special Education Tribunal (“OSET”), but not to matters before the Human Rights Tribunal of Ontario, such as this case.
20The respondent also cited Schafer v. Toronto District School Board 2010 HRTO 403, where the Tribunal held that “as long as the substantive accommodations as recommended by the IPRC and IEP are generally (emphasis added) implemented, the substantive duty to accommodate will be met.”
21While I do not fully agree with the respondent in the interpretation and application of Eaton, my decision can ultimately only relate to the allegations before me, rather than to the general issues of what educational settings, services, supports and accommodations might be or might have been in these children’s best interests. Therefore, for all the reasons set out below, I have no option but to dismiss both these Applications on the grounds that W.P.M. did not establish a prima facie case of discrimination in accordance with the Code.
22Some of the allegations were not proven by the evidence on a balance of probabilities. I do not accept that they happened, as described by W.P.M. These were the allegations of the exclusion of both U.M. and M.M. from school at different times and the exclusion of M.M. from the summer camp program. Some of the other allegations, such as the ones relating to the apparent late timing and the alleged inadequate goal content of the children’s IEPs, as well as the more general allegation that the children’s education was not delivered in total compliance with parental wishes, even if factually credible, do not amount to breaches of the Code. The evidence submitted by the parties did not support W.P.M.’s allegation that his children were denied access to a meaningful education, when they were taught by a qualified special education teacher on a withdrawal basis or were in a community class placement.
BACKGROUND INFORMATION AND THE EVIDENCE RELATED TO THE ALLEGATIONS
Considering U.M. as an exceptional student
23U.M. was diagnosed with ASD when he was two years old. He was reassessed when he was five years and eight months old. Both assessments showed a significant delay in communication skills, in particular in the area of expressive language. It was recommended that he would benefit from IBI therapy as well as speech and language therapy. At the relevant time covered by this Application to the Tribunal, he used an assistive communication device (Vantage Device) at school.
24When U.M. began to attend school, he was identified by an IPRC as an exceptional student with a Communication Exceptionality, namely ASD. He was placed in a partially integrated special education class at a different junior public school. In SK, U.M. was moved to his current school by his parents, where his identification was maintained, but his placement was changed, on parental request, to regular class with resource assistance. In the spring before he entered Grade 1, his placement was changed again to a partially integrated special education class. At that time, W.P.M. concurred with this placement decision.
25At the end of Grade 1, in May 2013, the IPRC recommended the continued placement of U.M. in a partially integrated special education class. At W.P.M.’s request, the placement decision for Grade 2 was changed to regular class with indirect service. In preparation for U.M.’s Grade 3 placement, the IPRC recommended a fully self-contained special education class to meet U.M.’s identified needs. This placement was changed to a partially integrated special education class again at W.P.M.’s request at the September 2014 reconvened IPRC.
26The IPRC met once again in February 2015 to discuss U.M.’s placement. The placement recommendation of a “partially integrated special education class” was changed to “regular class with indirect service.” The statement of decision was written as follows: “The IPRC quorum considered all information presented and believes a partially integrated community class (special education class) would best meet U.M.’s needs, however, we are honouring parent request for indirect support.” All this information demonstrated that the school was responsive to W.P.M.’s demands regarding his son’s placement.
27Throughout the relevant period, U.M. received support from a number of school board personnel in addition to his regular class room teacher. These included:
a SERT (Special Educational Resource Teacher), either through direct instruction, during the short period when he was in a special education classroom or through program consultation support for the regular classroom teacher when his placement was the regular class with indirect support;
an EA (Educational Assistant) during recesses and lunch period, when he was present for these; and
a CYW (Child and Youth Worker) in the regular classroom during instructional time.
Considering M.M. as an exceptional student
28M.M. was diagnosed with ASD when she was two and a half years old. The diagnosis identified significant difficulties in the areas of communication and social interactions. The assessment recommended that she would benefit from IBI therapy. This was provided to her on a daily basis prior to school entry.
29M.M. received support and treatment through a number of professional services before entering school. These included speech-language therapy, play therapy and augmentative and alternative communication therapy. A follow up psychological assessment was recommended, but apparently was not carried out.
30At the initial IPRC, when M.M. was in JK, she, like her brother, was also identified as exceptional with ASD as her exceptionality. During her JK year, M.M. was in a regular class receiving indirect service.
31In September 2014, during the start of M.M.’s SK year, the IPRC recommended a fully self-contained special education class. This placement recommendation was changed, on parental request, to a partially integrated special education class placement. In that placement, M.M. was supported by an EA.
32The next IPRC was convened on February 5, 2015, where M.M.’s placement decision was changed again to read as follows: “The IPRC quorum considered all information presented and believes a partially integrated community class placement would best meet M.M.’s needs, however, we are honouring parent request for indirect support.”
33While she was in the regular class with indirect support, M.M.’s classroom teacher was provided with consultation support by a SERT to focus on M.M.’s needs. Initially the school board’s Autism Team also supported the classroom programming provided to M.M., recommending certain well documented strategies such as “first-then” and a “preferred object” approach. On W.P.M.’s request, the Autism Team discontinued its involvement in M.M.’s programming.
