Below lies a statement crafted by Wade Poziomka, delivered to set the tone of our hearing. Although reading it plainly in this way does not do it justice, and the written text lacks the power and passion behind Wade's compelling delivery, it is still an influential and emotional plea to have our story heard and be hopeful for change. The names of the school, school board, and specific personnel have been removed.
OPENING STATEMENT – Victoria Jones v Former School Board
Introduction to Case and Summative Caselaw
Victoria Jones began her studies at her former high school in September 2014 in her grade 9 year. She continued her studies in Grade 10 in 2015/2016 at the same school and in Grade 11, she attended The Gow School in the United States where she remained until she graduated from high school. The issue before you is whether Victoria was provided a meaningful education while in her former school board and, if not, whether it was reasonable she attend The Gow School – a specialized educational institution in the United States focused on students with learning disabilities.
In the Tribunal’s decision in D.B., this Tribunal recognized that the purpose of education is to provide students with the opportunity to realize their potential and develop into highly skilled, knowledgeable, and caring citizens who contribute to their society. In Moore, the Supreme Court adopted the following proposition from Meiorin – “the service provider must show that it could not have done anything else reasonable or practical to avoid the negative impact on the individual”.
Just because a student does not succeed does not mean that a school board has failed to provide meaningful access to education. That is found word for word at paragraph 57 of the Tribunal’s decision in J.S. v. Dufferin-Peel Catholic District School Board. The inverse is also true – just because a student is “passing” does not mean that they are receiving meaningful access to education.
We understand that the service is education – not special education. After you hear the evidence Vice-Chair Nichols, we will ask that you find that Victoria was not provided with meaningful access to education.
Consider Grade 9, 10 and After
In assessing whether meaningful access to education was provided, you will hear evidence about Victoria’s grade 9 year – you will also hear evidence about what happened after Victoria left her former school. Both are relevant considerations to your ultimate determination. Caselaw establishes that evidence of events that occurred before the application may be admitted if relevant – in other words, evidence is not restricted to the same timeframe as that set out in the Application.[1] Caselaw also establishes that events that occurred after the Application is filed is admissible if relevant.[2]
Failure to Accommodate
The former school board clearly engaged with Victoria and her parents and offered some accommodation – that is not in dispute. There was frequent interaction with Victoria’s mother – Janice – from both the administration and from teachers. The duty to accommodate, however is not interested in whether some accommodation was provided and whether there was engagement.
I am quoting from D.B. – “The procedural component is concerned with the exploration of all legitimate options to provide accommodations to the point of undue hardship, including a determination of the adequacy and/or appropriateness of the proposed accommodations.” It is our position that the accommodation offered was insufficient and not of the nature required to allow Victoria to meaningful engage.
Substantively, I would ask this Tribunal to consider whether the failed to provide services and supports to the applicant that were or should have been reasonably available – such as learning remediation and training/teaching in reconstructive language.
A review of the witness statements provided by the Respondent, you are going to hear that Victoria did not take part in the accommodations offered in the IEP – despite Janice attempting to essentially have the school ‘enforce them’. Janice was fighting for accommodations – but frankly, Janice is not a psychologist or specialist. She is not best equipped to implement accommodations – but she does know her daughter, and when the status quo is not working.
Victoria will tell you that the accommodations she was offered were not actually helping her understand the material. When asked why she did not use her computer all of the time or attend the learning resource room for tests every time it was available, Victoria will tell you three things:
1. Most importantly, it did not help – yes they felt like they were accommodating her, but it did nothing to help with her comprehension of the material – an example she will give is a simple math one – if she sees the numbers 3 + 6 = 9 she will not understand it relative to a socially constructed question incorporating the numbers. If she simply types 3 + 6 = 9 on her laptop, it does nothing to further her understanding. The accommodations often did not assist her with what she needs; and
2. It had a social impact on her – she didn’t want to stand out, didn’t want to look foolish and frankly was afraid to ask. She will tell you that she felt like a nuisance to her teachers when she had to ask for notes – often the response would be exasperation and they would question why she needed them. She had experienced bullying in the past in elementary school, and fitting in socially was very important to her.
