Accessible Education Training, Nov 1, 2018 — Part 2


[Cherie Robertson]:
In providing accommodations and asking for medical information,
education providers should keep in mind
that documentation may take time to get. We’ve talked about the waiting
list for professional assessments, also where students
are attending school outside of where they grew up, they may not
be able to get medical information from the physicians that
know their needs best because they’re in
another jurisdiction. And as I said a little bit earlier,
it’s the expectation set out in the policy that where medical
documentation is taking some time, interim accommodations
are required. [page turning] So an example I can give to you
would be a student approaches his college disability office saying
that he feels depressed and is unable to eat or sleep, which
is having a negative effect on his ability to
concentrate in class. The disability office refers
him to a medical professional to assess him for a disability
and any accommodation needs. In the meantime, the disability
office explores accommodation solutions with the student because
there is a perception that the student may have a disability thus
triggering the Code’s protections. And these interim accommodations
may change when more information is received, but the point is that
the student should not have to wait while this is all
happening because as we know, the
backlogs are very real. And all students but I’m thinking
about younger students, like, I mean, a week in the life of a
primary school student is a lifetime and you really can’t, I think, as
an education provider, justify holding up an accommodation because
there are these backlogs that are totally outside of the student
or the family’s control. So the kind of information
that needs to be provided, is the following. That the student has a disability,
because if a student doesn’t have a disability
they don’t have protections under the
Ontario Human Rights Code. You have to fall within that ground
to trigger the Code’s protections. That’s not to say, to reveal what
the disability is, it can just be… a medical note to say that in
fact there is a disability. The limitations or the needs
associated with the disability, this is more relevant at the higher
levels of education but whether the student can perform the essential
academic requirements with or without accommodation,
and if possible the type of accommodation that may be
needed to allow the student to fulfil those requirements. As I said, rarely will a request
for a student’s diagnosis be relevant or appropriate. So something else that came up in
our consultation which I’ll raise for you to consider is
that we heard a lot, mainly in the
post-secondary context, about some confusion around whether
the symptoms presented by a student in fact constitute a disability. And so we’ve been clear
about this in the policy. So things like everyday stress,
everyday anxiety, descriptions that somebody feels unwell, these
will not be enough typically to constitute a disability
for the purposes of the Ontario Human Rights Code’s
protections. So, for instance, at exam time a
university may very well start to see a spike in accommodations
related to increased anxiety. The university is entitled in
those situations to ask for more information to determine
whether or not this is within the normal experience
of students writing exams, or whether there’s
something chronic about it that pushes it into
the category of a disability. So we set out some detail there
about the kinds of questions that education providers can ask, but
I’ll just draw that line between, that not every condition that
causes a student discomfort will be considered a disability. [Male participant]:
With regards to the specific, the last point on the slide, in
terms of how intrusive you can be in terms of a person’s diagnosis,
could you talk a little bit about disability related accommodations
for substance abuse issues? [Cherie Robertson]:
Yeah… at what level of education
are you talking about? [Participant]:
K to 12. [Cherie Robertson]:
K to 12, yes, okay. So… if somebody’s asking
for an accommodation because of an addiction, they
need to be a little bit more explicit about what’s
happening with them. I don’t know that it’s possible —
well, I mean I can’t really imagine this easily in the case of addiction
that you’d be able to describe what your limitations are and what your
needs are without giving some kind of sense of what it is
you’re going through. Having said that though, this
is a bit of an evolving area with the legalization
of cannabis, so we all might be
educated along the way, but I think there might be a bit of,
there could be, practically speaking, a
bit of a difference. I don’t want to, yes, marry myself
to that position but because we are in changing in
times but I think there might be, especially with younger kids. Okay, so I talked a little bit
already about the need to maintain confidentiality and I’ll give
you an example where this, the need for confidentiality
was emphasized by a human tights tribunal. This case arose in B.C., it’s Gichuru and the Law
Society of British Columbia. The facts are a little bit detailed
but bear with me, they’re important, so I’m just going to
read them to you. So this arose in the context
of a law, accreditation for membership in the Law Society
of B.C. and this is it, so… to apply for articling positions
through a law society, a law student filled out an application
