Introduction

On August 26, 2019, Ontario’s Ministry of the Solicitor General (the Ministry) announced proposed amendments to Regulation 778 under the Ministry of Correctional Services Act. The Ontario Human Rights Commission (OHRC) welcomes the opportunity to provide this submission on the amendments related to segregation.

Overall, the OHRC is disappointed with the proposed amendments, which do nothing to substantively address serious issues with Ontario’s continued abuse of segregation. Despite the findings of the Independent Review of Ontario Corrections, the Ombudsman of Ontario and the courts, the Ministry has not moved forward with urgent and necessary legislative protections. Instead, the Ministry is putting forward amendments that align with requirements that already exist in Ontario’s correctional system and do little to address practices that have been found to breach the Ontario Human Rights Code (Code) and the Canadian Charter of Rights and Freedoms (Charter).

Regulation 778 governs the operation of Ontario’s adult correctional institutions, including the use of segregation in these facilities. The Ministry is proposing the following two amendments relating to segregation:

Segregation review process: Regulation 778 currently requires that a superintendent review segregation placements at least every five days. The proposed amendment, described as creating an “independent review process,” will require the Assistant Deputy Minister of Institutional Services rather than the superintendent to conduct these reviews.

15-day limit on disciplinary segregation: Regulation 778 currently allows prisoners to be placed in disciplinary segregation for up to 30 continuous days. The proposed amendment will reduce this maximum to 15 days to align with operational policy that already imposes a 15-day cap on disciplinary segregation.[1]

The Ministry of Correctional Services Act and Regulation 778 are almost 30 years old and were developed before the negative effects of segregation were well known. Today, there is widespread recognition of the serious and lasting harm caused by segregation. Every Canadian court that has considered this issue in recent years has found that the practice is harmful. Minor amendments to an outdated Regulation will not address the harm being caused to prisoners under the current segregation system. As illustrated in painstaking detail in R v Capay, segregation can cause profound and lasting harm.[2] Addressing this harm requires real action, not half measures.

Instead, the proposed amendments are designed to provide the absolute minimum protection that the Ministry could possibly argue is constitutionally compliant. Yet even with these changes, Ontario’s segregation practices fall short of the constitutional standards that have been established by Canadian courts. Instead of this marginal, technical and legally questionable approach, we urge the Ministry to create a regime that acknowledges and aims to address the serious harm caused by segregation with robust and clear protections governing its use.

The OHRC renews its February 2019 call on the Ministry to commit to an action plan to end segregation in Ontario, and makes the following recommendations in response to the proposed amendments:

1. Clarify whether the government intends to proclaim the Correctional Services and Reintegration Act, which was passed by the Legislature in 2018, and includes requirements for effective segregation oversight and time limits, and prohibits the segregation of particular vulnerable groups.

2. Take immediate steps to establish an external and independent review process for segregation decisions, including judicial oversight.

3. Strictly prohibit indefinite segregation by:
   
   1. Imposing a 15-day cap on all segregation placements, and
   2. Restricting the use of segregation to 60 aggregate days in a calendar year.

4. Strictly prohibit the segregation of prisoners who:
   
   1. Are pregnant or have recently given birth
   2. Are chronically self-harming or suicidal
   3. Have a mental health or an intellectual disability
   4. Need medical observation
   5. Have a mobility impairment.

​

A. The Ontario Human Rights Commission

The OHRC is a statutory human rights body established under the Code, and is responsible for promoting and advancing human rights and preventing discriminatory practices in Ontario.[3]

The OHRC's submissions are based on years of extensive work advocating for Ontario’s segregation practices to meet the government’s obligations under the Code, Charter and international law. The OHRC is recognized internationally as an expert in correctional policy, and recently acted as an expert reviewer for Penal Reform International’s “Mental Health in Prison: A short guide for prison staff.”[4]

The OHRC’s concern with segregation is based, in particular, on the disproportionate adverse effect it has on Code-protected groups such as people with mental health and physical disabilities, women, as well as Indigenous and Black individuals who are overrepresented in the corrections system.  

The OHRC’s work specifically relating to segregation in Ontario’s correctional system has included:

• Taking part in human rights litigation relating to the use of segregation[5]
• Negotiating legally binding settlement agreements and a tribunal consent order concerning Ontario’s segregation practices[6]
• Reviewing and commenting on correctional policy
• Providing submissions to government highlighting the harms of segregation, and making recommendations to address human rights concerns[7]
• Touring 10 correctional facilities, including the St. Lawrence Valley Correctional and Treatment Centre[8]
• Many interviews with prisoners held in segregation across Ontario
• Consulting with management and front-line correctional officers across Ontario
• Consulting with experts, stakeholders and other advocate groups
• Obtaining and analyzing data on Ontario’s segregation use[9]
• Extensive consultation with the Ontario government and the Legislature on drafting and enacting Ontario’s Correctional Services and Reintegration Act, which was enacted in 2018 but has not been proclaimed into force.[10]

B. Status of the Correctional Services and Reintegration Act

As a starting point and for transparency, the Ministry has an obligation to the public to clarify how the proposed amendments to Regulation 778 fit into any broader legislative plans regarding segregation use in Ontario. In particular, if the Ministry is proposing these amendments in lieu of proclaiming the Correctional Services and Reintegration Act (CSRA), the Ministry must clearly communicate this to the public.

The CSRA is the new legislative scheme for governing Ontario’s correctional system. It is meant to replace the outdated Ministry of Correctional Services Act and Regulation 778, and includes clear and robust protections for prisoners in segregation.

First, the CSRA requires that all segregation placements be subject to independent and external review. It establishes that any segregation placements of over five consecutive days must be referred to an Independent Regional Chair to have a hearing before an Independent Review Panel.[11] The CSRA expressly provides that both the Independent Regional Chair and members of the Independent Review Panels will be appointed by the Lieutenant Governor in Council – which means that they will be external to the Ministry.[12]

Second, the CSRA includes strict time limits for segregation use. It imposes a hard 15-day cap as well as a 60-day annual aggregate cap on all segregation placements.[13]

Third, the CSRA sets out a prohibition on any segregation at all for prisoners who (a) are pregnant or have recently given birth, (b) are chronically self-harming or suicidal, (c) have a mental health or an intellectual disability, (d) need medical observation, or (e) have a mobility impairment.[14]

These protections would go a long way to addressing issues with Ontario’s segregation use, provided the government does not delay implementing them.[15]

However, despite being passed by Ontario’s Legislative Assembly and receiving Royal Assent in May 2018, the CSRA does not yet apply as law in Ontario. Before taking effect and become legally binding, the CSRA must be proclaimed into force by the government. So even though the Legislature has passed the CSRA– signalling the necessity for and viability of the segregation safeguards described above – these are not yet in place in Ontario.

The current situation creates public confusion about the law governing Ontario’s correctional system and ongoing use of segregation. The fact that the CSRA was passed by the Legislature signals to the public that there are new legislative requirements for Ontario’s correctional system. However, the fact that the CSRA will not actually take effect until it is proclaimed by the government is technical and not widely understood.

It is important that the government provide the public with clear information about the status of the laws governing Ontario’s correctional system. This includes clarifying if the government will be proclaiming the CSRA, and if so, when that will occur. Alternatively, if the amendments to Regulation 778 are being proposed instead of proclaiming the CSRA, this must also be clearly communicated.

OHRC Recommendation 1:

Clarify whether the government intends to proclaim the Correctional Services and Reintegration Act, which was passed by the Legislature in 2018, and includes requirements for effective segregation oversight and time limits, and prohibits the segregation of particular vulnerable groups.

C. Amendments relating to the segregation review process

Currently, Section 34(3) of Regulation 778 requires a superintendent to “review the circumstances of each inmate who is placed in segregation at least once in every five-day period to determine whether the continued segregation of the inmate is warranted.”[16]

The Ministry’s proposed amendment will require these five-day reviews to be conducted by the “Assistant Deputy Minister of Institutional Services or their designate”[17] instead of the superintendent. The commentary accompanying the proposed amendment suggests that this process will be “independent” because the designate will not be “a superintendent or anyone who reports directly or indirectly to a superintendent.”[18]

This proposal is insufficient to protect prisoners from the harms of segregation. It will simply change the Regulation to require a type of segregation review that has repeatedly been found insufficient in terms of providing meaningful oversight of segregation in Ontario’s correctional system. For years, in part as a result of the settlement in Jahn v Ministry of Community Safety and Correctional Services, Ontario’s correctional policy has required that longer-term segregation placement be reviewed by designates other than superintendents and those reporting to them – including review specifically by the Assistant Deputy Minister of Institutional Services.[19] Indeed, this very type of segregation review process was in place and allowed Adam Capay – a young First Nations man with mental health disabilities – to be held in continuous segregation for more than 1,500 days.

Courts, experts and oversight bodies – including the OHRC – have all identified Ontario’s internal segregation reviews as being inadequate for safeguarding human rights, and have consistently stated that meaningful and truly independent oversight of segregation must be external.

Oversight bodies and experts have repeatedly found internal segregation reviews to be inadequate

The OHRC has been calling for external segregation review for years. In its January 2016 submission to the Ministry’s Provincial Segregation Review, the OHRC considered the Ministry’s segregation review process, which included reporting to the Assistant Deputy Minister, and concluded that external review was necessary:

MCSCS currently has internal processes requiring segregation decisions to be evaluated at least every five days, baseline and ongoing health assessments, and reporting of long-term segregation placements to the Deputy Minister, Institutional Services. However, repeated cases of troubling segregation use – despite the application of internal review processes – have underscored the necessity of external and independent review.

Requiring external and independent oversight of segregation decisions, including judicial review, is in line with recommendations made by the UN Special Rapporteur on Torture and United Nations Committee Against Torture. The Special Rapporteur has stated that segregation decisions should be subject to a documented system of regular review carried out by an independent body. In situations where prisoners have made complaints, the Special Rapporteur has stated, “all internal administrative findings must be subject to external appeal through the judicial process.” In 2012, the UN Committee Against Torture issued a report urging Canada to make solitary confinement decisions subject to judicial review.[20] 

Since then, the OHRC has repeatedly reiterated its recommendation that segregation placement decisions must be subject to external and independent review, including judicial oversight.[21]

The Ombudsman of Ontario and Independent Advisor on Corrections Reform have also confirmed the need for external review. In Out of Oversight, Out of Mind, its 2017 report on how the Ministry tracks and reviews segregation placements, the Ombudsman of Ontario concluded that the Ministry’s internal segregation review process was inadequate and ineffective:

Our investigation found that these mandated reviews often fail to rigorously evaluate an inmate’s placement and instead become pro forma exercises. We found instances where the information in an inmate’s segregation reports was sparse and contradictory. Senior Ministry officials failed to consistently review the 30-day reports generated by correctional facilities and regional Ministry staff. And many of the frontline employees we interviewed expressed concerns that the segregation reporting framework is inefficient, repetitive, and fails to ensure procedural protections for segregated inmates.[22]

Like the OHRC, the Ombudsman of Ontario determined that this internal review process alone was insufficient, and recommended that the Ministry implement a system to independently review segregation placements.[23]

Howard Sapers, the Independent Advisor on Corrections Reform, reached a similar conclusion following his examination of the internal segregation review and accountability mechanisms in place in Ontario’s correctional system. In his March 2017 report, Segregation in Ontario, he concluded that “Segregation placements must be accompanied by robust, effective and procedurally-fair oversight and review mechanisms. Ontario’s current segregation review and oversight framework fails to meet this standard.”[24] The Independent Advisor recommended that Independent Hearing Officers be appointed to adjudicate all segregation placements beyond five days.[25]

R v Capay and other legal decisions confirm that internal segregation reviews are inadequate

Following these reports, earlier this year the Ontario Superior Court of Justice confirmed in R v Capay that Ontario’s system of internal segregation review is broken and inadequate.[26]

In holding that Adam Capay’s confinement in segregation for over 1,500 days violated his section 7, 9, 12 and 15 Charter rights, the Court considered extensive evidence on the operation of internal segregation accountability mechanisms in Ontario’s correctional system.

The Court found that it was “obvious that the segregation review process in the case of the accused was meaningless at the institutional and regional levels.”[27] The Court based its conclusion on evidence that:

• The administrative summaries of Mr. Capay’s health records failed to accurately reflect the psychiatrist’s assessments
• Mr. Capay’s segregation reviews had often been missing and had been limited to one- or two-line comments “reiterating generic reasons noted on previous reasons”
• Continued segregation was always supported by regional reviewers.[28]

Officials at both the institutional and regional level testified that they were unable to recall “a single occasion” where continued segregation was not supported at the regional level.[29] One regional official even testified that they did not think it was their role to interfere with a segregation decision supported by a social worker or a psychiatrist.[30]

While R v Capay did not directly address the constitutionality of the statutory framework governing segregation review in Ontario, the Court did reflect on the systemic problems with the current system. It noted that the evidence heard “demonstrates a disturbing pattern of disregard for policy, procedure, and inmates’ rights within the Ontario correctional system.”[31] The Court also found that the misconduct in the case before it was “not isolated” and that the “inadequacy and ineffectiveness of the segregation review process in Ontario has been a long standing and ongoing problem.”[32]

These legal conclusions are consistent with the trend in other recent Canadian court decisions addressing segregation. In Canadian Civil Liberties Association v Canada, a challenge to the federal corrections legislation, the Ontario Superior Court of Justice held that a robust duty of fairness applies to the decision to maintain an inmate in administrative segregation, and the failure to provide for independent review of such decisions violates the Charter.[33] While the Court suggested that independent review could be conducted by corrections officials outside a specific institution, Capay shows that this cannot be achieved in Ontario’s correctional system through an internal Ministry process. Segregation review that fails to provide for external oversight will not be independent or effective.

The need for external review of segregation decisions was further confirmed by the evidentiary findings of the British Columbia Supreme Court and Court of Appeal in British Columbia Civil Liberties Association v Canada. Those courts found that external review is necessary to:

a)  Ensure an objective consideration of the facts measured against the legislative criteria for segregation free of institutional pressures and bias

b)  Cause [the correctional service] to more rigorously examine alternatives to segregation

c)   Increase the level of accountability of the institution and provide inmates with an opportunity to present their case to an individual not affiliated with the institution, thus increasing the perception of fairness

d)  Ensure compliance with time limits and other legislative and policy requirements of administrative segregation

e)  Avoid the situation whereby all placement reviews are conducted by individuals who are part of the culture and hierarchy of [the correctional service], and therefore deferential to other decision‑makers, and

f)   Address the failure of repeated attempts at internal reform to ensure procedural fairness.[34]

In reaching its conclusion, the British Columbia Court of Appeal relied on findings of the trial judge – similar to those in Capay– that under a system of internal review, “once an inmate has been placed in administrative segregation, the procedural safeguards in place do not, in practice, work to prevent the individual from languishing in solitary confinement.”[35] The British Columbia Court of Appeal concluded that:

On the basis of the judge’s findings of fact, the Canadian experience with internal review, and detailed studies of the issue which have resulted in repeated calls for the adoption of external review, a well-informed member of the public could not reasonably conclude that internal review of segregation decisions will be done fairly. That is so even if those decisions are made by [Correctional Service Canada] officials who are neither subordinate to nor within the circle of influence of the institutional head whose decision is being reviewed. As noted, the judge found that at least unconscious institutional bias has plagued the segregation review process, even in circumstances where the decision-making process has been elevated to the regional or national levels.[36]

Similarly, in light of Capay, the proposed amendments fail to provide for a review or oversight process that the public could reasonably conclude will be undertaken fairly.

Internal reviews fail to provide meaningful independent oversight of segregation

The proposed amendments will not provide the independence needed to ensure that segregation oversight is objective and robust, and meets the high standard of procedural fairness required for such decisions under the Charter.

The OHRC calls on the government to take immediate action to amend Regulation 778 to include a truly independent, external segregation review and oversight process.

OHRC Recommendation 2:

Take immediate steps to establish an external and independent review process for segregation decisions, including judicial oversight.

D. Amendments relating to a 15-day time limit for disciplinary segregation

Regulation 778 currently permits a superintendent who has determined a prisoner committed a misconduct of a serious nature to impose a term of disciplinary segregation, also referred to as “close confinement,” for up to 30 continuous days.[37]

The Ministry proposes to amend the Regulation to reduce the maximum length of disciplinary segregation terms from 30 to 15 days. The commentary to the proposed amendment indicates that the change will bring the Regulation into alignment with operational policy, which already provides for a 15-day cap on disciplinary segregation.[38]

A strict 15-day time limit is a crucial safeguard for limiting the harm caused by long-term segregation placements and is consistent with international standards. However, the proposed amendment is deeply troubling because the 15-day time limit will only apply to disciplinary segregation, and will not include administrative segregation – which accounts for almost all segregation use.[39] Disciplinary segregation constituted only 3% of Ontario’s segregation placements in 2016.[40]

The commentary to the proposed amendment indicates that the 15-day limit on disciplinary segregation is based on “research, engagement with stakeholders and the public, and international standards.” This is misleading. Experts, international standards, and the Court of Appeal of Ontario have all recognized that prolonged segregation causes serious and lasting harm and should be subject to strict time limits, regardless of the reason for segregation.

Regulation 778 should be amended to set out a 15-day time limit for all segregation placements. The OHRC also recommends that the government restrict the use of segregation to 60 aggregate days in a calendar year. This is the only way to prevent back-to-back segregation placements that mimic long-term segregation, and thereby protect individuals from extensive segregation use.

Strict time limits are necessary to address the serious harm caused by long-term segregation

In light of the serious harm caused by prolonged segregation, both the Court of Appeal for Ontario and international standards recognize the need for strict time limits for segregation placements.

In its recent decision in Canadian Civil Liberties Association v Canada [CCLA], the Court of Appeal found that prolonged “administrative segregation causes foreseeable and expected harm which may be permanent and which cannot be detected through monitoring until it has already occurred.”[41] On this basis, the Court of Appeal held that segregation for greater than 15 days is unconstitutional and amounts to cruel and unusual punishment contrary to section 12 of the Charter.[42] The finding on the serious harm caused by segregation has been echoed by many other courts in Ontario and across the Canada.[43] The evidence of harm is now undeniable, and the Ministry should design the Regulation to address this reality.

Authoritative international standards also clearly establish the necessity for strict time limits to constrain the harm of segregation. In 2015, the United Nations General Assembly adopted the United Nations Standard Minimum Rules for the Treatment of Prisoners, known as the Mandela Rules.[44] The Mandela Rules set out specific provisions governing segregation, referred to as solitary confinement, and defined as the confinement of prisoners for 22 hours or more a day without meaningful human contact.[45] While the Mandela Rules explicitly prohibit the use of solitary confinement in excess of 15 days,[46] they also say that solitary confinement should “be used only in exceptional cases as a last resort, for as short a time as possible and subject to independent review.”[47] The international standards do not distinguish between disciplinary or non-disciplinary solitary confinement.

Ontario’s Court of Appeal has held that the Mandela Rules are an authoritative interpretation of international rules, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[48]

Ontario continues to rely on long-term segregation placements

Without establishing a 15-day time limit for administrative segregation, the government is effectively sanctioning the use of indefinite segregation and accepting that prisoners will be seriously harmed as a result.

