Review from last week:
Our first blog in the series we looked at how the Human Rights Code is the law above all other laws and policy, when in conflict. It is our most powerful advocacy tool.
Today we are going to look at the discrimination test piece by piece. But first, before we dive deep, an overview of the complete 2-part test.
Section One: Foundation Overview
Before we discuss we need to read the written authority where all of this comes from. This is from the BC Human Rights Tribunal Website. This is THE discrimination test.
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Leading cases: Test for discrimination
“Moore v. BC (Education), 2012 SCC 61
To prove discrimination, a complainant has to prove that:
- they have a characteristic protected by the Human Rights Code [Code];
- they experienced an adverse impact with respect to an area protected by the Code; and
- the protected characteristic was a factor in the adverse impact.
Once a complainant proves these three things, the respondent can defend itself by proving its conduct was justified. If the respondent proves its conduct was justified, then there is no discrimination. If the respondent’s conduct is not justified, discrimination will be found to occur (para. 33).”
3 questions.
- Does your child have a disability?
- Did they experience harm?
- Was the harm connected to their disability?
Here is the “bona fide” and reasonable justification test.
“British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 at para. 20. Once a complainant proves that a protected characteristic was a factor in adverse treatment regarding a service, the respondent can defend itself by proving that it had a “bona fide and reasonable justification” for its behaviour. It has to show:
- its behaviour was for a purpose or goal that is rationally connected to the function being performed;
- it behaved in good faith; and
- its behaviour was reasonably necessary to accomplish its purpose or goal, in the sense it cannot accommodate the complainant without undue hardship.”
I will explain this more in plain language next week. Just realize that the second part of the test exists and they can justify their actions.
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In human rights decisions, it is very common to see paragraphs like this before they explain their decision, reviewing the discrimination test.
Mother obo Child v. Daycare, 2024 BCHRT 251
[24] To prove their complaint at a hearing, the Child will have to prove that he has a characteristic protected by the Code, he was adversely impacted in services, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If he does this, the burden would shift to the Daycare to justify the impact as a bona fide reasonable justification. If the impact is justified, there is no discrimination.
Key word here is “impact”
Because, and this is important…
From the Human Rights Code, Section 2
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Discrimination and intent
2 Discrimination in contravention of this Code does not require an intention to contravene this Code.
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You don’t have to mean to discriminate, to discriminate. It’s not about the person’s intentions. It’s about the impact. You can have a teacher who didn’t mean to discriminate, but the impact has been harm. My children have been denied accommodations by education staff who are following the school culture and normalization of accommodation denial or were professionally unaware/untrained. The impact of their behaviour and decisions was still very harmful. LOTS of kids are slipping through the cracks in the system. It’s not because we have a mass widespread issue of mean teachers cackling over accommodation denial. It’s not about their intentions.
Now let’s break this down and really examine the discrimination test:
Section Two: Question #1
- Does your child have a protected characteristic under the BC Human Rights Code?
Physical disability and mental disability are protected grounds. There are 2 really important parts to this that we need to discuss.
a. Diagnosed Disability
One important thing in this process is that you need to provide documentation that your child has a physical and/or mental disability. That requires a doctor’s letter or assessment of some kind. Your child’s school will need to have a copy of this documentation as evidence that they have a protected characteristic.
Parents sometimes are scared to get their kids diagnosed and fear that the label is going to hold them back in life. One VERY important aspect of getting a diagnosis and getting documentation from a doctor is that it will ensure, without a doubt, that your child has a protected characteristic under the Human Rights Code. This is THE ticket that will protect your kids and give you advocacy power. Not only in their school years, but post-secondary years and in their employment. Diagnoses can be a gift you give your child. For more info on the benefits of a diagnosis, I offer you this blog for consideration.
In Student (by Parent) v. School District 2023 BCHRT 237, a letter from her doctor was provided to the school and placed in her school file. This is what locked the school district in and triggered the meaningful inquiry decision in favour of the student. (more on this in future blogs)
Providing documentation is very important. If your child has a diagnosis of Generalized Anxiety Disorder, Depression, or ADHD. Even if there is not a designation attached, I HIGHLY recommend that parents get a doctor’s letter and give it to your child’s school. As soon as you do that, they are now locked in. It doesn’t give the school district staff or lawyers any wiggle room to argue it. One tick in the check box is done. ✅
b. Undiagnosed disability
Now, what about those kids who are PERCEIVED to have a disability and just haven’t received a formal diagnosis yet. Maybe on a waitlist. Are they protected?
Yes! This case is from 1993 in BC.
