Kimberly Churchill and Todd Churchill, on behalf of Carter Churchill v. Newfoundland and Labrador English School District et. al.
(Complaint File # 10171)
Click above for full 116 page document.
Some excerpts below.
"[365] I struggle to conceive of a complainant more vulnerable than Carter Churchill. I am concerned by the potential long-term, perhaps permanent, impact upon Carter’s future prospects for independence. I am concerned by how his exclusion, social isolation and language deprivation have impacted his sense of identity and self-worth as well as his concept of the world around him. I worry about the potential long term impacts on his mental health. I am also concerned by the fact that the District does not acknowledge the systemic issues which contributed to the discrimination experienced by Carter. If my decision is going to prompt change in the practices and approaches taken by the District, I must take into account the purpose of deterrence in assessing an appropriate award for general damages. The award for general damages must compensate Carter for his loss of the right to be free from discrimination. An elevated award for general damages consistent with these concerns does not make the award inconsistent with prior awards and Human Rights jurisprudence."
"[362] I am particularly concerned by the Districts’ failure to adequately support Carter in the area of language development generally, and in particular its failure to respond to the concerns raised by its roster of ITDHH. These teachers were sounding the alarm with respect to the programming being offered to students with severe language delays such as Carter. At times they explicitly framed this as a Human Rights issue. They made specific proposals for changes to the programming offered to these students. Their proposals were dismissed summarily without being properly explored or evaluated by the District. This meant years of delay in proving intensive supports to address the language delays experienced by this cohort. The expert evidence presented emphasized the critical importance of early intervention in language acquisition – the impact on these students and Carter in particular may be long lasting or permanent. Years of opportunity have been lost. Carter will be entering junior high and high school in the near future. It is unlikely that there remains time to fully address his language delay and he will continue to experience disadvantage flowing directly from these years of missed opportunity. With each year he fell further and further behind. It appears there is a strong probability that negative consequences will persist into his adult years."
"[288] With respect to the substantive aspect of the duty to accommodate, I have several concerns. As a general statement with respect to the level of accommodation required to adequately respond to Carter’s need – I would say that it was not realistically possible to offer reasonable accommodation while at the same time have Carter placed in a mainstream classroom with hearing students. Carter’s severe language delay required intensive intervention. The only solution which appears to adequately address Carter’s need was to remove him from the mainstream and offer an alternative setting where he could receive intensive intervention for language development. Only by addressing his severe language delay is there a reasonable prospect that he could have meaningful access to school curriculum. This seems to have been understood by the District’s roster of ITDHH and it motivated them to seek changes in programming. There were missed opportunities to explore such options early in Carter’s education."
"[289] The failure to adequately support Carter’s communication needs and language development resulted in him being socially isolated, deprived of opportunities for incidental learning and development of social skills. Although I believe he was cared for by hearing teachers and students alike, there was a tremendous communication divide and Carter suffered as a result. These issues were not addressed until he was placed in the DHH Classroom."
'[290] With respect to the Kindergarten year in particular, the level of student assistance was wholly inappropriate. Carter’s ISSPs and IEPs contemplated that Carter would have a student assistant who could communicate with him in ASL. Without assessing the ASL proficiency of student assistants in advance of their work with Carter, the District really had no way of knowing whether the level of student assistance would meet Carter’s need. Nevertheless District personnel made representations to the Churchills that not only could the student assistance support his personal needs but they could be a bridge for communication with Carter’s hearing teacher. The only student assistant whose ASL proficiency was subsequently assessed received a proficiency rating below “survival” – during the assessment she failed to correctly fingerspell her own name, and she failed to produce the correct sign for “school”. The Churchills repeatedly raised concerns regarding the level of student assistance provided for Carter. In the evidence presented to the Board of Inquiry, I find examples of instances when these concerns materialized into real situations where Carter’s actual needs were actually not understood or addressed during school days."
"[291] Also with respect to the Kindergarten year, the level of support from an ITDHH appears to have been insufficient. The ITDHH assigned to Carter during his Kindergarten year recognized that Carter’s language delay meant that supporting him in his language development had to be one of her priorities even if this meant other students would not receive the level of support she wish to provide them. However, her caseload was heavy and she worked with Carter less than 3 hours per week. She acknowledged that based on his need he ought to have been receiving support more regularly at least 3 sessions per week and probably 4-5 sessions per week in order to meet the minimal guidelines of the Department’s guidelines contained in the “Criteria for DHH Services – NL.” She was not able to provide this level of support due to her caseload. In my view achieving even this standard, if it meant 5 hours per week, would not be sufficient to address Carter’s level of language delay."
