2017 QCCA 286, 2017 QCCA 286

Translated from the original French Commission des droits de la personne et des droits de la jeunesse (

X) c. Commission scolaire de Montréal 2017 QCCA 286 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-024355-141 (500-53-000335-115) DATE: February 24, 2017 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. MARIE-FRANCE BICH, J.A. DOMINIQUE BÉLANGER, J.A. COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA JEUNESSE APPELLANT – Plaintiff v.

LA COMMISSION SCOLAIRE DE MONTRÉAL RESPONDENT – Defendant JUDGMENT [ 1 ] On March 17, 2014, in a decision written by the Honourable Michèle Pauzé, the Human Rights Tribunal (“Tribunal”) found that X was discriminated against based on his handicap during the first two years of secondary school (2006-2007 and 2007-2008) because the Commission scolaire de Montréal (“School Board”) failed to provide the accommodations required for his education in a regular school. The Tribunal ordered the School Board to pay X [1] $7,500 in moral damages but refused to award such damages to his mother.

The Tribunal also found that the School Board did not act in a discriminatory manner when, in June of 2008, it decided that X would continue his education at a specialized school rather than the regular school he had attended thus far.

The Commission des droits de la personne et des droits de la jeunesse (“CDPDJ”) appeals from the latter portion of the Tribunal’s decision, and from the Tribunal’s refusal to award damages to the mother for the moral prejudice she suffered as a result of the discriminatory treatment her son received during the 2006-2007 and 2007-2008 school years. [ 2 ] This appeal calls into question the principles applicable to the right to education of handicapped children, as established in two judgments of this Court [2] that the CDPDJ deemed irreconcilable. *** [ 3 ] X was born with Down syndrome on [...] 1992.

He has a moderate intellectual disability. In accordance with his parents’ wishes, he was initially registered at a regular day care to encourage his socialization. He stayed there for one year before being directed to a school with specialized pre-kindergarten and kindergarten. Finding that the school’s environment did not suit her son, the mother decided to have her son educated in a regular classroom. He attended his neighbourhood primary school for seven years. The child was kept in regular classes for the first and second years of secondary school (2006-2007 and 2007-2008).

At the end of his second year of secondary school, the School Board decided to direct him toward specialized classes. [ 4 ] Being of the view that X had been discriminated against during his first and second years of secondary school and as a result of the decision to transfer him to a specialized class for his third year of secondary school, the CDPDJ filed proceedings before the Tribunal. [ 5 ] The School Board argued that it had done all that it could to welcome X in the first and second year of secondary school and to support his education by raising the awareness of its teaching staff and adding specialists.

With regard to his placement in his third year of secondary school, it claims that it considered possible adaptations to the program and concluded that it would have required the constant presence of a teacher assigned exclusively to X, which represented an undue hardship for the school and would not necessarily have been in X’s best interest. *** [ 6 ] The Tribunal concluded that X had been subject to discrimination based on his handicap during his first and second years of secondary school because the decision to integrate the child into regular classes included an obligation to develop an appropriate

framework to allow him to truly benefit from that integration. The Tribunal determined that the School Board failed to fulfill its obligation and did not provide the support and accommodations X would have needed to facilitate his education and integration into the classroom. It dismissed the undue hardship defence because it was of the view that the proper time to determine whether a school has the necessary resources to integrate a child into a regular classroom effectively is when the school board determines the student’s placement.

If a school board decides to integrate a child into a regular classroom, it cannot later invoke undue hardship to free itself from the obligation it accepted or to justify fulfilling it only partially.

However, the Tribunal was of the view that the decision to direct X toward special education for his third year of secondary school was reasonable and in his best interests, with the result that his placement was not discriminatory. *** Issues [ 7 ] The CDPDJ argues that the Tribunal committed three determinative errors: (1) in asserting that it was incumbent upon the CDPDJ to show that the School Board’s decisions were not in the best interests of the child; (2) in finding that the decision to redirect X toward a specialized classroom was not discriminatory despite non-compliance with the three-step process imposed in Potvin ; and (3) in refusing to award damages to X’s mother.

The applicable standard [ 8 ] The question of the standard of review applicable to an appeal before the Court of Appeal from a decision of the Human Rights Tribunal, a specialized administrative tribunal, was recently decided in Mouvement laïque québécois v. Saguenay (City) . [3] It is now well established that judicial review standards apply to appeals from decisions of the Human Rights Tribunal.

