HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

J.S. by his Litigation Guardian B.S.

Applicant

-and-

Dufferin-Peel Catholic District School Board

Respondent

-and-

Dufferin Peel Educational Resource Workers’ Association,

Ontario English Catholic Teachers' Association and Ontario Autism Coalition

Intervenors

interim DECISION

Adjudicator: Michael Gottheil

Date: July 26, 2017

Citation: 2017 HRTO 945

Indexed as: J.S. v. Dufferin-Peel Catholic District School Board

APPEARANCES

J.S. by his Litigation Guardian B.S., Applicant

David Baker, Counsel

Dufferin-Peel Catholic District School Board, Respondent

Nadya Tymochenko, Counsel

Dufferin Peel Educational Resource Workers’ Association, Intervenor

Sam Marino, Counsel

Ontario English Catholic Teachers’ Association, Intervenor

Jerry Raso, Counsel

INTRODUCTION

1This is an Application brought under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”). The Application alleges discrimination with respect to goods, services and facilities on the ground of disability.

2This Interim Decision addresses two Requests for Order During Proceedings, one brought by the applicant and one brought by the respondent. This Interim Decision also provides additional directions in preparation for the hearing that is scheduled to commence on October 12, 2017.

3The applicant is a kindergarten student with the respondent. He was diagnosed at the age of 3 with autism spectrum disorder (“ASD”). The applicant asserts that he requires Intensive Behavioral Intervention (“IBI”) by someone specially trained to use Applied Behavioral Analysis (“ABA”) therapy. He alleges that the failure of the respondent to provide ABA/IBI therapy at school is discriminatory because it denies him meaningful access to an adequate quality of education and the educational assistance that he requires.

4The respondent denies the allegations. While the respondent accepts the applicant’s diagnosis of ASD, among other things, it does not accept that the applicant requires ABA/IBI therapy to access meaningful education, and further submits that ABA/IBI therapy is not an educational service that, as a school board, it should be required to provide.

5A pre-hearing conference was held on May 18, 2017. The Tribunal directed that the first issue the parties were to address through evidence and argument was whether the education program and supports the respondent was proposing to provide the applicant was insufficient or inappropriate, given his disability-related needs and supports, and, as a result, the applicant was being denied meaningful access to public education. More particularly, does the applicant require ABA/IBI in school in order to access meaningful educational services?

6A significant portion of the evidence that will be presented will be from experts and trained educational professionals. The applicant has submitted witness statements for two individuals it will seek to qualify as experts. The respondent has not yet provided witness statements or reports from individuals it will seek to qualify as experts. While the applicant submits that the respondent has unnecessarily delayed the hearing processes by failing to provide witness statements and expert reports, the respondent submits the applicant has failed to provide documents and records, and/or consent to disclose records with the result that the respondent has been unable to have its experts provide reports and to prepare summaries of the testimony.

7For its part, the applicant states that his experts have been unable to provide full and complete opinions because they have been denied the ability to ask questions of the respondent’s staff, which provide supports and education to the applicant.

8At the pre-hearing, I directed the applicant to provide a list of questions it sought to have the respondent’s staff answer, and set a timeframe for comment from the respondent and the intervenors who represent those staff. I also directed the respondent to restate the disclosure or consent it was seeking from the applicant, and similarly set a timeframe for response and reply submissions.

Respondent’s Request for Disclosure

9The respondent seeks disclosure of:

a. The medical file of the doctor who initially suggested that the applicant might have ASD.

b. The complete file from Monarch House, a facility which the applicant attends three days per week to receive ABA/IBI therapy. The applicant argues that he is required to seek services from Monarch House because the respondent refuses to provide those services.

c. The applicant’s complete file from Erin Oak, a facility that provides treatment and supports for children with ASD.

10The respondent argues that the requested information is at least arguably relevant, and is required for it to properly present its case.

11The applicant takes the position that the respondent’s request is overly broad in view of the issues in dispute, and infringes on his legitimate privacy rights. The applicant argues that since the respondent has acknowledged the applicant’s diagnosis of ASD, there is no need for the disclosure of any medical records, much less those of a physician who provided services to the applicant prior to his diagnosis. The applicant also argues that the question in this case is whether the he requires ABA/IBI therapy in the school setting, which must be provided by professionals trained and certified to deliver that therapy. Therefore, the applicant states that any non-ABA/IBI therapy the applicant may be receiving from other service providers or services he may be receiving at other facilities is not relevant.

