Month: April 2024

How does the Duty to Accommodate Apply in Education?

What are Schools Responsible for?

  1. The school district needs to investigate the barriers that are preventing your child from accessing their education equitably. To trigger this investigation, you don’t even need to use the word accommodation, the student just needs to have a disability that has been communicated to the school by evidence (assessments/letter from doctor), and you communicate your child is struggling/experiencing harm at/from school that is connected to their disability.
  2. The school district needs to create a plan on how to remove those barriers.
  3. The school district needs to consult with you. (parent(s)/guardians)
  4. The final decision of the plan is the school district’s responsibility. (You can file a section 11 appeal if this decision/plan significantly impacts your child and you do not agree.)
  5. The school district needs to implement the plan.
  6. The school district needs to continually be monitoring and adjusting the plan as needed so that your child is getting “reasonable” (not perfect) accommodations to access their education.

These responsibilities are outlined in human rights tribunal decisions. (see below). If they do not follow these steps they will need to justify it to a tribunal member if you file a human rights complaint. They will need to prove that given what they knew at the time, they took all reasonable steps to fulfill the following 1-6 responsibilities listed above with the following 1-4 duties listed below.

What does the Duty to Accommodate in Education Involve?

  1. Duty to meaningful inquiry (district)
  2. Duty to consult (both district and parent(s))
  3. Duty to co-operate in good faith (both district and parent(s))
  4. Duty to facilitate (parents)

Where do these responsibilities come from?

  1. All children have the right to access their education equitably. The legal test for discrimination was established in the Moore Case and can be seen here on the BC Human Rights Tribunal Wesbite. 
  2. The first part of the test means the school needs to know that your child has a disability. You need to provide documentation stating your child’s disability. The importance of this can be read here in the blog from the Human Rights Clinic.
  3. You need to communicate your concerns regarding the negative impact that your child is experiencing. The school has a duty to meaningful inquiry. They need to investigate and figure out what the barriers are and figure out what to do about removing the barriers so your child can access their education equitably. (You don’t even need to use the word “accommodation”.) For example, why are they failing math class? Or why is their anxiety so high in school? (Student by Parent v School District – Paragraph 99, 100, 104) Meaningful Inquiry
  4. The school district has a duty to consult and both parties have the duty to co-operate in good faith. (Hewko v BC – Paragraph 347) “The Mandate for the School System reiterates that parents have the right and responsibility to participate in the process of determining the educational goals, policies and services provided for their children.  Teachers have the responsibility to ensure that each student is provided with quality instruction, permitted to participate in all normal school activities and to monitor the behaviour and progress of each learner in accordance with provincial and local policies.” Duty to Consult
  5. The final decision regarding the plan is the responsibility of the school, and the parents need to facilitate the final decision. (A and B obo Infant A v. School District C -Paragraph 248) “Failure to do so is fatal to a complaint of discrimination” Duty to Facilitate 
  6. If those accommodations do not work, they have to keep trying and monitoring your child and make attempts at new accommodations. (Paragraph 120) “reviewing progress and changes, and adapting its approach in response” They need to keep attempting to remove the barriers. (X by Y v. Board of Education of School District No. Z – Paragraph 142) Reasonable Accommodations 

** For anyone who has a child with a diagnosis but hasn’t received a designation or an IEP, as long as they have a diagnosis letter and this letter by a doctor has been given to the school, all of the above rules apply. For example, Generalized Anxiety Disorder, ADHD, etc.

If you feel like you are just spinning in a hamster wheel and not getting anywhere, you may want to consider filing external complaints.  It’s unfortunate, but sometimes they need to be pressured from the outside. Depending on the issues you are facing that is the Teachers Regulation Branch, Ombudsperson, Human Rights Tribunal, file a Section 11 appeal with the Board of Education, email the Ministry of Education and CC the Superintendent, email your MLA. The media has been a successful path for field trip exclusions for some.

ALSO NOTE: Parents who are experiencing harm from the discrimination their child is experiencing or even possibly due to reduced school hours, can file under family status for the human rights tribunal to consider. You need to file it within the year time limit. Parent v. School District, 2024 BCHRT 113

NEW – OIPC Decision – Coquitlam School District

A New OIPC Decision was posted on April 15th involving the Coquitlam School District. Order F24-30

This is quite a unique decision involving a school district, compared with other decisions I have read. Particularly because I have never seen this section of the FIPPA used before. Section 14 – Solicitor-client privilege.

