*This is the 2nd part of a blog that appeared in OFIS E-news recently.
Dave Bird – OFIS Professional Development Coordinator – firstname.lastname@example.org
In Part I, we reviewed the Ontario Human Rights Tribunal case involving Sharon Fair. Eight and a half years after her termination, the Ontario Human Rights Tribunal criticized the Hamilton-Wentworth DSB for having failed “to actively, promptly and diligently” consider possible solutions that would have accommodated Sharon Fair’s disability without undue hardship. That tribunal ordered Ms. Fair reinstated into a yet-to-be-determined position which would have to be created (with up to six months of training), compensated her for $419,284.00 plus interest for lost salary, and awarded her an additional $30,000.00 for injury to her dignity, feelings and self-respect. In Part II, we’ll now have a look at two recent interim orders by the Ontario Human Rights Tribunal.
Rule 23.2 of that Tribunal’s Rules of Procedure allow for interim (advance) remedies. Before awarding an interim remedy, the Tribunal has developed only three simple questions to be answered:
(i) Is the claim reasonably arguable?
(ii) How does the harm to the applicant balance against the harm to the respondent?
(iii) Is the interim request necessary to further the Code, and fair?
So what does this look like, in practice?
9-year-old R.B., a Grade 3 student, was removed from a school in the Keewatin-Patricia DSB for “swearing, using profanity, spitting, yelling, cutting a child’s sweatshirt, stomping on a child’s leg, throwing material and being non-compliant with his teacher, educational assistant, vice-principal and principal.” The School Board was willing to allow a return only after psychological confirmation that R.B. would no longer risk the physical and mental well-being of himself and his classmates. (R.B. was diagnosed with mild intellectual delay, language processing problems, articulation weaknesses, ADHD, PDD NOS, and Tic Disorder.) The mother alleged that the School Board had failed to accommodate R.B.’s disabilities (to the point of undue hardship). Because a final decision by the Tribunal was still likely a year away, the mother applied for interim relief. The Tribunal focussed upon the potential loss of R.B.’s Grade 3 year, and ordered the immediate transition of R.B. back into the school, even before any formal hearing and final decision. Once again, as is its pattern, the Tribunal favoured individual rights over communal responsibilities. I wonder how the teacher, educational assistant, vice-principal and principal would then be able to manage these suddenly empowered 9-year-old son and mother, pending final resolution? And, if R.B. did now effect significant injury to himself or to others, I also (only rhetorically) wonder whether or not the Tribunal would assume any responsibility for the consequences of its interim order?
In the Halton DSB, a mother applied to the same Tribunal for the creation of a new bus stop for her JK and Grade 2 children, to be established right in front of her residential complex or at a nearby intersection. Her children had previously walked 690 metres to the local school, where they then boarded a bus to a French Immersion school. Tragically, the mother had a permanent spinal injury severely limiting mobility, so she could not drop off and pick up her children from that local school. The mother argued that the School Board was under an obligation to accommodate her disability to the point of undue hardship, and applied for an order creating a new bus stop in front of the mother’s home. The Tribunal flatly refused to explore any other possible arrangements (such as a ‘walking buddy’, or an adult friend or family companion) and instead stated that the mother had no responsibility to exhaust any other possible arrangements.
The Tribunal then ordered the creation of the new bus stop, by way of interim remedy. Again, without any formal hearing and final decision, the Applicant essentially received well in advance her relief sought. The Tribunal specifically observed that “It is critical in this case that rights of children and their attendance at school are involved. These are issues of paramount importance. The importance of educating children as a value in our legal system is symbolized by the fact that the International Convention on the Rights of the Child, in Article 28, recognizes the right of the child to education.”
Read that last Tribunal quote again, … and again. In each case, without much regard for communal responsibilities or for financial constraints, the Tribunal favours individual rights. As schools, we need to become even more vigilant in now considering the implications of each and every student admission. No private school can truly afford to pay Sharon Fair a half-million dollars, or to return a physically violent student into a Grade 3 class, or to provide individually tailored bussing stops.
Much like at the Hotel California it now appears that, once checked in, students and their families never really leave.