Victoria could advocate for herself, but did not have the tools at her disposal to help her understand and felt hopeless. There is no point advocating for something that doesn’t work. She will explain this to you. And yes, she will say that on occasion she was annoyed at her mom – as all teenagers are.
I would also ask this Tribunal to take judicial notice of the fact that barriers to learning for secondary students with learning disabilities include: (1) not wanting to stand out, (2) being shy, (3) not wanting to look “stupid”, (4) feeling self-conscious, and (5) afraid to ask questions. Judicial notice is important in this case. This Tribunal, especially with you presiding over this case, is a “specialized expert Tribunal”. Relative to a court, this Tribunal has broader scope for considering and taking into account social facts and contexts in making its decision” This was explicitly recognized in L.B.
You are also going to hear that Janice was overbearing and engaged in a significant amount of communication. Rarely is the education case before the Tribunal involving a child where a parent is not accused of being overbearing, unreasonable, or worse. You are aware of the jurisprudence in this area that stands for the proposition that parental advocacy, even when fierce, must not and cannot prevent a school board from accommodating the child’s needs to the point of undue hardship.
If and when liability is found, we will ask that the Respondent be ordered to pay the tuition from The Gow School, amongst other damages. I understand that you Madam Vice-Chair, will have some concern with this. I note that in D.B. you stated:
…I am still of the opinion that public school boards are not and should not be ordered to fund private school education, especially where such attendance is in the future and the cost amount is speculative.
Let me be very clear – nobody in this room believes that public school boards should be required to fund private school tuition. It is simply unsustainable for a publicly funded system. But I suspect we disagree about the path to prevent the cost of private school education from being ordered. In my respectful view, this should be achieved by ensuring public school boards in Ontario provide the level required to allow a very bright and caring person like Victoria to meaningfully access education, in order to reach her potential. The Tribunal should not refuse to order it when school boards fail in this respect, and students are heading for the labour force when they otherwise could be destined for post-secondary education. Bill 82, which made special education mandatory in Ontario, should not trap students in a system that will sacrifice their futures.
I also note that unlike the case in D.B., the attendance is not in the future but has already occurred, the cost is not speculative but definite, and Victoria was not seeking Applied Behaviour Analysis, but rather teaching in reconstructive language, that would enable her to meaningfully access all facets of her education. When a student cannot properly comprehend written language, they are not meaningfully accessing their education – in any of their classes. This is essentially the Matthew Effect – the poor get poorer. If you can read well, a science test is a science test. If you cannot understand language, a science test is a literacy test. This is what was happening with Victoria. Extra time for processing and use of a quiet area, while they are accommodations, do not enable Victoria to meaningfully access education. Dr. Renick’s expert testimony describes Victoria’s decline on verbal reasoning and vocabulary as being consisted with the Matthew Effect – she quotes the past-president of the International Dyslexia Association, speaking in relation to the Matthew Effect, saying:
The longer this developmental sequence is allowed to continue, the more generalized the deficits will become, seeping into more and more areas of cognition and behavior.
Dr. Renick’s expert opinion is that Victoria’s decreasing performance was due to the Matthew Effect, directly associated with having not received intensive, direct, evidence-based, multi-sensory language remediation specifically designed to target her dyslexia”. This sounds like a lot, but as the Supreme Court of Canada reminded us in Moore – “adequate special education is not a dispensable luxury.”
Unlike in L.B., which was essentially a sports school – The Gow School is a special education school focusing on Victoria’s learning disability. We are not suggesting that Victoria’s former school or any other public school should be held to the standard of The Gow School – but what we are suggesting is that the evidence in this case that will be presented by Victoria with respect to the remediation she received at the Gow School – at least some of it – was necessary to enable meaningful education. The school could have simply trained one teacher to work with Victoria and training her in a reading comprehension and remediation program – like, but not necessarily, the Orton-Gillingham system – and provided some tips to teachers to have them teach the material in a way that she could access and comprehend. For example, Victoria will tell you when she testifies that 3 + 6 = 9 is something she will struggle with – but if you change the question to three ducks joined six ducks, and now there were nine ducks all together – it is a completely different ballgame. Victoria was not given the teaching that was necessary to understand language in the school board and without that – there is no access to education.