The data on segregation use establishes that Ontario continues to hold prisoners in prolonged segregation, and that these placements fall almost exclusively under the category of administrative segregation. In 2015 – 2016, the Ministry reported that 1,019 people spent 30 or more continuous days in segregation, for an average time of 104 days.[49] The Ministry’s most recent 2018 segregation data showed that there were at least five cases of continuous segregation extending over a year, including one person who was held in segregation at the Central East Correctional Centre for 598 continuous days.[50]

The need for strict time-limit safeguards is underscored by the fact that vulnerable Code-protected groups, including people with mental health and physical disabilities, women, and Indigenous prisoners are being disproportionately affected by segregation.[51]

The OHRC calls on Ontario to take immediate action to amend Regulation 778 to provide hard time limits on all forms of segregation.

OHRC Recommendation 3:

Strictly prohibit indefinite segregation by:

1. Imposing a 15-day cap on all segregation placements, and
2. Restricting the use of segregation to 60 aggregate days in a calendar year.

E. The need to prohibit segregation for particularly vulnerable groups

The OHRC urges Ontario to make additional amendments to Regulation 778 to prohibit segregation altogether for particularly vulnerable Code-protected groups who are negatively impacted by this practice.

People with mental health disabilities are disproportionately placed in and harmed by segregation

It is well established that segregation has particularly damaging effects for people with pre-existing mental health disabilities. The United Nations Special Rapporteur on Torture has determined that segregation “of any duration, on persons with mental disabilities is cruel, inhuman or degrading treatment.”[52] The Mandela Rules also state that segregation of prisoners with mental disabilities should be prohibited when their conditions would be exacerbated by the practice.[53]

Appellate courts in both Ontario and British Columbia have explicitly acknowledged that the segregation of prisoners with mental health disabilities is a significant concern. In its recent CCLA decision, the Ontario Court of Appeal specifically noted that “those with mental illness should not be placed in administrative segregation.”[54]

Data on Ontario’s segregation use also shows that people with mental health disabilities are grossly over-represented in segregation, and are also subject to longer placements. The Independent Advisor on Corrections Reform found that while 30% of prisoners in Ontario’s correctional facilities were flagged as having possible or confirmed mental health disabilities, this group made up 43% of prisoners placed in segregation.[55] The Ministry’s most recent segregation data shows that over 50% of the prisoners placed in

segregation in April and May 2018 had a “mental health alert” on their file.[56] In 2016, people with mental health and/or suicide risk alerts spent approximately 30% more time in segregation compared to the rest of the segregated population.[57]

Ontario should prohibit segregation for persons with mental health disabilities and other especially vulnerable groups

In the 2013 Jahn v Ministry of Community Safety and Correctional Services settlement, Ontario explicitly acknowledged that segregation can have an adverse effect on people with mental health disabilities, and made a legally binding commitment to ensure that people from this group would not be placed in segregation except as a last resort.[58] This commitment was reaffirmed in 2018, when the Human Rights Tribunal of Ontario issued the Ontario Human Rights Commission v Ontario consent order, which included appointing an Independent Expert and Independent Reviewer to support the Ministry in achieving operational compliance with the 2013 settlement terms.[59]

The OHRC acknowledges that the implementation process for the consent order is ongoing and that a final report on Ontario’s compliance will be released by the Independent Reviewer, Justice David Cole, in the fall of 2019.[60] Nonetheless, the OHRC is concerned that, seven years after committing to strictly limit the use of segregation for persons with mental health disabilities, the most recent data on segregation use in Ontario suggests that the Ministry has failed to meet this commitment at an operational level.

The OHRC calls on the Ministry to work with the Independent Expert, Professor Kelly Hannah-Moffat, and Independent Reviewer to effectively prohibit segregation for persons with mental health disabilities in accordance with the terms of the Jahn settlement and consent order.

In addition to prohibiting segregation for people with mental health disabilities, the OHRC also calls on Ontario to amend Regulation 778 to prohibit segregation for other vulnerable groups, including people who: are pregnant or have recently given birth; are chronically self-harming or suicidal; have an intellectual disability; need medical observation; or have a mobility impairment.

Accordingly, the OHRC calls on Ontario to also amend Regulation 778 to provide additional protections for particularly vulnerable groups.

OHRC Recommendation 4:

Strictly prohibit the segregation of prisoners who:

1. Are pregnant or have recently given birth
2. Are chronically self-harming or suicidal
3. Have a mental health or intellectual disability
4. Need medical observation
5. Have a mobility impairment.

Conclusion

Experts, international authorities and courts across Canada agree that segregation causes significant and permanent harm. Yet it continues to be used extensively in Ontario’s correctional facilities, including for vulnerable Code-protected groups. Ontario has no effective safeguards in place to limit the harm caused by segregation.

Even with the Ministry’s proposed amendments, Regulation 778 will not mitigate the harm caused by segregation. This does not reflect a genuine effort by the Ministry to address serious human rights issues associated with segregation. Instead, it will signal to prisoners and advocates that they must resort to expensive litigation to bring Ontario’s correctional practices in line with minimum constitutional and Code requirements.

Segregation is no longer an acceptable form of treatment for prisoners in Ontario or Canada. Now is the time for the Ministry to take action to ensure that human rights are at the centre of the law, regulations and policy governing any ongoing use of segregation in Ontario’s correctional institutions.

Background

Reading is a fundamental skill that students must have to navigate their school experience and their later lives. Students with reading disabilities have the right to learn to read. Yet, the Ontario Human Rights Commission (OHRC) is concerned that Ontario’s public education system may be failing to meet the needs of students with reading disabilities (dyslexia and other learning disabilities that affect reading).

On October 3, 2019, the OHRC announced a public inquiry into potential human rights issues that affect students with reading disabilities in Ontario’s public education system. 

About the inquiry

The Right to Read inquiry is reaching out and hearing from parents, students and educators across the province to hear about their experiences, challenges and concerns arising from their experience in Ontario’s public education system.

The inquiry is also assessing whether school boards use scientific evidence-based approaches to meet students’ right to read. The OHRC will assess school boards against five benchmarks that are part of an effective systematic approach to teaching all students to read:

• Universal design for learning (UDL)
• Mandatory early screening
• Reading intervention programs
• Effective accommodation
• Psycho-educational assessments (if required).

The OHRC selected the following eight school boards to assess their compliance with their obligation to provide equal treatment to students with reading disabilities. These boards provide a representative sample of boards across Ontario:

• Hamilton Wentworth District School Board
• Keewatin-Patricia District School Board
• Lakehead District School Board
• London District Catholic School Board
• Ottawa-Carleton District School Board
• Peel District School Board
• Simcoe-Muskoka Catholic District School Board
• Thames Valley District School Board.

Get involved

We invite you to complete an online survey and attend one of our upcoming public hearings or community meetings.

Complete a survey

The OHRC is conducting a survey to support the Right to Read inquiry. This survey will help us to understand and report on the experiences of students with reading disabilities in Ontario public schools as part of assessing whether they have meaningful access to education as required by the Ontario Human Rights Code (Code).

This survey is for students with reading disabilities or their parents and guardians. It takes 15 to 20 minutes to complete. You do not have to complete the survey all at once. You can come back to it at any time as long as you use the same computer or smartphone.

To complete the survey click here.

If you have difficulty or need help completing this survey, contact the OHRC at 416-314-4547 or by email at legal@ohrc.on.ca.

A separate survey will be available for educators and others.

Public hearings and community meetings

The OHRC is holding public hearings to allow students with reading disabilities, parents and caregivers and other stakeholders to share their stories and lived experiences.

January 14, 2020:                Brampton
January 29, 2020:                London
February 25, 2020:              Thunder Bay 
March 10, 2020:                  Ottawa

The OHRC will also hold community meetings in Hamilton, Barrie and Kenora in early 2020.

More details on the public hearings and community meetings are coming soon.

Legal authority for collecting personal information

Section 31 of the Code allows the OHRC to collect information as part of conducting a public interest inquiry. This collection is also consistent with s. 38(2) of the Freedom of Information and Protection of Privacy Act (FIPPA). The OHRC recognizes the importance of protecting personal information, protecting human dignity and maintaining public trust and confidence. We will take all reasonable steps to ensure that personal information is treated confidentially and is only used for the purposes it was collected for, and to prevent unauthorized access, use or disclosure of your personal information as directed by the FIPPA. For more information see our Protection of personal information and privacy safeguards policy.

Related resources

I hope this letter finds you well. I am writing to your school board to request documents, data and information that may be relevant to the Ontario Human Rights Commission’s (OHRC) Right to Read inquiry into human rights issues that affect students with reading disabilities in Ontario’s public education system.

I know that your school board and the OHRC share the goal of ensuring that students with reading disabilities have meaningful access to education, which includes learning to read. Achieving our shared goal depends on implementing a systematic approach that has been shown to be effective in meeting the needs of the most students, particularly students with reading disabilities.

As you know from our telephone call and the inquiry Terms of Reference we sent to you on September 30, 2019 (copy enclosed), the OHRC is conducting an inquiry under the authority of section 31 (see Appendix A) of the Ontario Human Rights Code (Code).

We will assess your board’s approach to reading disabilities (i.e. learning disabilities with impairment in reading, including dyslexia) against five benchmarks:

1. Universal Design for Learning (UDL)
2. Mandatory early screening
3. Evidence-based reading intervention programs
4. Accommodation
5. Psycho-educational assessments.

We will also examine the unique challenges of students with reading disabilities who face other barriers such as low socio-economic status/poverty, or having intersecting Code identities such as being Indigenous, racialized, newcomers, or English Language Learners. We are also considering perspectives on terminology, in particular related to the categories of learning disability (LD) and dyslexia.

To conduct this inquiry, we are asking your board to produce documents, data and information and to answer questions. We ask that you provide a complete response to each item below or if you cannot, that you indicate why. We have provided an Excel spreadsheet that corresponds to each item requested. Please respond to the production request through the spreadsheet (i.e. fill in your answers in the Excel spreadsheet and provide the requested data in the corresponding Tabs).

We are prepared to receive materials and information on a rolling basis and will keep track of the status of our production request. We ask that you provide as much of this information as possible by December 18, 2019. At the end of this letter, I include details about how your staff can connect with OHRC staff to facilitate this process.

Pursuant to sections 31(7) and 31(8) of the Code, the OHRC requests that your board produce the following documents, data and information:

1. Universal Design for Learning

1. Please provide any documents, data or information explaining your board’s approach to teaching reading, particularly in junior kindergarten (JK) through Grade 3 inclusive, including any policies, procedures, directives, training and professional development materials or anything else that addresses literacy and reading.
2. Please indicate whether schools in your board are primarily using a “whole-language approach” (e.g. three cueing system, sight words, and/or reading resources such as PM Benchmarks/Developmental Reading Assessment (DRA)/Fountas and Pinnell) or a “structured literacy” approach (e.g. systematic instruction in phonics, decodable texts). Please be specific.
3. Please advise whether your board has taken a position or issued any direction to schools on which approach to use. If so, please explain why that approach was selected. If not, please explain why your board has not done so.
4. How do you monitor the progress of individual students in reading?

2. Early screening

1. Please provide any documents, data or information that address your board’s approach to early screening for potential reading difficulties, i.e. in kindergarten and Grade 1, including any policies, procedures, directives, early screening tools or tests used, early screening pilot projects/trials, training and professional development materials or anything else that addresses early screening.
2. Please indicate whether your board requires all elementary schools to screen every student in kindergarten and/or Grade 1 for reading difficulties.
3. Please describe your board’s approach to early screening for English Language Learners (e.g. is it the same or different, and if different, how so and why).
4. Please indicate what scientific evidence-based screening tools or tests your board has approved for early screening.
5. If your board has not approved any scientific evidence-based screening tools or tests, please explain why not. Please advise if any other standardized tools are being used for early screening, and if so, provide them.
6. Please describe:
   
   1. when screening for reading difficulties first occurs
   2. how often it occurs after that
   3. who conducts the screening
   4. how the results of each screening are recorded
   5. how the results of screening are used (e.g. are they used to offer accommodation or reading interventions, and if so, what percentile scores trigger offering accommodation or reading interventions), and
   6. what follow-up screening takes place to monitor how students are progressing.

3. Reading interventions

1. Please provide any documents, data or information explaining your board’s approach to reading interventions for students with reading disabilities or suspected reading disabilities, including any policies, procedures, directives, reading intervention programs used, training and professional development materials or anything else that addresses reading interventions.
2. Does your board use a tiered approach to reading interventions? If so, please describe.
3. What reading interventions are available in your board? Please be specific, i.e. list or describe each program and indicate which schools have it.
4. Are students required to change schools to access reading intervention programs?
5. What is the process for deciding which schools will have a reading intervention program and which program?
6. Where does the funding for reading intervention programs come from?
7. For each of the reading programs listed in 3(c) please indicate:
   
   1. In what grade or grades is the reading intervention program offered?
   2. Who delivers the reading intervention program? What training do they receive?
   3. How are students selected to take part in the reading intervention program? What are the eligibility requirements? Are specific assessments required (e.g. psycho-educational assessment, diagnosis of a reading disability)? Must the student be identified by an Identification, Placement, and Review Committee (IPRC) or have an Individual Education Plan (IEP) to be eligible for a reading intervention program? Are the same selection criteria used for English Language Learners (if not, why not)?
   4. Are students offered the full program – for example, if the program calls for daily withdrawal support for a certain number of weeks, do students receive it daily and for the full duration? If not, what are the limitations and why?
   5. How long can students stay in the reading intervention program (e.g. months, years)? Is there a system for tracking student completion of the intervention program? Is there a system for tracking the effectiveness of the program for an individual student (e.g. tests administered before and after completion of the program)?
8. Please provide any data, reviews, reports or assessments you may have that analyze the overall effectiveness or outcomes of any reading interventions your board offers.

4. Accommodation

1. Please provide any documents, data or information explaining your board’s approach to accommodating students with reading disabilities or suspected reading disabilities, including any policies, procedures, directives, training and professional development materials or anything else that addresses accommodating these students.
2. What is required to obtain accommodations for reading disabilities or suspected reading disabilities? Is a psycho-educational assessment required? Is IPRC identification and recommendation required?
3. How are IEPs used in relation to accommodating reading disabilities or suspected reading disabilities?
4. Are reading interventions provided to a student before or while simultaneously providing accommodations for reading?
5. Are reading interventions always provided to students before creating modified curriculum expectations within the IEP? Are accommodations always provided to students before creating modified curriculum expectations within the IEP? If not, why not?
6. What accommodations are provided to students with reading disabilities or suspected reading disabilities? How is the accommodation process the same or different for English Language Learners?
7. What assistive technology (both hardware and software) is available for use by students with reading disabilities or suspected reading disabilities? Does every student who requires assistive technology to accommodate their reading disability have access to it as needed? What support is available for students using assistive technology (e.g. are teachers trained in assistive technology and able to support its use by students with reading disabilities)?
8. What quality assurance processes exist for IEPs and to ensure students have access to timely and effective accommodation?

5. Psycho-educational assessments

1. Please provide any documents, data or information explaining your board’s approach to psycho-educational assessments, including any policies, procedures, directives, training and professional development materials or anything else that addresses psycho-educational assessments.
2. Please provide any documents or information indicating whether your board has established criteria to be applied when determining whether to recommend a student receive a psycho-educational assessment by a board psychologist. 
3. How are decisions to recommend or not recommend a student for a board psycho-educational assessment made? Who makes the decision? What factors are considered? Are the criteria the same for English Language Learners?
4. Who maintains and administers any wait lists for psycho-educational assessments (the board, individual schools, groups of schools)?
5. Is there a restriction on the number of students who can be assessed in a year? Is there a restriction on the age or grade of the student before they will be considered for assessment?
6. While students are waiting for assessment, do they have IEPs? Are they receiving accommodation?
7. How many students are currently waiting for a psycho-educational assessment? Without providing the student’s name or Ontario Education Number, for every child waiting for assessment, please provide the date they were put on the list, what grade they were in when put on the list, and whether they have an IEP.
8. Please provide your board’s data on the average amount of time it takes for a student to receive an assessment.

6. Data collection

1. What percentage of students in your board (in relation to the overall student population) have been identified as having special education needs (excluding gifted unless co-occurring with other special education needs)?
2. What percentage of students in your board have been identified as having an LD exceptionality (i) in relation to the overall student population and (ii) in relation to students who have been identified as having special education needs (excluding gifted unless co-occurring with other special education needs)?  
3. What percentage of students in your board have an IEP? What percentage of students with special education needs (excluding gifted unless co-occurring with other special education needs) have an IEP? What percentage of students with an LD have an IEP? What percentage of students in your board have an IEP for reading difficulties?
4. Does your board collect data about students with reading disabilities or LDs including: gender identity, race, Indigenous ancestry, concurrent disabilities, total family income, what grade they were identified in, reading intervention programs they have taken part in, accommodations provided, and outcomes? If so, please provide this data.
5. Does your board conduct a student census or collect demographic data about all students? If not, what plans, if any, does your board have for doing so in future?
6. If your board conducts a student census, please provide the following for the most recent census conducted:
   
   1. A blank copy of the census form
   2. All data for each student who completed the census (please provide a unique number for each student, but not the student’s name or Ontario Education Number). As well, please link the census data with other data to indicate whether the student has an IEP, has been identified as having Special Education Needs, and/or has been identified as having an LD exceptionality
   3. For each student who completed the census in Grade 3, Grade 6 or Grade 10, please link the census data for that student to, and provide, the student’s results that year on the Grade 3 EQAO reading assessment, Grade 6 EQAO reading assessment, or Grade 10 OSSLT respectively.
7. Provide the following based on the most recent data collected pursuant to your board’s voluntary self-identification policy for Indigenous students:
   
   1. The percentage of students who have self-identified as Indigenous overall and broken down by First Nation, Inuit, and Métis
   2. The board’s analysis of achievement (e.g. as related to literacy, course completion, graduation) for students who have self-identified as Indigenous overall and broken down by First Nation, Inuit, and Métis
   3. For each student who has identified as Indigenous in Grade 3, Grade 6 or Grade 10, the student’s results that year on the Grade 3 EQAO reading assessment, Grade 6 EQAO reading assessment, or Grade 10 OSSLT respectively (please provide a unique number for each student, but not the student’s name or Ontario Education Number)
   4. For each student who has self-identified as Indigenous, please provide any data on whether the student has an IEP, has been identified as having Special Education Needs, and/or has been identified as having an LD exceptionality (please provide a unique number for each student, but not the student’s name or Ontario Education Number).

7. Terminology

1. How does your board define an LD? Does your board break down LDs by sub-types (e.g. impairment in reading, impairment in writing, impairment in math, impairment in executive functioning)?
2. Does your board use the term dyslexia? If so, why? If not, why not?

8. EQAO

1. What percentage of students with special education needs are excused from completing the reading component of each of the Grade 3 and Grade 6 EQAO tests?
2. What percentage of students identified as having an LD exceptionality are excused from completing the reading component of each of the Grade 3 and 6 EQAO tests?
3. Of students who were exempted from the reading component of the EQAO test in each of Grade 3 and 6, what proportion were identified as having an LD exceptionality?
4. In each of Grades 3 and 6, for students with an LD exceptionality who took part in the reading component of the EQAO assessment:
   
   1. What percentage achieved the provincial standard (Level 3 or 4)? Among LD students who achieved the provincial standard, what percentage had test questions/materials read to them, used assistive technology, or used scribing?
   2. What percentage who did not have test questions/materials read to them, use assistive technology, or use scribing achieved the provincial standard?