Deference is owed when the Tribunal acts within its specialized area of expertise, interprets the Charter of human rights and freedoms (the “ Charter ”) [4] and applies the legislative provisions to the facts to decide whether there was discrimination. [5] [ 9 ] The decision rendered by the Tribunal is at the heart of its jurisdiction, and the standard of reasonableness therefore applies to the three issues. *** 1- Did the Tribunal err in determining that it was incumbent upon the CDPDJ to show that the decisions of the School Board were not in the best interests of the child? [ 10 ] The CDPDJ is of the view that the Tribunal erred by assigning it the burden of proving that directing the child toward a specialized class was not in the best interests of the child.

It argues that this Court rendered two irreconcilable judgments on the subject, Potvin 1 and Potvin 2 . [ 11 ] According to the CDPDJ, in Potvin 1 , while acknowledging that integration into the regular classroom is not a mandatory legal norm, this Court nevertheless stated that integration into regular classrooms must be prioritized since it is [ translation ] “a goal to be met”, [ translation ] “a general equality norm” and [ translation ] “the approach school boards should privilege in adapting educational services”. [6] [ 12 ] The CDPDJ argues that, in that judgment, the Court imposed a process to ensure the right to substantive equality for handicapped persons in educational services.

Thus, in short, before determining the placement of a child living with a handicap, a school board must: (1) perform an individualized evaluation of the child’s educational and social needs and abilities, and (2) consider all reasonable accommodations in a regular classroom first. [7] The prima facie burden of proof incumbent upon the CDPDJ would be met by proving that one of these steps is absent. [ 13 ] Once it has applied this binding process, a school board may decide to direct a child to a specialized classroom if it shows that it is not in that child’s best interests to attend a regular class despite the accommodations considered, or if integration into a regular classroom represents an undue hardship.

Thus, the burden of showing that directing a child toward a regular classroom is not in the best interests of that child or represents an undue hardship rests with the school board. [ 14 ] The CDPDJ added that, in Potvin 2 , [8] this Court steered away from the teachings of Potvin 1 and this reversal created legal uncertainty as to the applicable legal rule and the burden of proof in matters respecting the right to equality in educational services.

In its view, determining the best interests of the child depends on a prior evaluation of that child’s abilities, needs and an identification of accommodation measures. If a school board does not comply with its obligation to assess and identify accommodation measures, it becomes impossible to determine if the interests of the child are best served by a regular or a specialized classroom.

In this context, imposing the burden of proving that the School Board’s decision was not in the best interest of the child leads to impasse and absurdity. [ 15 ] The School Board submits that the two Court of Appeal judgments are not irreconcilable and that the Tribunal directed itself correctly in verifying the reasonableness of the School Board’s decision and being careful not to substitute its own opinion for the School Board’s. Analysis [ 16 ] Admittedly, the Tribunal imposed the burden of demonstrating that the School Board’s decision was not in the best interests of the handicapped child on the CDPDJ.

It reconciled the judgments in Potvin 1 and Potvin 2 and identified certain principles: [ translation ]

[161] On this subject, the Court of Appeal also indicated that the Commission’s burden of proof includes showing that the School Board’s decisions are not in the student’s best interests. [162] The following principles emerge from these judgments: (

a) the integration of handicapped students into regular classrooms is the norm of general application but is not mandatory because, depending on the case, it may be beneficial or disadvantageous to these students; (

b) the best interests of the child take precedence over this norm of general application and also over the wishes of the child’s parents; (

c) the process by which a school board determines the placement of a handicapped student consists of several steps and includes an individualized evaluation of that student’s strengths and weaknesses, as well as an evaluation of the benefits he or she might receive from being integrated into a regular classroom; (

d) when a school board finds that integration into a regular classroom would be beneficial to the handicapped student, it must, barring undue hardship or significant interference with the interests of the other students, integrate the student by providing the accommodations his or her needs require; (

e) it is incumbent upon the Commission to demonstrate, on a balance of probabilities, the existence of discrimination when a handicapped student is placed. [163] It is in light of these principles that the Tribunal will analyze the CSDM’s decisions concerning X. [Citations omitted] [ 17 ] The Tribunal properly directed itself with respect to the burden of proof and the applicable law. This finding is not only reasonable but also correct. There is no inconsistency between the two judgments rendered by this Court in Potvin .

Here is why. [ 18 ] It should first be noted that the purpose of determining who bears the burden of proof is twofold. When the balance of probabilities favours neither of the opposing positions, it is important to know which party is required to meet the burden, as this is the party who will lose. The second purpose relates to the order in which the witnesses are heard. [ 19 ] The question submitted by the CDPDJ to the Court is of a different kind.