Silzer v. Chaparral Industries (86) Inc., 1993 CanLII 16481 (BC HRT)
“54] In any event, it is well-established that the protection against discrimination on the basis of disability includes perceived disability:
Hamlyn v. Cominco Ltd. (1989), 1989 CanLII 9050 (BC HRT), 11 C.H.R.R. D/333;
Biggs v. Hudson (1988), 1988 CanLII 8918 (BC HRT), 9 C.H.R.R. D/5391 (B.C.H.R.C.). It is clear that Chaparral perceived Silzer’s health problems, singly or in combination, as a significant disability, possibly impeding his ability to work without endangering himself and others and entitling him to long-term disability benefits. I find that these facts come within the scope of “mental or physical disability.”
A recent daycare case is an excellent case to keep in your back pocket.
Mother obo Child v. Daycare, 2024 BCHRT 251, it was recommended by the daycare that the child be assessed for Autism and he was perceived by the daycare staff to have a disability. The child was protected under the Human Rights Code. If there is any confusion about whether your child will be protected, I high recommend you consult with BC Human Rights Clinic or Disability Alliance. To read more about this daycare case, I recommend this blog.
If you are relying on their perceived disability, you are going to need documentation that the school in fact does perceive them to have a disability. If there is any way here for the school/lawyers to wiggle out of a human rights complaint and say your child is not being perceived to have a disability, here is the area of wiggle room. Email communication with your child’s school is extremely important.
Section Three: Question #2
2. Are they experiencing any adverse effect?
This is about harm.
Is your child refusing to go to school? Are they struggling? Loss of self-esteem? Do they feel negatively about themselves because of their struggles? Are they losing sleep? Are they crying? Having meltdowns? Are they not able to attend or allowed to attend school full-time? Are features of their disability being exacerbated? Were they embarrassed, or did they not experience accommodation in a dignified way? Were they prevented from participating in any way and missed out on an experience other kids were getting to experience?
We need to have evidence of the harm. So if they are picking their skin, absenteeism has skyrocketed, if they are crying when they talk about school, if they are coming home with injuries from being bullied, we need to record and document all of it. Videos. Photos. Email communication with the school. Counsellor appointments. As much documentation as you can.
Section Three – Question #3
3. Is there a connection between the harm and their disability
This is where it can get tricky, depending on the situation. For example, if you are requesting movement breaks for your kid with ADHD, because they need regulation and it’s being denied, you can connect that accommodation request to a feature of an ADHD disability related need.
But now let’s say they are being bullied. Do you know for sure that it is connected to their disability? Do you have evidence or a logical argument for the connection? One parent’s attempt at HR complaint over this connection was not accepted.
If they have a learning disability and they need speech-to-text access, and they are being denied this, it is a clear link to the harm and their disability. Schools need to remove barriers.
We need to be able to explain how the harm they are experiencing is connected to their physical or mental disability. Most of the time I think it can be very clear, but sometimes it can get fuzzy. Or at least the lawyers like to argue the fuzziness in the complaint process.
**** This is a very important rights-based advocacy note. When we advocate we need to explain this part very clearly in our email communication. How the harm that is occurring is connected to our child’s disability. The school then has the job to investigate what the barriers are and actively work at removing them. But the harm – disability connection is something we want to make crystal clear. Crystal clear.
Section Four – Do I have a human rights complaint?
Parent(s)/guardians always want to know when talking about their situation, do I have a human rights complaint?
On the complaint form with the BCHRT, you will need to explain your situation by answering the three questions. If you can answer the three questions, then you have the info you need to fill out the form, and the tribunal will determine if it will be accepted or not.
- Does your kid have a disability?
- Were they harmed
- Is the harm linked to their disability?
Yes + Yes + Yes = Discrimination
Whether the discrimination is legal or not, that is the next question. But to fill out the form, the justification part isn’t your job. That’s the school districts.
The justification part is another part of the discrimination test that I have decided to break up into two parts and I’ll post it on Sunday. This blog will be too long if I tackle both aspects in one blog.
Key Takeaways from this week
There are 3 questions you need to ask yourself to determine if your child is experiencing discrimination. This is our sword. We can ask these 3 questions and apply it to the advocacy situation we are struggling with. We may need to keep on swinging our sword all the way to the top of administration if we have to. A rights-based approach to advocacy can help reduce the harm our children experience if their accommodations are being denied under S.8 of the Human Rights Code.
When we advocate, we need to be able to communicate the harm our children are experiencing and how this harm is connected to their protected characteristic. This is key and will help with meaningful inquiry and eliminate the defence of hindsight. (more to come on this later)
Impact is the focus. The harm your child has experienced. Not intent. They don’t need to intend to discriminate in order for their actions to create discrimination.
Coming up on Sunday
I have decided to split this topic in half. It’s a lot. So I will continue to discuss the second part of the discrimination test – the reasonable justification test this week, posting on Wednesday.
After we get through the discrimination test then on Sunday we start to look at the Duty to Accommodate process. Who is responsible for what? We have some important things to communicate to the school in order to keep our kids protected under The Code.
Step One: Duty to inquire – Meaningful Inquiry in education