ADHD in Ontario Schools - Ontario Human Rights Commission Up-date

In February of 2017 I called the Ontario Human Right Commission asking for an up-date on ADHD in the Ontario school system and spoke with Ms. Cherie Robertson, Senior Policy Analyst Policy, Education, Monitoring & Outreach Ontario Human Rights Commission. This was followed up with an e-mail requesting that the Ontario Human Rights Commission (OHRC) put in writing that Attention Deficit Hyperactivity Disorder (ADHD) is a disability within the meaning of the Ontario Human Rights Code (Code). In the e-mail and discussion I outlined our concerns that students and their families are encountering barriers in the education system and are being told that students with ADHD-related needs are not entitled to education resources or accommodations, since ADHD is not included in the Ministry of Education’s “special education” categories.

At that time, Ms. Robertson assured me that ADHD was indeed a disability under the Code, and advised that she would be in touch with more information once the OHRC had completed its update of the Guidelines on Accessible Education, 2004 policy publication.

Ms. Robertson did indeed follow-up with me last week to inform me that a draft of the OHRC’s Policy on Accessible Education for Students with Disabilities has now been approved and is scheduled for a fall release.

Ms. Robertson also shared some excerpts from the Policy that she thought would be of interest to CADDAC, which she gave me permission to share with you.

Some of the up-dates that directly address ADHD in Ontario schools are below exactly as seen in the guidelines including examples, notes and citations.

Section 2.2 of the Policy states:

It is important to note that, while the Ministry of Education has devised its own framework for identifying “exceptional pupils,” it is the Ontario Human Rights Code and human rights case law that establishes that education providers have a legal duty to accommodate the disability-related needs of students to the point of undue hardship. This legal duty exists whether or not a student with a disability falls within the Ministry’s definition of “exceptional pupil,”[1] and whether or not the student has gone through a formal IPRC process, or has an IEP.

Example: The OHRC has heard concerns from parents and advocacy organizations that some Ministry of Education documents fail to specifically name ADHD as an “exceptionality” and that, as a result, some education providers are failing to provide accommodation for this condition.[2] The definition of disability in the Code, and as interpreted in human rights case law, is broader than the Ministry of Education exceptionality categories. For example, human rights jurisprudence has explicitly recognized ADHD as a disability requiring accommodation under the Code.[3]

It is important to note that the Code has primacy over other legislation, including the Education Act. [4] This means that where there is an inconsistency between the Code and the Education Act, the Code will prevail.[5] And, in one case, the HRTO found that the Ministry of Education could be potentially liable for discrimination where its definition of exceptionalities prevented or delayed a student from receiving required accommodations.[6]

Section 8 of the Policy states,

Under the Code, education providers have a legal duty to accommodate the needs of students with disabilities who are adversely affected by a requirement, rule or standard.[7] Accommodation is necessary to address barriers in education that would otherwise prevent students with disabilities from having equal opportunities, access and benefits.

Ms. Robertson also shared that the policy includes other examples that reference situations where students with ADHD have accommodation needs in education. She stated that she hoped that these statements and the accompanying examples help to address the issues that I had raised with her and that they help to make clear to education providers what the OHRC’s position is in this regard.

Once the Policy is released to the public in the fall Ms. Robertson promised to send a copy to CADDAC.

While these guidelines are only one more step in the right direction to making sure that students with ADHD receive the education resources they deserve, it is another step forward  in a long journey.

Heidi Bernhardt

[1] In D.S. v. London District Catholic School Board, 2012 HRTO 786 (CanLII) [D.S.], the HRTO stated at para. 62: “[T]he issue of whether or not a child is an ‘exceptional student’ as that term is defined under the Education Act is not co-extensive with the issue of whether that child has a ‘disability’ within the meaning of the Code even where that child’s disability requires accommodation under the Code. To take a simple example, a child with a mobility impairment may not require placement in a special education program, but may nonetheless require accommodation to access school services. Similarly, a child who is gifted and thereby may be designated as an ‘exceptional student’ under the Education Act and require a special education program is not likely to be regarded as having a ‘disability’ under the Code.”

