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I have just attended a free workshop hosted by the Human Rights Clinic. It was wonderful!!! I highly recommend people sign up. Below are my notes that I took during the workshop. I hope people find it helpful.

https://bchrc.net/

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It is our responsibility to prove discrimination at a hearing. The HRT does not investigate.

Decisions are final and binding but not enforceable. We can take the decision to the BC Supreme Court to enforce it.

Discrimination is negatitve treatment or impact that’s connected to a person’s protected characteristic.

Eg. Stereotyping, unfair assumptions, bullying and harassment, singling out, profiling, exclusion, disadvantage

Discrimination can be

• Overt or subtle, intentional or unintentional (Code S.2), concerned with impact, concerned with equity and fairness) rather than sameness
• Not all different treatment = discrimination
• Sometimes treating people the same = discrimination

You don’t need to prove they intended to discriminate

** Treating people, the same can result in discrimination

(Put up the equality picture of people standing on boxes)

Section 3 lists the purpose of the Human Rights Code

2/3 of complaints are related to employment

The focus of the workshop is on employment

HRT protects us from retaliation for making a human rights complaint.

Discrimination can happen outside of employment hours. As long as it is connected to the workplace. For example, drinks at a bar with co-workers after hours, or a weekend conference.

Employer must resolve all discrimination complaints. They must respond with action all claims of discrimination. They are liable for the discrimination.

Individuals can also be held accountable. High degree of personal responsibility. Eg. Sexual harassment.

Complainant must prove they have the characteristic

Need only to be A FACTOR in the negative treatment

Need not be the only or most important factor. Must be connected.

Most are undefined in the Code. Must be interpreted in line with the purpose of the Code.

The complainant goes first.

They have to prove

1. They have a protected characteristic
2. They have experienced some kind of negative impact in a protected area
3. There needs to be a connection between the characteristic and negative treatment of impact

Respondents Case

They need to prove:

1. Treatment was justified
2. There is a reasonable explanation
3. Bona fide occupational requirement
4. Cannot be accommodated without undue hardship

Facts will be enough to file a complaint, do not guarantee the claim would be successful

A respondent may have a non-discriminatory explanation for their conduct (meaning there ‘s no connection between their conduct and a protected characteristic)

Or they may have a justified reason for their conduct

Evidence and Proof

Standard of proof = balance of probabilities. Prove it’s more likely than not. It’s not proof “beyond a reasonable doubt”

Must look at circumstantial evidence

The facts support a reasonable inference

You can win even without a smoking gun

Circumstances that may justify drawing an inference of discrimination – timing of events, statistics, experience of others

Must convince the Tribunal that the inference of discrimination is more than likely than the respondent’s explanation

The complainant has the burden to prove their case

Even if you don’t have documents or witnesses, you can still win. It’s harder, but they can still be successful. They will assess the credibility of the witnesses. Who they believe. What is the most likely version of events.  It can be difficult, but very much possible.

Physical Disability – perceived of permanence or persistence, be involuntary, affects a person’s abilities

Mental Disability – involuntary, permanence or persistence, mental illness, learning disability, addictions, affect a person’s abilities

Many people are unrepresented without lawyers

Adverse Effects Discrimination (not direct) but the impact

In the context where everyone is being treated the same – If your policy, rule, standard, requirement or practice creates a negative impact on a person due to their disability you must be prepared to justify that policy, rule, standard, requirement, or practice as bona fide and reasonable.

Duty to Accommodate

Employer must show that it could not have done anything else reasonable or practical to avoid the negative impact on the individual

Employer must take all reasonable steps to accommodate

Goal is to ensure that an employee who is able to work can do so

Employer must give a serious consideration to how employee can be accommodated

Requires an individualized case-by-case approach

Must be approached with common sense and an open mind

Flexibility is key

Accommodations are as individual as the people seeking them. Context is important.

Examples of accommodations: Different or lighter duties, toleration of absences, adjustment of schedule, change in environment, staff transfers, unpaid leave, time off to attend treatment or counselling.