In L.B. the Tribunal stated “the private school education chosen by S.B. for her son was not fully determined on the specific recommendation of the professionals involved nor is it a school that specifically focuses on remediating disabilities of the type that L.B. has”. In this case, Gow is such a school and the teaching method received was vital to her progress – this is established by the expert testimony of Dr. Renick.
Victoria will tell you that she was taught a system of reading that enabled things to finally “click”. Once she was taught to understand language in this manner, everything opened up for her – she applied the skills to geography, history, and math and experienced these subjects and their content in a way she never was able to before. I would suggest Madam Vice-Chair that that is “meaningful access to education”
I would ask that you give particular attention to what transpired for the two years prior to Victoria attending The Gow School, the lack of success up to that point, AND what happened after she attended Gow.
The Divisional Court, in considering L.B., found that it was a natural consequence of the breach of the Code that S.C. would take “whatever steps were necessary to salvage the school year for her child. There was no indication that accommodation services would be forthcoming…”
Like the L.B. case, but most extreme, the response from the in the summer following grade 10. The response is in the June 23, 2016 letter found at Tab 36 of the Joint Book of Documents. By the time of this email, in the Grade 10 year, Janice was aware of the following:
· Victoria had a WIAT test administered to her on October 14, 2015;
· The results were shared in part with Janice and Bob approximately one month later – they were told the scores were “average” – which frankly means very little in my view given that average is between the 16th an 84th percentiles;
· The Board only completed only six of the sixteen subtests were administered. The following were omitted:
· Oral language composite;
· Oral reading fluency subtest;
· Math fluency sub-test;
· Alphabet writing fluency subtest;
· Sentence composition subtest; and
· Essay composition subtest.
In one of the witness statements it states that of the 16 subtests, only 14 were relevant to Victoria. And yet only six were done. Dr. Renick on the other hand, in her expert testimony, tells you:
“...it is important that fluency measure be included in assessments, particularly as individuals complete middle/high school and transition to post-secondary environments….”
And with respect to the oral reading fluency subtest – “By themselves, the supplementary cumulative percentage scores derived from the first 30 seconds of reading on the WIAT-III Word Reading and Pseudoword Decoding word lists are not sufficient for determining instructional goals to remediate fluency deficits”
· Janice asked for the clinician scores and provided an example of Victoria’s previous WIAT test from 2011 to show what she was seeking. She first made this request on November 12, 2015 (this is found at Tab 17 of the Joint Book). Janice followed up again in writing on May 26, 2016 (this is found at Tab 30 of the Joint Book). Finally, a copy of the numerical and descriptor results was shared with Janice and Bob on June 07, 2016, seven months after it was first requested.
· The descriptor/numerical results showed that Victoria was at a grade 5.2 level for Reading Comprehension Skills and a Grade 7.6 for Pseudoword Decoding Skills. Janice wrote to the Board on June 18, 2016 and asked – “Why were we not informed of these results before June 7, 2016? We were very clear that we had concerns about Victoria’s reading, writing and math skills”. This is found at Tab 35 of the Joint Book.
· Janice had obtained a private psych-ed assessment in March, 2016 – it helped inform Victoria’s progress and status;
· In the past Janice had raised concerns with Victoria’s reading and comprehension abilities and asked for a program to help her comprehend – she did so again after seeing the psych-ed assessment, the numerical/descriptor results from the WIAT and the struggles Victoria was continuing to experience – specifically in her June 18th, 2016 email she stated – “What services the school and/or the school board be providing to Victoria in order to remediate her Phonological, Orthographic and Math skills impairment?”
· After all of this new information and the clear need for training in reading and comprehension, the Vice-Principal responded on June 23, 2016, and stated, inter alia:
"Within the high school setting, Victoria’s Individualized Education Plan continues to provide the necessary supports and accommodations (e.g. use of assistive technology, extra time for processing) may directly support Victoria’s reading skills as needed, while other accommodations may be used to support her needs related to math and executive functioning skills (including access to the Learning Support Teacher for support as required)."