What it would like is confirmation that if a school board fails to strictly comply with the steps described in Potvin 1 (individualized evaluation and assessment of the expected benefits of a regular classroom), it becomes impossible to determine the best interests of the child, in which case integration into a regular classroom should be preferred. [ 20 ] The CDPDJ has improperly framed the question. [ 21 ] Let us recall that in Eaton , [9] the Supreme Court established that there was no mandatory legal standard whereby integration into a regular classroom serves the best interests of the child, a principle this Court reiterated in Potvin 1 [10] and Potvin 2 . [11] Furthermore, there is no presumption to this effect that a school board must first rebut before concluding that a student should be placed in a specialized school. [ 22 ] It is useful to revisit the legislative and jurisprudential developments on the subject. [ 23 ] Quebec enacted a new Education Act [12] in 1988 and gave school boards the responsibility of establishing accommodation measures favouring the integration of handicapped students or those with social maladjustments or learning disabilities into regular classrooms. [13] In 1997, other legislative amendments were enacted, which included subjecting school boards to the obligation of adopting policies to integrate handicapped students or those with social maladjustments or learning disabilities. [14] These amendments led the courts to decide that, subject to the best interests of the child, integration into regular classrooms is the norm of general application. [15] [ 24 ] In Eaton , the Supreme Court acknowledged that discrimination based on the prohibited ground of disability differs from other grounds enumerated in s. 15 of the Canadian Charter of Rights and Freedoms , analogous to those in s. 10 of the Quebec Charter , in that the analysis will depend on the context and each individual’s own characteristics.

That is why it found that while integration may be the norm of general application, a presumption in favour of regular education would not be of benefit to all students: 69. It follows that disability, as a prohibited ground, differs from other enumerated grounds such as race or sex because there is no individual variation with respect to these grounds. However, with respect to disability, this ground means vastly different things depending upon the individual and the context.

This produces, among other things, the “difference dilemma” referred to by the interveners whereby segregation can be both protective of equality and violative of equality depending upon the person and the state of disability. In some cases, special education is a necessary adaptation of the mainstream world which enables some disabled pupils access to the learning environment they need in order to have an equal opportunity in education.

While integration should be recognized as the norm of general application because of the benefits it generally provides, a presumption in favour of integrated schooling would work to the disadvantage of pupils who require special education in order to achieve equality . Schools focussed on the needs of the blind or deaf and special education for students with learning disabilities indicate the positive aspects of segregated education placement.

Integration can be either a benefit or a burden depending on whether the individual can profit from the advantages that integration provides. [16] [Emphasis added] [ 25 ] It is in this context, and in the wake of the amendments to the Education Act , that this Court rendered Potvin 1 , in which it reiterated that while integrating a handicapped child into a regular classroom may be the norm of general application, [17] there is no presumption that this integration is in the best interests of the child:

[ translation ] [49] In the Court’s view, the legislative amendments did not transform the norm of general application of integrated classrooms into a mandatory legal standard. The legislature has made integration a goal to be met, subject to certain conditions set out in sections 234 and 235 E.A. , the main condition being an evaluation of the needs and abilities of the child showing that integration would facilitate his or her learning and social integration.

In fact, the legislator places the best interests of the child at the heart of the process. [50] In addition, ss. 234 and 235 of the E.A . as well as the policies of the Ministère de l’Éducation and the appellant follow the teachings of the Supreme Court in Eaton . Integrating a handicapped child into a regular classroom is the norm of general application, but it is not a presumption.

The arrangement chosen (regular or specialized classroom) must be in the best interests of the child. [51] Transforming the norm of general application of integrated classrooms into a mandatory legal standard would be akin to establishing a presumption that integration will serve the best interests of the child, barring evidence to the contrary.

That is not the intended purpose of the Quebec Charter or the E.A . [52] By imposing this presumption, the Court erred in deciding that Joël’s integration did actually have to be attempted before it could be determined that he would be directed toward specialized classes. [53] The principles stated in Chauveau and St-Jean-sur-Richelieu are therefore largely applicable, except regarding the standard of equality guaranteed under s. 40 of the Quebec Charter , discussed in Chauveau as follows: [ translation ] The recognition of the full and equal right to free public education guaranteed under s. 40 of the Charter must be considered in this context.

The standard of equality guaranteed to handicapped students therefore should not be integration in a regular classroom but rather adaptation of educational services according to planned accommodations, that is, the integration of students into regular classrooms or into specialized classrooms or schools. [Emphasis in original] [Citations omitted] [18] [ 26 ] This is also the context in which this Court established a sort of guide applicable to decisions respecting handicapped students or those with maladjustments or learning disabilities, indicating the steps a school board should follow prior to making a decision about a student: [ translation ] [54] The amendments to ss. 234 and 235 E.A . indicate that the legislature now favours integrated classrooms but on certain conditions. [55] The Tribunal erred in ruling that integration into a regular classroom is a mandatory legal standard; the purpose of assessing a handicapped child being not to determine how to integrate that child into a regular classroom but rather to determine whether this integration is in his or her best interests. [56] The Court is of the opinion that to make such a decision in a way that complies with the E.A ., the Quebec Charter and the teachings of the Supreme Court, a school board like the appellant must take the following steps: i.

