School District's Duty to Consult - Hewko v BC

In a decision with implications for schools in New Brunswick and other provinces a British Columbia court has ruled that a school district failed to discharge it's statutory duty to consult parents of an autistic student by failing to meaningfully consult with the child's parents. The court found that the statutory duty to consult with the parents required that consultation be meaningful and that, on the facts before the court, reasonable accommodations for the autistic child's ABA based learning method were required.

The child had been receiving ABA therapy at home prior to entering the school system and had thereby learned a variety of practical and academic skills and had acquired a means of communicating. The court rejected arguments from the school board and province that the parents demands for continued ABA instruction in the school by properly trained ABA workers were unreasonable and unrealistic and that the parents were attempting to impose their personal choices on the school.

The well documented record of ABA in educating autistic children was noted. The Court found that: "... the school board failed to discharge its consultation obligation by failing “…to ensure that [the plaintiffs’] representations were seriously considered and, wherever reasonably possible, demonstrably integrated into the proposed plan of action…”. Most importantly, the District through its proposals and by failing to seriously accommodate the Hewkos home-based program, failed to demonstrate it could produce instructional control of Darren." The Court's decision in Hewko v B.C. 2006 BCSC 1638 (CanLII) can be found on line at:

http://www.canlii.org/bc/cas/bcsc/2006/2006bcsc1638.html

The school board's duty to consult in Hewko was found in sections of the British Columbia School Act. A statutory duty to consult is also found in sections 12 and 13 of the New Brunswick Education Act:

12(1) Where the superintendent concerned, after consulting with qualified persons, determines that the behavioural, communicational, intellectual, physical, perceptual or multiple exceptionalities of a person are contributing to delayed educational development such that a special education program is considered by the superintendent to be necessary for the person, that person shall be an exceptional pupil for the purposes of this Act.

12(2) The superintendent concerned shall ensure that the parent of a pupil is consulted during the process of the determination referred to in subsection (1), and in the process of developing special education programs and services for the pupil.

13(2) The parent of a pupil has a right to reasonable consultation with the pupil's teacher or the principal of the school the pupil attends with respect to the education of the pupil.

The Hewko decision has clear implications for the education of autistic children in the New Brunswick school system. In some schools and districts parents are essentially presented, without their involvement, with a fully developed SEP (Special Education Plan) for the education of their autistic child. SEP's developed without meaningful consultation with the parents may not stand up on appeal under the Education Act, on application to the Ombudsman, or on judicial review to a court. Similarly, depending on the facts of a given case, a failure to provide autism trained Teacher Assistant to implement an autistic student's ABA based learning plan may be found to constitute a failure of the district's duty to accommodate that child's disability.