J.B. v. Ontario (Education), 2017 HRTO 947

Human Rights Tribunal of Ontario

B E T W E E N:

J.B. by his Litigation Guardian K.B.

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Education

Respondent

DECISION

Adjudicator: Esi Codjoe Date: July 26, 2017 Citation: 2017 HRTO 947 Indexed as: J.B. v. Ontario (Education)

APPEARANCES

J.B. by his Litigation Guardian K.B., K.B., Litigation Guardian

Her Majesty the Queen in Right of Ontario, as represented by the Ministry of Education, Respondent Manizeh Fancy and Sarah Morton, Counsel

Introduction

1The applicant filed an Application alleging that the respondent discriminated against him with respect to services because of disability, contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”).

2By Case Assessment Direction (“CAD”), the Tribunal directed that a summary hearing be held to address whether the Application should be dismissed, in whole or part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

3As outlined below, I find that the Application must be dismissed on the basis that it has no reasonable prospect of success under the Code. Even if I accept all of the facts alleged by the applicant as true, the applicant has not been able to point to any evidence beyond his own suspicions that the respondent discriminated against him on the basis of disability with respect to services.

Summary Hearing Process

4The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding and usually before a Response is filed, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

5The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal’s jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code.

6The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.

7The purpose of the summary hearing is to determine if an applicant is able to point to any information which tends to support his or her belief that he or she has experienced discrimination or reprisal under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence available to an applicant to connect the unfair treatment allegedly experienced by an applicant with the Code’s protections.

8As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, for an application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show a breach of the Code.

FactUAL BACKGROUND

9The applicant is a ten year old boy who has an intellectual disability; he is non-verbal and receives one on one classroom support. There is no dispute that the applicant is a person with a disability.

10In 2016, grade three students in the applicant’s school wrote the Education Quality and Accountability Office (‘EQAO’) standardized test; this test is administered at all schools throughout the province. There is also no dispute that the applicant did not write the EQAO test as his mother was granted an exemption from this requirement on her son’s behalf. The applicant was issued an individual student report (‘ISR’) that outlines his results for the test. The ISR reads that the applicant was exempted by the school from participating in the assessment. Further, it denotes that he attempted 0 of 0 questions for each of Reading, Writing, and Mathematics.

11The applicant submits that it is his view that he was provided zero scores, and that those scores are reflected in the school’s overall score for the EQAO test. Those scores then purportedly affect the level of services that he receives at his school. The applicant was unable to provide more details regarding how the alleged act has adversely impacted him.

12The respondent disputes that the applicant received zero scores on his ISR, rather it notes that he was exempted from the test, and as such he was not awarded any mark, zero or otherwise. In the alternative, it argues that even if the applicant did receive zeros on his test, he has not established that he was impacted by that outcome. Specifically, the respondent argues that it did not deny the applicant a service.

13The respondent provided information about the EQAO, which was not challenged by the applicant, and which is helpful for understanding the context in which this dispute arises. The EQAO evaluates the quality and effectiveness of education in Ontario by measuring how well children in general are meeting expectations regarding the curriculum. The results for individual schools are recorded as, first, an aggregate test score that includes all children, and second, the aggregate test score that includes only those students that wrote the test. School boards do not receive provincial funding for education on the basis of the strength or weakness of their EQAO test results. Provincial funding for education is driven in part by student head count, and local school boards determine how they fund programs and services for individual students.

14If required, accommodation is offered to students; for example a child may be given more time to write a test, or be provided a quiet setting within which to write the test. Or as in this case, parents and/or guardians may request that their child be exempt from the requirement to write the test.

ANALYSIS

No Reasonable Prospect of Success

15Even if I accept the facts put forward by the applicant as true and provable, I must find that the Application stands no reasonable prospect of success under the Code.

No Discrimination In Services

16There is no dispute that the applicant is a person with a disability. However, he did not provide any evidence that he was denied a service, and that this denial was based on discriminatory grounds. Further, he did not present evidence that he was subject to discrimination in the provision of services. The applicant was not able to point to any evidence that would suggest that his exemption from writing the test is discrimination under the Code.

17The applicant has not established that, even if his ISR reflected zero scores, there is a reasonable prospect of success he will be able to show he was subject to discrimination in services based on disability. He did not present evidence to suggest that EQAO scores have an effect on funding or services or point to evidence that he might be able to obtain to support this allegation. The applicant did not submit that he was denied any services or that if that denial was based on discriminatory grounds. Nor did he present evidence that there was any other discrimination with respect to services. Rather, he speculated that he might not be receiving adequate access to services because he did not write the test or is perceived to have failed the test.

18As noted above, for an application to advance to a full hearing on the merits, an applicant must be able to point to some evidence, beyond his or her own suspicions, that could make out a link to the Code. The Tribunal has repeatedly said that an applicant’s belief, no matter how strongly held, is not evidence upon which the Tribunal might find that discrimination has occurred. See for example Leong v. Ontario (Attorney General), 2014 HRTO 311.

19The applicant was unable to point to any evidence he could advance in a hearing to establish that he was denied a service in the education sector because of his disability. In the absence of such evidence, the Application has no reasonable prospect of success.

Order

20For the above reasons, the Application is dismissed.