Roles and responsibilities

Responsibility for addressing the needs of students with disabilities is assigned to different parties including the Ministries of Education and of Training, Colleges and Universities, post-secondary institutions, schools and school boards, educators, specialized professionals, parents and students themselves. In the private education system, each individual school or post-secondary institution, as a service-provider, is responsible for accommodating students with disabilities up to the point of undue hardship.

The accommodation process is a shared responsibility. In carrying out the responsibilities associated with accommodating students with disabilities, all parties involved must abide by human rights standards, procedures and principles set out under the Code and outlined in the Commission’s Disability Policy. In particular, the process that is established to accommodate students with disabilities must meet the procedural requirements of the duty to accommodate and substantive accommodation must be provided to the point of undue hardship. In addition, the principles of individualized accommodation, respect for dignity, and integration (in most instances) and full participation must be respected.

At the heart of the accommodation process is the responsibility, shared by all parties, to engage in meaningful dialogue about accommodation, and to seek out expert assistance as needed. Throughout the consultation, the Commission heard from participants that students with disabilities often fall victim to disputes between the various parties responsible for accommodation. For example, in its submission the Special Education Advisory Committee of the Huron-Superior Catholic District School Board stated: “Turf wars between the educational systems, unions, government agencies, community agencies and ministries are affecting the efficiency of providing good programs for people with disabilities.”

Similarly, consultees expressed concerns that students with disabilities are paying the price for a larger funding dispute between the Ministry of Education and the school boards. Parents stated that they do not care where the money comes from as long as their children receive the accommodation to which they are entitled.

Government

Government has a significant role to play in ensuring equal opportunity for students with disabilities. The Supreme Court of Canada has stated that, when governments provide benefits to the general population, they have an obligation to take positive steps to ensure that members of disadvantaged groups, such as persons with disabilities, benefit equally from those services, subject of course to the undue hardship standard.^[132] Funding, whether provided directly to students, or to educational institutions, remains a major issue in ensuring that education is accessible for students with disabilities. Funding structures should not themselves create barriers to students with disabilities. Through legislation, such as the ODA, the provincial government can play a major role in promoting and supporting accessible, non-discriminatory post-secondary education. The recent Learning Opportunities Task Force has been lauded as an example of the type of initiative that the government can undertake to make a real difference to students with disabilities. The programs and services offered by government for students with disabilities should be clearly communicated, harmonized, and reasonably straightforward to access.

The Education Act and accompanying regulations set out a process for identifying and accommodating disability-related needs in the publicly funded primary and secondary school system. The Ministry of Education is responsible for the Education Act. Under the Act, the Ministry is responsible for ensuring that all exceptional pupils in Ontario have available to them appropriate special education programs and services without payment of fees. More specifically, the Ministry is responsible for funding levels and structures, legislating procedures, and creating appeal and monitoring mechanisms.

The Commission heard that government bureaucracy makes it difficult to access services, at the primary and secondary, and at the post-secondary level. For example, the Ontario Association of Speech-Language Pathologists and Audiologists wrote in their submission: “Three ministries (Education, Health and Community and Family Services) share responsibility for services for children with speech and language disorders. Fragmentation in service delivery has created a complex system for families who need services. Many children ‘fall between the cracks.’” The Commission has heard the same concerns about the delivery of Intensive Behavioural Intervention (“IBI”) treatment for children with autism.

In its 1993 Annual Report, the Office of the Provincial Auditor of Ontario recommended that “The government should ensure full co-operation among the ministries that provide the complete range of services required by children with special needs. It should also consider reallocating the responsibility for providing these services among the ministries involved, in order to deliver special education in a more effective, integrated and cost-efficient manner.”^[133] In its 2001 Annual Report, the Provincial Auditor concluded that this recommendation had not been implemented and made a further recommendation in this area.

It should also be noted that the ODA establishes reporting requirements for, among others, the Ministry of Education, the Ministry of Training, Colleges and Universities, as well as school boards, colleges and universities themselves. These organizations are legally required to consult persons with disabilities and others and prepare, update and make public an annual accessibility plan that addresses the identification, removal and prevention of barriers to people with disabilities.

During the Consultation, some educational institutions reported that they were unclear about their responsibilities under the ODA as well as the relationship between the ODA and the Code. The Code has primacy over the ODA. Preparation of annual accessibility plans under the ODA complements rather than removes existing obligations under the Code.

