IS ACADIAN JUDGE ALFRED LANDRY ORDERING THE DEPORTATION OF ALL THE KIDS WITH ADHD FROM NEW BRUNSWICK????

Now? We all know that thos racist members of the New Brunswick Human Rights Commission told the Government that adults with ADHD should be considered close to mental Retardation! I have been following this case below and I got a question? Is Acadian Judge Alfred. R. Landry ordering the deportation of all the kids with ADHD from New Brunswick???? I am not a lawyer so therefore maybe someone out there can make me understand this verdict? This is the last word from me! The rest of this update is all the word of that Judge!





New Brunswick >> Court of Queen's Bench of New Brunswick >>



This Document : 2005 NBQB 90 (CanLII)
Citation: New Brunswick Human Rights Commission v. New Brunswick (Dept. of Education), 2005 NBQB 90
Date: 2005-02-25
Docket: M/M/0088/04
[Noteup]


2005 NBQB 090 Court File No.: M/M/0088/04



IN THE COURT OF QUEEN'S BENCH OF NEW BRUNSWICK

TRIAL DIVISION

JUDICIAL DISTRICT OF MONCTON


BETWEEN: NEW BRUNSWICK HUMAN RIGHTS COMMISSION,



Applicant,


- and -



PROVINCE OF NEW BRUNSWICK DEPARTMENT OF EDUCATION and SCHOOL DISTRICT 2,


Respondents,

BONNIE (BERNADETTE) CUDMORE

Respondent.


BEFORE: Mr. Justice Alfred R. Landry

AT: Moncton, New Brunswick

DATE OF HEARING: January 6, 2005


DATE OF DECISION: February 25, 2005

APPEARANCES: Kelly VanBuskirk, Esq., and Matthew Letson, Esq., for the Applicant,


C. Clyde Spinney, Q.C., for the Respondents, Province of New Brunswick Department of Education and School District 2.


LANDRY, J.


This is an application by the New Brunswick Human Rights Commission ("the Applicant") for judicial review of a decision of a Board of Inquiry under the Human Rights Act, R.S.N.B., 1973, c. H-11 dismissing the complaint of the Respondent, Bonnie (Bernadette) Cudmore ("the Complainant") made on behalf of her son N. alleging that, in the provision of educational services, the Respondents, the Province of New Brunswick Department of Education and School District 2 ("the Respondents") discriminated against N. on the basis of a mental disability, pursuant to section 5 of the Human Rights Act in that the Respondents are not providing adequate resources to meet the special needs of N.


The child N. was born on September 18, 1987 and is now 17 years of age. The complaint was filed in on January 24, 2000 when N. was 12 years of age and a student in grade 7 at the Landmark East, a Wolfville, Nova Scotia private school for ADHD and learning disability students.


Between September 1992 and June 1999, N. completed kindergarten and grades 1 to 6, without repeating any years, in the following Moncton public schools: kindergarten at the Wynwood School, grades 1 to 4 at the A.H. MacLeod School and finally grades 5 and 6 at the Lewisville Middle School. Unsatisfied with the school system's accommodation of N.'s special needs, the Complainant then enrolled him in grade 7 at Landmark East in September, 1999. The province refused to pay for N.'s enrolment at Landmark East.


N. was diagnosed as suffering from attention deficit disorder (ADHD) when he was 4 years of age although the school was only advised of that in June of 1995 when N. was 7 years of age and finishing grade 2. The school was told in a note from the Complainant that N. had been prescribed Ritalin.


The Complainant argues that N.'s special needs as a mentally disabled person were not appropriately accommodated by the Respondents as provided for in the Education Act, S.N.B., c. E-1.12 and that the Respondents violated section 5 of the Human Rights Act by either discriminating against N. on the basis of a mental disability or denying N. an accommodation, service or facility available to the public on the same basis.


The main issue before the Board was whether the Respondents did violate section 5 of the Human Rights Act as alleged.



