Author: Kim Block

Why Can’t we Just Sue the Government?

Good question!

Many parent(s)/guardians are asking this question. What they are experiencing in the education system is mass systemic discrimination and they are wondering how in the world is this allowed to happen?? Doesn’t the Charter protect our rights?

I hope this blog is used as a launching pad for discussion. I encourage people to be critical of this blog, question it, challenge it, and be curious about what I could be missing. What’s your opinion??

Let’s tear this question to bits.

Why can’t we just sue the government?

Funding

  1. A large majority of parents want to sue the government over lack of funding, EA support so their children can get an education. Something connected to scarce resources. They feel that resources are not being distributed fairly and people with disabilities aren’t getting their needs met and this is discrimination.

When you sue the government it needs to meet a specific legal test. We can’t just sue for lack of funding. If we could, any non-profit organization that felt they weren’t getting enough funding would be suing. That would be all of them. All non-profit organizations of marginalized community groups need more funding and feel they are never getting enough to service their community who are facing lots of discriminatory situations. They are all understaffed. All competing for grants. All desperate. All good and worthy causes. All justified. Yet still… not getting the funding to meet the needs of their community. Keep reading, I’ll explain further.

Quality of Life

2. Something to keep in mind, the government doesn’t owe us a certain standard of living. There is no legislation or law on this. We know this because people are sleeping on the streets and they can’t sue the government for being in that position.

Democracy & Charter of Rights

3. Our government works as a democracy. The system that we have to express our dislike over how the government spends our money, is through voting, contacting your MLA, or peaceful protesting. Other social movement activities like signing petitions, or starting your own non-profit organizations to work with other community members to advocate are all “system” approved ways of furthering your cause. As we will read below in case law, courts will not tell the government how to spend their money when it’s connected to resources in dealing with inequity. The government is allowed to take a “one-step” at a time approach when addressing issues of inequality. They are allowed to determine how to spend society’s limited resources and create social policy when choosing between disadvantaged groups. Something to keep in mind, our system is set up as a separation of powers between the government and the court system. The “conversation” that happens back and forth between courts and the government creating laws is often referred to as the democratic dialogue. See the two Supreme Court of Canada decisions related to Charter Challenges below.

Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66 (CanLII), [2004] 3 SCR 381

[75] [I]t is not realistic for the Court to assume that there are unlimited funds to address the needs of all.”

[79] While purely financial considerations are not sufficient to justify the infringement of Charter rights, they are relevant to determining the standard of deference for the test of minimal impairment when reviewing legislation which is enacted for a purpose which is not financial.

[83] It is also clear that while financial considerations alone may not justify Charter infringements . . . governments must be afforded wide latitude to determine the proper distribution of resources in society . . .  This is especially true where Parliament, in providing specific social benefits, has to choose between disadvantaged groups . . . .

Fraser V. Canada [2020] SCC 28

[ 207 ]                      Governments must be afforded the latitude to act incrementally when addressing a deeply ingrained, complex and persistent social phenomenon such as inequality. (This assumes that the inequality arises from factors in society; where the government itself has created the inequality, matters are, as we have already indicated, somewhat different.) There are processes by which a government must set its priorities, allocate its budget, and obtain parliamentary approval of its programs. In designing legislation to address a particular equality issue, a government can draw on far more internal and external expertise than we judges can. As a result, it is better positioned than we are to appreciate the consequences of a particular course of law‑making, both upon society and upon public resources. With these practical realities in mind, we must also recognize that, were a government expected to remove all inequalities for all groups on every occasion it acted, it may be disinclined to act, given that any remedial scheme will inevitably be under‑inclusive in some respect. Governments would, understandably, become “reluctant to create any new [remedial] benefit schemes because their limits would depend on an accurate prediction of the outcome of court proceedings under s. 15(1) of the Charter ” ( Egan v. Canada , [1995] 2 SCR 513, at para. 104, per Sopinka J.).

[ 208 ]                      To avoid this chilling effect, and to encourage governments to enact remedial legislation addressing pre‑existing disadvantage, this Court has (until now) judiciously accepted that governments may implement reforms “one step at a time, [and] address[s ] [the reforms] to the phase of the problem which seems most acute to the legislative mind” ( R. v. Edwards Books and Art Ltd. , [1986] 2 SCR 713, at p. 772, quoting Williamson v. Lee Optical of Oklahoma , 348 US 483 (1955), at p. The focal point in assessing remedial legislation is not to ask whether the government has met “the gold standard” ( Auton , at para. 62; see also paras. 59-61), but to recognize that government should not be obliged to deal with all aspects of a problem at once. It must surely be permitted to take incremental measures. It must be given reasonable leeway to deal with problems one step at a time, to balance possible inequalities under the law against other inequalities resulting from the adoption of a course of action, and to take account of the difficulties, whether social, economic or budgetary , that would arise if it attempted to deal with social and economic problems in their entirety, assuming such problems can ever be perceived in their entirety. [Emphasis added.]

[ 213 ] …..This is because only legislatures have the institutional capacity to conduct the research and study necessary to assess how, and at what pace, its resources should be applied to most effectively address a particular pre‑existing equality issue (and ultimately, to oversee that implementation) . Courts are not well placed to define the nature and scope of an obligation to enact 
sufficiently remedial legislation (Ferrel v. Ontario (Attorney General) (1998), 42 OR (3d) 97 (CA), at p. 113).

