HUMAN RIGHTS TRIBUNAL OF ONTARIO

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B E T W E E N:

M.O. by his next friend, J.O.

Applicant

-and-

Ottawa Catholic District School Board

Respondent
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DECISION

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Adjudicator: Sherry Liang

Date: August 26, 2010

File Number: 2009-03258-I

Citation: 2010 HRTO 1754

Indexed as: M.O. v. Ottawa Catholic District School Board

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APPEARANCES BY

)
M.O., Applicant ) J.O. and Juliet L. Knapton, Counsel
)

)
Ottawa Catholic District School Board, ) R. Paul Marshall, Counsel
Respondent )
)

[1] This is an Application filed on August 19, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).

[2] The applicant, a minor, is a student with the Ottawa Catholic District School Board (the “Board”). He alleges that the Board discriminated against him in respect of services on the basis of disability when it denied him transportation services from his caregiver’s premises to his school. His father acts as his next friend in this Application, as well as appearing as counsel.

BACKGROUND

[3] The applicant, M.O., was diagnosed as being on the autism spectrum in October 2007. He has a twin brother who has received the same diagnosis, but whose disabilities are less severe. M.O. is now five years old. From January 2008 to September 2009, both boys received full-time Intensive Behavioural Intervention (“IBI”) therapy through The Portia Learning Centre (“Portia”) located in Ottawa, some 33 kilometres from their home. As of September 2009, M.O. began a half-day special kindergarten program with the Board, but remained at Portia in the mornings. The Board’s program is described as an “assessment program”, targeted to children of kindergarten or grade 1 age who, because of development delay or disability, require a special program to begin their education.

[4] M.O.’s parents made a request that transportation be provided for M.O. from Portia to his school. It was turned down on the basis that Board policy required that transportation be provided to or from a licensed daycare facility, and Portia does not have a daycare licence. The Board has provided transportation between M.O.’s home and school instead.

[5] The applicant’s parents state that the nature of his disabilities rules out attendance in a regular daycare program. They take the position that the Board’s transportation policies should accommodate the applicant’s disabilities by providing him with transportation from Portia despite the absence of a daycare licence.

[6] The Board’s position is that there is no discrimination because no student is provided transportation to or from therapy. There is no denial of services because M.O. was offered transportation to and from his home. Further, the Board states that it is meeting the applicant’s educational needs and thereby accommodating his disability and meeting its obligations under the Code. In the event the Board’s transportation policies or practices are found to have discriminated against the applicant, the Board submits that he cannot be accommodated without undue hardship.

THE EVIDENCE

[7] The applicant called six witnesses, including Phillip Nicholson (a public policy consultant who specializes in mapping), Kim Moore (the director of Portia), the parents of two other children at Portia, and Peter Szirtes (the president of Sommer Transportation Services, or STS, the company providing special transportation services to the Board). The applicant’s father also testified.

[8] The Board called as witnesses David Leach (Superintendent of Finance and Administration), Colleen Beanish (Special Education Consultant), and Thomas D’Amico (Superintendent of Schools).

[9] The evidence is that M.O. is at the severe end of the autism spectrum, being essentially non-verbal. He is a highly anxious child who is very sensitive to variations from his routine, and to stimuli and noise. He has difficulty being in a group setting. He and his brother began receiving IBI therapy at Portia in January of 2008. In the spring of 2009, M.O.’s parents decided to enrol him at St. Clare Catholic Elementary School (“St. Clare”), in the Board, for an afternoon assessment program starting September 2009, while keeping him at Portia in the mornings. At this time, M.O. was four and a half years old.

[10] In June 2009, his parents made a request to the Board that M.O. be provided transportation from Portia to St. Clare after lunch each day once he began the assessment program in the fall. Correspondence between the Board and the applicant’s father establishes that the Board turned down the request on the basis that Portia was not a “licensed daycare facility”. There is a letter from the Board’s Principal, Special Education & Student Services, dated July 8, 2009, to this effect. M.O.’s father continued to press the issue, and advised the Board of his belief that the Board’s decision to deny transportation was contrary to the Code. On August 18, 2009, the Board’s Superintendent of Schools responsible for the St. Clare School, in consultation with its Deputy Director of Education, confirmed the Board’s decision and advised M.O.’s father accordingly.

[11] During the 2009-2010 school year, M.O. was driven in the mornings to Portia by his parents, arriving at about 9:00 a.m. He received therapy and instruction and was then served lunch. His mother picked him up after lunch and drove him home. The applicant was driven from his home to the assessment program at St. Clare School at about 1:00 p.m., and then home again at the end of the school day, in a Board-provided special transportation vehicle.

[12] At Portia, the applicant received IBI therapy involving one-on-one care and supervision with some group activities. At St. Clare, M.O. was in a class of six students, with one qualified special education teacher plus two educational assistants. The education services provided to M.O. are governed by his Individual Education Plan, as updated from time to time, which describes his areas of educational needs, goals and required accommodations.

[13] M.O.’s father described the services provided by Portia and the Board as complementary. There is communication between M.O.’s teacher and the personnel at Portia. M.O.’s parents are very satisfied with the special educational services being provided by the Board at St. Clare, and have no issue about whether they fulfill the Board’s duties to provide an appropriate education to him.