The evidence related to the allegations that U.M. was excluded from school between January and June 2014 and that his educational needs were not met due to this exclusion
34Prior to the relevant period covered by this Application, U.M. accessed provincially funded IBI therapy from Kinark. As a result of this intensive therapy offered for four days a week, his attendance at school at that time was limited to one day per week, even though he was a registered student of the school. The exclusion allegations for January 2014 to June 2014 relate to the period when, at W.P.M.’s request, the services accessed by U.M. at Kinark were in the process of being reduced and eventually eliminated, and U.M. was transitioning to more regular attendance instead at the local school. There was no evidence before me to indicate that Kinark had deemed that he no longer would benefit from the intensive services that they offered to U.M.
35In the Application, W.P.M. alleged that U.M. was excluded from attending school between January and June 2014, in spite of the fact that his parents wanted him to attend school full time during this period. In his opening statement, W.P.M. stated that it was the parents’ wish that, once U.M. had discontinued his four day attendance with Kinark, U.M. would attend his local junior public school full time, i.e., for five full days per week, as is the case for other “typically developing” students. He stated that U.M. was denied that opportunity, i.e., that he was excluded by the school’s administration.
36This allegation was later corrected by W.P.M. to state that what he had actually requested and was denied was the opportunity for U.M. to attend five half days in a regular class with full time EA support. However, W.P.M. still maintained that the school’s actions amounted to “excluding” U.M. and thereby denying him a meaningful access to an education. I noted that although W.P.M. consistently used the term “exclusion”, at no time did he actually refer to s.265(1)(m) of the Education Act, where exclusion is defined. I believe therefore that his use of the term “exclusion” was not in the legislative sense, but in an everyday regular usage sense.
37These alleged facts were contradicted by the written evidence of both parties as well as the respondent’s witnesses, both K.M., the current school principal, who at the relevant time was vice-principal at the school and the previous principal, J.C. Both individuals described in detail the many face-to-face conversations they had with W.P.M. and the many e-mail exchanges and telephone conversations they engaged in about the gradual transition plan that U.M. needed, given his disability and clearly defined needs.
38Both these witnesses, as well as D.F., the witness called by W.P.M., stated that it was the school board’s and the school’s intention to ensure that, through this gradual transition approach, U.M. would attend school on a full time basis, as soon as he was ready for this.
39A key piece of evidence, relied upon by both parties, was the e-mail that W.P.M. wrote to D.F. In this e-mail, dated August 12, 2013, W.P.M. gave a brief overview of U.M.’s school attendance history, which consisted, during the 2012/13 school year, of one day a week at the public school and four days a week with Kinark. W.P.M. concluded with the following questions, which demonstrate that, contrary to his verbal evidence, he was not actually pursuing full time school attendance for January 2014 for U.M.:
If we keep him with Kinark, can he attend one full day per week with an EA in the normal class?
If we pull him out of Kinark, can he return to school 5 half days with an EA?
40I note the series of e-mails that followed this initial e-mail dated August 12, 2013, in which W.P.M., the school principals and other school board personnel exchanged ideas about the most effective transition process that could be put in place to enable U.M. to attend school in the most appropriate manner starting in January 2014. It was not clear from these e-mails just exactly how much time U.M. was going to spend with Kinark at the beginning of the next calendar year and, therefore, exactly how much time he would be able to spend at school.
41However, it was both W.P.M.’s and all the respondent’s witnesses’ evidence that W.P.M. wanted to make as many of the decisions as possible about U.M.’s attendance and about the details of his schooling. Many of the suggestions that he provided to the school, which included both attendance and other more general education issues, such as the material taught and the way it was taught, went beyond regular parental involvement in planning the education of a child in a school setting. He wrote and spoke to J.C. at length about U.M.’s sleep patterns, out of school behaviours, health issues, diet, as well as about having a homeschooling plan that he was thinking of initiating in addition to (or perhaps sometimes instead of) school attendance and how that would impact upon what should or would be happening at school. He stated that U.M. required 1:1 support when in school, but that that level of support could not be provided to him in a special education class. Yet, he also alleged, at the same time, that it was only the school board that wanted U.M. to have 1:1 support. He commented that he expected U.M. to have significant behavioural problems for 2 to 4 months, if he were to attend more than the one day a week at school. He suggested that the school should allow him (W.P.M.) to remain in the classroom with U.M., as he had done with M.M. previously. He stated numerous times that his goals for U.M. were social, developmental and/or behaviour oriented, rather than academic and that he expected the school to support this at all times.
42He generally alleged that the school board planned: to place his children in harm’s way by trying to place them in an exceptionality-specific special education class; to manipulate their education by forcing unwanted and unacceptable therapies on them, such as ABA, which were not appropriate for them in his opinion; and, by trying to exclude them from interacting with “typically developing” children, when clearly that was needed to ensure that the focus could be on their developmental needs. W.P.M. stated that the matter of how much 1:1 support the school could guarantee for U.M. was used to try to force U.M. into a special education class, in spite of clear cut strong parental opposition.
43I note that both J.C. and K.M. appeared to have made significant efforts to meet W.P.M.’s expectations regarding U.M.’s education: they listened to W.P.M.’s concerns; they responded to his e-mails; and accepted the fact that, even within the gradual transition approach, U.M. was frequently kept home for health-related and other, often not necessarily unavoidable, reasons. This was particularly prevalent during this transition period.