[229 ] Similar issues will undoubtedly arise with any other social welfare legislation or government attempts to remedy systemic disadvantage. By reserving the right to arbitrarily second‑guess and undo any legislation that attempts to incrementally address systemic disadvantage, the Court makes it more practically difficult for legislatures and governments to implement policies that promote equality. Put simply, we see restricting the government’s ability to incrementally address disadvantage as a peculiar way to promote equality.

Human Rights Cases Involving Ministry of Education

4. Every single human rights case that I have read across Canada, that has included the provincial Ministry of Education in their complaint, has been dismissed. If their complaint continues, the Ministry of Education is never involved. I haven’t read one case where the Ministry of Education was included. The Ministry gives the funding to the districts and the districts decide how to allocate the money, which removes the Ministry of Education from decisions that would pull them into the human rights complaints about kids not accessing needed resources.

5. I know someone who had the opportunity to consult a lawyer regarding this matter. They were told a way to file a class action human rights complaint that could involve the Ministry of Education is if the Ministry have policy that is discriminatory. This route is still possible if they do this.

Human Rights Process

6. I have been asked, why can’t we just file a class action human rights complaint against the Ministry of Education? So we have established, it would need to be something like a discriminatory policy in order for it to be connected to the Ministry. If there is a group of parents who want to file a class action human rights complaint who wants to create a decision from the tribunal, we would need to find a group of parents who were potentially prepared for a 8-10-year fight. Right now, just for a single complaint to reach a hearing level at the BC HRT, it will take about 4-5 years according to flow chart produced by the BC Human Rights Clinic. It could take a year for the tribunal to write a decision, if not more. This case took 15 months for the tribunal to write up the decision. Especially if it was a class-action human rights complaint it could be long and complex. Class action lawsuits tend to be long. Lawyers fees for one parent I know, was given an estimate for $30,000 for hearing preparation and a $10,000 per day for a hearing. So this group of parents would need to be prepared to spend thousands of dollars, agree to not accept any settlement, and continue along to a hearing. OR they would need to be ready to self-represent themselves. OR they could find a unicorn of a lawyer willing to do pro-bono work. (So many parents have had their pro-bono lawyer drop them before a hearing. We would need to find someone willing to commit for the long haul for free.) After the BC HRT decision is posted, the Ministry could possibly file a judicial review after the decision. With a class action decision, the compensation money might be large enough or the precedent be enough that they view it worthwhile to pursue further. That would launch it now to the BC Supreme Court for more legal fees and more time…. and even with all that, a policy change would affect only those impacted by the policy and wouldn’t make the systemic change that parents are looking for when they ask the question, why can’t we just sue the government? If parents want a policy change, I wonder if it would be best to file a single complaint and get the policy change during a settlement mediation meeting. It would be so much faster and they could get the policy change that they need much faster so it could impact their children. Not 10 years later. The very system that is intended to resolve discriminatory issues can be a barrier itself.

Courts & Education

7. Generally, the courts don’t like education cases. It depends on what you are suing for and what the legal test is.

For example: Educational Malpractice

Gould v. Regina (East) School Division No. 77, 1996 CanLII 6807 (SK KB)

“The courts are an inappropriate forum to test the
efficacy of educational programs and pedagogical methods.
That judicial interference would be the inevitable result of
the recognition of a legal duty of care is clear from the fact
that in presenting their case, plaintiffs would, of necessity,
call upon jurors to decide whether they should have been
taught one subject instead of another, or whether one teaching
method was more appropriate than another, or whether certain
tests should have been administered or test results
interpreted in one way rather than another, and so on, ad
infinitum.  It simply is not within the judicial function to
evaluate conflicting theories of how best to educate.  Even if
it were possible to determine with exactitude the pedagogical
course to follow with respect to particular individuals, yet
another problem would arise.  Public education involves an
inherent stress between taking action to satisfy the
educational needs of the individual student and the needs of
the student body as a whole. It is not for the courts to
determine how best to utilize scarce educational resources to
achieve these sometimes conflicting objectives.  Simply
stated, the recognition of a cause of action sounding in
negligence to recover for “educational malpractice” would
impermissibly require the courts to oversee the administration
of the State’s public school system.“

Costs & Risk

8. If we did want to try and sue the government via the court system and not the human rights route, we would need to be prepared for it to possibly be tossed out. That wouldn’t be such a bad risk to take, however, if we lose the respondents will ask the courts that we pay their legal fees. Which can happen for the losing party in court cases. You’ll want to read this link. Costs are awarded to the successful party.

The Charter – Limited

9. What I learned from my human rights law class was that we don’t just have open-ended rights under the Charter, our rights are how they are DEFINED under the Charter. And that is case law. Case law tells us how our rights to not be discriminated against is defined. An example of this definition is the case Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 SCR 241. This case famously defined reasonable accommodations and separate classes for students with a disability as a reasonable accommodation due to what is considered reasonable and best interest of the child. All of the human rights cases that make it to hearings are what define our rights under the law too. These definitions and interpretations of law are important. (Duty to accommodate) Each decision defines our rights.