[14] Up to March 2010, the cost of M.O.’s IBI therapy was paid directly by his parents, as he was on the waiting list for funding from the Ministry of Health and Long-Term Care. Starting in March 2010, his parents received direct funding for those services from the Ministry. With direct funding, parents can choose which approved IBI service provider to use, and M.O.’s parents chose to keep him in Portia. Not all of the services provided by Portia are covered by this government funding. The noontime, during which M.O. is fed, changed and toileted in preparation for attending school in the afternoon, is not considered part of the IBI services and M.O.’s parents pay Portia directly for that portion of the day.

[15] Portia’s specialty is the provision of IBI services to children. Funding for IBI services is provided by the Ministry in one of two ways, the direct service model, or the direct funding model. The direct service model is when a child receives services from a government-funded agency such as, in Ottawa, the Children’s Hospital of Eastern Ontario (“CHEO”). The direct funding model is when a family receives funds from the government out of which they purchase the services from an approved IBI-provider. Portia’s clients either pay privately for the services, because they are on the waiting list for funding, or pay Portia under the direct funding model.

[16] The IBI services are delivered at Portia either from 9:00 a.m. to noon, or 1:00 p.m. to 4:00 p.m. Those periods of time are paid for by IBI funding, when a family has received those funds. Other times of the day, from 8:00 a.m to 9:00 a.m. and from noon to 1:00 p.m., are not paid for out of IBI funding, and are billed separately to the families. The director of Portia testified that most of the children at Portia are there for only half days. Many attend daycare for the other part of the day.

[17] Among the centres in Ottawa that provide IBI services are two that are very similar in their therapeutic approach, Portia and Spectrum Intervention Group (“Spectrum”). Spectrum has a daycare licence, and Portia does not. Kim Moore, the director of Portia, who was also involved in the establishment of Spectrum, testified that a daycare licence is not required for the type of services provided by the two centres.

[18] Ms. Moore also testified that, in many ways, the services provided by Portia and by a regular licensed daycare are similar. Children are taught social skills, and there is a mix of individual and group activities. IBI therapy involves much more one-to-one instruction, detailed breakdown of tasks and activities and a greater emphasis on communication, as children with autism often have deficits in this area.

[19] Two other parents testified about their experiences with Portia, and transportation to and from the Board’s schools. It is unnecessary to refer to most of this evidence. One of the families received Board transportation from Portia to school each day, during the 2007-8 and 2008-9 school years. The request for transportation was dealt with locally, at the school level, and does not appear to have involved the same persons involved in the applicant’s request.

[20] The applicant’s father gave evidence about his son’s circumstances. He described the severity of his disabilities, and the obstacles to finding a conventional caregiving arrangement for him. He testified that he has a supportive extended family, who are willing to assist in the caregiving for his other son, but that all of them find M.O. too challenging. He described his efforts to place his other son in a daycare for part of the day, while remaining at Portia for the other part. The only condition under which the daycare accepted his son was that he be accompanied by his own private therapist each day. The applicant’s father stated that he did not feel M.O. had progressed to the extent to be able to be in a conventional daycare even under this type of arrangement.

[21] In some of the documents, it appears that some of the Board personnel involved in considering the request for transportation were concerned about the distance between Portia and St. Clare. When the Board’s final decision was made, however, its rationale for denying the transportation requested was not related to the distance involved. At the hearing of this matter, the Board confirmed that its position that it is not obliged to provide transportation is not based on the length of the transportation route, or the fact that it crosses school boundaries.

[22] The Board provides transportation to more than half of its students. There are written documents governing its transportation services, including a Transportation Services Manual, and various written policies. There are also unwritten policies and practices.

[23] The Board’s transportation service has a component that provides transportation through the use of small vehicles such as vans and wheelchair accessible vehicles, to students with special needs.

[24] Several years ago, the Ministry of Education required school boards across the province to create transportation consortia to take over the provision of student transportation. The result of this was the creation of the Ottawa Student Transportation Authority (“OSTA”), a consortium established jointly by the Board and the Ottawa-Carleton District School Board as their agent for the provision of student transportation services. The OSTA provides transportation services to Board pupils in accordance with Board policies.

[25] The Tribunal heard evidence from Peter Szirtes, the representative of the private company contracted to provide small vehicle transportation for the Board. The transportation provided by this company is directed at children with special needs, who are driven in small vehicles in groups of up to six, between school and home or caregiver. Transportation routes are designed using software that assists in mapping out the most efficient routes possible, given the addresses of the children and their schools.

[26] The transportation costs charged to the Board under this contract depend on the distances travelled. The company also applies a minimum charge for each route. In 2009-2010, the minimum charge per day for a route travelled by a vehicle used to transport a student to or from a special education program was $24.29, or $4,712 for the school year. Up to six students may travel in the same vehicle on the same route.
[27] Mr. Szirtes described the route travelled by the van used to transport M.O. between home and school over the course of the 2009-2010 school year. For most of this year, there were two children on the van, including M.O. The van travelled a distance of about 19.6 km in total each day. From October 19, 2010 to February 5, 2010, there was a third child on the van, which travelled a distance during this period of about 31.4 km each day. Mr. Szirtes was asked to calculate the difference between the cost to the Board of providing transportation to the applicant from Portia to school, instead of from home to school.

