) ) L.B. Applicant – v. –, 2017 ONSC 2301

CITATION : L.B. v. Toronto District School Board et al. 2017 ONSC 2301 DIVISIONAL COURT FILE NO.: 181/16 DATE: 20170426 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT LEDERMAN, NORDHEIMER, McCARTHY JJ. BETWEEN: ) ) L.B. Applicant – and – Toronto District School Board and Human Rights Tribunal of Ontario Respondents ) ) ) ) ) ) ) ) ) ) David Baker and Kim Srivastava , for the Applicant Michael Hines and Lauri Reesor , for the Respondent, Toronto District School Board Brian Blumenthal, for the Respondent, Human Rights Tribunal of Ontario ) ) ) HEARD: March 29, 2017 LEDERMAN J.

NATURE OF PROCEEDING : [ 1 ] L.B. applies for judicial review of a remedial decision of the Human Rights Tribunal of Ontario (the “Tribunal”) dated November 30, 2015 and confirmed in a Reconsideration decision dated March 15, 2016.

In its decision, the Tribunal found that the Toronto District School Board (the “TDSB”) had discriminated against L.B. and awarded L.B. general damages in the amount of $35,000 as monetary compensation for injury to L.B.’s dignity, feelings and self-respect; however, the Tribunal denied L.B.’s request for special damages. [ 2 ] The applicant requests that the Tribunal’s decision denying the special damages be quashed and that the TDBS be required pay to L.B. special damages in the amount of $144,559.42, with interest.

FACTUAL BACKGROUND [ 3 ] The Tribunal decision was made on an application filed by L.B. under s. 34 of the Human Rights Code , R.S.O. 1990, c. H.19 (the “ Code ”) and alleging discrimination with respect to services because of disability.

In making this application, L.B. was represented by his mother and litigation guardian, S.B. [ 4 ] The focus of the application before the Tribunal was the time period from September 2012 to April 2013, when L.B. was 14 years old and a student in Grade 9 at a large, collegiate institute operated by the TDSB (the “collegiate”). [ 5 ] Prior to this time, L.B. had been diagnosed with multiple disabilities including attention deficit hyperactivity disorder (“ADHD”), learning disabilities, and mental health disabilities that “primarily manifest themselves as anxiety and depression.” [ 6 ] Specifically, L.B. was first diagnosed with certain learning and mental health disabilities in 2006, when he was in Grade 2, following an assessment by Dr.

Michael Allan, a psychologist in private practice. Dr. Allan confirmed certain of these diagnoses, and added the diagnosis of ADHD, following a second assessment performed in 2011, when L.B. was in Grade 8. At that time, Dr. Allan also concluded that L.B.’s Generalized Anxiety Disorder, in combination with his ADHD, resulted in “significant coping challenges and

difficulties both at school and at home.” Subsequent to the second assessment, Dr. Allan provided therapeutic counselling to L.B. on a regular basis. [ 7 ] Dr. Allan’s 2006 and 2011 assessments were provided to the elementary school that L.B. attended from Grades 2 to 8. On the basis of Dr. Allan’s first assessment, L.B. was provided with an Individual Education Plan (“IEP”) in 2006. L.B. then had an IEP and received varying levels of education support during each subsequent year of his elementary education. In 2008, again on the basis of Dr.

Allan’s 2006 assessment, L.B. was identified as an exceptional student by the TDSB’s Identification Placement Review Committee (“IPRC”). [ 8 ] L.B. continued to struggle with anxiety throughout his elementary school years and attendance became a growing problem for him during his Grade 8 year. In response to a request from S.B., the school board made a referral to the school’s social worker/attendance counsellor (with whom L.B. had previously met for counselling and support during his Grade 6 year).

In addition, one of the school’s teachers volunteered to go to L.B.’s home first thing in the morning over a short period of time to encourage L.B. to get up and go to school, and L.B.’s homeroom teacher contacted Dr. Allan to discuss approaches to reduce L.B.’s anxiety and improve his attendance. [ 9 ] In recognition of the fact that the transition from elementary to secondary school is typically a challenging one for exceptional students, the Ministry of Education provides for particular steps to be taken to facilitate this process.

In accordance with Ministry policy, and in preparation for his transition to Grade 9, L.B.’s elementary school updated his IEP in June 2012, setting out specific recommendations for transition to the secondary school and for accommodations once he was in the secondary program. [ 10 ] L.B. commenced Grade 9 at the collegiate in September 2012.

