Category: Uncategorised

Co-parenting with the Government

This topic of the right to religious freedom has come up a lot. This is outside of my lane of disability writing, but I am surprised by how many parents contact me about this issue, so here is a blog on it.

I want to offer two cases that I think are very important.

E.T. v. Hamilton-Wenworth District School Board, 2017 ONCA 893

This is a case about a parent who didn’t agree with sex education, etc being taught in school and felt it was in conflict with their right to religious freedom.

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[40]      E.T. cannot, by virtue of his religious beliefs, insist that a non-denominational public school board restructure its inclusive and integrated program, designed to meet its statutory objective of ensuring a respectful and accepting climate for all children, so that he can ensure that his own children are not exposed to any views that he does not accept. Nor do I accept E.T.’s suggestion that the Board could or should ensure that discussion of matters such as sexual orientation and gender identity are discussed purely as matters of fact rather than as matters of “value judgment”. The Board has a statutory mandate to provide an inclusive and tolerant educational environment, one that respects the principles of equality enshrined in s. 15 of the Charter. Equality, inclusivity and acceptance of difference are values, not facts, and it is unrealistic to expect teachers to provide a learning environment that is truly welcoming to all students in a value-free manner.

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So what brought on this decision?

Here was the parents request:

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[2]         The appellant advised the Board that his religious beliefs require him to shelter his children from what his religion regards as “false teachings”. He provided the Board with a standard form list of topics that included matters such as “moral relativism”, “environmental worship”, “instruction in sex education”, and “discussion or portrayals of homosexual/bisexual conduct and relationships and/or transgenderism as natural, healthy or acceptable”. He asked the Board to provide him with advance notice of any classroom instruction or discussion of these issues so that he could decide whether or not to withdraw his children from those classes or activities.

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This was the Boards response to his request.

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[3]         The Board offered to exempt the appellant’s children from the “Healthy Living” strand in the elementary program, which is offered as a discrete part of the curriculum and involves education on human development and sexual health. However, the Board explained to the appellant that its Equity Policy aims to provide an integrated secular and respectful learning environment that does not discriminate against any child. The Board’s program aims to promote a positive and inclusive environment that accepts all pupils, including those of any sexual orientation, gender identity and gender expression. The Board advised E.T. that, given the integrated nature of its program and the generality of the items on his list, it was neither practical nor possible to comply with his request for prior notification of any time one of the items on his list would arise for discussion in the classroom. The Board also expressed the concern that if E.T.’s children were required to leave the classroom every time one of these topics came up for discussion, the Board’s policy of providing an inclusive and non-discriminatory program would be undermined.

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The reality is that when we send our children to a public school, we are co-parenting with the government. And the government has the final say. If you want 100% control over your child’s education, don’t send them to a public school. Education is a government service that is for all children, and the government and society have goals for the next generation. If equality and inclusivity conflict with your religious beliefs, you file a human rights complaint against a public school citing religion as your protected ground, you will probably get it dismissed. Schools are legislated to provide an inclusive and tolerant learning environment.

“The Board has a statutory mandate to provide an inclusive and tolerant educational environment, one that respects the principles of equality enshrined in s. 15 of the Charter.”

I also give you this case

Chamberlain v. Surrey School District No. 36, 2002 SCC 86

This is a case about parents’ religious objections to 2SLGBTQIA+ storybooks. The school board’s decision was not to approve books for use in kindergarten and grade 1 for fear of the parents’ religious concerns.

The court overturned the board’s decision because it conflicted with the statutory obligation that public schools have in British Columbia to separate religion from state affairs.  

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“The B.C. School Act confers on the Minister of Education the power to approve basic educational resource materials to be used in teaching the curriculum in public schools, and confers on school boards the authority to approve supplementary educational resource material, subject to Ministerial direction.  A Kindergarten‑Grade One (“K‑1″) teacher asked the Surrey School Board to approve three books as supplementary learning resources, for use in teaching the family life education curriculum.  The books depicted families in which both parents were either women or men — same‑sex parented families.  The Board passed a resolution declining to approve the books.  The Board’s overarching concern, as found by the trial judge, was that the books would engender controversy in light of some parents’ religious objections to the morality of same‑sex relationships.  The Board also felt that children at the K‑1 level should not be exposed to ideas that might conflict with the beliefs of their parents; that children of this age were too young to learn about same‑sex parented families; and that the material was not necessary to achieve the learning outcomes in the curriculum.”

The Result:

“The Board’s decision is unreasonable because the process through which it was made took the Board outside its mandate under the School Act.  First, the Board violated the principles of secularism and tolerance in s. 76 of the Act.  Instead of proceeding on the basis of respect for all types of families, the Board proceeded on an exclusionary philosophy, acting on the concern of certain parents about the morality of same‑sex relationships, without considering the interest of same‑sex parented families and the children who belong to them in receiving equal recognition and respect in the school system.  Second, the Board departed from its own regulation with respect to how decisions on supplementary resources should be made, which required it to consider the relevance of the proposed material to curriculum objectives and the needs of children of same‑sex parented families.  Third, the Board applied the wrong criteria.  It failed to consider the curriculum’s goal that children at the K‑1 level be able to discuss their family models, and that all children be made aware of the diversity of family models in our society.  Instead, the Board applied a criterion of necessity, which was inconsistent with the function of supplementary resources in enriching children’s experience through the use of extra materials of local relevance.  The Board erred in relying on concerns about cognitive dissonance and age‑appropriateness which were foreclosed by the curriculum in this case.” 

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Our society needs to stay the course and fight for an inclusive and equitable society for all people and especially for marginalized groups with deep historical roots in oppression. Public schools are essential in socializing the next generation towards inclusion.

If anyone has come across other cases that they feel are important to this topic, or are newer, I would love it if you could email me and let me know what they are.

kimbpath @ gmail.com

What is Rights-Based Advocacy?

This is my personal understanding and definition of rights-based advocacy. I would answer that question by saying,

“Rights-based advocacy is when you advocate through the lens of the human rights code, use various legal authorities and policies to support your advocacy, and are communicating to the school your child’s unmet disability-related needs. We then advocate for the school to remove the barriers our child is experiencing so they can access an equitable education.” 

For this blog, I am going to focus on the second part.  

Rights-based advocacy doesn’t just include policy and law, but we need to be able to communicate to the school that our child has disability-related needs, and that they are experiencing barriers.

Now, the bottom line is that this isn’t really our responsibility to figure this stuff out. It’s actually the schools, and this responsibility is connected to multiple human rights decisions.

However, teachers aren’t trained in every disability and every combination of disabilities, and we know our kids. This is the collaboration part of the accommodation part. They have a duty to consult with us. We can contribute and assist them in creating an effective IEP by helping them identify our children’s disability-related needs and help focus their thinking on being able to identify barriers so they can make a plan on how to remove them.  

People don’t naturally think in this way, so this is a skill we need to learn as well and help our kids’ teachers to think this way too.

The system needs a lot of work, but it’s not going to overhaul itself tomorrow. Today we aren’t living in our dream education fantasy land, we are living in a chronically underfunded resource constrained system with high rates of burn out.  So given the cards that we have been delt, what is the best we can do in this situation to support our children in school?

Whatever situation our child is struggling with in school we need to ask ourselves some questions.

  1. Is there an unmet disability-need here? (They could be experiencing all sorts of unmet needs, It may not be necessarily connected to their disability)
  2. If it is connected to their disability, what is the unmet need?
  3. What is the barrier preventing this unmet need being met?

Now let’s apply this to an example.

Ryan has ADHD. Ryan tends to be more distracted, moving around a lot at the end of the day, and is engaging in social behaviours that other students in the class don’t like. He is taking their pencils and erasers and hiding them, and is saying things (teasing/taunting) that evokes a reaction from them that is negative. This is consistent every day.

When the teacher relays this information to the parent, they think about it and later send an email to the school with their thoughts.

The parent first wonders what the disability-related needs could be related to this situation. People with ADHD need more movement, do better with creative hand on tasks, and struggle sitting. It can be physically painful for them to sit. Their bodies will force them to move. People with ADHD do very well on tasks they are interested in and it is extremely difficult to focus on tasks you have no interest in. They also can require more mental stimulation. Kids with ADHD also have higher relationship needs and connecting with their teacher so they can learn will be more important to them.

They think about these disability related needs and wonder how much movement Ryan is getting during the day, and why they are struggling more so in the afternoon. Their curiosity is that they are wondering if Ryan has been sitting to much during the day and is getting restless and bored with too much pen to paper work. Ryan is then doing things that they find are more mentally stimulating and creating drama in the class is more interesting than doing schoolwork.

