Preventing bullying and harassment
Part of an educational institution’s duty to maintain a safe learning environment for students includes addressing bullying and harassing behaviour. Students who are being harassed are entitled to the Code’s protection where the harassment creates a poisoned educational environment. This protection would apply to sanction: (i) education providers who themselves harass students based on Code grounds, and (ii) education providers who know or ought to know that a student is being harassed based on Code grounds, and who do not take effective individualized and systemic steps to remedy that harassment.
Responsibilities of education providers
Education providers have a responsibility to take immediate steps to intervene in situations where bullying and harassment may be taking place. The harassment of students because of disability will amount to discrimination where it poisons the educational setting and impairs access to educational services. Every person has the right to be free from humiliating or annoying behaviour that is based on one or more grounds in the Code. If left unchecked, harassment can impede a student’s ability to access educational services equally and to participate fully in the educational experience.
Example: In a classroom, a student with Tourette’s Syndrome is repeatedly subjected to taunting and teasing by a group of other students for no apparent reason. The same group of students exclude him from recess activities stating that he is “different” and “weird.” It may be inferred from the particular circumstances that the treatment is due to the student’s disability even though none of the other students ever made a direct reference to his disability. The student’s ability to access the educational program is, as a result of this harassment, impaired.
The courts have established that schools have a duty to maintain a positive, non-discriminatory learning environment. In this regard, education providers should take steps to educate students about human rights and implement strategies to prevent discrimination and harassment. An education provider has a responsibility to take immediate remedial action once made aware of harassing conduct. If an allegation of harassment has been substantiated, appropriate action must be taken. This may include disciplinary action.
A student who is a target of harassment may be in a vulnerable situation. Therefore, there is no requirement that he or she formally object to the behaviour before a violation of the Code can be considered to have taken place, where the conduct is or should have been known to be unwelcome. It may be unrealistic to require a student who is the target of harassment to object as a condition of seeking the right to be free from such treatment.
An education provider who knew of, or should have had knowledge of, the harassment and could have taken steps to prevent or stop it, may be liable in a human rights claim.
Prevention through education
Anti-harassment training for educators and school staff is an important first step in creating a climate of mutual respect in an educational environment. Educators will then be in a position to appropriately address issues of bullying and harassment that arise in the classroom.
Education providers can help to prevent incidents of bullying and harassment before they occur by:
- Exhibiting a clear attitude of non-tolerance towards bullying and harassment.
- Communicating clearly to the student body the consequences of bullying and harassment.
- Educating students about disability issues and encouraging awareness of differing needs and acceptance of diversity.
- Engaging in role-playing and educational exercises to help students develop increased compassion and a greater awareness of the impact that bullying behaviour may be having on others.
- Respecting the confidentiality of students who do report bullying. This will encourage other students who are being harassed to report it in its early stages.
Educational institutions can go a long way toward promoting a harassment-free environment for students with disabilities and other individuals protected by the Code, by having a clear, comprehensive anti-harassment policy in place. In cases of alleged harassment, the policy will alert all parties to their rights, roles and responsibilities. Such a policy should clearly set out ways in which the harassment will be dealt with promptly and efficiently. Please see the Appendix for suggested contents of an anti-harassment policy.
In practice: All students and school staff should be aware of the existence of an anti-harassment policy and the procedures in place for resolving complaints. This can be done by:
- distributing policies to everyone as soon as they are introduced
- making new students aware of them by including the policies in any orientation material
- training educators and school staff on the contents of the policies
- providing ongoing education on human rights issues.
Accounting for non-evident disabilities
Part of creating a welcoming environment involves being sensitive to the many ways in which a student’s disability might manifest and the unique needs that may arise as a result. Some types of disabilities are not apparent to the average onlooker. This can be because of the nature of the specific disability in question: it may be episodic, its effects may not be visible, or it may not manifest consistently in all environments. Examples of non-evident disabilities include mental disabilities, learning disabilities, chronic fatigue syndrome, environmental sensitivities and epilepsy.
Students with non-evident disabilities often face unique challenges in the education system. For some, requesting an accommodation may be especially difficult if a teacher or professor doubts the authenticity of the request because they cannot “see” it. Sensitivity and informed understanding on the part of educators, school staff and fellow students alike can combat stereotypes, stigma and prejudice, all of which can have a discriminatory effect on students with non-evident disabilities.
Mental disability is a form of non-evident disability that raises unique issues in the educational context. Much misinformation continues to exist about mental illness. Too often persons with mental disabilities are labelled and judged according to inaccurate preconceptions and assumptions. Rules, preconditions, policies or practices that treat persons with mental disabilities differently from other persons with disabilities may be discriminatory on their face.
Academic environments must be sensitive to the needs of all students, including students with mental disabilities. It is important to keep in mind that some mental illnesses may render the student incapable of identifying his or her needs. An education provider has a responsibility to take an active role in addressing situations that may be linked to mental disability. Where an education provider has reason to believe that a student may require assistance or accommodation due to a mental disability, further inquiries should be made and support offered. Even if an education provider has not been formally advised of a mental disability, affording differential treatment to a student based on the perception of a disability may still engage the protection of the Code.