On September 13, 2012, at her request, S.B. met with the vice principal and the head of guidance at the collegiate to discuss her concerns about the provision of supports for L.B. and strategies to prevent the development of the problems, including attendance issues that L.B. experienced during his Grade 8 year. At this meeting, a number of potential accommodations were discussed.

S.B. was informed that some suggested accommodations, such as having a teacher attend L.B.’s house to ensure he attends school, could not be implemented and that certain other accommodations, such as reduced workload, required L.B. to provide a medical certificate. The vice principal also agreed that she would explore other potential supports and discuss these issues with L.B.’s teachers, but there was no evidence that the vice principal followed up in this regard. [ 11 ] An IEP for the Grade 9 year was prepared for L.B. in October 2012.

This IEP contained no reference to any previous or current attendance issues or any specific transition plans or needs. The IEP reflected some, but not all, of the recommendations contained in the exit IEP prepared by L.B.’s elementary school. Some of the supports identified in the Grade 9 IEP (for example, support from an educational assistant) do not seem to have been implemented. Some other supports were initiated, but failed. None of the staff involved with L.B. at this time had read Dr. Allan’s assessments or made contact with him to discuss L.B.’s educational or accommodation needs.

Although in the first term of L.B.’s Grade 9 year, his vice principal initiated the process for referring L.B. for TDSB support services, L.B. was in fact never seen by a TDSB social worker, guidance counsellor or psychologist during his Grade 9 year. [ 12 ] L.B. had begun to exhibit poor attendance within the first week of his Grade 9 year and his attendance problems continued and increased during the winter months. He “effectively stopped attending school.” L.B. was given some work to complete at home, with the assistance of his mother.

However, there was no record of formal discussions between school officials and S.B. about whether L.B. might benefit from more formal home instruction. [ 13 ] On February 6, 2013, S.B. met with the collegiate’s guidance counsellor and a special education teacher. They discussed a wide variety of topics, including L.B.’s anxiety issues and missed school work. S.B. spoke of potential options she had been reviewing with the professionals L.B. saw on a regular basis.

She indicated that “she had been exploring the possibility of sending L.B. to a private boarding school in Ottawa that focused on hockey.” She asked if staff at the collegiate could complete a recommendation form for L.B.’s admission to the private school, which the guidance counsellor did shortly thereafter. The guidance counsellor did not suggest any alternative placements or programming to facilitate L.B.’s attendance and success during the remainder of the Grade 9 year. [ 14 ] On March 8, 2013, an “in school support team” (“ISST”) met to consider L.B.’s situation.

A meeting of the ISST is usually the first step in the provision of support services for a student in the TDSB. Soon after, and before contacting S.B., collegiate staff decided to provide a further referral directly to the TDSB’s School Support Team (SST) which would likely expedite L.B.’s access to social work support, and for the first time, to contact Dr. Allan to discuss L.B.’s situation. They thereby expected L.B. to return to the collegiate after the March break.

However, before these steps were taken, S.B. notified the school that L.B. had been enrolled in a private boarding school that focused on elite sports, effective immediately. The collegiate staff consequently determined that contact with Dr. Allan and the further referral were unnecessary. [ 15 ] L.B. did not return to the collegiate, and since that time has ceased to be a registered pupil of the TDSB. [ 16 ] Since April 2, 2013, L.B. has been attending a private boarding school with an elite sports program. He is apparently doing well, though his attendance issues have not been fully resolved.

The school is not a special education institution, but provides educational accommodations, including small class sizes and access to one-on-one resources assistance, that the school’s principal indicated have benefited L.B.. The principal also “stressed the benefits of the non-educational components, such as: the residential setting, which reduces the need for ‘getting to school’ on a daily basis; the access to elite sports as a motivator; and the company of other boys who have similar interests.” L.B. continues to receive counselling and treatment, as needed, from various health professionals.

THE TRIBUNAL DECISION [ 17 ] The Tribunal found that L.B. is a person with a disability under the Code and that L.B. established a prima facie case of discrimination by demonstrating that the TDSB did not accommodate him to the point of undue hardship during the 7 month period from September 2012 to April 2013.

He was not seen by any professional staff; he did not have access to all of the supports included in his IEP and his mother was not informed of any potential alternatives to removing him from the collegiate to meet his needs. [ 18 ] It was this adverse treatment that led to S.B.’s decision to remove him from the collegiate and send him to another school.

