Suggestions to Help Prepare Your Ontario Human Rights Tribunal Complaint Against your School & School Board, For The Failure to Accommodate Your Immunocompromised Child in the Time of COVID-19

It’s not that difficult. You don’t necessarily need a lawyer if you cannot afford one. Note: This is NOT legal advice and I am not a lawyer (retired Radiation Oncologist & occasional undergraduate medical educator). These are some suggestions based on my considerable personal experiences with the Ontario Human Right Commission and Tribunal since 1998. Please follow the guide on the Tribunal website (https://tribunalsontario.ca/hrto/application-and-hearing-process/), and of course, follow the legal advice you receive. Use the Human Rights Legal Support Centre: http://www.hrlsc.on.ca/en/welcome

Terms: OHRC — Ontario Human Rights Code, HRTO — Human Rights Tribunal of Ontario

Many people would be intimidated to take their School Board to the Ontario Human Rights Tribunal, should their code-protected child be denied an accommodation to continue in-person learning. They should not be. Likewise, employees have a right to workplace accommodations for their disability, unless it would cause an undue hardship on the employer (which has been interpreted as severe financial difficulties to bankruptcy). Code-protected teachers or school staff have the same right

Has your school or school board declined to enact strategies to reduce COVID-19 transmission? If so, is your child facing additional risks because there are few staff and/or children masking, and/or few are isolating during or after illness? Which children are protected by the Ontario Human Rights Code? Are you a teacher with an at-risk condition who has been denied accommodations?

The code-protected ground: “Disability” is interpreted broadly, and would include any child who is at increased risk from COVID-19 infection and complications from infection, hospitalization, or death. This would include conditions such as intellectual disabilities either acquired or congenital (Down’s Syndrome for example), primary immunodeficiency/inborn errors of immunity (e.g. CVID), asthma, diabetes, Cystic Fibrosis, any lung disease, and conditions requiring immunosuppressants such as juvenile rheumatoid arthritis, inflammatory bowel disease (Chron’s, Ulcerative colitis), and cancer. For adults working in the setting of education, there are a number of well-documented at-risk conditions such as age >60, intellectual or developmental delay (Down’s syndrome), immunocompromising conditions (organ transplantation, primary immunodeficiency, cancer diagnosis, cancer therapy, autoimmune disease, etc), pregnancy etc. A letter from a physician or nurse practitioner describing that your child is at increased risk from a COVID-19 infection would be necessary. It would help to disclose the condition, however, it’s possible to leave the condition confidential. Whether for a child or an adult, your healthcare provider only needs to note the general reason for the increased risk (immunosuppression, for example) and support your request for accommodation. In my opinion, some reasonable accommodation strategies in the education setting, based on the present evidence (not an exhaustive list) would include:

1. Classroom masking (all students and staff), moving your child (with a few other students acceptable) to a separate well-ventilated classroom for snacks and lunch;
2. Improved ventilation in the classroom confirmed with C02 measurements;
3. Portable HEPA filtration or HEPA/UV filtration unit in the classroom, or written confirmation that HEPA filtration is incorporated with their HVAC system.
4. Isolation of classmates for 7 days following a positive COVID-19 test. (may become moot if RATs are no longer provided)

Accommodations would be supported or described by your child’s physician or specialist. Some physicians may not be willing to outline specific accommodations. You may refer them to published COVID-19 Advisory Science Table Briefs. You may need to seek another physician’s opinion.

Before you approach the Tribunal, you must exhaust your accommodation requests to the school and school board. You should have provided evidence to your school, including a copy of your doctor’s letter in your requests for accommodations. It would be best to send a final email to your principal, and possibly a school board representative if they had not overtly denied an accommodation request in writing.

In that email, document your accommodation requests (dates, phone conversations, meetings, emails, your doctor’s letter), summarize the responses (who said what and when) and explain the accommodations were recommended by your child’s doctor and supported by published medical evidence. Refer to the Ontario Human Rights Commission policy on Accessible Education for Students with Disabilities (8. Duty to Accommodate):

“Education environments should be designed inclusively and must be adapted to accommodate the needs of a student with a disability in a way that promotes integration and full participation.” https://www.ohrc.on.ca/en/policy-accessible-education-students-disabilities#Duty%20to%20accommodate

Refer to the Ontario Human Rights Commission policy statement on human rights in COVID-19 recovery planning, principle 1.