The majority decision of the Board, given on August 13, 2004 after 28 days of hearing which took place between December 10, 2001 and January 30, 2003, held that the Complainant did not establish that the Respondent denied N. a service available to the public, because of a mental disability, contrary to subsection 5(1)(a) of the Human Rights Act or discriminated against N. with respect to any service available to the public, because of a mental disability, contrary to subsection 5(1)(b) of the Human Rights Act. The Board therefore dismissed the complaint as it found that the Complainant did not establish a prima facie case.


The Board was comprised of three members of the New Brunswick Labour & Employment Board, namely Judith MacPherson, Q.C., Vice-Chair, Gerald Cluny and Gregory Murphy. Gregory Murphy wrote a dissenting minority decision.


The Applicant seeks an order that:


"The decision of the majority (hereinafter the "Majority") of the Human Rights Board of Inquiry in this matter (hereinafter the "Board"), dated August 13, 2004, to dismiss the human rights complaint of Bonnie (Bernadette) Cudmore, be removed into this Honourable Court and quashed, and the decision of the minority of the Board or that of this Honourable Court be substituted therefore; or, in the alternative, that the decision of the Majority of the Board be quashed and remitted to the Board for the purpose of determining an appropriate remedy; or, in the further alternative, that the decision of the Majority of the Board be quashed and heard before a newly appointed Board of Inquiry."

The 33 grounds relied upon by the Applicant are briefly summarized as follows. I have grouped similar grounds. The grounds are that the Majority decision erred in:


1 and 2 its failure to apply or properly apply the meaning of "special education program" as defined in the Education Act;


3 and 4 its failure to apply or properly apply the meaning of a special education "plan" as referenced in the Education Act;


5 and 6 its failure to apply s. 54 of the Education Act;


7 its failure to draw an adverse inference in respect of the failure to adduce testimony from the Respondent's employee who lost the academic records;


8 and 15 its finding that N. received special education resources in grades 3 and 4;


9 its failure to draw a negative inference in respect of the absence of documentation confirming the existence of a special education program;


10 finding that all necessary accommodations for N. were provided given its additional finding that the special education plans were inadequate;


11 failing to properly apply the law;


12 its finding that the Complainant failed to advise of the difficulties N. was experiencing at home until the winter of 1999;


13 its finding that the Complainant did not communicate reasonably;


14 its finding that N. had received more special education resources than any other student in his grade 5 class;



16, 17 and 18 its finding that all necessary accommodations were provided;


19 its finding that it was not proven that N.'s academic performance was below what should be expected of N. relative to his classmates;


20 its finding that Brenda Geneau has followed accommodations in the book entitled "New Brunswick Resources for the Identification and Teaching of Students with Specific Learning Disabilities";


21 finding that no reasonable requests for additional necessary accommodations for N. were denied;


22 relating the Complainant's behaviour to the obligations to provide appropriate accommodations to N;


23 and 24 assessing the legal rights of N. and the legal obligations of the Respondents in the context of alleged behaviours of the parents;


25 its finding that Cynthia LeCocq did not receive any request from the parents;


26 finding that the Respondents allowed N. to participate in a "regular classroom setting";


27 its failure to apply s. 12(3) of the Education Act;


28, 29 and 30 considering what requests were made for additional necessary accommodations given the Education Act, the policies and the Human Rights Act;


31 finding that the Respondents did not deny to N. a service in violation of subsection 5(1)(a) of the Human Rights Act; and


32 and 33 finding that the Respondents did not deny to N. a service in violation of subsection 5(1)(a) of the Human Rights Act and did not discriminate against N. in violation of subsection 5(1)(b) given that the Majority failed to consider the legal duty to accommodate to the point of undue hardship.


The Complainant alleges that the Respondents discriminated against N. pursuant to subsection 5(1) of the Human Rights Act which provides as follows:


"...