[28] Based on the actual route travelled by the vehicle used for the applicant’s transportation over the 2009-2010 school year (which included one to two other students), the additional cost was estimated to be $22.35 per day for approximately six months of the school year, and $8.60 per day for the other approximately four months. There were 194 instructional school days in the 2009-2010 school year. These costs are maximum costs, based on the actual route. In reality, the costs may be less if the company’s planning results in a different, more efficient route for the transportation of these students. The effect of his evidence was that the added cost to the Board of transporting the applicant from Portia to his school each day, instead of from his home to his school each day, would be, at a maximum, approximately $3,300 over the course of the school year.

[29] The Board has organized the geographic area that it serves into a number of school boundaries. Generally, students are required to attend the school within their home school boundary. The Board’s transportation policy takes its boundaries into account. Generally, the Board provides transportation to students who live more than a given distance away from their school, within their school boundary. For elementary students, the Board will also allow a student the option of attending the school closest to their regular caregiver, and provide transportation accordingly. When this option is chosen, the caregiver’s location determines that student’s school boundary, and transportation will be provided within the limits of this boundary.

[30] The Board’s written transportation policies highlight at least three fundamental criteria for transportation: distance, transportation between home and school, and regularity. The policies are informed by overarching goals of student safety, and efficiency in the delivery of services and use of Board resources. Transportation is designed to assist students in either getting to school, or home from school. For younger students, the written policies provide that transportation may be to or from a regular caregiver instead of home. The Board does not provide transportation to and from other locations, such as parents’ work locations, lessons or medical appointments and requires that drop off and pick up locations be consistent from day to day and week to week. Further, the Board does not provide transportation outside of the boundaries of the school attended by the student.

[31] The Board’s written policies identify a sub-category of transportation titled “Special Needs Transportation”, which may differ from regular Board-provided transportation. One difference between special needs transportation and regular transportation, which is not referred to in the written material but described in the Board’s evidence, is the relaxation of the policy against cross-boundary transportation. Where an appropriate special education program is not available within a student’s home community, a special education student may attend school outside of their home school boundary. The Board states that its policy is to provide transportation for special education students regardless of school boundaries.

[32] Thomas D’Amico, a Superintendent of Schools, testified about the Board’s use of a daycare licence to confirm a caregiving location. As outlined above, the Board’s requirement that students attend the school in their community is modified for younger students who require caregiving. Elementary school students may attend a school based on their caregiver’s location, as opposed to their home. In such cases, that school becomes in effect the student’s “home school” and the student correspondingly loses the right to attend school based on their home address. In such cases, transportation is therefore based on providing transportation within the boundaries of the school that serves the caregiver’s location, not the student’s residence.

[33] The Board wishes to discourage parents from being able to choose a school for their child that is not in their home school boundary without a legitimate reason. Parents are not permitted to have their child placed in a school outside their home school boundary simply because of personal preference, regardless of whether the parents are prepared to assume the burden of finding transportation for their child. The Board’s policies and practices are therefore designed to prevent the “picking and choosing” of schools.

[34] To the extent that the Board permits the designation of a child’s school based on a caregiver’s location, the Board may require evidence that the caregiving situation is a bona fide one, and not one established for the purpose of thwarting the Board’s school boundary policies. Mr. D’Amico testified that where questions arise, the Board may request proof that a daycare is a licensed daycare facility, or a letter from the parents attesting, for instance, to the fact that a grandparent is providing care. The purpose of such requests is to confirm the legitimacy of the request to replace a home address with another address for the purpose of the child’s schooling.

[35] The requirement of proof of a daycare licence for transportation purposes is not part of any of the Board’s written policies. The written transportation policies allowing for transportation of younger students to be based on either home or caregiver do not refer to the requirement for a daycare licence. It also appears that, in practice, the Board does not require confirmation of a daycare licence as a precondition to all requests for transportation between school and a caregiver. Caregiving arrangements are varied, and can include care by a relative, in a private home, in a non-profit or for-profit facility. The evidence does not establish that the Board routinely requires proof of a daycare licence when a student is provided transportation between a caregiver and school within the student’s home school boundaries.

[36] Mr. D’Amico testified that confirmation of a daycare licence can be used by the Board to ensure that transportation requests are based on attendance at a genuine caregiving location, and not for the purpose of attending therapy. He gave as examples parents who have requested transportation to swimming lessons or physiotherapy. He stated that the Board receives all kinds of requests for transportation that are not feasible for the Board to implement. He testified that the Board does not provide transportation to and from “therapy” and that a daycare licence is a means of distinguishing requests for transportation to therapy appointments from those based on caregiving.

[37] Mr. D’Amico testified that the request by the applicant’s parents for transportation between Portia and school was denied on the basis that Portia is an institution for providing therapy whose primary purpose is not to provide daycare. As such, it did not meet the Board’s criteria for transportation. It is clear though, based on his evidence and the documents exchanged at the time, that the Board relied on the fact that Portia did not have a daycare licence, and took the position that its policies required that it have a daycare licence in order to qualify as a transportation location.