In some decisions involving all sorts of organizations, the respondents will suddenly be willing to disclose some of the previously withheld documents, only when the inquiry with the adjudicator starts. This is also the case here.

Do organizations just do that kind of stuff in hopes the applicant doesn’t have the stamina to last through these processes?

The summary by the OIPC is clear.

“An applicant made an access request and a privacy complaint to the Board of Education of School District No. 43 (School District) regarding a single email communication between the School District and an independent school. Initially, the School District withheld the email under s. 14 (solicitor-client privilege) of the Freedom of Information and Protection of Privacy Act (FIPPA) and disagreed with the applicant’s privacy complaint. However, during the inquiry, the School District determined that s. 14 did not apply and it disclosed the email to the applicant. It also acknowledged that it disclosed the applicant’s personal information without authority under FIPPA. The adjudicator determined that the issues in dispute were moot and there were no factors that warranted continuing the inquiry. Therefore, the adjudicator cancelled the inquiry.” (https://www.oipc.bc.ca/rulings/orders/)

What do you think of this?

Keep in mind, that this process takes years to wait for an inquiry. Years.

The school district was then paying lawyers to defend them through all of this.

When you think of it…. this parent’s tax dollars were going towards a school district that was paying lawyers to fight them over documents they should have had access to and their privacy was compromised.

Don’t we have school districts complaining of lack of funding?

When reading the details of this inquiry. It’s very interesting….

[11] The applicant’s child transferred from an Independent School to a school within the School District (Public School).

[12] In 2019, the applicant asked the principal of the Public School if any staff from the Public School and the Independent School had communicated about his child. The applicant and the principal exchanged several emails on the subject.

[13] In May 2021, legal counsel for the Independent School contacted the principal of the Public School to get information about whether the Independent School and the Public School had communicated about the applicant’s child. The Public School’s principal responded by email on May 12, 2021. In this email, the principal summarized his efforts to determine whether the communications took place and included a copy of the emails that he and the applicant exchanged in 2019.

[22] The parties agree that s. 14 does not apply to the information in dispute and the School District disclosed the email to the applicant.13 Given that all the information in dispute in this inquiry has been released to the applicant, I find that any order I make would not have a practical effect on the applicant’s right to access the information in dispute. As a result, I find that the issue of whether the School District is authorized to refuse the applicant access to the May 2021 email is moot.

Very interesting. I have so many questions.

[31] The parties agree that the 2021 email constituted a disclosure of the applicant’s personal information that was not authorized by FIPPA.17 The School District submits the unauthorized disclosure was quickly contained because the Independent School’s legal counsel recognized there may be privacy concerns about her receiving the email and immediately deleted it.18 The applicant does not challenge the veracity of the School District’s claim that the legal counsel immediately deleted the email in question.

So…if I am understanding this decision correctly.. lawyers from one school cannot contact another school and obtain information about a student/parents without the consent of the parent, even though they are lawyers?

Good to know.

As always, a big thank you to the parents who saw this through to hold the district accountable and provide us with an opportunity for learning and understanding the system. I am happy to see they had an outcome in their favour.

Ok parent(s)/guardians, keep this in mind for custody disputes, family court matters, human rights complaints, etc.

For anyone going through this process, the OIPC has a guide for completing written submissions. https://www.oipc.bc.ca/media/17752/2024-02-26-gd-instructions-for-written-inquiries.pdf

NEW DECISION – Tribunal Declares: Parents of Disabled Children are NOT Important to Public Interest

Here is a blog post that is a must-read!!

“In a decision on a timeliness application, Parent v School District 2024 BCHRT 113, the tribunal confirms that parents can file a complaint under family status in connection with their child’s human rights discrimination case. I encourage you to read the decision in full.

They say this is not unique and cite Independent School Authority v. Parent, 2022 BCSC 570 as evidence that this has been confirmed before. The timeliness application was not rejected because the school doesn’t owe “a service” to the parents, as originally stated in a human rights complaint decision, which rejected parents being connected under family status in Habetler obo Habetler v. Sooke School District and B.C. (Ministry of Education), 2008 BCHRT 85

When you represent your child in a human rights complaint, any money received during a settlement or from a hearing decision will go directly to them. If you have any financial losses due to your child’s exclusion or emotional harm, then you have also experienced an adverse effect. So, parent(s)/guardians, you can submit a complaint just for you.  This is BIG news. It hasn’t been tested at a hearing yet, but your complaint will be considered. It’s confirmed. It’s so possible the tribunal doesn’t even consider it unique.  This absolutely needs to be done within the one year or it will not be accepted because…. And hold onto your hats, we are now moving into the shocking part of this decision.

