Applications filed at the HRTO must be framed as allegations of discrimination;
not as complaints about quality of service, discord concerning the manner of
service delivery, or disputes as to whether regulatory provisions within the
Education Act have been adhered to. The manner in which an application is
framed is critical to its success.
When choosing the appropriate forum, careful consideration should also be given
to what remedies are being sought. The HRTO has broad remedial powers at its
disposal, as opposed to the very limited powers conferred to the OSET. A further
consideration, as discussed above, is that the HRTO and OSET are now part of
the Social Justice Tribunals Ontario cluster. Adjudicators from the tribunals within
the cluster have been cross-appointed. This may have an impact on how
education related matters are resolved before both Tribunals.
Arguably, litigation may generally not be the most effective recourse in education
matters due to reasons such as the time sensitive nature of education cases, a
significant power and resource imbalance, lack of legal representation, and the
deterioration of relationships that occurs in an adversarial process which makes
the student’s ongoing learning experience difficult (and which at times may make
any remedies meaningless to that student). Nonetheless, this may be the only
recourse in some cases. It is critical that lawyers assess when it is best to
become involved in a dispute and whether all informal advocacy efforts have
been exhausted.
B. Moore v. British Columbia (Ministry of Education)
The Supreme Court of Canada recently considered a matter that squarely dealt
with school board and government obligations to accommodate students with
disabilities within a statutory human rights framework. The much anticipated