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The
Human Rights Tribunal of Ontario has made a recent ruling that
could have significant ramifications for parents of children
with special needs. The ruling also emphasizes the importance
of parents having appropriate independent representation with
them during IPRC meetings.
The Human Rights Tribunal of Ontario considered an application
brought under the Human Rights Code alleging that the
Toronto District School Board discriminated against a high
school student by failing to provide a special education
program that met the student’s disability-related needs. In Schafer
v. Toronto District School Board (February, 2010) the
Tribunal dismissed the student’s application noting that the
Tribunal is not a proper avenue to appeal decisions by the
Special Education Tribunal. The Tribunal further held that
there was no evidence that the accommodations provided by the
TDSB were significantly inappropriate or inadequate.
OBLIGATIONS
OF SCHOOL BOARD ARE CLEAR
The
Ontario
Education Act recognizes that students with special
needs will not receive equal educational services without
appropriate accommodations and therefore requires school
boards to accommodate such students by providing special
education programs which aim at the identification and
placement of students with special needs.
The
statutory obligation for school boards with respect to special
education is set out in the Education Act and provides
that an “exceptional pupil” is a student whose
“behavioural, communicational, intellectual, physical or
multiple exceptionalities are such that he or she is
considered to need placement in a special education program.”
The
Act thus requires that all exceptional pupils in
Ontario
have available to them appropriate special education programs
and special education services. Regulations
under the Act provide additional details for special education
programs and for the identification and placement of
exceptional pupils.
Previous
Tribunals have upheld that the purpose of special education
programs is the accommodation of children with special needs
so that they are able to receive the benefits of education
that are available to others. The goal of school boards,
therefore, is to find appropriate accommodations for students
who have been identified as exceptional.
The
Human Rights Tribunal also pointed out that the Education Act
provides mechanisms for parents to participate in decisions
made under special education programs, namely the IPRC
process. The Education Act also provides an avenue for parents
to appeal decisions made by the IPRC, including as a last
stage, a hearing before the Special Education Tribunal which
has been established under the Education Act.
All
of these details can be found in the Online Publication at the
link below:
SIGNIFICANT
FINDINGS
The
details of the actual case referred to above in the recent
hearing is not really all that important except for the fact
that there could be many other similar situations cropping up
throughout the province in the not-so-distant future. This
particular case involved a boy who was identified as
exceptional and who was suspended a couple of times during the
year. He claimed that the Board had failed to provide him with
special education services that met his disability-related
needs. The student also claimed that the imposition of two
suspensions was discriminatory because the School Board did
not take adequate account of the student’s disabilities in
determining the boy's responsibility for his behaviour or the
appropriate penalty.
The
Tribunal stated that it did not have the jurisdiction to rule
on the actions of the TDSB and whether or not it complied with
the Education Act. The
only issue the Tribunal could consider was whether the student
experienced discrimination under the Human Rights Code.
It
is normal procedure that an Applicant in a human rights
Application to the Human Rights Tribunal of Ontario has the
burden of establishing that it has a case that merits
consideration by the Tribunal. Otherwise anyone could simply
make an Application just to create problems and make things
uncomfortable for the Respondent. Therefore, unless the
student could establish a prima facie case of discrimination,
the TDSB would not be required to respond in the recent case.
In
this situation, the Tribunal held that: “in special
education cases, it is self-evident that a child with special
needs is unable to access the education systems without
accommodations.” Therefore,
the prima facie case was apparent as far as the Tribunal was
concerned and they decided to hear the evidence from both
sides. After the TDSB presented its evidence as to how it had
accommodated the student, the parents were asked to present
their evidence as to why the accommodation was inadequate.
At this point it is important to note that the duty to
accommodate includes rights and duties, called substantial
requirements, as well as procedural requirements that are in
place for enforcing those rights and duties.
CONTENTS
OF IPRC and IEP ARE CRITICAL
The first very important statement from the Tribunal was
that: “So
long as there are steps taken to assess the child’s needs
and prepare accommodations, then generally the procedural
standard of the duty to accommodate will be met.”
The
second statement was that: “As long as the substantive
accommodations as recommended in the IPRC and IEP are
generally implemented, the substantive standard of the duty to
accommodate will be met.”