The Tribunal acknowledged that, because of this discrimination, S.B. felt that she had no option but to remove L.B. from the public school system and enroll him in his current private residential school. [ 19 ] Because of this discrimination, the Tribunal awarded general damages of $35,000. [ 20 ] L.B. had also sought special damages to compensate him for the tuition and all other costs for his attendance at the private boarding school for the period of April, 2013 to the end of December, 2016. [ 21 ] However, the Tribunal found that a public school board does not have a mandate to provide full time residential schooling to match the one that S.B. had chosen for her son and therefore the TDSB should not be responsible for covering the $145,000 costs of L.B.’s private school education from April 2013 to the end of his high school education. [ 22 ] The Tribunal was of the view that the option of private schooling as chosen by S.B. was not the only option available to L.B. to meet his needs.

The Tribunal held that although L.B. was doing well in the private residential school, a similar outcome may have been achieved, if he had been appropriately and fully accommodated by the TDSB at the collegiate, or in another appropriate placement in the public system. The Tribunal held that these public school options to meet his needs could have been made available to L.B. after April 2013 but that S.B.’s decision to remove him from the public system foreclosed these possibilities. [ 23 ] Accordingly, the Tribunal denied L.B.’s claim for special damages.

POSITION OF THE APPLICANT [ 24 ] L.B. submits that, as no alternative placements to accommodate him were offered to him in Grade 9, S.B. was left with no option but to transfer L.B. to a private educational setting.

But for the discrimination experienced by L.B., it would not have been necessary to do so and, thus, L.B. submits, he was denied monetary compensation for the loss arising from the infringement of his rights under the Code . [ 25 ] Special damages were necessary to provide an effective remedy which could return L.B. to the position that he would have been in but for the discrimination. [ 26 ] Thus, L.B. argues that the Tribunal unreasonably denied him an effective remedy, namely the special damages to cover the cost of the private school to which L.B. was transferred because he was not accommodated by TDSB. [ 27 ] In Moore v.

British Columbia (Ministry of Education) , 2012 SCC 61 [“ Moore ”], the Supreme Court of Canada held that the cost of private education may be an appropriate head of damages when this kind of discrimination occurs.

It rejected the school district’s argument that the family should not receive damages for private school tuition because the private school provided a more advanced form of accommodation than what the student would have received in a public education setting. [ 28 ] L.B. submits that the same principle is applicable here, as he, like Jeffrey Moore, did not receive the accommodations he required in the public school system and did not have any other options available for a public education.

L.B. submits that the Tribunal erred in failing to follow Moore. [ 29 ] The Tribunal accepted the fact that the TDSB was not responsive to L.B.’s needs in Grade 9. A staff member had signed a form, requested by S.B., recommending a private school placement, and the TDSB had acknowledged that L.B. was succeeding in the private school.

L.B. submits that the fact that the TDSB, as part of its legislative mandate, is not required to provide a residential school placement as an accommodation, is irrelevant to the question of whether it is obligated to pay for out of pocket expenses arising from its failure to accommodate.

He submits that the Tribunal erred in law by determining that L.B. could not be awarded damages for a service that the TDSB may not be required to provide under the Education Act . [ 30 ] The denial of special damages was unreasonable, L.B. submits, because the TDSB failed to adduce evidence, including expert evidence as to how he could be adequately accommodated and his needs met in the public system.

Rather, in the absence of evidence, the Tribunal offered its own personal opinion that other programs existed within the public school system that could potentially have allowed L.B. to remain within the public educational system.

L.B. submits that his right to procedural fairness was violated by depriving him of an opportunity to challenge whether any potential alternative existed that would have reasonably accommodated him. [ 31 ] L.B. submits that, in the end, the Tribunal’s denial of special damages was unreasonable because it never determined what his needs were in order for him to access education and what accommodations in the public system could address those needs. STANDARD OF REVIEW [ 32 ] Shaw v. Phipps , 2012 ONCA 155 affirmed that the highest degree of deference is owed to a Human Rights Tribunal’s

interpretation and application of human rights law. This is especially true of the Tribunal’s remedial decisions as they are discretionary and fall at the very heart of its specialized expertise: Hamilton-Wentworth District School Board v. Fair 2016 ONCA 421 at para. 93 .