“1. Using evidence-informed approaches, prioritize the rights and needs of the communities hardest hit by the health, economic and social impacts of the pandemic, and make sure these communities benefit equally from any legislation, policy, program or requirement designed to promote pandemic recovery.
-Recognize that all levels of government must work together to mitigate and address the potential generational impacts of COVID-19 on Code-protected groups by urgently addressing education, job, income and housing loss as well as related impacts on mental health

-Recognize that to live free from poverty is a human right and is interdependent with other human rights[23]

-Recognize the obligation to progressively realize the right to housing as affirmed in the National Housing Strategy Act (NHSA)[24]

-Realize the right to equal treatment in education for vulnerable groups who experienced disproportionate impacts due to school closures (such as lack of access to technology and other supports including access to culturally appropriate learning materials).” https://www.ohrc.on.ca/en/news_centre/ohrc-policy-statement-human-rights-covid-19-recovery-planning

Finally, remind the school board of their responsibility under the Education Act, to “promote student achievement and well-being”, which includes health, EA RSO 1990, c. E.2, 169, s.1a.. Also, remind them, that according to the Education Act, the duties of a principal include:

1. 265. 1(j) “to give assiduous attention to the health and comfort of the pupils, to the cleanliness, temperature and ventilation of the school,…”
2. 265/ 1(k) “to promptly to the board and to the medical officer of health when the principal has reason to suspect the existence of any communicable disease in the school, and of the unsanitary condition of any part of the school building or the school grounds”;
3. 265 1(l), “to refuse admission to the school of any person who the principal believes is infected with or exposed to communicable diseases requiring an order under section 22 of the Health Protection and Promotion Act until furnished with a certificate of a medical officer of health or of a legally qualified medical practitioner approved by the medical officer of health that all danger from exposure to contact with such person has passed”;
4. 265 1 (m), “to, subject to an appeal to the board, to refuse to admit to the school or classroom a person whose presence in the school or classroom would in the principal’s judgment be detrimental to the physical or mental well-being of the pupils;”

Regardless of an order from the MOH, school boards and principals have a duty to maintain student health. That includes the health of all students, especially those with underlying health problems, who are immunocompromised or have other disabilities and congenital conditions that place them at higher risk from COVID-19 infection. Vaccination does not consistently reduce the risk in persons who do not form good immune responses nor does it reduce the risk of transmission for long. Neither the Minister of Education nor the Chief Medical Officer of Health can relieve the responsibility of school boards and principals of this duty unless legislation is changed. (1)Reference: Healthy Debate, Making schools safe spaces: The legal authority for school boards to enact masking policies. https://healthydebate.ca/2022/04/topic/making-schools-safe-spaces-masks/, Associate Professor Jacob Shelley, Faculty of Law & School of Health Studies, Faculty of Health SciencesDirector, Health Ethics, Law & Policy (HELP) Lab, Western University

Include a statement such as: “It is not the fault of the school or the school board that the provincial government believes the risk of COVID-19 to be so minimal that public health measures are no longer necessary. It is the fault of <insert your school board here> for not following the advice of experts who have recommended that masking continue, especially within schools. (Dr. Fahad Razak, Former Scientific Director, COVID-19 Ontario Advisory Science Table, and Dr. Gerald Evans, Infectious Disease Specialist and former member; Dr. Dick Zoutman, Emeritus Professor, Department of Medicine Queen’s University, Infectious Disease Specialist)

Presently, COVID-19 is among the top five leading causes of death in Ontario, and the 2nd leading cause of death in the USA. The Children’s Hospital of Eastern Ontario (CHEO) is operating in crisis mode at over 120% capacity as of October 7, 2022. There is a province-wide shortage of pediatric ICU beds. On October 6, 2022, there were only 14 pediatric ICU care beds available in Ontario (95 occupied). Hospitalizations due to COVID-19 in Canada are higher now than at any point in 2020 or 2021. By this summer, we had learned that the Omicron variant was associated with a 5-fold increase in hospitalizations in children, and at least a 3-fold increase in ICU admissions. Lifting masking in schools was contrary to the best medical evidence available.

Tell them that it is your understanding a decision has been made not to accommodate my child to remain in class, which you believe is contrary to the Ontario Human Rights Code and the OHR Commission policy for accessible education for students with disabilities.

End with: “If you do not reply to this email by (date 7 days later), it will be my understanding that you do not dispute what I have presented.”