The child must undergo an evaluation to determine his or her needs and the scope of his or her abilities. This assessment must be subjective, that is, adapted to the handicap and the personal characteristics of the child to reveal a true picture of his or her strengths as well as weaknesses. It is noteworthy that this individualized evaluation must concern both the learning and social abilities of the student; ii.

Once this portrait of the child has been established, the school board must consider whether, according to the child’s strengths and limitations, his or her learning or social integration would be facilitated in a regular classroom. At this stage, the school board must develop an intervention plan proposing any reasonable accommodations that would allow the child’s integration into a regular classroom, always with the aim of ensuring that integration is in the child’s interests. Thus, the general rule of integration is respected, as integration is sought within the limits of the best interests of the child; iii.

The school board may then reach one of two conclusions: (

a) The first is that, despite the necessary accommodations, the evaluation has not shown that it would be in the child’s best interests to be integrated into a regular classroom. In that case, the child will be directed to a specialized classroom. He or she will join a regular group for certain activities if it is in his or her best interests. (

b) The second is that the child’s learning and social development will be facilitated in a regular classroom thanks to the proposed accommodations. In that case, the school board will be obligated to integrate the child into a regular classroom on a full-time or part-time basis by providing him or her with any necessary accommodations, subject to the following.

If the school board shows that the necessary accommodations to integrate the student into a regular classroom would cause unreasonable hardship or significant interference with the best interests of other children, it may place the child in a full-time specialized class. [57] Thus, the best interests of the child remain the central focus of the analysis, and integration is the norm of general application, applied only when the best interests of the child require it and when it creates no unreasonable hardship for either the school or the other students. [19] [ 27 ] In this context, it does not appear that the Court intended to set up a strict, rigid, and binding process compelling a school board

to follow it to the letter or be prevented from demonstrating that its decision was in the best interests of the child. [ 28 ] Of course, if a school board entirely neglects to evaluate a child and to take the measures that could be taken, this omission might be considered a prima facie demonstration of discrimination. [ 29 ] However, and this is in fact the conclusion this Court reached in Potvin 2 , the onus is on the party invoking the Charter and statutory breaches.

In Potvin 2 , the sequel to Potvin 1 , the Court, per Rochette J.A., established that the party who alleges discrimination must prove it. [20] Furthermore, Rochette J.A. highlighted his disagreement with the assertion that the best interests of the child are necessarily served by integration into a regular classroom and that individualized evaluation must eliminate the obstacles to integration, as this would be tantamount to reintroducing the “mandatory legal standard”.

Rochette J.A. strongly disagreed with the submission that whenever a student is not integrated into a regular classroom, it falls to the school board to prove that this decision was made in the best interests of the child: [ translation ] [49] We have come full circle. The mandatory legal standard for integration into a regular classroom is back, but in a clever way.

Whenever a student with a handicap is not integrated into a regular classroom, it falls to the school board, in the event that the decision is contested, to prove that it is not in the best interests of the child to be integrated into a regular classroom. [50] Respectfully, once again, I strongly disagree with this submission. [51] It was incumbent upon the respondent Commission to prove discrimination on a balance of probabilities. Discrimination may arise from the fact that the child was not dealt with according to his merits, but as a result of his handicap.

It must be verified whether the differential treatment created an injustice for the student. It must also be determined whether the appellant considered and opted for accommodations that would have allowed the student to receive adapted services in a regular classroom (the norm of general application). Such measures are usually likely to respect the right to equality in receiving educational services.

Overall, it must be determined whether the accommodations suggested were reasonable and in the best interests of the child. [52] In the wake of this Court’s teachings in Commission scolaire des Phares 1 , it must be considered whether the student was given an individualized evaluation to determine his needs and abilities, whether the appellant asked itself if the student’s learning and social inclusion would be facilitated in a regular classroom, and whether the appellant devised an intervention plan that included reasonable accommodations likely to allow the child’s integration into a regular classroom.

The right decision will be that which is in the best interests of the child. [53] In the event that the child’s learning and social development would be facilitated in a regular classroom, by virtue of the accommodations proposed, the school board then has a duty to integrate the child into a regular classroom on a full-time or a part-time basis by providing the tools and accommodations he needs. [Citation omitted] [ 30 ] The CDPDJ’s argument, ably submitted before us here and presented slightly differently, would lead to a re-establishment of this mandatory norm of integration.

In both Potvin judgments, the Court stated that disability-based discrimination in the education system must be viewed through the lens of an individual evaluation which is aimed at determining not how to integrate a child into a regular classroom but rather whether such integration is in the best interests of the child. [ 31 ] In Potvin 2 , the Court in no way called these principles into question.

