Talking Allergies

Modifying the school environment
Provincial human rights legislation generally imposes an obligation on institutions such as school boards to accommodate individuals with disabilities. This obligation is mirrored in the Constitution of Canada and, in particular, s. 15 of the Canadian Charter of Rights and Freedoms, which provides that: “Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on ... physical disability.”2 It is arguable that humans rights law, when coupled with the provisions in provincial education legislation respecting students’ attendance rights, would require school boards to adapt the school environment to accommodate students with medical disabilities in the school setting.

Despite the foregoing, there is no legal obligation to eliminate all risk. To date, the courts to date have refused to accept the general proposition that a school board is an “insurer” of all risks potentially confronting its students. Rather, a school board’s duty is to exercise reasonable care and skill to see that students are kept reasonably safe. Numerous cases interpreting the provincial human rights legislation and s. 15 of the Charterhave applied a roughly analogous standard holding that, aside from any duties prescribed by other legislation, school boards have an obligation to make reasonable effortsto accommodate students with medical disabilities. The standard of accommodation is not one of perfection but of reasonableness, short of undue hardship. No school board should ever assume responsibility for providing a completely allergen-free environment.

The duty of accommodation also places some responsibility on the affected individual. Students with medical disabilities are expected to co-operate in the accommodation process. This may well mean that the student and/or the parent/guardian must advise the school of the student’s medical condition and work with the school to determine what medical accommodations are necessary and appropriate.

Implications for school boards
The duties imposed on educators by provincial education legislation are typically couched in broad language. Such legislation does not specifically impose an express obligation on educators to administer an injection in response to an anaphylactic emergency. For example, the Memorandum mentioned above does not prevent Ontario educators from administering injections in an emergency, but neither does it impose an obligation to do so. Nevertheless, it is clear that school boards cannot prohibit anaphylactic students from attending school because of their medical condition. Based on human rights legislation, it is very likely that a court would hold that educators have a legal duty both to administer an injection in response to an anaphylactic emergency and to be prepared for that possibility.