[38] Although the requirement for a daycare licence was described by Board personnel as a “policy”, it is clear that it is more in the nature of an unwritten practice that is applied in certain situations as Board officials deem necessary. The evidence of the Board’s Superintendent of Finance and Administration, David Leach, was illuminating on this point. Until a few years ago, Mr. Leach’s responsibilities included oversight over the Board’s transportation service, including the development of the Board’s Transportation Services Manuel. His role was to serve as the bridge between Board policy on transportation matters and the day-to-day operations of the transportation department, which was managed by a Manager of Transportation. With the creation of OSTA, Mr. Leach joined its board of directors, on which he still sits.

[39] Mr. Leach was not aware of a Board policy requiring daycare licences as a condition of transportation to a caregiver. When asked to comment on the applicant’s circumstances, his view was that the reason the request did not fit within the Board’s policies was that the applicant sought transportation beyond the boundaries of either his school or home. In his evidence, caregiving can be as varied as a grandparent, an aunt, an uncle, a non-profit or a for-profit daycare facility. Assuming that a request for transportation does not raise issues of cross-boundary transportation, the Board’s interest, in his view, is simply that the location be a valid caregiving situation used on a regular basis throughout the school year.

[40] Mr. Leach’s evidence was also to the effect that the reason the Board does not provide transportation to or from therapy, medical appointments, personal appointments and other non-caregiving locations, is that these are all variable services that the Board is not in a position to provide. The Board’s transportation depends on the certainty of regular drop-off and pick-up locations for its students.

[41] Even as a practice, the requirement of a daycare licence has not been consistently applied. On the evidence, it appears that before the issue of transportation for this applicant arose, the Board had been providing transportation from Portia to school for another special education student in an assessment program during the 2007-2008 and 2008-2009 school years.

[42] During the course of Mr. D’Amico’s evidence, counsel for the Board asked him to comment on the transportation policies or practices of other school boards, including the Ottawa-Carleton District School Board. I upheld an objection to this line of questioning, as it had not been disclosed before the hearing. I ruled that it would be unfair to permit the Board to introduce this evidence in the absence of any prior notice in the witness statements or the Response that it would be relying on it.

[43] Mr. D’Amico also testified about the Board’s consideration of the applicant’s request for transportation, the discussions amongst Board personnel and the basis of its decision. The Board was aware that Portia provided IBI therapy, and that the applicant attended the Board’s assessment program. It did not seek information about the nature of the services provided to the applicant at Portia. In considering the request for transportation, the Board’s officials did not review or ask for information about the applicant’s particular disabilities, or discuss the applicant’s particular needs and challenges. Mr. D’Amico stated that he did not seek information about the applicant’s particular profile because he viewed the issue as a “transportation” issue and not a “programming” issue. He stated that the applicant’s request was considered both from a systems perspective and an individual perspective.

[44] Some of the Board’s documents establish that it was concerned about setting a precedent if it granted the applicant’s request, and that it believed its decision was consistent with not granting requests for transportation arising out of specialized services such as tutoring and counselling. Mr. D’Amico also testified that the Board viewed the request for transportation as an attempt to get around Board policy, and receive transportation to therapy. When asked in cross-examination whether he had any knowledge about the barriers the applicant faced in attending regular daycare, he stated that the applicant had the option of receiving care at home and as well, that in a discussion with another Board official, he was given to understand that students with higher challenges than the applicant were able to attend regular daycare.

[45] Some of the other evidence I heard, relating to the Board’s transportation arrangements for other children, was not ultimately germane to my conclusions and I have found it unnecessary to describe it here.

SUBMISSIONS OF THE PARTIES

[46] The applicant submits that the applicant is entitled to receive transportation to or from his caregiving location in the same manner as other students with special needs in the Board. The requirement that his caregiver have a daycare licence discriminates against him because as a child with particularly severe needs, he cannot attend a regular licensed daycare. He is also unable to receive care through some of the informal arrangements that the Board recognizes as a caregiver, such as a relative. The denial of transportation to or from Portia fails to recognize the particular nature of his disability and results in a differential and adverse impact on him.

[47] The applicant submits that the Board failed in the procedural and substantive elements of the duty to accommodate. It failed to consider his individual situation, applying the daycare licence requirement without any consideration of his particular circumstances. Further, the Board failed in its substantive obligation to accommodate the applicant in that it refused to recognize that Portia provided a bona fide caregiving service that should entitle the applicant to transportation service.

[48] The applicant disagrees that the Board would not be able to accommodate him without undue hardship. In this respect, he disputes the Board’s estimates of the financial consequences of allowing his request for transportation.

[49] The Board’s primary position is that the service it provides to the applicant is education. The issue is therefore whether the applicant is being provided with the required accommodations in order for him to have access to education services. Based on the evidence, there is no discrimination because the Board is meeting the applicant’s educational needs and thereby accommodating his disability and meeting its obligations under the Code.

[50] Further, the Board states that it has accommodated the applicant’s disability in the manner in which it provides transportation to him. As with other special education students, the Board’s policies against cross-boundary transportation are not applied, and he is driven between home and school each day across a school boundary. He is provided door to door transportation in a small vehicle with only one or two other students. It submits that the particular transportation sought by the applicant may be the ideal or perfect accommodation, but is not a required accommodation.

[51] The Board submits that in all the circumstances, it has accommodated the applicant under the Code by providing him with the special education programs and services he is entitled to receive under the Education Act, and through the special needs transportation he receives.