It merely favoured a flexible approach, stating that the steps described in Potvin 1 do not constitute a straightjacket and that the processes of evaluation and placement are not watertight: [ translation ] [131] It is my understanding that the second step set out in our 2006 judgment does not constitute a straightjacket. The evaluation and placement processes are not watertight.

The decision-making process at each step can be merged with broader considerations, depending on the circumstances and the subject being assessed. [21] [ 32 ] The CDPDJ has not shown that it would be appropriate to revisit the position expressed by the Court. The flexible case-by-case approach is certainly preferable when evaluating the best interests of a child, whether that child is handicapped or has social maladjustments or learning disabilities. [ 33 ] In Potvin 1 , the Court determined the steps to be taken by school boards in applying the Education Act .

In the event of a complaint, the Tribunal must examine the process followed by a school board, including the adequacy of the individualized evaluations, and must verify that the decision was made in the best interests of the child and in accordance with his or her rights. There is no presumption in favour of or against the merit of the school board’s decision.

There is also no presumption that directing the handicapped student toward a specialized classroom is not in the best interests of that student. [ 34 ] Here, therefore, it was incumbent upon the CDPDJ to show that the school board’s decision to direct the student toward a specialized classroom starting in his third year of secondary school did not comply with the Education Act or Charter and was not made in the best interests of the child. [ 35 ] The Tribunal therefore properly directed itself in recognizing the applicable principles and it fell to the Tribunal to verify whether the School Board respected the law by performing a sufficient evaluation of the child, specifically his abilities and needs, and whether it developed an intervention plan allowing integration in a regular classroom.

In short, it fell to the Tribunal to assess the seriousness and sufficiency of the process followed by the School Board, and that is what it did. 2- Did the Tribunal render an unreasonable decision in finding that the decision to redirect was not discriminatory?

[ 36 ] The CDPDJ argues that before the Tribunal it showed that the School Board made its decision without having appropriately assessed X’s situation or considered the possibility of implementing reasonable accommodations. [ 37 ] Before moving on to our analysis of the decision to direct X toward a specialized classroom, it is useful to recall that the Tribunal concluded that, for the first two years of secondary school, the School Board failed to provide the child with the accommodations required for his integration.

These findings are not called into question before us and should be taken as proved. [ 38 ] As for the decision to redirect, the Tribunal stated that its role was to examine the compliance and reasonableness of the School Board’s process: [ translation ] [190] In this respect, it appears from the evidence that the decision to direct X toward a specialized classroom was not arbitrary. Rather, it was the result of reflection on the part of various members of CSDM personnel regarding his needs and abilities.

A committee of three commissioners studied the question by, inter alia , meeting with multiple parties before making its recommendations. X’s parents were also given the chance to explain their viewpoint to this committee. [191] This committee, whose conclusions and recommendations were approved by the Council of Commissioners, noted that the best interests of the child must be the central focus of any decision in his regard and it deemed that the best service that could be offered to X must include pedagogical learning.

The committee observed that the Sophie-Barat School is not equipped to provide X with what he needs, which creates a deficit with respect to his learning potential. It was convinced that the Irénée-Lussier School could provide him with the educational services that would allow him to achieve his full potential. It also noted that X is entering the second cycle of secondary school with older students, which could result in his being left out. [192] The main factor that led to directing X toward a specialized classroom arises from his inability to benefit from the teaching offered in a regular classroom.

Academically, the limitations arising from his handicap made his integration into a regular classroom contrived. Even with the help of appropriate human and material resources, the regular program would be beyond him, owing to its complexity.

The nature of X’s handicap was now at a point where he was isolated in the regular classroom, whatever accommodations were provided. [193] In a context where the CSDM had to analyze the best interests of X, the Tribunal is of the view that its decision concerning the third year of secondary school was not unreasonable. [194] In its brief, the Commission argued that the elements that form an intrinsic part of X’s handicap, like his inability to assimilate certain concepts in the regular program, cannot in and of themselves justify redirecting him toward a specialized classroom, due to the CSDM’s failure to comply with its obligation to integrate. [195] With respect, such a proposition does not take into consideration the main factor identified by case law, i.e., the best interests of the student.

From the moment the nature of the student’s handicap deprives that student of the ability to interact with the teacher and the other students regarding the subject matter being taught, the academic benefit he may get from integration into a regular classroom is diminished. The same applies to the gap that may grow over the years between the student’s socio-affective development and that of his peers, due to the nature of the handicap.