Reasonable accommodation doesn’t mean perfect accommodation

Accommodation related to NEEDS and not WANTS

A shared obligation – employee must be involved

Employee must provide necessary information, participate in meetings and discussion, cooperate and facilitate the accommodation process

If a complainant has rejected a reasonable proposal, the respondent has met its duty to accommodate and the complaint will be dismissed.

Undue Hardship

Might involve expense, inconvenient, and or disruption as long as it does not unduly interfere with its business.

The burden is on the employer to show that it has offered a reasonable accommodation, and any further accommodation would be an undue hardship.

Factors: cost, economic conditions, size of employer’s operation, interference with rights of other workers, safety/risk

(Crismer, SCC 199) – Undue hardship

Duty to Inquire

Employer may have a duty to inquire as to the existence of a disability, if the are aware of ought to be aware must inquire before making an adverse decision based on performance.

HRC has webinars posted on their website to watch. In their audio and video section.

I am not going to say too much here as I think the tweet from the Founder and Executive Director Tracy Humphreys, says it all.

BCEdAccess is a non-profit organization. “We champion and support children and youth who have disabilities and who are complex learners to reach their full potential in BC education, and in all aspects of their lives.”

At a press conference on December 29th, 2021, the Minister of Education, Jennifer Whiteside announced a phased delayed school start, in January of 2022 due to the spread of the Omicron variant; euphemism language to describe disabled children was used.

Here is BCEdAccess’s response.

Twitter Thread

https://threadreaderapp.com/thread/1476395178290139141.html?s=09&fbclid=IwAR2d0wsYoUQhWcaY4qBRY1NjzoYl_FMEgOt230da5t1nmgC6xGOPJTmwado

When I think of language, it shines a light on the darkness that people don’t want to reveal. I remember my own internalized ableism and what I was too ashamed to say out loud or discuss with others.

If someone cannot even describe a disabled person with the rights based language and say the word “disability”, that just shows you how far we need to go in the advocacy fight against socialized ableism.

Let’s just think about all of the horrors that society is uncomfortable talking about. Apparently, disability is part of that group.

We all grew up and are living in a very deeply entrenched ableist society. It’s time we use these opportunities to unpack and unlearn ableism together.

Thank you Tracy and BCEdAccess, for being such a strong voice.

Who We Are

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Update!!

My first law class is now complete.

Here is a poem I had to create about case law for one of my assignments. Cool law professor for making a creative exercise as part of the assignment!!

Case Law

Schools are places of learning
They mold, inspire and teach
But much to my surprise
Educational law is out of reach

As parents you have ideas
How your child’s education will go
Case law doesn’t float through your head
Until you have school conflict woes

As I sat consulting with a lawyer
He told me my case wouldn’t stick
There is no case law to support it
I thought he was just being a dick

I searched through all the case law
And much to my surprise
He was right about my case
I was hoping it was a bunch of lies.

Without educational case law
The people in charge are free
To do whatever the fuck they want
Consequences, they never see

Oh, education case law
It was not meant to be
I guess I have nothing left to do
But get drunk on spiked herbal tea.

There is a very concerning trend that is happening around this province in our school districts, and that is related to disappearing counselling notes and other sensitive student information.

We have case law from the Supreme Court of BC with expectations and instructions for the school boards on what they should be doing regarding counselling notes, but schools districts do not have policy as they should around this. This is regarding the notes being kept on school property and not taken home by the counsellor, notes being kept separate from the student record and locked, etc.

https://www.oipc.bc.ca/orders/298

https://www.oipc.bc.ca/orders/1226

79 (1) Subject to the orders of the minister, a board must

(a) establish written procedures regarding the
storage, retrieval and appropriate use of student records, and

(b) ensure confidentiality of the information
contained in the student records and ensure
privacy for students and their families.

