III. Education

Inclusive Education System with Accommodation

Article 24 of the Convention requires State Parties to recognize the right of persons with disabilities to education without discrimination. In particular, State Parties must ensure that persons with disabilities are not excluded from the general education system and have access to an inclusive, quality and free primary and secondary education on an equal basis with others. ¹³⁹ There must also be reasonable accommodation and support measures provided to persons with disabilities in an environment that maximize[s] academic and social development to ensure an effective education. ¹⁴⁰

Note #139

Convention, supra note 2, arts 24(2)(a), 24(2)(b).

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Note #140

Ibid, arts 24(2)(c), 24(2)(d).

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Education is a service under human rights legislation. ¹⁴¹ Also, the Charter applies to the public education system. ¹⁴² Thus, any potentially discriminatory action taken by a school or school board is reviewable through the human rights complaints process or through Charter litigation. In addition, legislation ¹⁴³ and policy ¹⁴⁴ specific to education sets out the right of every child between certain ages to free education, ¹⁴⁵ and aims to accommodate students with disabilities. The BC Supreme Court has stated that all students are entitled to an appropriate educational program and that a specialized, varied and dynamic program might be necessary. ¹⁴⁶ The Special Education Policy in that province states:

All students should have equitable access to learning, opportunities for achievement, and the pursuit of excellence in all aspects of their educational programs. ¹⁴⁷

BC aims for an inclusive education system which does not necessarily mean full integration in regular classrooms, but includes meaningful participation and the promotion of interaction with others. ¹⁴⁸ School boards may also make use of resource rooms, self-contained classes, community-based programs, or specialized settings. ¹⁴⁹ Students will only be placed in a setting other than

a neighbourhood school classroom with age and grade peers

where the school board

has made all reasonable efforts to integrate the student, and it is clear that a combination of education in such classes and supplementary support cannot meet their education or social needs, or when there is clear evidence that partial or full placement in another setting is the only option after considering their educational needs or the educational needs of others. ¹⁵⁰

An Individual Education Plan is to be developed for students with special needs, which must be reviewed every year. ¹⁵¹

Note #141

Jaffer v York University (2010), 268 OAC 338 (CA) at para 36 [Jaffer].

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Note #142

See e.g. Wynberg v Ontario (2006), 82 OR (3d) 561 (CA).

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Note #143

School Act, RSBC 1996, c 412; The Public Schools Act, RSM 1987, c P250 [PSA]; The Education Administration Act, RSM 1987, c E10; Schools Act, 1997, SNL 1997, c S-12.2; Education Act, RSO 1990, c E.2; Education Act, RSQ, c I-13.3 [Québec Education Act].

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Note #144

See e.g. British Columbia Ministry of Education, School Act Ministerial Orders; British Columbia Ministry of Education, Special Education Services: A Manual of Policies, Procedures and Guidelines, (British Columbia: Ministry of Education, 2011) [BC Special Education Services]; Manitoba Education, Citizenship and Youth, Appropriate Educational Programming in Manitoba: Standards for Student Services (Winnipeg: Minister of Education, Citizenship and Youth, 2006)[Manitoba Educational Programming]; Newfoundland Labrador Department of Education, Inclusive School Culture, online: ["Inclusive School Culture"]; Ontario Ministry of Education, Special Education;

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Note #145

BC School Act, supra note 143, ss 2(1), 75(1); PSA, supra note 143, s 259(1); Schools Act, supra note 143, s 3(1); Education Act, supra note 143, ss 32-33; Québec Education Act, supra note 143, s 1.

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Note #146

Hewko (guardian ad litem of) v British Columbia (2006), 153 ACWS (3d) 367 at para 275.

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Note #147

BC Special Education Services, supra note 144 at 1.

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Note #148

Ibid at 2.

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Note #149

Ibid.

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Note #150

Ibid at 2-3.

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Note #151

Ibid at 3.

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In Manitoba, school boards are required to ensure that

as far as reasonably practicable, appropriate educational programming is available to a pupil in a regular class of his or her peers. ¹⁵²

Manitoba endorses inclusive education to allow

every individual to feel accepted, valued and safe. ¹⁵³

School divisions are required to provide reasonable accommodation for all students. ¹⁵⁴ A pupil may be referred to a specialized assessment which may identify

other methods of differentiated instruction and adaptations that can be used to assist the pupil in meeting the expected learning outcomes, ¹⁵⁵

and if those adaptations are insufficient, an individual education plan is to be prepared, setting out the learning outcomes that can be reasonably expected and what the pupil requires to meet those outcomes. ¹⁵⁶ School divisions are also required to

make reasonable efforts to plan with community agencies, organizations and associations, other education authorities, and regional health and children's services authorities to support appropriate educational programming for students. ¹⁵⁷

Note #152

Appropriate Educational Programming Regulation, Man Reg 155/2005, s 2(2).

