Special Education In Ontario Schools 8th Edition Ebook

[Francesca Cruiz]

TheOntario Human Rights Code (Code) recognizes the importance of creating a climate of understanding and mutual respect for the dignity and worth of each person, so that each person can contribute fully to the development and well-being of the community and the Province. The Code guarantees the right to equal treatment in education, without discrimination on the ground of disability, as part of the protection for equal treatment in services. This protection applies to elementary and secondary schools, and colleges and universities, both public and private.

The OHRC is an independent statutory body whose mission is to promote, protect and advance human rights across the province as set out in the Code. To do this, the OHRC identifies and monitors systemic human rights trends, develops policies, provides public education, does research, conducts public interest inquiries, and uses its legal powers to pursue human rights remedies that are in the public interest.

Educational institutions operating in Ontario have a legal duty to take steps to prevent and respond to breaches of the Code. This responsibility includes maintaining accessible, inclusive, discrimination and harassment-free education environments that respect human rights. It is not acceptable to choose to stay unaware of discrimination or harassment of a student with a disability, whether or not a human rights claim has been made.

The Ontario Human Rights Code[2] (Code) recognizes the importance of creating a climate of understanding and mutual respect for the dignity and worth of each person, so that each person can contribute fully to the development and well-being of the community and the Province. The Code guarantees the right to equal treatment in education, without discrimination on the ground of disability, as part of the protection for equal treatment in services. This protection applies to elementary and secondary schools, and colleges and universities, both public and private.

In 2012, the OHRC intervened in Moore,[4] a landmark Supreme Court of Canada case that dealt with the denial of meaningful access to education by a student with dyslexia. In 2015, we intervened in a human rights claim filed against York University that raised issues related to the type of medical documentation that needs to be provided to support a request for accommodation of a mental health disability. We worked with the university and the student who filed the discrimination claim to develop new documentation guidelines to access academic accommodations.[5] And, in 2017, we published With learning in mind,[6] an inquiry report on systemic barriers to academic accommodation for post-secondary students with mental health disabilities. We continue to engage in public education, communication, training, and promoting human rights throughout the education sector.

It is clear that students with disabilities continue to experience difficulties accessing services at all levels of the education system. Inadequate resources and supports in the classroom, long waiting lists for assessments, negative attitudes and stereotypes, physical inaccessibility, inappropriate requests for medical information, ineffective dispute resolution processes, and outright denial of disability-related accommodations are some of the barriers that many students with disabilities continue to experience in their attempts to get an education.

The Policy on accessible education for students with disabilities, 2018 updates the 2004 Guidelines on accessible education to take into account current social science research, case law developments, legislation and international human rights obligations.[11] The OHRC has maintained its policy positions in key areas, including:

Section 9 of the Code prohibits both direct and indirect discrimination. Section 11 states that discrimination includes constructive or adverse effect discrimination, where a requirement, policy, standard, qualification, rule or factor that appears neutral excludes or disadvantages a group protected under the Code.[13]

The Code includes specific defences and exceptions that allow behaviour that would otherwise be discriminatory. An education provider that wishes to rely on these defences and exceptions must show it meets all of the requirements of the relevant section.

Where discrimination results from requirements, qualifications or factors that may appear neutral, but that have an adverse effect on students with disabilities, section 11 allows the education provider to show that the requirement, qualification or factor is reasonable and bona fide.[16] They must also show that the needs of the student affected cannot be accommodated without undue hardship.[17]

Section 17 sets out the duty to accommodate people with disabilities. It is not discriminatory to refuse an educational service because the student is incapable

of fulfilling the essential requirements. However, a student will only be considered incapable if their disability-related needs cannot be accommodated without undue hardship.

Under section 18 of the Code, organizations such as charities, schools, social clubs, sororities or fraternities that want to limit their right of membership and involvement to people with disabilities can do this on the condition that they serve mostly people from this group.[18]

The IPRC also has the power to make recommendations about special education programs and services for the student, but does not have decision-making power in this respect. Parents may appeal the decision of an IPRC regarding a determination of exceptionality, or the placement of a student to the Special Education Appeal Board. Recommendations on programs and services cannot be appealed.

It is important to note that the Code has primacy over other legislation, including the Education Act. [26] This means that where there is an inconsistency between the Code and the Education Act, the Code will prevail.[27] And, in one case, the HRTO found that the Ministry of Education could be potentially liable for discrimination where its definition of exceptionalities prevented or delayed a student from receiving required accommodations.[28]

Post-secondary education in Ontario is provided by a wide range of public and private institutions, including publicly funded universities and colleges, private vocational schools, and privately funded degree-granting institutions. The Ministry of Training, Colleges and Universities is responsible for post-secondary education in Ontario.

The accommodation of students with disabilities at the post-secondary level is not subject to the same detailed legislative structures as at the primary and secondary levels. Accommodation of students with disabilities is governed by the Canadian Charter of Rights and Freedoms (Charter), and by provincial human rights statutes. Post-secondary institutions have developed a wide range of delivery methods and structures to meet these obligations, and colleges and universities have offices for students with disabilities to assist students with the accommodation process.

Section 15 guarantees the right to equal protection under the law and equal benefit of the law, without discrimination based on disability, among other grounds. The equality rights guarantee in section 15 of the Charter is similar to the purpose of the Code.[30] Governments must not infringe Charter rights unless violations can be justified under section 1, which considers whether the Charter violation is reasonable in the circumstances.

Education providers also have obligations under the Accessibility for Ontarians with Disabilities Act, 2005 (AODA), and its Integrated Accessibility Standard Regulations.[31] The AODA aims to address the right to equal opportunity and inclusion for people with disabilities throughout society. The AODA's goal is to make Ontario fully accessible by 2025. It introduces a series of standards (customer service, transportation, built environment, employment, and information and communications)[32] that public and private organizations must implement within certain timelines.

The AODA is an important piece of legislation for improving accessibility in the lives of people with disabilities. It complements the Ontario Human Rights Code, which has primacy over the AODA. The development and implementation of standards under the AODA must have regard for the Code, related human rights principles, and case law.[33] Compliance with the AODA does not necessarily mean compliance with the Code. Education providers must follow both. For example, even where an education provider meets all of its obligations under the AODA, it will still be responsible for making sure that discrimination and harassment based on disability do not take place in its operations, that it responds to individual accommodation requests, etc.

The CRPD is an important human rights tool that puts positive obligations on Canada to make sure that people with disabilities have equal opportunity in all areas of life, including education. To meet the obligations under the CRPD, Canada and Ontario should make sure that adequate and appropriate community supports and accommodations are in place to allow for equal opportunities for students with disabilities, and should evaluate legislation, standards, programs and practices to make sure rights are respected.[37]

Although sections 10(a) to (e) of the Code set out various types of conditions, it is clear that they are merely illustrative and not exhaustive. It is also a principle of human rights law that the Code be given a broad, purposive and contextual interpretation to advance the goal of eliminating discrimination. [46]

The belief that disability is an abnormality has been used to rationalize the exclusion, neglect, abuse and exploitation of people with disabilities in various different contexts. It may also inform paternalistic and patronizing behaviour toward students with disabilities.

Discrimination against people with disabilities is often linked to prejudicial attitudes,[65] negative stereotyping, and the overall stigma surrounding disability. All of these concepts are interrelated. For example, stereotyping, prejudice and stigma can lead to discrimination. The stigma surrounding disability can also be an effect of discrimination, ignorance, stereotyping and prejudice.

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