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Education is a “service” under the Code

Section 1 of the Code guarantees the right to equal treatment in services, without discrimination on the ground of disability. Education, in its broadest sense, is a “service” within the meaning of the Code.[3] The scope of “educational services” will include the mastery of knowledge, academic standards, evaluation and accreditation. It may also encompass the development of a student’s personality, talents and mental and physical abilities to their fullest potential, and may include co-instructional activities such as school-related sports, arts and cultural activities, and school functions and field trips. At the lower grade levels, the service of education will typically be defined more broadly and may include the student’s overall social, physical and academic development in the educational setting. At the higher levels of education, formal educational services will be defined more narrowly and will focus increasingly on academic standards and accreditation.

Duty to accommodate disability

Once a disability-related need has been identified, or where a prima facie case of discrimination has been established, education providers have a duty to accommodate the needs of students with disabilities to allow them to access educational services equally, unless to do so would cause undue hardship.[4]

Applies to public and private educational institutions

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. This includes special schools which exist in the province such as hospital schools, care and treatment programs, schools in correctional facilities and provincial schools.[5] It would also include separate schools, French language schools and trade, business and professional accreditation courses.

Defining disability

The definition of “disability” in the Code is broad.[6] It includes past, present and perceived conditions. When considering whether a student has been discriminated against because of disability, the focus may be on how the student was treated rather than on proving that he or she has physical limitations or an ailment.

What the courts say: The Supreme Court has established that a disability may be the result of a physical limitation, an ailment, a perceived limitation or a combination of all these factors. The focus is on the effects of the preference, exclusion or other type of differential treatment experienced by the person and not on proof of physical limitations or the presence of an ailment. The Court has stated: “By placing the emphasis on human dignity, respect, and the right to equality rather than a simple biomedical condition, this approach recognizes that the attitudes of society and its members often contribute to the idea or perception of a 'handicap'. In fact, a person may have no limitations in everyday activities other than those created by prejudice and stereotypes.”[7]

Protection for persons with disabilities under the Code explicitly includes physical disability, developmental disabilities and learning disabilities. Discrimination may be based as much on perceptions, myths and stereotypes, as on the existence of actual functional limitations.[8]

Forms of discrimination

Discrimination can take many forms. It can occur when an education provider adopts a rule that, on its face, discriminates against persons with disabilities.

Example: As a condition of enrolment, a college requires deaf students to sign a waiver stating that the college is not responsible for providing or funding accommodations.

Discrimination can also take place through another person or other means.

Example: A private school instructs an admissions scout not to recruit students with disabilities who have costly accommodation requirements. In this case, the person or persons giving the instructions are discriminating indirectly.

Education rules, policies, procedures, requirements, eligibility criteria or qualifications may appear neutral but may nonetheless amount to constructive or “adverse effect” discrimination.

Example: A university policy of awarding scholarships only to students in full-time attendance would likely have an adverse effect on students whose disabilities only permit them to attend school on a part-time basis.

[3] Peel Board of Education v. Ontario (Human Rights Commission) (1990), 12 C.H.R.R. D/91 (Ont. S.C.)
[4] See section 17 of the Ontario Human Rights Code (the Code), R.S.O. 1990, c.H-19. It should be noted that, in some situations, equality may require different treatment that does not offend an individual’s dignity.
[5] Provincial schools are residential schools geared to students with specific exceptionalities (for example, students who are blind, deaf, deafened or hard of hearing).
[6] See section 10 of the Code, supra, note 5.
[7] Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [”Mercier”], 1 S.C.R. 665 at para. 77.
[8] Ibid., at para. 39.

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