Brace yourself.

The tribunal has declared with this decision, that parents who experience harm connected to their employment because of the discrimination their disabled child experienced at school, is not in the public interest to address this.”

To read the FULL Blog click below.

NEW DECISION – Tribunal Declares: Parents of Disabled Children are Not Important to Public Interest

What really bothers me is that society seems to think it is ok to not have inclusive child care and education and just expect women to exit the workforce and give up their careers to be full-time caregivers and not get paid for that.

I’d like to know if a parent can file a human rights complaint under family status regardless whether their child’s situation would be deemed discrimination or not, but its discrimination to them.

  1. Do they have a protected characteristic?
    – Yes. Family Status, Sex. (Child has a disability)
  2. Did they experience an adverse effect?
    – Yes. They had to quit school / work / emotional harm (high stress, etc)
  3. Is their adverse effect connected to their protected characteristic?
    – Yes. Their child is on reduced hours, or for other reasons of their own children being discriminated against, they left their work or school.

Now all we need is a parent who is willing to test the system….

ADHD, Dyslexia, Dysgraphia – Human Rights Education Case

This is a new case that was posted on the BC Human Rights Tribunal Website March 26th, 2024. This is a timeliness application.

I have read through this case and I feel MANY families can relate to the details of this case or various aspects of this case.

It really deserves a full read, however I have pulled some paragraphs to summarize and give an overview. The analysis of this case by the tribunal member and their determination of whether disability was connected to the harm alleged is really important learning for us parents. It also describes how the tribunal interprets alleged inappropriate accommodations as potential discrimination.

I am also going to be emailing this case to the Ministry of Education and asking them to explain why they are not screening children in Kindergarten. Dyslexia BC has been advocating for this for years!

The Parent obo the Child v. School District, 2024 BCHRT 91

[8] The Child attended an elementary school in the School District from September 2015 until December 2020. He has dyslexia, dysgraphia, and attention deficit hyperactivity disorder [ADHD].

[9] By the third week of kindergarten in 2015, the Parent alleges that the Child began complaining of constant nausea and experienced diarrhea and vomiting regularly. She states he told her that he was scared to go to school as the work was too hard and he could not do it. The Parent alleges that the Child’s physical ailments were only present on school days and he began resisting going to school, to the extent that he cried all evening before going to school and lay on the floor crying two to three hours before school. The Parent alleges this same pattern persisted throughout the entire time the Child attended the school.

[14] Around August 2018, before the Child started grade three, the Parent alleges that she asked his teacher if he may be dyslexic. The Parent says that the teacher assured her that her son’s situation was normal, and he just needed to keep practicing. The Parent says that she thought that by raising the possibility dyslexia to the teacher it would prompt the teacher to investigate the issue more thoroughly. The Parent says that she ultimately decided to trust the teacher’s opinion, which resulted in the Child not being appropriately accommodated for his disabilities.

[15] In September 2018, the School District conducted a functional behavioral assessment of the Child. Based on the assessment, in November 2018 the School District placed him in a literacy intervention group. The Parent alleges the placement was an inappropriate response to the Child’s disabilities.

[17] In December 2018, the School District created its first Individual Educational Plan [IEP] for the Child. The plan focused on addressing the goals of the Child attending school and managing his anxiety in a positive way at school. It also addressed various ways to increase his reading and writing to advance him from operating at a grade one level. The Parent alleges the IEP did not appropriately address the Child’s disabilities.

[18] In June 2019, the Parent alleges the Child’s IEP was updated with minimal change. She says that worksheets provided by the school over the summer were too hard for the Child to complete. Once again, the Parent alleges the School District’s attempts to accommodate the Child’s disabilities were inappropriate.

[25] In mid 2020, at the end of grade four, the Parent says that she realized the extent of the Child’s reading struggles as he could not read instructions or complete any online school without her providing him with extensive one-to-one support. She alleges his reading skills were much lower than the School District had previously indicated. At that point the Parent says she began doing in-depth research on dyslexia and other disabilities pertaining to reading. She then decided to pay for him to attend tutoring with literacy specialists outside of school.