Typical classrooms don’t fit the needs of a lot of kids with ADHD. The barrier could be a personal physical barrier – that he is forced to sit too long. The next barriers could be informational or communication – he may not understand the assignments or it fit how he processes information. Classroom teacher management could be the barrier – he finds the teacher too strict and after listening to this all day his more anxious and so he is distracting himself with other things.  It could be he is not interested in what he is working on, and his education isn’t hands on enough and too much pen to paperwork. It could be a relational barrier – he isn’t connected to his teacher and thinks his teacher doesn’t like him so he disconnects more at the end of the day wanting to leave and wish he wasn’t there. It could be an attitudinal barrier or teacher philosophy barrier – that they value pen to paper work over other ways of learning. It could be many barriers. It’s hard for us to know what the barriers are because we are not in school. So this is where communicating with our child’s teacher is going to be very important and to bring up the idea of barriers and trying to brainstorm together what the possible barriers could be.

Could creating more scheduled movement breaks during the day, replacing some of the written assignments with more hands on creative projects that are led by him decrease some of the behavoiurs we don’t want to see and improve his focus to help him last all day? Could the teacher making an effort to check-in with him more often during the day help with building the relationship?

We won’t really know what will work or what won’t work until we try it. We know our kids, but we don’t know what they are like in an education setting 5-days a week when we aren’t in the room and they are on their own. The environment they navigate in school to survive the day and home is completely different.

Even being aware of all of our child’s potential disability-related needs will most likely require us to do quite a bit of research and really know and understand our child’s disability. And then we need to consider their unique personality traits and who they are as people. Disabilities don’t present themselves exactly the same in every person. Disability is also fluid and what a person has capacity for on one day wont necessarily be consistent for all days. No wonder everyone is confused and accessibility can be a struggle.

The more we are informed, the more we can effectively advocate for our child.

For more information on types of barriers and accessibility law, please read my blog Barriers, Barriers, Barriers.

Welcome!

Hello, my name is Kim Block. I have 2 websites.

The one that you are visiting now is called Speaking up BC. My second one is called P.A.T.H – Parent. Advocacy. Tribunal. Help.

On this website (Speaking Up BC), my focus is on school and disability advocacy. The process of advocacy. The philosophy behind advocacy. Community advocacy. Systems. This website is my mic on a stage. (I will still be blogging about education law, human rights decisions, and all of the tools in our toolbox here. The blog lives on!)

My P.A.T.H wesite is all about how to navigate external complaint systems and information about education law. I also offer consultation services. We use external complaint systems as a toolbox within our advocacy, and education law as our tools. Filing external complaints can also bring about systemic change. So these two areas do go hand-in-hand. This website is my toolbox where I get to work. It’s where the action happens.

For those who have been following my journey, you will notice that pages and information from this website have been moved to my P.A.T.H website to create a clearer distinction between the topics.

Part 6 – Summer Series, Duty to Accommodate – Pulling it all together

The duty to accommodate is a collaborative process where everyone needs to work together to come up with a reasonable accommodation plan.

The accommodations don’t need to be perfect or ideal, just enough of “a ramp” to make accessing education equitable. And not a ramp that goes halfway up the stairs. The accommodations need to remove barriers – level the playing field and make it accessible. We aren’t looking for equal treatment, but equitable treatment.

1. What are the child’s disability-related needs?

    2. What are the barriers the child is experiencing? (Physical, technology, communication, attitudinal, etc)

    3. What are reasonable accommodations that will remove the barriers?

    These are rights-based questions.

    Summary

    Power of the Human Rights Code

    The Human Rights Code is very powerful. Our most powerful form of advocacy. It is the law above all laws. It supersedes all of other laws, Ministry policy, IEP policy, designation standards, administrative procedures, teacher autonomy, when in conflict.

    Students don’t need a designation or an IEP to be protected by the Human Rights Code and get accommodations for their disability related needs.

    ANYTIME the schools give you a reason for denying your child an accommodation, or are not protecting them from bullying, or they use policy in a way that you think is harmful to your child…. in steps the discrimination test.

    Parents are protected too, and can file a complaint under family status and the discrimination test applies to them.

    Discrimination Test

    1. Does your kid have a disability?
    2. Were they harmed
    3. Is the harm linked to their disability?

    Yes + Yes + Yes = Discrimination

    Impact is the focus. The harm your child has experienced. Not intent. They don’t need to intend to discriminate in order for their actions to create discrimination.

    The code protects students with disabilities and even perceived disability.

    Reasonable Justification Test

    Schools may be able to justify the reasonable accommodations your child is offered, or maybe not. It is going to be very context-specific to your situation.

    The school will use arguments to justify their behaviour that could include hindsight, safety, collaborative process (they are trying in good faith – not lack of resource related), reasonable accommodation, lack of resources or staffing, blame your child for not self-advocating enough etc. Whether these arguments are grounded in any truth, that is another question. Just because they have arguments doesn’t mean they are strong arguments or that they have evidence to back up what they are saying. We aren’t the only ones who need evidence.

    We need to always be communicating the harm that we are witnessing and how that harm is related to their disability.

    Meaningful Inquiry

    We need to disclose with documentation (ideally) to the school to protect our kids with the Human Rights Code and the Duty to Accommodate process.

    Once the disclosure is communicated to the school, they are now locked in and required to provide our children with a quality, equitable access to an education.

    We don’t need to use the word “accommodation” in order to trigger an investigation. We need to communicate that our child is struggling or experiencing harm due to “disability-related” needs.

    The school has the responsibility to investigate, figure out what the barriers are, and address them.

    The responsibility of bringing forward their accommodation needs does not fall on the shoulders of the student.

    We need to keep communicating and telling the school the harm we are witnessing and are aware of, and how this is connected to their disability. That’s our job. That’s how we engage the duty to inquire (Meaningful inquiry) that will start off the duty to accommodate.

    Emailing our concerns is creating that document trail that we need.

    Duty-to-consult

    You have lots of written authority to back up your right and your child’s right to be consulted on decisions that impact the quality and their participation in their education.

    Parents don’t have the final decision-making say, but before a decision is made, parents must be consulted. There should be enough time given to ensure parents can express their concerns and for them to be considered. That time will vary depending on the needs of the student.

    Duty-to-facilitate

    Schools have the final decision, and if we don’t facilitate that then we can have our human rights complaint dismissed. We may be seen as unreasonable.

    However, if their plans for reasonable accommodations don’t work, they have to keep on reviewing and adapting. They can’t give up. That will require us to keep collaboratively working with them, and documenting and communicating the harm.

    Final Message:

    My series about the duty to accommodate provides you the legal framework and rights-based content so that you have the information you need to ground your advocacy in written authority.

    The how-to fish in all of this is using the discrimination test. That is our sword. We need to disclose our child’s disability with evidence and continually communicate any disability-related harm that we are aware of. That is the magical HOW formula.

    What I am witnessing is that families who use human rights language in their advocacy emails are experiencing more success than families who are not.

    It doesn’t need to be about quoting case law, but even using language like these words can create more appropriate responses from schools.

    Language example:

    disability-related need

    equitable education

    removing barriers

    accessing their education

    accommodation

    consult/collaboration

    harm

    If you hit resistance, you have case law and the Human Rights Code to draw from. We are just asking for schools to follow the law. Some parents are nervous about using rights-based language. Pleasently persistent as an advocacy style can still use rights-based language. You can still have collaborative relationships with staff and use rights-based language. Collaboration is a KEY part of the accommodation process. Using rights-based language and advocacy through a human rights lens does not mean you are fighting anyone. You are simply enacting your child’s rights.

    Our children’s legal rights in education come from human rights case law. These cases were brought forward by parents. Parents wanting to change the system so that other kids don’t experience what their children did.

    In order for these cases to work their magic, they need to be applied. Law can sit there collecting dust if nobody does anything with it. It needs to be applied. You need to use it. We can change the system by all of us advocating through a human rights lens.

    The pen is your sword….well, email. 😉

    or speech-to-text

    or ChatGPT to help write emails

    You’ve got this! 🙌🙌🙌🙌

    Part 5 – Summer Series, Duty to Accommodate – Duty to Facilitate

    To review, we have completed our foundational work. We know the power of the Human Rights Code. We understand the 3-part question for the discrimination test, and the reasonable justification test. We started in on the action part of the Duty to Accommodate with meaningful inquiry, and the duty-to-consult, and now we are the final stage the duty to facilitate.

    The duty to accommodate is a collaborative process. The school district must consult with us and seriously consider our concerns, but the School Act gives them the power to make the final decision. Whether we like it or not.

    Having hard conversations is still collaborating. Respectful disagreement is still collaborating.

    Collaborating in good faith means you need to be honest, genuine, without trying to deceive, take advantage. It’s just really about having the best intentions from everyone when all engage in consultation, for the best interest of the child. When it comes to conversations, I offer you this excellent blog by The Canary Collective: From Power to Partnership: Changing how we talk to families.