10. Also an important part of the Charter to understand is Section One – Reasonable Limits. The purpose of this “Section 1 effects a balance between the rights of the individual and the interests of society by permitting limits to be placed on guaranteed rights and freedoms. “Most modern constitutions recognize that rights are not absolute and can be limited if this is necessary to achieve an important objective and if the limit is appropriately tailored, or proportionate.” (Canada (Attorney General) v. JTI-Macdonald Corp., [2007] 2 SCR 610, at paragraph 36).”

To take a Charter challenge all the way to the Supreme Court of Canada it would be a 10-year fight, we would need a pro bono lawyer, and based on the case law I have seen, I am not aware of any case law that would be substantial in helping us to force the government to increase funding and resources for kids with disabilities in education.

11. Law isn’t the magic bullet that people tend to think it is. Laws can come into force but they need to be APPLIED for them to have an impact. That means that advocacy around using these laws will still need to happen. Law is a tool for us to use. The system needs to uphold these laws through its systems and accountability design. If the system doesn’t uphold a new law, it won’t be the magic we want it to be. We have laws that say it’s illegal to discriminate, and yet it still happens every day. We still need to change people’s hearts and minds. Law is a start, but it is just the beginning of the work. We need to take these laws and apply them. Laws won’t fix everything, but they are hugely important. We need a social movement AND laws. We need to use every avenue we have. I think of the parachute activities I used to play with my kids at Strong Start centers. We’d all have a piece of the very large parachute to hold onto and put the ball in and bounce it around. We all need to lift and do the work together if we want to keep the ball of inclusion on the parachute. We all need to be in our own corners, all lifting together simultaneously. All of the work done at BCCPAC, parent advocacy groups, advocacy organizations, human rights work, BC Ed Access, School Trustees, BCTF, Teacher’s unions, Post-secondary teacher education programs, EA programs, Professional Support Staff, Counsellors, Ministry of Education and Child Care, accessibility committees, and individual parents, all of us.

So now what?

This part is my opinion and experience. The soft spot of the education system is money. The people in power care about money.

It needs to become more expensive and time-consuming to deal with the consequences of discriminating against students with disabilities. Providing an inclusive education needs to become easier and less expensive. Which means to me, through my lens…. human rights complaints. LOTS OF THEM.

I can tell you 100%, and I have witnessed these meetings, that when systems get too many human rights complaints and their litigation costs go through the roof, then and only then do they start to look at how they can make policy changes to reduce the number of human rights complaints. I don’t care what their motivation is, the results are still the same. Policy in the right direction. Staff training. This is what it seems to take.

Human Rights complaints have the potential of being very expensive, as we advance the purpose of the Code and create those gold nugget decisions.

Dealing with ableism is slow and painful work. But necessary. Social movements are like that.

Every little bit of advocacy we do, all adds up. It all matters. Every bit of human rights law advancements, every decision, every DPAC inclusion meeting, every email to your MLA or school Trustee, every advocacy advancement you make, every time you support another parent. All of it.

We need an army of informed and empowered parents, spreading out and reaching all the corners of the province.

For those of you who are willing and able to get in the ring and make discrimination expensive, hats off to you, we need you. File away.

SOCIAL MOVEMENT + HUMAN RIGHTS LAW = MORE EQUITY, LESS ABLEISM

“this family needed help beyond what I’m trained for” (para 58)

This was a statement by made by the Acting VP in a human rights decision.

X by Y v. Board of Education of School District No. Z, 2024 BCHRT 72

[58]           Y asked the Acting VP in cross examination how the break from the classroom would have been restorative for X had it happened at home. The Acting VP replied that “Mom knows best”, noting that X was “totally dysregulated”, placed in a challenging classroom, and needed space. The Acting VP said that X spoke a lot about his Dad during this time, and how he missed him. He observed, “this family needed help beyond what I’m trained for.”

This has me asking…

What are educational staff trained for?

AND

When professionals, such as occupational therapists (OT), psychologists, or speech-language pathologists, make recommendations, why are some parents having issues with getting these recommendations placed in their child’s Individual Education Plan (IEP)?

The kinds of education that teachers have for disabilities vary greatly and in my opinion, extremely lacking. Huge gaps. They hold similar beliefs and biases as the general public. I have learned the hard way that some teachers have zero training in this area. There are educational staff who have, on their own, focused their professional development in this area and are extremely valuable. There is a huge sliding scale of knowledge and skill between educators and administrators.

We already know that the human rights code supersedes classroom teacher autonomy.

So above all, they need to provide an equitable education. If they are ignoring or refusing to implement professional recommendations, aren’t they taking a HUGE risk?

If by ignoring professional recommendations, the child isn’t able to access their education equitably and there is harm that occurs, I’d be filing a human rights complaint.

It has been quite a SHOCKING discovery to me, just how little education staff know about disabilities. Especially invisible ones. Some people are very knowledgeable. However, the number of people working in education who have little to zero knowledge is stunning. And scary. And makes complete sense how so many children experience real trauma at school, and so many are being homeschooled unable to return to school.

Here is a report compiled by Jenn Scharf titled Stories of Exclusion 2021. These are a collection of 60 stories told by parents.

I don’t think our education system is fair.

To anyone.

Everyone is being set up to fail. My heart goes out to the educational staff expected to create magic and miracles with such a scarce system. But, if you are ignoring professional recommendations and putting your own personal perspective in its place when you lack such training and expertise, I have no sympathy for you.