[2] Note that the approach of the Ministry, school boards and school staff is inconsistent. For example, while parents and students are frequently having to fight with front-line educators and school administration to have ADHD recognized and accommodated, the Ministry itself issued a memorandum to school boards, dated December 19, 2011, which states that the explicit inclusion of medical conditions (i.e. autism) in the categories of exceptionalities is not intended to exclude other medical conditions, specifically mentioning ADHD. The Ministry further states that the determining factor for the provision of special education programs is the needs of a student, and not a diagnosed/undiagnosed medical condition:

Inclusion of some medical conditions (e.g. autism) in the Guide's definitions of the five categories of exceptionalities is not intended to exclude any other medical condition that may result in learning difficulties, such as (but not limited to) Attention Deficit Disorder/Attention Deficit Hyperactivity Disorder (ADD/ADHD), Fetal Alcohol Syndrome, Tourette Syndrome, Myalgic Encephalomyelitis, Chronic Fatigue Syndrome, and Fibromyalgia Syndrome.

For example, a student with ADD/ADHD may present learning needs in many ways in the school setting and the student may be identified as exceptional within one or more of the categories of exceptionalities (including, Behaviour, Communication, Intellectual, Physical and/or Multiple) depending on the presentation, and the degree of the impact that ADD/ADHD has on that student's learning.

See: Ministry of Education, “Categories of Exceptionalities,” Memorandum to Directors of Education, et al, December 19, 2011; available online: http://www.edu.gov.on.ca/eng/general/elemsec/speced/2011CategoryException.pdf (date retrieved March 7, 2018).

[3] See, for example, Gaisiner v Method Integration Inc, 2014 HRTO 1718 (CanLII) [Gaisiner]; Cohen v Law School Admission Council, 2014 HRTO 537 (CanLII) [Cohen]; D.S., supra note 23; Binkley v Blue Mountain Resorts, 2010 HRTO 1997 (CanLII); Kelly v UBC (No 3), 2012 BCHRT 32 (CanLII) [Kelly], upheld on merits on judicial review in University of British Columbia v. Kelly, 2016 BCCA 271 (CanLII); Ryan v Sprott Shaw Community College, 2018 BCHRT 30 (CanLII); Dewart v Calgary Board of Education, 2004 AHRC 8 (CanLII); A and B obo Infant A v School District C (No. 5), 2018 BCHRT 25 (CanLII). See also: C.M. v. Toronto District School Board, 2012 HRTO 1853 (CanLII) [C.M.]; L.B. v Toronto District School Board, 2015 HRTO 1622 (CanLII) [L.B.], reconsideration refused 2016 HRTO 336 (CanLII); C.T. v Greater Essex County District School Board, 2017 HRTO 665 (CanLII); R.B. v Keewatin-Patricia District School Board, 2013 HRTO 1436 (CanLII).

[4] Section 47(2) of the Code.

[5] As was stated by the HRTO in L.B., supra note 25, at para. 98, “Since the Code has primacy over all other legislation in the Province, it is expected and must be assumed that school boards implement the Education Act in accordance with their Code obligations.” See also: Torrejon v. 114735 Ontario, 2010 HRTO 934 (CanLII), upheld on judicial review in 1147335 Ontario Inc., o/a Weston Property Management v. Torrejon, 2012 ONSC 1978 (CanLII).

[6] Davidson v Lambton Kent District School Board, 2008 HRTO 294 (CanLII), at paras 33–38.

[7] See section 17 of the Code, supra note 2. Requirements under the CRPD also provide that States Parties, including Canada, must take steps to make sure that people with disabilities are provided with accommodation (for example, to ensure equal access to education): see CRPD, supra note 7 at Article 13(1), Article 24(2)(c), and Article 27(1)(i), respectively. “Reasonable accommodation” is covered under Article 5 generally.