[31] ……...The Parent stated that she felt incredibly rushed during a less than one hour meeting about the plan for the Child related to the new information and the complexity of the situation. She worried about several educators being involved who did not have training for children with the Child’s learning disabilities and processing challenges.…..

[34] Finally, the Parent noted her concern that as of grade three the School District had already started to consider the Child as not being a candidate for graduation with a high school diploma.

[37] In January 2021, the Parent says that the Child was enrolled in a private school equipped to meet his education needs. She says that at the new school, the Child received 45 minutes of OG tutoring at the new school every day with positive effects. By the time her complaint was filed in November 2021, she described him as a “different child” who did not complain about going to school and did not get headaches and have an upset stomach or diarrhea. The Parent says the Child was learning at grade level and was now being given the opportunity to be successful.

[49] After reviewing the information on file, I have further determined that there is a succession of separate acts of discrimination of the same character that are separate contraventions of the Code extending back to the spring of 2016. I address each allegation in turn.

[50] The Complaint alleges that on April 4, 2016, the Parent emailed the Child’s kindergarten teacher with his reports that he felt rushed when doing work at school, and despite his best efforts he felt he was too slow in completing tasks. The Parent asked the teacher if there was anything that could be done about this problem. The teacher responded with an acknowledgement that the Child did take his time with his work and appears to suggest that the Parent should reassure the Child that he could take time and not be so hard on himself. From my review of this event, I am satisfied that the Complaint sets out an allegation of discrimination where the Child accessing educational services experienced harms because the School District failed to accommodate the Child and did not meet his educational needs by only telling the Parent to tell the Child not to not rush or be too hard on himself. The harm incurred 12 by taking this action only was the Child not receiving a proper education. I am further satisfied the Complaint sets out an allegation that the School District failed to make sufficient inquiries into the nature and extent of the Child’s disability-related needs in response to the Parent’s concerns. In my view, this inaction caused harm where the School District failed to discover Child’s learning disabilities such that he could then be provided with appropriate accommodations to prevent him falling behind. In my view, the Complaint alleges that the Child’s disability was a factor in the harms alleged.

[51] The Complaint alleges that in November 2016, the School District’s response to the Child’s reading difficulties was to send home alphabet cards and provide video links for him to work on sounding out letters and creating simple words. From my review of this event, I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs in this manner. I am further satisfied the Complaint sets out an allegation that the School District failed to make sufficient inquiries into the nature and extent of the Child’s disability-related needs as opposed to sending home alphabet cards and video links to address his needs. In my view, the Complaint alleges that the Child’s disability was a factor in the harms alleged. In my view, the Complaint alleges that the Child’s disability was a factor in the harms alleged.

[52] The Complaint alleges that in the fall of 2017, the School District addressed the Child’s ongoing reading problems by giving him sight cards to take home and providing him with some one-on-one reading support. At this time, the Parent noted her concerns that the Child was merely memorizing the cards and not actually able to spell the words. She also observed that he was guessing words based on pictures. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs in this manner. I am further satisfied the Complaint sets out an allegation that the School District failed to make sufficient inquiries into the nature and extent of the Child’s disability-related needs as opposed to sending home sight cards and providing some one-on-one reading support. In my view, the Complaint alleges that the Child’s disability was a factor in the harms alleged. 13

[53] The Complaint alleges that in August 2018, the School District’s response to the Parent’s concern that the Child might be dyslexic as he continued to struggle in school was to assure her that he just needed to keep practicing. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs in this manner in response to Parent’s concerns. I am further satisfied the Complaint sets out an allegation that the School District failed to make sufficient inquiries into the nature and extent of the Child’s disability-related needs as opposed to staying the course with Child despite ongoing problems and the Parent highlighting the possibility that he could be dyslexic. Once again, I find the Child’s disability was a factor in the harms alleged.

[54] The Complaint alleges that In the fall of 2018, the School District’s response to the Child’s ongoing learning struggles was to conduct a functional behavioural assessment and place him in a literacy intervention group. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs by focusing on the behavioural components and not his disabilities. I am further satisfied the Complaint sets out an allegation that the School District failed to make the appropriate inquiry, conducting a psychoeducational assessment instead of a behavioural assessment, into the nature and extent of the Child’s disability-related needs. Again, failing to accommodate the child after a proper assessment is alleged to have harmed him by not providing a proper education. I find the Child’s disability was a factor in the harms alleged.