5(1) No person, directly or indirectly, alone or with another, by himself or by the interposition of another, shall


(a) deny to any person or class of persons any accommodation, services or facilities available to the public, or


(b) discriminate against any person or class of persons with respect to any accommodation, services or facilities available to the public,


because of race, colour, religion, national origin, ancestry, place of origin, age, physical disability, mental disability, marital status, sexual orientation or sex."


The Human Rights Act, enacted to protect and promote human rights, enjoys a quasi-constitutional status, which the court must take into account.


Since the mid 1980's, the Respondents have espoused the philosophy of inclusion for exceptional children into the regular public school system. The province has withdrawn its financial support for students attending Landmark East and used that money to support children with learning disabilities within the public school system. Exceptional pupils can now participate with pupils who are not exceptional within regular classroom settings.


Under the heading "Programs and services for exceptional pupils" the Education Act provides in part as follows for students with disabilities:


"Programs and services for exceptional pupils


12(1) Where the superintendent concerned, after consulting with qualified persons, determines that the behavioural, communicational, intellectual, physical, perceptual or multiple exceptionalities of a person are contributing to delayed educational development such that a special education program is considered by the superintendent to be necessary for the person, that person shall be an exceptional pupil for the purposes of this Act.


12(2) The superintendent concerned shall ensure that the parent of a pupil is consulted during the process of the determination referred to in subsection (1), and in the process of developing special education programs and services for the pupil.


12(3) The superintendent concerned shall place exceptional pupils such that they receive special education programs and services in circumstances where exceptional pupils can participate with pupils who are not exceptional pupils within regular classroom settings to the extent that is considered practicable by the superintendent having due regard for the educational needs of all pupils.



12(4) Where an exceptional pupil is not able to receive a special education program or service in a school due to


(a) fragile health, hospitalization or convalescence, or



(b) a condition or need which requires a level of care that cannot be provided effectively in a school setting,


the superintendent concerned may deliver the program or service in the pupil's home or other alternative setting."


(The underlining is mine)




Special education programs are required for exceptional students such as N.


During N.'s grade 5 and 6, it is clear that special education programs (S.E.P.s) were in place for his benefit. "Special education program" is defined as follows in section 1 of the Education Act:



" "special education program" means an education program for an exceptional pupil that is based on the results of continuous assessment and evaluation and which includes a plan containing specific objectives and recommendations for education services that meet the needs of the pupil"



For grade 5, N's individual resource plan (I.R.P.) dated December 9, 1997 had as one of the objectives having N. "working at grade level by end of year." (Exhibit R-1, Tab 11, page 16). The I.R.P. contained six sections entitled respectively: student's strengths, student's needs, pre and post testing, objectives, materials/actions and evaluations.


N.'s grade 6 individual resource plan (I.R.P.) was prepared on November 24, 1998 (Exhibit R-1, Tab 11, page 18).


The above two items are singled out here as they refer to the mandatory special education program required for exceptional students.


It is clear, and I believe not contested by the parties:

1. that N. has Attention Deficit Hyperactivity Disorder (ADHD);


2. that ADHD is a mental disability pursuant to the Human Rights Act; and


3. that public education is a service pursuant to the Human Rights Act.



The Applicant cites and relies on the following case law:


Barrie Public Utilities v. Canadian Cable Television Assn., [2003] S.C.J. No. 27, 2003 SCC 28; Basi v. Canadian National Railway Co. (1988), 9 C.H.R.R. D/5029 (Cdn. H.R.T.); British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868; British Columbia Public Service Employee Relations Commission v. British Columbia Government and Service Employees Union [1999] 3 S.C.R. 3; Canada (Dept. of National Health and Welfare) v. Chander, (1997), 29 C.H.R.R. D/300 (F.C.T.D.); Canada (Director of Investigation and Research) v. Southam Inc. [1997] 1 S.C.R. 748; Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 25; Ewtushik v. Newfoundland (Department of Health), [1998] N.J. No. 234 (Nfld. S.C.T.D.); Holden v. Canadian National Railway, (1990), 14 C.H.R.R. D/12 (F.C.A.); Horton v. Niagara (Regional Municipality), (1987), 9 C.H.R.R. D/4611 (Ont. Bd. Inq.); Jones v. New Brunswick (Board of Management), [2004] N.B.J. No. 345 (C.A.); Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, [2003] S.C.J. 20; New Brunswick (Executive Director of Assessment) v. Ganong Bros. Ltd. [2004] N.B.J. No. 219, 2004 NBCA 46, No. 109/03/CA; Ontario (Human Rights Comm.) v. Simpsons Sears Ltd., [1985] 2 S.C.R. 536; Ontario Human Rights Commission v. Etobicoke (Borough), [1982] S.C.R. 202; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; [1996] S.C.J. No. 40; The City of Regina v. Gary Wayne Kivela and the Saskatchewan Human Rights Commission and the Canadian Union of Public Employees Local No. 21, [2004] SKQB 372; Leonardis v. Canada Post Corp. [2002] C.H.R.D. No. 24; and Margaret Dewart v. Calgary Board of Education, an unreported decision of the Alberta Human Rights and Citizenship Commission dated July 15, 2004 (Complaint 50101261).


The Respondents cites the following cases:


Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] S.C.R. No. 2; Alberta Union of Provincial Employees v. Lethbridge Community College, [2004] S.C.J. No. 24; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84; Dickason v. University of Alberta, [1992] 2 S.C.R. 1103; Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487; Mr. Shredding Waste Management v. New Brunswick (Minister of Environment and Local Government), [2004] N.B.J. No. 353; Grand Lake Timber Ltd. v. Communications, Energy & Paperworkers Union of Canada, Local 104, [2001] N.B.J. No. 22; and Auton v. British Columbia (A.G.), [2004] S.C.J. No. 71.


The burden of proof in this case was on the Complainant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made, and which, if believed is sufficient to justify a ruling in favour of the Complainant in the absence of an answer from the Respondents. The onus shifts to the Respondents once a prima facie case is made out. The Respondents then have to establish a justification for the discrimination upon a balance of probabilities.


In the absence of a full privative clause in the Human Rights Act, the appropriate standard of review for all of the alleged grounds, except for grounds 32 and 33 which relate to a question of pure law, is reasonableness. For the question of pure law in grounds 32 and 33, the standard of review is correctness. I have arrived at this conclusion using the pragmatic and functional approach referred to as follows by Iacobucci, J. in Alberta Union of Provincial Employees v. Lethbridge Community College, [2004] S.C.J. No. 24 at paragraphs 14 and 15:


¶ 14 The review of decisions taken by administrative bodies is governed by the pragmatic and functional approach, as established by the jurisprudence of this Court; see U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20; Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63. Under this approach, reviewing courts consider four contextual factors: (a) the presence or absence of a privative clause or statutory right of appeal; (b) the relative expertise of the administrative body to that of the reviewing court with respect to the issue in question; (c) the purposes of the legislation and of the provision in particular; and (d) the nature of the question as one of law, fact, or mixed law and fact (Dr. Q, supra, at para. 26). According to the case law, a highly technical or mechanistic approach is to be avoided; instead the interplay among the four factors determines the level of deference owed to the administrative decision itself. This further correlates to three standards of review: correctness, reasonableness, and patent unreasonableness (Ryan, supra, at para. 24).


¶ 15 It is against the proper standard of review that each administrative decision must be measured. The pragmatic and functional approach will not necessarily result in the same standard of review being applied to every decision taken by the arbitrator in the course of arbitration proceedings, as recently affirmed by Arbour J. in Toronto (City) v. C.U.P.E., Local 79, supra, at para. 14.