It is therefore not unreasonable for a school board to consider these factors in its placement decision. [196] Furthermore, the Commission’s position disregards the purpose of the evaluation that must precede a school board’s decision about a student’s placement. The previously cited provisions of the Education Act and the case law specifically require that the school board assess the student’s abilities and the benefit that the student could receive from being integrated in a regular classroom.

This evaluation necessarily takes into consideration the limitations arising from the handicap and the academic and social context that would prevail if the student was integrated in a regular classroom.

In this respect, as the Supreme Court of Canada emphasized in Eaton , the best interests of the child take precedence over the wishes of the parents. [197] The CSDM could not argue that the accommodations provided for X during the first two years of secondary school were insufficient or that the direct consequences of this insufficiency for X justified its decision to redirect him toward a specialized classroom for the third year of secondary school.

However, its decision for the third year of secondary school is based on the academic gap between the student and his peers, which has become too great for integration to be beneficial to him. [198] If he had been integrated into a regular classroom, X would have received instruction at a grade one or grade two level in a class teaching secondary II subject matter.

The Commission has not shown that it was unreasonable for the CSDM to consider that this was not in X’s best interests. [199] The Tribunal therefore concludes that X’s placement for his third year of secondary school was not discriminatory. [ 39 ] This decision by the Tribunal is not only reasonable, it is supported by the evidence adduced before it and reported in extenso . [22] [ 40 ] The main criticism of the CDPDJ is found in paragraph 49 of its brief: [ translation ] 49.

In first instance, the Tribunal erroneously set aside the analytical framework set out by the Court of Appeal in Potvin 1 and instead applied the approach favoured by Rochette J.A. in Potvin 2 whereby the decision-making process was not a mandatory “straightjacket”, and [ translation ] “the […] processes are not watertight. The decision-making process at each step can be merged with broader considerations, depending on the circumstances and the subject being assessed.”

[ 41 ] As we have seen, although adequate evaluations of the child’s personal situation must be carried out, a flexible approach must not be ruled out. [ 42 ] The Tribunal concluded that X was evaluated by the School Board and considered this assessment to be sufficient. [23] [ 43 ] In fact, the Tribunal benefitted from the testimony of several people who worked with X [24] and numerous documents that showed where the student stands with respect to his learning and socialization. [ 44 ] The principal’s decision to recommend that X be redirected toward a specialized school was made by a team, in accordance with X’s reality and after the principal went to visit the Irénée-Lussier School.

The remedial teacher Moreau testified that she followed X closely through his second year of secondary school (2007-2008). She was actively involved with the intervention plan, counselled the team in place, and gave her opinion on the placement. She visited the Irénée-Lussier School and is of the opinion that this environment could meet his needs, including his educational needs. For her, the decision to leave X in a regular classroom would have required the daily presence of a remedial teacher. Her report specifically identifies X’s issues, including his difficulty transposing elements of fiction into reality.

She describes X’s need to interact socially with young persons like himself. His difficulty maintaining focus during learning activities appears from the report. In mathematics, he has difficulty recognizing numbers, especially those between 10 and 20. As for writing, he can write short sentences using generic nouns. His academic level is grade 3 at best.

It would therefore be difficult to ensure his integration into a secondary III classroom with 14- or 15-year-old teenagers, as he would be 16 or 17 years old at that point. [ 45 ] The psychoeducator Levasseur also worked with X on, among other things, his relationships with his peers because the boy was in love. She also intervened because he was living in an imaginary world and it was necessary to bring him back to reality. She completed the [ translation ] “profile of support needs at school” to identify the frequency, duration, and type of support required.

She agreed with the suggested placement for the third year of secondary school, deeming that X would learn more in a specialized class and that his social life would be easier. [ 46 ] The report containing the recommendations of the committee created by the Council of Commissioners, which rules on the parents’ application for review, indicates that several persons were consulted, including the parents, and that the committee obtained a realistic portrait of X’s situation and the services he could receive both in regular and specialized classes.

The commissioners made X’s best interests the central focus of their decision: [ translation ] After listening to both parties and reading the documents filed, the members of the review committee, after deliberation, came to the following conclusions and recommendations: They reiterate the principle that the best interests of the child are the central focus of any decision; They note that, aside from two years in primary school, X, 16 years old, has attended an integrated classroom since he started going to school; They deem that the best service that can be offered X must include pedagogical learning; They note that the Sophie-Barat School is unable to provide X with what he needs, particularly with respect to pedagogical learning, which creates a learning deficit in relation to X’s learning potential; They are convinced that Irénée-Lussier School can provide X with the pedagogical services that would allow him to reach his full potential, which is the hope of X’s father in particular; They note the parents’ wish to allow their son to be socialized, but they distinguish socialization from social contact; Moreover, they note that X would go to class in the main building of the Sophie-Barat School over the next school year, where the older students (secondary III to V), which could result in X being left out; Also, they find that X changing schools next year (from the annex to the main building at the Sophie-Barat School) will provide a good opportunity to move him to the Irénée-Lussier School; For all these reasons, they uphold the decision of the Sophie-Barat School principal to direct X to the Irénée-Lussier School, a decision that was approved by the principals of the Réseau des établissements scolaires Nord; […] [ 47 ] From this decision, it appears that X’s needs and abilities have been properly considered and understood.