I do have sympathy for the child who may be harmed by your willful ignorance. I have sympathy for the family who will now be put in the position of continued advocacy, yet again, and may be considering filing a human rights complaint so their child can get an education.

Is the education system struggling with the concept of inclusion, or is it struggling because not enough people have the knowledge and skills to make it work?

And then add the impacts of scarcity in education

And then add ableism.

AAAAAHHHH ok…. now this all makes sense.

This is why we are all struggling.

This is systemic. Multi-dimensional systemic issues.

And if someone who is reading this thinks…. well they are now starting to have a class on the topic of disabilities in universities, isn’t that something?

It clearly isn’t enough.

Clearly.

Edit: A parent on my Facebook page commented after reading this blog “Not to mention a lot of the disability training they do get is outdated and ableist….” – Excellent point!!

The BC Human Rights Code Supersedes ALL other Laws, if Conflict Arises

This is the BC Human Rights Code.

“Code prevails

4  If there is a conflict between this Code and any other enactment, this Code prevails.”

This is why human rights law is our strongest form of advocacy.

It doesn’t matter what the school policies are.

It doesn’t even matter what the policies are that are written by the Ministry of Education and Child Care.

It doesn’t even matter what the School Act says.

The Human Rights Code supersedes everything.

The Supreme Court of Canada has already made it crystal clear. It supersedes all laws.

Insurance Corporation of British Columbia v. Heerspink, 1982 CanLII 27 (SCC), [1982] 2 SCR 145

“The Human Rights Code of British Columbia

When the subject matter of a law is said to be the comprehensive statement of the “human rights” of the people living in that jurisdiction,

[Page 158]

then there is no doubt in my mind that the people of that jurisdiction have through their legislature clearly indicated that they consider that law, and. the values it endeavours to buttress and protect, are, save their constitutional laws, more important than all others. Therefore, short of that legislature speaking to the contrary in express and unequivocal language in the Code or in some other enactment, it is intended that the Code supersede all other laws when conflict arises.”

Even the Accessible BC Act.

https://www2.gov.bc.ca/…/accessibility/legislation/summary

Scroll down to almost the bottom.

“Why doesn’t the law mention the Human Rights Code?

In British Columbia, the Human Rights Code prevails over all other laws. This is written in the Human Rights Code. Repeating this in the proposed law would not change this and may cause further confusion.“

Not all education staff are aware of human rights and specifically human rights and how it is applied in education.

I offer you three links of education law.

Duty to Accommodate – https://www.kbpath.com/information/

Education Law – https://www.kbpath.com/education-law/

Understanding Exclusion – https://www.speakingupbc.com/understanding-exclusion/

All of our human rights education law is written in case law created by tribunal members when they make their decisions.

Yes, our children are protected by the human rights code, but these rights are not limitless. Our children’s rights are protected as they are DEFINED under the human rights code.

That means their rights are limited by the legal test that the BC Human Rights Tribunal uses, under the Code. You are not allowed to discriminate against our kids in school, without a bona fide and reasonable justification. And that leads us to read case law to find out, what that means. Lots of case law. That leads us to the Duty to Accommodate to explain what the school is responsible for and what we are responsible for.

So that means…

If the school is quoting their school district policy about not having parents attend an IEP meeting, that will conflict with the duty to meaningful consultation that is defined by case law. Hewko v. B.C., 2006 BCSC 1638 para 343-361.

It doesn’t matter what policy says what, they need to engage in meaningful consultation with us, as defined by human rights law.

In the same breath, I can assure you, that teacher classroom autonomy does not supersede the human rights code. So no matter what teachers think about their classroom autonomy rights, the Human Rights Code supersedes all of that, and your child’s human rights are above their preferences of how they manage their classroom.

It really is a systemic failure that education staff know so little about human rights and their responsibilities. It shouldn’t fall on parents to teach them this.

Accommodations are not extras. They aren’t optional. They aren’t earned with good behaviour. Your child’s teacher has the legal responsibility to provide your child with an equitable education. Period.

If you feel your child is facing discrimination, not getting the accommodations they need and the school isn’t consulting with you, use human rights law to advocate for your right to be consulted with regarding your child’s education. And, if you want to file a human rights complaint, I suggest you contact the BC Human Rights Clinic for help.

Schools fall under the SERVICE category.

*********

Discrimination in accommodation, service and facility

8   (1)A person must not, without a bona fide and reasonable justification,

(a)deny to a person or class of persons any accommodation, service or facility customarily available to the public, or

(b)discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public

because of the Indigenous identity, race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or class of persons.

(2)A person does not contravene this section by discriminating

(a)on the basis of sex, if the discrimination relates to the maintenance of public decency or to the determination of premiums or benefits under contracts of life or health insurance, or

(b)on the basis of physical or mental disability or age, if the discrimination relates to the determination of premiums or benefits under contracts of life or health insurance.

************

To read case law decisions connected to human rights law, visit www.speakingupbc.com and go to my Human Rights Decisions (Cases) tab. This is not all cases, but I think it’s a great starting point.

Human rights-based advocacy is our sword and our shield.