9. Outcomes

1. What is the current dropout rate for all students in your board (i.e. students who according to records have not graduated, are no longer students of your board and have not transferred to another educational institution)? Among students who have an LD exceptionality, what is the current dropout rate? If available, please provide this information broken down by race, Indigenous ancestry, gender identity, family income and concurrent disabilities.
2. What percentage of Grade 9 students who have an LD exceptionality are taking mostly applied versus academic courses? If available, please provide this information broken down by race, Indigenous ancestry, gender identity, family income and concurrent disabilities.
3. What percentage of all graduates are accepted at college upon graduating? What percentage of graduates with an LD exceptionality are accepted at college upon graduating? What percentage of all graduates are accepted at university upon graduation? What percentage of graduates with an LD exceptionality are accepted at university upon graduation? If available, please provide this information broken down by race, Indigenous ancestry, gender identity, family income and concurrent disabilities.

10. Professional development

1. Please describe what in-service training or professional development your board has on teaching reading, literacy, early screening, signs of reading disabilities, reading interventions, the duty to accommodate under the Code, and special education.

Under section 31 of the Code, you are obligated to produce the documents and information noted above, and provide any assistance that is reasonably necessary, including assistance in using any data storage, processing or retrieval device or system, to produce a document in readable form. As well, under section 8 of the Code, anyone who takes part in our inquiry, including students, parents, educators, board professionals and board staff, must not be subjected to reprisal or threat of reprisal.

Pursuant to section 31 of the Code, subsections 38(2) and 39(1) of the Freedom of Information and Protection of Privacy Act and section 32 of the Municipal Freedom of Information and Protection of Privacy Act, the OHRC is authorized to receive personal information in an inquiry. The OHRC has a Protection of personal information and privacy safeguards policy for this inquiry. We do not believe that this production request requires the disclosure of personal information, but to the extent that it may, we will work with you to address any privacy concerns raised.

This is not intended to be an exhaustive request, and the OHRC may ask your board to produce additional documents, data and information and to answer additional questions as the inquiry proceeds.

Next steps

Please have your staff contact [us] by no later than November 15, 2019 to discuss the process of providing the above-noted documents, data and information to the OHRC.

We recognize that some of the information being sought may not be available at the school board level. If that is the case, please let us know what information can only be provided by school principals or the Ministry of Education through its OnSIS school data management system by November 15, 2019.

We are developing an online survey for school principals. After we hear back from you about any information that can only be obtained from school principals, we will finalize the survey and send you a link so you can ask every elementary school principal to complete and submit it to the OHRC.

As the inquiry will also hear from students, parents and educators about people’s experiences with reading disabilities in public schools, I enclose an electronic copy of the OHRC’s Right to Read flyer and ask that you ensure it is posted in a prominent location in all of your schools and disseminated via the usual means of communication with teachers and parents/guardians.

The OHRC recognizes that school boards across the province have been working towards the goal of accessible education. We believe that the Right to Read inquiry will support these efforts.

We look forward to working with you and receiving your assistance in accordance with the requirements of the Code. In keeping with the OHRC’s commitment to public accountability and its duties in serving the people of Ontario, this letter and your response will be made public.

Sincerely,

Renu Mandhane, B.A., J.D., LL.M.
Chief Commissioner

cc:       OHRC Commissioners
            Hon. Doug Downey, Attorney General
            Hon. Stephen Lecce, Minister of Education

APPENDIX A

Inquiries

31. (1) The Commission may conduct an inquiry under this section for the purpose of carrying out its functions under this Act if the Commission believes it is in the public interest to do so.  2006, c. 30, s. 4.

Conduct of inquiry

(2) An inquiry may be conducted under this section by any person who is appointed by the Commission to carry out inquiries under this section. 2006, c. 30, s. 4.

Production of certificate

(3) A person conducting an inquiry under this section shall produce proof of their appointment upon request.  2006, c. 30, s. 4.

Entry

(4) A person conducting an inquiry under this section may, without warrant, enter any lands or any building, structure or premises where the person has reason to believe there may be documents, things or information relevant to the inquiry. 2006, c. 30, s. 4.

Time of entry

(5) The power to enter a place under subsection (4) may be exercised only during the place’s regular business hours or, if it does not have regular business hours, during daylight hours.  2006, c. 30, s. 4.

Dwellings

(6) A person conducting an inquiry under this section shall not enter into a place or part of a place that is a dwelling without the consent of the occupant.  2006, c. 30, s. 4.

Powers on inquiry

(7) A person conducting an inquiry may,

(a) request the production for inspection and examination of documents or things that are or may be relevant to the inquiry;

(b) upon giving a receipt for it, remove from a place documents produced in response to a request under clause (a) for the purpose of making copies or extracts;

(c) question a person on matters that are or may be relevant to the inquiry, subject to the person’s right to have counsel or a personal representative present during such questioning and exclude from the questioning any person who may be adverse in interest to the inquiry;

(d) use any data storage, processing or retrieval device or system used in carrying on business in the place in order to produce a document in readable form;

(e) take measurements or record by any means the physical dimensions of a place;

(f) take photographs, video recordings or other visual or audio recordings of the interior or exterior of a place; and

(g) require that a place or part thereof not be disturbed for a reasonable period of time for the purposes of carrying out an examination, inquiry or test.  2006, c. 30, s. 4.

Written demand

(8) A demand that a document or thing be produced must be in writing and must include a statement of the nature of the document or thing required.  2006, c. 30, s. 4.

Assistance

(9) A person conducting an inquiry may be accompanied by any person who has special, expert or professional knowledge and who may be of assistance in carrying out the inquiry.  2006, c. 30, s. 4.

Use of force prohibited

(10) A person conducting an inquiry shall not use force to enter and search premises under this section.  2006, c. 30, s. 4.

Obligation to produce and assist

(11) A person who is requested to produce a document or thing under clause (7) (a) shall produce it and shall, on request by the person conducting the inquiry, provide any assistance that is reasonably necessary, including assistance in using any data storage, processing or retrieval device or system, to produce a document in readable form.  2006, c. 30, s. 4.

Return of removed things

(12) A person conducting an inquiry who removes any document or thing from a place under clause (7) (b) shall,

(a) make it available to the person from whom it was removed, on request, at a time and place convenient for both that person and the person conducting the inquiry; and

(b) return it to the person from whom it was removed within a reasonable time.  2006, c. 30, s. 4.

Admissibility of copies

(13) A copy of a document certified by a person conducting an inquiry to be a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.  2006, c. 30, s. 4.

Obstruction

(14) No person shall obstruct or interfere with a person conducting an inquiry under this section.  2006, c. 30, s. 4.

Section Amendments with date in force (d/m/y)

2006, c. 30, s. 4 - 30/06/2008

Search warrant

31.1 (1) The Commission may authorize a person to apply to a justice of the peace for a warrant to enter a place and conduct a search of the place if,

(a) a person conducting an inquiry under section 31 has been denied entry to any place or asked to leave a place before concluding a search;

(b) a person conducting an inquiry under section 31 made a request for documents or things and the request was refused; or

(c) an inquiry under section 31 is otherwise obstructed or prevented.  2006, c. 30, s. 4.

Same

(2) Upon application by a person authorized under subsection (1) to do so, a justice of the peace may issue a warrant under this section if he or she is satisfied on information under oath or affirmation that the warrant is necessary for the purposes of carrying out the inquiry under section 31.  2006, c. 30, s. 4.

Powers

(3) A warrant obtained under subsection (2) may authorize a person named in the warrant, upon producing proof of his or her appointment,

(a) to enter any place specified in the warrant, including a dwelling; and

(b) to do any of the things specified in the warrant.  2006, c. 30, s. 4.

Conditions on search warrant

(4) A warrant obtained under subsection (2) shall contain such conditions as the justice of the peace considers advisable to ensure that any search authorized by the warrant is reasonable in the circumstances.  2006, c. 30, s. 4.

Time of execution

(5) An entry under a warrant issued under this section shall be made at such reasonable times as may be specified in the warrant.  2006, c. 30, s. 4.

Expiry of warrant

(6) A warrant issued under this section shall name a date of expiry, which shall be no later than 15 days after the warrant is issued, but a justice of the peace may extend the date of expiry for an additional period of no more than 15 days, upon application without notice by the person named in the warrant.  2006, c. 30, s. 4.

Use of force

(7) The person authorized to execute the warrant may call upon police officers for assistance in executing the warrant and the person may use whatever force is reasonably necessary to execute the warrant.  2006, c. 30, s. 4.

Obstruction prohibited

(8) No person shall obstruct or hinder a person in the execution of a warrant issued under this section.  2006, c. 30, s. 4.

Application

(9) Subsections 31 (11), (12) and (13) apply with necessary modifications to an inquiry carried out pursuant to a warrant issued under this section.  2006, c. 30, s. 4.

Disclaimer: This statement does not constitute legal advice. The OHRC encourages individuals and organizations to take universal precautions based on the most current advice from Public Health officials. The OHRC continues to monitor the evolving situation and will update this statement on an ongoing basis as needed.

Overview

Following the lead of the United Nations High Commissioner for Human Rights, the Ontario Human Rights Commission (OHRC) urges Ontarians to keep human rights principles under Ontario’s Human Rights Code (Code), the Canadian Charterof Rights and Freedoms (Charter) and relevant international human rights treaties at the centre of decision-making during the coronavirus (COVID-19) pandemic.

Both public- and private-sector organizations must recognize their human rights obligations, and consider the potential disproportionate impacts of COVID-19 on the vulnerable groups they employ or serve. These vulnerable groups include Indigenous and racialized peoples, people with disabilities, older people living alone or in institutions, and low-income communities who have unequal access to health care, childcare and/or are often underemployed.

Many of these vulnerable groups are disproportionately in low-paying, hourly-wage, benefit-free and otherwise precarious jobs that make them unable to provide care or interrupt work. They are also more likely to have limited access to stable healthy housing, child care, transportation and employment insurance. Indigenous peoples and racialized people also have higher incidences of chronic conditions, such as hypertension, diabetes, heart disease, housing overcrowding and more.

At the same time, the OHRC and relevant human rights laws recognize the importance of balancing people’s right to non-discrimination and civil liberties with public health and safety, including the need to address evidence-based risks associated with COVID-19.

Discrimination and COVID-19

Discrimination including harassment against any persons or communities related to COVID-19 is prohibited when it involves a ground under the Code, in the areas of services, housing, employment, vocational associations and contracts.

The Code protects against discrimination based on 17 grounds, whether perceived or otherwise, including disability, ethnic origin, place of origin and race. The OHRC’s policy position is that the Code ground of disability is engaged in relation to COVID-19 as it covers medical conditions or perceived medical conditions that carry significant social stigma.

COVID-19 is not isolated to people of any particular ethnic origin, place of origin or race. Some restrictions, such as a restriction based on where an individual recently travelled, may be reasonable and not discriminatory. However, depending on the circumstances, the Code grounds of place of origin, ethnic origin and race may trigger human rights obligations under the Code.

Employers and housing and service providers should ensure any restrictions are consistent with the most recent advice from medical and Public Health officials, and are justified for health and safety reasons.

The right to be free from discrimination can be limited under the Code (for example, where health and safety risks are serious and would amount to undue hardship). The Charter provides that civil, political and equality rights can be limited where reasonable limits prescribed by law can be demonstrably justified in a free and democratic society. International human rights law also recognizes that limitation of rights can sometimes be justified in limited circumstances.

Employment

The OHRC’s policy position is that negative treatment of employees who have, or are perceived to have, COVID-19, for reasons unrelated to public health and safety, is discriminatory and prohibited under the Code. Employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety.

An employer should not send an individual employee home or ask them not to work because of concerns over COVID-19 unless the concerns are reasonable and consistent with the most recent advice from medical and Public Health officials. In unique circumstances, an employer might have other health and safety concerns that could amount to undue hardship. They would need to be able to show objective evidence to support such a claim.

Employer absenteeism policies must not negatively affect employees who cannot work in connection with COVID-19. An employer may not discipline or terminate an employee who is unable to come to work because medical or health officials have quarantined them or have advised them to self-isolate and stay home in connection with COVID-19.

An employee who has care-giving responsibilities should be accommodated to the point of undue hardship, which might include staying home. These care-giving responsibilities which relate to the Code ground of family status could include situations where another family member is ill or in self-isolation, or where their child’s school is closed due to COVID-19.

Employers should be sensitive to other factors such as any particular vulnerability an employee may have (for example, if they have a compromised immune system).

Employers should give employees flexible options, such as working remotely where feasible, as a good practice, and as an accommodation even if they are not currently sick but need to self-isolate or stay home due to other reasons related to COVID-19.

Consistent with the OHRC’s Policy on ableism and discrimination based on disability and its Policy position on medical documentation to be provided when a disability-related accommodation request is made, employers should take requests for accommodation in good faith. Employers should be flexible and not overburden the health care system with requests for medical notes. Unnecessarily visiting medical offices increases further risk of exposure for everyone.

An employee who cannot work because of COVID-19 may be entitled to employee sick or disability leave and benefits offered by the employer or available under the Employment Standards Act or other government benefit programs.

At the same time, employers are entitled to expect that employees will continue to perform their work unless they have a legitimate reason why they cannot. If an employee is required to self-isolate for legitimate reasons, the employer is entitled to explore alternative options for how the employee may still continue to perform productive work for the employer (for example, telework). It is also not discriminatory to lay off employees if there is no work for them to do because of the impacts of COVID-19.

Employers may have other obligations (for example under the Occupational Health and Safety Act). The OHRC encourages employers to consult the Ontario Ministry of Labour, Training and Skills Development website for the most recent advice.

Services and housing

Individuals also have the right to be free from discrimination including harassment related to COVID-19 in services and housing based on grounds under the Code.

Services include, among other things, education institutions, retail shops and malls and the hospitality industry including restaurants, bars, hotels and entertainment facilities. Housing providers include condo corporations, rental apartments and residential institutional facilities like long-term care and retirement homes.

Negative treatment of service recipients or residents who have, or are perceived to have, COVID-19, for reasons unrelated to public health and safety, could be discriminatory and prohibited under the Code. Organizations in these areas may also have a duty to accommodate persons in relation to COVID-19, unless it would amount to undue hardship based on cost or health and safety.

The OHRC encourages all service and housing providers to take universal precautions based on the most current advice from Public Health officials.

Government-run facilities

The government has a fiduciary obligation to protect the health and safety of individuals held in government-run facilities related to child welfare, youth justice, criminal justice, long-term care, etc. These facilities disproportionately house individuals protected from discrimination under the Code, including Indigenous and racialized people, people with disabilities and addictions, elderly people, children and youth, and other vulnerable groups.

The government must have clear emergency plans in place that adopt a Public Health and human rights-focused approach to addressing evidence-based risks associated with COVID-19 in government-run facilities. Individuals in these facilities also have the right to be free from discrimination including harassment related to COVID-19 in the provision of services on grounds under the Code.

Under the Charter, these individuals have a right to privacy, liberty and security of the person and the right to protection against discrimination, arbitrary detention, and cruel and inhuman treatment, subject to reasonable limits.

Economic, social and cultural rights

The OHRC notes that the UN High Commissioner for Human Rights has stated that Public Health measures that require self-isolation or “social distancing” will likely have a disproportionate and potentially devastating impact on economically-marginalized individuals.

We echo the United Nations’ call for governments to put in place measures to mitigate the impact on people's economic and social rights, including, for example, exploring providing a basic guaranteed income, creating temporary housing and supporting Indigenous communities to meet the unique needs of their citizens.

For more information

Ontario’s Ministry of Health is working with its partners in the health care system implementing a plan to monitor for, detect and, if needed, isolate any cases of COVID-19. People who want to learn more about COVID-19 can visit the ministry’s web page.

See also the OHRC’s related January 28, 2020, statement: OHRC urges respect for human rights during Coronavirus health event.

See also the OHRC’s Policy on ableism and discrimination based on disability.

March 17, 2020

Hon. Sylvia Jones
Ministry of the Solicitor General
18th Floor, George Drew Building
25 Grosvenor Street
Toronto, Ontario M7A 1Y6

Dear Solicitor General Jones:

RE: COVID-19 – Corrections and human rights

I hope you and your family are keeping safe in light of ongoing challenges with COVID-19. 

As you may know, the Ontario Human Rights Commission recently released a policy statement on maintaining human rights during the COVID-19 pandemic. I am writing to you today on behalf of the OHRC to provide advice on steps the government can take to apply a human rights lens to reducing transmission of COVID-19 in Ontario’s correctional facilities and detention centres. 

The OHRC commends you for taking steps to allow intermittent prisoners to remain in the community. The OHRC recognizes that the Ministry of Solicitor General (SOLGEN) is working hard to address this evolving situation, and we have appreciated engaging with SOLGEN staff and leadership, including Assistant Deputy Minister Suzanne McGurn, on this matter.

In light of this engagement, the OHRC asks the government to take further measures to help reduce the transmission of COVID-19, as have been urgently recommended by prison experts, including Penal Reform International (PRI) and the Vera Institute for Justice, and have been taken in jurisdictions comparable to Ontario. These steps include:

• Enhancing transparency and communication
• Supporting family contact
• Reducing overcrowding
• Collecting data.

We encourage SOLGEN to take these steps, which adopt a public health-centred approach rather than a risk-based approach to managing COVID-19, including reducing over-crowding in facilities.

Transparency and communication

Adopting a public health-centred approach would include being transparent about existing emergency preparedness plans and ensuring that these plans are reviewed and approved by public health officials before being finalized. In addition, SOLGEN should ensure relevant and up-to-date public health information and guidance on proper protocols is widely distributed to prisoners and staff. One option is to have public health authorities deliver relevant information to staff and prisoners to ensure that the information is seen as up-to-date and independent. SOLGEN should also house prisoners with suspected and confirmed cases of COVID-19 in isolated units, and proactively house vulnerable prisoners or people at heightened risk of COVID-19-related consequences in separate units.

Family contact

While restrictions on face-to-face or contact visits for people in detention can be legitimate to prevent COVID-19 outbreaks, PRI notes that authorities doing so need a comprehensive and transparent decision-making policy. In case of restrictions, these need to be proportionate to the goal of preventing (or responding to) an outbreak. Contact visits must be replaced by increased means and opportunities for contacting the outside world (for example, by phone, emails or video calls).

Allowing free telephone calls into the community and calls to cellular phones will allow for continued family contact, especially if in-person visits are suspended. Prisoners will want to connect with their families regularly to ensure their family’s safety and update them on their own circumstances. This would help SOLGEN to accommodate based on the Human Rights Code ground of family status.

Reducing overcrowding

Consistent with public health advice to engage in social distancing, and given the likely disruption of criminal proceedings, SOLGEN should make all reasonable efforts to reduce overcrowding within institutions by creatively using all existing discretionary release provisions within the Ministry of Correctional Services Act including work release, temporary absences, compassionate releases and medical releases.

Many other jurisdictions, including Cuyahoga County and Los Angeles County in the United States, have already taken measures to release or reduce sentences of prisoners who do not pose a risk to the public. Prisons in the United Kingdom are considering similar action. In light of this, SOLGEN should also look at releasing sentenced individuals who do not pose a risk to the public, including people with fewer than 60 days left in their sentence, and people convicted of minor and non-violent offences (such as drug-related offences). Compassionate releases should also be issued for vulnerable prisoners including elderly people, pregnant women, people with compromised immunity, people with mental health disabilities, etc. The expansion of probation resources in the community, including through redeploying correctional officers (by telephone), would also be helpful in reducing overcrowding. Prisoners should be provided with transportation to return home if they require it, especially to remote communities.

SOLGEN should also work with the federal government to release immigrant detainees who do not pose a risk to the public.

Data collection

Finally, experts have universally recognized the need for standardized data collection, particularly at this time. SOLGEN should take steps to standardize data collection related to COVID-19 cases, including associated use of lock downs, segregation, isolation, etc., all disaggregated by Human Rights Code grounds.