[55] The Complaint alleges that in December 2018, the School District created its first IEP for the Child. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs with an IEP that focused on the behavioural components and provided ineffectual learning supports not indicated in the later psychoeducational assessment. Again, the School District is alleged to have failed to make the appropriate inquiry into the nature and extent of the Child’s disabilityrelated needs. It allegedly failed to accommodate the child after a proper assessment resulting in the harms related to not receiving a proper education. I find the Child’s disability was a factor in these harms. 14

[56] The Complaint alleges that in June 2019, the School District updated the IEP with minimal changes and sent worksheets home with the Child to do over the summer break that were allegedly beyond his capabilities. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs with a revised IEP that has the same issues as the first IEP. A further allegation is set out concerning sending home inappropriate worksheets over the summer. Once again, the School District is alleged to have failed to make the appropriate inquiry into the nature and extent of the Child’s disability-related needs. It allegedly harmed the Child by not providing him with a proper education. I find the Child’s disability was a factor in the harms alleged.

[57] The Complaint alleges that in September 2019, the Child’s grade four teacher admitted she was unaware of him having an IEP and provided him with grade two spelling lists work as an accommodation of his disability. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs by sending home grade two spelling lists for him to work on. Once again, the School District is alleged to have failed to make the appropriate inquiry into the nature and extent of the Child’s disability-related needs. It allegedly harmed the Child by not providing a proper education. I find the Child’s disability was a factor in the harms alleged.

[58] The Complaint alleges in February 2020, the School District’s lack of response to the Parent’s concern that the Child was reversing letters on his written tests is an allegation of discrimination. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs in the face of dyslexia symptoms. Once again, the School District is alleged to have failed to make the appropriate inquiry into the nature and extent of the Child’s disability-related needs. It allegedly harmed the Child by not providing a proper education. I find the Child’s disability was a factor in the harms alleged.

[59] The Complaint alleges on November 4, 2020, that the revised IEP implementing the October 27, 2020, psychoeducational report findings is an allegation of discrimination where it relied on the Parent to organize and pay for the Child’s OG tutoring and inappropriately 15 continued to focus on treating his anxiety. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs with a revised IEP not properly guided by the psychoeducational assessment resulting in the Child not receiving a proper education. I find the Child’s disability was a factor in the harms alleged.

[60] The Complaint alleges on November 5, 2020, that the school principal was unwilling to guarantee that the Child would receive tutoring from someone trained in OG tutoring is an allegation of discrimination for the purposes of this decision. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by committing to provide him with an appropriately trained tutor necessary to meet his learning disability needs. This resulted in the Child not receiving a proper education. I find the Child’s disability was a factor in the harms alleged.

[61] To summarize, the materials before me set out a series of discrete allegations of discrimination incidents involving the School District’s repeated failures to appropriately accommodate the Child’s disability over the five years that he attended school within the School District. These incidents involved the trial of various inappropriate intervention activities, inappropriate IEPs and an inappropriate assessment. All these actions attempting to address the Child’s learning disabilities allegedly resulted in harms related to the Child not receiving a proper education. Further, for much of the period in question, the School District failed to make the appropriate inquiry into the nature and extent of the Child’s disability related needs by way of a psychoeducational assessment.

[65] In concluding there were no significant gaps in this case, I have considered the Parent’s submissions and evidence indicating she was actively engaged in the Child’s education during his time out of school over the years. For example, she participated extensively in the take home activities prescribed by the School District while actively pursuing guidance from his teachers, the school counsellor, and the principal. In my view, the Parent remained very much engaged in the accommodation process throughout the years and this lessens the significance of any gaps between the discrete instances of discrimination outlined above. As an active participant in the School District’s ongoing accommodation of the Child’s learning disabilities, I see less significance in the gaps of months between the discrete allegations. While it is possible 17 to say the Parent had numerous opportunities to file a complaint, the information before me indicates that she was actively engaged as a participant in the accommodation process between events where the issue of accommodation arose, which lessens the significance of the gaps in this case.

[67] For these reasons, the complaint is accepted for filing as it alleges a continuing contravention of the Code.