The Tribunal decisions are protected by the strongest of privative clauses and its decisions are highly contextual, fact-based and require finality. [ 33 ] This deference is maintained unless the decision is not rationally supported. [ 34 ] The question for this court is whether the Tribunal’s decision denying special damages is reasonable in that it falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

WAS THE DENIAL OF SPECIAL DAMAGES REASONABLE ? [ 35 ] The Tribunal rejected L.B.’s assertion that a residential school placement was necessary to meet his medical needs. The

Tribunal found that Dr. Allan did not explicitly state that residential schooling was the only way in which L.B. could have meaningful access to the general education available to all children in Ontario for the duration of his secondary school career.

The Tribunal found that there were services that TDSB could have provided that would have allowed L.B. meaningful access to a general public education in a non-residential setting. [ 36 ] The basis for the Tribunal’s finding of discrimination was the failure by the TDSB to provide very specific accommodations as services that would benefit L.B. to participate in a public educational placement that would meet his needs.

The Tribunal outlined the nature of the accommodation services that could be provided in the public school system as follows at para. 50 of the Reconsideration decision; Without reiterating all of that information, I confirm that I based my decision on the following facts. School boards are expected to accommodate the needs of their exceptional pupils to the point of undue hardship, including but not limited to the provision of special education programs and services, transportation, home instruction, attendance counselling or referral to alternative educational settings provided under other legislation.

They are expected to do this by either providing or purchasing from another school board special education services. They may also establish alternative educational programs such as Schools for the Arts or academies or schools with some other special focus, such as sports or outdoor education. But it is not within their legislated mandate to establish full-time residential schools. It was my finding that the Education Act precludes them from doing so. This finding is further reinforced by the specific

definitions of “school”, “private school” and “pupil” in the Education Act. [ 37 ] The Tribunal stated at para. 140 of the Decision; I heard a great deal of evidence asserting that if the applicant had not left at the beginning of April, 2013, much could have and would have happened to accommodate him through the involvement of a social worker, the School Support Team (“SST”) etc. Regrettably, that proved to be too late. The TDSB asserts in its description of social work and attendance services that SST’s meet every month at every secondary school to identify and decide on a plan of support to benefit students.

Regrettably, this was not the case at the collegiate during the fall and winter of 2012/13. [ 38 ] In addition to evidence before it, the Tribunal, pursuant to s. 16(

b) of the Statutory Power Procedures Act , is permitted to use its specialized knowledge to take notice of the supportive services that would have allowed L.B. to attend a TDSB school. [ 39 ] The applicant cannot accept the Tribunal’s finding about available specific accommodation services for the purpose of achieving success on liability and then reject it as being without evidentiary foundation for the purpose of determining remedy.

The applicant cannot have it both ways. [ 40 ] The Tribunal had a reasonable basis for imposing liability on TDSB for failing to provide supportive services which would have included attendance counselling, social worker support and in-school special education programming; and finding that if they had been provided they would have met L.B.’s needs and that it was within the TDSB’s power to provide such services. [ 41 ] The Tribunal was of the view that the possibility of L.B. being accommodated into the future after April 2013 within the TDSB system was a real one and this decision is entitled to the highest deference by this court. [ 42 ] While finding discrimination in the manner that L.B. was treated in his Grade 9 year and awarding general damages in that regard, the Tribunal refused to assume that the discriminatory practice would continue throughout the balance of L.B.’s public high school career.

The Tribunal concluded that L.B.’s damages should reflect what his life would have been like had he stayed in the TDSB and if the accommodation services that had previously been withheld would be in place. [ 43 ] However, S.B.’s decision to remove L.B. from the TDSB public school system, made it impossible for TDSB to fulfill its responsibility to deliver the appropriate accommodation within its power thereafter. [ 44 ] In other words, the TDSB had the authority and ability to deliver the necessary supportive services that would have accommodated L.B.’s special needs but that it was precluded from doing so after April 2013 by reason of the actions of L.B.’s mother in removing him from the public system and enrolling him in a residential private school. [ 45 ] Specifically, in its Decision at paragraph 164, the Tribunal stated: I do not see that it would be appropriate to order the TDSB to pay for the costs involved.

At no time after April 2013, did S.B. pursue the question of whether L.B. could be appropriately accommodated by the school board, if he were to return there to complete his education. Therefore, after April 2013, she eliminated, by her own actions, the respondent’s duty to accommodate her son, since he was no longer a resident pupil of the school board. [ 46 ] The remedy of special damages, and particularly the cost of private school education, was recognized by the Supreme Court of Canada in Moore where there was a complete refusal by the school board to provide the necessary accommodation services.