The OHRC appreciates the ever-evolving circumstances surrounding COVID-19 and understands that the government is working to address issues on many fronts. However, as has been noted by many experts, the spread of COVID-19 in Ontario’s correctional facilities could prove catastrophic. Taking the recommended steps as soon as possible can help limit the spread of the virus while maintaining Ontario’s human rights obligations.

Sincerely,

Renu Mandhane, B.A., J.D., LL.M.
Chief Commissioner

cc:       Hon. Doug Downey, Attorney General
           Hon. Christine Elliot, Minister of Health
           Irwin Glasberg, Deputy Attorney General (Acting), Attorney General
           Melanie Fraser, Associate Deputy Minister, Ministry of Health
           Suzanne McGurn, Assistant Deputy Minister – Institutional Services,
           Ministry of the Solicitor General

[The] public school refused to acknowledge or accept the dyslexia diagnosis until she was seven. … Without timely remediation, my daughter is barely able to read and write in English as she enters Grade 3. … In the meantime, her mental health is strained because she is keenly aware of her learning differences and extremely frustrated by the fact that she struggles to read and write. … Last year she asked Santa Claus for “the power to read” – she’s still wondering if she’ll ever get her wish.

• Parent of 8-year-old

In high school we had access to supports such as a resource room and guidance counsellors. However, because I was compliant, because I took academic subjects, because I didn’t complain, because I refused to show either my emotional and educational struggles at school (specifically before classmates), I never received extra help. …. No one will ever know the amount of at-home learning and work that was required.

• Student, now age 20

My child … was not tested for his disability with a psycho-educational assessment until Grade 7 at the age of 13. This is way too late – and he is experiencing social and emotional heartaches and stress because of this late diagnosis. … He is reading at a Grade 2 level in Grade 8. … The sadness and failure I feel as a parent for my son is painful.

• Parent of 14-year-old

Children should not have to wait years to access services. … Trying to get my son's needs met in the public school system has been one of the most difficult and challenging tasks I have faced as a parent.

• Parent of 10-year-old

We as parents don’t expect the world from our schools. But we did expect she – a smart, curious, creative girl – would get the same opportunity to learn as her peers. This has been denied [to] her. And she is not alone. In every class, she had at least one, maybe two or three classmates with dyslexia or another learning disability. They all struggled. Sadly, our story is not unique.

• Parent of 12-year-old

Because they have not given her the tools be literate, I’ve had to step in and tutor her at home, as I have now done with my youngest daughter as well, since they are content on letting her fail first. If I was confident that my daughters wouldn’t see it as being a punishment for being dyslexic, I would homeschool them.

• Parent of 9-year-old

At his Grade 8 IPRC [Identification, Placement, and Review Committee] the plan was to do nothing and send him on to high school at a Grade 4 reading level. They were going to implement nothing until I went to a lawyer. … After a summer of back and forth on [the] phone with [the] lawyer, the Empower program was put in place for the second semester [of] high school. But since then, nothing again.

• Parent of 15-year-old

We chose to pay to have the assessment done as the waitlist is ridiculous. We were told the waitlist was two to three years. … There just isn't enough support for kids with LD. Teachers are busy with the large classrooms and don't have the time to help the kids that need one-on-one time. There are not enough alternative teachers to help. Once a week isn't enough.

• Parent of 11-year-old

TORONTO – Today, the Ontario Human Rights Commission (OHRC) launched Right to Read, a public inquiry into human rights issues that affect students with reading disabilities in Ontario’s public education system.

There are children in classrooms across Ontario who fail to learn to read. According to recent Education Quality and Accountability Office (EQAO) results, more than one-quarter of Grade 3 students, and 53% of Grade 3 students with special education needs, did not meet the provincial standard for reading.

Students who can’t read will struggle in all aspects of school, and are more vulnerable to mental health disabilities, behavioural issues, bullying and dropping out. Life-long consequences can include under-employment, homelessness, involvement with the criminal justice system, and even suicide.

Students with reading disabilities have the right to learn to read. Yet, the OHRC is concerned that students with reading disabilities are not getting the supports they need. This is all the more troubling because reading disabilities can be remediated with early intervention and support.

As part of its inquiry, the OHRC will hear from parents, students and educators across the province. It will also assess whether school boards use scientific evidence-based approaches to meet students’ right to read. The OHRC will assess school boards against five benchmarks that are part of an effective systematic approach to teaching all students to read:

• Universal design for learning (UDL)
• Mandatory early screening
• Reading intervention programs
• Effective accommodation
• Psycho-educational assessments (if required).

The OHRC selected the following eight school boards to provide a representative sample of boards across Ontario:

• Hamilton Wentworth District School Board
• Keewatin-Patricia District School Board
• Lakehead District School Board
• London District Catholic School Board
• Ottawa-Carleton District School Board
• Peel District School Board
• Simcoe-Muskoka Catholic District School Board
• Thames Valley District School Board.

The OHRC may also request information or assistance from the Ministry of Education, the Ontario College of Teachers, as well as faculties of education. It has retained Dr. Linda Siegel to assist with the inquiry. Dr. Siegel is Professor Emeritus with the University of British Columbia’s Faculty of Education and an international authority in the field of reading disabilities.

“Reading is the foundation for success in school, work and life,” said OHRC Chief Commissioner Renu Mandhane. “Learning to read is not a privilege, it is a human right. This inquiry will assess whether school boards use evidence-based approaches to meet their human rights obligations.”

The OHRC will release a formal report on findings and recommendations in 2020.

The OHRC wants to hear directly from parents, students, educators and others, and invites them to email legal@ohrc.on.ca, or call 416-314-4547 or 1-800-387-9080.

Resources

Right to Read Inquiry terms of reference
Backgrounder
Voices from the community
Voices from community partners
Right to Read flyer
OHRC initiatives related to disability and education
Inquiry privacy policy

Media contact:

Yves Massicotte
Communications & Issues Management
Ontario Human Rights Commission/Commission ontarienne des droits de la personne
416-314-4491 Yves.massicotte@ohrc.on.ca

“The Ontario Human Rights Commission promotes and enforces human rights to create a culture of human rights accountability.”

www.ohrc.on.ca      www.facebook.com/the.ohrc      twitter.com/OntHumanRights

Background

Reading is a fundamental skill that students must have to navigate their school experience and their later lives. Students with reading disabilities have the right to learn to read. Yet, the Ontario Human Rights Commission (OHRC) is concerned that Ontario’s public education system may be failing to meet the needs of students with reading disabilities (dyslexia and other learning disabilities that affect reading).

On October 3, 2019, the OHRC announced a public inquiry into potential human rights issues that affect students with reading disabilities in Ontario’s public education system. 

About the inquiry

The Right to Read inquiry is reaching out and hearing from parents, students and educators across the province about their experiences, challenges and concerns arising from their experience in Ontario’s public education system.

The inquiry is also assessing whether school boards use scientific evidence-based approaches to meet students’ right to read. The OHRC will assess school boards against five benchmarks that are part of an effective systematic approach to teaching all students to read:

• Universal design for learning (UDL)
• Mandatory early screening
• Reading intervention programs
• Effective accommodation
• Psycho-educational assessments (if required).

The OHRC selected the following eight school boards to assess their compliance with their obligation to provide equal treatment to students with reading disabilities. These boards provide a representative sample of boards across Ontario:

• Hamilton Wentworth District School Board
• Keewatin-Patricia District School Board
• Lakehead District School Board
• London District Catholic School Board
• Ottawa-Carleton District School Board
• Peel District School Board
• Simcoe-Muskoka Catholic District School Board
• Thames Valley District School Board.

Complete a survey

The OHRC is conducting a survey of educators and other professionals who have experience with reading disabilities as part of the Right to Read inquiry. This survey will help us understand and report on the experiences of students with reading disabilities in Ontario public schools. It will also help the OHRC assess whether public schools are using scientific evidence-based approaches to give students with reading disabilities meaningful access to education as required by the Ontario Human Rights Code.

We invite educators and professionals, including classroom teachers, special education teachers, educational assistants, learning support teachers, in-school literacy specialists, school counsellors, principals, vice-principals, tutors, pediatricians, speech-language pathologists, psychologists and social workers to complete the survey and share their perspectives. It takes 20 to 30 minutes to complete. You do not have to complete the survey all at once. You can come back to it at any time as long as you use the same computer or smartphone.

To complete the educator and other professionals survey click here. The survey will be available until June 1, 2020.

Anyone having difficulty or who needs help completing the survey can contact the OHRC at 416-314-4547 and leave a voicemail, or email legal@ohrc.on.ca. The OHRC is continuing to monitor emails and voicemail messages related to the inquiry, although there may be some delays in responding.

OHRC update: COVID-19 pandemic and the Right to Read inquiry

During the COVID-19 pandemic, the Ontario Human Rights Commission (OHRC) is working hard to continue its Right to Read inquiry.

Data requested from school boards and faculties of education

Since the OHRC launched the Right to Read inquiry on October 3, 2019, it has requested documents, data and information from a representative sample of eight English-language school boards and all 13 Faculties of Education in Ontario. It has received information from the school boards and Faculties of Education and begun the process of following up for further information and clarification.

The OHRC anticipates that its continued engagements with school boards, the Ministry of Education and other education sector stakeholders may be delayed, as they focus on addressing strategies for students’ continued learning in light of current school closures.

The OHRC continues to work with its expert Dr. Linda Siegel, Professor Emeritus at the University of British Columbia, as best as it can in the current circumstances.

Engagement with students, parents, guardians and educators

Thousands of students, parents, guardians, teachers, educators and other professionals have engaged with the OHRC through its online survey, four public hearings (Brampton, London, Thunder Bay and Ottawa), one community meeting (Kenora), three Indigenous listening circles (London, Thunder Bay and Kenora), organization submissions, emails, meetings, telephone calls, artwork, and social media.

However, due to social distancing requirements and prohibitions on gatherings due to COVID-19, community meetings planned for Barrie and Hamilton in April 2020 have been cancelled.

The OHRC’s online survey for students, parents and guardians will remain open until April 15, 2020. Anyone having difficulty or who needs help completing the survey can contact the OHRC at 416-314-4547 and leave a voicemail, or email legal@ohrc.on.ca. The OHRC will continue to monitor emails and voicemail messages related to the inquiry, although there may be some delays in responding.

The OHRC continues to work on a survey for educators and other professionals. It has encountered some delays and anticipates launching this survey on the OHRC website in late April 2020.

Next steps

The OHRC’s engagements to date underscore the importance of continuing the Right to Read inquiry. The OHRC has already heard concerns from across the province about how Ontario’s public education system meets the needs of students with reading disabilities. These concerns relate to curriculum and teaching, early screening, reading interventions, accommodations and access to timely and appropriate psycho-educational assessments.

The OHRC remains committed to moving forward with the Right to Read inquiry and intends to release a final report with findings and recommendations in the Fall of 2020.

The OHRC will monitor and respond to evolving circumstances and provide updates on its website.

Get involved

We invite students, parents and guardians to complete an online survey, or make a written submission to the OHRC at legal@ohrc.on.ca.

Legal authority for collecting personal information

Section 31 of the Code allows the OHRC to collect information as part of conducting a public interest inquiry. This collection is also consistent with s. 38(2) of the Freedom of Information and Protection of Privacy Act (FIPPA). The OHRC recognizes the importance of protecting personal information, protecting human dignity and maintaining public trust and confidence. We will take all reasonable steps to ensure that personal information is treated confidentially and is only used for the purposes it was collected for, and to prevent unauthorized access, use or disclosure of your personal information as directed by the FIPPA. For more information see our Protection of personal information and privacy safeguards policy.

Related resources

I hope this letter finds you well. I am writing to your school board to request documents, data and information that may be relevant to the Ontario Human Rights Commission’s (OHRC) Right to Read inquiry into human rights issues that affect students with reading disabilities in Ontario’s public education system.

I know that your school board and the OHRC share the goal of ensuring that students with reading disabilities have meaningful access to education, which includes learning to read. Achieving our shared goal depends on implementing a systematic approach that has been shown to be effective in meeting the needs of the most students, particularly students with reading disabilities.

As you know from our telephone call and the inquiry Terms of Reference we sent to you on September 30, 2019 (copy enclosed), the OHRC is conducting an inquiry under the authority of section 31 (see Appendix A) of the Ontario Human Rights Code (Code).

We will assess your board’s approach to reading disabilities (i.e. learning disabilities with impairment in reading, including dyslexia) against five benchmarks:

1. Universal Design for Learning (UDL)
2. Mandatory early screening
3. Evidence-based reading intervention programs
4. Accommodation
5. Psycho-educational assessments.

We will also examine the unique challenges of students with reading disabilities who face other barriers such as low socio-economic status/poverty, or having intersecting Code identities such as being Indigenous, racialized, newcomers, or English Language Learners. We are also considering perspectives on terminology, in particular related to the categories of learning disability (LD) and dyslexia.

To conduct this inquiry, we are asking your board to produce documents, data and information and to answer questions. We ask that you provide a complete response to each item below or if you cannot, that you indicate why. We have provided an Excel spreadsheet that corresponds to each item requested. Please respond to the production request through the spreadsheet (i.e. fill in your answers in the Excel spreadsheet and provide the requested data in the corresponding Tabs).

We are prepared to receive materials and information on a rolling basis and will keep track of the status of our production request. We ask that you provide as much of this information as possible by December 18, 2019. At the end of this letter, I include details about how your staff can connect with OHRC staff to facilitate this process.

Pursuant to sections 31(7) and 31(8) of the Code, the OHRC requests that your board produce the following documents, data and information:

1. Universal Design for Learning

1. Please provide any documents, data or information explaining your board’s approach to teaching reading, particularly in junior kindergarten (JK) through Grade 3 inclusive, including any policies, procedures, directives, training and professional development materials or anything else that addresses literacy and reading.
2. Please indicate whether schools in your board are primarily using a “whole-language approach” (e.g. three cueing system, sight words, and/or reading resources such as PM Benchmarks/Developmental Reading Assessment (DRA)/Fountas and Pinnell) or a “structured literacy” approach (e.g. systematic instruction in phonics, decodable texts). Please be specific.
3. Please advise whether your board has taken a position or issued any direction to schools on which approach to use. If so, please explain why that approach was selected. If not, please explain why your board has not done so.
4. How do you monitor the progress of individual students in reading?

2. Early screening

1. Please provide any documents, data or information that address your board’s approach to early screening for potential reading difficulties, i.e. in kindergarten and Grade 1, including any policies, procedures, directives, early screening tools or tests used, early screening pilot projects/trials, training and professional development materials or anything else that addresses early screening.
2. Please indicate whether your board requires all elementary schools to screen every student in kindergarten and/or Grade 1 for reading difficulties.
3. Please describe your board’s approach to early screening for English Language Learners (e.g. is it the same or different, and if different, how so and why).
4. Please indicate what scientific evidence-based screening tools or tests your board has approved for early screening.
5. If your board has not approved any scientific evidence-based screening tools or tests, please explain why not. Please advise if any other standardized tools are being used for early screening, and if so, provide them.
6. Please describe:
   
   1. when screening for reading difficulties first occurs
   2. how often it occurs after that
   3. who conducts the screening
   4. how the results of each screening are recorded
   5. how the results of screening are used (e.g. are they used to offer accommodation or reading interventions, and if so, what percentile scores trigger offering accommodation or reading interventions), and
   6. what follow-up screening takes place to monitor how students are progressing.

3. Reading interventions

1. Please provide any documents, data or information explaining your board’s approach to reading interventions for students with reading disabilities or suspected reading disabilities, including any policies, procedures, directives, reading intervention programs used, training and professional development materials or anything else that addresses reading interventions.
2. Does your board use a tiered approach to reading interventions? If so, please describe.
3. What reading interventions are available in your board? Please be specific, i.e. list or describe each program and indicate which schools have it.
4. Are students required to change schools to access reading intervention programs?
5. What is the process for deciding which schools will have a reading intervention program and which program?
6. Where does the funding for reading intervention programs come from?
7. For each of the reading programs listed in 3(c) please indicate:
   
   1. In what grade or grades is the reading intervention program offered?
   2. Who delivers the reading intervention program? What training do they receive?
   3. How are students selected to take part in the reading intervention program? What are the eligibility requirements? Are specific assessments required (e.g. psycho-educational assessment, diagnosis of a reading disability)? Must the student be identified by an Identification, Placement, and Review Committee (IPRC) or have an Individual Education Plan (IEP) to be eligible for a reading intervention program? Are the same selection criteria used for English Language Learners (if not, why not)?
   4. Are students offered the full program – for example, if the program calls for daily withdrawal support for a certain number of weeks, do students receive it daily and for the full duration? If not, what are the limitations and why?
   5. How long can students stay in the reading intervention program (e.g. months, years)? Is there a system for tracking student completion of the intervention program? Is there a system for tracking the effectiveness of the program for an individual student (e.g. tests administered before and after completion of the program)?
8. Please provide any data, reviews, reports or assessments you may have that analyze the overall effectiveness or outcomes of any reading interventions your board offers.

4. Accommodation

1. Please provide any documents, data or information explaining your board’s approach to accommodating students with reading disabilities or suspected reading disabilities, including any policies, procedures, directives, training and professional development materials or anything else that addresses accommodating these students.
2. What is required to obtain accommodations for reading disabilities or suspected reading disabilities? Is a psycho-educational assessment required? Is IPRC identification and recommendation required?
3. How are IEPs used in relation to accommodating reading disabilities or suspected reading disabilities?
4. Are reading interventions provided to a student before or while simultaneously providing accommodations for reading?
5. Are reading interventions always provided to students before creating modified curriculum expectations within the IEP? Are accommodations always provided to students before creating modified curriculum expectations within the IEP? If not, why not?
6. What accommodations are provided to students with reading disabilities or suspected reading disabilities? How is the accommodation process the same or different for English Language Learners?
7. What assistive technology (both hardware and software) is available for use by students with reading disabilities or suspected reading disabilities? Does every student who requires assistive technology to accommodate their reading disability have access to it as needed? What support is available for students using assistive technology (e.g. are teachers trained in assistive technology and able to support its use by students with reading disabilities)?
8. What quality assurance processes exist for IEPs and to ensure students have access to timely and effective accommodation?

5. Psycho-educational assessments

1. Please provide any documents, data or information explaining your board’s approach to psycho-educational assessments, including any policies, procedures, directives, training and professional development materials or anything else that addresses psycho-educational assessments.
2. Please provide any documents or information indicating whether your board has established criteria to be applied when determining whether to recommend a student receive a psycho-educational assessment by a board psychologist. 
3. How are decisions to recommend or not recommend a student for a board psycho-educational assessment made? Who makes the decision? What factors are considered? Are the criteria the same for English Language Learners?
4. Who maintains and administers any wait lists for psycho-educational assessments (the board, individual schools, groups of schools)?
5. Is there a restriction on the number of students who can be assessed in a year? Is there a restriction on the age or grade of the student before they will be considered for assessment?
6. While students are waiting for assessment, do they have IEPs? Are they receiving accommodation?
7. How many students are currently waiting for a psycho-educational assessment? Without providing the student’s name or Ontario Education Number, for every child waiting for assessment, please provide the date they were put on the list, what grade they were in when put on the list, and whether they have an IEP.
8. Please provide your board’s data on the average amount of time it takes for a student to receive an assessment.