If you are a parent who has had issues regarding this, or are concerned about this, I offer you a standard letter to send to your school board’s trustees and please CC: the Secretary-Treasurer and consider including the Ministry of Education in your email.  Feel free to write your own with your own individual issues, however, for those who just don’t have the spoons at the moment but are still very concerned, I offer you a letter below. Please attach the case in the link above to your email. The email addresses you will need you can find on your school districts website.

The Ministry of Education needs to have their legislation match current laws. Please email the Ministry of Education or your MLA’s to express your feelings on this matter.

Dear Trustees,

It has come to our attention a concerning trend in missing counselling notes. Confidential student information has gone missing in many school districts and this is an administrative crack in the system that is a disadvantage to students and their parents for many reasons.

We would like to bring to your attention case law that has already been established by the Supreme Court of Canada that states counselling notes are protected under the School Act as property of the school district and that they should be kept locked and treated as school records. In this decision it also states that school boards should develop policy around the storage of counselling notes.

We are requesting that you review your own school policy around school records and confirm if counselling notes have been added to this policy and if not, to implement new policy connected to the legal standards established by the Supreme Court. Please see the attached case law for your reference.

Kind Regards,

Parents SD##

This is a true story. It starts off like a too common of a story in the education system. A child with undiagnosed learning disabilities struggles in elementary school. I know. This is an old story that people are sick and tired of hearing about. Yeah yeah, undiagnosed learning disability…whatever!! It has become so common it’s like discussing the rain in BC. This story could easily end in tragedy, but this story has a twist. An anxiety diagnosis happens in kindergarten, epilepsy for four years-100 seizures a day, profound Executive Function, ADHD combined diagnosis is in grade five, and learning disability in written expression is confirmed by the end of grade seven. (Assessment paid for privately by parents, I might add.)

Support only really started in grade six and by then, the teacher and LSS teacher were playing catch up. Grade seven hit and the teacher had eight students with IEP’s in her room. Reality kicks in and the need was just too great. Reluctantly, due to no solution in sight, academic achievement in specific subjects were put on the back burner and social and emotional survival was taking the lead.

High school starts, and for the first time EA support that his mother advocated so hard for, are finally being offered. By now this child is refusing additional help and doesn’t want a scribe. He’s used to struggling on his own, he has delt with bullies, and doesn’t want to stand out. He wants to be like everyone else. Struggling academically for him is a well-worn walked path, one that is predictable, that allows him to hide.  His mother and his case manager are discussing the upcoming English class in a zoom conversation. Mom fears that without the support, he will fail. Based on history, she predicts nothing will get onto the page and without alternatives there will be nothing for the teacher to even mark him on. Child is still refusing. Mom knows how strapped the system is for resources and EA time. She doesn’t want to use up an EA that isn’t going to be utilized and have someone else go without. She reluctantly takes a long pause and says to the case manager, “Maybe he needs to fail. Maybe he needs to fall in order for him to realize and accept support.”

His case manager goes ahead and makes the decision to put an EA in the class anyways.  The EA and child hit it off. They were a great match and really connected. For the first time, the child is truly accessing his education and the outpour of work is stunning. The mother flips through a stack of pages bursting out of her son’s binder. Page after page they are filled with stories and reflections. The mother could hear her son’s strong voice shine through the writing, all while written in the EA’s hand writing. The upcoming report card revealed a B. The child, who over the years, was conditioned to avoid his painful report cards, now willingly leaned in closer to the computer to see his mark, and smiles…with surprise.

At the IEP review meeting, not only does the child for the first time accept that the EA-scribe support was very much needed, but he requested for it to continue in the future for all English classes. To top it all off, he acknowledges and accepts a scribe for all future assessments, for ALL of his courses and for this to be done in the learning center. 

He now has a chance. Finally!

Turns out he didn’t need to fail in order to accept support. He was used to failing. He needed to feel what it was like to succeed.  