In the case at bar, the Majority decision dismissing the complaint concluded in part as follows:


225. When a student is identified as exceptional by virtue of s. 12(1) of the Education Act, section 12(3) of this Act then requires the respondents to provide "special education programs and services in circumstances where exceptional pupils can participate with pupils who are not exceptional pupils within regular classroom settings" ("necessary accommodations"). The testimony of various witnesses was that, at the relevant times, when a student is identified as being an exceptional student, some form of SEP was used, typically either an IRP or an IEP. Based on the testimony of those commonly charged with providing educational services, an SEP should be more accurately viewed as an outline of the work in progress towards the goal of necessary accommodations that should be provided. The SEP form, in and of itself, is not, conclusive evidence that the respondents provided the necessary accommodations, of more significance, is that the actual resources and services the respondents provided accommodated the student's needs.


...


230. According to the expert opinions regarding N's achievement, in the circumstances of this matter, the most reliable indicators are his teachers' evaluations based primarily on their day-to-day observations. On reviewing the observations of N's classroom performance, including those contained in his progress reports as well as the testimony of N's grades 5 and 6 teachers and his method and resource teachers and Principal from those years, this review reveals a student who was co-operative in class, had to work hard to achieve and did so, thereby achieving reasonable success in the respondent's program. To compare N's performance with that of his classmates, the only evidence on which to base such a comparison was the testimony of N's teachers who compared him to the other students in N's class and found him to be about the middle of the class. This generally corresponds to Ms. Dea's evaluation of N. In her report, Ex. C-6, she indicated that he was a student of average intelligence, "...closer to the lower end of average". Therefore, it has not been proven that N's academic performance was below what should be expected of N relative to his classmates.


...


233. There was expert testimony to the effect that N's global needs, personal as well as academic, would best be served by him remaining in his home, given that the family unit was together and functioning, and N receiving the necessary accommodations in the classroom setting. In fact, Dr. Evans, who was N's psychiatrist while at Landmark, qualified his support for N's continued attendance at Landmark on the basis that N had already been successful there. It is not surprising that, in such an excellent program, with its high concentration of resources for each student, that most students achieve success.


234. The evidence confirmed the following:


1) The respondents identified N as an exceptional pupil and provided accommodations to allow him to participate with pupils who were not exceptional pupils within regular classroom setting. N received resource help as early as grade 1 and was also closely monitored by his kindergarten teacher. The evidence is uncontroverted that N received resource help in grade 2. The complainant's oral testimony confirmed that N was receiving extra help for which he was taken out of class in grade 3 and other evidence indicated N received resources in grade 4. Mrs. Geneau's testimony was that N received more resources than any other student in her grade 5 class. The resources provided to N in grade 6 were partly outlined in the IRP, Ex. R-1, Tab 11, p. 18. The evidence of Mrs. Geneau, Ms. Cormier, Ms. LaCocq, Ms Branscombe and Mr. Menchions is accepted that part of N's Resource file has been lost and that additional resources were provided to N than those documented on the SEP's, with some of these detailed in the facts set out herein.


2) All of the respondents' witnesses were in general agreement that the documentation regarding the accommodations provided to N was improperly maintained. The evidence, which this Board accepts, was, however, that all the necessary accommodations which school personnel considered N required based on their professional judgment, with the limited information given to them by the complainant, was provided to N;


3) The evidence is clear that the respondents were willing to work with N and his parents to find additional, effective accommodations to further advance N's academic achievement;


4) There were no reasonable requests for additional necessary accommodations made for N which were denied by the respondents. In fact, the only request which the respondents denied was the complainant's request to provide N one-on-one teaching, such as the complainant felt would be provided by the respondents funding N's attendance at Landmark in Wolfville, Nova Scotia. This request was denied by the respondents because it was considered to be unnecessary given the circumstances. The requirements of section 12(3) of the Education Act are to provide special education programs and services in circumstances where exceptional pupils can participate with pupils who are not exceptional within regular classroom settings where practicable. The respondents believed that it was practicable to do so and that they were therefore precluded from providing such funding.


...


238. All parties maintained that the evidence presented including that of N's entire career in the public education system was relevant to this matter and, on that basis, this Board received such evidence. After all parties closed their cases, during submissions, counsel for the respondents referred to section 17.1 of the Act, which provides:


17.1(1) Subject to subsection (2), every complaint shall be filed within one year after the alleged violation of the Act.