#Education#Advocacy#HumanRights#Disability

“You Can Run on Anger”

“Anger is a motivator

You can’t run on anything else

You can run on anger

It doesn’t need to be fed

It doesn’t need to sleep…

You want to get something done,

Get good and angry“

–Into the Fire (Netflix, Sept, 2024)

This is what a mother is saying during the intro of a Netflix series. It’s about her daughter who went missing and she is saying her daughter’s case was never investigated. She said she was going to find her daughter. If she had to walk God’s green earth, she would do it. She was talking about how before all this happened, she never even knew how to use a computer. She unravelled the mystery.

It’s interesting to me all of the skills we learn and how fast we are willing to step into the unknown when it’s for our kids.

One common thing that I think parents who file human rights complaints all have in common, on some varying levels, is anger.

A violation has occurred.

A trust violation.

We run on anger.

Anger truly is a motivator. Embrace it. It will be the gas in your gas tank.

Anger is like trying to tame a wild beast. Riding a bull. You need to focus it. Get real good. Find an outlet. Like a release valve. But focus that energy. Don’t focus that energy onto people. Channel that anger into MOVEMENT and LEARNING. It needs to flow. It can’t stay buried. It will fester. Breathe in. Breathe out. Learning breathing in, movement breathing out.

People accomplish things they never dreamed they could do. Make it work FOR you.

I love the quote, “Action is the antidote to despair” – Activist Joan Baez

The failing education system is a brewing pot of angry parents. The number of human rights complaints is increasing. (The financial costs of human rights complaints in public education). Is the Ministry of Education and Child Care paying attention yet? The scarcity in education is breathing the oxygen into the fire.

Trust me.

You can run on anger.

Daycare Termination and Disability

RE: New Human Rights Case linked to daycare and termination of daycare services due to a perceived disability.

Mother obo Child v. Daycare, 2024 BCHRT 251

Since we all have most likely struggled with daycare issues at some point, I am posting this case.

It is a very interesting case. A situation that parents find themselves trapped in way too often.

The child hasn’t been diagnosed yet.

They suspect he might have ADHD/Autism. Their daycare terminated services.

The mother is self-representing.

This is a dismissal application.

She won.

Her case is continuing to a hearing/mediation meeting.

[1] In September 2020, at the age of two, the Child began attending the Daycare. On around October 22, 2020, the Daycare informed the Child’s parents that it would no longer provide childcare services to the Child. Services ended one month later, around November 20, 2020. The Mother brings this complaint on behalf of the Child. The complaint alleges the Daycare discriminated against the Child when it terminated its services because it perceived him to have a mental disability and because he is a Jehovah Witness, contrary to s. 8 of the Human Rights Code [Code] which prohibits discrimination in services.

[2] The Daycare denies discriminating. It states it terminated services to the Child in accordance with its “Childcare Discharge Policy” because the Daycare was unable to provide the Child with the level of care he required, and not for any reasons related to a real or perceived mental disability or to his religion. The Daycare also says that even if the Child’s perceived mental disability was a factor in the termination, it was justified in ending the childcare service it provided to the Child because the Child engaged in harmful and aggressive behaviour that put the safety of other children at risk. It asks the Tribunal for an order dismissing the complaint against it under s. 27(1)(c).

[3] The issues I must decide are:

a. whether there is no reasonable prospect the Child will succeed in proving the Daycare perceived him to have a disability and, if so, whether the perceived disability factored into the termination of services;

b. if so whether the Daycare is reasonably certain to prove it was justified in its decision to terminate services; and

c. whether there is no reasonable prospect the Child will succeed in proving his religion factored into the termination of services.

[4] For the following reasons, I deny the application. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.

We also have another case where the teenager was bullied due to sexual orientation and he won his case, even though he is heterosexual. It didn’t matter. He was treated and bullied as if he belonged to the protected group.
Jubran v. Board of Trustees, 2002 BCHRT 10 (CanLII)
For summary and key highlights https://www.speakingupbc.com/bullying/

These two cases are examples of a perceived disability/protected ground. There is room here for these to be used in an argument in an educational setting. Whether the tribunal will accept it or not is another question.



Here is the full decision with all of the details.

https://www.bchrt.bc.ca/…/decisions/recent/2024-bchrt-251/

Let’s Talk about Hindsight!

How is hindsight an important issue to understand in education?

Well, if anyone is going to claim that their child is experiencing discrimination and go through the human rights tribunal process, a defence the school could use is “hindsight” .


Student by Parent v. School District BCHRT 237
[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.

They will claim “We didn’t know.”

So you know what that means.

Parent(s)/guardians need to be VERY communicative with the school and be telling them that:

  1. Your child is struggling.
  2. Their struggle is connected to school.
  3. How their child is struggling.
  4. How this struggle is connected to their disability.

So, we just need to be emailing constantly.

Whether they respond to those emails is another blog. But we have to have evidence that they were VERY aware and they can’t claim they didn’t know.

By communicating our child is struggling we will trigger MEANINGFUL INQUIRY.

It is very

very

very

very important that we are communicating with them.

Schools are increasingly not wanting to put communication in emails and instead, they are wanting phone calls or meetings.

But that doesn’t stop us from sending emails and creating a paper trail and documenting what is happening.

So send those emails. cc: lots of people.

Again.

Again.

and again.

It doesn’t matter what they do or say.

Regardless. Just keep sending those emails and creating that paper trail.