    We can have respectful conversations and advocate fiercely at the exact same time. It’s not one or the other. Both parties have the expectation to collaborate in good faith as part of the accommodation process. At the same time, our advocacy conduct cannot be used against our child to deny them an equitable education.

    “Fierce advocacy” is even supported in case law.

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    L.B. v. Toronto District School Board, 2015 HRTO 1622

    [77]        The Interim Decision sets out my reasons for issuing an order with respect to the first two points, as follows:

    (a)      School boards have an obligation under the Code to accommodate their students with disabilities to the point of undue hardship, regardless of whether the students are receiving any medical treatment in the community or not;

    (b)      School boards cannot order or demand of parents to place their children into residential psychiatric treatment programs and cannot deny or withhold accommodations to the point of undue hardship on the grounds that the student should be in such a program. While I have no evidence to show that this was the case here, that does not alter the principle;

    (c)      School boards have an obligation under the Education Act to provide appropriate special education placements, programs and services to their exceptional students. Parental conduct or lack of parental authority cannot be used as a justification for not meeting an exceptional student’s needs; and

    (d)      I agree with the decision in R.B. v. Keewatin-Patricia District School Board, (R.B./Keewatin) 2013 HRTO 1436, an HRTO decision cited by both parties in this case, at para 265, that a parent’s “fierce advocacy” for his or her child must not and cannot prevent a school board from accommodating the child’s needs to the point of undue hardship.

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    So whether we fulfill our duty to work in collaboration with the school district the bottom line is that they are still required to meet an exceptional student’s needs. They cannot use our conduct against our child to not fulfill their duties to provide an equitable education.

    However…..

    Keeping that in mind, if we want to file a human rights complaint without at least giving their reasonable accommodation suggestions a chance, we will likely have our complaint dismissed. So our advocating or lack of can’t be held against our child, but if we don’t accept a reasonable accommodation, that can be. 👇👇👇👇

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    A and B obo Infant A v. School District C (No. 5), 2018 BCHRT 25 (CanLII)

    [248]      The School District is not the only party with obligations in the accommodation process. Rather, the parents were obliged, as the Child’s representatives, to work towards facilitating an appropriate accommodation: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. If the School District initiated a reasonable proposal that would, if implemented, accommodate the Child, then the Parents were obliged to facilitate that proposal. Failure to do so is fatal to their complaint of discrimination.

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    One message that has been a running theme in all of my posts is this: 👇👇👇👇

    We need to continually document any harm we are witnessing and email our concerns to the school. We need to connect the harm to any disability-related needs.

    While we do have the duty to facilitate a reasonable accommodation, if that reasonable accommodation doesn’t provide the ramp they think it will, they have the responsibility of continually adapting, reviewing and providing alternatives. They aren’t allowed to give up. 👇👇👇👇

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    X by Y v. Board of Education of School District No. Z, 2024 BCHRT 72

    [120] Ultimately, on a balance of probabilities, I am satisfied that the District discharged its duty to accommodate X in his grade 2 year by reviewing the Diagnosis Report, developing an IEP, making various support people and strategies available that were incorporated into the classroom and outside, reviewing progress and changes, and adapting its approach in response……

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    I want to pause here and mention independent schools. Public schools AND independent schools are still held to the same obligations under the Human Rights Code to provide a quality, equitable education.

    Independent schools may have a much easier time reaching the bar for the undue hardship test. If they don’t have the staff, resources, or money to meet the needs of your child, they may have a defence. Private schools are very different than public schools. They interview students and parents, many times, with parents providing reference letters. They can deny anyone they like. They don’t like the shoes you wear; they can deny you. They don’t have the funds that public schools do. Independent schools are very bold and confident when they deny kids entry and when they kick them out. Really, the best thing I can recommend parents is to consult with a lawyer. It will be VERY context dependent. Parents of private schools do file complaints against private schools and they do get settlements. It’s really up to you how much you want to test the system and push the line. Lots of kids when they become “too much” are getting kicked out. It’s heartbreaking for many families and kids as public school failed, and this was their hope. The only thing I can recommend to families is to consult with a lawyer and get the best legal advice you can get. Fast track your complaint; otherwise, waiting over a year to get a complaint to get accepted isn’t going to do your kid any good. Some parents send demand letters, but it is mostly for settlement and not to get them reinstated in the school. I highly suggest you consult with human rights lawyers if you want to fight it.

    Key Takeaways

    Schools have the final decision and if we don’t facilitate that then we can have our human rights complaint dismissed. We may be seen as unreasonable.

    However, if their plans for reasonable accommodations don’t work, they have to keep on reviewing and adapting. They can’t give up. That will require us to keep collaboratively working with them, and documenting and communicating the harm.

    Next Blog

    We are at the end.

    Next week’s post is pulling everything together and a final heartfelt message.

    Part 4 – Summer Series – Duty to Accommodate – Duty to Consult

    We are plowing through the duty to accommodate. We know how powerful the human rights code is, and we understand the discrimination test and the reasonable justification test. We have looked at the first part of the duty to accommodate and how we trigger meaningful inquiry. Now we are moving to the next step – duty to consult.

    How the duty to consult (meaningful consultation) is defined in education came from a human rights case decision. For some people, they would really like meaningful consultation to be more defined, but it is going to be different for every student. One student may only need a 30-minute IEP meeting. Another student may need multiple IEP meetings. IEPs are also living documents that can be updated and adapted at any time of the year. You don’t need to wait for IEP season to come around in the fall to meet with the school team. Some schools have been sending out notices that say each parent gets a 30-minute IEP meeting. Or, they aren’t even getting a meeting. The staff are meeting and they are sending home the IEPs and getting parents to offer feedback on the already created IEP through email.

    We all understand that schools are under constraints.

    BUT

    It doesn’t matter.

    The human rights code prevails. And meaningful consultation is attached to human rights case law. Meaningful consultation will trump a 30-minute restriction on an IEP meeting. If you think that you haven’t been consulted on items and the IEP is incomplete or your child needs accommodations that they aren’t receiving, you have the Human Rights Code behind you. At the bare minimum, they need to consult with you. It needs to be “meaningful”.

    So, now let’s dive in and, as always, we start by looking at the written authority. There is a lot of it backing up the ability to consult with the school.

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    Hewko v. B.C., 2006 BCSC 1638 (CanLII)

    Duty to Consult

    [342]      The relevant statutory provisions with respect to a School District’s obligation to consult with parents and students are found in the School Act, and in particular, ss. 4 and 7.

    [343]      Section 4 of the School Act provides that: “A student is entitled to consult with a teacher, principal, vice principal or director of instruction with regard to that student’s educational program”.

    [345]      Section 7(2) affords the parent the right to consult with school staff regarding their child’s educational program:

    A parent of a student of school age attending a school may, and at the request of a teacher, principal, vice principal or director of instruction must, consult with the teacher, principal, vice principal or director of instruction with respect to the student’s education.

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    So, to start us off, we have the School Act. This is a law. The Ministry wants school districts to be consulting with students and parents.

    Also, note that students are entitled to consultation too. So if they are receiving a suspension and your child didn’t get a chance to explain their side of the story before the decision was made, you can take this section of the School Act and request a meeting, or it can be part of the Section 11 appeal you file.

    Ok, let’s continue on because we have a lot more written authority that backs up the duty to consult. 👇👇👇👇

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    [346]      The Individual Education Plan Order and the Mandate for the School System adopted by B.C. Order-in-Council 1280 (August 30, 1989), also require that the parents of special needs students be afforded the opportunity to be consulted about the nature of their children’s education.  Pursuant to s. 4 of the Individual Education Plan Order, school boards are required to consult with the parents of special-needs students about the content of the individual education plan for each student.  It provides:

    Where a board is required to provide an IEP for a student under this order, the board…must offer a parent of the student…the opportunity to be consulted about the preparation of the IEP.

    [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.

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    So, where the School Act is a law, we have now moved on to orders by the Ministry. And this is all from the same human rights case that I listed above.

    Now we get into the details of what all of this means. This is also from the same case.

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    [361]      It is possible to summarize some very general principles which inform or provide content to the duty to consult from the above cases.

    1.         Before any decision is made regarding the placement of a child within the school system and the persons who will have the responsibility to implement an IEP, the parents must be consulted.

    2.         The depth of consultation and the concomitant obligations for the parties to accommodate the requirements of the other will vary with the known need of a child’s requirement for a modified curriculum.

    3.         All necessary information in regard to either parties’ position on a proper placement and IEP must be provided in a timely way so that each will have an opportunity to express their interests and concerns and sufficient time to ensure that their representations are seriously considered and wherever possible demonstrably integrated into the proposed plan.