**Not providing assessments for learning disabilities and proper support for equitable access to education is a systemic failure that punishes children for how their brain is wired and has repercussions for the rest of their life, their children’s life, their children after them, and for all of us as a society. Children don’t live in a silo. When children are struggling in school, it affects every single member of the family.  When children succeed in school, it affects every single member of the family.

Sent via Email – Friday July 23rd, 2021 (Edited – number of complaints removed for blog)

Dear Commissioner,

As a parent who submitted X TRB complaints last July 2020, and now X new complaints related to the conduct of the certificate holders providing false/misleading information during the TRB process, I am urging you to please review the process for the Teacher’s Regulation Branch through the lens of fairness for parents and students.

Change requests:

1. Provide more details and transparency to the process on the website and through written communication.
   1. On the complaint form, explain if they need more space than what is given in the box, that they can submit an attachment.
   2. Inform parents that if they become aware of new evidence, they may submit it and when the last date of submission is in their acceptance letter.
   3. Explain that if they experience any retaliation due to their complaint, that they can submit a separate complaint for the conduct of the retaliation in their acceptance letter or have this written on the complaint form at end when it explains that the teacher will be aware of their name and attachments.
   4. Explain in the decision letter that if they feel that the certificate holders provided false information or withheld any information to mislead the Commissioner that they feel impacted the final decision, they can submit a separate complaint for that specifically.
   5. On the statics page, show how many parents’ complaints vs. district reports made it to the consent resolution stage or investigation stages.
   6. The website is a maze of information and is confusing to navigate through. I like the videos, but they are hidden in the website. There is no clear pathway to navigate through the information. I am suggesting modifications to the website to make it more accessible for parents. 

2. After the initial review or investigation is complete with the certificate holder, the Commissioner should be allowed to contact the parents to clarify any information the Commissioner is missing, or is unclear about.  That should include clarifying information or perceptions with the children or parents. There should be no assumptions made or have any unanswered questions from the Commissioner in the decision letters. Parents should be able to see initial findings from the Commissioner and be given the chance to offer any other information or evidence that is relevant before the final decision is made.  We have no idea how the lawyers are going to take the situations and spin them.  Myself and many parents have felt that their words were manipulated and false information or incorrect information was in their decision letter without an opportunity to clarify. 

3. The process should be viewed through the lens of parents who may have disabilities themselves, be part of a vulnerable group, and that this experience is stressful. Follow-up after the initial decision is therefore crucial to the fairness process.  When you read a decision letter that has false information and there is no chance to be heard after that, parents feel re-victimized all over again. The TRB process has been traumatic to parents, compounding the stress they have already experienced within their school district. Students will also feel victimized if they feel that they were not believed.  Parents feel they are taking a big risk in filing these complaints, and many do not follow this process for fear of retaliation or lack of trust in systems.  

Please feel free to contact me to discuss or clarify any of these change requests. I am more than willing to elaborate and explain any of this further.

Please confirm that you have received my letter.  Please take all the time you need to reflect on my requests.  I appreciate that you have a tight schedule, I would appreciate an approximate timeline of when you are able to respond.

Kind Regards,

Kim Block
CC: Ministry of Education, Ombudsperson

EDIT: Added in a second email after feedback from another parent. I completely agree with their point.

“I would request that any of the certificate holder’s evidence that is referenced in the Commissioners decision letter needs to be provided to the complainant. A parent has a right to any and all information that pertains to their child that the school district is in possession of and there is no grounds for why this information is being withheld. It is a one sided process with no transparency when you get a decision letter that continuously references the certificate holders evidence but then does not outline what that evidence was and when the evidence is not provided for referencing. The Commissioner should be held accountable to demonstrate how he came to his conclusions and exactly how he substantiated his findings. Otherwise this makes it very difficult to appeal on any level but specifically to the Supreme Court within 60 days. If you have to use FOI to obtain the information there is no way to meet this.” – PARENT

(For the readers of this blog, I would just like to make it clear that I never experienced any retaliation from filing the TRB complaints and that request is on behalf of other parents who did experience retaliation.)