The Human Rights Tribunal of Ontario recently dismissed an Application brought by a student’s mother on behalf of her son, who was diagnosed with Autism Spectrum Disorder (ASD). The Application, brought while the student was in his first year of Kindergarten, alleged that the student required Applied Behaviour Analysis (ABA) / Intensive Behavioural Intervention (IBI) therapy delivered in a regular classroom by persons specially trained and certified in those therapies in order for him to have meaningful access to his education.

The Application sought several remedies, including an order allowing the student’s private therapist to provide his therapy in the classroom and broad, systemic, public policy remedies that would hold school boards responsible for providing ABA/IBI therapy for children with ASD.

The respondent, the Dufferin-Peel Catholic District School Board (the Board), opposed the Application on the basis that (1) the student was on the high-functioning end of the ASD spectrum and did not require ABA/IBI therapy delivered in a regular classroom setting in order to have meaningful access to education, and (2) ABA/IBI therapy is not an education service school boards are required to provide pursuant to the Education Act (Ontario) and the government regulations under which they operate. The Board’s position throughout the hearing was that it was fully willing and able to accept the student into its school and provide him with the supports he needed, including programs incorporating ABA instructional methods to enable him to access the curriculum and succeed in his education.

Following the completion of the applicant’s evidence and hearing from two of the respondent’s witnesses, the Tribunal ordered the parties to provide submissions on the threshold question of whether the applicant had established a prima facie case of discrimination – that is, whether the applicant had proven, on a balance of probabilities, that he required ABA/IBI therapy, delivered in a regular classroom setting by individuals specially trained to deliver that therapy, in order to have meaningful access to his education.

Following its review of these submissions, the Tribunal found that the applicant had not met this burden:

  • the evidence clearly demonstrated that the student was (and is) an extremely bright and intelligent child who was able to thrive at school and master the school curriculum;
  • the evidence clearly demonstrated that he was a student in the top percentile across a range of academic areas, and that he continued to thrive in school despite only attending 2 days per week during Kindergarten and 3 days per week in Grade 1; and
  • while he continued to have deficits associated with ASD, the evidence established that he has made, and continues to make significant gains in overcoming those deficits.

The Tribunal found that at the time the student was entering his first year of Kindergarten, he had a relatively small number of ASD deficits and did not require comprehensive ABA/IBI therapy. While the Tribunal noted that the student had special needs, it found that the Board provided a comprehensive, sophisticated and robust set of programs, implemented by professionally trained staff, designed to address the needs of its students with ASD.

In dismissing the Application, the Tribunal also provided helpful comments on what is meant by a school board’s obligation to provide “meaningful access to education”:

  • The Tribunal found that examining whether and how well a student might, is, or has progressed through the curriculum, as measured by regular evaluation and testing frameworks, is a necessary, though perhaps not a sufficient, aspect of assessing whether a school board has met its obligation to provide meaningful access to education.
  • The Tribunal added that, under the education regime in Ontario, one should also have regard to any Individual Education Plan goals to determine whether the school board is providing the supports for the student to achieve in those areas as well.
  • The Tribunal further stated that it must make an overall assessment, based on all the evidence, of whether an applicant has been given meaningful access to education, which involves looking at success and challenges in relative terms, in the context of the overall curriculum. For students with disabilities, this will also mean looking at the range of special education goals set collaboratively by the school and the parents.

The Tribunal emphasized that school boards are responsible for providing meaningful access to education. They are not, however, responsible for providing therapeutic services where those services are not required to access education, even if they might be needed or be of benefit to children or youth. It held that the failure of the health care system, or other areas of social services, to provide treatments and therapies to children and youth does not make school boards responsible for those services just because a student is ready to attend school.

The Tribunal acknowledged that this will likely result in frustration for parents whose children require those therapies.