It is true that the School Board did not prepare an official intervention plan contemplating all the reasonable accommodations that could allow his integration into a regular classroom. It appears from the evidence, however, that resources much more significant than the constant presence of an attendant for handicapped students (AHS) would be necessary to meet X’s needs on a daily basis – something the CDPDJ’s expert did not contradict. The evidence is very clear that, academically speaking, there was too great a gap between X and the other children.

His mother states that after teaching him for the three years since he left the Sophie-Barat School, he is at a grade one level. The academic gap is so great between X and his classmates that his presence in the classroom cannot be a true integration.

In light of this gap and X’s academic difficulties, his socialization is not truly possible either. [ 48 ] What appears just as clearly is that both the school and the committee created to review the recommendation were well aware that, given the available resources, X’s very specific needs would be better met in a specialized classroom than in a regular second-cycle secondary classroom.

[ 49 ] In this context, the Tribunal’s decision is reasonable. 3- Did the Tribunal err in denying that parents may be entitled to damages when their handicapped child has suffered discrimination? [ 50 ] The CDPDJ asks the Court to rule on a question of principle, that is, whether parents are entitled to damages when their handicapped child has suffered discrimination. It argues that the mother’s right to dignity was compromised, such that there are two grounds of discrimination: civil status owing to her status as parent and the handicap.

She alleges intersectional discrimination. *** [ 51 ] Whether or not the parents of a child who has been a victim of discrimination based on a handicap may claim compensation for themselves has been the subject of some discussion. The Tribunal concluded that Potvin 2 had settled the issue and blocked any parental claims in this regard. [25] [ 52 ] This determination is unreasonable, given the state of the law. [ 53 ] Let us first emphasize that it is not impossible for parents themselves to be the victims of discriminatory treatment based on the handicap affecting their child.

That was the case, for example, in Commission des droits de la personne et des droits de la jeunesse c. Côté [26] where the parents themselves suffered discrimination (they had been refused access to a service offered to the public) based on the means (a dog) used to palliate the handicap of their autistic son (who was not with them). To paraphrase Potvin 2 (para. 182, in fine ), it could be said that in Côté , the parents received differential treatment based on their son’s handicap.

That is not the case with the mother here, who claims instead as an indirect victim and who alleges that she suffers personally from the consequences of a decision made regarding her son. [ 54 ] In Potvin 2 , the Court wrote the following about the prejudice (moral in that case) suffered by the parents of a child who had been treated in a discriminatory manner (although we hasten to add that the Court found there was no discrimination in that case and thus the following excerpt is obiter ): [ translation ] [182] Joël’s parents were not victims of discrimination because of the appellant’s decisions.

Only the appellant was or was not a victim of exclusion. In other words, Joël’s parents did not receive differential treatment because of their son’s Down syndrome. [183] For its part, s. 4 concerns “interferences with the fundamental attributes of a human being which violate the respect to which every person is entitled simply because he or she is a human being and the respect that a person owes to himself or herself.” In Law , Iacobucci J. wrote: [53] [...] Human dignity means that an individual or group feels self-respect and self-worth.

It is concerned with physical and psychological integrity and empowerment . Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. […] [Citation omitted] [Emphasis added] [184] No such interference affects Joël’s parents.

Finally, the circumstances of the second dispute concerning the moral damages are very different from those that were raised in 2004. [ 55 ] To understand the last sentence of this excerpt, recall that in Potvin 1 , the Court had not overturned this portion of the Tribunal’s judgment awarding compensation for the moral damages sustained in fighting the discriminatory treatment then inflicted on their son. Potvin 2 , for its part, set aside such compensation, although it did so in obiter .

But was the idea rejected in principle (i.e., parents may never claim personal compensation in such cases) or only in the situation of the parents at issue in that case? We are of the opinion that the latter hypothesis is correct, given the state of the law in matters of compensation for prejudice. [ 56 ] Because, while not all situations involving secondary prejudice (i.e., prejudice suffered by a person owing to a fault committed against another who suffers the primary prejudice) give rise to compensation under the regular rules governing reparations (arts. 1607 et seq .

