A mother, who felt her daugter's rights were being infringed, files a complaint with the ontario human right commission. - by D.Henry Wright
When Laura Booth started kindergarten at Dixon Grove Junior-Middle School in September 1987, she made it there and back in her wheelchair unimpeded by physical obstacles. That was partly because her mother, Joan, made sure she would. A couple of months earlier, she had called the Etobicoke City works department and saw to it that all the curbs between their home and Dixon Grove were ramped.
The Booths also chose their home, a bungalow in central Etobicoke, specifically for its wheelchair accessibility and then adapted it to Laura's special needs at considerable personal expense. But before they settled on the house, aware that issues of self-esteem and isolation are particularly pronounced among children with disabilities, they chose the neighbourhood, expressly for its proximity to Dixon Grove, which they believed would soon be made fully accessible too.
Despite verbal assurances the Booths had received to that effect, plans to renovate Dixon Grove never came to pass. For a while, the existing structure didn't present overwhelming difficulties for Laura Booth. But then in 1989, when the rest of her classmates moved up to rooms on the second floor, it became apparent that for Laura to remain at Dixon Grove, her dignity and independence intact, there was only one solution: install an elevator.
The suggestion, which Joan Booth put to the Board of Education for the City of Etobicoke in January 1989, met with outright resistance. In March 1989, the board responded to the request with an unequivocal statement. "I have been asked to inform you," wrote the Assistant Superintendent, Programme and Educational Services for the City of Etobicoke, Harry Learoyd, "that Dixon Grove Junior-Middle School is not planned for renovations at this time." The letter said that although Dixon Grove had been assessed, two single-storey schools in the district were deemed more suitable for renovation.
"They didn't say, 'let's sit down and talk, let's work out a solution.' They left me feeling very negative about their position," Joan Booth says. "They had made a decision based on dollars."
The board sees the matter in a different light. According to Gary Vipond, then superintendent of programmes, it was simply a case of both sides believing they were right. Regardless of the reasons for rejecting the request for an elevator, the matter quickly snowballed into an issue beyond one of dollars and cents or right and wrong. After filing a formal complaint with the Ontario Human Rights Commission against the Board of Education for the City of Etobicoke on June 29, 1989, Joan Booth soon found herself advocating not only on behalf of her daughter but for the rights of all persons with disabilities.
"I didn't know it was going to turn into something this big," Laura says. "I guess they thought that eventually the problem would go away. But it didn't."
The Booth's complaint was based on provisions in the Ontario Human Rights Code which states that citizens are entitled to equal treatment in goods, services, and facilities without discrimination on the basis of a number of grounds, including disability. In the wake of changes to the Code in 1988, issues of access have come to the fore, and the Human Rights Commission now receives about 2,000 such complaints a year.
"Any access cases right now are precedent setting," says Counsel for the Commission Naomi Overend. "They try to define the parameters: How far do they have to go? What is undue hardship? What factors have to be considered?" The Booth case was unique, she says, because few complaints involve schools or school-age children. The outcome would therefore "give some indication about how far the law had to go in terms of providing accessibility to students."
About 90 per cent of all complaints are withdrawn or settled before they reach the litigation stage, but attempts at conciliation between the school board and the Booths failed. In December 1991, the commission took the rare step of recommending that the case be put to a full board of inquiry.
"Once the commission goes to a board of inquiry they take the position that discrimination has taken place," says Overend. "It's usually synonymous with the position of the complainant, but not always. Sometimes on matters of interpretation of the law, the commission and the complainants take different positions."
In this case, the complainant and the commission held the same position, but the Booths had already enlisted the Advocacy Resource Centre for the Handicapped (ARCH) and lawyer Anne Molloy. "The commission is a party to every complaint," Molloy says. "Every complainant, however, is a separate party, entitled to representation. It's not always the case that they're in agreement on every issue, so we bring that other, additional perspective. The commission has an overall perspective as well - the public interest. In some cases that can vary dramatically because an individual complainant may be interested only in getting an individual remedy and will not be concerned about the broader issue. In this case the complainant was interested in the broader issues as well. It was much more of a collaborative effort than is sometimes the case."
To its credit, Dixon Grove Junior-Middle School had, throughout the protracted ordeal, gone to great lengths to accommodate Laura Booth. They shifted classes that normally took place on the second floor down to rooms on the first - with the exception of a computer lab and an art room that proved too technically and logistically difficult to move. They constructed ramps and improved accessibility wherever feasible. The school board even offered to apply for provincial funding through the Ministry of Education to get an elevator installed, but they admitted that if the funds were not approved, the school board would not foot the bill.