6. Data collection

1. What percentage of students in your board (in relation to the overall student population) have been identified as having special education needs (excluding gifted unless co-occurring with other special education needs)?
2. What percentage of students in your board have been identified as having an LD exceptionality (i) in relation to the overall student population and (ii) in relation to students who have been identified as having special education needs (excluding gifted unless co-occurring with other special education needs)?  
3. What percentage of students in your board have an IEP? What percentage of students with special education needs (excluding gifted unless co-occurring with other special education needs) have an IEP? What percentage of students with an LD have an IEP? What percentage of students in your board have an IEP for reading difficulties?
4. Does your board collect data about students with reading disabilities or LDs including: gender identity, race, Indigenous ancestry, concurrent disabilities, total family income, what grade they were identified in, reading intervention programs they have taken part in, accommodations provided, and outcomes? If so, please provide this data.
5. Does your board conduct a student census or collect demographic data about all students? If not, what plans, if any, does your board have for doing so in future?
6. If your board conducts a student census, please provide the following for the most recent census conducted:
   
   1. A blank copy of the census form
   2. All data for each student who completed the census (please provide a unique number for each student, but not the student’s name or Ontario Education Number). As well, please link the census data with other data to indicate whether the student has an IEP, has been identified as having Special Education Needs, and/or has been identified as having an LD exceptionality
   3. For each student who completed the census in Grade 3, Grade 6 or Grade 10, please link the census data for that student to, and provide, the student’s results that year on the Grade 3 EQAO reading assessment, Grade 6 EQAO reading assessment, or Grade 10 OSSLT respectively.
7. Provide the following based on the most recent data collected pursuant to your board’s voluntary self-identification policy for Indigenous students:
   
   1. The percentage of students who have self-identified as Indigenous overall and broken down by First Nation, Inuit, and Métis
   2. The board’s analysis of achievement (e.g. as related to literacy, course completion, graduation) for students who have self-identified as Indigenous overall and broken down by First Nation, Inuit, and Métis
   3. For each student who has identified as Indigenous in Grade 3, Grade 6 or Grade 10, the student’s results that year on the Grade 3 EQAO reading assessment, Grade 6 EQAO reading assessment, or Grade 10 OSSLT respectively (please provide a unique number for each student, but not the student’s name or Ontario Education Number)
   4. For each student who has self-identified as Indigenous, please provide any data on whether the student has an IEP, has been identified as having Special Education Needs, and/or has been identified as having an LD exceptionality (please provide a unique number for each student, but not the student’s name or Ontario Education Number).

7. Terminology

1. How does your board define an LD? Does your board break down LDs by sub-types (e.g. impairment in reading, impairment in writing, impairment in math, impairment in executive functioning)?
2. Does your board use the term dyslexia? If so, why? If not, why not?

8. EQAO

1. What percentage of students with special education needs are excused from completing the reading component of each of the Grade 3 and Grade 6 EQAO tests?
2. What percentage of students identified as having an LD exceptionality are excused from completing the reading component of each of the Grade 3 and 6 EQAO tests?
3. Of students who were exempted from the reading component of the EQAO test in each of Grade 3 and 6, what proportion were identified as having an LD exceptionality?
4. In each of Grades 3 and 6, for students with an LD exceptionality who took part in the reading component of the EQAO assessment:
   
   1. What percentage achieved the provincial standard (Level 3 or 4)? Among LD students who achieved the provincial standard, what percentage had test questions/materials read to them, used assistive technology, or used scribing?
   2. What percentage who did not have test questions/materials read to them, use assistive technology, or use scribing achieved the provincial standard?

9. Outcomes

1. What is the current dropout rate for all students in your board (i.e. students who according to records have not graduated, are no longer students of your board and have not transferred to another educational institution)? Among students who have an LD exceptionality, what is the current dropout rate? If available, please provide this information broken down by race, Indigenous ancestry, gender identity, family income and concurrent disabilities.
2. What percentage of Grade 9 students who have an LD exceptionality are taking mostly applied versus academic courses? If available, please provide this information broken down by race, Indigenous ancestry, gender identity, family income and concurrent disabilities.
3. What percentage of all graduates are accepted at college upon graduating? What percentage of graduates with an LD exceptionality are accepted at college upon graduating? What percentage of all graduates are accepted at university upon graduation? What percentage of graduates with an LD exceptionality are accepted at university upon graduation? If available, please provide this information broken down by race, Indigenous ancestry, gender identity, family income and concurrent disabilities.

10. Professional development

1. Please describe what in-service training or professional development your board has on teaching reading, literacy, early screening, signs of reading disabilities, reading interventions, the duty to accommodate under the Code, and special education.

Under section 31 of the Code, you are obligated to produce the documents and information noted above, and provide any assistance that is reasonably necessary, including assistance in using any data storage, processing or retrieval device or system, to produce a document in readable form. As well, under section 8 of the Code, anyone who takes part in our inquiry, including students, parents, educators, board professionals and board staff, must not be subjected to reprisal or threat of reprisal.

Pursuant to section 31 of the Code, subsections 38(2) and 39(1) of the Freedom of Information and Protection of Privacy Act and section 32 of the Municipal Freedom of Information and Protection of Privacy Act, the OHRC is authorized to receive personal information in an inquiry. The OHRC has a Protection of personal information and privacy safeguards policy for this inquiry. We do not believe that this production request requires the disclosure of personal information, but to the extent that it may, we will work with you to address any privacy concerns raised.

This is not intended to be an exhaustive request, and the OHRC may ask your board to produce additional documents, data and information and to answer additional questions as the inquiry proceeds.

Next steps

Please have your staff contact [us] by no later than November 15, 2019 to discuss the process of providing the above-noted documents, data and information to the OHRC.

We recognize that some of the information being sought may not be available at the school board level. If that is the case, please let us know what information can only be provided by school principals or the Ministry of Education through its OnSIS school data management system by November 15, 2019.

We are developing an online survey for school principals. After we hear back from you about any information that can only be obtained from school principals, we will finalize the survey and send you a link so you can ask every elementary school principal to complete and submit it to the OHRC.

As the inquiry will also hear from students, parents and educators about people’s experiences with reading disabilities in public schools, I enclose an electronic copy of the OHRC’s Right to Read flyer and ask that you ensure it is posted in a prominent location in all of your schools and disseminated via the usual means of communication with teachers and parents/guardians.

The OHRC recognizes that school boards across the province have been working towards the goal of accessible education. We believe that the Right to Read inquiry will support these efforts.

We look forward to working with you and receiving your assistance in accordance with the requirements of the Code. In keeping with the OHRC’s commitment to public accountability and its duties in serving the people of Ontario, this letter and your response will be made public.

Sincerely,

Renu Mandhane, B.A., J.D., LL.M.
Chief Commissioner

cc:       OHRC Commissioners
            Hon. Doug Downey, Attorney General
            Hon. Stephen Lecce, Minister of Education

APPENDIX A

Inquiries

31. (1) The Commission may conduct an inquiry under this section for the purpose of carrying out its functions under this Act if the Commission believes it is in the public interest to do so.  2006, c. 30, s. 4.

Conduct of inquiry

(2) An inquiry may be conducted under this section by any person who is appointed by the Commission to carry out inquiries under this section. 2006, c. 30, s. 4.

Production of certificate

(3) A person conducting an inquiry under this section shall produce proof of their appointment upon request.  2006, c. 30, s. 4.

Entry

(4) A person conducting an inquiry under this section may, without warrant, enter any lands or any building, structure or premises where the person has reason to believe there may be documents, things or information relevant to the inquiry. 2006, c. 30, s. 4.

Time of entry

(5) The power to enter a place under subsection (4) may be exercised only during the place’s regular business hours or, if it does not have regular business hours, during daylight hours.  2006, c. 30, s. 4.

Dwellings

(6) A person conducting an inquiry under this section shall not enter into a place or part of a place that is a dwelling without the consent of the occupant.  2006, c. 30, s. 4.

Powers on inquiry

(7) A person conducting an inquiry may,

(a) request the production for inspection and examination of documents or things that are or may be relevant to the inquiry;

(b) upon giving a receipt for it, remove from a place documents produced in response to a request under clause (a) for the purpose of making copies or extracts;

(c) question a person on matters that are or may be relevant to the inquiry, subject to the person’s right to have counsel or a personal representative present during such questioning and exclude from the questioning any person who may be adverse in interest to the inquiry;

(d) use any data storage, processing or retrieval device or system used in carrying on business in the place in order to produce a document in readable form;

(e) take measurements or record by any means the physical dimensions of a place;

(f) take photographs, video recordings or other visual or audio recordings of the interior or exterior of a place; and

(g) require that a place or part thereof not be disturbed for a reasonable period of time for the purposes of carrying out an examination, inquiry or test.  2006, c. 30, s. 4.

Written demand

(8) A demand that a document or thing be produced must be in writing and must include a statement of the nature of the document or thing required.  2006, c. 30, s. 4.

Assistance

(9) A person conducting an inquiry may be accompanied by any person who has special, expert or professional knowledge and who may be of assistance in carrying out the inquiry.  2006, c. 30, s. 4.

Use of force prohibited

(10) A person conducting an inquiry shall not use force to enter and search premises under this section.  2006, c. 30, s. 4.

Obligation to produce and assist

(11) A person who is requested to produce a document or thing under clause (7) (a) shall produce it and shall, on request by the person conducting the inquiry, provide any assistance that is reasonably necessary, including assistance in using any data storage, processing or retrieval device or system, to produce a document in readable form.  2006, c. 30, s. 4.

Return of removed things

(12) A person conducting an inquiry who removes any document or thing from a place under clause (7) (b) shall,

(a) make it available to the person from whom it was removed, on request, at a time and place convenient for both that person and the person conducting the inquiry; and

(b) return it to the person from whom it was removed within a reasonable time.  2006, c. 30, s. 4.

Admissibility of copies

(13) A copy of a document certified by a person conducting an inquiry to be a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.  2006, c. 30, s. 4.

Obstruction

(14) No person shall obstruct or interfere with a person conducting an inquiry under this section.  2006, c. 30, s. 4.

Section Amendments with date in force (d/m/y)

2006, c. 30, s. 4 - 30/06/2008

Search warrant

31.1 (1) The Commission may authorize a person to apply to a justice of the peace for a warrant to enter a place and conduct a search of the place if,

(a) a person conducting an inquiry under section 31 has been denied entry to any place or asked to leave a place before concluding a search;

(b) a person conducting an inquiry under section 31 made a request for documents or things and the request was refused; or

(c) an inquiry under section 31 is otherwise obstructed or prevented.  2006, c. 30, s. 4.

Same

(2) Upon application by a person authorized under subsection (1) to do so, a justice of the peace may issue a warrant under this section if he or she is satisfied on information under oath or affirmation that the warrant is necessary for the purposes of carrying out the inquiry under section 31.  2006, c. 30, s. 4.

Powers

(3) A warrant obtained under subsection (2) may authorize a person named in the warrant, upon producing proof of his or her appointment,

(a) to enter any place specified in the warrant, including a dwelling; and

(b) to do any of the things specified in the warrant.  2006, c. 30, s. 4.

Conditions on search warrant

(4) A warrant obtained under subsection (2) shall contain such conditions as the justice of the peace considers advisable to ensure that any search authorized by the warrant is reasonable in the circumstances.  2006, c. 30, s. 4.

Time of execution

(5) An entry under a warrant issued under this section shall be made at such reasonable times as may be specified in the warrant.  2006, c. 30, s. 4.

Expiry of warrant

(6) A warrant issued under this section shall name a date of expiry, which shall be no later than 15 days after the warrant is issued, but a justice of the peace may extend the date of expiry for an additional period of no more than 15 days, upon application without notice by the person named in the warrant.  2006, c. 30, s. 4.

Use of force

(7) The person authorized to execute the warrant may call upon police officers for assistance in executing the warrant and the person may use whatever force is reasonably necessary to execute the warrant.  2006, c. 30, s. 4.

Obstruction prohibited

(8) No person shall obstruct or hinder a person in the execution of a warrant issued under this section.  2006, c. 30, s. 4.

Application

(9) Subsections 31 (11), (12) and (13) apply with necessary modifications to an inquiry carried out pursuant to a warrant issued under this section.  2006, c. 30, s. 4.

Disclaimer: This statement does not constitute legal advice. The OHRC encourages individuals and organizations to take universal precautions based on the most current advice from Public Health officials. The OHRC continues to monitor the evolving situation and will update this statement on an ongoing basis as needed.

Overview

Following the lead of the United Nations High Commissioner for Human Rights, the Ontario Human Rights Commission (OHRC) urges Ontarians to keep human rights principles under Ontario’s Human Rights Code (Code), the Canadian Charterof Rights and Freedoms (Charter) and relevant international human rights treaties at the centre of decision-making during the coronavirus (COVID-19) pandemic.

Both public- and private-sector organizations must recognize their human rights obligations, and consider the potential disproportionate impacts of COVID-19 on the vulnerable groups they employ or serve. These vulnerable groups include Indigenous and racialized peoples, people with disabilities, older people living alone or in institutions, and low-income communities who have unequal access to health care, childcare and/or are often underemployed.

Many of these vulnerable groups are disproportionately in low-paying, hourly-wage, benefit-free and otherwise precarious jobs that make them unable to provide care or interrupt work. They are also more likely to have limited access to stable healthy housing, child care, transportation and employment insurance. Indigenous peoples and racialized people also have higher incidences of chronic conditions, such as hypertension, diabetes, heart disease, housing overcrowding and more.

At the same time, the OHRC and relevant human rights laws recognize the importance of balancing people’s right to non-discrimination and civil liberties with public health and safety, including the need to address evidence-based risks associated with COVID-19.

Discrimination and COVID-19

Discrimination including harassment against any persons or communities related to COVID-19 is prohibited when it involves a ground under the Code, in the areas of services, housing, employment, vocational associations and contracts.

The Code protects against discrimination based on 17 grounds, whether perceived or otherwise, including disability, ethnic origin, place of origin and race. The OHRC’s policy position is that the Code ground of disability is engaged in relation to COVID-19 as it covers medical conditions or perceived medical conditions that carry significant social stigma.

COVID-19 is not isolated to people of any particular ethnic origin, place of origin or race. Some restrictions, such as a restriction based on where an individual recently travelled, may be reasonable and not discriminatory. However, depending on the circumstances, the Code grounds of place of origin, ethnic origin and race may trigger human rights obligations under the Code.

Employers and housing and service providers should ensure any restrictions are consistent with the most recent advice from medical and Public Health officials, and are justified for health and safety reasons.

The right to be free from discrimination can be limited under the Code (for example, where health and safety risks are serious and would amount to undue hardship). The Charter provides that civil, political and equality rights can be limited where reasonable limits prescribed by law can be demonstrably justified in a free and democratic society. International human rights law also recognizes that limitation of rights can sometimes be justified in limited circumstances.

Employment

The OHRC’s policy position is that negative treatment of employees who have, or are perceived to have, COVID-19, for reasons unrelated to public health and safety, is discriminatory and prohibited under the Code. Employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety.

An employer should not send an individual employee home or ask them not to work because of concerns over COVID-19 unless the concerns are reasonable and consistent with the most recent advice from medical and Public Health officials. In unique circumstances, an employer might have other health and safety concerns that could amount to undue hardship. They would need to be able to show objective evidence to support such a claim.

Employer absenteeism policies must not negatively affect employees who cannot work in connection with COVID-19. An employer may not discipline or terminate an employee who is unable to come to work because medical or health officials have quarantined them or have advised them to self-isolate and stay home in connection with COVID-19.

An employee who has care-giving responsibilities should be accommodated to the point of undue hardship, which might include staying home. These care-giving responsibilities which relate to the Code ground of family status could include situations where another family member is ill or in self-isolation, or where their child’s school is closed due to COVID-19.

Employers should be sensitive to other factors such as any particular vulnerability an employee may have (for example, if they have a compromised immune system).

Employers should give employees flexible options, such as working remotely where feasible, as a good practice, and as an accommodation even if they are not currently sick but need to self-isolate or stay home due to other reasons related to COVID-19.

Consistent with the OHRC’s Policy on ableism and discrimination based on disability and its Policy position on medical documentation to be provided when a disability-related accommodation request is made, employers should take requests for accommodation in good faith. Employers should be flexible and not overburden the health care system with requests for medical notes. Unnecessarily visiting medical offices increases further risk of exposure for everyone.

An employee who cannot work because of COVID-19 may be entitled to employee sick or disability leave and benefits offered by the employer or available under the Employment Standards Act or other government benefit programs.

At the same time, employers are entitled to expect that employees will continue to perform their work unless they have a legitimate reason why they cannot. If an employee is required to self-isolate for legitimate reasons, the employer is entitled to explore alternative options for how the employee may still continue to perform productive work for the employer (for example, telework). It is also not discriminatory to lay off employees if there is no work for them to do because of the impacts of COVID-19.

Employers may have other obligations (for example under the Occupational Health and Safety Act). The OHRC encourages employers to consult the Ontario Ministry of Labour, Training and Skills Development website for the most recent advice.

Services and housing

Individuals also have the right to be free from discrimination including harassment related to COVID-19 in services and housing based on grounds under the Code.

Services include, among other things, education institutions, retail shops and malls and the hospitality industry including restaurants, bars, hotels and entertainment facilities. Housing providers include condo corporations, rental apartments and residential institutional facilities like long-term care and retirement homes.

Negative treatment of service recipients or residents who have, or are perceived to have, COVID-19, for reasons unrelated to public health and safety, could be discriminatory and prohibited under the Code. Organizations in these areas may also have a duty to accommodate persons in relation to COVID-19, unless it would amount to undue hardship based on cost or health and safety.

The OHRC encourages all service and housing providers to take universal precautions based on the most current advice from Public Health officials.

Government-run facilities

The government has a fiduciary obligation to protect the health and safety of individuals held in government-run facilities related to child welfare, youth justice, criminal justice, long-term care, etc. These facilities disproportionately house individuals protected from discrimination under the Code, including Indigenous and racialized people, people with disabilities and addictions, elderly people, children and youth, and other vulnerable groups.

The government must have clear emergency plans in place that adopt a Public Health and human rights-focused approach to addressing evidence-based risks associated with COVID-19 in government-run facilities. Individuals in these facilities also have the right to be free from discrimination including harassment related to COVID-19 in the provision of services on grounds under the Code.

Under the Charter, these individuals have a right to privacy, liberty and security of the person and the right to protection against discrimination, arbitrary detention, and cruel and inhuman treatment, subject to reasonable limits.

Economic, social and cultural rights

The OHRC notes that the UN High Commissioner for Human Rights has stated that Public Health measures that require self-isolation or “social distancing” will likely have a disproportionate and potentially devastating impact on economically-marginalized individuals.

We echo the United Nations’ call for governments to put in place measures to mitigate the impact on people's economic and social rights, including, for example, exploring providing a basic guaranteed income, creating temporary housing and supporting Indigenous communities to meet the unique needs of their citizens.

For more information

Ontario’s Ministry of Health is working with its partners in the health care system implementing a plan to monitor for, detect and, if needed, isolate any cases of COVID-19. People who want to learn more about COVID-19 can visit the ministry’s web page.

See also the OHRC’s related January 28, 2020, statement: OHRC urges respect for human rights during Coronavirus health event.

See also the OHRC’s Policy on ableism and discrimination based on disability.

March 17, 2020

Hon. Sylvia Jones
Ministry of the Solicitor General
18th Floor, George Drew Building
25 Grosvenor Street
Toronto, Ontario M7A 1Y6

Dear Solicitor General Jones:

RE: COVID-19 – Corrections and human rights

I hope you and your family are keeping safe in light of ongoing challenges with COVID-19. 

