Toronto, ON, May 20, 2014 — It is frightening how many families have had their exceptional child excluded indefinitely from school, or have felt compelled to home school or privately educate their child because a publicly funded school did not meet their child’s needs.  Universal education for all has become a fantasy rather than a reality.

Five recent developments, after years of futility, mean legal action may finally entitle these children to the education they require:

1. Irreparable harm results when a child’s education is interrupted. A process that takes years, or which only provides ex post facto compensation, misses this point.  In a key decision, the Ontario Human Rights Tribunal recently granted an immediate order returning an excluded child to school.  (R.B. v. Keewatin-Patricia District School Board, 2013 HRTO 130 (link))
2. The Supreme Court of Canada delivered an overwhelming affirmation that failure to accommodate exceptional students is discrimination. It also awarded damages covering the full cost of the exceptional student’s private school education. Until the public system lives up to its obligation to provide “equal access,” school boards may be ordered to pay for the private school education of excluded students.  (Moore v. British Columbia (Education), 2012 SCC 61 (link))
3. The Tribunal recently ended a longstanding practice of holding education cases to a higher standard of proof than other discrimination cases. The Tribunal overturned a trespass order and communication ban imposed on parents who advocated on behalf of their child. It ordered the school board to provide the child with a full time education assistant, reversing a disturbing trend of boards cutting essential special education to pay for other priorities. Finally, the Tribunal awarded $35,000 in general damages to the exceptional pupil – a landmark award for a case on educational accommodations.  bakerlaw was pleased to represent the exceptional pupil throughout these proceedings.  (R.B. v. Keewatin-Patricia District School Board, 2013 HRTO 1436 (link))
4. The Special Education Tribunal (SET) is now under the supervision of the Social Justice chair. While bakerlaw won 1 of only 2 winning SET cases, we had been advising clients that SET appeals are often futile.  Social Justice oversight means it may be time to give the SET another chance.
5. As a result of these changes, bakerlaw has found school boards will pay for independent mediators to help resolve legal cases before they go to tribunal. Not only does this produce timely outcomes, but it also reduces legal fees.

If you have given up on the public system, or if you believed legal action was pointless, we suggest you think again.