With
respect to the substantive accommodations, which refer to the
rights of the student to special education services, the
Tribunal also made it clear that “the issue is not whether
the accommodations implemented are what the student or parent
wanted, whether they were the ideal accommodations, or whether
other accommodations would have been equally appropriate.”
The
Tribunal was only concerned with whether the TDSB implemented
the general
recommendations of the IPRC or IEP in order to meet the
child’s needs.
It
is worth pausing for a few moments to take this section in
again.
The
Tribunal, which was ruling on whether or not the school board
had discriminated against the boy, stated that the
appropriateness or quality of the recommendations of the IPRC
or IEP were not the issue. In other words, the IPRC and the
teacher making up the IEP, may not have come up with the best
of accommodations for the student, but what was important was
that they could prove that they actually implemented the
general recommendations. The key word here is
"general".
IMPLICATIONS
OF DECISION
This
case has very serious implications moving forward for parents
of children who may be in need of special education programs
and/or services.
First,
the Human Rights Tribunal of Ontario made it very clear that
parents who do not agree with the decisions of a school board
with respect to the treatment of their child with special
needs will not be able to successfully file an Application
under the Human Rights Code. The Human Rights Tribunal of
Ontario will not accept responsibility for enforcing the
Education Act.
Second,
and perhaps the most important implication, is that the
implementation of the accommodations recommended in the IPRC
and IEP will meet the substantive standard of the duty to
accommodate. In other words, it becomes especially important
for parents to be clearly aware of the decisions that are made
at the IPRC meeting because those decisions will be sufficient
in meeting the obligations of the school board in satisfying
their duty to accommodate. Therefore, if there is anything
that a parent disagrees with, the matter must be dealt with
immediately and appealed through the proper channels if
necessary.
This
is another reason why a parent should have a representative
attend the IPRC meeting and review the IEP when it is
developed. The services listed below will give you an idea of
what a representative can do for you. This is one of the
services I provide through my practice at The Greater Sudbury
Learning Clinic.
ANOTHER
RULING ON THE
APPEAL PROCESS
The Ontario Special Education
Tribunal has made it clear that if parents are dissatisfied
with the IPRC’s decision as to either identification or
placement they must comply with the Education Act which
states: "Where a parent or guardian of a pupil has
exhausted all rights of appeal under the regulations in
respect of the identification or placement of the pupil as an
exceptional pupil and is dissatisfied with the decision in
respect of the identification or placement, the parent or
guardian may appeal to a Special Education Tribunal for a
hearing in respect of the identification or placement."
This means that parents may not
“skip” any steps. They must adhere to all time lines and
follow all possible avenues of appeal if they are not
satisfied in order for their case to be heard by the Ontario
Special Education Tribunal. Some parents may wish to skip some
of the steps feeling that it is a waste of time to go through
all of the steps. Unfortunately, if they do decide to go
straight to the Ontario Special Education Tribunal with out
going to the SEAB, then the school board is within its rights
to claim that the Tribunal does not have jurisdiction to hear
the matter.
This
again is another reason for parents to make sure that they
have a representative to take them through the process. There
are several procedures that must be adhered to and there are
time lines that must be followed. It tends to be somewhat
overwhelming when a parent is also emotionally tied to the
child.
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The
Ministry of Education places some very strict requirements on School
Boards when it comes to funding. Therefore, since the provision of
special education programs and services to children are so
expensive, there are some rules and regulations that must be adhered
to by principals when it comes to serving the children in their
school. When you read the 
that
you are invited to attend where you will be given some recommendations about the services that your child will be provided,
if any, to meet his/her specific needs.
That is why it is
never a bad idea to bring your own Independent Education Advisor
along with you at the meeting to ask the right questions and to
explain exactly how the recommendations will impact upon your child.
The results of an IPRC meeting are legally binding and will have a
financial impact on the operation of a school board. It makes sense
for you to be represented at the table by your own advisor.
First
of all, if you have a child who is, will be, or should be receiving
special education services from the school board, you will be
involved in a long, on-going process that will likely take you
through the rest of your child's years at least in elementary school
and perhaps into secondary school grades.