12The applicant strongly asserts that persons with disabilities who bring applications alleging discrimination and failures to accommodate should not be required to have their entire medical files and history be revealed to respondents. This, he argues, would be a breach of an applicant’s fundamental privacy rights, and amount to permitting respondents to embark on a fishing expedition in order to justify their failure to appropriately accommodate the applicant.

13The respondent argues that the applicant is articulating the issues in this case in too narrow a scope. It is true that the respondent accepts the diagnosis of ASD, but notes that ASD is a complex condition, and the severity of the disability runs along a spectrum (as its name suggests). Symptoms and effects manifest themselves in a variety of ways, and the responses, treatments and supports are equally individualized. Therefore, the respondent submits, information relating to the applicant’s diagnosis, treatments, supports and services are all important factors for its experts to consider when providing opinions. The respondent further notes that the applicant is 5 years old and is continuing to develop. It rejects the applicant’s analogy to an individual in a wheelchair who requires a ramp to enter a building. It accepts that in such a case, it may not be proper to require production of an applicant’s entire medical file, but submits these circumstances are entirely different.

14I agree with the respondent. First, the applicant’s characterization of the issues in this case is too narrow. It is clear that the applicant’s view is that he requires ABA/IBI in order to be provided meaningful access to education, and the respondent’s failure to provide that therapy by persons specially trained and verify amounts to discrimination under the Code. But the respondent is entitled to question the severity of the applicant’s ASD (or where he sits on the Autism spectrum), inquire into the range of supports, including non-educational supports, that would facilitate his education, and question whether ABA/IBI therapy delivered in a classroom setting is the only way for the applicant to have meaningful access to education services. The documents the respondent is seeking are at least arguably relevant (if not directly relevant) to these issues.

15Second, as the respondent points out, at least one of the applicant’s proposed experts has access to some of these records. It is not certain at this point whether that expert has reviewed the requested documents, but it would be highly prejudicial to the respondent to deny it access to those documents in order to prepare for cross-examination or to prepare expert evidence in response.

16Third, while the Tribunal recognizes the importance of privacy rights of parties who participate in proceedings before the Tribunal, those rights must be balanced with, not only the respondent’s right to prepare its case, but also an efficient and expeditious process. Certainly, as the applicant submits, the mere fact that an individual alleges discrimination on the grounds of disability, does not allow a respondent complete and unfettered access to the individuals entire medical history. There must be some rational connection between the records sought and issues that are legitimately in dispute. Sometimes, as here, respondents accept that the applicant has a disability, but there may be disagreement about the severity, or whether certain symptoms or physical or mental characteristics are related to the disability. Similarly, there may disagreement as to whether certain treatments or accommodations are appropriate or sufficient.

17The applicant submits that based on the views of his proposed experts, none of the information, records or documents the respondent is seeking are relevant to assessing the applicant or his accommodation needs. With respect, that is not the test. As the respondent argues, the test is not relevance, but arguable relevance. But beyond this, to accept the applicant’s approach, would lead to a lengthy pre-hearing process, where competing experts would be called to opine on whether certain documents were relevant or important for them to prepare a report. This might, in some cases, allow the Tribunal to sift through confidential or personal information, thereby protecting the privacy rights of a party. In my view, however, this would not be an effective, efficient or expeditious approach, and is the very reason why the test on disclosure is arguable relevance, and not relevance.

18Finally, this is a case involving a young person with a disability who, both parties agree, requires supports in order to achieve his potential. 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. Both the applicant and respondent wish to provide the Tribunal with evidence from experts and professionals on the issues of the applicant’s complex disability, and the range of supports that would benefit him. In my view, those experts and professionals should have complete information to allow them to make a thorough assessment and prepare complete evidence. Again, while I accept that privacy for persons with a disability is a principle that must be given great weight, given the nature of the issues, the complexity of the applicant’s disability, and the nature of the documents and records sought, I believe the respondent is entitled to disclosure.

Applicant’s RFOP – Additional Questions

19As noted, the applicant is proposing to call two expert witnesses. Those individuals visited the applicant’s school and observed him in his classroom environment. They wanted to ask the teacher and resource workers some questions about the applicant and programming. The respondent did not permit these individuals to ask its staff questions.

