ooohhhh gather around for this one!
Lots of interesting learnings in this decision.
Thank you, thank you, thank you to the parent who brought this decision forward.
It was a win for them personally and a win for us for this analysis.
Here we go. This is an exclusion case & Indigenous rights.
Parent obo Student v. BC Ministry of Education and another, 2025 BCHRT 112
There is a lot in here, so I am going to list the important parts that I see.
- Ministerial order analysis
- Section 11 appeal was dismissed, HR complaint continues
- Timeliness application
- Ministry of Education dismissed
Respondents Defence Strategy
[10] The School District says that in April 2019, it decided to place the Student on a partial day program pursuant to the Ministry’s Special Needs Students Order, M150/89 [ Ministerial Order ], which states:……
(This policy is used as the school district’s defence to the exclusion in this case.)
[12] In or around 2019, the Student was diagnosed with Attention Deficit/Hyperactivity Disorder-Combined [ ADHD-C ], anxiety, and Oppositional Defiant Disorder [ ODD ].
[13] The School District says the Ministerial Order clearly applied in the Student’s circumstances. It says that shortly after the Student started kindergarten, her teacher raised concerns regarding some of the Student’s behaviours related to self-regulation and ability to follow expectations in the classroom, which indicated a need for extra support. The School District says these behaviours escalated during the period of January to March 2019, and included task avoidance, touching others, eloping from the classroom, disrupting the class environment, being unable to follow simple adult directions, and running through the school. In response, the School District says it began implementing more interventions and support for the Student. However, despite these additional supports, the School District says the Student’s behaviour continued to escalate to the point that neither her educational needs, nor those of her classmates, were being met.
The parent made a section 11 appeal
18] The parties agree that the Parent went through the following steps of the appeal procedure:
a. Step 1: appeal to the school principal who upheld the decision to place the Student on a partial day program.
b. Step 2: appeal to the Assistant Superintendent, Learning Services for the School District, who upheld the school principal’s decision.
c. Step 3: appeal to the Superintendent of Schools, who upheld the Assistant Superintendent’s decision.
d. Step 4: appeal to the Board of Trustees for the School District. The Board issued its decision on November 28, 2019, stating that they did not deem it appropriate to require that the Student be immediately returned to full-time attendance at school.
This is SUPER important – take a look at the reason for the appeal not being upheld
[20] The Superintendent of Appeals summarily dismissed the appeal concerning s. 2(2)(f), and an adjudicator rendered a decision dismissing the appeal under s. 2(2)(b) finding that it did not have jurisdiction to hear the appeal because the Student had not been suspended from school [ Ministry Appeal Decision ].
Because the student hadn’t been suspended!!
They do this a lot!
This is VERY important learning for us.
Ministry of Education – Dismissed
So the parent filed against the Ministry of Education as well. They were dismissed from the case. No surprises here. We have seen this over and over.
[31] The Ministry says there has been a clear legislative choice, as set out in the School Act , to divide the roles and responsibilities for K-12 education in BC between the Ministry and the School District. The services the complaint claims the Ministry ought to have provided have not been delineated as within the scope of the Ministry’s jurisdiction and/or authority and would involve an inappropriate intrusion into the role and responsibilities of the School District.
[32] Further, the Ministry says there is no evidence that it had any involvement in the decisions or actions related to the Student’s educational program. The Ministry provides funding and oversight at a high level with respect to K-12 education.
Ministerial Order does not excuse them from human rights process
Now this is SUPER INTERESTING!
[38] The School District argues that the allegations in the complaint fall outside the jurisdiction of the Tribunal. Specifically, the School District says the complainant is improperly attempting to challenge the validity if the Ministerial Order through the Tribunal’s process. The School District notes that one of the remedies sought in the complaint is “changes made to the School Act to protect children who have special needs,” which is beyond the Tribunal’s authority. The School District says it has the legal authority to put students on a partial day program pursuant to the Ministerial Order, under section 75 and 168(2)(t) of the School Act . In this case, the School District says that the Student demonstrated behaviour which met the criteria for a partial day program as set out in the Ministerial Order.
[39] I agree with the School District that the Tribunal does not have the authority to overturn the Ministerial Order or to find the Ministerial Order itself invalid. Similarly, the Tribunal cannot order that changes be made to the School Act . However, I am not persuaded that the allegations in the current complaint are outside of the jurisdiction of the Tribunal.
See what I mean by the respondents will always have an argument.
The stuff they come up with is fascinating.
I gotta hand it to them, they are creative.
The tribunal’s response was this:
[40] Although reforms to the School Act are raised in the complaint as a potential remedy, I read the allegations as encompassing concerns about the manner in which the Ministerial Orders were applied in these circumstances, and the impact on the Student as an Indigenous child with disabilities, rather than the validity of the Ministerial Orders themselves. This is not a complaint challenging the non-discretionary application of legislative criteria, for example. The determination of the “educational needs” of a student with special needs or other students, as well as the appropriate alternative programming for a child with special needs, per the Ministerial Order, are discretionary decisions made by teachers or other School District personnel. These decisions, if influenced by the protected characteristics of an affected student, are within the Tribunal’s jurisdiction to review.
