Tag: #BCHumanRightsTribunal

How does the Duty to Accommodate Apply in Education?

What are Schools Responsible for?

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

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

What does the Duty to Accommodate in Education Involve?

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

Where do these responsibilities come from?

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

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

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

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

Webinar by CLAS and BCHRT – Making a Human Rights Complaint in BC

https://www.peopleslawschool.ca/webinar/human-rights-complaint/

Lawyers Cayleigh Shiff from the Community Legal Assistance Society and Katherine Hardie from the British Columbia Human Rights Tribunal answer common questions about making a human rights complaint in BC.

Highlights

In this webinar, you will learn:

Introduction to discrimination

  • What discrimination is and which characteristics are protected by law. [3:55]
  • What the BC Human Rights Tribunal is and the role it plays in protecting British Columbians from discrimination. [9:10]
  • Where, in addition to your workplace, you’re protected from discrimination. [11:20]
  • What a duty to accommodate is and how far it extends. [13:20]

Before (or instead of) filing a formal complaint

  • What you can do if you think you have been discriminated against in a retail store, other than making a formal complaint with the BC Human Rights Tribunal. [18:35] 
  • What you can do if you think you’ve been discriminated against at work, other than filing a formal complaint with the Human Rights Tribunal. [20:45]

Making a human rights complaint

  • Whether a human rights complaint must be filed with the BC Human Rights Tribunal or whether it could be filed with the courts. [23:20]
  • What a person can gain from pursuing their human rights complaint. [25:25]
  • How to initiate a human rights complaint, whether a lawyer is required, and whether there are free or low-cost ways to get help. [28:40]
  • The steps you can expect in the complaint process with the BC Human Rights Tribunal, including whether you must testify in front of the person who discriminated against you. [33:50]
  • Factors to consider before filing a human rights complaint. [38:10]
  • How to set yourself up so that your complaint has the greatest chance of success. [44:15]

Live questions

  • Whether, in a dispute hearing before the Residential Tenancy Branch, an arbitrator can make a decision about whether there was discrimination. [48:00]
  • At what point microaggressions would amount to discrimination. [49:30]
  • Whether intent is relevant in assessing whether something amounts to discrimination. [52:00]
  • What you can do if you live in a condo and you think the strata rules were applied differently against your family because of your special needs son. [53:40]
  • What to do if you can’t file a human rights complaint within a year because it will further negatively impact your safety or human rights. [55:35]