20At the pre-hearing conference on May 18, 2017, counsel for the applicant indicated that he wished to have the applicant’s teacher and resource workers answer specific questions. I directed the applicant to set out the questions in writing. On May 29, 2017, the applicant filed an RFOP setting out the questions he wanted the teacher and staff to answer. Those questions are:

a) Did the observations take place on a typical day in terms of the number of adult Staff in the classroom (e.g., teacher, ECE, EA, Psychologist, expert, additional adults came in/out)?

i. If it was not a typical day, roughly how many adults are in the classroom or coming in and out over the course of a typical day?

b) Was this a typical day for J.S. in the classroom in terms of his behaviour and responding? Recall that T.L. attended an observation on March 28^th and N.W. attended on April 11^th.

c) Is there a plan to fade support (EA) and prompting within the school year?

i. If so, what are the details of that plan?

d) What is the plan, if any, to adjust the accommodations being provided to J. S. in the event that he was in school fulltime and was no longer receiving ABA/IBI at Monarch House?

e) Is the amount of support (e.g., prompting, 1:1 instruction, etc.) noted within the IEP?

i. If so, where and with how much detail?

f) Was/is the data taken for specific programs noted in the IEP on a regular basis? It appeared to one expert that data was only taken for the drawing program.

g) Is the data taken directly during the activity or afterwards?

h) Is there inter-observer agreement on the data?

i) Is the raw data available/kept and graphed regularly for review?

j) How many minutes per day of ‘ABA’ (as noted in the IEP) is the school providing on a regular basis?

k) If D.L. was not available for IEP/goal development on an ongoing basis, would the team be comfortable (and able) to develop the next steps or next goal on their own?

l) What supports was J.S. receiving in Junior Kindergarten?

m) Did the supports in Junior Kindergarten differ from the supports he is receiving in Senior Kindergarten?

i. If so, how?

n) How do you know when something you are doing is or is not effective?

21The respondent takes the position that it has no objection to providing responses to questions (a), (b), (c), (d), (g), (h), (k) and (n). With respect to the other questions, the respondent submits that the answers are part of, and are contained in, the disclosure it previously provided, and identified where and in which documents the answers may be found. It submits that to provide any follow-up information would be tantamount to turning its disclosure obligations into a discovery process. The respondent also objected to the open-ended nature of some of the questions, and objected to request to provide answers to follow up questions without first reviewing the questions.

22In addition, the respondent took issue with the applicant’s request to require the specific employees answer the questions, as opposed to the respondent providing the answers. The two union intervenors also objected to having their members be required to answer the questions.

23In reply, the applicant altered his position, and stated that he was no longer seeking that the specific teacher and resource workers provide the answer to the questions, but only that the respondent ensure that the information was accurate and derived from persons with knowledge of the matters.

24It appears then, at least in respect of questions (a), (b), (c), (d), (g), (h), (k) and (n), there is no dispute, and I direct that the respondent provide answers to those questions. I also expect the respondent will ensure the information is accurate. I agree with the respondent that there is no need for the respondent to provide information that it previously provided as part of its disclosure. As the respondent noted, the parties have on-going disclosure obligations, and expect the parties to respect that obligation.

Other Procedural Directions

25The Tribunal believes that it is important to ensure that persons who may be qualified as experts understand their obligations to the Tribunal to provide professional and unbiased assessments and opinions. Therefore, each person who is proposed to be qualified as an expert shall provide a declaration, to be attached to their report. The required declaration is attached as Schedule A to this Interim Decision.

26I also believe that in order to enhance the understanding of the various expert evidence, the areas of agreement, disagreement, and the basis of any disagreement, the experts should meet and discuss their reports. Ideally, the experts should produce a joint statement of facts and assessment, which identifies areas of agreement and any potential disagreement. At a minimum, the proposed experts should have an adequate opportunity to review each others’ reports and, if necessary, produce supplementary reports.

27At this point I do not know when the parties will be able to follow up on the directions in this Interim Decision, or when their respective experts may be in a position to provide reports, meet and provide supplementary reports. At a minimum, all witness statements and documents sought to be relied upon should be delivered no later than September 15, 2017. The parties should consult with one another to arrange a timeframe for exchange of documents and information as directed in this Interim Decision, and for the meeting of experts and or exchange of reports.

ORDER

28The applicant is directed to produce the documents requested in the respondent’s RFOP.

29The respondent will provide answers to questions 5(a), (b), (c), (d), (g), (h), (k) and (n) that are set out in the applicant’s RFOP

30The respondent is not required to provide answers to follow-up questions, and is not required to provide supporting documents beyond the general obligation of on-going disclosure

31The parties will consult and arrive at a timeframe for the exchange of documents and information as directed above. All witness statements and documents the parties intend to rely on in the hearing should be delivered and filed no later than September 15, 2017.

32The Registrar will schedule a telephone pre-hearing conference during the week of September 18, 2017.