[43] I do not agree with the School District’s characterization of this issue as one of jurisdiction. Rather, it is part of the human rights analysis the Tribunal must undertake in any case and would more appropriately be raised under s.27(1)(b) or (c) of the Code . Nevertheless, I consider whether the allegations against the School District raise an arguable contravention of the Code under s. 27(1)(g) analysis below.
[44] Accordingly, I deny the School District’s application under s. 27(1)(a) of the Code .
Woohoo!
Now, another benefit of this decision is that the respondents know that this argument wont fly with the tribunal. So, this case helps to whittle down their arguments. That is very good.
AND if this wasn’t interesting enough, we even get a timeliness application.
Timeliness Application
[50] I am satisfied in the current circumstances that the allegations form a continuing contravention, and the most recent act of alleged discrimination occurred within one year of the filing of the complaint. I am further satisfied that the allegations pass the “arguable contravention test.”
What is a continuing convention of the code?
[47] A complaint is filed in time if the last allegation of discrimination happened within one year, and older allegations are part of a “continuing contravention”: Code , s. 22(2); School District v. Parent obo the Child , 2018 BCCA 136 at para. 68 . A continuing contravention is “a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code , and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City), 2015 BCCA 57 at para. 23 ; School District at para. 50 .
Here are some important allegations that give us a peek into what the parent was dealing with. Always know with these decisions, we aren’t getting the full picture. Decisions are written up to only include the information that is needed for the decision. There is ALWAYS more to the story.
a. February 1, 2019: The Student was put on partial days of school and was not allowed to participate in school activities or be in attendance with her peers;
b. March 1, 2019: The previous vice principal said: “it just gets to a point in the day where we just don’t want to deal with [the Student] anymore”;
c. April 1, 2019: The Parent was called to the school to pick up the Student because “she was having trauma triggered behaviours and several school staff including the principal, vice principal, and EAs had her cornered in the classroom and she was scared, trapped, and in distress;
d. June 1, 2019: The principal said to the Parent: “have you thought about transferring her to a different school?”;
e. June 1, 2019: The Student was separated from her class and was not allowed to be in a classroom with other children;
f. August 1, 2019: The previous Assistant Superintendent said school staff do not want to work with the Student because she is a “dirty girl”;
g. September 1, 2019: “Step 1” meeting with the principal to appeal the decision not to allow the Student in school full time – denied;
h. September 1, 2019: “Step 2” meeting with the Assistant Superintendent to appeal the decision not to allow the Student in school full time – denied;
i. November 1, 2019: “Step 3” meeting with Superintendent of Schools to appeal the decision not to allow the Student in school full time – denied;
j. November 26, 2019: “Step 4” meeting with Board of Trustees to appeal the decision not to allow the Student in school full time – denied.
In conclusion – public interest too!
[66] For these reasons, I find that the complaint is timely. Had I reached a different conclusion, I would have still found that the public interest favours accepting this complaint. The education system has been identified as a common area of human rights concern for Indigenous children: BC Human Rights Tribunal, (2020) “Expanding Our Vision: Cultural Equality and Indigenous Peoples’ Human Rights” at p. 27; Ontario Human Rights Commission, (2018) “To dream together: Indigenous peoples and human rights dialogue report” at p. 40. Courts and Tribunals have taken notice that Indigenous women and girls have been, and continue to be, particularly subject to hurtful biases, stereotypes and assumptions, including that they are “unintelligent” or “people of low or bad character not deserving of the same respect, humanity and dignity as others”: R. v Zakuti , 2021 BCSC 2253 at para. 25; Lindsay v. Toronto District School Board , 2020 HRTO 496 at para. 23. Here, the Student as an Indigenous girl who has been denied full access to the public education system, requires that this complaint be situated in its full socio-historical context. The Code ’s purpose of identifying and eliminating persistent patterns of inequality associated with discrimination protected by the Code is served by this complaint being heard at a hearing on the merits: s. 3(d).
And here is this beautiful statement
Dismissal denied – Complaint Proceeding
[68] I deny the application to dismiss the complaint against the School District. These allegations will proceed to a hearing.
I really encourage you to read the case in full. There are a lot of interesting details in there.
Due to the parent’s persistence in bringing this case forward, we have some very interesting legal analysis that are advancing the human rights code. This decision is now an advocacy tool and we are learning about what we need to do. The piece about appeals being denied around suspensions is very interesting to have this documented.
It would be interesting to see a section 11 appeal done if the school refuses to log it as a suspension. Topics to discuss amongst education advocates, the importance of exclusion being labelled a suspension.
A big thank you to this parent’s advocacy.
