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School Board Loses Rights Complaint

Autistic child denied transportation from clinic to school 

By Don Butler, The Ottawa Citizen August 26, 2010   

OTTAWA-The Ottawa Catholic School Board discriminated against a five-year-old autistic boy when it denied him transportation from a private clinic to his
school, says the Human Rights Tribunal of Ontario.

In a decision released Thursday, the tribunal ordered the board to pay the boy, referred to only as M.O., $10,000 in compensation as well as travel expenses estimated at up to $3,000.

Though the board argued that transporting M.O. would set a precedent that could cost millions, the tribunal dismissed those claims as “impressionistic and not persuasive.”

M.O.’s father, lawyer Joseph Obagi, who represented his son at the tribunal hearing, said the board’s concerns “had nothing to do with my son’s needs and particular challenges, but everything to do with setting a precedent they didn’t want to set.

“There’s a process that needs to be followed,” he said in an interview. “You need to understand the needs of that particular child, you need to understand
the circumstances, you need to consider those circumstances, and then you need to make a decision. The tribunal found the board did none of those things.”

M.O., who is at the severe end of the autism spectrum, began one-on-one therapy in January 2008 at Portia Learning Centre near Maitland Avenue and the Queensway. The centre is 33 kilometres from his east-end home.

Last September, M.O. began a half-day special kindergarten program at St. Clare Catholic Elementary School in Orléans, but continued in morning therapy at Portia.

The board provides transportation to more than half of its students, but it refused to transport M.O. from Portia to the school because, it told his parents, Portia wasn’t a licensed daycare facility.

At the tribunal hearing, though, the board changed its story. The real reason for the refusal, officials testified, was that it was not board policy to
provide transportation to or from therapy.

The board argued the cost of providing transportation to or from therapy could “substantially affect” its viability.

If all students with a disability received special needs transportation to attend therapy, as many at 11,700 could qualify at a potential cost of more than
$23 million, the board’s lawyer told the tribunal.

Even if only one per cent of the board’s students asked for one-way transportation to therapy, the cost to the board could be $1.8 million, the lawyer said.

However, the tribunal dismissed those estimates, saying the board had presented no evidence to suggest there were substantial numbers of students in a situation similar to that of M.O.

Though M.O. receives therapy at Portia, the tribunal said it was clear that Portia also served as the boy’s morning caregiver.

Apart from not having a daycare licence, Portia is “not distinguishable from caregivers to which the board provides transportation,” the tribunal found.

The tribunal concluded the board discriminated against M.O. by imposing a requirement that resulted in “adverse treatment based on his disability.”

The decision means that, assuming M.O.’s caregiving arrangements don’t change, the board must provide transportation from Portia to the school this fall.

The tribunal also ordered the board to review transportation requests by special needs students on an individual basis to determine whether an accommodation was required to comply with the province’s Human Rights Code.

The board can appeal the decision to Divisional Court, but, with school starting Sept. 7, Obagi said time was running out to make travel arrangements for
his son. “We’re going to have to deal with this very soon.”

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