"[300] In this case, I do observe evidence of systemic issues which persisted during Carter’s Kindergarten through Grade 3 school years. These issues relate to the District’s approach to education for a cohort of students with cochlear implants who arrived in the school system with severe language delays. This cohort included Carter Churchill. In my view it is evident that issues in this area were known or certainly ought to have been known to the District. Nevertheless I find the District’s response to these issues lacking. I see evidence that problems addressing the needs of this cohort were brought to the attention of District personnel who were in responsible positions within the District bureaucracy and who could have responded by exploring these issues, evaluating options, and implementing change. I see no evidence that this would have imposed a burden upon the District amounting to undue hardship. It was not an issue of lack of resources. The most that can be said is that the District failed to recognize opportunities for efficient reallocation of resources."
"[306] I also find that when the roster of ITDHHs raised concerns with their superiors they were discouraged from discussing their concerns with parents. Carter’s ITDHHs were involved in developing his ISSPs and IEPs. I have concerns that they would have been reluctant to discuss their concerns openly during these meetings and that they would not have been able to express their opinions on what changes they supported related to Carter’s programming. No direct evidence was presented on this point and I am reluctant to make inferences or draw conclusions about the state of mind of the ITDHHs during particular meetings where the Churchills were present, and whether the ITDHHs felt pressured by the District. I am however satisfied that the ITDHHs involved with Carter’s education had concerns regarding his programming, and they did not share these concerns with the Churchills in developing plans for Carter. The Churchills were deprived of the opportunity to advocate for the satellite classroom proposal or other similar change."
"[307] By the time Carter arrived in the school system, he was exhibiting a severe language delay and he needed intensive support in language acquisition Both expert witnesses who testified were in agreement that early intervention is critical to properly support a child’s acquisition of competence with a language. The delay in addressing Carter’s need in this area is very concerning and the adverse impact upon him is significant. He is now in Grade 6 and as of the date of the hearing he continued to require intensive support in this area and he remains unable to access grade level curriculum. The degree to which past delay in addressing his needs will continue to affect Carter in the future remains to be seen. However years of opportunity for early intervention have been lost.."
"[314] There is an inherent risk associated with any system which is vulnerable to a single point of failure. It seems reasonable to conclude that there is a need to put in place a process which is less reliant on the personal familiarity of one individual. Part of the solution would be to implement some objective system or standard for evaluating the ASL proficiency of those persons directly involved on the front lines of the education of students who are d/Deaf or hard of hearing. These are issues for the District to consider and it is not my function to conduct a comprehensive review of the education system of this province. My comments suggesting options for systemic changes are obiter dicta."
-Above statements made by the NL Human Rights Commission Board of Inquiry Adjudicator, Brodie Gallant
"[362] I am particularly concerned by the Districts’ failure to adequately support Carter in the area of language development generally, and in particular its failure to respond to the concerns raised by its roster of ITDHH. These teachers were sounding the alarm with respect to the programming being offered to students with severe language delays such as Carter. At times they explicitly framed this as a Human Rights issue. They made specific proposals for changes to the programming offered to these students. Their proposals were dismissed summarily without being properly explored or evaluated by the District. This meant years of delay in proving intensive supports to address the language delays experienced by this cohort. The expert evidence presented emphasized the critical importance of early intervention in language acquisition – the impact on these students and Carter in particular may be long lasting or permanent. Years of opportunity have been lost. Carter will be entering junior high and high school in the near future. It is unlikely that there remains time to fully address his language delay and he will continue to experience disadvantage flowing directly from these years of missed opportunity. With each year he fell further and further behind. It appears there is a strong probability that negative consequences will persist into his adult years."
"[288] With respect to the substantive aspect of the duty to accommodate, I have several concerns. As a general statement with respect to the level of accommodation required to adequately respond to Carter’s need – I would say that it was not realistically possible to offer reasonable accommodation while at the same time have Carter placed in a mainstream classroom with hearing students. Carter’s severe language delay required intensive intervention. The only solution which appears to adequately address Carter’s need was to remove him from the mainstream and offer an alternative setting where he could receive intensive intervention for language development. Only by addressing his severe language delay is there a reasonable prospect that he could have meaningful access to school curriculum. This seems to have been understood by the District’s roster of ITDHH and it motivated them to seek changes in programming. There were missed opportunities to explore such options early in Carter’s education."
