Exclusion – Accepting “reasonable” accommodations

Kahn v. Upper Grand District School Board, 2019 HRTO 1137 (CanLII)

Parents must accept “reasonable accommodations” from the district. What is reasonable is arguable.

From the case:

[258]           The only person who did not agree with the plan was Ms. Kahn. Her reasons for disagreeing at the time appeared to relate to the fact that Grayson’s time at school would be too short before she would be required to pick him up. However, since the plan depended on starting Grayson out successfully in short but increasing increments, and the plan was supported by all involved in developing it, including Ms. Kahn’s private BCBA and her contact at Kerry’s Place, I find that there was no reasonable basis for Ms. Kahn’s rejection of the Loop of School plan.

[259]           An applicant, who in this case is represented by his mother, has an obligation to co-operate in accommodation process, which includes a “duty to facilitate the implementation” of a proposal for accommodation that is reasonable. See Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC) (Renaud); YB v. Conseil des ecoles publiques de l’Est de L’Ontario, 2017 HRTO 492; Fisher v. York University, 2011 HRTO 1229 (“Fisher”).

[260]           In rejecting the Loop of School plan, Ms. Kahn failed in her obligation to co-operate in the accommodation process. In so finding, I note that parents do not have the right to dictate the accommodations which their children will be provided with to access education. While parents do have the right to provide input as part of the accommodation process – which Ms. Kahn did in this case – they must accept reasonable accommodations offered by the school board. See UM v. York Region District School Board, 2017 HRTO 1718; Fisher.

[261]           After rejecting this plan, Ms. Kahn requested that Grayson either be suspended or excluded. Given the serious injury to Ms. Bowers, a letter was sent to the Kahns on behalf of Ms. Newman, advising that Grayson was suspended pending an investigation into a potential recommendation to expel. Three options for Grayson’s education in the interim were offered, including a placement in a special education class at his home school. A further option of Home Instruction was offered, and Ms. Kahn accepted this option. The respondent put Home Instruction into place. I find that the respondent in making these offers, continued to make reasonable efforts to accommodate the applicant.

[271]           The evidence establishes that, in rejecting the respondent’s repeated invitations to meet to discuss Grayson’s return to school, the applicant failed to engage in the accommodation process in any meaningful way. Moreover, the applicant failed to accept reasonable accommodations offered by the respondent. Therefore, I must dismiss the Application.