C.C.Q .), there are cases where such prejudice, suffered by an indirect victim, is nevertheless the direct and immediate consequence of the fault and therefore compensable. This was recognized in Augustus v. Gosset [27] (and what is true about solatium doloris in that case can also be applied to the parent of a child whose handicap is the source of discrimination). In Infineon Technologies AG v.

Option consommateurs , [28] the Supreme Court explains again that: [142] While the appellants correctly state that Quebec civil law does not permit compensation for indirect damage, they fail to make an important distinction between indirect damage and the “ victime par ricochet ” ([ translation ] “indirect victim”). The indirect victim is someone who suffers an autonomous injury after the commission of a fault, where the damage suffered was the logical, direct and immediate result of the fault.

This is contrasted with indirect damage where the damage itself is indirect, because its source is not the immediate fault. Baudouin and Deslauriers comment on the application of this distinction, at No. 1-327: [ translation ] In our opinion, the debate should focus not, as has been the case, in a formalistic and artificial manner on whether a broad or a narrow

interpretation should be given to the word another, but on the real issue, that of the causal connection. The courts must therefore determine, in each case, independently of the claimant’s personality, whether the injury being claimed is a direct consequence of the fault, rather than trying to determine whether the applicant is the immediate victim . [Emphasis added]

[ 57 ] This general remark, which recalls one of the cardinal rules of compensation in civil law, is certainly applicable to the situation of the parent of a child who was a victim of discrimination. Although the parent is not the direct victim of the discriminatory treatment inflicted upon the child, the parent may claim compensation if they suffer (and prove) direct (moral or financial) prejudice resulting from the fault committed. In principle, a claim like the mother’s therefore cannot be excluded a priori . [ 58 ] Does this type of claim, however, fall within the Tribunal’s jurisdiction?

In cases like this one, ss. 74 et seq . and, consequently, ss. 80 and 111 of the Charter allow the appellant to make a complaint of this type and to validly seize the Tribunal with hearing it.

Without generally ruling on the status of indirect victims of discriminatory treatment, it nevertheless must be noted that in a case like this one, where the child suffers from an intellectual disability preventing him from defending his own rights, the parents, who are in some fashion a means of palliating this handicap, may certainly be considered victims of the discriminatory treatment inflicted on their child, or in other words, victims of a violation of rights within the appellant’s sphere of investigation within the meaning of s. 74 of the Charter . [ 59 ] That said, in this case, can it be established on a balance of probabilities that the mother is an indirect victim, that is, that she suffered direct harm as a consequence of the respondent’s fault? [ 60 ] The moral prejudice suffered by the mother, which allegedly arose from the discriminatory treatment inflicted on the student in 2006-2007 and 2007-2008, relates to discouragement, stress, worry, and the powerlessness she felt while her son, who cannot defend his own rights and whom she therefore represented and defended before the respondent, was the subject of discrimination. [ 61 ] The appellant explained that [ translation ] “the insufficiency of the accommodations implemented by the school board during the 2006-2007 year to promote her son’s education, despite her grievances and the efforts she deployed to denounce and compensate for each of these shortcomings and to help successfully integrate her son, affected the mother and created in her feelings of powerlessness, worry and disappointment”. [ 62 ] The evidence on the record supports these claims.

The respondent’s discriminatory conduct not only caused the mother anguish and suffering, but also forced her to take steps that cost her time and effort. But what amount will compensate this prejudice? [ 63 ] Translating moral prejudice into damages, that is, into monetary terms, is always delicate. As Vézina J.A. wrote in Calego International inc. c. Commission des droits de la personne et des droits de la jeunesse , [29] [ translation ] “measuring moral damages and the resulting compensation is a delicate task that is necessarily discretionary”, and, we would be tempted to add, almost arbitrary.

What is true in cases of defamation based on a ground of discrimination, as was the case in Calego , is no less true in a case like this one, especially when the alleged prejudice is related to sorrow, anguish, and so on, and is therefore mainly emotional.

In light of the nature of what the mother describes in her testimony, its scope and duration, but also taking into account, in comparison, the amount awarded by the Tribunal to the student personally for the years 2006-2007 and 2007-2008 ($7,500), a total amount of $7,500 is appropriate. [ 64 ] For these reasons, the Court would allow the appeal in part, with legal costs. [ 65 ] CONDEMNS the Commission scolaire de Montréal to pay damages of $7,500 to the complainant Susanne Ouellet, the whole with interest and the additional indemnity from May 31, 2010. FRANCE THIBAULT, J.A. MARIE-FRANCE BICH, J.A.

DOMINIQUE BÉLANGER, J.A. Mtre Lysiane Clément-Major Commission des droits de la personne et des droits de la jeunesse For the appellant Mtre Bernard Jacob Mtre François Houde Morency Société d’avocats For the respondent Date of Hearing: October 5, 2016