"[289] The failure to adequately support Carter’s communication needs and language development resulted in him being socially isolated, deprived of opportunities for incidental learning and development of social skills. Although I believe he was cared for by hearing teachers and students alike, there was a tremendous communication divide and Carter suffered as a result. These issues were not addressed until he was placed in the DHH Classroom."
'[290] With respect to the Kindergarten year in particular, the level of student assistance was wholly inappropriate. Carter’s ISSPs and IEPs contemplated that Carter would have a student assistant who could communicate with him in ASL. Without assessing the ASL proficiency of student assistants in advance of their work with Carter, the District really had no way of knowing whether the level of student assistance would meet Carter’s need. Nevertheless District personnel made representations to the Churchills that not only could the student assistance support his personal needs but they could be a bridge for communication with Carter’s hearing teacher. The only student assistant whose ASL proficiency was subsequently assessed received a proficiency rating below “survival” – during the assessment she failed to correctly fingerspell her own name, and she failed to produce the correct sign for “school”. The Churchills repeatedly raised concerns regarding the level of student assistance provided for Carter. In the evidence presented to the Board of Inquiry, I find examples of instances when these concerns materialized into real situations where Carter’s actual needs were actually not understood or addressed during school days."
"[291] Also with respect to the Kindergarten year, the level of support from an ITDHH appears to have been insufficient. The ITDHH assigned to Carter during his Kindergarten year recognized that Carter’s language delay meant that supporting him in his language development had to be one of her priorities even if this meant other students would not receive the level of support she wish to provide them. However, her caseload was heavy and she worked with Carter less than 3 hours per week. She acknowledged that based on his need he ought to have been receiving support more regularly at least 3 sessions per week and probably 4-5 sessions per week in order to meet the minimal guidelines of the Department’s guidelines contained in the “Criteria for DHH Services – NL.” She was not able to provide this level of support due to her caseload. In my view achieving even this standard, if it meant 5 hours per week, would not be sufficient to address Carter’s level of language delay."
"[300] In this case, I do observe evidence of systemic issues which persisted during Carter’s Kindergarten through Grade 3 school years. These issues relate to the District’s approach to education for a cohort of students with cochlear implants who arrived in the school system with severe language delays. This cohort included Carter Churchill. In my view it is evident that issues in this area were known or certainly ought to have been known to the District. Nevertheless I find the District’s response to these issues lacking. I see evidence that problems addressing the needs of this cohort were brought to the attention of District personnel who were in responsible positions within the District bureaucracy and who could have responded by exploring these issues, evaluating options, and implementing change. I see no evidence that this would have imposed a burden upon the District amounting to undue hardship. It was not an issue of lack of resources. The most that can be said is that the District failed to recognize opportunities for efficient reallocation of resources."
"[306] I also find that when the roster of ITDHHs raised concerns with their superiors they were discouraged from discussing their concerns with parents. Carter’s ITDHHs were involved in developing his ISSPs and IEPs. I have concerns that they would have been reluctant to discuss their concerns openly during these meetings and that they would not have been able to express their opinions on what changes they supported related to Carter’s programming. No direct evidence was presented on this point and I am reluctant to make inferences or draw conclusions about the state of mind of the ITDHHs during particular meetings where the Churchills were present, and whether the ITDHHs felt pressured by the District. I am however satisfied that the ITDHHs involved with Carter’s education had concerns regarding his programming, and they did not share these concerns with the Churchills in developing plans for Carter. The Churchills were deprived of the opportunity to advocate for the satellite classroom proposal or other similar change."
"[307] By the time Carter arrived in the school system, he was exhibiting a severe language delay and he needed intensive support in language acquisition Both expert witnesses who testified were in agreement that early intervention is critical to properly support a child’s acquisition of competence with a language. The delay in addressing Carter’s need in this area is very concerning and the adverse impact upon him is significant. He is now in Grade 6 and as of the date of the hearing he continued to require intensive support in this area and he remains unable to access grade level curriculum. The degree to which past delay in addressing his needs will continue to affect Carter in the future remains to be seen. However years of opportunity for early intervention have been lost.."
"[314] There is an inherent risk associated with any system which is vulnerable to a single point of failure. It seems reasonable to conclude that there is a need to put in place a process which is less reliant on the personal familiarity of one individual. Part of the solution would be to implement some objective system or standard for evaluating the ASL proficiency of those persons directly involved on the front lines of the education of students who are d/Deaf or hard of hearing. These are issues for the District to consider and it is not my function to conduct a comprehensive review of the education system of this province. My comments suggesting options for systemic changes are obiter dicta."
-Above statements made by the NL Human Rights Commission Board of Inquiry Adjudicator, Brodie Gallant