    4.         Each party to consultation has an obligation to provide timely information and an obligation to make whatever accommodations are necessary to effect an educational program which is in the best interests of the child.

    5.         In coming up with a placement and an IEP for a child with autism or Autism Spectrum Disorder, Dr. Foxx’s opinion as set out below should be regarded as the most significant underlying principle for meaningful consultation “the program will not work unless everybody sign on to it.  And the reason they sign on to it is because it’s a program that makes absolute sense to all parties.  It has to be designed as a win-win for everyone so that all the parties understand.”

    6.         The parents of a special needs child do not have a veto over placement or the IEP.  Meaningful consultation does not require agreement by either side – it does require that the school district maintain the right to decide after meaningful consultation.

    7.         The bottom-line requirement for each side in a meaningful consultation is to be able to demonstrate that the proposal put forward can produce instructional control of the child.

    *********

    Lots of stuff from here. Parents don’t have the final decision-making say, but before a decision is made, parents must be consulted. There should be enough time given to ensure parents can express their concerns and for them to be considered. That time will vary depending on the needs of the student.

    The British Columbia Council of Administrators in Inclusive Education put out a whole guide on meaningful consultation.

    So if you run into any issues with the school not consulting with you, you have this guide from the administrator organization, Ministry orders and school law and what trumps and enforces all of that is the duty to consult in this human rights decision. In theory, no one should be having ANY issues with consultation.

    Which means…. if schools are ignoring you… and I know this happens. You have everything you need to take your issues to the person who is above them. Administrators absolutely should not ignore your emails. Especially when you are outlining your concerns and highlighting how they are connected to your child’s disability-related needs. That is a HUGE no-no. The meaningful inquiry process should be triggered, and the exploration of possible accommodations, if necessary, should begin, which will need to include you for consultation.

    Many school districts on their website have documents related to consultation. The Ministry of Education’s document on Inclusive Education has the word “consult” in the document 73 times. With the extent of written documentation on consultation, clearly, no parent should be getting the silent treatment.

    Key Takeaways

    You have lots of written authority to back up your right and your child’s right to be consulted on decisions that impact the quality and their participation in their education.

    Parents don’t have the final decision-making say, but before a decision is made, parents must be consulted. There should be enough time given to ensure parents can express their concerns and for them to be considered. That time will vary depending on the needs of the student.

    Next Blog

    We will be wrapping up the ACTION parts of the duty to accommodate with the duty to facilitate and some other key items around school responsibilities, and then the final blog will be pulling it all together with a final message.

    We are almost at the end!

    Part 3 – Summer Series – Duty to Accommodate – Meaningful Inquiry

    We have completed our foundational work. We know the power of the Human Rights Code. We understand the 3-part question for the discrimination test, and the reasonable justification test. Now we are focusing on the action part of the Duty to Accommodate.

    How do we trigger the Duty to Accommodate?

    We disclose our child’s disability. That is the on button.

    That means by submitting documentation. This locks the school district in without any wiggle room. If that documentation isn’t possible, we want to send the disclosure to the school via email. The school needs to be aware that they are on a waitlist, or receiving professional supports for their disability, or that you suspect that they have a disability and you would like further testing, etc.

    I know there are different mixed feelings about this. Some people don’t like that disclosure is necessary, but to legally protect yourself, it is essential.

    Here is why disclosure is necessary.

    Duty to inquire.

    For example, I will use employment as an example. This is just an example for example’s sake. Let’s say you start arriving late at work every morning and your employer fires you for your lateness. If they knew that you had a disability, they would have a duty to inquire to see if your disability was related to your lateness. If you said yes, then they would need to offer you accommodations. Maybe a flexible work schedule, or working from home in the morning, etc. But, if you don’t disclose and they fire you and you come back and say it’s discrimination because your lateness is connected to your disability, they are off the hook. They didn’t know. They didn’t have the duty to inquire. By not disclosing, you aren’t locking them into certain obligations. I offer this blog from the BC Human Rights Clinic.

    Do schools have a duty to inquire?

    Yes! And it has been referred to as meaningful inquiry.

    Let’s start with the written authority. 👇👇👇👇

    Student (by Parent) v. School District, 2023 BCHRT 237

    [75]           The “duty to inquire” is a human rights obligation which arises where the student is facing some adverse impact in their education – ie. discipline, poor grades, lack of meaningful access – and the school is aware, or ought reasonably to be aware, that a student’s disability may be a factor in that impact: eg. Martin v. Carter Chevrolet Oldsmobile, 2001 BCHRT 37 at para. 29; Aydogmus v. York University, 2021 HRTO 176 at para. 59. The purpose of this inquiry is to identify and remove disability-related barriers to a successful education, likely through the process of accommodation. 

    So we have the school being aware of harm connected to a students disability, and the point of the “inquiry” is to identify AND remove barriers that are “disability-related” through the accommodation process.

    Lovely.

    This kicks off the accommodation process. We have our foot in the door by identifying the school disability-related harm.

    Also pointed out in this case, as by now we all know:

    [89]          …………the respondent is not responsible to accommodate disability-related needs that it was not aware of or could not reasonably have been aware of.

    Something important to note here, too, is that when we are expressing our kids’ struggles:

    [96]           On balance, I am not persuaded that the District’s response to the situation after April 24, 2019, was a reasonable one. The Parent had brought forward relevant facts of the Student’s diagnoses and the toll that school was taking on her. I do not accept that the onus was entirely on the Parent or Student to utter the magic word of “accommodation” before the school took steps to explore the reasons that the Student’s mental health was being so impacted by school. Nor do I accept that the simple fact that a 13-year-old child with anxiety says they are “fine” is enough to end a school’s obligations. At this point, the school had enough information to understand that something at school was adversely impacting the Student in connection with her disabilities, and it was in the best position to investigate the causes. If it felt it needed more information from the Parent or the Student, it could have and should have asked. Again, the goal is to ensure that the Student is afforded equitable access to an education.

    We don’t need to specifically say: Can my child have accommodations? The school should be identifying this and the school needs to ask us for more information so that they can do their job in giving our kids an equitable access to an education. Bottom line, they need to fulfill their obligations to the student as they are responsible for providing the service.

    Ok, so now let’s move into meaningful inquiry and how this case locked in the duty to inquire in an education setting.

    [99]           Next, in B v. School District, 2019 BCHRT 170, the evidence supported that the school district provided the child with the recommended supports and accommodations. The Tribunal found that it was “only with hindsight” that it was possible to say that the child could have benefited from more support: para. 81. It dismissed the complaint in part because there was insufficient evidence to demonstrate that the school district reasonably ought to have known that the child required more: para. 98. In contrast here, I have found that the District had sufficient information to trigger some kind of inquiry or response beyond asking the Student how she was doing and, assuming the counsellor did this, advising of available supports.

    [100]      In short, I agree with the District that the Parent and Student were obliged to bring forward information relating to accommodation. The Parent did that, when she communicated that the Student had anxiety and trichotillomania and that school was taking a significant toll on her physical and mental health. That information should have been enough to prompt a meaningful inquiry by the school to identify what was triggering the Student’s symptoms and what supports or accommodations may be appropriate to ensure she was able to meaningfully and equitably access her education. The failure to take that step was, in my view, not reasonable. As a result, the disability-related impacts on the Student, arising from conditions in her Language 10 class between April 24 and June 27, 2019, have not been justified and violate s. 8 of the Human Rights Code.

    [104]      In sum, I have found that the conditions in the Student’s grade 8 Language 10 class exacerbated the Student’s anxiety and trichotillomania, and that the District failed to take reasonable steps to investigate and address those conditions during the period between April 24, 2019, and June 27, 2019 (the last day of school). I find this is a violation of s. 8 of the Human Rights Code, and warrants a remedy, which I address below.

    It is on the school to INVESTIGATE and address the conditions.

    They can’t just accept that they are witnessing students struggling. They need to be actively investigating to figure out what the barriers are (not parents’ responsibilities to identify these as we aren’t in school with our kids) it is them that need to investigate, figure out the barriers and address them.

    We express disability-related harm that our kids are experiencing in school and we are now engaged in the duty to accommodate.

    Kids are not responsible for bringing forward their own accommodation needs.

    [90]           Generally, it is the obligation of the person seeking accommodation to bring forward the relevant facts: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. This can be challenging for children, and especially challenging for children with invisible disabilities. I agree with the Parent that children who require accommodation in their school are in a different situation than adults seeking accommodation. Though they have a role to play in the process, that role will be age and ability-specific, and the burden cannot be on a child to identify and bring forward the facts necessary for their accommodation.