44I heard evidence that J.C. requested additional EA support for U.M. from the school board in January and again emergency EA support from D.F. for after the March break, to provide greater support for U.M. when he was in school. On January 31, 2014, W.P.M. was presented with a plan for the gradually increasing attendance of both his children, which he appeared to accept. In his e-mails to the school he wrote about the other (non-educational) activities that he did with the children and that he was very pleased that these were not jeopardized by the school’s timetabling plans.
45Given that all of this information regarding transition planning was in evidence in writing, submitted by both parties as evidence, and given the fact that U.M. was in full time attendance at the school by May 15, 2014, I do not accept W.P.M.’s assertions that U.M. was excluded during this specified period. While the gradual transition may have been slower than it could have been, none of the written evidence suggested that W.P.M. was opposed to the gradual transition process implemented for U.M. until he was attending school full time.
46W.P.M. stated that part of the purpose of this slow transition on the part of the school personnel, was “to prevent him from working.” He explained that when his children are not in school, he is their primary caregiver. Therefore, he can only work when the children are in school. He provided no cogent reason for the allegation that the school and its personnel would want to hinder his ability to work and earn a living. Further, there was no evidence before me to support this statement, i.e., that the school board or the relevant school personnel made any of their decisions regarding U.M.’s attendance with a view to interfering with W.P.M.’s work. In fact, I noted that both J.C. and K.M. stressed the extent to which they were focussing on W.P.M.’s health issues, both physical and mental, when they described their decision making process, rather than solely considering U.M.’s educational needs. This was supported by the contents of many of the emails that both J.C. and K.M. exchanged with W.P.M.
The evidence related to the allegation that M.M. was initially excluded from the school board’s summer camp program
47W.P.M. alleged that the school board excluded M.M. from its summer camp program during the summer of 2015, thereby breaching the Code. The respondent school board offers its students a summer camp program, called the Summer Institute, which is provided at a number of schools. This program is run by older students as counsellors, under the supervision of some staff. Typically, the Summer Institute does not offer specialized services and accommodations to exceptional students. However, in addition to the Summer Institute, the school board also offers a modified/accommodated summer program for those students who require additional supports to participate in a summer program.
48When W.P.M. registered U.M. and M.M. for the Summer Institute at the local school, he indicated on the registration form that M.M. required 1:1 support during the summer camp program. K.M. informed W.P.M. once he was made aware of W.P.M.’s request that the Summer Institute at the local school did not provide the requested 1:1 support, but that M.M. could access that level of support and participate in a very similar summer program at another public school, also close to her home, the “accommodated summer program.”
49W.P.M. testified that he did not accept this offer, as he wanted M.M. to attend the local school’s summer program with her brother and he wanted her to attend a summer program with other non-disabled children. The school board in fact complied with W.P.M.’s request and M.M. attended the Summer Institute at her local school for half days with 1:1 EA support.
50W.P.M. alleged that the recommendation that M.M. attend the other summer program that provides a range of accommodations for students with special needs is discriminatory under the Code. K.M. explained that the accommodated summer program was established to enable children with special needs to attend a summer program that met their special needs. Ultimately, M.M. in fact attended the Summer Institute at her local school during the summer of 2015 and the school board accommodated her by providing an EA to support her on a 1:1 basis.
The evidence related to the allegation that M.M.’s attendance was limited by the respondent between late February and early March 2015 and therefore her educational needs were not met during this period
51W.P.M. alleged that between late February and early March, 2015, M.M. was prevented by the school’s administration from attending school full time, which was discriminatory; it resulted in the school board not meeting her educational needs; and further that this was done with the direct purpose of interfering with his (W.P.M.’s) ability to work.
52Similar to the attendance issues for U.M., W.P.M. was involved in frequent direct and sometimes contradictory communications with the school about timetabling and attendance issues for M.M. During this period M.M. did not attend school full time on a regular basis. However, based on the frequent and lengthy communications between W.P.M. and the school’s administration, both J.C. and K.M., it is clear that M.M.’s limited attendance and somewhat irregular participation in the educational program was arranged through mutual consent between the parties.
53During the period specified in this allegation, i.e., February 24 to March 1, 2015, following the February 5, 2015 IPRC decision, M.M. was transitioning from the community class placement to a regular kindergarten placement, as requested by W.P.M.
54At this time, W.P.M. raised a concern regarding M.M.’s “absolute refusal” to wear mittens while outside in the playground for recess. Therefore, W.P.M. requested that M.M. be kept indoors during the recess period or, alternatively, he offered that he could take her home and then bring her back to school after recess was over. If M.M. stayed within the school building for recess, she had to be supervised by an EA. On the basis of a series of e-mails as well as the evidence of both J.C. and K.M., it was demonstrated that there were numerous changes, sometimes from day to day, as to when M.M. would attend school, when she would be collected by W.P.M. to go home and then be returned and when, if at all, she would participate in recess with her peer group.
55The issue came to a head on February 26, 2015, when, through a series of emails during that morning, M.M.’s transitioning, future attendance and 1:1 supervision issues were discussed and negotiated between W.P.M. and J.C. At one point W.P.M. suggested to J.C. that perhaps the best thing would be to keep M.M. at home for that day to avoid having to deal with the fact that the school could not always reliably guarantee the requested 1:1 support for M.M. inside the school building during the recess period, while the other children were outside.
