1. Challenges in Disciplining Special
Needs Students
CAPSLE
April 26, 2009
Brenda Bowlby
Hicks Morley, LLP
Toronto, Ontario

2. Challenges in Disciplining Special Needs Students
OVERVIEW
1. How do Human Rights principles apply?
2. How does Ontario legislation take these
principles into account?
3. Review of caselaw

3. Challenges in Disciplining Special Needs Students
1. Human Rights Principles
• Ontario Human Rights Code, s. 1: equal
treatment in services without discrimination on the
basis of disability
• Brant County Board of Education v. Eaton
(Supreme Court of Canada):
• equal treatment does not mean the same treatment

4. Challenges in Disciplining Special Needs Students
1. Human Rights Principles
• The purpose of education is to provide the
opportunity to a child to reach his/her maximum
potential
• Special education is designed to provide students
with disabilities an equal opportunity to reach their
maximum potential
• Special education placements, programs and
services = human rights accommodations

5. Challenges in Disciplining Special Needs Students
1. Human Rights Principles
• What is the purpose of discipline?

6. Challenges in Disciplining Special Needs Students
1. Human Rights Principles
• disciplining a student who, because of a disability,
does not understand the reason for the discipline,
or who cannot change the conduct, is
discriminatory
• “accommodation” obligations require finding a
different way to change the students’ behaviour

7. Challenges in Disciplining Special Needs Students
1. Human Rights Principles
• Impact of Ontario’s Safe Schools Act
• Ontario Human Rights Commission’s
Consultation Report
• Changes to the Ontario’s Education Act

8. Challenges in Disciplining Special Needs Students
2. How does Ontario’s legislation take
Human Rights principles into account?
• mitigating factors
• other considerations

9. Challenges in Disciplining Special Needs Students
Mitigating Factors
a) Does the student have the ability to control
his/her actions?
b) Does the student understand the foreseeable
consequences of his/her actions? or
c) Does the student’s presence in the school
create an unacceptable danger to the safety or
wellbeing of any person?

10. Challenges in Disciplining Special Needs Students
Other Considerations
a) Was the activity for which the student may be,
or is being, suspended or expelled related to
any harassment of the student because of his
or her race, ethnic origin, religion, disability,
gender or sexual orientation or to any other
harassment?

11. Challenges in Disciplining Special Needs Students
Other Considerations
b) How will the suspension or expulsion would
affect the students ongoing education?
c) What is the age of the student?

12. Challenges in Disciplining Special Needs Students
Other Considerations
d) In the case of a student for whom an individual
education plan (IEP) has been developed:
i. was the behaviour was a manifestation of a
disability identified in the pupil’s IEP?
ii. had appropriate individualized accommodation
has been provided?

13. Challenges in Disciplining Special Needs Students
Other Considerations
e) Is the suspension or expulsion likely to result in
an aggravation or worsening of the pupil’s
behaviour or conduct?
f) Has progressive discipline been attempted with
this student?
g) What would the impact of the
suspension/expulsion be on the student’s
continued education?

14. Challenges in Disciplining Special Needs Students
Other Considerations
h) What is the student’s age?
i) Would the suspension/expulsion likely worsen
the student’s behaviour?
j) the student’s behaviour a manifestation of a
disability?

15. Challenges in Disciplining Special Needs Students
Considerations suggested by the Ontario
Human Rights Commission:
• formal assessments and evaluations of the
student
• relevant information supplied by the student or
the student’s parents
• observations of the student
• the student’s accommodation plan

16. Challenges in Disciplining Special Needs Students
Considerations suggested by the Ontario
Human Rights Commission:
• whether the accommodations provided for in the student’s
accommodation plan were appropriate, and whether
these accommodations were being provided consistent
with the student’s accommodation plan
• whether the student’s disability impaired his or her ability
to understand the impact and consequences of the
behaviour subject to disciplinary action
• whether the student’s disability impaired his or her ability
to control the behaviour subject to disciplinary action
• whether the student has undetected disability-related
needs that require accommodation

17. Challenges in Disciplining Special Needs Students
Considerations suggested by the Ontario
Human Rights Commission:
• Suspensions and expulsions are not appropriate
to give school staff respite
• Alternatives to suspensions/expulsions where
behaviours raise serious safety risks to the child
or others

18. Challenges in Disciplining Special Needs Students
3. Case Law Review