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III. Human Rights Law and Policy

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1. International Documents

The United Nations Convention on the Rights of the Child, Article 23, recognizes the rights of children with disabilities to “enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community”. This Article further requires states parties to extend special care to such children to ensure that they have effective access to, and receive training, education, and preparation for employment, among other services, in a “manner conducive to the child’s achieving the fullest possible social integration and individual development”.

Article 28 of the Convention recognizes the right of all children to education. Article 29 sets out the objectives of education, including “the development of the child’s personality, talents and mental and physical abilities to their fullest potential”.

The United Nations Declaration of the Rights of Disabled Persons affirms in section 6 the right of persons with disabilities to education and to vocational training and other services which will “enable them to develop their capabilities and skills to the maximum and will hasten the processes of their social integration or reintegration”.  Section 3 affirms the right of persons with disabilities to respect for their human dignity.

UNESCO’s 1994 World Conference on Special Needs Education resulted in the Salamanca Statement and Framework for Action on Special Needs Education, which emphasized that educational systems and programs should be designed and implemented to take into account the wide diversity of children’s needs and characteristics, and that those with special educational needs should have access to regular schools, which should accommodate them within a child-centred pedagogy capable of meeting those needs. According to this document

[R]egular schools with this inclusive orientation are the most effective means of combating discriminatory attitudes, creating welcoming communities, building an inclusive society and achieving education for all; moreover, they provide an effective education to the majority of children and improve the efficiency and ultimately the cost-effectiveness of the entire education system.

2. Relevant Provisions of the Ontario Human Rights Code

Section 1 of the Code affirms the right to equal treatment in services, which  includes education, without discrimination because of disability. Section 10(1) of the Code provides a broad definition of the term “disability”, as follows:

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; ("handicap")

Section 10(3) adds that “The right to equal treatment without discrimination because of disability includes the right to equal treatment without discrimination because a person has or has had a disability or is believed to have or to have had a disability.”

Section 11 of the Code clarifies that discrimination includes constructive discrimination, in which a requirement, qualification or factor that appears neutral has the effect of excluding or disadvantaging a group protected under the Code.

The duty to accommodate is set out in section 17. It is not discriminatory to refuse a service because a person is incapable of fulfilling the essential requirements of exercising the right. However, a person will only be considered incapable if the needs of the person cannot be accommodated without undue hardship.

It is also worth noting that section 14 permits the implementation of special programs to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve equality, or that will likely contribute to the elimination of the infringement of Code rights.

3. Policy and Guidelines on Disability and the Duty to Accommodate

As noted earlier, in March 2001, the OHRC released its Policy and Guidelines on Disability and the Duty to Accommodate, the result of extensive research and consultation.  This document sets out the OHRC’s guiding principles in this area, which are applicable to the field of education, as well as to other types of services and social areas.

The Policy takes a broad approach to the definition of disability, following Supreme Court of Canada decisions that make it clear that discrimination because of disability may be based as much on perceptions, myths and stereotypes as on actual functional limitations. As well, the Policy recognizes the unique challenges faced by persons with non-evident disabilities, such as mental disabilities.

There are three key principles underpinning the duty to accommodate:

  1. Respect for the dignity of persons with disabilities, including integrity, empowerment, confidentiality, privacy, comfort, autonomy, individuality and self-esteem;
  2. Individualization, meaning that persons with disabilities are individuals first, and must be considered, assessed, and accommodated individually; and
  3. Right of persons with disabilities to integration and full participation, which requires inclusive design of facilities, programs, policies, and procedures, and barrier-removal where barriers are found to exist.

The responsibility for successful accommodation is shared by all parties. Everyone involved should cooperatively engage in the process, share information as needed, and avail themselves of potential accommodation solutions. The accommodation process should itself respect the dignity of persons with disabilities, including respect for privacy and confidentiality.

The Policy reaffirms the standard for undue hardship set in 1989. The standard is a high one. There are only three factors to be considered: costs, outside sources of funding, and health and safety. The onus of proof is on the person making the claim of undue hardship, and there must be objective, direct, and (where possible) quantifiable evidence to support the claim. 

4. Case Law

There are relatively few recent human rights cases dealing with disability and education, perhaps because the caseload of most human rights bodies tends to be dominated by employment-related complaints.

The most prominent recent case dealing with education and disability is Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241, a 1997 decision of the Supreme Court of Canada. This case was decided under the equality rights provisions of the Charter of Rights and Freedoms (the “Charter”), rather than under human rights statutes. Emily Eaton, a 12-year old student with a disability, was initially placed in an integrated classroom. After three years, her teachers and assistants concluded that this placement was not in her best interests, and that she should be placed in a specialized classroom. Her parents disagreed. An Identification, Placement and Review Committee (“IPRC”) determined that Emily Eaton should be placed in a specialized setting. Her parents appealed the decision, with varying degrees of success, up to the Supreme Court of Canada. The Supreme Court of Canada ruled that the decision of the tribunal to place Emily Eaton in a special education class, contrary to the wishes of her parents, did not violate the equality rights provisions of the Charter.

The Court stated that failure to place Emily Eaton in an integrated setting did not create a burden or disadvantage for her, because such a placement was in her best interests. According to the Court,

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 …. Integration can be either a benefit or a burden depending on whether the individual can profit from the advantages that integration provides.

The Court found that the tribunal had sought to determine the placement that would be in the best interests of Emily Eaton, had considered her special needs, and striven to fashion a placement that would accommodate those needs and enable her to profit from the services that an educational program offers.

The Supreme Court of Canada also made some comments of interest in Adler v. Ontario, [1996] 3 S.C.R. 609. This case involved students with disabilities attending private religious schools, who as a result were not eligible for the School Health Support Services Program. The case was mainly concerned with whether the failure of the Ontario government to fund private religious schools violated Charter rights to equality and to freedom of religion. The majority of the Court found that failure to fund these schools did not violate the Charter, and consequently, that the denial of School Health Support Services, which were characterized as educational services, also did not violate the Charter.  McLachlin J., and L’Heureux-Dubé J., in separate dissents, held that denying this program to students at private religious schools was a violation of their equality rights.

Although dealing with health care, rather than educational services, the Supreme Court of Canada decision in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 is one of the most important decisions on provision of services to persons with disabilities. In Eldridge, the Court ruled that the failure of hospitals to provide sign-language interpreters to enable deaf persons to communicate effectively with doctors and other health care providers was a violation of the equality rights provisions of the Charter. The Court found that deaf persons had suffered discrimination because the government had failed to ensure that they benefited equally from a service available to everyone. 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.

Similarly, in a 1993 decision by the B.C. Council of Human Rights (Howard v. University of British Columbia,  (1993) 18 C.H.R.R. D/37), the University of British Columbia was ordered to provide sign-language interpretation services to a student, finding that sign-language interpreters were an accommodation required by deaf students to enable them to access the University’s educational services, and that provision of such services would not cause undue hardship.

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