Here, however, unlike Moore , the TDSB did not abandon L.B., although there was a period of time in 2012-2013 when the services were not forthcoming. It was reasonable for the Tribunal to distinguish Moore on this basis. [ 47 ] Moreover, it was reasonable for the Tribunal to conclude that in dealing with a child’s education, particularly one with special needs, accommodation is a two-way street. On the one hand, the school board should do all that is within its legislative power to accommodate a student with disabilities to access public education.

On the other hand, a parent should not deprive the school board of that opportunity by resorting to a private school education and expect to recover the full costs of doing so. [ 48 ] It was reasonable for the Tribunal to conclude that there was some obligation on the part of S.B., after placing L.B. in a private school, to inquire at some point during her child’s education, whether TDSB was in a position to deliver the necessary services.

Accordingly, because she did not engage with the TDSB any further, and provide it with that opportunity after April, 2013, it was not unreasonable to deny her the full cost of a multi-year private school education.

[ 49 ] However, faced with the dilemma that she had in March-April 2013, it was a natural consequence of the breach of the Code that S.B. would take whatever steps were necessary to salvage that school year for her child. There was no indication that accommodation services would be forthcoming from the TDSB during the balance of that school year.

The expectation was that the accommodation services would commence with the start of the following school year (when L.B. would begin Grade 10). [ 50 ] In its Reconsideration decision, the Tribunal stated at paragraph 4, that SB “effectively truncated and eventually eliminated the respondent’s ongoing obligations to accommodate him under the Code ”. [ 51 ] And at paragraph 24 of the Reconsideration decision, the Tribunal stated that the step of removing the applicant from the public system in March 2013 was “premature.” [ 52 ] However, the fact is that the Tribunal did find that there was a total failure on the part of the TDSB to provide support throughout L.B.’s Grade 9 year notwithstanding that S.B. made every effort from the onset of the school year in September 2012 and throughout, to obtain the services that the TDSB was capable of providing.

The Tribunal said that although discussions between S.B. and school officials took place in February and March of 2013, they did not communicate to her the actions that they proposed to take. The situation had become dire in that L.B. had not attended school at all for the period January to March 2013. Here it was March 2013 with only a few months left in the school year and the TDSB had done nothing. In these circumstances, one would reasonably expect a parent to act in the best interests of her child and S.B. did just that in enrolling L.B. in the private residential school.

Prior to doing so, she had indicated that that might be an option in her discussions with school officials and obtained from them a signed recommendation form for this purpose. [ 53 ] It was therefore unreasonable for the Tribunal, in those particular circumstances, to deprive her of the remedy of obtaining damages for the cost of enrolling L.B. in a private school for the balance of the 2012-2013 school year. [ 54 ] If, as the Tribunal described, S.B.’s actions were “premature” or that “she truncated” the possibility of providing services in the future, the same cannot be said for her attempts to salvage the 2012-2013 school year.

In that regard, based on the evidence and the other findings of the Tribunal, there was no rational basis to deny her compensation for that expenditure. Such a decision denying S.B. her special damages for the Grade 9 year is not defensible in fact or law. [ 55 ] Before the Tribunal, L.B. sought the full cost of his private schooling until the end of his high school education.

He did not, alternatively, assert a claim for a portion of those costs that was limited to enrolment for the balance of the 2012-2013 school year and arose out of the necessity of S.B. taking steps to salvage his education for that year. [ 56 ] The parties should have the opportunity to adduce evidence before the Tribunal on this narrow issue of the quantum of the costs associated with funding L.B.’s enrolment for the balance of the 2012-2013 school year. [ 57 ] The application for judicial review is therefore granted to the extent that L.B. is entitled to special damages in respect of the Grade 9 year; and the assessment thereof is remitted to the Tribunal for determination. [ 58 ] Counsel indicated that they would likely be able to agree upon the costs of the application.

If, however, they are unable to do so, they may make written submissions within 15 days. _______________________________ Lederman J. I agree _______________________________ Nordheimer J. I agree _______________________________ McCarthy J. Released: April 26, 2017 CITATION : L.B. v. Toronto District School Board et al. 2017 ONSC 2301 DIVISIONAL COURT FILE NO.: 181/16 DATE: 20170426

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT LEDERMAN, NORDHEIMER, McCARTHY JJ. BETWEEN: L.B. Applicant – and – Toronto District School Board and Human Rights Tribunal of Ontario Respondents REASONS FOR JUDGMENT Released: April 26, 2017