A 2001-02 study by the Ontario Human Rights (OHR) Commission found 100,735 students at the secondary level received special education programs and/or services in the publicly funded school system. It stands to reason that many of these students have gone or will go on to a post-secondary institution. Barriers to education can take a variety of forms. They can be physical, technological, systemic, financial, or attitudinal. They can arise from an education provider’s failure to make available a needed accommodation, or to provide one in a timely manner. In , the Supreme Court of Canada found that “once the state does provide a benefit, it is obliged to do so in a non-discriminatory manner.... The principle that discrimination can accrue from a failure to take positive steps to ensure that disadvantaged groups benefit equally from services offered to the general public is widely accepted in the human rights field.”
In order for persons with disabilities to receive equal treatment in education, they must have equal access to educational opportunities. The duty to accommodate includes identifying and removing barriers that impede the ability of persons with disabilities to access educational services. The OHR Commission’s Disability Policyaffirms the duty of education providers to structure their programs and policies so as to be inclusive and accessible for persons with disabilities, and to take an active role in the accommodation process. Throughout the consultation, the Commission heard that students with disabilities continue to experience physical barriers to educational services. As stated by the KIDS’ Coalition: “Students may be unable to attend their local school due to lack of physical accessibility. Many schools are multi-level and the installation of elevators may be impractical or too costly. Parts of the school may be inaccessible due to lack of ramps, heavy doors, site elevation or playground features. Many schools do not have washrooms suitable for students with disabilities.”
It was the OHR Commission’s policy position, as outlined in the Disability Policy, that “when constructing new buildings, undertaking renovations, purchasing new computer systems, launching new Web sites, (or) setting up new policies and procedures... design choices should be made that do not create barriers for persons with disabilities.”
Where barriers already exist, the duty to accommodate requires education providers to make changes up to the point of undue hardship to provide equal access for persons with disabilities. If, after making the required changes, persons with disabilities are still unable to participate fully, education providers have a duty to accommodate any remaining needs up to the point of undue hardship.
Potential solutions could be had in the way of: (1) That the Ontario Building Code be amended to reflect the legal requirements set out in the Human Rights Code; and (2) that, irrespective of when the Building Code is amended, post secondary institutions comply with the requirements of the Human Rights Code and the principles outlined in the Disability Policy when constructing buildings, making renovations, and designing programs and services.