Archive for the ‘Family Status’ Category

Logo Barrierefrei (Bildungseinrichtung)

In August, 2013 the Tribunal released a key decision setting out the appropriate test for discrimination in education.[i] R.B., a 9 year old child, was provisionally diagnosed with an intellectual disability, Pervasive Developmental Delay, and Attention Deficit Hyperactivity Disorder. R.B. had a history of aggression and behavioural problems in the classroom. At issue in this case was a decision taken by the School Board to reduce R.B.’s educational assistant support from full-time to half-time, and significant and prolonged tension and conflict between R.B.’s mother, S.F., and the School Board, which resulted in the School Board banning S.F. from attending or communicating directly with the School.

Jurisdiction: Education is a Service under the Code

The Tribunal has jurisdiction to assess discrimination in education cases as education has been found to be a service under the Code. Section 1 of the Code prohibits discrimination in services. Schools are required to accommodate students with disabilities. Communication between the School and parents is integral as a part of an education for a student with high-needs. Schools should implement measures, short of undue hardship, to ensure that students with disabilities are permitted access to educational services which mirror, as closely as possible, educational services provided to all students in Ontario.

Discrimination in Education: The Two-Part Test

This decision was the Tribunal’s first to apply the test recently set out by the Supreme Court of Canada for discrimination in education cases.[ii] The Tribunal applied the following two-part test:

  1. The Applicant must establish that he or she was denied meaningful access to the educational service provided to all students in Ontario because of a disability. If the Applicant succeeds in this first step the Applicant has established a prima facie case of discrimination.                                                                                                                                                                                                                  .
  2. Once the Applicant has established a prima facie case, the burden then shifts to the Respondent to establish that it was incapable of fulfilling the right, or that the rule that adversely affected the Applicant was reasonable and bona fide (in this step the Respondent must demonstrate that it was unable to accommodate the student’s needs to the point of undue hardship).

Inappropriate Parental Conduct

There was a significant history of tension and conflict between the student’s mother, S.F., and the School Board. There was police involvement, an audio recording device that was sent to school on R.B., direct involvement of the Director of Education, and ultimately the implementation by the School Board of a communication ban and trespass notice banning S.F. from attending or communicating with the School.

The School Board argued that S.F.’s aggressive and inappropriate conduct interfered with the Board’s ability to accommodate R.B. The Tribunal found that S.F. acted “inappropriately at times” and was a “difficult parent to communicate with”, however the School Board failed to establish that her conduct prevented it from accommodating R.B.’s needs and providing him with meaningful access to education. The Tribunal stated:

…the Respondent could have dealt with S.F.’s behaviours directly by meeting with her to inform her that [her behaviour] made it difficult for the Respondent to work with her in his interests. Instead, the Respondent punished R.B. because of the conduct of his mother.

While the Tribunal did not find that S.F. interfered with the School’s ability to accommodate R.B. in this decision, it recognized that parental conduct can interfere in other scenarios, stating:

There may well be examples of parental conduct that prevents the accommodation process from occurring. For example, if a parent refuses to provide relevant information concerning a child’s disability, refuses to acknowledge the child needs accommodation, and refuses to consent to an assessment of the child, that conduct may interfere with the accommodation process and prevent a school from meeting that child’s needs.

Remedy: Significant General Damage Award ($35,000.00)

In determining that the School Board had discriminated against R.B., Vice-Chair Jennifer Scott ordered the School Board to pay $35,000.00 in general damages in compensation for “injury to R.B.’s dignity, feelings and self-respect”. Vice-Chair Scott further ordered that R.B. return to school with a full-time educational assistant, speech and language support for 30 minutes per week and an appropriate behaviour management plan that S.F. has agreed to. The Tribunal also lifted the trespass notice preventing S.F. from attending the school and ordered that she be entitled to fully participate in the development of R.B.’s Individualized Education Plan. Recognizing that the relationship between S.F. and he School Board had been “severely compromised”, Vice-Chair Scott wisely ordered the School Board to retain a third-party mediator to deal with any issues or difficulties going forward.

Conclusion

Schools have an obligation to accommodate students with disabilities. This is a landmark decision that is first by the Tribunal to apply the recently articulated test for discrimination in education. The goal is to provide students with disabilities with the same access to educational services as those offered to all students in Ontario. Parental conduct will not justify a failure to accommodate a student where parental conduct does not interfere with the School’s ability to accommodate. Schools should take care not to refuse to accommodate a student because of a difficult parent. Aside from being inadequate to justify a failure to accommodate, it may also constitute an independent violation of the Code on the basis of family status.


[i] R.B. by his next friend S.F. v. Keewatin-Patricia District School Board, 2013 HRTO 1436

[ii] Moore v. British Columbia (Education), 2012 SCC 61

Family and house icon logo

The Ontario Human Rights Code protects employees on the ground of family status – that is, being in a parent-child relationship.

McDonald v. Mid-Huron Roofing

In McDonald v. Mid-Huron Roofing[i], a 2009 decision of the Tribunal, the Applicant worked for a small company with a handful of employees. The Applicant’s wife was pregnant and the applicant ended up taking several days off of work to attend his wife’s medical appointments relating to her pregnancy.

The Applicant’s wife suffered from complications from her pregnancy and was admitted to the hospital. The Applicant informed his supervisor that he needed to take some time off work to be with his wife. The birth was premature and shortly thereafter the Applicant’s wife again suffered complications, losing consciousness and being transported to the emergency by ambulance. The discovered his wife was taken to the hospital while at work and he informed his employer he would return in twenty minutes and left.

The Applicant attempted to find a babysitter to attend to his new baby so that he could return to work, but ultimately was unable to. When he did not return to work after the promised twenty minutes, his employment was terminated.

Even though the employer did not disapprove of employees with families, the Tribunal held that discrimination occurs even in situations where all employees are treated the same; however that treatment impacts one employee differently because he or she has special circumstances. The Applicant had provided his employer with the necessary information, that he had to care for his newborn son (family status), and from that point forward the employer had a duty to accommodate the Applicant short of undue hardship.

The employer argued that it would have suffered undue hardship, suggesting that the Applicant’s absences were impacting other employees’ morale and efficiency declined as the employer was already short-staffed. The Tribunal noted that the absences were inconvenient to the employer but were not sufficient to prove undue hardship. The Tribunal made it clear that morale is not an appropriate consideration in assessing undue hardship. The Tribunal awarded lost wages to the Applicant and $20,000.00 in general damages for pain, suffering and harm to the Applicant’s dignity.

CONCLUSION

Employees are entitled to accommodation when emergency situations arise in relation to their children. The parent-child relationship is also triggered when an employee cares for an elderly parent. Employees are not entitled to claim family status every time a family situation arises however. Tribunal jurisprudence makes it clear that employees must try to deal with family issues in a manner that does not impact their workplace obligations prior to requesting accommodation. Not every family issue will fall under the ground of family status.

END NOTES


[i] 2009 HRTO 1306