File your complaint with the HRTO 8 days later. The website and applicant guide is easy to follow. https://tribunalsontario.ca/hrto/forms-filing/

Note to adults seeking accommodation at their workplaces: Filing a tribunal complaint can cause a poisoned work environment or poor treatment for months. “Read the room”. Legal advice is always recommended. You must always put your health and safety first. Wear an elastomeric mask and if you are able, purchase a portable HEPA filter to use in your work area and/or open an adjacent window while you sort out accommodation requests. Be extremely courteous throughout with your requests for accommodation. Summarize meetings, what was discussed, and your understanding. The next day, send it in an email to the individuals you met with/spoke with. If they do not dispute what you wrote or did not reply, it will usually be assumed by the HRTO that your understanding was correct.

How to file:

1. Organize your files. Scan all documents into pdf files, and clearly label each one. Use your last name for the first part of your file name.
2. Grounds for HRTO complaint: Disability, Age (if you are senior teacher requesting accommodations, Sex (if you are a pregnant teacher or staff person requesting accommodation). Reprisal, if your child was treated differently after the accommodation request was made or after the school learned of your tribunal complaint. (Eg. The teacher began to berate my child, telling him to take off the mask because “Covid is over”, or failed to stop children from bullying or teasing him because of wearing a mask. In a workplace setting, if you received any negative treatment following the filing of your complaint)
3. Protected Social Area: Goods, Services and Facilities (children), Employment (Teachers, Education Assistants), Contracts (if you were denied employment once it was discovered you had a disability or were immunocompromised)
4. Where it occurred (School), Date of last event (date of last attendance in class).
5. What happened? Who was involved/present? Describe in a logical, concise, brief chronological order. Number each occurrence. Who was present, what was said, what proof do you have to support each statement (not required but always helpful)? Organize your references and assign each a number. Eg. (1. I sent an email to her teacher and principal on October 1, 2022, in which I requested accommodations X for my child because he is immunocompromised. (Reference 1). I included a letter from his doctor (Reference 2) in a second email on <date>. I did not receive a reply or even an acknowledgement of the email. The following week on October 11, 2022, I phoned the principal. I have a recording here (Reference 3, audio file. NB. It is legal to record a conversation in Ontario with one party consent). He refused to accommodate my child based because…. etc.
6. Effects on your child and you: How did it impact him emotionally, socially, scholastically, his mental health etc? Use their own words. Record a video or an audio conversation (unrehearsed). Provide any proof: Visits to a school counsellor (name, dates), visits to a psychologist (dates, letter to confirm visits), including receipts. Same approach for adults. A brief video will demonstrate emotional distress better than a paragraph.
7. Remedy sought:

• Don’t lead with any financial requests
• In an ideal situation, what accommodations would you require to continue working safely; what accommodations does your child need, based on medical advice, to continue in-person schooling:
• An example (immunocompromised child): Classroom masking (everyone present), isolation for 7 days after all fevers if not tested for COVID-19, and 7 days after all COVID-19 infections, earlier when RAT is negative for 2 consecutive days; Portable HEPA filter ventilation in class or a Corsi-Rosenthal Box (if not present); Move to a well-ventilated classroom with only a few students present, for lunch; all students on the school bus masked
• Why is the current situation harmful (Refer to our OHRC Section 31 Inquiry Request), https://drive.google.com/file/d/1ceci-kYmOLz19LZHdNCLijnP4Ux4WxRb/view
• NB. Recent developments: Countries with masking mandates had an 80% reduction in mortality compared to countries without. According to Professor Tara Moriarty, Department of Medicine, University of Toronto, it is the 3rd leading cause of death in Ontario based on current estimates and modelling.
• Request damages for lost income, therapy expenses, injury to dignity, feeling, loss of self-respect as a result of the failure to accommodate and any reprisal actions against your child/yourself (employment). Document as before. Provide a dollar value.
• Request that the School board or school change their policy and provide future immunocompromised students with similar accommodations if deemed reasonable per the HRTO
• Always choose mediation

8. Call the Human Rights Legal Support Centre http://www.hrlsc.on.ca/en/welcome for assistance as needed. If you reach mediation, a lawyer would be very helpful, especially if there are complicated accommodations or significant damages claimed (lost wages, wrongful dismissal, therapy expenses, injury to dignity, self-respect, difficulty learning, etc.). Consults are usually free. Find one experienced in mediation.

These suggestions should never be substituted for good legal advice. The more prepared you are, should you need legal advice, the better. I cannot assist with your personal petitions. I will just refer you to this article.