School Boards

As part of its obligation to provide special education programs and services to exceptional pupils, a school board is required to develop and maintain a special education plan, to review it annually, to amend it from time to time to meet the current needs of exceptional pupils, and to submit any amendments to the Ministry for review.^[134] One of the purposes of the special education plan is “to inform the Ministry of Education and the public about special education programs and services that are provided by the board in accordance with legislation and ministry policy on special education.”^[135]

School boards are also required to establish Special Education Advisory Committees (SEACs). SEACs make recommendations on the establishment, development and delivery of special education programs and services for exceptional pupils; participate in a board’s annual review of its special education plan, annual budget and financial statements.

Primary and Secondary School Educators

At the primary and secondary levels, under the Education Act, school principals are assigned responsibility for referring students to an IPRC and, after the IPRC process is complete, for preparing an IEP for the student. Principals are also responsible for ensuring board policies and procedures about special education are communicated to staff, students and parents.

Teachers work with Special Education Teachers to acquire and maintain up-to-date knowledge of special education practices and with parents to develop an IEP for an exceptional pupil if appropriate. Teachers are responsible for many of the day-to-day aspects of accommodation, for assessing students’ progress, and for communicating with parents.

The Ministry of Education has further outlined the specifics of what it sees to be the respective roles and responsibilities of those involved in the special education system in its policy document entitled Standards for School Boards’ Special Education Plans.^[136]

Part 3.4 of the Disability Policy states that all parties to the process “should co-operatively engage in the process, share information, and avail themselves of potential accommodation solutions.”^[137] It also contains general principals regarding the duties and responsibilities in the accommodation process which, although described in the employment context, apply also to educational services. For example, education providers (including the Ministry of Education, school boards, schools, principals, teachers and special education professionals) are required to:

• obtain expert opinion or advice where needed;
• take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated, and canvass various forms of possible accommodation and alternative solutions, as part of the duty to accommodate;
• maintain confidentiality;
• limit requests for information to those reasonably related to the nature of the limitation or restriction so as to be able to respond to the accommodation request;
• grant accommodation requests in a timely manner, to the point of undue hardship, even when the request for accommodation does not use any specific formal language; and
• bear the costs of any required medical information or documentation.

While many of these requirements may be met through the formal processes established under the Education Act, it should not be assumed that in all cases they will. The Education Act, its regulations, and the Ministry of Education’s policy statements are all subject to human rights law and policy. So too are the local-level accommodation practices that occur in the school setting.

Post-Secondary Institutions

As a number of submissions pointed out, the duty to accommodate rests on the educational institution as a whole – not just on the specific office for students with disabilities. Post-secondary institutions are responsible for ensuring that their facilities and services are accessible; that the environment is welcoming and non-discriminatory; that appropriate, effective and dignified accommodation processes are in place; and that students who require accommodations because of their disabilities are accommodated to the point of undue hardship. All members of the post-secondary institution have a role to play. For example,

• Faculty and staff have a duty to educate themselves about disability-related issues, to interact with students in a non-discriminatory manner, to engage in the accommodation process, and to provide appropriate accommodation to the point of undue hardship.
• Staff and faculty responsible for designing or developing new or revised facilities, services, policies, processes, courses, or curricula have a responsibility to ensure that these are designed inclusively, with the needs of persons with disabilities in mind.
• Clear and reasonable processes and guidelines for seeking accommodation should be in place at all post-secondary institutions, and these should be clearly communicated to all students.
• The process of accommodation, as well as the outcome, should be respectful of the dignity of the persons affected, and should take into account the importance of integration and full participation. Any planning for accessibility should recognize that persons with disabilities are important stakeholders in the process.

As well, the post-secondary institution still has a responsibility, short of undue hardship, to cover the cost of the required accommodation, unless there is sufficient and non-discriminatory outside funding available.^[138]

Students with Disabilities

Students with disabilities, or their parents/guardians where applicable, also have responsibilities in the accommodation process. At the post-secondary level, the CCDI has noted, “Both students and disability service officers have responsibilities in the provision of accommodations and services: students to communicate their accommodation needs in a timely fashion, and disability service offices to articulate reasonable procedures and to clearly communicate the procedures to follow in order to access accommodations”.