[52] The Board also states that the service sought by the applicant, transportation to a therapy centre, is not a service it provides to any student. It submits that the applicant would not be attending Portia if it were not for the therapy service it provides. The Board submits that there is no evidence that the applicant has investigated other childcare options, and no evidence to support the applicant’s position that Portia is the best or only choice for him. In fact, it states, there is evidence that other children with autism attend Portia as well as daycare, or are enrolled in a special education program while receiving child care elsewhere.

[53] The Board stressed that the applicant’s parents made the choice to place him at Portia for IBI therapy. Having made that choice, the burden of providing transportation to or from Portia should be with his parents, and not with the Board.

[54] Because the Board does not provide any student, with or without special needs, with transportation to or from therapy, there is no differential treatment between the applicant and a comparator group. The applicant has not been denied a benefit granted to a comparator, based on an enumerated ground.

[55] On the issue of undue hardship, the Board submits that the financial cost of providing transportation to and/or from therapy would substantially affect the viability of the Board. It relied on the evidence as to its limited resources and its efforts to balance their budget every year. The Board referred to the fact that the Board has had to move money from other budget areas in order to meet the needs of special education and transportation, two areas in which its grants do not cover its actual costs.

[56] Counsel for the Board provided some hypotheses of the costs of transportation that would be incurred if all students with a disability attending school at the Board were to receive special needs transportation in order to attend therapy. As the definition of disability under the Code is broader than the definition of exceptional pupil under the Education Act, it suggests that the number of students who could qualify for such transportation could be up to 11,700, or 30% of its students, with a total cost of transportation of over $23 million. It bases its projection on a cost of $4,712.26 per student, the minimum cost under the STS contract for one transportation route. Even if only 1% of its students asked for one-way transportation to therapy, the cost to the Board could be $1.8 million, based on the evidence from the transportation contractor.

[57] The Board also submits that safety must be taken into account. It provides transportation to approximately 25,000 students. It cannot vary the transportation service it provides without jeopardizing safety.

ANALYSIS AND DECISION

[58] Section 1 of the Code guarantees equal treatment with respect to services, goods and facilities, without discrimination because of, among other things, disability. Under section 11 of the Code, the right to equal treatment is infringed where a requirement, qualification or factor that appears neutral results in unequal treatment on the basis of a prohibited ground of discrimination.

[59] There is no issue that the transportation the Board provides to its students is a “service” within the meaning of the Code. The Board stressed that student transportation is a “privilege” and not a “right” and that it is ancillary to its core function of providing education services. There can be no doubt, however, that having chosen to provide transportation to support the ability of students to access education, the Board has an obligation not to discriminate in the provision of that service: see Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 (CanLII).

[60] I also do not accept the Board’s submission that the question of whether it has discriminated against the applicant in the provision of transportation must be answered in the overall context of the special education the applicant is receiving. The Board may very well be providing educational services appropriate to the applicant’s needs as a child with autism. But if it provides transportation in a discriminatory manner, it surely cannot be an answer that other aspects of the Board’s services to the applicant are non-discriminatory. It could not reasonably be suggested that this would be a valid approach if the grounds of discriminatory transportation were, for example, race or sex. The fact that the applicant is receiving appropriate special education services as a result of his disabilities should not preclude him from advancing a claim that he is receiving unequal treatment in transportation.

[61] A consideration of whether the Board has discriminated against the applicant begins with the understanding of discrimination as based in a comparison of the disadvantages imposed on him, compared to others:
…a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 (CanLII)

[62] In order to establish discrimination, the applicant must show that the Board’s decision to deny him transportation based on the requirement of a daycare licence disadvantages him on the basis of his disability, as compared to other students who qualify for similar transportation.

[63] In Wynberg v. Ontario, 2006 CanLII 22919, the Ontario Court of Appeal discussed the choice of an appropriate comparator for the purpose of applying section 15(1) of the Charter of Rights and Freedoms, stating:

The comparison required is to a comparator group with whom the claimants share characteristics relevant to qualification for the benefit or burden in question, apart from the personal characteristic that is said to be the ground of the wrongful discrimination

[64] In this case, the applicant submits that the appropriate comparator group consists of children with autism whose disabilities are less severe and so are able to attend a regular day care facility. The Board takes the position that this comparator is inappropriate and too vague.

[65] I find the comparator group proposed by the applicant an appropriate one, although the applicant could also be compared to the broader group of non-autistic special education students who receive transportation services from the Board. Generally, and in the language of Wynberg, the applicant shares characteristics with these groups that are relevant to qualification for the benefit in question, transportation service. As special education students, all qualify for transportation under a different framework than other students. Because they often attend school outside their home boundary, the Board does not apply distance criteria as a pre-condition for receipt of transportation services.

[66] I disagree that the comparison made by the applicant is too vague. The applicant’s father described the difficulties in obtaining a placement at a regular, licensed daycare for the applicant’s brother, whose disabilities are less severe. He, as well as Ms. Moore, described the nature of the applicant’s needs. I also heard evidence about the applicant’s special education class, which is a segregated classroom with a 2:1 student to staff ratio.