that contained the question, “Have you ever been treated for
schizophrenia, paranoia or a mood disorder described as
a major affective illness, bipolar mood disorder — or
manic depressive illness?” The student answered yes because
previously he had experienced a couple of episodes of depression
for which he sought treatment. Once he answered yes, conditions
were placed on him so that each time he needed to
reapply to the law society for activities to
advance his career, the issue of his mental
competence was revisited. Despite not having had further
episodes of depression after being admitted to the bar, he was asked for
multiple medical reports and required to see
a psychiatrist, he was investigated by two
private investigators and he experienced delays
not imposed on others. So the human rights tribunal
in this case concluded that the question itself was
discriminatory and caused systemic discrimination
against people with the named mental
health conditions. This was in part because the
process following a yes answer to that question exposed applicants
to a more intensive and intrusive evaluation than others. The tribunal also heard evidence
that 77% of the people who answered yes to that question had
conditions put on their membership and the tribunal noted that
the factors in the case were sufficient to constitute
an adverse impact, especially when
viewed against the historical disadvantage and present
day social stigma experienced by people diagnosed with
mental health disabilities. So I give you that very long fact
scenario to emphasize the point that transcripts and test results,
forms, licensing exam result forms, should never stipulate that
the student took the test under altered conditions or that
they requested accommodations and this is the legal
authority for that. [page turning] So we’ve talked a
bit – yeah, sorry – [Participant]:
Just so, clarification, if a child’s going from secondary
school to university and they are accommodated in some
subjects… that doesn’t have to be
noted in the application to that university(?) [Cherie Robertson]:
It goes back to the diagnosis. If the family, the student
feels comfortable sharing that information that, you know, arguably
maybe in certain circumstances could be useful information. The difficulty is when it’s required
and the difficulty in this scenario is that this was not at
the student’s behest, this was done as part of the
system’s way of working that student through
all the steps required to become a lawyer and to be
certified by the law society after he did become a lawyer, so
I think it’s a bit different. We’ve talked about
undue hardship, there are only three
ways to be able to meet the test for
undue hardship, in practice is,
education providers might say we cannot provide this
accommodation because it would cause us undue hardship. The only ways they could argue that
successfully is to show that the accommodation is so costly,
essentially it would prevent them from being able to continue
operating the business that they operate, so very high
standard, they’ve exhausted all outside sources of funding
or there are significant health and safety
considerations. And that’s what I’ll spend a
little bit of time talking about. So the policy states that if an
accommodation is likely to cause significant health and safety risk —
so, for instance, having a student educated in a mainstream classroom,
if that is, if the argument is that that is going to cause
health and safety risks there is a legal test
that an education provider would
have to be able to meet in order to
successfully argue that. [Cherie Robertson]:
So the policy recognizes that education
providers have an obligation to protect the health and
safety of all students including students
with disabilities and the broader
educational community. The Code recognizes this in putting
health and safety considerations into the undue hardship test. And there are occupational
health and safety laws in the Province of Ontario
that education providers also need to be mindful of. Health and safety issues can arise
in a variety of different ways throughout education, and
have the potential to affect students, educators
and school staff. Depending on the nature or the
degree of the risk involved, an education provider may attempt to
argue that they cannot facilitate an accommodation because the health
and safety risks are too great. This may be the case, for example,
where a student with a disability engages in behaviour that affects
the well-being of others. However, the policy states that:
education providers should be careful not to prematurely jump to
the conclusion that a student cannot be educated in an inclusive
setting because of concerns around
health and safety. These issues have gone to the
Human Rights Tribunal and the kinds of analysis that have
come out of the Tribunal are things like there needs to be
an objective demonstration of risk, it can’t be speculative. If a school is trying to exclude a
student, they would need to be able to show steps they have taken
to try to mitigate that risk. So… are accommodations in place,
are they effective accommodations, were they implemented
in a timely way. Through our consultation, the
Commission heard quite a bit about — okay, I’ll back up. So in 2005 the Commission initiated
its own human rights complaints against the TDSB, the Ministry
of Education, about the “Safe Schools” provisions
of the Education Act. Part of the settlement, which