56On February 27, 2015, J.C. emailed W.P.M. to state that on that specific day he (J.C.) could not in fact guarantee the requested 1:1 EA support for M.M., as requested by W.P.M. He wrote the following in an email that morning to W.P.M.: “As per our conversation, we are unable to provide 1-to-1 support and if there is any big issues with behaviour, we will call you to get her.” The evidence does not support W.P.M.’s allegation that this one emailed communication amounts to excluding M.M., or to the school “limiting” M.M.’s attendance. Further, there was no evidence to support W.P.M.’s allegation that this alleged exclusion was primarily directed at him to prevent his ability to work. Ultimately, the circumstances surrounding W.P.M.’s work are not matters that in any way relate to his children’s education, as far as the obligations of the school board are concerned, either under the Code or the Education Act.
The evidence related to the allegation of the contravention of parental wishes, awareness and rights, regarding U.M.’s and M.M.’s placement in the community class which resulted in a denial of meaningful education for both children
57W.P.M. stated that in September 2014 both his children were placed in a self-contained autism-specific special education class (“the community class”) without his knowledge and his consent. Having referred to it as a “secret” placement, he alleged that this placement represented a breach of the Code, since both J.C. and K.M. knew that he did not want this placement for either of his children and further, that in this placement, both his children were denied an appropriate meaningful access to education. W.P.M. rejected J.C.’s and K.M.’s evidence that his children were doing well and making significant gains educationally and behaviourally during this period in this placement.
58The evidence showed that on April 16, 2014, the IPRC confirmed U.M.’s identification and stated that his placement would be regular class with indirect service. On May 19, 2014, the IPRC confirmed the same identification and placement for M.M. W.P.M. agreed with the IPRC decisions for both his children, as indicated by his signature.
59W.P.M. alleged that, starting in September 2014, in spite of the IPRC decision that he supported, the school board secretly changed U.M.’s and M.M.’s placement to a self-contained autism-specific special education class without his knowledge and agreement, thereby breaching the Code. Both J.C. and K.M. confirmed that starting in September 2014, both U.M. and M.M. were receiving most of their education on a withdrawal basis, provided by a qualified special education teacher, with expertise in teaching children with autism and supported by one or more EAs. The respondent’s evidence was that both children were benefitting from this level of support, although they acknowledged that they knew that W.P.M. did not support a formal self-contained class placement for his children. Given W.P.M.’s regular visits to the school, it is hard to believe that he was not aware of who was teaching his children and in what setting. Therefore, I cannot accept the allegation that the level of service provided to his children was “secret”, especially given his evidence that he saw his children in this setting. However, I do accept that he did not formally agree to “withdrawal”, when the IPRC statement of decision that he signed earlier in the school year stated “indirect service.”
60J.C. described the school board’s plan to establish a self-contained autism class at his school at some point during the 2014/15 school year, to serve children from several schools in the area, whose needs would best be met in such a class. J.C. confirmed that, although construction was still ongoing in September, the teacher who was going to teach the self-contained class was already at the school along with two assigned and appropriately trained EAs. J.C. confirmed that this teacher and the EAs were working with U.M. and M.M., in anticipation of the next IPRC, which was scheduled for September 26, 2015.
61W.P.M. agreed that there were no other identified exceptional students present when his children were receiving their education from the special education teacher with the support of two EAs. Nevertheless, he stated that, in his opinion, this placement, even if temporary and even if it was not a fully constructed congregated autism class, denied his children a meaningful access to education, as defined by him, and therefore must be seen by the Tribunal as a breach of the Code.
62In response to this allegation, J.C. stated and K.M. confirmed further that both U.M. and M.M. were doing really well with this level of support and were making significant gains both in an educational and a behavioural sense. They stressed that from their perspective this was exactly the meaningful access to education that U.M. and M.M. needed and were entitled to.
The evidence related to the allegations that the respondent ignored and did not meet both U.M.’s and M.M.’s educational needs in light of W.P.M.’s concerns about the contents of the IEPs; the allegation that the IEPs were inadequate; that the IEPs did not demonstrate an honest effort on the part of the respondent to educate the children as appropriate and that this resulted in a denial of meaningful access to education, as determined by W.P.M.
63W.P.M. alleged that his children’s IEPs did not represent “an honest effort to educate the children, as appropriate” as a general concern, as well as some specific issues regarding the IEPs, which resulted in a “denial of meaningful access to education”, as determined by W.P.M.
64Although this allegation generally refers to the IEPs of both children, W.P.M.’s specific concern regarding M.M.’s IEP for 2014-15 focused primarily on the fact that the school board utilized certain ABA-based methodologies, such as the “first-then” approach, to meet M.M.’s alternative skill expectations. As stated earlier, in a CAD I informed the parties that I would not be making any findings related to the school board’s implementation of ABA strategies. Therefore, I shall not address the appropriateness or otherwise of this specific allegation.
65W.P.M. testified that he did not agree with M.M.’s assessment data contained in her IEP and that M.M.’s IEP did not reflect the educational progress that W.P.M. claimed she was demonstrating at home. However, under cross-examination, he was not able to point to any specific aspect of M.M.’s IEP goals or strategies that he actually disagreed with or that he could link to the alleged “denial of meaningful access to education.”