The Disability Policy provides guidance on the responsibilities of students seeking accommodation. For example, a student with a disability, or his or her parent or guardian, is required to:

• advise the accommodation provider of the disability (although the accommodation provider does not generally have the right to know what the disability is);
• make his or her needs known to the best of his or her ability, preferably in writing, in order that the person responsible for accommodation may make the requested accommodation;
• answer questions or provide information regarding relevant restrictions or limitations, including information from health care professionals, where appropriate, and as needed;
• participate in discussions regarding possible accommodation solutions;
• co-operate with any experts whose assistance is required to manage the accommodation process or when information is required that is unavailable to the person with a disability;
• meet curriculum standards once accommodation is provided;
• work with the accommodation provider on an ongoing basis to manage the accommodation process; and
• discuss his or her disability only with persons who need to know.

Many students with disabilities, and their parents and guardians, have themselves become experts in their own accommodation needs. Others will need more support and perhaps expert input. Students with disabilities should be given the discretion to manage and direct their own accommodation needs to the degree they see fit. The ultimate responsibility to ensure that accommodation happens rests on the service provider.

At the post-secondary level, concerns have been raised regarding situations where students, because of the particular nature of their disabilities, are unable to clearly communicate their needs, or have difficulty in co-operating with the accommodation process. There may be situations where a student poses a health and safety risk to him or herself or to others that would amount to an undue hardship, or an otherwise appropriate accommodation is impossible to implement in the particular circumstances. However, it is important that education providers not rush to such a conclusion. Further training for staff, or further supports for the student may resolve the issue. The accommodation process must be fully explored, to the point of undue hardship.

The Ontario Human Rights Commission

The submissions received during this consultation reinforced the importance of the Commission’s role in advancing equality for students with disabilities in the context of education. The Commission has a broad mandate under section 29 of the Code to forward human rights policy through education, monitoring, communication, research, inquiries and initiating investigations. The Commission will continue to forward its mandate in this area under section 29 of the Code. In this regard, the Commission makes the following commitments:

Guidelines

• The Commission has publicly committed to developing Guidelines on Accessible Education which will address disability and the duty to accommodate in the educational sector. These guidelines will clarify and communicate the roles and responsibilities of all parties with respect to:
  ➢ access to education,
  ➢ combating negative attitudes and stereotypes,
  ➢ determining and providing appropriate accommodations,
  ➢ respecting the confidentiality of persons with disabilities,
  ➢ developing a dignified and effective accommodation process, and
  ➢ applying the undue hardship standard.

The Guidelines will also incorporate an intersectional analysis of discrimination.

Monitoring

• The Commission will monitor the Ministry of Municipal Affairs and Housing’s progress in implementing amendments to the Building Code that will ensure greater harmonization between the Building Code and the Human Rights Code.
• The Commission will monitor progress with the recommended actions required by this Report, and to the extent that issues raised in this Report are not addressed over the next 12 months, the Commission may undertake section 29 inquiries, and will consider the use of its power to initiate complaints.
• The Commission will continue to examine concerns raised with respect to the disproportionate impact of the Safe Schools Act , as identified in this Report.

Compliance

• The Commission will continue to ensure priority handling of disability and education complaints at the primary and secondary level involving disputes about access to education services.
• The Commission will consider the appropriateness of naming the appropriate government Ministries as respondents in human rights complaints involving disability and education, particularly those alleging inadequate provision of special education services.
• The Commission will employ an intersectional approach to discrimination in its work, including policy development, compliance, litigation of complaints.

Education

• The Commission will continue to engage in public education activities to promote and encourage an awareness and understanding of a contextualized approach to discrimination analysis.
• The Commission will prepare educational tools, including a tool for teachers on disability issues and human rights obligations in the classroom.

Communications

• The Commission will take steps to ensure that test-providers and publishers are aware of their responsibilities under the Code.

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^[132] Eldridge v. British Columbia (Attorney General), supra, note 22.
^[133] Provincial Auditor’s 2001 Annual Report, supra, note 1 at 150.
^[134] R.R.O. 1990, Reg. 306, supra, note 13, s. 2(2), (3), (4).
^[135] The Ministry of Education, Standards for School Boards’ Special Education Plans, 2000 at page 3, available at http://www.edu.gov.on.ca/eng/general/elemsec/speced/iepstand/iepstand.html.
^[136] Ibid.
^[137] Disability Policy, supra, note 5 at Part 3.4.
^[138] Howard v. University of British Columbia, supra, note 124.