    Key Takeaways

    Step One: We need to disclose with documentation (ideally) to the school to protect our kids with the Human Rights Code and the Duty to Accommodate process.

    Once the disclosure is communicated to the school, they are now locked in and required to provide our children with a quality, equitable access to an education. It’s all about removing barriers so our kids get an equal playing field. They get a chance, an opportunity, at success just like anyone else.

    We don’t need to use the word “accommodation” in order to trigger an investigation. We need to communicate that our child is struggling or experiencing harm due to “disability-related” needs.

    The school has the responsibility to investigate, figure out what the barriers are, and address them.

    The responsibility of bringing forward their accommodation needs does not fall on the shoulders of the student.

    We need to keep communicating and telling the school the harm we are witnessing and are aware of, and how this is connected to their disability. That’s our job. That’s how we engage the duty to inquire (Meaningful inquiry) that will start off the duty to accommodate.

    Emailing our concerns is creating that document trail that we need.

    Next Blog

    We are now into the next part of the process, the duty to consult (meaningful consultation)

    Part 2 (B) – Summer Series – Duty to Accommodate – Reasonable Justification

    Welcome back! In the first blog we looked at just how powerful the Human Rights Code is. Second blog, we looked at the first part of the discrimination test. Now for the second part of the discrimination test. We are now going to be looking at the reasonable justification test.

    We know the 3 questions now for the discrimination test that we need to argue and prove. Now the school district will have an opportunity to justify it.

    In my experience and from hearing TONS of parents struggling with advocacy situations, I have noticed there are a few patterns in the types of arguments.

    1. They will blame you
    2. They will blame your child (not self-advocating enough seems to be a popular one)
    3. They will act all confused
    4. They will blame a lack of resources (Eg. staffing, time or money)
    5. Safety of staff/your child

    Dealing with the arguments and justifications from the school district tends to be stressful for parents, and it is understandable. It is context-specific, and it gets very fuzzy. It is a case-by-case situation. The more knowledge you have on how they can or cannot justify things, I promise you, you will be able to make better advocacy decisions.

    So we begin.

    We start with written authority. 👇👇👇👇👇

    **********

    Here is the “bona fide” and reasonable justification test.

    “British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 at para. 20. Once a complainant proves that a protected characteristic was a factor in adverse treatment regarding a service, the respondent can defend itself by proving that it had a “bona fide and reasonable justification” for its behaviour. It has to show:

    1. its behaviour was for a purpose or goal that is rationally connected to the function being performed;
    2. it behaved in good faith; and
    3. its behaviour was reasonably necessary to accomplish its purpose or goal, in the sense it cannot accommodate the complainant without undue hardship.”

    *********

    What does this actually mean?

    Basically….this 👇

    1. Based on the goals of the education system their decision made sense. It was rational behaviour. (**Remember their goals are a quality education for all students. So, based on this goal, was their behaviour rational?)
    2. The decision was in good faith. (honest)
    3. The denial of the accommodation was necessary to accomplish the goal of the education service and if they provided the accommodation, it would create an undue hardship for the organization/business. (Eg. They financially couldn’t sustain themselves, or it would be too much of a financial burden)

    (Just a little inside information: this is a high bar for a public system to meet if denying accommodations, said human rights lawyer I met with. Independent schools are different – more on this later.)

    Common Justification Arguments

    1. Hindsight

    If the school can say, they didn’t know. Then they are off the hook. For kids who mask, this is a big one.

    Student (by Parent) v. School District, 2023 BCHRT 237

    [99]           Next, in B v. School District, 2019 BCHRT 170, the evidence supported that the school district provided the child with the recommended supports and accommodations. The Tribunal found that it was “only with hindsight” that it was possible to say that the child could have benefited from more support: para. 81. It dismissed the complaint in part because there was insufficient evidence to demonstrate that the school district reasonably ought to have known that the child required more: para. 98.

    So, in order to stop the school from arguing this, we must communicate when our child is struggling (harm) and link it to their disability. Send in those emails. Then they cannot claim hindsight. It will also trigger meaningful inquiry. (more on this on Wednesday)

    2. Reasonable accommodations

    They can argue that the accommodations are reasonable. They don’t need to provide the ideal accommodations, just enough for your kid to equitably access their education.

    X by Y v. Board of Education of School District No. Z, 2024 BCHRT 72

    [112] Accommodation requires a reasonable, not a perfect solution: Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970 [Renaud]. While there may have been other approaches available to the District, this does not necessarily render the one taken unreasonable. What is reasonable and what constitutes undue hardship is fact specific and will turn on the specific circumstances of a particular case: Renaud.

    Kids are legally entitled to accommodations that provide a ramp. It doesn’t mean it needs to be perfect, but the ramp can’t go halfway up the stairs or be at a 90-degree angle, making it impossible to use. If the reasonable accommodations are not working and causing harm, this is where we need to continually document the harm and show the school that the ramp they provided isn’t really a ramp, and the access to education isn’t actually happening.

    3. Accommodation is a Process

    They can argue that they are trying in good faith and that they aren’t giving up. And the other side of the coin is that if they aren’t doing this, then we can use this case as advocacy.

    X by Y v. Board of Education of School District No. Z, 2024 BCHRT 72

    [120] Ultimately, on a balance of probabilities, I am satisfied that the District discharged its duty to accommodate X in his grade 2 year by reviewing the Diagnosis Report, developing an IEP, making various support people and strategies available that were incorporated into the classroom and outside, reviewing progress and changes, and adapting its approach in response……

    The duty to accommodate is a collaborative, ongoing process that requires the participation of both parties to be engaged in good faith. The school was doing that by continually adapting their approach. So if they want to claim they are doing this, it means they can’t give up on your kid. This case is the written authority that will back up your arguments that they have to keep going and keep trying different accommodations. And since they have a duty to consult, and the duty to co-operate in good faith is already there, then as long as they are working, collaborating with you and consulting with you and they keep on trying, they may be able to argue successfully that this is part of the accommodation process. For parents who have their emails ignored, meeting requests ignored, I don’t see how they would be able to argue that what they are doing is part of the natural collaborative process of the accommodation process. ** This is going to be very context-specific and case-by-case. I would recommend you consult a lawyer if you are not happy with what is happening and wonder if what your child is experiencing is a human rights violation.

    4. Self-Advocacy

    Many times, they blame the student for not advocating enough, and therefore, they didn’t know and can claim hindsight. I offer you this beauty.

    Student (by Parent) v. School District, 2023 BCHRT 237

    [90]           Generally, it is the obligation of the person seeking accommodation to bring forward the relevant facts: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. This can be challenging for children, and especially challenging for children with invisible disabilities. I agree with the Parent that children who require accommodation in their school are in a different situation than adults seeking accommodation. Though they have a role to play in the process, that role will be age and ability-specific, and the burden cannot be on a child to identify and bring forward the facts necessary for their accommodation.

    It’s not on the child. It’s on the adults. We need to keep communicating via email so that they know that your child is struggling.

    5. Parents are not facilitating the school’s decision

    The School Act gives the school the authority to make the final decision regarding your child’s education. They have a duty to meaningfully consult with you (more on this later), but the final say is theirs. If parents don’t “facilitate” that decision, your human rights complaint may be dismissed.

    A and B obo Infant A v. School District C (No. 5), 2018 BCHRT 25 (CanLII)

    [248]      The School District is not the only party with obligations in the accommodation process. Rather, the parents were obliged, as the Child’s representatives, to work towards facilitating an appropriate accommodation: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. If the School District initiated a reasonable proposal that would, if implemented, accommodate the Child, then the Parents were obliged to facilitate that proposal. Failure to do so is fatal to their complaint of discrimination.

    [249]      I find that, at all times, the school was complying with the terms of the Child’s IEP by providing him with, among other things, sensory breaks and one-on-one support from the School Counsellor. The challenges associated with the Child’s interactions with D, however, required a different approach. The Principal and other school employees attempted to work with the Parents to develop an approach that would take into account the Child’s needs. The parents were apprised of each incident, but this only seemed to elicit more conflict rather than constructive dialogue. The Principal and other school officials attempted to engage the parents in discussions about reducing conflict with D, and developing a safety strategy for the Child, but the parents refused to consider the solution. This was an unreasonable position, which failed to account for the fact that the District also had obligations towards D: McCreath v. Victoria Taxi (1987) Ltd., 2017 BCCA 342.

    6. Saftey

    Student Y by Grandparent S v. Board of Education of School District No. X, 2024 BCHRT 353 

    [8]               During kindergarten, Student Y was referred to the school’s inclusion support team due to her escalated behaviour, which the School District says included physically aggressive behaviour towards other students and staff, escaping, and verbally protesting classroom activities. At that time, the school designated Student Y as Category H: Intensive Behaviour/Severe Mental Health. The designation remained in place for the duration of Student Y’s attendance at the school. The materials before me do not further explain the meaning or consequences of this designation.