66The documented evidence showed that W.P.M. was consulted on and signed M.M.’s IEP and, further, that he could not point to any part of the IEP that represented an adverse impact or discrimination for M.M. in terms of her ability to access an education. Both J.C. and K.M. stated that the school can only note progress and achievement that children are able to demonstrate at school and cannot rely upon parental opinion or commentary about what a child is allegedly able to do at home.
67W.P.M. expressed more significant concerns about U.M.’s IEP. There were numerous e-mails in evidence in which he stressed that his primary educational goals for his children were social and behavioural, rather than academic. He focused on the specific goals included in U.M.’s IEP, as evidence of the school board’s discriminatory practices. However, while he stated that his children demonstrated significant academic gains at home when he worked with them, W.P.M. could not point to any evidence that he had communicated these specific concerns about U.M.’s achievement and progress in the academic area either to either of the school principals or to U.M.’s teacher.
68Regarding U.M.’s 2014-15 IEP, dated October 15, 2014, which was signed by W.P.M., he expressed concerns about the goals, because he stated that they were insufficient, inaccurate and understated U.M.’s actual achievement in the areas of maths and communications. He had no stated concerns about the strategies, resources and supports. He also commented that he saw no year over year development in the goals, which meant to him that U.M. was not receiving an adequate or meaningful education.
69W.P.M. also objected strongly to the description of U.M. as “a student diagnosed with autism [who] is non-verbal” in the section offering the rationale for U.M.’s recommended exemption from the Provincial Assessments carried out in Grade 3, as not only false, but also discriminatory. I noted that the updated April 10, 2015, IEP excluded the reference to U.M. being non-verbal, demonstrating the school board’s willingness to amend the IEP, when so requested and appropriate.
70Based on the evidence before me, W.P.M. was fully engaged in the development of his children’s IEPs. He clearly found it difficult to accept that he could not amend these documents to reflect what he believed to be in his children’s best interests. However, there was no evidence before me to support the allegation that these IEPs were “proof” that the children were denied a meaningful access to education by the respondent.
ANALYSIS
Considering the relevant legislation
71Disability is defined in Section 10(1) of the Code. There is no dispute between the parties that ASD is a disability, in accordance with the definition of disability within the Code. Therefore, U.M. and M.M. have a right to equal treatment with respect to services without discrimination, in accordance with the Code, since they are both recognized as persons with a disability. As persons with a disability as defined by the Code, they can expect to be accommodated by the respondent to the point of undue hardship.
72Education is deemed a service under the Code. While the Code does not explicitly set out the specific obligations of school boards, its provisions to accommodating persons with disabilities to the point of undue hardship and its protections regarding direct and adverse effect discrimination are all relevant for the operations of school boards. Since the Code has primacy over all other legislation in the Province, it is a given that school boards will implement the Education Act including their services for students receiving special education services in accordance with their Code obligations. That means that school boards cannot deny meaningful access to education to their students with disabilities.
73Section 0.1(2) of the Education Act states that the purpose of education is to provide students with the opportunity to realize their potential and develop into highly skilled, knowledgeable, and caring citizens who contribute to their society. This is further expanded in section 169.1 of the Education Act, which sets out the criteria for creating an inclusive and accepting school environment in accordance with the Code for the purposes of assuring appropriate and meaningful access to education for all pupils. The same section also mandates that school boards will deliver effective and appropriate education (emphasis added) programs to their pupils.
74While the Education Act provides for parental appeal rights in certain aspects of their child’s education, such as the appeal rights relating to special education placements in Regulation 181/98, as well as for parental involvement in other matters, it is important to note that the determination of the content of appropriate educational programs and services that are delivered to children is primarily the responsibility of the school board under the direction of the Ministry of Education and the legislation and is not generally subject to parental control.
75Section 170 of the Education Act states that school boards have an obligation to provide or purchase from another school board special education programs and services to meet the needs of their exceptional students. While the Education Act and the Regulations related to it acknowledge the importance and relevance of considering parental preferences and encourages communication with parents before implementing certain decisions, the legislation does not give parents the absolute power to make all decisions about the education of their children within the public education system, especially in the areas of curriculum and other related aspects of programming, such as teaching methodology.
76Section 21 of the Education Act sets out the requirements related to school attendance, including circumstances where attendance is excused on the grounds of sickness or other unavoidable causes, as well as the obligations of parents to ensure that their children attend school. School attendance may be limited or modified for a number of reasons. These may include the child participating in some other program and service, such as the IBI programming offered by Kinark, as happened in this case for U.M.; or a circumstance where the school day is shortened for an exceptional student in accordance with the Education Act; or where the school board provides home instruction to a student for a particular reason; or where limited attendance, especially if it is short term, is the result of an agreement between a parent and a school; or where a student has been excluded in accordance with section 265(1)(m). Under any of these circumstances, the rules related to compulsory attendance may be modified.
77The Supreme Court of Canada had set out the test for discrimination for education cases in Moore v. British Columbia (Education), (“Moore”) 2012 SCC 61. The Court held that to demonstrate discrimination, applicants must show:
that they have a characteristic protected from discrimination;
that they have experienced an adverse impact with respect to their education, i.e., that they have been denied a meaningful access to an education; and
that the protected characteristic was a factor in the adverse impact.
