The Human Rights Tribunal of Ontario recently dismissed an application made by a mother on behalf of her son, a Grade 2 student diagnosed with Autism Spectrum Disorder (ASD) and a learning disability. She alleged that the Upper Grand District School Board (the "Board") failed to properly accommodate the student's disabilities and had, therefore, denied him meaningful access to education.
Beginning in Junior Kindergarten, the student attended a French Immersion program at a school of the Board. While the student had some behavioural problems during Grade 1, he was able to successfully transition to Grade 2 with the help of a behaviour plan implemented by the school. At the outset of the student's Grade 2 year, however, his behavioural problems escalated, resulting in the school developing several strategies to assist him and assigning him two educational assistants. Unfortunately, his dysregulation became more extreme; in addition to eloping from the classroom, he repeatedly threatened and attacked staff and other students, resulting in multiple injuries. In a culminating incident on October 22, 2018, the student repeatedly hit an educational assistant, giving her a concussion and resulting in her being off work for an extended period of time. Several staff were off work for significant lengths of time or invoked their right to refuse unsafe work, and the school received complaints from parents concerned about the safety of their children.
The next day, the school board developed a plan that would involve a gradual re-introduction to the classroom (a "Loop of School" plan). The plan included moving the student from the French Immersion school to his neighbourhood school, giving him a "fresh start" and removing a potential trigger of dysregulation. The Tribunal found that the student's mother refused this plan because she was unwilling to have the student change schools and insisted that childcare expenses be covered by the respondent. The Tribunal also observed that the student's family would not accept any plan that did not include the provision of "Tier 3 ABA," which the applicant equated to "Comprehensive ABA/IBI" (ABA provided in a clinical setting) and argued was necessary to allow the student to access education.
The student was suspended pending investigation of the incident of October 22 and was subsequently expelled from the French Immersion school only. An appeal to the Child and Family Services Review Board upheld the expulsion decision, finding that the student's continued presence at the school created an "unacceptable safety risk." Following the expulsion, proposals by the Board to develop a plan for placement at his home school floundered when the applicant's family again insisted on the provision of "Tier 3 ABA."
The Tribunal found that, based on the facts, the applicant had made out a prima facie case of discrimination: starting partway through his Grade 2 year, the student did not have meaningful access to education owing to his increasing dysregulation.
The Tribunal however, rejected the applicant's argument that the student's dysregulation was caused by the school's failure to provide ABA in the classroom. The Tribunal found that the school board had provided meaningful access to education during the first part of Grade 2 and during a period of home instruction following the student's suspension without implementing an ABA program equivalent to the "Tier 3 ABA" the applicant sought.
While the Tribunal found that school boards are required to offer students with ASD special education programs, including programs using ABA methods "where appropriate," it rejected the applicant's position that "Tier 3 ABA" or "Comprehensive ABA" services in a regular classroom setting were necessary for the student to access education.
The Tribunal also found that, before the student's expulsion, the Board had accommodated him to the point of undue hardship; it took various steps to deal with his increasing dysregulation, but he ultimately posed an unacceptable safety risk to staff, students and himself.
Turning to the conduct of the student's mother, the Tribunal held the following at paragraph 260:
In rejecting the Loop of School plan, Ms. Kahn failed in her obligation to co-operate in the accommodation process. In so finding, I note that parents do not have the right to dictate the accommodations which their children will be provided with to access education. While parents do have the right to provide input as part of the accommodation process – which Ms. Kahn did in this case – they must accept reasonable accommodations offered by the school board.
Gradual re-introduction to school was a necessary and reasonable component of the plan, which Ms. Kahn rejected.
For the period after the student's expulsion, the Tribunal found that reasonable programming alternatives had been offered to the student, including home instruction or a special education class at his neighbourhood school. These options were again rejected by the student's mother. The Tribunal found that "the applicant failed to engage in the accommodation process in any meaningful way...[and] failed to accept reasonable accommodations offered by the respondent." As a result, the Tribunal dismissed the application.
While this decision was largely based on its specific facts, it provides helpful guidance on the types of accommodations that school boards should be expected to provide to ensure their students with disabilities receive meaningful access to their education. It also provides a helpful reminder that a party seeking accommodation is entitled to reasonable – as opposed to preferred – accommodations, and that a failure to accept such accommodations may result in an unsuccessful application at the Tribunal.
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