To the Booths, these seemed like stop-gas measures and band-aid solutions, which, however well intentioned, did little to help. Joan Booth says that efforts to accommodate her daughter sometimes backfired, emphasizing rather than diminishing Laura's differences and underscoring her isolation. A device such as the portable stairtrack, for example, required assistance and supervision, making the issue of independence a moot point.
"First it was only one class," Laura says, "then my French teacher had to come downstairs for every French class. Then it was the same thing for Grade 4 and Grade 5, all the teachers had to come down. In Grade 6 we got the Garaventa Stair-Trac. I'm not able to do it alone. Someone has to help, someone to push. I'm late for every class."
Fifteen months passed before Minister of Citizenship Elaine Ziemba responded to the commission's recommendation and appointed Dr. Gunther Plaut to form a board of inquiry. In numerous dispatches leading up to the hearing, the school board insisted that it had provided "reasonable accommodation" for Laura Booth, but the commission decided to test the limits of the code and applied a slightly different standard.
"Accommodation short of undue hardship is a different test than reasonable accommodation," says Overend. "The commission is of the view that accommodation short of undue hardship is a higher standard. A lot of times people use the two terms interchangeably."
As a counsel for the complainant, Molly argued that, according to Section 10 of the code, "discrimination that is based on something neutral but which has a disparate impact on a group identified by a prohibited ground is still discrimination under the code." In this case the "something neutral" was the staircase and the "group identified by a prohibited ground" are people who use wheelchairs.
"Sometimes it's called disparate or adverse impact or constructive discrimination," Molloy says, "but it's all the same thing. It's indirect. In this case we said that Laura has the right to equal treatment in the provision of goods, services, and facilities at the school and that she was not getting that. It's about stairs, physical access in a building."
In her letter of appointment, the minister of citizenship stressed that "all complaints be dealt with expeditiously" and demanded that "decisions [be] received by the boards of inquiry office within a four month timeframe." The hearings took place initially in the spring and then resumed in October 1993. After such a lengthy waiting period, both sides were well prepared and throughout the ordeal, the Booths persevered with stoic resolve. The hearings unfolded predictably, but Molloy admits that toward the end one small surprise emerged.
"In the course of talking to Laura," Molloy says, "I wanted to develop evidence at the hearing about what it felt like for her to be meeting this obstacle all the time. I asked her what it felt like to be excluded that way and for the first time I saw that child falter. She cried. Not sobbing, but tears were trickling. I thought, 'this kid has real guts.' So hats off to her."
The settlement handed down by Dr. Plaut was certainly fair but somehow anticlimactic. More than four years had passed since Joan Booth first approached the school board and in October 1993, Laura had less than two years to go at Dixon Grove. The agreement acknowledges that "the passage of time has made it unlikely that such a remedy [the elevator], if ordered, would be implemented in time to be of assistance to her."
The agreement does stipulate, however, that for as long as Laura Booth remains at Dixon Grove, "the board will use its best efforts to schedule and locate the complainant's school programmes to minimize the necessity of her attending the second floor of the school." Serving the broader, public interest, the agreement also requires that the board hold a full-day training session on disability awareness and accessibility.
Speaking on behalf of the school board, now Superintendent of Personnel Gary Vipond calls the settlement "a terrific ending." He says that throughout the hearings and in the years leading up to them, the school board never perceived the complainant as a potential win-lose situation. If the board of inquiry had settled in favour of installing an elevator, he says, the school board would have acted promptly, allocating the necessary funds without further incident. "We were learning as we went along," he says. 'We learned a lot through Laura."
ARCH's Molloy was also pleased with the settlement. "What it has led to is an increasing awareness. It's been quite educational for the school personnel and the school board. They're much more receptive to the whole idea of accommodating those kinds of needs of the students. I was quite heartened by the response of this school board. They have taken positive steps to address the accessibility issue for all the schools in their board and they've done it in a responsible way. They've made a significant commitment personally and financially in ensuring that it's done."
Joan Booth admits that she was disappointed that in the end the agreement provided very little in the form of demonstrable, tangible benefit for Laura. But she was heartened by the inclusion of mandatory training sessions. Broader interests notwithstanding, she points out that she was advocating primarily on behalf of her daughter. A hard-fought battle is a learning experience for everyone, though, and she is convinced that Laura is now better prepared to go on and win the war.
"I don't think it was a waste of time," Laura says. "It was good that we tried. It got things out in the open, to tell people, 'Come on. Take us into consideration. Look at us.' I myself learned that it's good to try to do these things - even if you can't achieve them."
Toronto writer and editor D. Henry Wright's work has appeared in numerous publications including ARIDO, CRAFTNEWS, and ONTARIO CRAFT.