78The issue in Moore was whether the student in question was denied meaningful access to the general education available to all students in British Columbia because of his disability (dyslexia), when the school board cancelled its special education program for students with severe learning disabilities. The Court held at para. 36:
[…] if the evidence demonstrates that the government failed to deliver the mandate and objectives of public education such that a given student was denied meaningful access to the service based on a protected ground, this will justify a finding of prima facie discrimination.
79The Court in Moore addressed the question of whether the “service” in special education cases is “special education” or education more generally or exhaustively. The Court stated that special education is not the service in and of itself, rather it is primarily the means by which certain students get meaningful access to the general education services that are available to all students. In Moore, the Court made the following comments at para. 28:
It is accepted that students with disabilities require accommodation of their differences in order to benefit from educational services. Jeffrey is seeking accommodation, in the form of special education through intensive remediation, to enable him equal access to the “mainstream” benefit of education available to all. […] In Jeffrey’s case, the specific accommodation sought is analogous to the interpreters in Eldridge: it is not an extra “ancillary” service, but rather the manner by which meaningful access to the provided benefit can be achieved. Without such special education, the disabled simply cannot receive equal benefit from the underlying service of public education.
80If a prima facie case of discrimination, i.e., a breach of the Code has been established, the evidentiary burden then shifts to the respondent to justify the conduct within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to have occurred. But, if it is established that a student is provided with a meaningful access to education, as defined by the Supreme Court, there can be no determination that there has been discrimination under the Code.
81Since 2012, the Tribunal has relied on Moore in several cases. In R.B. v. Keewatin-Patricia District School Board, 2013 HRTO 1436, the Tribunal found that the school board proactively reduced the provision of appropriate special education services to R.B., which resulted in an escalation of the behaviours related to his diagnosed disability, and, in turn, led to his exclusion from school attendance. Accordingly, R.B. was denied a meaningful access to education as a result of these actions.
82In L.B. v. Toronto District School Board, 2015 HRTO 1622, the Tribunal noted that L.B. did not have meaningful access to education as a result of his disabilities, which were identified by the school board through the IPRC process, but were not accommodated appropriately. Therefore, the Tribunal found that L.B., having not been accommodated appropriately, experienced direct discrimination in accordance with the Code.
83The Moore decision was not the first time that the Supreme Court considered a special education case. In 1997, in Eaton v. Brant County Board of Education 1997 CanLII 366 (SCC), [1997] 1 SCR 241, the Court introduced the “best interests of the child” principle into the legal field related to special education. As mentioned previously, I do not accept the argument put forward by the respondent that the concept of “best interest of the child” should not be considered when considering cases before the Tribunal or when determining discrimination. In making this statement, I rely on a recent interim decision in J.S. v. Dufferin-Peel Catholic District School Board 2017 HRTO 945, where the Tribunal stated the following:
While it may not be the ultimate legal test, the best interests of the child must be a significant consideration that informs my decision. What is at issue in this case is what supports and programming the applicant requires in order to have meaningful access to education, equally and without discrimination.
DECISION
Did W.P.M. establish a prima facie case of discrimination in his evidence?
84I note that two witnesses, one called by the applicants (D.F.) and one by the respondent (K.M.), indirectly referred to what they considered as being in the best interests of the applicants, by stating that the school board was not able to provide to these children the education that they “deserved”, because the school was obliged to consider W.P.M.’s wishes at all times including at the IPRCs, and to provide a placement and subsequent educational services and accommodations, in accordance with those wishes. However, the issue before me is whether the allegations raised in these Applications, as filed with the Tribunal and as clarified during the course of the hearing are supported by the evidence and amount to a violation of the Code, as opposed to a general inquiry as to whether the education provided to the applicants was in their best interests.
Regarding the facts of U.M.’s alleged exclusion in 2014 and whether his educational needs were not met due to this exclusion (paras. 35 – 47)
85Based on the evidence before me from both parties including the many emails exchanged between W.P.M. and J.C. and K.M., I cannot accept the applicants’ version of the allegation that U.M. was excluded from school between January and June 2014. His gradual transition into full time school attendance, while perhaps not smoothly managed at all times, did not amount to exclusion by the respondent and certainly did not explicitly contravene parental wishes. The applicants did not establish a prima facie case of discrimination with this allegation.
86Since the evidence did not support the statement, on the balance of probabilities, that U.M. was excluded at any time by the respondent during this period, the related allegations that U.M.’s educational needs were not met and he had no meaningful access to education due to his exclusion are moot. Therefore, these allegations related to U.M.’s exclusion between January and June 2014, are dismissed.
Regarding the facts of the allegation that M.M. was initially excluded from the school board’s summer camp program (paras. 48 – 51)
87The facts regarding this allegation were clear. W.P.M. requested 1:1 support for M.M. at the local Summer Institute. The respondent initially offered a placement at an alternative summer program, where the support that W.P.M. was requesting for M.M. was provided routinely for students who needed such support. W.P.M. did not accept the offer. M.M. eventually attended the local Summer Institute, starting at the same time as all other students, including her brother, with the support of an EA on a 1:1 basis.