In practice: A third-year university student begins to exhibit erratic behaviour. Although she has been a successful student to date, she begins missing classes and she fails to submit her coursework on time. In the middle of a lecture, she suddenly starts shouting inexplicably. The university professor arranges to meet with the student after class to inquire into the student’s situation. As a result of this discussion, the professor contacts the university’s Office for Students with Disabilities. A meeting is arranged and the student is offered assistance. The university helps arrange counselling and support services for the student who, ultimately, is diagnosed with schizophrenia. The Office for Students with Disabilities then works with the student and her professors to arrange academic accommodations.
Education providers should educate themselves, school staff and students about non-evident disabilities, including mental illness, to provide a welcoming and safe environment for all students with disabilities. Schools should ensure that all students are provided with learning opportunities that foster an awareness and appreciation of diversity issues in the educational environment, and combat negative attitudes and stereotypes.
Discipline, safe schools and students with disabilities
The stated purposes of safe schools legislation, regulations and related school board policies – to promote respect, non-violent conflict resolution and the safety of people in schools – are reasonable and bona fide and of paramount importance. At the same time, in some cases, discipline policies may have an adverse effect on students with disabilities.
Education providers have a duty to assess each student with a disability individually before imposing disciplinary sanctions. Disciplinary sanctions include detentions, exclusions, suspensions, expulsions and other forms of punishment. Educators should attempt to determine whether the behaviour in question is a manifestation of the student’s disability by considering:
- 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
- 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.
Under the Code, education providers have a legal obligation to accommodate students with disabilities up to the point of undue hardship. All students with disabilities, even those whose behaviour is disruptive, are entitled to receive accommodation.
Did you know: Other jurisdictions have implemented safeguards to protect students with disabilities from being disciplined for behaviour that is disability-related. For example, in the United States, the Individuals with Disabilities Education Act requires that, where certain disciplinary action is taken or contemplated against a student with a disability, a review must be conducted of the relationship between the child’s disability and the behaviour subject to the disciplinary action.
Educators must consider a range of strategies to address disruptive behaviour. Such strategies will include reassessing and, where necessary, modifying the student’s accommodation plan, providing additional supports, implementing alternative learning techniques, and other forms of positive behavioural intervention.
If a student’s behaviour is not a manifestation of his or her disability, that is, where there is no causal relationship between the student’s disability and the behaviour in question, then that student would be subject to the normal consequences of his or her misconduct. Where discipline is warranted, however, it is to be implemented with discretion and with regard to the student’s unique circumstances.
There may be rare situations in which a student’s behaviour, even where it is a manifestation of his or her disability, poses a health and safety risk to the student him or herself, other students, teachers and/or school staff. While an education provider in this type of situation continues to have a duty to accommodate the student up to the point of undue hardship, it is recognized that there may be legitimate health and safety concerns that need to be addressed. In some situations involving health and safety risks, placement in a mainstream classroom may not be the most appropriate accommodation. This issue is discussed in the “Undue hardship standard” section of the Guidelines under “Health and safety requirements.”
 See Ross, supra, note 13; Quebec (Comm. Des droits de la personne) c. Deux-Montagnes, Comm. Scolaire, (1993), 19 C.H.R.R. D/1 (T.D.P.Q.) (“Kafe “); Jubran v. North Vancouver School District No. 44, (2002), 42 C.H.R.R. D/273, 2002 BCHRT 10 (In Jubran, the Tribunal held that the School Board (i) had a duty to provide an educational environment that did not expose students to discriminatory harassment, (ii) knew that students were harassing another student and (iii) was liable for failing to take adequate measures to stop that harassment. The B.C. Supreme Court quashed the Tribunal's decision on the ground that the harassment was not linked to a protected ground under the legislation, and stated that it did not have to decide any other issues in disposing of the case. The B.C. Court of Appeal is scheduled to hear a further appeal in October of 2004: see North Vancouver School District No. 44 v. Jubran,  B.C.J. No. 10).
 For example, see Gibbs v. Battlefords and Dist. Cooperative Ltd.  3 S.C.R. 566, 27 C.H.R.R. D/87.
 In 2000, the Ontario Legislature passed the Safe Schools Act. The Act gives force to the provincial Code of Conduct and provides principals, teachers and school boards with more authority to suspend and expel students and involve the police. The Safe Schools Act specifies infractions that require mandatory suspensions, expulsions and police involvement. It also permits school board policies to add infractions for which suspensions or expulsions are either mandatory or discretionary. Bill 212, the Education Amendment Act, (Progressive Discipline and School Safety Act), 2007 was passed in June 2007. It amends but does not repeal the Safe Schools Act.
 The potential discriminatory effect of safe school legislation and policies on individuals protected by the Code was a prominent concern raised during the OHRC’s disability and education consultation, and is discussed at length in The Opportunity to Succeed. This issue was also raised extensively in the OHRC’s inquiry into racial profiling, and is discussed in the OHRC’s report entitled Paying the Price: The Human Cost of Racial Profiling. Both documents are available online at the OHRC’s website: www.ohrc.on.ca.
 For a more detailed discussion on accommodation plans, please refer to the section of the Guidelines entitled “Accommodation planning.”
 See Individuals with Disabilities Education Act, supra, note 18, ss. 615(k)(4)(A)(ii).
 The Ontario Court of Appeal has commented that discipline measures pursuant to the regulations under the Education Act must take into account a student’s individual circumstances. See Bonnah (Litigation Guardian of) v. Ottawa-Carlton District School Board (2003), 64 O.R. (3d) 454 (Ont. C.A.) at para. 37.