    52] From the materials before me, I am satisfied that the School District was actively and intensively involved in attempting to accommodate Student Y’s disabilities from the time that Student Y was in grade one up until the time that she was excluded from school in grade three. However, the question before me on this application is whether the School District is reasonably certain to prove that it “could not have done anything else reasonable or practical to avoid the negative impact on the individual”: Moore at para. 49 [Emphasis mine]. In my view, there is a lack of information in the materials before me that would allow me to conclude that the School District is reasonably certain to do so.

    So, we have a student who was “included physically aggressive behaviour towards other students an staff” and the tribunal is still looking at the school district to see if there was “anything else reasonable or practical to avoid the negative impact on the individual”. Please note that “anything else” is very open-ended and trying different placements that you may not agree with may still be viewed by the tribunal as part of the accommodation process and may fit the justification test. School districts need to balance the needs of staff and students AND still provide your child with an accessible education. This will be VERY context-specific and case-by-case. I suggest you reach out to an advocate at Inclusion BC or Family Support Institute if you need assistance with advocating.

    7. We don’t have the money or staff

    When we think of the undue hardship test in terms of a financial hardship, this case is very important to keep in mind.

    ***********

    Kerber v Alberta, 2025 ABKB 98 

    [152]      The Charter guarantees equal access to education for all students; the corollary effect is that that the equitable principle must be applied in times of labour or resource shortages.  Here, what is apparent is that there was no consideration of how the reduced resources could be redistributed among all students.  It was assumed that minimal disruption to the system would result by targeting only a sub-set of students – those who use an EA. However, this approach failed to consider that non-disabled students might suffer the least amount of harm since they do not have the same disadvantages as the students with disabilities and could adapt to an at-home learning program more easily, i.e., some non-disabled students switch to at-home learning to free up more resources for complex-needs students, or some of them, to attend school in-person even with the EAs presently unavailable.

    **********

    The moral of this court story is that resources need to be spread around equitably among all the students. Not everyone is going to get the same size slice of the pizza. But each person should get the size of the pizza slice that they will need to fill their hunger. Some will need more. Some will need less. Equitable distribution.

    Here is my rant about staffing, budget, and resources as reasons to deny accommodations. Understandably, the system is chronically underfunded. We are all aware of this. On the surface, it sounds like a very logical argument. BUT. IT. STILL. DOESN’T. MATTER. Your child is legally entitled to an equitable education by law. If your child needs a 10 and all they get is a 5, and we accept the 5, then tomorrow they will get a 3. NOPE! The system needs to figure it out. We need to push the line or there will never be any changes in the system. It is not my job to make it easier for them to keep the status quo or make the system comfortable with “as is”. If they are having problems meeting the needs of their students, then they had better be the ones going back to the Ministry and explain to them how their policies, budget allocation, and structures of education are making it difficult to meet their legal obligations. If we want the system to change, then we can’t accept it. We need to push. AND if you are in a district where senior administrative staff got ridiculous salary increases, good luck to them trying to justify that to the BC Human Rights Tribunal while saying they can’t afford supports for your kid. (You can compare the salary changes on their budget pages. Look for their Statement of Financial Information reports.) Ok. rant over.

    I can tell you that human rights complaints get accepted when the reasons for accommodation denial are not enough staff. Your child should not be without a quality education because of adults designing and maintaining a system that didn’t take their needs into consideration.

    Ok, phew! This has been a heavy blog. We are almost done.

    Please note:

    This is not an exhaustive list. There are so many different types of disabilities and different advocacy situations that parents find themselves in that there just isn’t enough case law to cover every situation and every possible defence. If you have any questions please please contact the BC Human Rights Clinic or Disability Alliance for consultation services if you want legal advice on human rights.

    In addition:

    Not all negative experiences are discrimination.

    X by Y v. Board of Education of School District No. Z, 2024 BCHRT 72

    [110] ….I accept that these incidents which X relayed to Y were upsetting to X. I appreciate that the interactions may have fed into X’s general feelings of unease at school, but the fact alone that these events may have happened is not enough, in itself, to establish that X’s disability factored into them. Not all negative experiences are discrimination. Even accepting that these incidents occurred, I did not hear evidence that could establish, on a balance of probabilities, that X’s disability was a factor in the conduct of the adults involved in these interactions.

    This is why, when there is a connection to the harm and our child’s disability, we are going to need to be very explicit about it in our email communication.

    Key Takeaways

    Schools may be able to justify the reasonable accommodations your child is offered, or maybe not. It is going to be very context-specific to your situation. But there are some general arguments to be aware of and the case law associated with them, as some can be excellent advocacy tools.

    The school will use arguments to justify their behaviour that could include hindsight, safety, collaborative process (they are trying in good faith – not lack of resource related), reasonable accommodation, lack of resources or staffing, blame your child for not self-advocating enough etc. Whether these arguments are grounded in any truth, that is another question. Just because they have arguments doesn’t mean they are strong arguments or that they have evidence to back up what they are saying. We aren’t the only ones who need evidence.

    We need to always be communicating the harm that we are witnessing and how that harm is related to their disability.

    If you ever need advice, please see legal consultations with a lawyer or legal advocate at BC Human Rights Clinic or Disability Alliance.

    Next Post Coming Up

    Now we dive into the process of the Duty to Accommodate.

    What are the steps that we need to take? How do we trigger the process and what are the expectations for both parties as we move through this collaborative process?

    The next blogs will be less intense, I promise. We just needed to get through some very important foundational work. And we did it, woohoo!

    See you later!

    Part 2 (A)- Summer Series, Duty to Accommodate – Discrimination Test

    Review from last week:

    Our first blog in the series we looked at how the Human Rights Code is the law above all other laws and policy, when in conflict. It is our most powerful advocacy tool.

    Today we are going to look at the discrimination test piece by piece. But first, before we dive deep, an overview of the complete 2-part test.

    Section One: Foundation Overview

    Before we discuss we need to read the written authority where all of this comes from. This is from the BC Human Rights Tribunal Website. This is THE discrimination test.

    ********

    Leading cases: Test for discrimination

    “Moore v. BC (Education), 2012 SCC 61
    To prove discrimination, a complainant has to prove that:

    1. they have a characteristic protected by the Human Rights Code [Code];
    2. they experienced an adverse impact with respect to an area protected by the Code; and
    3. the protected characteristic was a factor in the adverse impact.

    Once a complainant proves these three things, the respondent can defend itself by proving its conduct was justified. If the respondent proves its conduct was justified, then there is no discrimination. If the respondent’s conduct is not justified, discrimination will be found to occur (para. 33).”

    3 questions.

    1. Does your child have a disability?
    2. Did they experience harm?
    3. Was the harm connected to their disability?

    Here is the “bona fide” and reasonable justification test.

    “British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 at para. 20. Once a complainant proves that a protected characteristic was a factor in adverse treatment regarding a service, the respondent can defend itself by proving that it had a “bona fide and reasonable justification” for its behaviour. It has to show:

    1. its behaviour was for a purpose or goal that is rationally connected to the function being performed;
    2. it behaved in good faith; and
    3. its behaviour was reasonably necessary to accomplish its purpose or goal, in the sense it cannot accommodate the complainant without undue hardship.”

    I will explain this more in plain language next week. Just realize that the second part of the test exists and they can justify their actions.

    ********

    In human rights decisions, it is very common to see paragraphs like this before they explain their decision, reviewing the discrimination test.

    Mother obo Child v. Daycare, 2024 BCHRT 251

    [24]           To prove their complaint at a hearing, the Child will have to prove that he has a characteristic protected by the Code, he was adversely impacted in services, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If he does this, the burden would shift to the Daycare to justify the impact as a bona fide reasonable justification. If the impact is justified, there is no discrimination.

    Key word here is “impact”

    Because, and this is important…

    From the Human Rights Code, Section 2

    ********

    Discrimination and intent

    2  Discrimination in contravention of this Code does not require an intention to contravene this Code.

    ********

    You don’t have to mean to discriminate, to discriminate. It’s not about the person’s intentions. It’s about the impact. You can have a teacher who didn’t mean to discriminate, but the impact has been harm. My children have been denied accommodations by education staff who are following the school culture and normalization of accommodation denial or were professionally unaware/untrained. The impact of their behaviour and decisions was still very harmful. LOTS of kids are slipping through the cracks in the system. It’s not because we have a mass widespread issue of mean teachers cackling over accommodation denial. It’s not about their intentions.

