Accessible Education Law Update

Meaningful Access to Education for Students with Disabilities Requires Meaningful Engagement in Accommodation from Schools and Families

Inclusive education for students with intellectual and developmental disabilities has long been a source of concern for parents in Ontario and has been the topic of recent debate as well as the subject of a 2018 report conducted by Community Living Ontario. Courts and Tribunals are also grappling with this issue.  In Kahn v Upper Grand District School Board, a recent decision of the Ontario Human Rights Tribunal (“HRTO”), the issue of a School Board’s authority to exclude students with disabilities was considered. The HRTO held that Upper Grand District School Board (the “School Board”) did not discriminate against a student with intellectual disabilities. This case is important because it highlights some of the difficulties that schools, parents and students with disabilities face in trying to ensure meaningful access to education. The main takeaways from this case are:

    • Schools maintain the power to exclude students, especially in light of health and safety concerns
    • Schools continue to have a duty to accommodate special needs students
    • Accommodation also requires that parents and guardians must work together and make efforts to co-operate with school administrators and staff in ensuring meaningful access to education for their child

This case involved GK (anonymized here as individual is a minor, although this was not done in the HRTO decision or in the media), a third grader with Autism Spectrum Disorder (ASD) and a learning disability. Up until his suspension and expulsion in November 2018, he attended French Immersion school offered by the School Board. In this case, the HRTO was tasked with balancing the rights and interests of the school and its staff, parents of special needs students and the students themselves. In light of escalating behavioral challenges, including verbal and physical violence towards students and staff and various meetings with GK’s parents and efforts to implement teaching and intervention strategies,[1] GK was suspended. A subsequent investigation and several meetings took place. GK was provided with home schooling supports and was ultimately expelled from the French Immersion School on November 20 2018.

It is interesting to note that the HRTO’s decision further reflects long standing mitigation principles in Employment Law and Civil Law, which require plaintiffs to take reasonable steps to seek out similar alternative employment or avoid losses.  This case sheds light on what reasonable accommodation efforts look like in an education setting.

For more information, or to make an appointment to discuss your child’s special education needs, contact PooranLaw today.

[1] Kahn v Upper Grand District School Board 2019 HRTO 1137 at paragraphs 35,77-78, 107, 126-136.