[67] The evidence of the applicant satisfies me that as a child who is at the more severe end of the autism spectrum, and who has a high degree of communication, behavioural and social deficits, he faces greater barriers in accessing conventional licensed daycare facilities than children who are less disabled. It would be difficult to pinpoint with certainty how great a barrier exists, or how much greater the barrier for one child as opposed to another. But this difficulty does not detract from my conclusion that this applicant, because of the particular nature of his disability, is less likely to be able to access a licensed daycare than other children with less severe disabilities.

[68] As the applicant attended daily at Portia for IBI therapy, it was reasonable for the applicant’s parents to opt to extend his mornings there to bridge the time until his afternoon schooling began, and to view his time at Portia as caregiving as well as therapy.

[69] There is no doubt that the applicant receives daily IBI therapy from Portia. But it is clear that Portia also serves as the applicant’s caregiver for each morning that he is not at school. The applicant’s regular, daily attendance at Portia over the course of his school year is different in nature from some of the examples of “therapy” that the Board cited, such as treatment at a hospital for cancer, or swimming lessons or physiotherapy, and is more akin to the caregiving arrangements to or from which the Board regularly provides transportation.

[70] I find that in all respects relevant to the provision of transportation, but for the fact that it does not have a daycare licence, Portia is not distinguishable from caregivers to which the Board provides transportation.

[71] The Board submitted that the applicant provided no evidence that he had no choice but to attend Portia and absolutely could not go to a licensed daycare. In order to prove discrimination, it is not necessary for this applicant to show that it was impossible for him to meet the requirement imposed by the Board. I have found that the Board’s policy imposed a greater burden on the applicant than on students with less severe disabilities. Because of the particular nature of his disability, the applicant was excluded from a service that is available to other special education students for whom a licensed daycare option is more available.

[72] The Board also highlighted the fact that the applicant’s parents, because of their financial means, were able to place the applicant in privately-funded IBI therapy at Portia (which subsequently continued through funding from the Ministry). The Board’s position is that because the applicant’s parents chose IBI therapy over conventional daycare, they bear the burden of that choice. I accept that the applicant’s parents chose Portia for therapy purposes and not primarily for caregiving. I do not understand them to dispute this. But that does not diminish the reality that the applicant’s choices are restricted as a result of his disability. I accept the evidence of the applicant’s father on this point. Evidence to the effect that children at Portia attend daycare for part of their day does not contradict this evidence, absent any other information about their circumstances. The evidence of Mr. D’Amico that he was told by another Board official that some children with “greater challenges” than this applicant attended regular daycare also does not contradict this evidence, in the absence of any details.

[73] I am therefore satisfied that the Board’s requirement that transportation of special education students be provided to or from a licensed daycare facility imposed a disadvantage on the applicant, because of the nature of his disability, that was not shared by other special education students who qualified for transportation.

[74] I turn to consider whether the requirement is reasonable and bona fide, within the meaning of section 11. In this, I am guided by the decision of the Supreme Court of Canada in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 (CanLII) (“Grismer”). Adopting the approach taken by the Supreme Court, which has been applied by the Tribunal, I find that in order to establish a justification under this section, the respondent must show:
• that the requirement that student transportation requests be supported, in given circumstances, by a daycare licence, was adopted for a purpose or goal that was rationally connected to its provision of this service;
• that this requirement was adopted in an honest and good faith belief that it was necessary to the fulfilment of that purpose; and
• that this requirement is reasonably necessary to accomplish this purpose. To do so, the respondent must show that the applicant cannot be accommodated without undue hardship.

[75] In characterizing the issue this way, I recognize that at the hearing, the Board took the position that its decision was based not on the absence of a daycare licence as such, but because the applicant wishes to have transportation to or from a therapy centre. Given the evidence, however, and particularly the statement by Mr. D’Amico that if Portia obtained a daycare licence, there would be no obstacle to transportation, I find that the licence was in fact the basis of the Board’s decision.

[76] It is unnecessary for me to decide whether the requirement of a daycare licence as a precondition for transportation meets the first two elements of the Grismer criteria above. Even assuming that it does, I find it has not been established that the requirement is reasonably necessary in these circumstances to accomplish the Board’s valid goals and that the applicant cannot be accommodated without undue hardship.

[77] The imposition of the daycare licence requirement to the application is not reasonably necessary to support the Board’s valid policies around either cross-boundary schooling, or transportation based on home and caregiving. There are no issues about the applicant’s attendance at a school outside his home community, because of his need for a special education program. Further, the applicant’s transportation request does not present the “mischief” addressed in Mr. Leach’s evidence about transportation to therapy and other similar appointments, as it involves a consistent location over the course of the school year. As I have indicated, but for the daycare licence, it is hard to distinguish the Portia as a location to or from which transportation is sought from any other caregiving situation.

[78] Mr. D’Amico stated in his evidence that if Portia had a daycare licence, there would be no question about allowing the applicant’s transportation request. The evidence also established that Mr. D’Amico suggested to the applicant’s parents that transportation would be provided if the applicant moved to Spectrum, which holds a daycare licence. Spectrum is farther away from the applicant’s school than Portia. It can reasonably be assumed that the cost to the Board of providing transportation to or from Spectrum, for this applicant, would be at least as high as transportation to or from Portia.

[79] This evidence goes far in addressing the question of undue hardship. There is clearly nothing specific about providing the accommodation requested that would cause the Board undue hardship. The Board’s position on undue hardship is not based on the consequences of providing this applicant with the transportation requested, but on the consequences of broadening its transportation services to include transportation to or from therapy and other similar appointments.