    Now let’s break this down and really examine the discrimination test:

    Section Two: Question #1

    1. Does your child have a protected characteristic under the BC Human Rights Code?

    Physical disability and mental disability are protected grounds. There are 2 really important parts to this that we need to discuss.

    a. Diagnosed Disability

    One important thing in this process is that you need to provide documentation that your child has a physical and/or mental disability. That requires a doctor’s letter or assessment of some kind. Your child’s school will need to have a copy of this documentation as evidence that they have a protected characteristic.

    Parents sometimes are scared to get their kids diagnosed and fear that the label is going to hold them back in life. One VERY important aspect of getting a diagnosis and getting documentation from a doctor is that it will ensure, without a doubt, that your child has a protected characteristic under the Human Rights Code. This is THE ticket that will protect your kids and give you advocacy power. Not only in their school years, but post-secondary years and in their employment. Diagnoses can be a gift you give your child. For more info on the benefits of a diagnosis, I offer you this blog for consideration.

    In Student (by Parent) v. School District 2023 BCHRT 237, a letter from her doctor was provided to the school and placed in her school file. This is what locked the school district in and triggered the meaningful inquiry decision in favour of the student. (more on this in future blogs)

    Providing documentation is very important. If your child has a diagnosis of Generalized Anxiety Disorder, Depression, or ADHD. Even if there is not a designation attached, I HIGHLY recommend that parents get a doctor’s letter and give it to your child’s school. As soon as you do that, they are now locked in. It doesn’t give the school district staff or lawyers any wiggle room to argue it. One tick in the check box is done. ✅

    b. Undiagnosed disability

    Now, what about those kids who are PERCEIVED to have a disability and just haven’t received a formal diagnosis yet. Maybe on a waitlist. Are they protected?


    Yes! This case is from 1993 in BC.

    Silzer v. Chaparral Industries (86) Inc., 1993 CanLII 16481 (BC HRT)


    “54]    In any event, it is well-established that the protection against discrimination on the basis of disability includes perceived disability: 
    Hamlyn v. Cominco Ltd. (1989), 1989 CanLII 9050 (BC HRT), 11 C.H.R.R. D/333; 
    Biggs v. Hudson (1988), 1988 CanLII 8918 (BC HRT), 9 C.H.R.R. D/5391 (B.C.H.R.C.). It is clear that Chaparral perceived Silzer’s health problems, singly or in combination, as a significant disability, possibly impeding his ability to work without endangering himself and others and entitling him to long-term disability benefits. I find that these facts come within the scope of “mental or physical disability.”

    A recent daycare case is an excellent case to keep in your back pocket.

    Mother obo Child v. Daycare, 2024 BCHRT 251, it was recommended by the daycare that the child be assessed for Autism and he was perceived by the daycare staff to have a disability. The child was protected under the Human Rights Code. If there is any confusion about whether your child will be protected, I high recommend you consult with BC Human Rights Clinic or Disability Alliance. To read more about this daycare case, I recommend this blog.

    If you are relying on their perceived disability, you are going to need documentation that the school in fact does perceive them to have a disability. If there is any way here for the school/lawyers to wiggle out of a human rights complaint and say your child is not being perceived to have a disability, here is the area of wiggle room. Email communication with your child’s school is extremely important.

    Section Three: Question #2

    2. Are they experiencing any adverse effect?

    This is about harm.

    Is your child refusing to go to school? Are they struggling? Loss of self-esteem? Do they feel negatively about themselves because of their struggles? Are they losing sleep? Are they crying? Having meltdowns? Are they not able to attend or allowed to attend school full-time? Are features of their disability being exacerbated? Were they embarrassed, or did they not experience accommodation in a dignified way? Were they prevented from participating in any way and missed out on an experience other kids were getting to experience?

    We need to have evidence of the harm. So if they are picking their skin, absenteeism has skyrocketed, if they are crying when they talk about school, if they are coming home with injuries from being bullied, we need to record and document all of it. Videos. Photos. Email communication with the school. Counsellor appointments. As much documentation as you can.

    Section Three – Question #3

    3. Is there a connection between the harm and their disability

    This is where it can get tricky, depending on the situation. For example, if you are requesting movement breaks for your kid with ADHD, because they need regulation and it’s being denied, you can connect that accommodation request to a feature of an ADHD disability related need.

    But now let’s say they are being bullied. Do you know for sure that it is connected to their disability? Do you have evidence or a logical argument for the connection? One parent’s attempt at HR complaint over this connection was not accepted.

    If they have a learning disability and they need speech-to-text access, and they are being denied this, it is a clear link to the harm and their disability. Schools need to remove barriers.

    We need to be able to explain how the harm they are experiencing is connected to their physical or mental disability. Most of the time I think it can be very clear, but sometimes it can get fuzzy. Or at least the lawyers like to argue the fuzziness in the complaint process.

    **** This is a very important rights-based advocacy note. When we advocate we need to explain this part very clearly in our email communication. How the harm that is occurring is connected to our child’s disability. The school then has the job to investigate what the barriers are and actively work at removing them. But the harm – disability connection is something we want to make crystal clear. Crystal clear.

    Section Four – Do I have a human rights complaint?

    Parent(s)/guardians always want to know when talking about their situation, do I have a human rights complaint?

    On the complaint form with the BCHRT, you will need to explain your situation by answering the three questions. If you can answer the three questions, then you have the info you need to fill out the form, and the tribunal will determine if it will be accepted or not.

    1. Does your kid have a disability?
    2. Were they harmed?
    3. Is the harm linked to their disability?

    Yes + Yes + Yes = Discrimination

    Whether the discrimination is legal or not, that is the next question. But to fill out the form, the justification part isn’t your job. That’s the school districts.

    The justification part is another part of the discrimination test that I have decided to break up into two parts and I’ll post it on Sunday. This blog will be too long if I tackle both aspects in one blog.

    Key Takeaways from this week

    There are 3 questions you need to ask yourself to determine if your child is experiencing discrimination. This is our sword. We can ask these 3 questions and apply it to the advocacy situation we are struggling with. We may need to keep on swinging our sword all the way to the top of administration if we have to. A rights-based approach to advocacy can help reduce the harm our children experience if their accommodations are being denied under S.8 of the Human Rights Code.

    When we advocate, we need to be able to communicate the harm our children are experiencing and how this harm is connected to their protected characteristic. This is key and will help with meaningful inquiry and eliminate the defence of hindsight. (more to come on this later)

    Impact is the focus. The harm your child has experienced. Not intent. They don’t need to intend to discriminate in order for their actions to create discrimination.

    Coming up on Sunday

    I have decided to split this topic in half. It’s a lot. So I will continue to discuss the second part of the discrimination test – the reasonable justification test this week, posting on Wednesday.

    After we get through the discrimination test then on Sunday we start to look at the Duty to Accommodate process. Who is responsible for what? We have some important things to communicate to the school in order to keep our kids protected under The Code.

    Step One: Duty to inquire – Meaningful Inquiry in education

    PART 1 – Summer Series- Duty to Accommodate – Power of the Human Rights Code

    Ok. Let’s get started.

    To start off the series, we first need to truly understand just how powerful the Human Rights Code is and how it is actually the discrimination test that is our sword for advocacy. Ministries’ policies, IEPs, designations and criteria for EA support hours are actually not what determines who gets accommodations, who doesn’t and what those accommodations are.

    This blog series is not my personal opinion. Everything that is written comes from some kind of written authority. For those who want to dive deeper, I have added a lot of links.

    Here we go!

    Section One – Written Authority

    What is written authority? Written authority is law, policy or some kind of document. Something that is written and acts on behalf of other people, that has power, and people will use it as a decision-making tool. If school staff deny our requests, we always want to ask them something along the lines of: What is the written authority that supports your decision? Basically, says who? Where does it come from? People just can’t just make stuff up.

    Section Two – Education as a Service connected to the Human Rights Code

    To understand the power of the Human Rights Code in education, we need to start at the beginning. Follow the path of written authority.
    👇👇👇👇

    Moore v. British Columbia (Education), 2012 SCC 61 “The purpose of the School Act in British Columbia is to ensure that “all learners . . . develop their individual potential and . . . acquire the knowledge, skills and attitudes needed to contribute to a healthy, democratic and pluralistic society and a prosperous and sustainable economy”. 

                        The “service” to which J is entitled under s. 8 of the B.C. Human Rights Code is education generally.”  

    From this human rights case decision, we know that kids with disabilities are entitled to a quality education, and this education is protected under Section 8, of the B.C Human Rights Code.

    The Human Rights Code, Section 8 is about discrimination in accommodation. Basically a person cannot, without a reasonable justification, deny a person any accommodation, and they can’t discriminate.

    This protection under the BC Human Rights Code is powerful. To be legally protected under The Code, you need a protected characteristic. For this blog we will be focusing on physical/mental disability as the protected characteristic.