is public, is that the mitigating circumstances that
used to be in the regulations to that Act got moved
to the body of the Act. So there is a process that
is supposed to be undertaken if a student is being
excluded from school due to concerns about their behaviour. We know that these problems continue
to exist, and one of the ways throughout our consultation that we
heard that this is now happening is under a different section
of the Education Act. Section 265, sub 1, sub M, it gives the principals
of individual schools the power to exclude a student where
they feel that risk is imminent. And so what we have heard from a
wide variety of people across the province is that this provision is
now being used maybe to get out of the formal process that was
previously being used… to keep students out of school. And from a parent’s perspective,
they’re not so concerned about whether the fact that their child
can’t be in school is being called a suspension, an expulsion or an
exclusion, the fact of the matter is their kid can’t be in school. …so we’ve highlighted this in the
policy because we’re on it now, we know that this is happening and
it seems to be a detoured way to do what was happening before under
the Safe Schools provisions. So I say all that just to say that
there are procedural steps that education providers are expected
to take before they would be able to successfully argue that
to accommodate a student with a behavioural disability
would amount to undue hardship based on health and safety. So an example, okay, so this is
scenario number two in your handout, let’s take a minute to go
through this together. [whispering; inaudible] So the scenario is as
follows: a boy in Grade 5, with attention deficit
hyperactivity disorder has been sent to the principal’s
office repeatedly for acting out, initiating rough physical contact
with other students, and on one occasion throwing a
stapler against a wall. The principal sends the boy
home and tells his parents that he will no longer be able
to attend the school because he poses a risk to his
teacher and the other students. There are three questions if
you could just take some time to look through them
and think about them and we’ll talk about
them together. [Cherie Robertson]:
Okay… So in response to
the first question: “Would keeping the boy at school
be a health and safety risk… [and] …is the risk significant
enough for the school to be able to meet the
test for undue hardship?” Your thoughts? [Participant]: I’m autistic so this
is going to be the autistic answer. I would say no, this person is
not a significant risk but I’m being concerned about that
he’s acting out in this way and is the child at risk? [Cherie Robertson]:
Okay. [Participant]: And this topic
is a very sensitive topic and… for me it feels like whoever calls
“I’m uncomfortable first” wins. and in the case of
this, the child is not often able to even say
I’m uncomfortable. [Cherie Robertson]:
Right, thank you. That’s a really important point. Other thoughts on that question? [Female participant]:
It would be interesting to know what strategies and supports
the school has offered the child to be able to cope within
the classroom before ejecting him from the school. [Cherie Robertson]:
Yes, so remember we talked about the procedural component of the duty
to accommodate? so what process was
undertaken to evaluate whether there were
accommodations in place, how effective they were, are there
ways that they could be altered to better meet the student’s needs? That’s the procedural side that
I’ve been trying to emphasize. So probably premature to conclude
that the student has to be sent home without having shown that lots
of other things were tried and without success. Any other thoughts? Is there more information
that you need to be able to make your assessment? [Participant]:
One piece of information I think is often
neglected is that some students are observed more
than others but, and schools pay a lot of attention to anti-bullying
but don’t look closely at what, that bullying may have
instigated this whole thing. It may be the student’s reaction
to some aggressive behaviour or, you know, discriminatory
behaviour on the part of another student or teacher. [Cherie Robertson]:
Yeah, so we don’t know that, necessarily, and we talked
a little bit earlier about the duty to inquire. that might very well be relevant
in a situation like this. I mean, I said in the example that
the student is known to have ADHD, that actually heightens the
responsibility to evaluate whether the school is meeting
its responsibility to meet the disability-related
needs of this particular student, and whether neglecting to meet
those needs might be exacerbating the kind of behaviour
we’re talking about. Is there anything else the
principal should have done before expelling the
boy from school? [Participant]: One of my
concerns always when we deal with behaviours of students
because I deal with this a lot, is there are about a half a dozen
or so school boards in the province that are 100% in terms of they
don’t kick these kids out, they figure it out. So when a school board would
typically say it can’t be done I always look at them
and say, “Yes it can … …these guys figured it
out, why can’t you?” [Cherie Robertson]:
So when we did our consultation we did hear quite loudly from
teachers’ unions on this issue. The Commission knows that
it’s doing a good job when some of our stakeholders think