Regarding documentation. Click the blog Why is Documentation so Important?

Barriers! Barriers! Barriers!

When we discuss equity, accessibility the human rights code and accessibility legislation it is ALLLL about removing barriers.

Therefore when we advocate for our kids, any advocacy grounded in rights-based advocacy is going to focus on barriers.

1. Human Rights Code

    In X by Y v. Board of Education of School District No. Z, 2024 BCHRT 72

    Not all negative experiences are discrimination.

    [110] ….I accept that these incidents which X relayed to Y were upsetting to X. I appreciate that the interactions may have fed into X’s general feelings of unease at school, but the fact alone that these events may have happened is not enough, in itself, to establish that X’s disability factored into them. Not all negative experiences are discrimination. Even accepting that these incidents occurred, I did not hear evidence that could establish, on a balance of probabilities, that X’s disability was a factor in the conduct of the adults involved in these interactions.

    The test, is whether barriers have been reasonably removed.

    [142] Y has said that the learning support provided throughout X’s education has not been enough for X to “reach the same level as his peers or possibly excel”. The District’s obligation is reasonable not perfect accommodation. As I have said above, reasonable accommodation is not necessarily measured by whether a student is meeting or exceeding certain standardized learning goals but rather by whether barriers have been removed to provide meaningful access to education.

    2. Also, accessibility legislation THE ACCESSIBLE BC ACT

    Barriers

    2   (1)For the purposes of this Act, a barrier is anything that hinders the full and equal participation in society of a person with an impairment.

    (2)For certainty and without limiting subsection (1), barriers can be

    (a)caused by environments, attitudes, practices, policies, information, communications or technologies, and

    (b)affected by intersecting forms of discrimination.

    So…… what are barriers?



    As outlined from the Onatario’s Unviersity Accessibility Campus (2017) There are 5 Barriers

    Attitudinal Barriers – are behaviours, perceptions and assumptions that discriminate against persons with disabilities. These barriers often emerge from a lack of understanding, which can lead people to ignore, to judge, or have misconceptions about a person with a disability.

    Organizational or systemic barriers are policies, procedures or practices that unfairly discriminate and can prevent individuals from participating fully in a situation. Organizational or systemic barriers are often put into place unintentionally.

    Architectural or physical barriers are elements of buildings or outdoor spaces that create barriers to persons with disabilities. These barriers relate to elements such as the design of a building’s stairs or doorways, the layout of rooms, or the width of halls and sidewalks.

    Information or communications barriers occur when sensory disabilities, such as hearing, seeing or learning disabilities, have not been considered. These barriers relate to both the sending and receiving of information.

    Technological barriers occur when a device or technological platform is not accessible to its intended audience and cannot be used with an assistive device. Technology can enhance the user experience, but it can also create unintentional barriers for some users. Technological barriers are often related to information and communications barriers.

    Communicating with the school

    When communicating your communiation with the school it is the responsbility of the school to investigate what the barriers are. And to figure out how to remove them. Then they need to monitor, and adapt until the barriers are removed.

    You need to express to the school your child is struggling and how they are struggling. Communiating what you are seeing and dealing with and what your concerns are, is key to trigger this inquiry.

    Their investigation responsibilities is connected to “Meaningful Inquiry”.
    Student (by Parent) v. School District, 2023 BCHRT 237
    Summary of the Case with key highlights

    [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.

    Their responsibiliy to monitor and adapt
    Summary of Case with key highlights

    [120] Ultimately, on a balance of probabilities, I am satisfied that the District discharged its duty to accommodate X in his grade 2 year by reviewing the Diagnosis Report, developing an IEP, making various support people and strategies available that were incorporated into the classroom and outside, reviewing progress and changes, and adapting its approach in response……

    Accommodations are ramps, open doorways, open windows, bridges and all other symbolic connections you can think of that all mean the same thing. It’s a way to level the playing field and provide a child with the same opportunity as anyone else. To remove a barrier. To give someone a chance. To not create more obstacles in their path than anyone else.

    The Financial Cost of Human Rights Complaints in Public Education

    (25 month period)

    Freedom of Information Request – Ministry of Finance

    This is for human rights complaints in public schools only. We aren’t even including private schools.

    Settlement fees – $252,000
    Legal fees – $1,088,772.33

    The average settlement for the 16 claims is $15,000.00

    To read the full FOI results click below.

    https://drive.google.com/file/d/1ywz1rDQd1syFH_AbRT03koOVVsJnBtND/view?usp=sharing

    I did a separate FOI request back in 2022 for 10 years.

    From 2012-2022 almost 4.5 million in 10 years.

    Almost $7,000,000.00 since 2012.

    And the costs are rising.

    “Jumping the Shark”

    As I look back on my educational advocacy experience I ask myself…. at what point did I jump the shark? And what was the last straw that made me do it?

    There is a term in show biz called “jumping the shark”. It’s when the TV series, which was doing amazingly well, starts to suck. At what point did the show “jump the shark”?

    I think of jumping the shark in terms of our experience in education, when we realize what we hoped was going well, actually isn’t. When things take a turn. Reality sets in. In terms of advocacy, it is at this point in time we stop being doormats and prioritize being “nice”. (And really, advocating doesn’t mean ripping the skin off people’s faces. We can be respectful, and maintain civility.) Sometimes that means contacting district administration and filing external complaints if necessary. But the days of head nodding are over.

