Self-represented Parent of Child’s Education Discrimination Case – Partial Win – Human Rights Tribunal

This is the only completed case that I have seen by a self-represented parent in BC, in an education case. And they succeeded in a partial win.

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

Some important gems in this decision that I see are:

Meaningful inquiry

[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.

Around self-advocacy for children with invisible disabilities:

[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.

IEP – For a Child with Generalized Anxiety Disorder and Trichotillomania

[59] This ends the period of this complaint. However, it is important to note that, in the Student’s grade 11 year, the school developed an individual education plan, or IEP, for her. This IEP set out the Student’s strengths, learning preferences, and goals. It identified specific supports for the Student, including flexible due dates, ensuring the Student was not put on the spot in class, reducing workload whenever possible, providing a quiet learning environment, and frequent teacher check ins. It also established that the Student would meet bi-monthly with the school counsellor to work on her goals. The Student’s grade 11 counsellor explains that she saw the IEP as a way to reduce the burden on the Parent and to support the Student to advocate for herself. From the Parent’s perspective, this was a welcome development that should have been done much sooner.

[7] In this case, there is no dispute that the Student has disabilities, namely generalized anxiety disorder accompanied by trichotillomania (hair pulling). She is protected under s. 8 of the Human Rights Code from discrimination in her education. This complaint is about the Parent’s allegation that the symptoms of the Student’s disabilities were exacerbated in grades 8 and 9 because of her experience in Language 10 and Language 11, and that the District failed to accommodate her disability-related needs in those classes.

** Even without a designation at the time, she is still protected under the Human Rights Code.

Mental Health Stigma – Failure to Identify Diagnosis

[34] The Parent did not see this email at the time. From her perspective, the email was not adequate to appropriately communicate the scope of the Student’s school-related needs. It did not fully communicate what the Parent had told the counsellor, and what she had expected would be passed along to the teachers. She felt it was also not realistic to think that the Student would approach a teacher and ask to be excused; in fact, this was not an option that it seems the Student ever exercised. In the Parent’s view, the failure to identify the Student’s diagnoses perpetuated the silence and stigma of mental health and undermined the Student. The message contrasts, for example, with the communication that the Parent sent to the Student’s teachers at the start of her grade 9 year, which said:

Communicating and providing evidence of a diagnosis

[13] In light of the Student’s barriers in advocating for herself, the adults in her life have had to take on a more proactive role. The Parent’s open and active communication has been critical to ensuring that the Student’s needs are recognized and met in school. Throughout the Student’s education, the Parent has let her schools know about her disabilities, and that she may require monitoring because she is unlikely to proactively seek the support she needs.

[14] There is no dispute that, due to the Parent’s advocacy, various individuals within the School District were aware of the Student’s diagnoses before and during the period of this complaint. For example, in the spring of grade 7, the Parent provided the elementary school with a note from the Student’s psychiatrist confirming that the Student had a “long-standing diagnosis of General Anxiety Disorder”. At the Parent’s request, this note was placed in the Student’s school file.

** This is a very important aspect as this ensures that a district has a duty to accommodate.

From the Human Rights Clinic Blog, Stress, Anxiety and the Duty to Accommodate, they explain…

“However, she did not provide any medical information that said she had a mental disability.

The Tribunal dismissed Ms. Matheson’s complaint, stating that “an essential element of a complaint of discrimination in employment on the basis of mental disability is proof that the complainant either had a mental disability… or was perceived to be mentally disabled by the employer.”

Here is Ms. Matheson’s case.

Family Status – Human Rights Complaints in Education

Here is some clarity to something that can be confusing when it comes to parents adding themselves to their child’s human rights complaint in education. (Your complaint will also need to pass the discrimination test.)

You need to file separate complaints. One for your child and one for you. Then, when and if they are both accepted, then you need to file an application to join them.

As a parent, it makes logical sense in our head to just include ourselves in our child’s complaint because we see everything so connected, but that is not the process that one needs to go through. So, to save yourself some time in further applications and playing catch up, when you file your child’s complaint, also file a separate complaint for you. Wait to see if both are accepted and then you need to file a 7.1 Form to join the complaints.

Here is the application page. You will want Application Form 7.1 – General Application. If you go to page 2 of 7, on that list, 7th on the list down, you will see “Join two or more complaints”

It is highly likely that the respondents will be making submissions for them not to be joined, or to dismiss your complaint. So, just mentally be prepared for that.

Here is the groundbreaking case that brought this option out in the open. So thankful for this brave parent.

Groundbreaking BC HRT – Accepts Parent on Child’s HR Complaint

Direct link on CanLII

You may want to quote this case directly in your complaint.