As you may know, the Ontario Human Rights Commission recently released a policy statement on maintaining human rights during the COVID-19 pandemic. I am writing to you today on behalf of the OHRC to provide advice on steps the government can take to apply a human rights lens to reducing transmission of COVID-19 in Ontario’s correctional facilities and detention centres. 

The OHRC commends you for taking steps to allow intermittent prisoners to remain in the community. The OHRC recognizes that the Ministry of Solicitor General (SOLGEN) is working hard to address this evolving situation, and we have appreciated engaging with SOLGEN staff and leadership, including Assistant Deputy Minister Suzanne McGurn, on this matter.

In light of this engagement, the OHRC asks the government to take further measures to help reduce the transmission of COVID-19, as have been urgently recommended by prison experts, including Penal Reform International (PRI) and the Vera Institute for Justice, and have been taken in jurisdictions comparable to Ontario. These steps include:

• Enhancing transparency and communication
• Supporting family contact
• Reducing overcrowding
• Collecting data.

We encourage SOLGEN to take these steps, which adopt a public health-centred approach rather than a risk-based approach to managing COVID-19, including reducing over-crowding in facilities.

Transparency and communication

Adopting a public health-centred approach would include being transparent about existing emergency preparedness plans and ensuring that these plans are reviewed and approved by public health officials before being finalized. In addition, SOLGEN should ensure relevant and up-to-date public health information and guidance on proper protocols is widely distributed to prisoners and staff. One option is to have public health authorities deliver relevant information to staff and prisoners to ensure that the information is seen as up-to-date and independent. SOLGEN should also house prisoners with suspected and confirmed cases of COVID-19 in isolated units, and proactively house vulnerable prisoners or people at heightened risk of COVID-19-related consequences in separate units.

Family contact

While restrictions on face-to-face or contact visits for people in detention can be legitimate to prevent COVID-19 outbreaks, PRI notes that authorities doing so need a comprehensive and transparent decision-making policy. In case of restrictions, these need to be proportionate to the goal of preventing (or responding to) an outbreak. Contact visits must be replaced by increased means and opportunities for contacting the outside world (for example, by phone, emails or video calls).

Allowing free telephone calls into the community and calls to cellular phones will allow for continued family contact, especially if in-person visits are suspended. Prisoners will want to connect with their families regularly to ensure their family’s safety and update them on their own circumstances. This would help SOLGEN to accommodate based on the Human Rights Code ground of family status.

Reducing overcrowding

Consistent with public health advice to engage in social distancing, and given the likely disruption of criminal proceedings, SOLGEN should make all reasonable efforts to reduce overcrowding within institutions by creatively using all existing discretionary release provisions within the Ministry of Correctional Services Act including work release, temporary absences, compassionate releases and medical releases.

Many other jurisdictions, including Cuyahoga County and Los Angeles County in the United States, have already taken measures to release or reduce sentences of prisoners who do not pose a risk to the public. Prisons in the United Kingdom are considering similar action. In light of this, SOLGEN should also look at releasing sentenced individuals who do not pose a risk to the public, including people with fewer than 60 days left in their sentence, and people convicted of minor and non-violent offences (such as drug-related offences). Compassionate releases should also be issued for vulnerable prisoners including elderly people, pregnant women, people with compromised immunity, people with mental health disabilities, etc. The expansion of probation resources in the community, including through redeploying correctional officers (by telephone), would also be helpful in reducing overcrowding. Prisoners should be provided with transportation to return home if they require it, especially to remote communities.

SOLGEN should also work with the federal government to release immigrant detainees who do not pose a risk to the public.

Data collection

Finally, experts have universally recognized the need for standardized data collection, particularly at this time. SOLGEN should take steps to standardize data collection related to COVID-19 cases, including associated use of lock downs, segregation, isolation, etc., all disaggregated by Human Rights Code grounds.

The OHRC appreciates the ever-evolving circumstances surrounding COVID-19 and understands that the government is working to address issues on many fronts. However, as has been noted by many experts, the spread of COVID-19 in Ontario’s correctional facilities could prove catastrophic. Taking the recommended steps as soon as possible can help limit the spread of the virus while maintaining Ontario’s human rights obligations.

Sincerely,

Renu Mandhane, B.A., J.D., LL.M.
Chief Commissioner

cc:       Hon. Doug Downey, Attorney General
           Hon. Christine Elliot, Minister of Health
           Irwin Glasberg, Deputy Attorney General (Acting), Attorney General
           Melanie Fraser, Associate Deputy Minister, Ministry of Health
           Suzanne McGurn, Assistant Deputy Minister – Institutional Services,
           Ministry of the Solicitor General

Today, the Ontario Human Rights Commission (OHRC) notes the release of Justice David Cole’s Final Report, which finds that Ontario has not complied with a legal settlement and order requiring it to ensure that prisoners with mental health disabilities receive appropriate mental health services, and are not placed in segregation except as a last resort. The Final Report assesses Ontario’s compliance with the 2013 Jahn v MCSCS settlement and the 2018 OHRC v Ontario consent order.

In the Jahn settlement and order, the OHRC and the Government of Ontario agreed to legally binding requirements to protect the rights of prisoners, and particularly women with mental health disabilities. In the settlement, Ontario expressly acknowledged the harm segregation causes to people with mental health disabilities.

Between July 2018 and June 2019, more than 12,000 people were placed in segregation in Ontario, and 46% of them had mental health alerts on their files.

The Final Report concludes that Ontario did not comply with the Jahn settlement and order and specifically that the Ministry of the Solicitor General:

• Failed to conduct adequate mental health screening and reassessment to properly identify people with mental health disabilities in their care
• Failed to implement a clear definition of segregation based on the internationally-accepted standard of being isolated in a cell for up to 22 hours per day
• Failed to implement a system to accurately track segregation placements
• Failed to comply with requirements to conduct internal segregation reviews to ensure that people with mental health disabilities are only placed in segregation as a last resort
• Failed to develop Care Plans to provide individualized care to people with mental illness.

Courts across Canada have consistently recognized the harm caused by solitary confinement. In 2019, the Ontario Superior Court found that Ontario’s long-term segregation of Adam Capay exacerbated his mental health disabilities and constituted cruel and unusual treatment. In another Superior Court decision this week, Francis v Ontario, Justice Perrell stated that Ontario “routinely placed inmates with mental health or suicide risk alerts on file in administrative segregation,” that the government has been “dilatory” in its efforts to reform its use of solitary confinement, and that it has been “unable to satisfy all the terms of the Jahn settlement orders.” 

The OHRC is concerned that nearly seven years have passed since the first Jahn settlement and too little has changed for prisoners with mental health disabilities in Ontario corrections.

This week marks a pivotal time for Ontario’s corrections policies. With the federal government discontinuing its appeal of the Ontario Court of Appeal’s decision in CCLA v Canada and Justice Perell’s decision in Francis, the law in Ontario is now clear: segregation of any prisoner for longer than 15 days – and the segregation of some prisoners with serious mental health disabilities for any period of time – is cruel and unusual treatment, contrary to the Canadian Charter of Rights and Freedoms.

The OHRC expects the government to follow the directions of these courts, to ensure that no prisoner is subjected to the unconstitutional harms caused by solitary confinement. It is reviewing the Final Report along with the recent court decisions, and is considering all of its options to hold the government accountable for meeting its legal obligations to protect people with mental health disabilities in Ontario’s prisons.

The OHRC will provide an update and its next steps in the coming weeks.

Resources

Final Report of the Independent Reviewer on the Ontario Ministry of the Solicitor General’s Compliance with the 2013 “Jahn Settlement Agreement” and the Terms of the Consent Order of January 16, 2018 Issued by the Human Rights Tribunal of Ontario
Segregation and mental health in Ontario’s prisons: Jahn v. Ministry of Community Safety and Correctional Services

Two weeks ago, the Ontario Human Rights Commission (OHRC) wrote Ontario’s health minister encouraging her to mandate the collection and reporting of demographic data critical to effectively addressing the COVID-19 pandemic. This was nearly three years after the OHRC urged the government to require health care agencies to collect, analyze and report on race data under the Anti-Racism Act.

Last week, Ontario’s Premier and Chief Medical Officer of Health both publicly confirmed that the province is not collecting race data. More troublingly, both questioned the importance of it and suggested that race data was not necessary from a public health perspective.

There can be no debate on this issue. Human rights and public health experts agree that collecting demographic data, including race, socio-economic status and disability, along with sex and age, is the foundation of evidence-informed decision-making. Demographic data collection is a best-practice.

Strong data allows health care leaders to identify populations at heightened risk of infection or transmission, to efficiently deploy scarce health resources, and to ensure equal access to public health protections for all Ontarians. If one segment of Ontario’s population is overlooked as we fight to flatten the curve, we risk prolonging the pandemic or triggering its resurgence.

Unfortunately, unlike many other jurisdictions, Ontario decided not to mandate robust demographic data in the healthcare sector. This decision must be quickly and definitively reversed. Linking identity data – including race, socio-economic status and disability – to provincial health insurance (like OHIP) would allow system-wide analysis of disparate health outcomes. While it would not account for some vulnerable, uninsured groups, it would be a vast improvement on the status quo.

Perfection cannot be the enemy of progress, especially in these unprecedented times. Given that it would take many years to roll out an ambitious, albeit necessary, system-wide initiative, the OHRC encourages all levels of government to follow the lead of Toronto Public Health and pilot short-term data collection initiatives during the current emergency.

This can include demographic data collection during testing, when positive tests are reported by local public health units, during admissions to hospital or intensive care, and/or when the province reports COVID-19 deaths. The government must also collect data to quickly identify and address potential racial or social profiling when enforcing emergency and public health orders.

Historically marginalized groups are rightly skeptical of identity-blind health policies. Canada has a poor track record when it comes to protecting historically-disadvantaged groups from infectious diseases. In the nineteenth century, Indigenous peoples had the highest death rate from tuberculosis reported in any human population, largely due to systemically racist policies. Inuit communities continue to have extremely high rates of tuberculosis today. More recently Ontario researchers established that ethnicity was a risk factor during the 2009 H1N1 pandemic.

During COVID-19 we have already heard troubling accounts from people in shelters, mental health institutions and jails, people with disabilities and addictions, Indigenous and racialized people, people without secure housing, and essential service workers in precarious or low-income jobs.

A head-in-the-sand approach is not an answer to concerns about disparities in health outcomes, and does not absolve the government of its responsibility to address potential systemic discrimination in how it manages the COVID-19 pandemic. Without solid Ontario data to work with, the government must recognize data from comparable jurisdictions, including the United States, which shows, for example, that Black people among others are disproportionately dying from COVID-19. Looking to this data for guidance, Ontario must adopt action plans for vulnerable groups that include aggressive screening and testing.

The OHRC is encouraged by the government’s new health data platform and its action plan for long-term care residents. Similar plans should be put in place for other vulnerable groups. These plans should be developed with public health and human rights experts, frontline workers and people with lived experience. Action plans should prioritize public health measures over law enforcement.

So far Ontarians are supportive of the government’s management of the COVID-19 pandemic. All levels of government have been transparent, have followed the advice of experts and have implemented thoughtful measures to protect vulnerable groups. As a direct result, Ontario has begun to flatten the curve. Ontarians continue to support a balanced and compassionate approach. The OHRC encourages the government to once again heed the advice of health and human rights experts who agree that Ontario needs demographic data to effectively fight COVID-19.

Renu Mandhane
Chief Commissioner

TORONTO – Today, the Ontario Human Rights Commission (OHRC) launched a survey for educators and other professionals who have experience with reading disabilities, as part of its inquiry into human rights issues that affect students with reading disabilities in Ontario’s public education system.

This survey, available on the OHRC website, is an opportunity for educators and professionals, including teachers, principals, tutors, pediatricians, speech-language pathologists, psychologists and social workers to share their perspectives and provide information to help the OHRC understand and report on the experiences of students with reading disabilities in Ontario public schools. It will also help the OHRC assess whether public schools are using scientific evidence-based approaches to give students with reading disabilities meaningful access to education as required by the Ontario Human Rights Code.

“Hearing the experiences of educators and other professionals who work with students with reading disabilities is crucial to our Right to Read inquiry,” said OHRC Chief Commissioner Renu Mandhane. “It will help us understand what is happening on the ground in schools across the province, and what they think should be happening to meet the right to read. I encourage education professionals throughout Ontario to complete the survey.”

Since the OHRC launched the Right to Read inquiry in October 2019, it has heard from thousands of students, parents, guardians, teachers and educators through its online survey for students, parents and guardians, four public hearings (Brampton, London,Thunder Bay and Ottawa), one community meeting (Kenora), three Indigenous listening circles (London, Thunder Bay and Kenora), organization submissions, emails, meetings, telephone calls, artwork, and social media. The OHRC has also requested documents, data and information relevant to the inquiry from eight school boards it identified as a representative sample and from all 13 Faculties of Education in Ontario.

The OHRC plans to release a formal report on findings and recommendations later in 2020.

Resources

Survey for educators and other professionals
OHRC public inquiry into human rights issues affecting students with reading disabilities webpage
Terms of reference
Right to Read inquiry into reading disabilities backgrounder
Inquiry privacy policy

Media contact:
Rosemary Parker
Communications & Issues Management
Ontario Human Rights Commission/Commission ontarienne des droits de la personne
647-202-7460  rosemary.parker@ohrc.on.ca

Maria Rizzo
Chair
Toronto Catholic District School Board
Catholic Education Centre
80 Sheppard Avenue East
North York, ON M2N 6E8

Dear Chair Rizzo:

The OHRC is aware that the Toronto Catholic District School Board (TCDSB) is considering amending its Code of Conduct to specifically include gender identity, gender expression, family status and marital status as grounds upon which members of the TCDSB community cannot be treated unfairly. Our understanding is that this issue is being specifically considered by the Catholic Education and Living our Catholic Values Sub-committee on September 25, 2019.

Addressing gender identity, gender expression, family status and marital status in the Code of Conduct is necessary for the TCDSB to meet its obligations under the Education Act, the Ministry of Education’s Policy/Program Memorandum No. 128: The Provincial Code of Conduct and School Board Codes of Conduct, and Ontario’s Human Rights Code.

All schools in Ontario have a legal duty to ensure a school environment free from harassment and other forms of discrimination on the basis of the Human Rights Code. Gender identity, gender expression, marital status and family status are all prohibited grounds of discrimination under the Human Rights Code, and their inclusion in the TCDSB’s Code of Conduct is essential to ensuring that all members of the school community are able to fully participate without discrimination.

Expressly referencing gender identity and gender expression in the TCDSB’s Code of Conduct is particularly important given the extreme vulnerability of transgender students. Research shows that transgender children and youth are extremely marginalized; have high rates of depression and suicide; and experience isolation, harassment, and bullying in school environments. Given this, it is important that school codes of conduct – which set out standards of behaviour for all members of the school community – clearly state that transgender people must be treated fairly and with respect.

Conversely, excluding particular protected grounds would send a harmful and troubling message, and would set a lower standard of treatment for particular members of the TCDSB community.

Accordingly, the OHRC calls on the TCDSB to amend its Code of Conduct to specifically include gender identity, gender expression, family status and marital status as grounds upon which members of the TCDSB community must refrain from treating others differently – bringing it in line with the Human Rights Code and the requirements mandated by the Ministry of Education noted above.

Following the September 25, 2019, meeting at which the amendment is being considered, we ask that you provide us with an update and a copy of any updated version of the TCDSB’s Code of Conduct being recommended to the Board.

Thank you for your attention to this matter, and if there is any further information we can provide that would assist, please do not hesitate to contact us.

Sincerely,

Renu Mandhane, B.A., J.D., LL.M.
Chief Commissioner

cc. Catholic Education and Living our Catholic Values Subcommittee, c/o Michael Caccamo, Superintendent

In a significant decision, the Human Rights Tribunal of Ontario (HRTO) found that Convention refugees should not face discriminatory barriers to accessing employment and contributing fully to Ontario society.

The Ontario Human Rights Commission (OHRC) intervened in Al-Turki v Ontario (Transportation), and the HRTO relied on the OHRC’s arguments and evidence in finding that Ontario’s driver’s licensing policy:

• Discriminates against refugees based on place of origin, citizenship and ethnic origin
• Perpetuates arbitrary disadvantage by imposing requirements based on conditions in the refugees’ home countries rather than individual merits
• Exacerbates the already disadvantaged position of refugees by making it challenging to get their full driver’s licences in a timely manner 
• Feeds into stereotypes that refugees cannot be trusted, enter Canada on false pretenses, and if they can’t find employment and remain on public assistance, are a “financial burden” for society.

The HRTO ordered the Ministry of Transportation (MTO) to immediately stop requiring refugees to get state authentication of their driving experience, and to develop and publicize a new non-discriminatory policy in accordance with the principles in the decision within six months of the COVID-19 Emergency Order ending.

Mr. Shyesh Al-Turki, a Syrian refugee, filed a claim at the HRTO alleging that the MTO allows certain foreign-licensed drivers to have their foreign driving experience credited in Ontario’s graduated licensing system if they get documentation from their originating countries, which refugees cannot produce. This requirement has forced many refugees, including Mr. Al-Turki, to wait a year before taking the road test to get their full Ontario licence. This has created a barrier to finding employment by eliminating their options for working as drivers, and has often forced them to remain on social assistance and pay higher insurance premiums.

In reaching its decision, the HRTO agreed with the OHRC position that the current driver’s licence policy is arbitrary and perpetuates historical disadvantage against refugees who are often poor, vulnerable and marginalized.

“This HRTO decision will allow refugees to obtain a full driver’s licence without discrimination and have earlier eligibility for jobs in trucking, ride-sharing and delivery services,” said OHRC Chief Commissioner Renu Mandhane. “We call on the Ontario government to ensure it identifies and removes all discriminatory barriers that prevent refugees from contributing fully to Ontario society.”

The OHRC will monitor the implementation of the remedy in this case.

Media contact:

Rosemary Parker
Manager, Communications & Issues Management
Ontario Human Rights Commission/Commission ontarienne des droits de la personne
647-202-7460  rosemary.parker@ohrc.on.ca

Mr. Matthew Anderson
President and CEO
Ontario Health
1075 Bay Street
Toronto, ON M5S 2B1

Dear Mr. Anderson:

RE: COVID-19 triage protocol, data collection and essential support persons

I am writing on behalf of the Ontario Human Rights Commission (OHRC). 

We hope this letter finds you and your team safe and healthy, and thank you for your ongoing efforts to address the COVID-19 pandemic.

On April 2, the OHRC released a policy statement and identified actions consistent with a human rights-based approach to managing the COVID-19 pandemic. The OHRC highlighted the need for government to:

• Provide all healthcare services related to COVID-19, including testing, triaging, treatment and possible vaccination, without stigma or discrimination
• Collect health and other human rights data on the response to the COVID-19 pandemic, disaggregated by the grounds of Indigenous ancestry, race, ethnic origin, place of origin, citizenship status, age, disability, sexual orientation, gender identity, social condition, etc.
• Recognize that any restrictive measures that deprive persons of their right to liberty must be carried out in accordance with the law and respect for fundamental human rights. This includes measures related to people in health and other care institutions
• Consult with human rights institutions and experts, Indigenous leaders and knowledge-keepers, vulnerable groups, as well as persons and communities affected by COVID-19, when making decisions, taking actions and allocating resources.