[80] I am not convinced that the Board’s financial and data projections support the conclusion that it could not accommodate the applicant without undue hardship. Even if requiring the Board to provide the requested transportation to this applicant would result in similar transportation requests, the evidence of the Board does not assist in establishing the financial impact of those requests. The Board did not conduct any analysis that focused on the provision of transportation to or from Portia or a like service. There is no evidence before me that directly addresses the impact on the Board of providing special needs transportation to a caregiver that meets all the requirements of the Board’s transportation policies, but for a daycare licence.

[81] The Board’s projections also make a number of assumptions that undercut their relevance to the issue of undue hardship. First, they do not take into account the fact that the Board already provides special needs transportation to a large number of its special education students. Second, and this is acknowledged by the Board, they do not take into account that a transportation route can carry up to six students.

[82] Third, the Board’s projections are based on the assumption that the result of allowing the applicant’s request will be that transportation must be provided to any type of therapy or medical appointment. This case is not about transportation to therapy or medical appointments, however. It is about transportation to or from a location serving both a caregiving and therapeutic function that, in the regularity and consistency of its schedule and the co-ordination of its schedule to the applicant’s school day, mirrors a caregiving location to which the Board provides transportation, but for a daycare licence.

[83] The Board’s hypothetical is based on somewhere between 1% (390) and 30% (11,700) of its students qualifying for transportation in like circumstances to the applicant. It provided no evidence to suggest that there was any reasonable prospect that upwards of 390 of its students were in a similar situation to the applicant. In fact, in the Board’s documents, there is reference to a statement by one of the persons involved in the decision that granting the applicant’s request may result in a precedent that could apply to “as many as 50 students”.

[84] There are only 18 full-time places in the Board’s assessment program in which the applicant is enrolled (having the potential of up to 36 students in total). The Board refers to this program as a “systems” program, presumably because it is offered to students throughout the Board’s system without regard to school boundaries. These are the students most comparable to the applicant. But I have no evidence about whether any of these students regularly attends the same type of program as this applicant for the other part of their school day, and no evidence about the cost to the Board of providing transportation to any other students that may be similarly situated.

[85] The Board can validly rely on the cost of accommodation as a defence to its obligation to provide the requested transportation. However, impressionistic evidence of increased expense will not generally suffice: see Grismer, above. I find the evidence of the potential financial cost to the Board of accommodating this applicant to be impressionistic and not persuasive.

[86] In conclusion, I find that the Board discriminated against the applicant in imposing a requirement on him that resulted in adverse treatment based on his disability. As the accommodation of the applicant would not lead to undue hardship, the Board has failed to establish a justification for the unequal treatment.

[87] Having considered the evidence, I find that the Board failed in the substantive aspects of the duty to accommodate. On balance, I also find that it failed in the procedural obligations of the duty to accommodate. Although many individuals were involved in discussion and consideration of the applicant’s request for transportation, I am not satisfied that any of these discussions were aimed at reviewing the applicant’s individual needs, and whether the Board could accommodate those needs. Rather, the evidence suggests that various levels of the Board’s hierarchy became involved in reviewing the initial decision to deny transportation, but all simply reiterated the position that the Board’s transportation policy did not provide for pick-up or drop off to Portia as it was not a licensed daycare facility.

[88] The evidence establishes that the Board was concerned about the precedent that would be set if it agreed to the applicant’s transportation request. This appears to have been the primary factor in its decision not to make an exception to its policy for the applicant. There is no evidence that the Board sought any more information from the applicant’s parents about the applicant’s particular circumstances, his needs and his placement at Portia. The applicant’s father did set out some of this in correspondence with the Board. But other information would have assisted the Board in making its decision, such as further information about the applicant’s program at Portia, the regularity and consistency of his attendance there, and the reasons the applicant’s disability prevented or impeded him from attendance at a licensed daycare facility. As I have indicated, no further information was sought.

REMEDIES

[89] It remains for me to consider the appropriate remedy for the violation of the applicant’s rights under the Code.

[90] The applicant’s parents have asked for an award of $50,000 as monetary compensation for the injury to the applicant’s dignity, feelings and self-respect. The Board submits, in the event a breach of the Code is established, that an award of $2,000 is more appropriate. The applicant did not give evidence, and is likely not able to on his own behalf. His father gave evidence about the events, and their impact on the family, particularly the applicant’s mother who had the responsibility of driving the applicant from Portia each day.

[91] There was little evidence about the impact of these events on the applicant directly. But I accept that there was some impact. Rather than being taken directly to school from Portia each day, he was compelled to go home and wait for Board transportation to take him to school. In effect, he had two journeys to make each day in order to reach school.

[92] In recent cases finding discrimination in the provision of services on the ground of disability, the Tribunal has awarded monetary compensation ranging from $300 to $12,500: Donnelly v. Spinz Coin Laundries, 2009 HRTO 754 (CanLII); Patterson v. Gowan Property Management, 2009 HRTO 2025 (CanLII); Schussler v. 1709043 Ontario, 2009 HRTO 2194 (CanLII); Wozenilek v. 7-Eleven Canada, 2009 HRTO 407 (CanLII); B.M. v. Cambridge (City), 2010 HRTO 1104 (CanLII).