Also, keep in mind the one-year time limit for filing. If you file outside of the one-year time limit you may want to consider this case. Also, be aware that you will need to have evidence of the harm related to your loss of work or emotional harm.

Experience is such a valuable teacher.

If you have any questions, call the BC Human Rights Clinic. They are the best people to talk to about your complaint or any questions about the process. Processes do change, forms change, and with each new human rights case decision that gets posted – arguments can change. (This blog was written on Dec 21st, 2023)

To NDA or not to NDA? That is the Question…

Here is a video on Non-Disclosure Agreements

I find this video fascinating and informative.

In the video, they report that “95% of people report consequences on their mental health” for signing an NDA.

About 3/4 way through they talk about what happens when people push back.

I highly recommend a viewing of this video for anyone going through the human rights tribunal or any kind of legal settlement/agreement process. There is a lot to consider, and a lot to discuss with your lawyer.

https://www.youtube.com/embed/VzfdVqp3Mxs?si=JwACOlntC3Ev1021

Communication Expectations in Education Defined by BC Government

Parents often wonder….

how much communication is too little?
Too much?
Am I allowed to…?
What can I expect?

Some parents have lots of communication with their children’s teachers and other parents are struggling not knowing any information or too little to even advocate for their children.

If you hit a brick wall or if you are not getting the information you need, having a policy from the government on communication expectations can be the key you need to get you through the door.

As of July 1st, 2023 this is the Reporting Policy from the BC Government.

Here are just a few clips from the policy statement. To read the full document click here.

Policy Statement

“Meaningful and flexible communication of student learning across British Columbia’s K-12 school system ensures parents/guardians and students are informed about student learning.“

“All learners benefit from individualized descriptive feedback and personal involvement in the assessment process.“

“Communication of student learning is ongoing throughout the year. This Policy is designed to ensure school districts have the freedom and flexibility to communicate about student learning in a way that best meets the needs of students; this includes communication with students and parents/guardians that is inclusive, accessible, and culturally responsive.”

“Teachers provide timely feedback to parents/guardians and/or students that is responsive to student needs. The communication between home and school can take many forms.”

Rationale

“Meaningful and flexible communication of student learning in clear and accessible language enables parents/guardians, students, teachers, and administrators to proactively work together to enhance student learning. This Policy ensures the student and parents/guardians are partners in the dialogue about the student’s learning and the best ways to support and further learning. Students benefit when they and their parents/guardians are made aware of their strengths and areas of needed growth and are provided support early.”

Documenting the Harm

You are feeling helpless.

Out of control.

Wondering what you can say to convince educational staff to not give up on your kid….

The complete desperation, I remember that feeling. I see you and I hear you.

You aren’t sleeping and you are spending hours staring at your ceiling wondering if an answer will present itself.

I will tell you something very very important.

You. need. to. document. the. harm.

All of it.

And not just the harm to your children. You too! Did you lose a promotion? Lose an educational opportunity? Did you quit your job? Have to leave school?

This is going to feel weird.

This is going to feel like you are stepping beyond the boundaries of normal family life. Yup and yup. You are going to feel that your child’s privacy is being violated. Yup. I get the heartache. Totally.

Documenting the harm that your child is experiencing from the education system can be one of the most powerful forms of advocacy, that a parent can gather.

Here is why.

You need evidence to be undeniable.

You need evidence so that you are not dismissed.

Human Rights.

A very important test of human rights complaints and Charter challenges is proving that you or your child is being disadvantaged (harm) because of their disability.

Without evidence, the human rights tribunal will state that your allegations are nothing but conjecture. And will dismiss your case. Done.

Dadmand v. School District No. 36 (Surrey), 2011 BCHRT 323

IN THE MATTER OF THE HUMAN RIGHTS CODE

R.S.B.C. 1996, c. 210

[16] That provision creates a gate-keeping function that permits the Tribunal to conduct preliminary assessments of human rights complaints with a view to removing those that do not warrant the time and expense of a hearing. It is a discretionary exercise that does not require factual findings. Instead, a Tribunal member assesses the evidence presented by the parties with a view to determining if there is no reasonable prospect the complaint will succeed. The threshold is low. The complainant must only show the evidence takes the case out of the realm of conjecture.

You need admissible evidence. Period.

Without it, the district will be confident that you will not complete your obligation in the legal test of proving discrimination.

This is about the harm that has already occurred. Not something that you anticipate for the future. Something that has occurred in the PAST, and that you have evidence for.

So…… what proof/evidence do you need?

These are things I would think about?

Videos/Pictures/Witnesses/Doctors visits/Counselling visits, etc.