Over the last two months, the OHRC has met with a range of stakeholders representing racialized communities, people experiencing poverty, people with disabilities, older people and other Code-protected groups. These groups are concerned that certain aspects in the management of the COVID-19 pandemic are having a negative impact on their human rights, and have raised four immediate concerns:

1. Ontario Health’s March 2020 Clinical Triage Protocol for Major Surge in COVID-19 Pandemic violates the human rights of people with disabilities, older persons and other vulnerable groups, and has created fear in their communities
2. Lack of disaggregated data collection during the COVID-19 pandemic is putting the health and well-being of Code-protected groups at heightened risk
3. Rigid visitor restrictions in care settings are resulting in unequal access to health services and a failure to accommodate people who require essential support person(s) such as a family member, friend, or support worker to communicate or meet other disability-related needs
4. Lack of meaningful consultation and involvement is negatively affecting Code-protected and other vulnerable groups during the COVID-19 pandemic.

As you may know, the OHRC has previously written to Ontario about its concerns about the Clinical Triage Protocol and the lack of disaggregated data collection. We were advised that Ontario Health would be consulting with us. 

As set out below, we are aware that there may be an intention to address some of these concerns. However, to ensure full compliance with the Ontario Human Rights Code, the OHRC urges the following actions:

1. Immediately and publicly rescind Ontario Health’s March 2020 Clinical Triage Protocol for Major Surge in COVID-19 Pandemic and undertake meaningful consultation on a new protocol.

Ontario Health released a Clinical Triage Protocol for Major Surge in COVID-19 Pandemic, dated March 28, 2020, to guide the use of emergency resources, such as ventilators, if Ontario’s health system is overwhelmed and there is a shortage of these resources. There was no announcement to accompany the Protocol, and notwithstanding an undated letter from Ministers Elliot, Smith and Cho, which referred to it as a “draft” document, the OHRC has heard that health care practitioners continue to recognize the Protocol.

Stakeholders from disability rights organizations, such as ARCH Disability Law Centre, and older persons’ advocacy groups have voiced significant concerns that the Protocol creates stigma and fear, perpetuates historical disadvantage, and gives the impression that people with disabilities and elderly people are expendable and less worthy of protection. These groups were not consulted in the development of the Protocol. At the same time, they recognize that if the protocol is developed properly, it can serve to protect their communities. They are committed to the success of a protocol, but they need to be involved in developing it. The OHRC was able to quickly convene a consultation with these groups so we see no reason why Ontario Health cannot do the same.

The OHRC urges Ontario Health to:

1. Immediately and publicly rescind the version of the Clinical Triage Protocol for Major Surge in COVID-19 Pandemic released in March, and call on medical organizations to remove the document from their websites and not promote it as valid guidance
2. Share the revised draft version of the Protocol and commit to a public consultation with disability rights organizations, older persons’ advocacy groups, Indigenous, Black, racialized and other vulnerable groups.

2. Quickly develop and release a plan for collecting disaggregated socio-demographic data on the response to COVID-19.

The OHRC welcomes the Chief Medical Officer of Health’s recent remarks, which were confirmed by the Minister of Health in the Legislature, that the government plans to collect socio-demographic data during the pandemic. However, the lack of a formal announcement and details on how and when data collection will roll out has created confusion.

As the OHRC said in its April 30 public statement, health and human rights experts agree that Ontario needs demographic data to effectively fight COVID-19. Strong data allows health care leaders to identify populations at heightened risk of infection or transmission, to efficiently deploy scarce health resources, and to ensure equal access to public health protections for all Ontarians.

The OHRC urges Ontario Health to:

1. Take immediate steps to clearly outline the nature and scope of the proposed collection of disaggregated socio-demographic data
2. Provide specific information on who Ontario/Ontario Health is consulting on the collection of disaggregated socio-demographic data, including, but not limited to Indigenous, Black, racialized and other vulnerable groups
3. Release a detailed and comprehensive data collection plan that includes collection mechanisms and timelines for the pandemic
4. Provide specific information on how Ontario/Ontario Health will report publicly on the data collected during the pandemic
5. Publicly commit to collecting disaggregated socio-demographic data in the health sector in a sustainable manner beyond the pandemic. This would be responsive to longstanding OHRC and stakeholder recommendations.

3. Provide clear provincial direction on the duty to accommodate people with disabilities who need to access essential support person(s) while receiving health services during the pandemic.

The government has provided guidance to care institutions about visitor access as a virus prevention measure during the COVID-19 pandemic. In its guidance, the government recommends that only “essential visitors” be permitted to enter facilities and provides examples of essential visitors as including “…those who have a patient who is dying or very ill or a parent/guardian of an ill child or youth, a visitor of a patient undergoing surgery or a woman giving birth.”

Many groups have raised concerns that care institutions are using this guidance to exclude support persons, attendants and communication assistants who provide essential disability-related accommodations. Without their essential support person, some people with disabilities cannot communicate effectively with health care providers about health concerns, make informed decisions about treatment or give or refuse consent to treatment.

The OHRC recognizes that everyone’s right to health includes a government’s obligation to take the steps necessary for preventing, treating and controlling COVID-19. At the same time, under the Code, hospitals and other care institutions have a duty to accommodate a person’s disability-related needs, unless doing so would cause undue hardship based on cost or health and safety.

The OHRC urges Ontario Health to:

1. Provide direction to health facilities that their interpretation of “essential visitor” should be broad enough to include paid and unpaid support persons, attendants and communication assistants authorized by the patient who provide supports that are essential to enable a patient with a disability to access health care services and communicate effectively with health care providers.

4. Consult and involve representatives of vulnerable groups and other human rights experts.

A human rights-based approach to managing the COVID-19 pandemic requires that government, institutions and other responsible organizations consult with, and involve, Code-protected groups. Lack of meaningful consultation is negatively impacting the human rights of vulnerable groups during the COVID-19 pandemic.

The OHRC urges Ontario Health to:

1. Consult with human rights experts, representatives of vulnerable groups, and persons and communities affected by COVID-19, when developing protocols, making recommendations or decisions and taking action on managing the COVID-19 pandemic including clinical triage, data collection, restrictions on visitors to care settings and other matters. When consulting groups or needing quick advice, the OHRC is available to help facilitate discussions in a timely manner.

The OHRC appreciates the ever-evolving circumstances surrounding COVID-19, and understands that the government is working to address issues on many fronts. However, is it crucial that vulnerable people’s human rights are upheld, systematically accounted for and properly accommodated while accessing health services during the pandemic. Applying a human rights-based approach and taking these actions as soon as possible can help limit the spread of the virus while continuing to meet Ontario’s human rights obligations.

Sincerely,

Raj Dhir
Executive Director

cc: Hon. Christine Elliot, Minister of Health
Hon. Merrilee Fullerton, Minister of Long-Term Care
Hon. Doug Downey, Attorney General
Dr. David Williams, Chief Medical Officer of Health
Violetta Igneski, OHRC Commissioner
Randall Arsenault, OHRC Commissioner

Hon. Christine Elliot
Minister of Health
College Park 5th Floor
777 Bay Street
Toronto, ON M7A 2J3

Hon. Todd Smith
Minister of Children, Community and Social Services
Macdonald Block Room M2B-88,
77 Wellesley Street West
Toronto, ON M7A 1N3

Dear Minister Elliot and Minister Smith:

RE: COVID-19 Action Plan for Vulnerable People

I am writing on behalf of the Ontario Human Rights Commission (OHRC).

We hope this letter finds you and your team safe and healthy, and thank you for your ongoing efforts to address the COVID-19 pandemic.

The OHRC welcomes the April 23 release of the government’s COVID-19 Action Plan for Vulnerable People (the Plan) as a first step toward addressing the disproportionate impact that the pandemic is having on Ontario’s most vulnerable people. However, to ensure that the human rights of vulnerable people are protected in a way that is consistent with Ontario’s Human Rights Code, the Plan requires expanded scope and detail, which must be done in consultation with vulnerable groups and human rights experts.

Over the past few months, the OHRC has met with stakeholders from various sectors on human rights related to the COVID-19 pandemic. We heard significant concerns about the lack of consultation with affected groups. We also heard that while the Plan mentions certain vulnerable groups, it does not capture other vulnerable communities. The Plan also lacks clarity around how prevention, treatment and control initiatives are being designed to protect and benefit the most vulnerable groups in those communities.

In our April 2 policy statement and actions for a human rights-based approach to managing the COVID-19 pandemic, the OHRC called on the government to uphold the human rights of vulnerable groups by taking the following actions:

• Anticipate, assess and address the disproportionate impact of COVID-19 and related restrictions on vulnerable groups that already disproportionately experience human rights violations
• Make sure vulnerable groups have equitable access to health care and other measures to address COVID-19, including financial and other assistance
• Consult with human rights institutions and experts, Indigenous leaders and knowledge-keepers, vulnerable groups, as well as persons and communities affected by COVID-19, when making decisions, taking actions and allocating resources.

Despite our early advice, the OHRC has not yet been invited to COVID-19 planning forums and tables. Nor have we been able to gain access to specific and timely information to better understand the human rights implications of the government’s COVID-19 initiatives.

The OHRC’s specific requests for more details on the implementation of the Plan and its effect on vulnerable groups have gone unanswered.

In our April 30 submission on Ontario’s next Poverty Reduction Strategy, the OHRC highlighted that social and economic crises, especially a health pandemic like COVID-19, exacerbate the existing inequalities vulnerable populations already experience, such as poorer health and poverty. An inadequate response to the needs of vulnerable groups also undermines the effectiveness of Ontario’s overall response to COVID-19, placing at risk everyone’s well-being and potentially exacerbating an anticipated “second wave” of the pandemic.

To effectively protect the rights of Ontario’s most vulnerable people, Ontario must take immediate action to expand and implement its Plan for vulnerable groups. The OHRC urges the government to make clear, detailed and public commitments in the following areas:

1. Expand the scope of the Plan to ensure the needs of other vulnerable communities are properly addressed. Examples of communities that are currently excluded include:

• People experiencing homelessness who are not currently using the shelter system (for example, hidden homeless people and people living in encampments)
• Highly mobile populations of people who use drugs
• People experiencing poverty and living in multi-generational and sometimes crowded housing while also working in high-risk settings, such as long-term care, food processing facilities and the service sector
• In-patients in mental health facilities, including in addictions and withdrawal programs and in residential treatment programs for children and youth
• Frail seniors in assisted living
• Indigenous people living in urban and rural communities, and not in congregate care
• Seasonal migrant workers living in shared housing facilities.

2. Provide detailed, public information on how the roll-out of expanded testing, screening, tracking and surveillance will reach and benefit high-risk and vulnerable populations. Information should include a plan for:

• How many tests will be done for vulnerable groups each day
• How mobile populations will be reached
• How asymptomatic people from high-risk and vulnerable groups will be tested, tracked and monitored.

3. Consult and work with vulnerable groups that will be affected by the Plan by including Indigenous partners, stakeholder/advocacy groups representing vulnerable people and human rights experts, and involve them in provincial planning tables and committees.

4. Provide specific and detailed guidance to law enforcement to ensure that COVID-19 prevention measures are not implemented in a way that disproportionately targets or penalizes people who have difficulty or are unable to follow physical distancing restrictions and other requirements, such as people experiencing homelessness and people with certain types of disabilities. Guidance should also include appropriate ways to promote education and awareness. 

5. Identify indicators and collect data to measure whether the Plan, including these additional actions, is benefiting high-risk and vulnerable populations.

6. Report publicly and regularly on the implementation status of the Plan, including these additional actions, in detail, including the results of the data collected to measure whether the Plan is benefiting high-risk and vulnerable populations.

The OHRC appreciates the ever-evolving circumstances surrounding COVID-19, and understands that the government is working to address issues on many fronts. However, as many experts note, the spread of COVID-19 among Ontario’s most vulnerable populations could prove catastrophic. Taking the recommended actions as soon as possible can help limit the spread of the virus while continuing to uphold Ontario’s human rights obligations.

Sincerely,

Raj Dhir
Executive Director

cc:    Hon. Merrilee Fullerton, Minister of Long-Term Care
        Dr. David Williams, Chief Medical Officer of Health
        Matthew Anderson, President and CEO of Ontario Health
        Hon. Doug Downey, Attorney General
        Violetta Igneski, OHRC Commissioner
        Randall Arsenault, OHRC Commissioner

I hope this letter finds you well. I am writing to your school board to request documents, data and information that may be relevant to the Ontario Human Rights Commission’s (OHRC) Right to Read inquiry into human rights issues that affect students with reading disabilities in Ontario’s public education system.

I know that your school board and the OHRC share the goal of ensuring that students with reading disabilities have meaningful access to education, which includes learning to read. Achieving our shared goal depends on implementing a systematic approach that has been shown to be effective in meeting the needs of the most students, particularly students with reading disabilities.

As you know from our telephone call and the inquiry Terms of Reference we sent to you on September 30, 2019 (copy enclosed), the OHRC is conducting an inquiry under the authority of section 31 (see Appendix A) of the Ontario Human Rights Code (Code).

We will assess your board’s approach to reading disabilities (i.e. learning disabilities with impairment in reading, including dyslexia) against five benchmarks:

1. Universal Design for Learning (UDL)
2. Mandatory early screening
3. Evidence-based reading intervention programs
4. Accommodation
5. Psycho-educational assessments.

We will also examine the unique challenges of students with reading disabilities who face other barriers such as low socio-economic status/poverty, or having intersecting Code identities such as being Indigenous, racialized, newcomers, or English Language Learners. We are also considering perspectives on terminology, in particular related to the categories of learning disability (LD) and dyslexia.

To conduct this inquiry, we are asking your board to produce documents, data and information and to answer questions. We ask that you provide a complete response to each item below or if you cannot, that you indicate why. We have provided an Excel spreadsheet that corresponds to each item requested. Please respond to the production request through the spreadsheet (i.e. fill in your answers in the Excel spreadsheet and provide the requested data in the corresponding Tabs).

We are prepared to receive materials and information on a rolling basis and will keep track of the status of our production request. We ask that you provide as much of this information as possible by December 18, 2019. At the end of this letter, I include details about how your staff can connect with OHRC staff to facilitate this process.

Pursuant to sections 31(7) and 31(8) of the Code, the OHRC requests that your board produce the following documents, data and information:

1. Universal Design for Learning

1. Please provide any documents, data or information explaining your board’s approach to teaching reading, particularly in junior kindergarten (JK) through Grade 3 inclusive, including any policies, procedures, directives, training and professional development materials or anything else that addresses literacy and reading.
2. Please indicate whether schools in your board are primarily using a “whole-language approach” (e.g. three cueing system, sight words, and/or reading resources such as PM Benchmarks/Developmental Reading Assessment (DRA)/Fountas and Pinnell) or a “structured literacy” approach (e.g. systematic instruction in phonics, decodable texts). Please be specific.
3. Please advise whether your board has taken a position or issued any direction to schools on which approach to use. If so, please explain why that approach was selected. If not, please explain why your board has not done so.
4. How do you monitor the progress of individual students in reading?

2. Early screening

1. Please provide any documents, data or information that address your board’s approach to early screening for potential reading difficulties, i.e. in kindergarten and Grade 1, including any policies, procedures, directives, early screening tools or tests used, early screening pilot projects/trials, training and professional development materials or anything else that addresses early screening.
2. Please indicate whether your board requires all elementary schools to screen every student in kindergarten and/or Grade 1 for reading difficulties.
3. Please describe your board’s approach to early screening for English Language Learners (e.g. is it the same or different, and if different, how so and why).
4. Please indicate what scientific evidence-based screening tools or tests your board has approved for early screening.
5. If your board has not approved any scientific evidence-based screening tools or tests, please explain why not. Please advise if any other standardized tools are being used for early screening, and if so, provide them.
6. Please describe:
   
   1. when screening for reading difficulties first occurs
   2. how often it occurs after that
   3. who conducts the screening
   4. how the results of each screening are recorded
   5. how the results of screening are used (e.g. are they used to offer accommodation or reading interventions, and if so, what percentile scores trigger offering accommodation or reading interventions), and
   6. what follow-up screening takes place to monitor how students are progressing.

3. Reading interventions

1. Please provide any documents, data or information explaining your board’s approach to reading interventions for students with reading disabilities or suspected reading disabilities, including any policies, procedures, directives, reading intervention programs used, training and professional development materials or anything else that addresses reading interventions.
2. Does your board use a tiered approach to reading interventions? If so, please describe.
3. What reading interventions are available in your board? Please be specific, i.e. list or describe each program and indicate which schools have it.
4. Are students required to change schools to access reading intervention programs?
5. What is the process for deciding which schools will have a reading intervention program and which program?
6. Where does the funding for reading intervention programs come from?
7. For each of the reading programs listed in 3(c) please indicate:
   
   1. In what grade or grades is the reading intervention program offered?
   2. Who delivers the reading intervention program? What training do they receive?
   3. How are students selected to take part in the reading intervention program? What are the eligibility requirements? Are specific assessments required (e.g. psycho-educational assessment, diagnosis of a reading disability)? Must the student be identified by an Identification, Placement, and Review Committee (IPRC) or have an Individual Education Plan (IEP) to be eligible for a reading intervention program? Are the same selection criteria used for English Language Learners (if not, why not)?
   4. Are students offered the full program – for example, if the program calls for daily withdrawal support for a certain number of weeks, do students receive it daily and for the full duration? If not, what are the limitations and why?
   5. How long can students stay in the reading intervention program (e.g. months, years)? Is there a system for tracking student completion of the intervention program? Is there a system for tracking the effectiveness of the program for an individual student (e.g. tests administered before and after completion of the program)?
8. Please provide any data, reviews, reports or assessments you may have that analyze the overall effectiveness or outcomes of any reading interventions your board offers.

4. Accommodation

1. Please provide any documents, data or information explaining your board’s approach to accommodating students with reading disabilities or suspected reading disabilities, including any policies, procedures, directives, training and professional development materials or anything else that addresses accommodating these students.
2. What is required to obtain accommodations for reading disabilities or suspected reading disabilities? Is a psycho-educational assessment required? Is IPRC identification and recommendation required?
3. How are IEPs used in relation to accommodating reading disabilities or suspected reading disabilities?
4. Are reading interventions provided to a student before or while simultaneously providing accommodations for reading?
5. Are reading interventions always provided to students before creating modified curriculum expectations within the IEP? Are accommodations always provided to students before creating modified curriculum expectations within the IEP? If not, why not?
6. What accommodations are provided to students with reading disabilities or suspected reading disabilities? How is the accommodation process the same or different for English Language Learners?
7. What assistive technology (both hardware and software) is available for use by students with reading disabilities or suspected reading disabilities? Does every student who requires assistive technology to accommodate their reading disability have access to it as needed? What support is available for students using assistive technology (e.g. are teachers trained in assistive technology and able to support its use by students with reading disabilities)?
8. What quality assurance processes exist for IEPs and to ensure students have access to timely and effective accommodation?

5. Psycho-educational assessments

1. Please provide any documents, data or information explaining your board’s approach to psycho-educational assessments, including any policies, procedures, directives, training and professional development materials or anything else that addresses psycho-educational assessments.
2. Please provide any documents or information indicating whether your board has established criteria to be applied when determining whether to recommend a student receive a psycho-educational assessment by a board psychologist. 
3. How are decisions to recommend or not recommend a student for a board psycho-educational assessment made? Who makes the decision? What factors are considered? Are the criteria the same for English Language Learners?
4. Who maintains and administers any wait lists for psycho-educational assessments (the board, individual schools, groups of schools)?
5. Is there a restriction on the number of students who can be assessed in a year? Is there a restriction on the age or grade of the student before they will be considered for assessment?
6. While students are waiting for assessment, do they have IEPs? Are they receiving accommodation?
7. How many students are currently waiting for a psycho-educational assessment? Without providing the student’s name or Ontario Education Number, for every child waiting for assessment, please provide the date they were put on the list, what grade they were in when put on the list, and whether they have an IEP.
8. Please provide your board’s data on the average amount of time it takes for a student to receive an assessment.

