In our Fall 2010 Education Law Newsletter, we discussed the case of Schafer v. Toronto District School Board, 2010 HRTO 403 (request for reconsideration denied 2010 HRTO 884), in which the Human Rights Tribunal ruled that it would not second-guess a student's Identification, Placement and Review Committee (IPRC) placement. This past summer, the Tribunal released another decision regarding the duty to accommodate students with special needs, also involving the Toronto District School Board (TDSB): L.C. v. Toronto District School Board. In the same vein as the Schafer decision, Vice Chair Sherry Liang in L.C. held that the issue is not whether the accommodations are what the parents wanted, whether they are the ideal accommodations, or whether other accommodations are more appropriate. The issue is simply whether the school board implemented (generally, but not necessarily as recommended by the IPRC or Individual Education Plan (IEP)) accommodations that met the student's special needs.
The human rights complaint was filed by J.L.C., on behalf of her son, L.C., who had autism spectrum disorder. L.C. attended a special diagnostic class in Kindergarten. In that same school year, an IPRC twice identified him as "exceptional" in many areas and determined that he should be placed in a special education class. However, L.C.'s mother wanted L.C. to attend his home school in a regular class with supports. The TDSB agreed.
Over the next few years, successive IPRCs confirmed L.C.'s identification as "exceptional", indicating that he had both a developmental disability and autism. The IPRCs reiterated that L.C. should be placed in a special education program, however, in accordance with his mother's wishes, L.C. remained in a regular class. When the TDSB began to insist that L.C. attend a special education program, J.L.C. appealed the placement decision to the Special Education Appeal Board and then the Special Education Tribunal (SET). Pending the outcome of the SET appeal, L.C. remained at his home school in a regular class with supports. (The SET ultimately confirmed the decision of the IPRC to place him in a special education class.)
Notably, the allegations of discrimination cover the period of time that L.C. was in a regular classroom, during which the TDSB believed that he would have been better served in special education program. L.C. alleged that the TDSB's programming and supports during this period fell short of its obligations under the Code. His central allegation was that the TDSB failed to provide him with competent, continuous and consistent support from a Special Needs Assistant (SNA). He also complained that the TDSB delayed in obtaining a dedicated computer for him, neglected to properly implement a habit (toilet) training program for him, and deprived him of an academic program by having him spend portions of his school day outside the classroom.
With respect to the SNA issue, L.C.'s IEP indicated that he needed full-time support from an SNA. Throughout his time in a regular class, L.C. was provided with one-on-one SNA support. However, a number of different SNAs worked with him. At times, there was one individual in a full-time SNA position, and at other times there were two SNAs in part-time positions. The change in the SNA complement arose from a maternity leave, surplusing of staff, and staff turnover. In addition, because L.C. required significant assistance with toileting, it took some time to find an SNA willing to work with him on a full-time basis. Vice Chair Liang concluded there was no evidence that any of the SNAs hired to support L.C. lacked any qualifications essential to their positions. Furthermore, she concluded that L.C.'s disabilities did not require that he be provided with a single SNA throughout the school day in order to access his individual programming. In this regard, she made the point that complainants cannot necessarily expect ideal accommodations:
Although it may be that in an ideal world, a pupil in the complainant's position might have been better of if he had a single SNA throughout the entirety of his school day, I cannot find that not ensuring this amounted to discriminatory treatment under the Code. As the Tribunal observed in Schafer, the issue is not whether the accommodation provided was the ideal accommodation, or what the parents may have preferred. The issue is whether the respondent failed to reasonably accommodate a disability-related need, denying him the right to equal access to education services. [at para. 55]
With respect to the computer issue, Vice Chair Liang noted that an occupational therapist recommended certain computer equipment that would benefit L.C. in the fall of 2003 and the spring of 2004. However, the Board did not believe that L.C. required a dedicated computer in order to access the curriculum. Under pressure from J.L.C., the Board ultimately applied for a dedicated computer in April 2005, however, L.C. did not show independent interest in using it and required assistance to use it. Vice Chair Liang concluded that a dedicated computer was not a necessary accommodation, and the purposes for which it was beneficial could be served by other, existing methods.
With respect to habit training, L.C. was not toilet trained and wore pull-up diapers to school. In the latter part of Grade 4, J.L.C. requested that the Board assist with a habit-training program that involved L.C. attending school without a diaper. The evidence revealed that the implementation of this habit-training program was challenging for the SNAs: it required hourly trips up and down stairs to the washroom, help with dressing and undressing, and the time-consuming clean-up of frequent accidents. J.L.C. alleged that the Board did not follow the habit-training program as required. Vice Chair Liang concluded there was no evidence that the school failed to provide L.C. with necessary accommodations in this area, and in fact made "considerable efforts" to assist him.
With respect to the amount of time spent that L.C. spent outside of the classroom, Vice Chair Liang noted that L.C. did leave the classroom frequently as part of his habit-training program, and at other times when he was acting out or was overstimulated. However, she concluded that this time away from the classroom was related to L.C.'s own needs, and was not due to a failure to accommodate his disabilities.
In conclusion, the Tribunal observed that the Board put considerable efforts into accommodating L.C. within a regular classroom setting, even while believing that his educational interests would be better served in a special education setting. The Tribunal also noted that, although the accommodations may not have been perfect, they were reasonable and responsive to L.C.'s needs, and that is all the Code requires.
Together with the Schafer decision, the L.C. decision demonstrates that the Tribunal does not hold school boards and educators to a standard of perfection. In order to establish discrimination under the Code, the evidence must demonstrate that the accommodations provided to a student were significantly inappropriate or inadequate.
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