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Note #153

Manitoba Educational Programming, supra note 144 at 1.

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Note #154

Ibid at 9.

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Note #155

Appropriate Educational Programming Regulation, supra note 152,s 4(5)(a).

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Note #156

Ibid, ss 4(1), 4(2), 4(5), 5.

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Note #157

Manitoba Educational Programming, supra note 144 at 21.

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Newfoundland supports an inclusive school culture, meaning that

everyone in the school ... should feel that they belong, realize their potential, and contribute to the life of the school. ¹⁵⁸

65 schools have entered the Inclusive Schools Initiative since 2008, which supports the learning of inclusive practices, differentiated instruction, and co-teaching methods for educators. ¹⁵⁹ However, inclusive education

does not mean that every student is required or expected to be in the regular classroom 100% of the time. ¹⁶⁰

Students will start out in the regular classroom and the learning needs of students will be accommodated through Instruction Resource Teachers and Classroom/Subject Teachers. ¹⁶¹

Note #158

Inclusive School Culture, supra note 144.

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Note #159

Ibid.

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Note #160

Ibid.

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Note #161

Ibid.

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In Ontario, school boards must provide special education programs and services for exceptional pupils. ¹⁶² The Minister must also ensure that all exceptional pupils in Ontario have appropriate special education services without payment of fees. ¹⁶³ Where a program is not feasible within the public school system, the Minister does not fail to comply with this provision. ¹⁶⁴ As well, where there are alternative programs, the Minister is not required to provide any specific program but only to ensure that appropriate special education programs and services are available. ¹⁶⁵ An Individual Education Plan must be developed for each exceptional student, and should describe the program or services required by that student. ¹⁶⁶

Note #162

Education Act, supra note 143 s 170(1)(7).

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Note #163

Ibid s 8(3).

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Note #164

Wynberg v Ontario, supra note 142 at paras 122, 126.

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Note #165

Ibid at para 129.

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Note #166

Special Education, supra note 144.

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In Québec, an individualized education plan must be developed for handicapped students. ¹⁶⁷ Every school board must have an advisory committee on services for handicapped students which helps create policies on how to organize the provision of educational services required by these students. ¹⁶⁸ The school board must then put these policies into place to ensure that the needs of handicapped students are met and to encourage integration into a regular classroom where possible. ¹⁶⁹ Under An Act to Secure Handicapped Persons in the Exercise of Their Rights with a View to Achieving Social, School and Workplace Integration (SSWI), every handicapped person can apply to the Office des personnes handicapées du Québec for a service program to assist in his or her education, school integration or rehabilitation. ¹⁷⁰

Note #167

Québec Education Act, supra note 143, s 96.14.

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Note #168

Ibid, ss 185, 187(1).

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Note #169

Ibid, s 235.

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Note #170

RSQ, c E-20.1, ss 45, 50 [SSWI].

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In Eaton v Brant County Board of Education, the Supreme Court of Canada recognized that disability, as an enumerated ground of discrimination in section 15 of the Charter, is different from the other grounds because it varies depending on the individual and the context. ¹⁷¹ This creates a difference dilemma because segregation can either be protective or violative of equality depending on the specific individual. ¹⁷² The Court held that

[w]hile 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. ¹⁷³

Therefore, when the integrated setting is unable to meet a child's needs, a special education placement outside of this setting will be required for accommodation. ¹⁷⁴ Moreover, accommodation must be in the child's best interests and considerations of equality must be examined from the child's point of view. ¹⁷⁵ In that case, the Court found it important that the tribunal whose decision it was reviewing had held that integration resulted in the child being isolated in a disserving and potentially insidious way. ¹⁷⁶

Note #171

[1997] 1 SCR 241 at para 69 [Eaton].

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Note #172

Ibid.

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Note #173

Ibid.

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Note #174

Ibid at para 77

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Note #175

Ibid.

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Note #176

Ibid at para 75.