6. Data collection

1. What percentage of students in your board (in relation to the overall student population) have been identified as having special education needs (excluding gifted unless co-occurring with other special education needs)?
2. What percentage of students in your board have been identified as having an LD exceptionality (i) in relation to the overall student population and (ii) in relation to students who have been identified as having special education needs (excluding gifted unless co-occurring with other special education needs)?  
3. What percentage of students in your board have an IEP? What percentage of students with special education needs (excluding gifted unless co-occurring with other special education needs) have an IEP? What percentage of students with an LD have an IEP? What percentage of students in your board have an IEP for reading difficulties?
4. Does your board collect data about students with reading disabilities or LDs including: gender identity, race, Indigenous ancestry, concurrent disabilities, total family income, what grade they were identified in, reading intervention programs they have taken part in, accommodations provided, and outcomes? If so, please provide this data.
5. Does your board conduct a student census or collect demographic data about all students? If not, what plans, if any, does your board have for doing so in future?
6. If your board conducts a student census, please provide the following for the most recent census conducted:
   
   1. A blank copy of the census form
   2. All data for each student who completed the census (please provide a unique number for each student, but not the student’s name or Ontario Education Number). As well, please link the census data with other data to indicate whether the student has an IEP, has been identified as having Special Education Needs, and/or has been identified as having an LD exceptionality
   3. For each student who completed the census in Grade 3, Grade 6 or Grade 10, please link the census data for that student to, and provide, the student’s results that year on the Grade 3 EQAO reading assessment, Grade 6 EQAO reading assessment, or Grade 10 OSSLT respectively.
7. Provide the following based on the most recent data collected pursuant to your board’s voluntary self-identification policy for Indigenous students:
   
   1. The percentage of students who have self-identified as Indigenous overall and broken down by First Nation, Inuit, and Métis
   2. The board’s analysis of achievement (e.g. as related to literacy, course completion, graduation) for students who have self-identified as Indigenous overall and broken down by First Nation, Inuit, and Métis
   3. For each student who has identified as Indigenous in Grade 3, Grade 6 or Grade 10, the student’s results that year on the Grade 3 EQAO reading assessment, Grade 6 EQAO reading assessment, or Grade 10 OSSLT respectively (please provide a unique number for each student, but not the student’s name or Ontario Education Number)
   4. For each student who has self-identified as Indigenous, please provide any data on whether the student has an IEP, has been identified as having Special Education Needs, and/or has been identified as having an LD exceptionality (please provide a unique number for each student, but not the student’s name or Ontario Education Number).

7. Terminology

1. How does your board define an LD? Does your board break down LDs by sub-types (e.g. impairment in reading, impairment in writing, impairment in math, impairment in executive functioning)?
2. Does your board use the term dyslexia? If so, why? If not, why not?

8. EQAO

1. What percentage of students with special education needs are excused from completing the reading component of each of the Grade 3 and Grade 6 EQAO tests?
2. What percentage of students identified as having an LD exceptionality are excused from completing the reading component of each of the Grade 3 and 6 EQAO tests?
3. Of students who were exempted from the reading component of the EQAO test in each of Grade 3 and 6, what proportion were identified as having an LD exceptionality?
4. In each of Grades 3 and 6, for students with an LD exceptionality who took part in the reading component of the EQAO assessment:
   
   1. What percentage achieved the provincial standard (Level 3 or 4)? Among LD students who achieved the provincial standard, what percentage had test questions/materials read to them, used assistive technology, or used scribing?
   2. What percentage who did not have test questions/materials read to them, use assistive technology, or use scribing achieved the provincial standard?

9. Outcomes

1. What is the current dropout rate for all students in your board (i.e. students who according to records have not graduated, are no longer students of your board and have not transferred to another educational institution)? Among students who have an LD exceptionality, what is the current dropout rate? If available, please provide this information broken down by race, Indigenous ancestry, gender identity, family income and concurrent disabilities.
2. What percentage of Grade 9 students who have an LD exceptionality are taking mostly applied versus academic courses? If available, please provide this information broken down by race, Indigenous ancestry, gender identity, family income and concurrent disabilities.
3. What percentage of all graduates are accepted at college upon graduating? What percentage of graduates with an LD exceptionality are accepted at college upon graduating? What percentage of all graduates are accepted at university upon graduation? What percentage of graduates with an LD exceptionality are accepted at university upon graduation? If available, please provide this information broken down by race, Indigenous ancestry, gender identity, family income and concurrent disabilities.

10. Professional development

1. Please describe what in-service training or professional development your board has on teaching reading, literacy, early screening, signs of reading disabilities, reading interventions, the duty to accommodate under the Code, and special education.

Under section 31 of the Code, you are obligated to produce the documents and information noted above, and provide any assistance that is reasonably necessary, including assistance in using any data storage, processing or retrieval device or system, to produce a document in readable form. As well, under section 8 of the Code, anyone who takes part in our inquiry, including students, parents, educators, board professionals and board staff, must not be subjected to reprisal or threat of reprisal.

Pursuant to section 31 of the Code, subsections 38(2) and 39(1) of the Freedom of Information and Protection of Privacy Act and section 32 of the Municipal Freedom of Information and Protection of Privacy Act, the OHRC is authorized to receive personal information in an inquiry. The OHRC has a Protection of personal information and privacy safeguards policy for this inquiry. We do not believe that this production request requires the disclosure of personal information, but to the extent that it may, we will work with you to address any privacy concerns raised.

This is not intended to be an exhaustive request, and the OHRC may ask your board to produce additional documents, data and information and to answer additional questions as the inquiry proceeds.

Next steps

Please have your staff contact [us] by no later than November 15, 2019 to discuss the process of providing the above-noted documents, data and information to the OHRC.

We recognize that some of the information being sought may not be available at the school board level. If that is the case, please let us know what information can only be provided by school principals or the Ministry of Education through its OnSIS school data management system by November 15, 2019.

We are developing an online survey for school principals. After we hear back from you about any information that can only be obtained from school principals, we will finalize the survey and send you a link so you can ask every elementary school principal to complete and submit it to the OHRC.

As the inquiry will also hear from students, parents and educators about people’s experiences with reading disabilities in public schools, I enclose an electronic copy of the OHRC’s Right to Read flyer and ask that you ensure it is posted in a prominent location in all of your schools and disseminated via the usual means of communication with teachers and parents/guardians.

The OHRC recognizes that school boards across the province have been working towards the goal of accessible education. We believe that the Right to Read inquiry will support these efforts.

We look forward to working with you and receiving your assistance in accordance with the requirements of the Code. In keeping with the OHRC’s commitment to public accountability and its duties in serving the people of Ontario, this letter and your response will be made public.

Sincerely,

Renu Mandhane, B.A., J.D., LL.M.
Chief Commissioner

cc:       OHRC Commissioners
            Hon. Doug Downey, Attorney General
            Hon. Stephen Lecce, Minister of Education

APPENDIX A

Inquiries

31. (1) The Commission may conduct an inquiry under this section for the purpose of carrying out its functions under this Act if the Commission believes it is in the public interest to do so.  2006, c. 30, s. 4.

Conduct of inquiry

(2) An inquiry may be conducted under this section by any person who is appointed by the Commission to carry out inquiries under this section. 2006, c. 30, s. 4.

Production of certificate

(3) A person conducting an inquiry under this section shall produce proof of their appointment upon request.  2006, c. 30, s. 4.

Entry

(4) A person conducting an inquiry under this section may, without warrant, enter any lands or any building, structure or premises where the person has reason to believe there may be documents, things or information relevant to the inquiry. 2006, c. 30, s. 4.

Time of entry

(5) The power to enter a place under subsection (4) may be exercised only during the place’s regular business hours or, if it does not have regular business hours, during daylight hours.  2006, c. 30, s. 4.

Dwellings

(6) A person conducting an inquiry under this section shall not enter into a place or part of a place that is a dwelling without the consent of the occupant.  2006, c. 30, s. 4.

Powers on inquiry

(7) A person conducting an inquiry may,

(a) request the production for inspection and examination of documents or things that are or may be relevant to the inquiry;

(b) upon giving a receipt for it, remove from a place documents produced in response to a request under clause (a) for the purpose of making copies or extracts;

(c) question a person on matters that are or may be relevant to the inquiry, subject to the person’s right to have counsel or a personal representative present during such questioning and exclude from the questioning any person who may be adverse in interest to the inquiry;

(d) use any data storage, processing or retrieval device or system used in carrying on business in the place in order to produce a document in readable form;

(e) take measurements or record by any means the physical dimensions of a place;

(f) take photographs, video recordings or other visual or audio recordings of the interior or exterior of a place; and

(g) require that a place or part thereof not be disturbed for a reasonable period of time for the purposes of carrying out an examination, inquiry or test.  2006, c. 30, s. 4.

Written demand

(8) A demand that a document or thing be produced must be in writing and must include a statement of the nature of the document or thing required.  2006, c. 30, s. 4.

Assistance

(9) A person conducting an inquiry may be accompanied by any person who has special, expert or professional knowledge and who may be of assistance in carrying out the inquiry.  2006, c. 30, s. 4.

Use of force prohibited

(10) A person conducting an inquiry shall not use force to enter and search premises under this section.  2006, c. 30, s. 4.

Obligation to produce and assist

(11) A person who is requested to produce a document or thing under clause (7) (a) shall produce it and shall, on request by the person conducting the inquiry, provide any assistance that is reasonably necessary, including assistance in using any data storage, processing or retrieval device or system, to produce a document in readable form.  2006, c. 30, s. 4.

Return of removed things

(12) A person conducting an inquiry who removes any document or thing from a place under clause (7) (b) shall,

(a) make it available to the person from whom it was removed, on request, at a time and place convenient for both that person and the person conducting the inquiry; and

(b) return it to the person from whom it was removed within a reasonable time.  2006, c. 30, s. 4.

Admissibility of copies

(13) A copy of a document certified by a person conducting an inquiry to be a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.  2006, c. 30, s. 4.

Obstruction

(14) No person shall obstruct or interfere with a person conducting an inquiry under this section.  2006, c. 30, s. 4.

Section Amendments with date in force (d/m/y)

2006, c. 30, s. 4 - 30/06/2008

Search warrant

31.1 (1) The Commission may authorize a person to apply to a justice of the peace for a warrant to enter a place and conduct a search of the place if,

(a) a person conducting an inquiry under section 31 has been denied entry to any place or asked to leave a place before concluding a search;

(b) a person conducting an inquiry under section 31 made a request for documents or things and the request was refused; or

(c) an inquiry under section 31 is otherwise obstructed or prevented.  2006, c. 30, s. 4.

Same

(2) Upon application by a person authorized under subsection (1) to do so, a justice of the peace may issue a warrant under this section if he or she is satisfied on information under oath or affirmation that the warrant is necessary for the purposes of carrying out the inquiry under section 31.  2006, c. 30, s. 4.

Powers

(3) A warrant obtained under subsection (2) may authorize a person named in the warrant, upon producing proof of his or her appointment,

(a) to enter any place specified in the warrant, including a dwelling; and

(b) to do any of the things specified in the warrant.  2006, c. 30, s. 4.

Conditions on search warrant

(4) A warrant obtained under subsection (2) shall contain such conditions as the justice of the peace considers advisable to ensure that any search authorized by the warrant is reasonable in the circumstances.  2006, c. 30, s. 4.

Time of execution

(5) An entry under a warrant issued under this section shall be made at such reasonable times as may be specified in the warrant.  2006, c. 30, s. 4.

Expiry of warrant

(6) A warrant issued under this section shall name a date of expiry, which shall be no later than 15 days after the warrant is issued, but a justice of the peace may extend the date of expiry for an additional period of no more than 15 days, upon application without notice by the person named in the warrant.  2006, c. 30, s. 4.

Use of force

(7) The person authorized to execute the warrant may call upon police officers for assistance in executing the warrant and the person may use whatever force is reasonably necessary to execute the warrant.  2006, c. 30, s. 4.

Obstruction prohibited

(8) No person shall obstruct or hinder a person in the execution of a warrant issued under this section.  2006, c. 30, s. 4.

Application

(9) Subsections 31 (11), (12) and (13) apply with necessary modifications to an inquiry carried out pursuant to a warrant issued under this section.  2006, c. 30, s. 4.

Disclaimer: This statement does not constitute legal advice. The OHRC encourages individuals and organizations to take universal precautions based on the most current advice from Public Health officials. The OHRC continues to monitor the evolving situation and will update this statement on an ongoing basis as needed.

Overview

Following the lead of the United Nations High Commissioner for Human Rights, the Ontario Human Rights Commission (OHRC) urges Ontarians to keep human rights principles under Ontario’s Human Rights Code (Code), the Canadian Charterof Rights and Freedoms (Charter) and relevant international human rights treaties at the centre of decision-making during the coronavirus (COVID-19) pandemic.

Both public- and private-sector organizations must recognize their human rights obligations, and consider the potential disproportionate impacts of COVID-19 on the vulnerable groups they employ or serve. These vulnerable groups include Indigenous and racialized peoples, people with disabilities, older people living alone or in institutions, and low-income communities who have unequal access to health care, childcare and/or are often underemployed.

Many of these vulnerable groups are disproportionately in low-paying, hourly-wage, benefit-free and otherwise precarious jobs that make them unable to provide care or interrupt work. They are also more likely to have limited access to stable healthy housing, child care, transportation and employment insurance. Indigenous peoples and racialized people also have higher incidences of chronic conditions, such as hypertension, diabetes, heart disease, housing overcrowding and more.

At the same time, the OHRC and relevant human rights laws recognize the importance of balancing people’s right to non-discrimination and civil liberties with public health and safety, including the need to address evidence-based risks associated with COVID-19.

Discrimination and COVID-19

Discrimination including harassment against any persons or communities related to COVID-19 is prohibited when it involves a ground under the Code, in the areas of services, housing, employment, vocational associations and contracts.

The Code protects against discrimination based on 17 grounds, whether perceived or otherwise, including disability, ethnic origin, place of origin and race. The OHRC’s policy position is that the Code ground of disability is engaged in relation to COVID-19 as it covers medical conditions or perceived medical conditions that carry significant social stigma.

COVID-19 is not isolated to people of any particular ethnic origin, place of origin or race. Some restrictions, such as a restriction based on where an individual recently travelled, may be reasonable and not discriminatory. However, depending on the circumstances, the Code grounds of place of origin, ethnic origin and race may trigger human rights obligations under the Code.

Employers and housing and service providers should ensure any restrictions are consistent with the most recent advice from medical and Public Health officials, and are justified for health and safety reasons.

The right to be free from discrimination can be limited under the Code (for example, where health and safety risks are serious and would amount to undue hardship). The Charter provides that civil, political and equality rights can be limited where reasonable limits prescribed by law can be demonstrably justified in a free and democratic society. International human rights law also recognizes that limitation of rights can sometimes be justified in limited circumstances.

Employment

The OHRC’s policy position is that negative treatment of employees who have, or are perceived to have, COVID-19, for reasons unrelated to public health and safety, is discriminatory and prohibited under the Code. Employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety.

An employer should not send an individual employee home or ask them not to work because of concerns over COVID-19 unless the concerns are reasonable and consistent with the most recent advice from medical and Public Health officials. In unique circumstances, an employer might have other health and safety concerns that could amount to undue hardship. They would need to be able to show objective evidence to support such a claim.

Employer absenteeism policies must not negatively affect employees who cannot work in connection with COVID-19. An employer may not discipline or terminate an employee who is unable to come to work because medical or health officials have quarantined them or have advised them to self-isolate and stay home in connection with COVID-19.

An employee who has care-giving responsibilities should be accommodated to the point of undue hardship, which might include staying home. These care-giving responsibilities which relate to the Code ground of family status could include situations where another family member is ill or in self-isolation, or where their child’s school is closed due to COVID-19.

Employers should be sensitive to other factors such as any particular vulnerability an employee may have (for example, if they have a compromised immune system).

Employers should give employees flexible options, such as working remotely where feasible, as a good practice, and as an accommodation even if they are not currently sick but need to self-isolate or stay home due to other reasons related to COVID-19.

Consistent with the OHRC’s Policy on ableism and discrimination based on disability and its Policy position on medical documentation to be provided when a disability-related accommodation request is made, employers should take requests for accommodation in good faith. Employers should be flexible and not overburden the health care system with requests for medical notes. Unnecessarily visiting medical offices increases further risk of exposure for everyone.

An employee who cannot work because of COVID-19 may be entitled to employee sick or disability leave and benefits offered by the employer or available under the Employment Standards Act or other government benefit programs.

At the same time, employers are entitled to expect that employees will continue to perform their work unless they have a legitimate reason why they cannot. If an employee is required to self-isolate for legitimate reasons, the employer is entitled to explore alternative options for how the employee may still continue to perform productive work for the employer (for example, telework). It is also not discriminatory to lay off employees if there is no work for them to do because of the impacts of COVID-19.

Employers may have other obligations (for example under the Occupational Health and Safety Act). The OHRC encourages employers to consult the Ontario Ministry of Labour, Training and Skills Development website for the most recent advice.

Services and housing

Individuals also have the right to be free from discrimination including harassment related to COVID-19 in services and housing based on grounds under the Code.

Services include, among other things, education institutions, retail shops and malls and the hospitality industry including restaurants, bars, hotels and entertainment facilities. Housing providers include condo corporations, rental apartments and residential institutional facilities like long-term care and retirement homes.

Negative treatment of service recipients or residents who have, or are perceived to have, COVID-19, for reasons unrelated to public health and safety, could be discriminatory and prohibited under the Code. Organizations in these areas may also have a duty to accommodate persons in relation to COVID-19, unless it would amount to undue hardship based on cost or health and safety.

The OHRC encourages all service and housing providers to take universal precautions based on the most current advice from Public Health officials.

Government-run facilities

The government has a fiduciary obligation to protect the health and safety of individuals held in government-run facilities related to child welfare, youth justice, criminal justice, long-term care, etc. These facilities disproportionately house individuals protected from discrimination under the Code, including Indigenous and racialized people, people with disabilities and addictions, elderly people, children and youth, and other vulnerable groups.

The government must have clear emergency plans in place that adopt a Public Health and human rights-focused approach to addressing evidence-based risks associated with COVID-19 in government-run facilities. Individuals in these facilities also have the right to be free from discrimination including harassment related to COVID-19 in the provision of services on grounds under the Code.

Under the Charter, these individuals have a right to privacy, liberty and security of the person and the right to protection against discrimination, arbitrary detention, and cruel and inhuman treatment, subject to reasonable limits.

Economic, social and cultural rights

The OHRC notes that the UN High Commissioner for Human Rights has stated that Public Health measures that require self-isolation or “social distancing” will likely have a disproportionate and potentially devastating impact on economically-marginalized individuals.

We echo the United Nations’ call for governments to put in place measures to mitigate the impact on people's economic and social rights, including, for example, exploring providing a basic guaranteed income, creating temporary housing and supporting Indigenous communities to meet the unique needs of their citizens.

For more information

Ontario’s Ministry of Health is working with its partners in the health care system implementing a plan to monitor for, detect and, if needed, isolate any cases of COVID-19. People who want to learn more about COVID-19 can visit the ministry’s web page.

See also the OHRC’s related January 28, 2020, statement: OHRC urges respect for human rights during Coronavirus health event.

See also the OHRC’s Policy on ableism and discrimination based on disability.