On February 23, 2010, the Human Rights Tribunal of Ontario released its decision in Schafer v. Toronto District School Board, 2010 HRTO 403 (request for reconsideration denied 2010 HRTO 884), confirming that the role of the Tribunal is not to second-guess a student’s Identification, Placement and Review Committee (“IPRC”) placement or recommended accommodations or supervise the implementation of an Individual Education Plan (“IEP”).

This human rights application was filed by Reva Schafer on behalf of her son Eli Schafer, and relates to his grade nine school year at Central Technical School in the Toronto District School Board. Eli had been identified as “exceptional” in the area of “learning disability/language” by decision of an IPRC. Mrs. Schafer alleged that Eli was denied equal treatment with respect to educational services because of disability, contrary to section 1 of the Ontario Human Rights Code (the “Code”) during his short tenure at the school. Among other things, the applicant alleged:

The school failed to provide Eli with appropriate special education services in accordance with his disability-related needs.

Two suspensions that were imposed on Eli were discriminatory, as the school did not take adequate account of Eli’s disabilities in determining an appropriate penalty.  

That the second suspension stemmed from the school’s failure to implement accommodations and an appropriate re-entry plan after the first suspension.  

The homework provided during the suspensions was inadequate.  

In particular, the applicant alleged that the teachers, principal and viceprincipal were not appropriately qualified and did not understand or appreciate fully Eli’s special needs and the type of accommodations that he needed. Furthermore, the applicant alleged that the teachers did not provide the accommodations needed and that the vice-principal did not accommodate Eli during the investigation of two suspensions.

The hearing took place over several days and evidence was received from many witnesses, including Mrs. Schafer, most of the Eli’s first semester teachers, the principal and viceprincipal of Central Tech, the relevant superintendent and several special education personnel.

Alternate Chair Joachim found that the evidence established that Eli’s first term teachers were aware of his special needs and had incorporated accommodations early in the school year. In particular, the teachers testified that they reformatted tests, provided additional time on tests, extended deadlines on assignments, provided preferential seating near the front of the class, refocused Eli during class, encouraged movement breaks, provided material in smaller “chunks”, offered additional one-onone instruction outside regular class hours and provided constant encouragement and direction.

The Tribunal recognized that Central Tech has a high percentage of special education students. Accordingly, it found that the teachers are attuned to the need to provide accommodations for many of their students and many of the accommodations required by Eli were equally applicable to other students.

With respect to Eli’s first suspension, the Tribunal found that its task was not to second-guess the TDSB’s GEducation Law Fall 2010 3 decision to suspend or the length of the suspension. The Tribunal stated that its focus was on whether Eli’s special needs were considered in the suspension process. Alternate Chair Joachim concluded, “There is no question in my mind that the TDSB did consider the applicant’s special needs throughout the process and accommodated them.”

With respect to homework during the suspension, the Tribunal found that the TDSB provided homework to Eli during the suspension and properly prepared for his re-entry into the school.

In reviewing the second suspension, the Tribunal held that the TDSB was justified in concluding that Eli had engaged in serious misconduct and that the Board reduced the length of suspension in light of Eli’s learning needs. Again, the Tribunal confirmed that it will not overly scrutinize the specific discipline decision, but it was satisfied that the TDSB “properly considered the applicant’s special needs”.

Overall, the Tribunal concluded that the TDSB did not breach the applicant’s rights under the Code. In this regard, the application against the TDSB was dismissed.

Special Education and the Human Rights Tribunal

In her reasons, Alternate Chair Joachim held that a failure to accommodate within the meaning of the Code does not mean that a school failed to meet a parent’s expectations. However, what is likely to be the decision’s long-term impact is the position the Tribunal took regarding the scope of its ability to review alleged human rights violations relating to special education.

During the hearing, Mrs. Schafer alleged that the TDSB did not comply with the Education Act, TDSB policy, that the procedures they used were not fair and that the school did not implement the accommodations listed in Eli’s IPRC or latest IEP.

The Tribunal held that it is not it’s role to oversee the implementation of the Education Act. Whether or not a school board strictly followed the procedures to arrange IPRC’s or prepare IEP’s is not for the Tribunal to determine. The Tribunal stated that so long as there are steps taken to assess the child’s needs and prepare accommodations, then generally the procedural standard of the duty to accommodate will be met.

The Tribunal ruled that as long as the substantive accommodations as recommended by the IPRC and IEP are generally implemented, the substantive standard of the duty to accommodate will be met. It stated:

The issue is not whether the accommodations implemented are what the student or parent wanted, whether they were the ideal accommodation, or whether other accommodations would have been equally appropriate. The simple question is this; did the school board implement accommodations (generally, but not necessarily as recommended by the IPRC or IEP) that met the child’s special needs?

As a result of the Schafer decision, the Tribunal has sent a clear message that it is not an alternative or substitute body to monitor and regulate the special education scheme under the Education Act. The Tribunal held that it will not secondguess the IPRC placement and recommended accommodations and will not supervise a school’s implementation of an IEP. It will be helpful for school boards, parents and relevant stakeholders to know that in order to establish discrimination under the Code, the evidence must demonstrate that the accommodations provided were “significantly inappropriate or inadequate.”

With respect to future cases before the Tribunal, the Schafer decision may serve to eliminate or, at least limit, the scope of many human rights applications that purport to question the appropriateness of accommodations or programs provided to students with special needs.