    Parents naturally want a good relationship with their child’s school.

    No parent wants to feel unwelcome. A troublemaker. Causing people discomfort. I never in my life could have predicted our family’s education experience when my children started kindergarten. Never. If someone told me 10 years ago, this is how things would be, I wouldn’t have believed them.

    I am someone who is very sensitive. I know that about my own neurodiversity. If I mentally don’t feel well, I feel it physically. In big ways.

    When I first started filing Teacher Regulation Branch complaints, of which I filed 4 of them at the start, I broke out into stress hives. They were all around my chest and back, ironically where my heart is.

    I never wanted to see the look of dread on someone’s face when I walked into my children’s elementary school.

    I wanted to have a good relationship with people.

    But here is the thing…

    If you lie to me.

    If you gaslight me.

    If you manipulate me.

    If you ignore my emails.

    You are the one who is breaking the good relationship with me first.

    It’s already over. I just haven’t clued into that yet.

    No matter how much discomfort someone feels around me, the bottom line, my kids come first. I struggle with prioritizing the feelings of adults in the schools over my kids. They are adults with resources and skills to regulate their own emotions. Children who are being discriminated against in school can do nothing but endure. They are trapped. Hoping their parents will pull them out of the quicksand.

    At some point, you just have to see things for what they truly are.

    Behind their smiles.

    We need to snap into reality. Prioritize the physical, mental, and emotional safety of our kids, and just “jump the shark”.

    Head nodding days are over.

    TRB Complaints = HRT Dismissal? NOPE!!

    We have another fabulous decision from the Human Rights Tribunal.

    Child K (by Ehmke) and another v. Queen of All Saints School and another

    The topics under this decision include:

    1. Anonymization attempt by the respondents
    2. Dismissal attempt – Due to TRB decisions

    The parent, Lee Ehmke who has fought with legal representation has won to be named. She is in a legal battle with the Queen of All Saints School within the Catholic Independent Schools of Vancouver Archdiocese.

    Since she’s working so hard to name these people, let me say it one more time. She is in a human rights battle with the Queen of All Saints School within the Catholic Independent Schools of Vancouver Archdiocese.

    This battle has already gone to the BC Supreme Court when the respondents had a failed attempt through a judicial review to remove her from being the FIRST parent attached under Family Status with her daughter’s human rights complaint. You can read that lovely decision here. Independent School Authority v Parents, 2022 BCSC 570.

    Thanks Lee!! We owe you!!!

    First, let’s get to the point of the human rights complaint.

    Failure to provide a designation and IEP.

    Read that again parents. This is an accepted human rights complaint issue.

    Show of hands….anyone else struggling with this?

    Another student who only got a designation and IEP during the human rights process was in the case Student by Parent v. School District BCHRT 237. And you can read my blog about this case and the subsequent news media attention that spread across Canada.

    Ok, back to this case.

    (37) Child K has a chronic health condition which impacts her ability to do certain tasks in a classroom, including writing. Mrs. Ehmke alleges that, throughout grade 2, her teacher failed to provide necessary classroom accommodations to meet Child K’s disability-related needs. She says that she asked the School to provide Child K with an Individualized Education Plan [IEP], but the School took the position that Child K was not entitled to one because her needs were being met through classroom adaptations. Towards the end of the school year, Mrs. Ehmke asked the School to apply for a Ministry of Education funding designation for Child K. The School declined to pursue a designation at that time. It said that it would address the issue in the fall of 2018, when the applications to the Ministry were due.

    (38) Mrs. Ehmke says that, throughout the year, Child K’s school-related anxiety was escalating because her disability-related needs were not being met. On April 24, 2018, Child K stopped attending School because of that anxiety. She never returned. The following year, Child K enrolled in a public school, where she received a Ministry designation and an IEP.

    Second, anonymization and why the HRT felt they should be publicly named. (Keep this case handy parents if you want your district named. Paragraphs on this topic are 5-34.)

    (7) The Tribunal has discretion to limit publication of identifying information where a person can show their privacy interests outweigh the public interest in full access to the Tribunal’s proceedings: Tribunal Rules of Practice and Procedure [Rules], Rule 5(6); Stein v. British Columbia (Human Rights Tribunal), 2020 BCSC 70 at para. 64(a). The Tribunal may consider factors like the stage of the proceedings, the nature of the allegations, private detail in the complaint, harm to reputation, or any other potential harm: JY at para. 30. It may also consider whether the proposed limitation relates to only a “sliver” of information that minimally impairs the openness of the proceeding: CS v. British Columbia (Workers’ Compensation Appeal Tribunal), 2019 BCCA 406 at para. 37. It is not enough to just assert that a person’s reputation may be tarnished: Stein at para. 64(c).

    (29) I appreciate that naming the School could make it easier for motivated and diligent people to identify the people who were involved in the events of this complaint. In that respect, my order will not perfectly protect the people involved. However, I find that – unlike the individual educators and staff involved – there is a specific public interest in the identity of the School as a publicly funded institution serving the public: A obo B v. School District 61, 2014 BCHRT 105 at para. 11. I am not persuaded that this public interest is outweighed by the potential that some of the educators may then be identified. There have already been a number of complaints and proceedings involving the educators and staff, and Mrs. Ehmke points out that many people within the community already know about the complaint.