Is our child losing sleep? Are they eating less? (Keep a log)
Are they writing or drawing out their feelings? Keep their creative expressions.
Did you need to increase anxiety medication?
Are they requiring counselling? (Note: Government-free counselling will not testify as it is a conflict of interest and the school district knows that)
What are you witnessing at home? Log details of everything and take videos.
Are they refusing to leave their bed?
Are they refusing school? Document the days and for how long. Match it up with attendance on their report cards.
Are they self-harming?
If you are seeing any mental health responses describe the behaviour as if an alien is watching… what are they doing? For example, they are rolling in bed picking skin off of their right leg and smearing blood on the wall. (Did you take pictures of the blood?) Describe everything from a clinical perspective. I know this is hard, but you need to do it.
Are you filming them melting down after school? You can hide the camera.
Keep their school work with their grades on the pages
Keep all the report cards, suspension reports and emails

From the Human Rights Tribunal

******

What is evidence?

Evidence can be:

oral testimony: a witness answers questions in person, or over a speaker phone if the member agrees
documents: documents, such as pay stubs or letters, are given to the tribunal member by a witness and are marked as an exhibit at the hearing
things: sometimes witnesses give the tribunal member other things such as photographs – just about anything that helps prove your case – these things may also be marked as an exhibit at the hearing
affidavits or other statements: a witness’ evidence can be given to the tribunal in writing – this can be a statement such as a letter, or a statement made under oath or solemn affirmation called an affidavit
expert evidence: evidence from an expert that may be oral testimony, an affidavit, or a written report

What evidence will the tribunal accept?

The tribunal can accept almost any evidence that is relevant, which means that it relates to the complaint or to the response to the complaint.

http://www.bchrt.bc.ca/law-library/guides-info-sheets/guides/getting-ready.htm

******

You get the idea, depending on the child, the list is endless.

As parents, we know what we know, but we need to prove it. Otherwise, our allegations are essentially worthless.

I actually don’t believe that school staff truly understand the harm that is happening to children and families. We don’t all live in the same world. They don’t see what we see.

This is why, we MUST document the harm in order to tell our kids stories.

Even if we feel that nothing will happen. You never know what years down the line will bring.

Keep the evidence.

The opportunity may present itself in the future to speak your child’s truth.

Responding to Dismissal Applications

Broe v. Board of Education of School District No. 67 (Okanagan Skaha)
and another, 2023 BCHRT 157

There was a case posted today that I thought discussed dismissals in a very informative way. Anyone who is self-representing and needs to respond to a dismissal application must be aware of how they need to meet the criteria so that their case can continue through the tribunal process and not be dismissed.

In the case Broe v. Board of Education of School District No. 67 (Okanagan Skaha) and another, 2023 BCHRT 157, I find the following paragraphs to be very helpful. The written decision has cases attached for you to review as part of the decision to cite if necessary in your argument and to understand further. I have linked the cases for convenience.

There is legal language in these descriptions that you might have to do your own research on if you do not have a law background.

YouTube videos I find are the most accessible as they are aimed at teaching people who are not lawyers how to understand law. If one video doesn’t tickel your fancy, keep up the search. There are a TON of them out there.

From the case:

[4] The issue before me is whether there is no reasonable prospect Ms. Broe will be successful at a hearing…

[35] On such an application, the respondent has the burden to show the complaint has no reasonable prospect of success. The complainant must only put evidence before the Tribunal that takes the complaint out of the realm of conjecture. This is not a high bar: Ritchie v. Central Okanagan Search and Rescue Society and others, 2016 BCHRT 110 at para 118.

[36] In considering applications under s. 27(1)(c), the Tribunal considers the entirety of the materials filed by the parties to determine if the complaint has no reasonable prospect of success. The test requires more than a mere chance the complaint will succeed: Wickham and Wickham v. Mesa Contemporary Folk Art and others, 2004 BCHRT 134 at para. 12.

[37] In order to succeed at a hearing, Ms. Broe must demonstrate she has a protected characteristic; that she experienced an adverse impact in relation to her employment; and that there was a nexus between that protected characteristic and the adverse impact alleged: Moore v. British Columbia, 2012 SCC 61 at para. 33.

[38] To establish a justification defence at a hearing, the Respondents must show they adopted a standard in good faith for a purpose rationally connected to the performance of the job and that it would have been an undue hardship to accommodate Ms. Broe: British Columbia

I also highly recommend you visit the Leading Cases page on the Tribunal’s website which lists leading cases depending on the reason for the dismissal application.

Late filing – Timeliness of Complaint

This is a decision from the Human Rights Tribunal, posted in the September category for 2023.