we’re not going far enough and others think we’re
going too far. And I think on this issue we’ve
struck a balance because the fact of the matter is that
there may very well be situations where it’s not safe to have
somebody in a certain environment. The point I’m trying to make is
there is a very long process that education providers are expected to
go through to make sure that they are covering all their
bases, they are making sure that they are discharging
their duty to accommodate as effectively as
possible, and not prematurely jumping
to the conclusion or saying, “I’m uncomfortable”
before other things have been tried and tested first. The fact is though that the
law does recognize that where an accommodation might amount to *significant* health and
safety risks to others that may be enough to
satisfy the undue hardship test. So I’m just setting out for you
what the analysis would be and the process is
very important. So the ultimate responsibility for
maintaining education providers free from discrimination
and harassment rests with education providers. It isn’t acceptable to
choose to remain unaware of human rights issues that
happen in your environments, whether or not somebody
makes a formal complaint, there is a proactive
responsibility to be ensuring poison-free
environments for all of the groups
protected by the Code. Our policy sets out… some concrete ways that
this responsibility can be discharged, so… barrier
prevention, review and removal, data collection and
monitoring, developing effective human rights
policies and procedures as well as education
and training – we’ve heard a lot about
the need for that – [page turning] It’s the Commission’s intention that
this policy makes it very clear what everybody’s rights and
responsibilities are as it comes to the issue of accommodating
students with disabilities. Ideally the policy sets out clear
guidelines in specific situations that will help to address situations
of tension and conflict before they escalate to full-fledged
human rights complaints at the Human Rights Tribunal. By clearly outlining what these
requirements are we hope to be able to provide you with a useful
tool that contemplates the current state of
the law and gives numerous examples
of how this stuff has been litigated
when it has escalated. At the back of the policy we include
a set of recommendations to the key players in the
education system because we know that there is a higher
level of responsibility to provide adequate
funding, to provide an effective dispute resolution
mechanism, to make sure that universal design for learning
is appropriately implemented. We recognize that there are key
levels and key players at each level and we’ve crafted our
recommendations in the best way that we think that these parties
can meet their obligations under the Ontario
Human Rights Code. [Participant]:
So I’m actually interested in the the interplay between the
Education Act and the Code and… you know, back to this issue of the
health and safety thing for example… I sometimes think that the boards
that have come into your classrooms, see those classrooms
as the accommodation, so, I often see the
parents comments on that, so on these
Facebook boards, this, that and the
other thing, you know, there was at lockdown in
the classroom or whatever, I actually see parents
jump in and say, “oh, your kid should be
in an ASD class… wrong class.” And I think it—I don’t know if this—
because I haven’t taken the time yet to read your policy
yet, I apologize, but is there a clear
explanation of— first, they need to put
that behaviour plan in, the right response is not to exclude
the child from a regular classroom
as a first response. Because I think schools that
have those classroom boards, that have those classrooms who treat that accommodation
as a first response. [Cherie Robertson]:
Right, okay, so a couple of things… First of all, I spoke at the
beginning of the presentation about the three principles that mark
the accommodation process and one of them is inclusion
and full participation. So that is the starting place,
wherever possible, and all attempts should be made to make sure
that students are included and that they are able
to fully participate. That often will not mean congregated
special education classrooms. So we’ve handled that very
deliberately in that section. And then, you started out by asking
what is the inter relationship between the Education Act and
the Ontario Human Rights Code. The Ontario Human Rights Code has a
provision written right into it that it has primacy over other
legislation in the province, including the Education Act. So where there’s a conflict,
between what the Code requires and what the Education Act says,
it’s the requirements of the Human Rights Code
that will prevail. This is relevant when it comes
to things like the categories of exceptionalities that the
Ministry of Education has put out, which in the Commission’s
view, are under-inclusive and don’t name
specific disabilities. Under the Ontario Human Rights Code,
students who have any kind of disability are entitled to
accommodation, whether or not that particular condition is listed
in the categories of exceptionality. So that’s one area where
there’s a conflict and the Human Rights
Code would prevail. [Female participant]:
Hi, just want to go back to your slide on
retro-active accommodation. Does an increase in students asking
institutions asking to clean up their transcript to remove the
