The Court of Appeal allowed the appeal made by parents of a child with a disability, of a Chambers Judge’s decision quashing an order of the Human Rights Tribunal to refer a human rights complaint to an inquiry. The appeal concerned a human rights complaint brought by the parents of a 10 year old boy who suffered a disability. The complaint arose out of a newly implemented locked door policy at the school that made it more difficult for the boy to enter and leave the school building.
Administrative law – Decisions of administrative tribunals – Human Rights Commission – Human rights complaints – Discrimination – Disability – Duty to accommodate – Schools – Parental rights – Judicial review – Evidence
Holy Trinity Roman Catholic School Division (c.o.b. Ecole St. Margaret School) v. Prisciak,  S.J. No. 501, 2013 SKCA 87, Saskatchewan Court of Appeal, August 21, 2013, R.G. Richards C.J.S., G.R. Jackson and R.K. Ottebreit JJ.A.
The appeal was brought by the parents of a 10-year-old boy who suffered from a disability that caused muscle weakness and imbalance. In the past, the school accommodated the child’s disability by providing the parents with a key to the east door, the one nearest the handicapped parking space. Then the school implemented a “locked door” policy and the principal took away the parents’ key and required that they either use the front door or call ahead to have an aide meet them at the east door. The parents filed a human rights complaint, alleging that the failure to provide them with a key or other means of entry interfered with their son’s right to education, by not accommodating his disability in a suitable manner. The school principal asserted that the locked door policy was essential for the safety of all children, and that other accommodations had been made, to the point of undue hardship. The complaint was reviewed by the Chief Commissioner under The Saskatchewan Human Rights Code, S.S. 1979, c.S-24.1 as amended by The Saskatchewan Human Rights Amendment Act, 2000, S.S. 200, c.26, who dismissed the claim as being without merit. The Tribunal set aside the Commissioner’s decision and ordered that the matter proceed to inquiry. The school appealed to the Court of Queen’s Bench which quashed the Tribunal’s decision and restored the decision of the Chief Commissioner. The parents appealed to the Court of Appeal.
The appeal was allowed. The Court of Appeal found that the Chambers Judge erred by setting aside the Tribunal’s decision on the basis that the Commissioner’s decision met the standard of reasonableness and, in doing so, restored the Commissioner’s decision. The Commissioner’s decision did not meet the test for reasonableness on the basis of “no evidence”. The Tribunal had looked for evidence to support the Commissioner’s conclusion that school safety would be compromised by providing a key or key-pad to the parents and found “no evidence”. Whether the standard of review is correctness or reasonableness, an essential finding made without evidence must result in the decision being set aside. There was no evidence that providing the parents with their preferred form of accommodation (a key or key-pad access) would compromise the safety objectives of the locked door policy so as to create an undue hardship. Furthermore, the school did not argue that providing a key or key-pad would be too expensive (i.e. create an undue financial hardship). The Tribunal did not err in setting aside the Commissioner’s decision on the basis of unreasonableness.
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