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Delivery of Education in Appropriate Languages and Modes

State Parties are required to

enable persons with disabilities to learn life and social development skills to facilitate their full and equal participation in education and as members of the community. ¹⁷⁷

Therefore, State Parties must ensure that education is delivered in an appropriate manner by facilitating the learning of Braille, sign language, alternative script, and augmentative and alternate modes and means of communication. ¹⁷⁸ In BC, there are a variety of services available to meet the diverse needs of students who require different supports to learn. ¹⁷⁹ School districts may offer speech-language pathology services, which support students who have difficulties in oral communication. ¹⁸⁰ They are also encouraged to obtain an occupational therapist or physiotherapist where students require one for the purpose of learning. ¹⁸¹ In addition, distributed learning is available as

an alternative to classroom-based instruction for Kindergarten to Grade 12 students, including those with special needs. ¹⁸²

Note #177

Convention, supra note 2, art 24(3).

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Note #178

Ibid.

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Note #179

BC Special Education Services, supra note 144 Ibid at 23-39.

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Note #180

Ibid at 31.

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Note #181

Ibid at 34.

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Note #182

Ibid at 38.

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In Manitoba, a team of education consultants work with schools to provide the necessary supports to students who are blind or visually impaired. ¹⁸³ The consultants determine needs for special equipment, and then work with schools to obtain the recommended equipment. ¹⁸⁴ Reading materials in audio, Braille, large print and electronic text can be obtained from Manitoba Education Alternate Format Services. ¹⁸⁵ The development of an Individual Education Plan plays a large role in ensuring the student receives the necessary supports for learning. ¹⁸⁶ In Newfoundland, a student with an exceptionality is defined as a student with certain strengths or needs, which may be cognitive, emotional, behavioural, medical, social or physical. ¹⁸⁷ The Department of Education provides various supports and services for students with an exceptionality. General services include alternate format materials, assistive technology, home tutoring, special transportation and a student assistant. ¹⁸⁸

Note #183

Manitoba Education, Manitoba Education Services for Students Who Are Blind or Visually Impaired, at 5.

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Note #184

Ibid at 9.

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Note #185

Ibid at 11.

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Note #186

Ibid at 4.

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Note #187

Newfoundland Labrador Department of Education, Disabilities, Exceptionalities and Services.

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Note #188

Newfoundland Labrador Department of Education, General Services.

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In Ontario, a student who, because of a visual and/or auditory handicap (that has been certified by a medical practitioner) requires a special educational program, may be admitted to an Ontario School for the Blind or an Ontario School for the Deaf without the payment of fees. ¹⁸⁹ An Ontario court has found that

once an auditory handicap is established, the placement will follow unless the Committee is satisfied that the applicant would not be able to benefit from the placement. ¹⁹⁰

A teacher may use American Sign Language or Québec Sign Language to communicate with a student in the classroom. ¹⁹¹ For students where an Individual Education Plan is developed, it will specify the

appropriate accommodations, program modifications and/or alternative programs as well as specific instructional and assessment strategies. ¹⁹²

Note #189

Ontario Schools for the Blind and the Deaf, RRO 1990, Reg 296, ss 3(1), 9.

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Note #190

Baggs (Litigation guardian of) v Ontario (Minister of Education) (2009), 251 OAC 230, at para 47 (Div Ct); Ontario Schools for the Blind and the Deaf, ibid, s 8(1).

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Note #191

Operation Of Schools – General, RRO 1990, Reg 298, s 32.

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Note #192

Ontario Ministry of Education, The Individual Education Plan Process.

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In Québec, students who have a profound intellectual impairment are provided with various educational, medical and physical rehabilitation services by the school. ¹⁹³ A school board can also enter into agreements with another school board, body or person to provide special educational services, literary services or population education services. ¹⁹⁴

Note #193

Québec Ministère de l'Éducation, du Loisir et du Sport, Education Program for Students With a Profound Intellectual Impairment, (Québec: Ministère de l'Éducation, du Loisir et du Sport, 2011), at 23.

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Note #194

Québec Education Act, supra note 143, s 213.

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Teachers and Training

To ensure effective learning, State Parties must take appropriate measures to employ teachers who are qualified in sign language and/or Braille and to train professionals and staff who work at all levels of education. ¹⁹⁵ In general, teachers in the various provinces must meet certification or licensing requirements in order to teach in the public school system. Particular certification is required for those working in specific roles with children with special needs. ¹⁹⁷ More general training is provided to other staff about working with students with special needs. ¹⁹⁸

Note #195

Convention, supra note 2, art 24(4). For example, training must involve disability awareness, modes of communication, as well as methods and materials to support persons with disabilities.