grades in which they didn’t get accommodations because it was made
available and that they don’t have any documentation for that time
because they weren’t well enough, but sometimes they are coming
many, many years later, including after they graduate. [Cherie Robertson]:
Right, so… as I said on that issue, and the
policy speaks to this very clearly, the area the Commission
is troubled by is when post-secondary institutions
have policies, either informal or formal, in place where
they dismiss out of hand, a student’s request
to have something re-evaluated in the
past where they maybe didn’t have information
about their disability related restrictions that they
now currently have. These cases need to be looked at on
an individual basis and where there is the ability to, without undue
hardship, go back and take a look at what was going on in a
particular course, then we say don’t bar that, go and
take a look at it. Like in good faith,
take a look at it. If it is several years after the
fact and we provide an example in the policy of a case where this was
the circumstance, it may not be a reasonable accommodation
to ask someone to go back many
years and do that. [Participant]:
Earlier you talked about that there were some schools
that did a really good job at being inclusive and they would
figure out a problem before expelling the kid, could you
give us a list or shout out to the schools that are doing
this really well, please? [Cherie Robertson]:
I can say – and I can’t speak to this with any kind of authority,
but I do know that New Brunswick has a very different way of dealing
with special education requests. It’s not called special education,
the whole system is designed far more inclusively. I can’t speak to how it
actually works on the ground, but the theory is far
more inclusive than what you would see
on paper in Ontario. [Participant]:
I’m glad you brought up the special education plan
because a lot of them are going into the Ministry
at this point in time to be reviewed and approved. In going through two different
boards of special education plans, I found several… legal problems. They were saying things
that were not accurate under the Ontario Human Rights Code,
under your policies, under the Education Act
and regulations therein, yet the Ministry approved them. So I want to get back to the point
on, I think the second page in your document, where you say that one of the service providers
is the government. And then you wrote,
“where appropriate, the Minister of Education, under
the law, must ensure that all students and those
with exceptionalities receive an appropriate program.” [Cherie Robertson]:
Right. [Participant]:
The Minister has refused to do that in the last, I think five… terms. When parents have taken
the Ministry to the Tribunal, the Tribunal chairs have allowed the three legal counsel from
the Minister of Education… to – I’m going to
call it get away with – accepting the duty
and obligation, and the case was never heard,
cases were never heard against the Minister of Education/
the Government of Ontario. I think this is something
that needs to be clarified and I think the Commission
has to do that. If the Commission is going to say
that the Ontario Human Rights Code supersedes the Act, then I think
the Commission has to take a stand on what it’s going to do about
their policies because currently, wards
are in contravention, families can’t afford to
go to the tribunal, can’t manage to go
to the tribunal, either emotionally,
physically, whatever. So I am hoping that
through this policy you will be able to
take a stronger stance on behalf of the families
we serve and support so that something can be done
so that the government accepts its legal duty and
responsibility and boards do so. And the tribunal
so that it becomes a fair, impartial hearing. [Cherie Robertson]:
Thank you for that. So we have – when we do a new policy
like this, we have a whole variety of ways in which we maximize the
impact of that policy and we have already written directly to
the Ministry of Education and to the Ministry of Training Colleges and
Universities outlining some of our very specific concerns and what we
see their responsibility being. That’s all I can really say for now,
but it’s not that we are not aware of the role that the Ministry needs
to be playing as a leader in this and too often, fingers
are pointed like this between the Ministry and
school boards, and we know that. So thank you for sharing
that and it’s not something that we take lightly and we
know that this is an issue. [Male participant]:
I have a question, a question I think initially we
talked about it: private providers…
education providers. I’m thinking specifically the
situation at schools that have before and after care providers,
defined as part of the school board that children often going
either before or after in terms of the Human Rights Code
and how it would apply to them in the same way. [Cherie Robertson]:
So, the short answer is “yes”… they’re not considered education
providers, they’re considered service providers, so they’re
covered by the Human Rights Code in the same way, and because they’re dealing with
young children, many of the same things I’m
saying here will still apply, but the basic answer to your
question is: day cares, before and after school
care providers are service providers under the
Ontario Human Rights Code and they have all the same
human rights obligations that I just talked about. [Next participant]:
Sorry, my question is – I just finished a
needs assessment for autistic people and HIV prevention
at the AIDS Committee of Toronto. Our education systems are not
educating autistic people or people with intellectual developmental
disabilities about sex education. One of the things
that we’ve learned is that IEP time, or
special education time, is being used in replacement
of that sex education time. As well as not providing us the
opportunity to have that non-verbal social communication
time with our peers which was taught at
the end of the year. How can the human rights help us
and is there a way that – or, are… are the systems
allowed to replace some sections of education
for special education time? [Cherie Robertson]:
So in developing policy we don’t really get so much involved
in the very minute details of how things play out on the ground, but
in response to what you’re saying, I can say that students who have
autism or are on the spectrum are entitled to accommodations in the same way that any other
student with a disability is, and if the way in which the
particular school is going about doing that is not
up to the standard of what we’re setting up in the policy
and the Code, then that raises human rights issues
and that particular school would be vulnerable to
having that behaviour scrutinized through a
human rights lens. That’s pretty much all
I can really say about the specifics of what you’re saying,
I mean it sounds odd to me, but I would just rely on
the general principle that all students who have autism
and are on the spectrum are entitled to accommodations. [Next participant]:
Thanks, I wanted to say, I actually appreciate
this regulation on accessible education for
people with disabilities, because it’s cleared up a lot of
issues that I’ve seen over the years but one of the areas
that I’m still seeing – well, the difficulties
we’re having from conflicts between provincial legislation
and federal regulations. For example, post-secondary, you’ve
got students who are going through – they’ve chosen a career, they
get to the end where they’re writing a final exam,
that’s regulated either provincially
or federally and they’re not allowed to
have an accommodation. So you’ve spent now two or three or
four years going through this and they will not recognize it,
they will not allow it and especially in things like
aviation, electronics, where I can’t see the
reason for the denial but the excuse is
always health and safety. [Cherie Robertson]:
So, federally regulated professions would be covered under the
Canadian Human Rights Act, and that statute has all of the same ‘duty to accommodate to the point
of undue hardship’ provisions that the Ontario legislation
does, so I’m not clear on why that’s happening, but the
recourse would be the same. Under the Canadian Human Rights Act
a person can file a human rights complaint
against a practice such as the one you just described. [Participant]:
Yeah, you can file a complaint, but what I’m saying is
someone goes through that, spending three or four years,
thinking that that’s their career, and then there is this
barrier roadblock at an exam, provincial
or federal exam, that says, there’s
no accommodation. That, to me, is really hard. There’s a difficulty that
after you spent all that time you’re suddenly told it’s a
health and safety issue. Well, I believe that
we can deal with it, but individuals are thinking about,
“We’ve put in all of this effort and energy and stress and
now we’ve got to fight and take this to court
and fight for this,” after they’ve put in that time, and I just
feel that these are things that need to be dealt
with prior to that, and that if it is a
health and safety concern that is based on undue
hardship, then we need to know so we can put that on the website
“don’t take this course if…” you know, if that’s true. [Cherie Robertson]:
Right. So I mean, I would
recommend that you contact the Canadian Human Rights Commission
about what you’re describing. It being in the federal jurisdiction
they have equivalent powers to what we have at the
provincial level. That might be an option
available to you. [Participant]:
You know, it’s a very troubling thing when
students are denied accommodation but it’s life threatening thing
when they’re denied education and a long time since 2005 when
the Human Rights Commission took that action that led
to the change and added mitigating factors and so on. Given this 265(1)(m) and exclusion
and the documentation of the problem by Arch and others and by
People For Education and others, even on students are being asked
not to come to school today, what action can the Commission take
and how does the re-organization since 2005 change the way the
Human Rights Commission actually lays complaints itself? [Cherie Robertson]:
Okay, so in answer to the last question: it doesn’t. We still, under our mandate,
have the power to initiate our own complaints in the
way that we always have. I certainly can’t speak for the
Commission, obviously, but I will say that when we do put out
a new policy we are always looking for areas of concern
that were raised through our
consultation process. Now, we have a policy rationale
that can then feed into our public inquiry function and
our litigation function. I can’t talk about things that have
not been publically stated yet, but I know that we are
contemplating ways to put those parts of our
mandate into action.

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