Canada: Human Rights Tribunal Rules That Duty To Accommodate Requires Discussion And Consideration

Settling on the appropriate accommodation for a student with a learning disability can be challenging, with parents, educators, doctors, psychologists and other professionals all weighing in. As natural advocates for their children, parents often want more assistance and resources for their child than schools are able to offer. How far does a school board have to go to meet parents' expectations? In a recent decision, the Human Rights Tribunal of Ontario commented on the duty to accommodate, the requirement for discussion between parties, and the question of whether more could have been done to assist a student with learning disabilities.

In D.S. v. London District Catholic School Board,¹ which was released on April 18, 2012, the Human Rights Tribunal of Ontario (the "Tribunal") dealt with two complaints, both alleging that the London District Catholic School Board (the "Board") failed to accommodate students' needs with respect to their learning disabilities. Ultimately the Tribunal dismissed both complaints, stating that the Board did not violate the students' rights under the Ontario Human Rights Code² (the "Code").

A SCHOOL BOARD IS NOT REQUIRED TO PROVIDE A STUDENT WITH EVERYTHING HE OR SHE REQUESTS

D.S. was diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") and a mild visual-spatial learning disability. He attended school in Grades 1 and 2, was home-schooled for a period of time, and re-entered school on a half-day schedule in Grade 5.

Several issues arose over the course of the school year leading to this dispute, including disagreement regarding when D.S. should begin attending school full-time, the level of support he would receive from the Student Program Support Teacher (especially the amount of withdrawal assistance he would receive), and when and how the school would implement certain recommendations of the psychologist involved in the student's assessment.

The Tribunal found that the Board had provided proper accommodation for D.S.'s disability-related needs as they were known to the Board at the time. There was no expert evidence suggesting that the student required a half-day schedule in order to be successful. Similarly, there was no specific evidence as to the amount of assistance or withdrawal assistance that D.S. ought to receive. The Tribunal also found that the Board had actually implemented the psychologist's recommendations, albeit not exactly in the form that D.S.'s parents would have preferred.

Importantly, the Tribunal considered the procedure that school boards must follow to in order to meet their duty to accommodate under the Code. It stated:

In D.S.'s case, there were extensive discussions between the Board, D.S.'s parents, and other professionals throughout the school year. Those discussions were sufficient to fulfill the Board's procedural obligations.

A.C. was diagnosed with ADHD as well as a Communications Learning Disability. A.C.'s parents alleged that his teachers consistently failed to accommodate his needs, which required "chunking" (breaking down a task into smaller component parts), using "mind maps" (an aid to organize thoughts for writing), and addressing other organization issues. In addition, they alleged that the Board failed to provide A.C. with adaptive technology in a timely manner.

As with D.S., the Tribunal held that the Board had met its duty to accommodate. Contrary to the allegations, the Tribunal found that A.C.'s teacher went "above and beyond what is required of a teacher to provide additional support and assistance to A.C. after school hours".⁴

With respect to providing adaptive technology in a timely manner, there was a six-month delay in trialing software that would address A.C.'s writing issues. During that time, the Tribunal found that A.C.'s teacher was providing the substance of the accommodation through a non-technological process.

The Tribunal remarked that "more" could always be done to assist a student with a learning disability.⁵ However, whether more could have been done is not the appropriate question in cases regarding the duty to accommodate a student's disability under the Code. Instead, the Tribunal must ask whether there is evidence that the student has specific disability-related needs requiring accommodation, and whether the school board failed to provide accommodation sufficient to meet those needs.

SPECIAL EDUCATION AND THE DUTY TO ACCOMMODATE

D.S. v. London District Catholic School Board confirms the Tribunal's decision in Schafer v. Toronto District School Board⁶ to the effect that a school's failure to meet parents' expectations is not synonymous with a breach of the Code. Schools and school boards have a duty to engage in discussion with the parties involved and consider how to accommodate the student's disability-related needs. There is no requirement that a school board agree to implement all of the accommodations that a student's parent or parents may request.

In addition, the Code does not require a school board to implement accommodations that match the recommendations in an Individual Education Plan or of a specialist (e.g., a psychologist) precisely. For example, similar accommodation can sometimes be provided by a teacher or through the use of adaptive technology. As long as the substance of the necessary accommodation is provided, the school board has met its duty to accommodate.

Footnotes

1 2012 HRTO 786.

2 RSO 1990, c. H-19.

3 At paragraph 67.

4 At paragraph 103.

5 At paragraph 107.

6 2010 HRTO 403.

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