17.1(2) The Commission may, where in the opinion of the Commission circumstances so warrant, extend the time for the filing of the complaint.


and suggested that this inquiry is confined to a violation of the Act occurring within one year of the filing of the complaint, as there was no evidence that the Commission extended the time for the filing of the complaint pursuant to subsection 17.1(2) and that evidence pertaining to N before that time was relevant as background only. Mr. VanBuskirk argued that section 17.1 was not applicable to this matter. Given the findings of this Board, it is not necessary to determine the applicability of this section to this matter.


239. Therefore, based on the requirements of subsection 20(6.1) of the Act, this Board dismisses the complaint.




Concerning the 33 grounds invoked by the Applicant, I disagree with their counsel that grounds 1, 2, 3, 5, 6, 11 and 27 relate to errors of law. The only 2 grounds that are questions of pure law are grounds 32 and 33.


Questions of law are questions about what the correct legal test is. What took place are questions of fact. Questions of mixed law and fact are questions whether the facts satisfy the legal tests. The distinction between law on the one hand and law and facts on the other is difficult and sometimes what appears to be a question of law turns out to be a question of mixed law and fact and vice versa. See Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748.


As mentioned above of the 33 grounds relied upon by the Applicant only 2 (grounds 32 and 33) consist of question of pure law. The Applicant alleges that the Majority decision erred in finding that the Respondents did not discriminate given that the Majority failed to consider the legal duty to accommodate to the point of undue hardship.


I find that the Board was correct on this question of law. Since the Complainant failed to establish a prima facie case, the onus never shifted to the Respondents who did not have to establish that it accommodated to the point of undue hardship. The Meiorin test (British Columbia Public Service Employee Relations Commission v. British Columbia Government and Service Employees Union [1999] 3 S.C.R. 3) does not apply here as alleged by the Applicant and the question of undue hardship does not come into play.


The standard of review for the other grounds is "reasonableness" as mentioned earlier.


Justice LaForest in Ross v. New Brunswick School District No. 15 [1996] 1 S.C.R. 825; [1996] S.C.J. No. 40 said at paragraph 29:


"... A finding of discrimination is impregnated with facts, facts which the Board of Inquiry is in the best position to evaluate. The Board heard considerable evidence relating to the allegation of discrimination and was required to assess the credibility of the witnesses' evidence and draw inferences from the factual evidence presented to it in making a determination as to the existence of discrimination. Given the complexity of the evidentiary inferences made on the basis of the facts before the Board, it is appropriate to exercise a relative degree of deference to the finding of discrimination, in light of the Board's superior expertise in fact-finding, a conclusion supported by the existence of words importing a limited privative effect into the constituent legislation."


After considering the voluminous evidence before the Board (except for the oral testimonies given during the 28 days of hearing which were not recorded and therefore not available), the arguments of the parties and the lengthy and detailed reasons for decision, I find that the Board's decision was reasonable. It was reasonable for the Board to find that the Complainant did not establish a prima facie case that N. was not appropriately accommodated in the system.


It is clear that during the material school years, grades 5 and 6, that there were special education programs (S.E.P.s) in place for N.


Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] S.C.R. No. 2, is authority for the proposition that it is not necessary for every element of the tribunal's reasoning to pass the reasonableness test, but that the question is whether the reasons as a whole support the decision.


It is not necessary to discuss serially in detail the first 31 grounds alleged by the Applicant. It suffices to say that most of the alleged errors in the Board's findings of fact were not truly dispositive of the issue before the Board but were merely forming part of the historical fabric against which the complaint was decided.


For those reasons, the Application is dismissed.


The Applicant shall pay costs to the Respondents Province of New Brunswick Department of Education and School District 2 in the amount of $5,000.00 plus taxable disbursements.



DATED at Moncton, New Brunswick, this 25th day of February, 2005.









ALFRED R. LANDRY, J.C.Q.B.











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