[93] I find that $10,000 is an appropriate amount to compensate the applicant for the intrinsic value of the infringement of his rights. In arriving at this award, I have regard to the awards given in the above cases, the similarities and differences between those cases and this one, the particular vulnerability of the applicant, the continuing nature of the discrimination, and the nature of the events. With respect to this last factor, this is not a case where the applicant was refused a service entirely, or was unable to pursue an opportunity as a result of the discrimination. Despite the denial of the transportation service requested, the applicant has received appropriate educational services from the Board. He has also received transportation between his home and school daily. This is also not a case where the applicant was subjected to demeaning or vexatious conduct, such as have been present in employment-related cases where the Tribunal has issued greater awards of damages.

[94] The applicant also seeks compensation for the costs to his family of providing him with the transportation denied by the Board. He quantifies this cost as $0.48 km multiplied by 66 km per day, over 194 school days. He also seeks a $75 “driver fee” for each of those 194 days.

[95] I am unable to find the “driver fee” a compensable claim. There was no evidence that the applicant’s family suffered a loss equivalent to $75 each day as a result of having to drive him from Portia to home.

[96] I accept that the applicant can claim out-of-pocket expenses for the wear and tear to the family vehicle in having to drive him each day. Although the Board states that the rate of $0.48 per km is “high”, it has not suggested why an alternative is more appropriate. I accept the applicant’s claim on the basis of $0.48 per km. On the evidence, I find that the transportation for which the applicant may be compensated is the daily return distance driven between Portia and his home. This return trip would have been unnecessary if the Board had provided transportation taking the applicant from Portia to his school each day. The evidence did not establish a figure for that distance. However, it should be taken into account that the Board did provide transportation between the applicant’s home and school. I leave it to the parties to work out the precise sum owing to the applicant in this category. I will remain seized of the exact quantification failing their agreement.

[97] I decline to make the order requested by the applicant that the Board be directed to provide transportation to and/or from Portia for as long as the applicant requires its services and is enrolled in the Special Assessment Program of the Board through to Grade 6. I have found that the applicant’s attendance at Portia is not distinguishable in any way relevant to the Board’s legitimate transportation goals from a regular licensed daycare facility, but it cannot be anticipated what other arrangements may be entered into in the future. It follows from this decision that if the applicant’s caregiving arrangements for the next school year are the same as those in 2009-2010, the Board must provide transportation from Portia to school without regard for whether Portia has a daycare licence.

[98] I decline to order, as requested, that the definition of “caregiver” as used in the policies and practices of the Board relating to transportation be deemed to include “the provision of specialized caregiving services provided to children with autism spectrum disorder, regardless of whether those services may or may not include the provision of “therapy””. I find the request too broad. My findings have been based on the Board’s requirement of a daycare licence as a precondition for transportation, and the discrimination that resulted from that. I therefore find it appropriate to direct that the Board’s transportation policies and practices be amended as necessary so that student transportation is not denied to or from a location that provides caregiving on the basis that it does not have a daycare licence.

[99] Given the Board’s failure to fulfill the procedural component of the duty to accommodate under the Code, it is appropriate to consider a remedy directed at future compliance with this obligation. I therefore order the Board to institute a transportation policy or procedure by which special needs students can request that their particular caregiving arrangements be reviewed on an individualized basis to determine whether an accommodation is required to fully comply with the provisions of the Code.

[100] The applicant requests that the Board be directed to retain, at its own expense, a qualified consultant approved by the Tribunal to assist in the development of an anti-discrimination policy with particular emphasis on the duty to accommodate students with disabilities. I do not see the need for this type of order. The evidence is that the Board has recently undertaken revisions and updates to its Antidiscrimination and Ethnocultural Equity Policy. The new policy is to be entitled “Equity and Inclusive Education.” The Board’s past and new policy covers all aspects of the Board’s operations, including transportation. I am satisfied that the Board has the capacity and resources to incorporate the principles from this decision into its decision-making in applying the new policy.

[101] The applicant sought legal costs on a full indemnity basis to “ensure that [he] is placed in the same position that [he] would have been had the discriminatory acts not taken place.” As this had not been raised earlier in the proceeding, the Board requested that it be permitted an opportunity following the hearing to respond to the submissions on costs. The applicant asked to be able to provide full submissions on this issue as well. In the circumstances, I will allow both parties an opportunity to make written submissions on the issue of whether I can or ought to grant the request for legal costs.

[102] In the result, I order the following:

a. That the Board pay the applicant monetary compensation in the amount of $10,000.
b. That the Board pay the applicant compensation in the amount of $0.48 per km, for the return distance between his home and the Portia Learning Centre, multiplied by 194 days. I will remain seized in the event if a dispute about the exact quantification of this part of my order.
c. Pre-judgment and post-judgment interest on the monetary awards. Post-judgment interest is to run starting 30 days from the date of this decision. Pre-judgment interest is to be calculated on the sum of $10,000 starting from August 31, 2009, and on the other sum payable starting from the mid-point of the 2009-2010 school year.
d. The parties may provide submissions on the order for costs requested by the applicant, within 30 days from the date of this Decision.
Dated at Toronto this 26th day of August, 2010.

 

“Signed by”
____________________________________
Sherry Liang
Vice-chair