The complainant filed the human rights complaint after the one-year deadline. These applications for late filing are very rarely accepted, and this case was accepted.

It’s also notable because it involves accessibility issues for a disabled student in a post-secondary school. This case was considered novel because the student is autistic. See paragraph 44 for details.

Here is the case and I have selected a few paragraphs from the main case.

Schulz v. Camosun College, 2023 BCHRT 142

[6] Millie Schulz has multiple mental disabilities, including autism spectrum disorder [ASD], attention deficit disorder [ADD], and post-traumatic stress disorder [PTSD].

[16] On January 4, 2021, Millie Schulz sent a letter to the College dropping out the MHA program. After noting their issues and barriers, they said they did not feel supported in their classes with CAL, which was only looking out the College’s interests.

[37] Where the delay is due to a disabling condition, the Tribunal has observed that it may be in the public interest to accept a late-filed complaint: MacAlpine v. Office of the Representative for Children and Youth, 2011 BCHRT 29 at para. 42. Disabling conditions can include physical and mental ailments resulting in great difficulty coping with even the basic daily tasks of life: Naziel-Wilson v. Providence Health Care and another, 2014 BCHRT 170 at para. 21

[42] Millie Schulz argues their case is unique as it involves a complainant with ASD. While the Tribunal has addressed mental health discrimination in the provision of services, it has not addressed many of the issues impacting individuals with ASD, and their need for accommodation, especially in a school or employment setting. They cite one Tribunal case dealing with autism from 2011, which points out that the nature of adult autism and how it manifests itself in the workplace is poorly understood, and individuals with this disability are subject to stigma and stereotyping: Noriega v. B. C. (Min. of Children and Family Development), 2011 BCHRT 199 at para 28.

[44] While appreciating this case is quite common in terms of the Tribunal dealing with the accommodation of a student with mental disabilities in a post-secondary setting, I find that the 12 subject matter of accommodating autism, in particular ASD, is sufficiently unique to attract some public interest in allowing the complaint to proceed late filed.

[45] After weighing all the factors, I have decided it is in the public interest to accept this late-filed complaint. While appreciating a significant delay in filing occurred, this factor is outweighed by the reasons for delay associated with Millie Schulz’s mental disabilities and the novelty of the case. It is now necessary to address the issue of whether any substantial prejudice would result. C. Substantial Prejudice

Human Rights in Education

Depending on how the previous years have gone, thinking about the next school year can certainly trigger our own internal alarm systems. Fighting for inclusion, a fair and equitable education, and one that is free from discrimination for our children, can be challenging at times. It can feel like the system is against us. Remember that there are pockets of positivity and support that also exist. Knowing your rights and the rights of your child is especially empowering and can help reduce some of the anxiety.

Inclusion seems to be happening on an individual level by luck and chance around our province, and not systemically. We are all crossing our fingers that our kids win the ‘lottery’ and get placed in the classes of those amazing teachers who just “get it”.

But we don’t need to just hope to survive the year based on luck.

Understanding your child’s human rights in the education system and advocating with those in mind is an extremely powerful approach. The more you understand how the duty to accommodate applies to your child in school, the stronger your advocacy impact will be, and the more empowering the experience can be.

It is not uncommon for school staff and teachers to not fully understand how human rights apply to education. It isn’t something that they are taught before, or when, they begin working in the system.

Wondering if your disabled child is experiencing discrimination at school, all comes down to the question: Is your child “accessing their education, equitably”? So, what does that mean exactly?

It means they have a right to an equitable opportunity to receive and participate in education. This does not mean that they are given the exact same as everyone else. Equity means that they are given what they need so they have a chance to learn and show their learning.

Here are some examples of your child’s rights that are supported by the Human Rights Code, under the duty to accommodate:

Your child’s IEP supersedes a teacher’s classroom autonomy and classroom management decisions. Which means, your child’s IEP is the priority over their personal teaching opinions and how they like to run their classes. IEPs are very important.
Your child has a right to go to school and not be exposed to discrimination-based harassment. (Bullying connected to their disability, race, gender, etc.)
They also have the right to be in a positive school environment.
Your child has a right to receive reasonable accommodation so they can access their education. Which means, if your child is struggling or failing, they are not accessing their education and they are not receiving reasonable accommodation. Document the failing and the struggle that they are experiencing. The more evidence you have, the more effective your advocacy will be. A child struggling and failing is an indication that the accommodations that the school provides, or lack of, is not working. It’s their responsibility to make this work.

Here are some examples of your rights and responsibilities that are supported by the Human Rights Code.