88It is clear from the evidence that M.M. was not excluded from the Summer Institute and attended with appropriate accommodations. Therefore, there is no prima facie case of discrimination and this allegation must be dismissed.
Regarding the facts of the allegation that M.M.’s attendance was limited by the respondent between late February and early March 2015 and therefore her educational needs were not met during this period (paras. 52 – 57)
89The evidence related to this allegation essentially focused on one specific day, when J.C. notified W.P.M. that there would be no 1:1 EA support available to enable M.M. to remain in the school building during recess. The parties agreed on the specific facts related to this one day and J.C.’s email confirmed it. What was not clear from the evidence whether M.M. was in school some, most or all of that one day or not.
90The Tribunal has repeatedly stated that the duty to accommodate obliges a service provider, in this case the school board, to offer reasonable and appropriate accommodation, but not perfect accommodation or what the applicant might deem as the preferred accommodation.
91Based on that, even if M.M. did not have the requested 1:1 EA support to enable her to remain in the school building during recess on the one specified day, I do not accept that this amounts to a prima facie case of discrimination on the part of the respondent. I accept the respondent’s argument that this event should be considered as being de minimis, i.e., that if M.M. was taken home by W.P.M. on that day to avoid having to go outside for recess, this does not amount to a denial of meaningful access to education. While recess is an integral part of the school day, it is not an instructional period. For all these reasons, I dismiss this allegation as a breach of the Code.
Regarding the facts related to the allegation of the contravention of parental wishes, awareness and rights, regarding U.M.’s and M.M.’s placement in the community class which, according to W.P.M., resulted in a denial of meaningful education for both children (paras. 58 – 63)
92The evidence showed that the school board was in the process of establishing a self-contained class (“community class”) for students with ASD at the school attended by U.M. and M.M., which was going to serve, from several schools, up to 6 identified students with ASD. At the beginning of September, 2015, U.M. and M.M., both of whom were identified exceptional students with ASD, had an IPRC placement determination of regular class with indirect support.
93I accept J.C.’s evidence that he believed that it would be in U.M.’s and M.M.’s best interest to receive more intensive educational support from the already available special education teacher and EAs on a withdrawal basis, even before a self-contained congregated class was in existence. They were not technically in a self-contained class, although the support they were receiving at that time was certainly the equivalent of that available in a self-contained class. In this regard, W.P.M.’s allegation that both children were withdrawn from a regular class is correct.
94I also accept the accuracy of the statement that the children were receiving their education during this period in a placement that was not in compliance with their IPRC statements of decision. The respondent confirmed that the school was aware that the children’s placement was to be regular class with indirect support and that W.P.M. was not in favour of having his children attend a self-contained ASD class as their placement. However, the accuracy of this description of the children’s educational placement does not amount to discrimination or denial of a meaningful access to education by the respondent. In making this statement, I rely on both Eaton and Moore. I rely on Eaton because I note that at this point the respondents were focusing on the best interests of these children, in accordance with Eaton. I also rely on Moore, because I accept that the children had a meaningful access to education, in accordance with their strengths and needs.
95I heard no evidence to support the allegation that, during the first three weeks of September 2014, prior to the next IPRCs, which were arranged for September 26, 2014, for both U.M. and M.M., the children were denied a meaningful access to education. W.P.M.’s evidence that they were not receiving an education exactly in accordance with his wishes and as determined by him is not sufficient to establish a breach of the Code rights of the applicants.
96J.C. and K.M. both stated that at the upcoming IPRC the school board planned to implement a formally changed placement decision for the children with both being placed in the then almost physically completed special education class, with partial integration for U.M. and fully self-contained for M.M.
97While parents have clearly delineated rights under the Education Act and its regulations regarding their children’s identification and placement decisions, variation of those decisions on a short term basis by providing additional and enhanced services prior to the next scheduled IPRC and before implementing an actual change of placement does not amount, in my opinion, to a breach of the Code. While it is clear that school boards must function within the parameters set by the Code, the HRTO is not charged with ensuring full compliance with the IPRC process. (See, Sigrist and Carson v. London District Catholic School Board, 2010 HRTO 1062).
98In spite of the fact that U.M. and M.M. were supported by a withdrawal program rather than receiving indirect service in a regular class setting, these allegations related to U.M.’s and M.M.’s placement in the community class prior to the September 2014 IPRC, where they were alleged to be denied a meaningful access to education, do not amount to a prima facie case of discrimination under the Code. The applicants were apparently thriving and benefiting from the education that they were receiving in that placement. This was supported by the evidence of both J.C. and K.M., who directly observed the children in the class. W.P.M.’s allegations to the contrary were not based on any direct observation. Therefore, I dismiss these allegations as a breach of the Code.
Regarding the facts related to the allegations that the respondent ignored and did not meet both U.M.’s and M.M.’s educational needs in light of W.P.M.’s concerns about the contents of the IEPs; the allegation that their IEPs were inadequate, that the IEPs did not demonstrate an honest effort on the part of the respondent to educate the children as appropriate and that this resulted in a denial of meaningful access to education, as determined by W.P.M. (paras. 64 – 71)
99O.Reg. 181/98 under the Education Act sets out the requirements and procedures for producing IEPs for all exceptional students, as well as other students who need special education supports. The primary responsibility for the development of the IEP rests with the school principal. The 2004 IEP Resource Guide sets out the procedure, including the role of parents. Both the Regulation and the Resource Guide state that the principal must consult the parent, but neither gives parents the right of appeal regarding the contents of the IEP or of the programming delivered in accordance with the IEP.
