Case Summaries: Education
Common Issue: My child has been denied enrolment in school because of epilepsy, or the school has refused to accommodate my child's disability needs. What is the legal standing on this issue and what course of action should follow?
Ms. C's 11-year-old son, who had been attending school for three years with tonic-clonic seizures (nocturnal seizures 99% of the time), was refused attendance in school unless Ms. C signs a form giving the school the right to seek medical information from her son's neurologist. The school also did not allow her son to ride the handicapped bus for the reason of not having a bus protocol, and recommended that he be confined to his wheelchair by shoulder restraints in class.
Mr. and Mrs. O's 13-year-old daughter has absence seizures as well as tonic-clonic seizures. She has also been experiencing photosensitive seizures due to flickering fluorescent lighting in school, but the school refused to make any necessary change to the lighting system.
A little girl with epilepsy was declined from a daycare on the ground that there is no staff person to respond to her needs. However, she does not have continual seizures and does not require one-on-one care at all.
Duty to Accommodate Disability
According to the 1990 Ontario Human Rights Code, every person has the right to equal treatment in services, which includes education in its broadest sense, without discrimination on the ground of disability. Section 10 of the Code explicitly lists epilepsy as an example of physical disability. Thus, a person who has epilepsy is protected by law from all types of discrimination.
The Ontario Human Rights Commission (OHRC) has developed "Guidelines on Accessible Education" that will address disability and the duty to accommodate in the educational sector. While Commission policies and guidelines are not binding on the human rights tribunal or on courts, they are often given great deference, applied to the facts of the case before the court or tribunal, and quoted in the decisions of these bodies.
The guideline establishes the education provider's duty to accommodate the needs of students with disabilities in order to allow them to access educational services equally, unless to do so would cause undue hardship.
According to the guideline, the right to equal treatment and the duty to accommodate exist for publicly funded and privately funded early childhood pre-schools, elementary and secondary schools, colleges and universities.
If Discrimination Occurs
If a person believes that his or her child has been discriminated against on the ground of disability (i.e. epilepsy), he or she may make a formal complaint to the OHRC.
A Commission staff person is available to discuss the problem and is required to accept the complaint of any person who believes that his or her rights under the Code have been infringed. A complaint is not officially filed with the Commission until a Human Rights Complaint Form has been completed and signed by the complainant and has been registered. Once the completed and signed complaint form has been received, the Commission will conduct an impartial investigation. A Fact Finding Conference is usually, but not always, held after the complaint has been served on the respondent and the respondent has had an opportunity to reply. Following this Conference, an opportunity is usually provided for a settlement discussion if the complainant, respondent and Commission staff feel it is appropriate. In many instances a settlement can be agreed upon. A case which can not be settled may be referred to the Human Rights Tribunal of Ontario. The Tribunal holds a hearing, reviews the complaint, makes a decision and orders a settlement. That decision may be accepted by both parties or appealed.
Ontario Human Rights Commission
180 Dundas Street West, 8th Floor
Toronto, Ontario
Canada M7A 2R9
Toll Free: 1 800 387-9080
Telephone: 416 326-9511
Fax: 416 326-9510
E-mail: info@ohrc.on.ca
Appeal of the Decision
If a person believes that the decision of the OHRC was wrong or unfair, he or she may appeal to the Divisional Court, and if the decision of the Divisional Court is not accepted by both parties, then to the Supreme Court of Canada that makes the final decision. The person may also contact Ombudsman Ontario, which helps people resolve complaints they have with provincial government organizations,
Ombudsman Ontario
125 Queen's Park
Toronto, ON M5S 2C7
Toll-Free: 1-800-263-1830
Telephone: 416-586-3300
Fax: 1-866-411-4211
E-mail: info@ombudsman.on.ca