You have a right to be consulted on your child’s education. The school has the final decision as to what reasonable accommodations look like for your child, but they must consult with you and at least consider the information you offer about your child. This needs to be meaningful consultation.
Both you and the school have a duty to co-operate in good faith. Which means respectful language on both sides and no dirty parlor tricks from the school system. I would suggest you review the code of conduct that will be posted on your school districts website, and they need to follow that as well.
You have a responsibility to facilitate the implementation of accommodation decided by the school. You can facilitate and still keep advocating.

Through the School Act, you have a right to appeal if you do not agree with the final decision of the school. This is a much faster process than the current Human Rights Tribunal process. The School Act and the Human Rights Code are two separate legislation Acts. Processes are different. Goals are different. Outcomes will be different.

Filing a complaint with the Human Rights Tribunal means that your child has experienced harm that is connected to their disability. It’s about harm that has already occurred, and harm that you will need to have evidence of. More blog posts on this will be coming in the future.

Advocacy is a skill that can be developed.

Some resources I recommend are:

Inclusion BC – Chapter 7

Family Support Institute & BC Access Society – Toolkit

Burnaby Teachers are Joining the Inclusion Conversation

Today in The Burnaby Now newspaper there is an opinion piece written by the BC Teacher’s Federation.

I love that a teacher’s organization is speaking up about the challenges to inclusion and it’s not just parents making noise in the media.

The Ministry of Education and Child Care needs to fund and pay for teachers, EA’s and support staff to return to work earlier than the first day of school so that inclusion can be planned for and parents consulted.

For the full article:

Opinion: Burnaby educators committed to inclusion, fully funded public education

Free Speech Protected – for Advocacy!

So happy with this decision! Beautiful!

“Mr. Barry Neufeld, an elected public school board trustee in Chilliwack, B.C., publicly criticized the initiative in online posts, which triggered significant controversy including calls for him to resign. Many people in the community considered his statements derogatory of transgender and other 2SLGBTQ+ individuals. Mr. Glen Hansman, a gay man, teacher and former president of the British Columbia Teachers’ Federation, publicly denounced Mr. Neufeld’s views, including to the news media, calling them bigoted, transphobic and hateful. He accused him of undermining safety and inclusivity for transgender and other 2SLGBTQ+ students in schools, and questioned whether he should remain a school board trustee.”

“Many people in the community considered his statements derogatory of transgender and other 2SLGBTQ+ individuals. Mr. Glen Hansman, a gay man, teacher and former president of the British Columbia Teachers’ Federation, publicly denounced Mr. Neufeld’s views, including to the news media, calling them bigoted, transphobic and hateful. He accused him of undermining safety and inclusivity for transgender and other 2SLGBTQ+ students in schools, and questioned whether he should remain a school board trustee.”

“Mr. Neufeld sued Mr. Hansman for defamation”

Final Decision:

“The first instance judge correctly dismissed Mr. Neufeld’s defamation suit.

Writing for the majority, Justice Karakatsanis restored the first judge’s order dismissing Mr. Neufeld’s defamation suit. She decided the public interest in protecting Mr. Hansman’s speech outweighed the public interest in remedying the reputational harm to Mr. Neufeld. She agreed with the judge that Mr. Neufeld had suffered limited harm, as he continued to express his views despite the public reaction and won re-election a year later.

As for Mr. Hansman, he spoke out to counter what he and others perceived to be discriminatory and harmful speech against transgender and other 2SLGBTQ+ youth, “groups especially vulnerable to expression that reduces their worth and dignity in the eyes of society and questions their very identity”. His response to Mr. Neufeld’s statements was neither disproportionate nor gratuitous.

As Justice Karakatsanis explained, “[t]he closer the expression lies to the core values of [freedom of expression], including truth-seeking, participating in political decision-making and diversity in the forms of self-fulfillment and human flourishing, ‘the greater the public interest in protecting it’”. She concluded Mr. Hansman’s speech aligned with these values.“

Beautiful!!!!

Here is the case explained in plain language by the Supreme Court of Canada. I highly encourage to read the decision explained. It’s not a long read and it’s very readable.

https://www.scc-csc.ca/case-dossier/cb/2023/39796-eng.aspx

Media articles about this:

https://vancouver.citynews.ca/2023/05/19/former-chilliwack-school-trustee-defamation-lawsuit/

https://www.saanichnews.com/news/defamation-case-between-chilliwack-trustee-and-former-bctf-president-at-supreme-court-of-canada

https://www.cbc.ca/news/canada/british-columbia/neufeld-hansman-defamation-hate-debate-1.6059595

https://vancouver.citynews.ca/2018/04/12/controversial-chilliwack-trustee-subject-human-rights-tribunal-complaint/