100A copy of the IEP must be sent to the parent. The parent (and a student who is over 16 years of age) will be asked to sign the IEP to indicate whether they were consulted in the development of the IEP; whether they had received a copy; and whether any comments that they provided during the development phase are noted in the IEP. The Resource Guide also makes it clear that the IEP is a working document and that any changes made, if significant, should be reported to the parent.
101The IEP Resource Guide also sets out that the IEP is: a written plan for describing the special education programs and/or services required by a student, based on the assessment of the student’s strengths and needs; a record of the particular accommodations needed by the student to access education; a working document; and an accountability tool for the student, the student’s parents and for the educators who support that student.
102The IEP is not: a description of everything that will be taught to the student; a list of all the teaching strategies that will be used; a document that records all learning expectations; or a daily lesson plan. Based on the evidence before me, there was simply no support for the allegation that the IEPs, as written, demonstrated that the respondents ignored the applicants’ educational needs, as alleged by W.P.M. (See E.P. v. Ottawa Catholic School Board, 2011 HRTO 657).
103It may well be true that the applicants’ IEPs were not always updated and provided to W.P.M., as expected, within 30 days of the start of a particular educational placement. However, the children had an IEP in place at all times. I do not accept the allegation that a belated IEP represents a breach of the Code or a denial of meaningful access to education. The allegations regarding inadequate (such as the goal statements) or incorrect descriptions or unacceptable content (such as the reference to U.M.’s communications challenges and his description as non-verbal for the purposes of allowing him to be exempted from EQAO testing) are not borne out by the detail of the IEPs submitted in evidence, which were always signed by W.P.M.
104Therefore, the evidence before me does not support a prima facie case of discrimination in relation to any of the allegations made by the applicants. Some of the allegations that were presented as specific facts, such as the alleged exclusions, were not borne out by either the written documentation or the evidence given by both the applicants’ and respondent’s witnesses. The other allegations primarily arose from the fact that W.P.M. was not able to control fully how and in what way his children were receiving their education. But that, even if accurate, does not amount to a breach of the Code.
105As a result of the above decision, i.e., that the applicants did not establish a prima facie case of discrimination related to or arising from a protected ground with any of the allegations, I do not, in fact, have to consider the respondents’ reasons or justification for their actions.
SUMMARY
106This was a lengthy hearing, where a self-represented Litigation Guardian alleged that the respondent committed a series of discriminatory acts, which resulted in his children being denied a meaningful access to education. In making these allegations, W.P.M. also asked me to consider the Supreme Court of Canada’s decision in Moore.
107The applicants in this case were the two children, U.M. and M.M., There was no dispute about their identification as persons with a disability under the Code as well as identified exceptional students under the Education Act. There was no dispute between the parties that the applicants were therefore expected to be accommodated to the point of undue hardship by the respondent.
108A live dispute between the parties emerged when the applicants’ Litigation Guardian alleged that his children were not receiving the educational services and supports that he stated that they needed and yet were denied by the respondent. Further, W.P.M. alleged that the respondent consistently ignored his wishes. The evidence simply did not support this allegation, since the respondents clearly focused on his wishes in making their decisions about his children’s education. His frequent references to the respondent’s interference with his ability to work are clearly outside the mandate of this Tribunal and were not supported by the evidence before me.
109The respondents countered these arguments by focusing on the extent to which they co-operated with W.P.M. and accommodated his requests for changing the children’s attendance; changing their placement from special education classes to regular classes; the support that they received from individual staff by changing the EAs working with the children for other EAs; by providing EA support during the Summer Institute program; and by allowing W.P.M. a significant level of involvement and even control, beyond what the relevant legislation normally calls for and which most parents expect and receive.
110I am prepared to accept that both parties wanted and focused upon what they saw as being in the children’s best interests. But that is not enough for me to accept the allegations made by W.P.M. of a prima facie case of discrimination and a breach of the Code.
111However, I would be remiss if I did not add some additional brief comments in obiter. I believe that W.P.M. is a very involved parent who undertook the onerous process of applying to the Tribunal, because he wanted to change his children’s educational circumstances to match his own wishes and expectations for his children, even when his expectations and approach were not supported by professional opinion or the mandated legislation under which education is provided to children in this Province.
112Earlier in this decision, I cited the comment made by both K.M. and D.F. that the school board did not feel able to provide the children with the education that “they deserved.” It is my hope that during the current school year, the applicants now have access to the education that they are entitled to and “deserve”, based on updated assessment data and a realistic exploration of and support for their strengths and needs. That is what a meaningful access to education means, so that both U.M. and M.M. can develop into as highly skilled, knowledgeable, caring citizens, as they are able to become, in accordance with the Province’s stated purpose of education.
ORDER
113For all of the above reasons, the two Applications are dismissed.
Dated at Toronto, this 29th day of December, 2017.
“Signed by”
Eva Nichols
Member