In the Human Rights Code section (8), there is the Duty to Accommodate.
Under the Duty to Accommodate there is….
- Duty to Inquire (Meaningful inquiry)
- Duty to Consult in Good Faith
- Duty to Cooperate (Accept reasonable, not perfect, accommodations)
- Duty to Facilitate
There are also layers under the umbrella duty to accommodate. There is a process that must be completed in order to obtain those accommodations. Since, this site is focused on disability rights and education focused, for this page I will be using disability as the example. First, the service provider must have proof that someone is disabled.
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.
Which now leads us to the
Duty to Inquire
Duty to Inquire
Here is link to more information and the above picture.
Now Education has the Duty for MEANINGFUL inquiry
Student (by Parent) v. School District, 2023 BCHRT 237
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.
Duty to Consult
A great cases that outlines the duties to consult by schools is the Hewko v. B.C., 2006 BCSC 1638 (CanLII)
There are many great details in this case, here are a couple that speak to me regarding the duty to consult.
AND also
Duty to Co-operate
Here is the link for the source below
Duty to Facilitate Implementation
We (as parents/guardians) have a “Duty to facilitate implementation” under the duty to cooperate. See below for a case law example.
257] I find that the respondent took reasonable steps to deal with Grayson’s dysregulation in a timely manner and that the Loop of School plan was part of this. Further, I find that the Loop of School plan was a reasonable accommodation.
[258] The only person who did not agree with the plan was Ms. Kahn. Her reasons for disagreeing at the time appeared to relate to the fact that Grayson’s time at school would be too short before she would be required to pick him up. However, since the plan depended on starting Grayson out successfully in short but increasing increments, and the plan was supported by all involved in developing it, including Ms. Kahn’s private BCBA and her contact at Kerry’s Place, I find that there was no reasonable basis for Ms. Kahn’s rejection of the Loop of School plan.
[259] An applicant, who in this case is represented by his mother, has an obligation to co-operate in accommodation process, which includes a “duty to facilitate the implementation” of a proposal for accommodation that is reasonable. See Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC) (Renaud); YB v. Conseil des ecoles publiques de l’Est de L’Ontario, 2017 HRTO 492; Fisher v. York University, 2011 HRTO 1229 (“Fisher”).
[260] In rejecting the Loop of School plan, Ms. Kahn failed in her obligation to co-operate in the accommodation process. In so finding, I note that parents do not have the right to dictate the accommodations which their children will be provided with to access education. While parents do have the right to provide input as part of the accommodation process – which Ms. Kahn did in this case – they must accept reasonable accommodations offered by the school board. See UM v. York Region District School Board, 2017 HRTO 1718; Fisher.
To read the whole decision click Kahn v. Upper Grand District School Board, 2019 HRTO 1137 (CanLII)