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Note #196

See e.g. PSA, supra note 143, s 91(1); Newfoundland Labrador Department of Education, Teacher Certification; Ontario Education Act, supra note 143, s 262; Québec Education Act, supra note 143, s 23.

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Note #197

See e.g. BC Special Education Services, supra note 144 at 25-29; Ontario Schools For The Blind And The Deaf, supra note 189, s 23; Operation Of Schools – General, supra note 191, s 19(6).

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Note #198

See e.g. BC Special Education Services, supra note 144 at 6-7; Manitoba Educational Programming, supra note 144 at 22; Inclusive Schools Culture, supra note 144.

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Access to General Tertiary Education, Vocational Training and Adult Education

State Parties to the Convention must ensure that persons with disabilities have access to general tertiary education, vocational training, adult education and lifelong learning on an equal basis with others and that reasonable accommodation is provided. ¹⁹⁹ BC offers adult special education programs and services to assist persons with disabilities in post-secondary studies. ²⁰⁰ Support services may be technological, physical, or academic (e.g. materials in alternate formats). ²⁰¹ Classroom and exam supports (e.g. note taking, interpreter, extra time) are also available. ²⁰² A report submitted to the Newfoundland and Labrador Minister of Education in December 2004, recognized that many of the supports in the elementary and secondary school system do not follow students to the post-secondary level. ²⁰³ Individual post-secondary institutions may provide necessary accommodations, such as Memorial University, where the Glenn Roy Blundon Centre for Students with Disabilities

assist[s] students by facilitating access to information, services, and campus facilities in accordance with the university's Academic Accommodation Policy for Students with Disabilities.²⁰⁴

Note #199

Convention, supra note 2, art 24(5).

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Note #200

British Columbia Ministry of Advanced Education, Adult Special Education.

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Note #201

Ibid.

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Note #202

Ibid.

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Note #203

Wayne Ludlow & Cyril Farrell, What We Heard: A Report of Consultations on Public Post-Secondary Education in Newfoundland and Labrador (December 2004), at 31.

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Note #204

Memorial University, Glenn Roy Blundon Centre for Students with Disabilities. For examples of some accommodations provided to post-secondary students in Manitoba, see Manitoba Education, Services for the Blind/Visually Impaired and for Students with Print Disabilities.

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Under the Labour Market Agreement for Persons with Disabilities, funding has been provided to Ontario colleges and universities to assist them in making their programs and services accessible to persons with disabilities. ²⁰⁵ The Ontario Human Rights Commission has also found that post-secondary institutions

have developed a wide range of delivery methods and structures

and nearly all post-secondary institutions

appear to provide some specialized facilities, policies, equipment or services for students with disabilities. ²⁰⁶

Note #205

Ontario Ministry of Community and Social Services, Canada-Ontario Labour Market Agreement For Persons with Disabilities: 2010-11 Annual Report (Ministry of Community and Social Services, 2011), at 20-22 [Canada-Ontario Labour Market].

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Note #206

Ontario Human Rights Commission, Post-secondary Education.

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In Québec, with regard to university, college and secondary level educational institutions as well as organizations that provide vocational training, the Office des personnes handicapées du Québec must promote

the inclusion of elements dealing with the adaptation of interventions and services for handicapped persons and, at the request of such institutions or organizations, advise them in that regard. ²⁰⁷

Note #207

SSWI, supra note 170, s 25(e.1).

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Finally, other areas of law, such as income tax, have relevance to persons with disabilities in the sphere of education. Under the Income Tax Act, a medical expense credit may be claimed where an individual paid for tutoring services that are supplementary to the primary education of the patient who has a learning disability or mental impairment and has been certified by a medical practitioner as someone who, because of the disability or impairment, requires those services. ²⁰⁸ The Tax Court of Canada has found that this provision should be interpreted compassionately and in favour of the person claiming the credit. ²⁰⁹ For example, where parents register a child who has severe learning disabilities in a distance education school and hires a tutor to carry out and supplement these studies, the claimant is entitled to the credit. ²¹⁰ A medical expense credit may also be claimed for required care, or care and training at a school, institution or other place, by reason of physical or mental handicap. ²¹¹

Note #208

RSC 1985, c 1 (5th Supp), s 118.2(2)(l.91).

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Note #209

Hoare v Canada, [2007] 4 CTC 2283 at para 29.

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Note #210

Ibid at paras 2, 23-24, 33.

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Note #211

Income Tax Act, supra note 208, s 118.2(2)(e).

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