    (30) I deny the application to limit publication of the name of the School.

    Thirdly, now let’s look at the whole TRB issue.

    There are parts of what is written here that have made me very happy that this is pointed out. In writing. In a decision. Available on CANLII forever and ever. And if the Ministry of Education is paying attention…which they should be. Poke poke Ministry, pay attention. Your procedural processes with how the TRB department comes to its decisions are in need of closer reflection and examination.

    I’ll say it again, just because I can. This time louder, for the people in the back.

    Your procedural processes with how the TRB department comes to its decisions are in need of closer reflection and examination.

    Ok….you heard that?

    Great.

    Let’s move on to the juicy details.

    (61) In this case, the Commissioner decided to take no further action following his investigation.

    What, pray tell, you may ask….how does such a thing happen… you may ask…. shocking isn’t it… (Insert eye roll).

    (83) I acknowledge, and agree with Mrs. Ehmke, that the process followed by the Commissioner to decide whether to take no further action under s. 52 is less procedurally robust than the process undertaken by a hearing panel adjudicating a complaint after a citation is issued. Various cases have recognized the lower level of procedural fairness required at the initial stages of a disciplinary body’s proceedings: eg. Kuny v. College of Registered Nurses of Manitoba, 2017 MBCA 111 paras. 21-22. The reason that there is a reduced duty of fairness at the preliminary stage is because the stakes are relatively low. The complainant’s legal interest is a right to have their complaint investigated: JN at para. 80. For the educator, a decision not to issue a citation allows them to continue in their profession without restriction: JN at para. 84. It is only at the disciplinary hearing stage that the educators’ right to practice their profession is engaged, and more significant obligations of procedural fairness arise: Kuny at para. 16(3), citing Kane v Bd of Governors of UBC, [1980] 1 SCR 1105 at 1113. This lower level of procedural fairness is reflected in the fact that the participants in the preliminary stage do not have notice 22 of each others’ evidence or arguments, or an opportunity to respond directly to each others’ materials.

    This inability for parents to respond directly to the teacher’s materials allows for all sorts of ridiculousness to happen. The teachers can respond to the complaint, but parents are never allowed to respond to the teachers submissions AND we aren’t even allowed access to read it. Umm…..HELLO. WTF! In Ontario, the Teachers’ college does give a copy of the submission to the parents. But not in BC. (I have an OIPC complaint currently in progress around this denial of access). BUT…. and this is a HUGE BUT. If you are in a human rights process, you can make an application for documents and get access to everything that they submitted. YES. You read that right. It can be….ummm….shall I say….. *cough*…..very eye-opening. I highly suggest it to any parent(s) going through the process. Something you may want to consider. *wink wink*

    Ok, continuing on. By the way I really encourage you all to read the case. All the paragraphs talking about the TRB are 42-117.

    (84) I do not find that the lower level of procedural fairness required at the preliminary stage of the disciplinary proceeding is determinative of whether the Commissioner’s decisions to take no further action were judicial. A process may be judicial even if it does not involve oral evidence, cross-examination, or adversarial argument, or where there are other more robust fact-finding mechanisms available. For example, courts may decide issues by summary judgement or trial, or may strike pleadings without making factual findings. In doing so, there is no question they are exercising a judicial function: see generally discussion in Hryniak v. Mauldin, 2014 SCC 7. Here, the fact that the parties did not have full procedural rights reflects the preliminary stage of the proceeding and not the nature of the exercise. I consider Mrs. Ehmke’s limited role in the proceedings to be a factor more helpfully considered when I turn to whether – as a matter of my discretion – it is fair to apply estoppel.

    My frustration with the process of the TRB and their circular logic can be read on my Professional Conduct Unit page. By the way, this page on my website is ALWAYS in the top 5 pages viewed.

    Another Human Rights Decision that was successful in exposing the harm that happened to a student, but yet had zero action decisions from the TRB was Student by Parent v. School District BCHRT 237. Seriously, how can anyone read this case and not have serious concerns that the TRB’s response was zero. Another parent that would have had a limited role in the proceeding with their “lower level of procedural fairness”.

    Ok…. I am getting off course here.

    I need to bring you back to another important part.

    (112) Finally, I consider the public policy considerations weighing against an estoppel. I recognize that the law requires parties to “put their best foot forward” to establish their allegations when first called upon to do so: Danyluk at para. 18. However, if a person filing a complaint to the TRB understood that their civil and human rights could be determined in the Commissioner’s investigation and decision about whether to issue a citation, it would create an incentive for complainants to “mount a full-scale case” at a stage where such an approach may not be warranted or appropriate within the statutory scheme: Penner at para. 62; Danyluk at para. 73. Alternatively, people may be deterred from filing complaints based on a possibility that their civil and human rights could be determined in a process where they have limited participatory rights: Penner at para. 63.

    Ok. I know this was a lot of reading. Thanks for sticking with me.

    The case decision is 34 pages. It’s long. But it’s a beauty.

    I wish you luck Lee!!

    Oh, and just for kicks. One more time. Just for you Lee. She is in a human rights battle with the Queen of All Saints School within the Catholic Independent Schools of Vancouver Archdiocese.