    Your child’s accommodations are the priority and will be more important than any other law, policy, administrative procedure, code of conduct, disciplinary process (including suspension), exclusion policy, school rules, or classroom rules in the school system, etc. etc.

    Why are accommodations the priority above other laws and policies?

    Section Three – Power of the Human Rights Code

    In the BC Human Rights Code, section 4, it states:

    Code prevails

    4  If there is a conflict between this Code and any other enactment, this Code prevails.

    What this means is that the BC Human Rights Code (duty to accommodate) is a law above all other laws, if conflict arises.

    What does “when in conflict” mean? If there is something about the law or policy that is discriminatory, that is the conflict part. The Human Rights Code will squash that specific discriminatory part of the law or policy.

    So if there is anything that is discriminatory in the School Act, Ministry Inclusion Policies or school board policies, the Human Rights Code will be the law that is followed and not the discriminatory part of the School Act or other policies.

    Using a human rights lens to advocate for our kids is the highest form of advocacy we can use. When in conflict, the Code prevails. Discrimination is not allowed, no matter what policies are created by the Ministry or the school board. Your child’s accommodations are the priority.

    Beautiful.

    Section Four- Practical Application

    What does this mean in real life?

    This means, teacher classroom autonomy, which some teachers will cite as a reason that they can uphold the decisions they make in the classroom, will not be upheld if discrimination is occurring. The Code, supersedes teacher classroom autonomy.

    So, if a teacher is denying a kid with ADHD breaks for regulation (denying an accommodation), then Section 8 of the Human Rights Code will step in. A child doesn’t need an IEP or a designation to be entitled to accommodations. More on this below.

    A teacher not implementing a child’s IEP is a HUGE deal. An IEP is not a suggestion. It, too, is backed by written authority.

    P (by KD) v. Board of Education of School District No. 61 (Greater Victoria) and another, 2025 BCHRT 62

    [70] However, the Ministry disagrees that just because IEPs do not require a parent’s signature the School District is not required to adhere to them. The Ministry says IEPs do have a legal effect and function, as there is a valid legislative and policy framework that provides both authority and guidance for IEPs.

    Here are some examples of what you may hear from schools and here is what the response is from the Human Rights Code.

    School: Your child doesn’t qualify for an IEP as per Ministry Policy.
    Human Rights Code: Doesn’t matter. The school is providing a service. You are still required by law to accommodate a child with a disability with or without an IEP. The criteria to see if they should receive these accommodations is not your policy; it is the discrimination test.

    School: Your child doesn’t qualify for a designation.
    Human Rights Code: Doesn’t matter. The School is providing a service. You are still required by law to accommodate a child with a disability with or without a designation. The test to see if they should receive these accommodations is not your designation criteria; it is the discrimination test.

    School: Your child doesn’t qualify for EA support.
    Human Rights Code: Doesn’t matter. The school is providing a service. You are still required by law to accommodate a child with a disability with or without an EA. It doesn’t matter what your internal criteria is that you use to determine EA support hours; it is the discrimination test.

    You get the idea. Their policy IS NOT the legal test to determine if your child gets accommodations or not, or what their accommodations will be.

    The legal test is the discrimination test. The discrimination test, comes from the Human Rights Code – human rights case law. The discrimination test will squash any Ministry or school policy.

    In Student (by Parent) v. School District 2023 BCHRT 237, the student had a diagnosis of Generalized Anxiety Disorder. At the time of the complaint, she did not have a designation or IEP. She was still protected under Section 8 of the Human Rights Code. The school had a duty to provide her with accommodations for her disability.

    Lots of kids with ADHD don’t get designations or IEPs. They are still protected under The Code. There are lots of human rights cases (see Human Rights Desicsions (Cases) list) that involve kids with ADHD. This includes post-secondary too.

    Mr. A v. The University, 2020 BCHRT 58 

    [1]               Mr. A is a student at the University. He has Attention Deficit Hyperactivity Disorder [ADHD]. Because of his disability, the University’s Centre for Accessibility [Centre] has approved a number of accommodations for Mr. A in respect of his education. These include advance access to lecture notes and course materials where possible.

    Students are legally entitled to academic accommodations, “a ramp”- due to the Moore case. The school has a responsibility to figure this out and come up with solutions to remove the barriers. (More on this later and case law later.)

    Section Five – The Human Rights Code has Limitations

    Now, there are many layers to the duty to accommodate.

    • This doesn’t mean that your child will get whatever supports you want for them. The Human Rights Code supports “reasonable accommodations,” not perfect or ideal accommodations. (more on this later)
    • It doesn’t mean that your child may never have a negative experience. Also supported in a human rights education case decision. Para 110 (more on this later)
    • It doesn’t mean harm may never occur. Human rights complaints are about harm that has already occurred and/or currently occurring, not about harm you anticipate might happen in the future. When your rights have been violated.
    • It doesn’t even mean that you need to even agree with the decisions that the school made, also supported by a human rights decision. Para 248 (More on this list and matching case law later)

    The Human Rights Code is not limitless. BC HRT website: “Sometimes a person can justify their conduct and then there is no discrimination.” (More to come on this next week)

    The Human Rights Code is a tool. We use this tool to advocate for “reasonable” accommodations that provide “a ramp” that removes the barriers so that our children can have an equitable education. Equal access and equitable access are different. (More on this later)

    Section Six – Discrimination Test

    The Moore case is what set out the discrimination test and defined accommodations as “a ramp” so that our children are legally entitled to an accessible education.

    Just want to take a moment of pause to give a round of applause, throwing of flowers and and an absolute snot-filled sobbing thank you, to the Moore family for their advocacy and absolute sheer persistence in spending an incredible amount of years (15?) with uncertainty on how their case was going to land. It went all the way up to the Supreme Court of Canada.

    The discrimination test is EVERYTHING. It is our sword. You have a legal leg to stand on connected to written authority because of the Moore family. We use the discrimination test as a sword to slice through the bullshit excuses, crappy policies, inequitable distribution of resources and sheer ableist oppression from school district staff. Any advancement that other families make in their own cases all start with the Moore case. Respect to the Moore family!

    As you will notice, when you read the Duty to Accommodate, section 8 isn’t long. So, where do all of these “rules” and expectations come from?

    Case law.

    I will get to it later on how case law is GOLD.

    Section Seven – Parents are Protected Too!

    And something else really important to know. It’s not just your kids who are provided a service and protected under the Human Rights Code. You are also as their parent(s)/guardian protected under family status connected to education as a service. These two jewels of decisions mean you can file a human rights complaint on behalf of yourself, and the discrimination test will apply to you too! Thank goodness!! I mean, seriously… It’s about time!

    Section Eight – Something to think about…

    Using written authority or human rights language in our communication with the school does not mean we are being aggressive, overreactive or overly forceful. It does not mean we need to file a human rights complaint. It does not mean we are going to be battling it out with lawyers. We aren’t tar and feathering people. The use of human rights language is simply enacting rights our children are entitled to by law. Nothing more, nothing less. We are expecting schools to follow the law. That is it.

    Using human rights language when we advocate may also be new information to teachers and administrators, not everyone is aware of human rights and what they are even responsible for ensuring they do, within their own jobs. Failure of the system? Totally! Utterly shameful and ridiculous. They are the professionals! The School Act gives them all the final decision-making power. They should at least be knowledgeable about human rights laws. If I worked in education today as an employee, I would be angry that this has not been part of my education and training, and that I am put into situations that leave me ineffective at doing my job, and harming kids. Teachers are at risk of being hauled into hearings. They aren’t fun. The staff who care look white as a ghost, ready to throw up, and some of them cry. Incredibly stressful. And trust me, there are no guarantees the district will come and save you. They would rather risk a hearing happening, hoping the parent will bow out, than make amends. It’s a game of chicken that they have no problem playing. As far as I am concerned, if you are a teacher who doesn’t understand human rights obligations within your job, you are a sitting duck. I highly recommend that organizations that invest in teachers start making this material part of post-secondary education and professional development opportunities.

    From this week: Key Takeaways:

    The Human Rights Code prevails.

    Just know that for this week, the Human Rights Code is very powerful. Our most powerful form of advocacy. It is the law above all laws. It is definitely worth it to invest some time to learn about it, embrace it and most importantly, use it!

    ANYTIME the schools give you a reason for denying your child an accommodation, or are not protecting them from bullying, or they use policy in a way that you think is harmful to your child…. in steps the discrimination test.

    The discrimination test is our sword. Thank you Moore family and their legal team!

    Coming Up Next Week:

    Understanding the Discrimination Test.

    This part is KEY! We apply the discrimination test to the situations that our children are experiencing to see if they are protected in this situation under the Human Rights Code.

    There is still so much left to go!! See you all again next week for the next blog in the series!