In other words, nothing new was going to change – the IEP will continue to provide the existing support. That support was not working. Meaningful access to education was not being provided. At this point, like in L.B. Janice and Victoria made a decision that would try to salvage her secondary school education and allow her to transition to post-secondary, which was her goal. You will not that there was no transition planning taking place in the IEP or anywhere else – instead of encouraging and frankly providing Victoria with the tools to reach her full potential and attend post-secondary education, the school was more focused on transferring her to an “applied” course.
You will see at Tab 1 – in the very first week or two of school, after one quiz without an IEP in place and without accommodation, Victoria’s math teacher wrote to Janice essentially raising concern with Victoria studying at the academic level. After one quiz with no accommodation.
In addition to not providing the accommodation that Victoria would also see in Tab 200 of the Joint Book of Documents at page 3964 an email between the vice-principal and a school board superintendent in October 28, 2015 that they intended not to show the clinician results and scripted the meeting to provide, quite frankly, misleading or being generous, “limited”, information. How can a parent be expected to work constructively in the best interests of their child when the board is more interested in scripting responses than sharing the actual information?
There was no focus on transition from secondary school to post-secondary school. In fact, Dr. Renick notes in her expert testimony that the only recommendation for transition planning was “choose courses appropriate to interests and post-secondary pathway” – hardly insightful.
I digress back to the vice-principal’s response essentially referring back to the IEP. I will ask the Tribunal to consider DB where the Tribunal stated: “The Tribunal can no longer accept the approach…that ‘as long as the substantive accommodations as recommended by the IPRC and IEP are generally implemented, the substantive standard of the duty to accommodate will be met”. Janice did not ‘effectively truncate the Board’s obligations to accommodate’ like the Tribunal found in L.B. but rather she worked over a period of two years to obtain teaching for Victoria that she needed to understand language and open the door to meaningful education – if you listen to the Board, I suspect you will hear she worked too hard and was in too much communication. Half of Victoria’s high school education had passed, I will argue at the end of this hearing that it was simply unreasonable to expect Janice and Victoria to wait, hoping something would change in the final two years, when we have the vice-principal’s email simply pointing to the status quo heading into grade 11.
As Dr. Renick’s expert witness testimony to this point indicates, “Dyslexia is not a “catch-all” term that encompasses any form of learning (or even reading) difficulty; rather, it refers to a common, yet very specific, learning disorder with an identifiable pattern of diagnostic characteristics and evidence-based methods for effective remediation (not cure).” There are evidence-based methods that can be taught to students with Dyslexia to enable them to access meaningful education. General accommodations frequently offered to students, but that do not enable students like Victoria to properly comprehend material, is quite frankly, a failure.
While the practical realities of funding private school education should be considered and funding should be a last resort, there are cases where the purpose of education, being to provide students with the opportunity to realize their potential – not part of their potential – and to develop into highly knowledgeable citizens who contribute to society, and the remedial principles of the Code, require funding.
To date the Tribunal has been hesitant to order it – in fact, it simply hasn’t. The Divisional Court ordered it. The Supreme Court ordered it. It is certainly within your remedial powers to order, and I would submit Madam Vice-Chair that the facts of this case beg for it.
Hindsight is 20/20. But, Victoria went to The Gow School, received proper accommodation and remediation, was very successful, went to post-secondary school and will soon become a teacher. She was given the opportunity to realize her potential and she seized it. The decision you make in this case Madam Vice-Chair may well mean the difference between students achieving their full potential or simply not. Between direct entry to the labour force or post-secondary education. The public-school system needs to provide education – including to students with Dyslexia. And if it doesn’t, it should not be incumbent on that student to try every single avenue to find an alternative that enables them to reach their potential prior to the Tribunal considering an award of tuition. At some point, enough is enough – high school lasts for four years. In Victoria’s case, two of those four years were wasted by Victoria’s former school board and the lack of proper accommodation.
Back in the 1980’s, when Bill 82 was implemented, it was said: “Bill 82 replaced a system that worked with one that was under-funded and had cut off government grants for private school education.” There has to be a mechanism that allows students to realize their potential when the public-school board system has proved incapable – even if ordered very infrequently – or that statement, sadly, is true.