In J.S. v. Dufferin-Peel Catholic District School Board (2018 HRTO 1284) the Human Rights Tribunal of Ontario (Tribunal) held that, even though a specific therapy might be beneficial to the student, if it is not necessary for the child to have meaningful access to education, the school is not obligated to provide it.
JS was diagnosed with Autism Spectrum Disorder (ASD) at the age of three. The Tribunal found based on the evidence that JS was successful academically and only had a small number of deficits from his ASD. His mother filed an application alleging that JS required Applied Behavioural analysis (ABA) and Intensive Behaviour Intervention (IBI) Therapy in order to have meaningful access to education.
The Tribunal in this case based its reasoning on the Supreme Court of Canada decision Moore v. British Columbia (2012 SCC 61) (Moore). The SCC in Moore set out a two part test:
- Has the applicant established a prima facie case of discrimination?
- If so, can the respondent establish a justification for the breach of the Code.