PART 1 – Summer Series- Duty to Accommodate – Power of the Human Rights Code

Ok. Let’s get started.

To start off the series, we first need to truly understand just how powerful the Human Rights Code is and how it is actually the discrimination test that is our sword for advocacy. Ministries’ policies, IEPs, designations and criteria for EA support hours are actually not what determines who gets accommodations, who doesn’t and what those accommodations are.

This blog series is not my personal opinion. Everything that is written comes from some kind of written authority. For those who want to dive deeper, I have added a lot of links.

Here we go!

Section One – Written Authority

What is written authority? Written authority is law, policy or some kind of document. Something that is written and acts on behalf of other people, that has power, and people will use it as a decision-making tool. If school staff deny our requests, we always want to ask them something along the lines of: What is the written authority that supports your decision? Basically, says who? Where does it come from? People just can’t just make stuff up.

Section Two – Education as a Service connected to the Human Rights Code

To understand the power of the Human Rights Code in education, we need to start at the beginning. Follow the path of written authority.
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Moore v. British Columbia (Education), 2012 SCC 61 “The purpose of the School Act in British Columbia is to ensure that “all learners . . . develop their individual potential and . . . acquire the knowledge, skills and attitudes needed to contribute to a healthy, democratic and pluralistic society and a prosperous and sustainable economy”. 

                    The “service” to which J is entitled under s. 8 of the B.C. Human Rights Code is education generally.”  

From this human rights case decision, we know that kids with disabilities are entitled to a quality education, and this education is protected under Section 8, of the B.C Human Rights Code.

The Human Rights Code, Section 8 is about discrimination in accommodation. Basically a person cannot, without a reasonable justification, deny a person any accommodation, and they can’t discriminate.

This protection under the BC Human Rights Code is powerful. To be legally protected under The Code, you need a protected characteristic. For this blog we will be focusing on physical/mental disability as the protected characteristic.

Your child’s accommodations are the priority and will be more important than any other law, policy, administrative procedure, code of conduct, disciplinary process (including suspension), exclusion policy, school rules, or classroom rules in the school system, etc. etc.

Why are accommodations the priority above other laws and policies?

Section Three – Power of the Human Rights Code

In the BC Human Rights Code, section 4, it states:

Code prevails

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

What this means is that the BC Human Rights Code (duty to accommodate) is a law above all other laws, if conflict arises.

What does “when in conflict” mean? If there is something about the law or policy that is discriminatory, that is the conflict part. The Human Rights Code will squash that specific discriminatory part of the law or policy.

So if there is anything that is discriminatory in the School Act, Ministry Inclusion Policies or school board policies, the Human Rights Code will be the law that is followed and not the discriminatory part of the School Act or other policies.

Using a human rights lens to advocate for our kids is the highest form of advocacy we can use. When in conflict, the Code prevails. Discrimination is not allowed, no matter what policies are created by the Ministry or the school board. Your child’s accommodations are the priority.

Beautiful.

Section Four- Practical Application

What does this mean in real life?

This means, teacher classroom autonomy, which some teachers will cite as a reason that they can uphold the decisions they make in the classroom, will not be upheld if discrimination is occurring. The Code, supersedes teacher classroom autonomy.

So, if a teacher is denying a kid with ADHD breaks for regulation (denying an accommodation), then Section 8 of the Human Rights Code will step in. A child doesn’t need an IEP or a designation to be entitled to accommodations. More on this below.

A teacher not implementing a child’s IEP is a HUGE deal. An IEP is not a suggestion. It, too, is backed by written authority.

P (by KD) v. Board of Education of School District No. 61 (Greater Victoria) and another, 2025 BCHRT 62

[70] However, the Ministry disagrees that just because IEPs do not require a parent’s signature the School District is not required to adhere to them. The Ministry says IEPs do have a legal effect and function, as there is a valid legislative and policy framework that provides both authority and guidance for IEPs.

Here are some examples of what you may hear from schools and here is what the response is from the Human Rights Code.

School: Your child doesn’t qualify for an IEP as per Ministry Policy.
Human Rights Code: Doesn’t matter. The school is providing a service. You are still required by law to accommodate a child with a disability with or without an IEP. The criteria to see if they should receive these accommodations is not your policy; it is the discrimination test.

School: Your child doesn’t qualify for a designation.
Human Rights Code: Doesn’t matter. The School is providing a service. You are still required by law to accommodate a child with a disability with or without a designation. The test to see if they should receive these accommodations is not your designation criteria; it is the discrimination test.

School: Your child doesn’t qualify for EA support.
Human Rights Code: Doesn’t matter. The school is providing a service. You are still required by law to accommodate a child with a disability with or without an EA. It doesn’t matter what your internal criteria is that you use to determine EA support hours; it is the discrimination test.

You get the idea. Their policy IS NOT the legal test to determine if your child gets accommodations or not, or what their accommodations will be.

The legal test is the discrimination test. The discrimination test, comes from the Human Rights Code – human rights case law. The discrimination test will squash any Ministry or school policy.

In Student (by Parent) v. School District 2023 BCHRT 237, the student had a diagnosis of Generalized Anxiety Disorder. At the time of the complaint, she did not have a designation or IEP. She was still protected under Section 8 of the Human Rights Code. The school had a duty to provide her with accommodations for her disability.

Lots of kids with ADHD don’t get designations or IEPs. They are still protected under The Code. There are lots of human rights cases (see Human Rights Desicsions (Cases) list) that involve kids with ADHD. This includes post-secondary too.

Mr. A v. The University, 2020 BCHRT 58 

[1]               Mr. A is a student at the University. He has Attention Deficit Hyperactivity Disorder [ADHD]. Because of his disability, the University’s Centre for Accessibility [Centre] has approved a number of accommodations for Mr. A in respect of his education. These include advance access to lecture notes and course materials where possible.

Students are legally entitled to academic accommodations, “a ramp”- due to the Moore case. The school has a responsibility to figure this out and come up with solutions to remove the barriers. (More on this later and case law later.)

Section Five – The Human Rights Code has Limitations

Now, there are many layers to the duty to accommodate.

  • This doesn’t mean that your child will get whatever supports you want for them. The Human Rights Code supports “reasonable accommodations,” not perfect or ideal accommodations. (more on this later)
  • It doesn’t mean that your child may never have a negative experience. Also supported in a human rights education case decision. Para 110 (more on this later)
  • It doesn’t mean harm may never occur. Human rights complaints are about harm that has already occurred and/or currently occurring, not about harm you anticipate might happen in the future. When your rights have been violated.
  • It doesn’t even mean that you need to even agree with the decisions that the school made, also supported by a human rights decision. Para 248 (More on this list and matching case law later)

The Human Rights Code is not limitless. BC HRT website: “Sometimes a person can justify their conduct and then there is no discrimination.” (More to come on this next week)

The Human Rights Code is a tool. We use this tool to advocate for “reasonable” accommodations that provide “a ramp” that removes the barriers so that our children can have an equitable education. Equal access and equitable access are different. (More on this later)

Section Six – Discrimination Test

The Moore case is what set out the discrimination test and defined accommodations as “a ramp” so that our children are legally entitled to an accessible education.

Just want to take a moment of pause to give a round of applause, throwing of flowers and and an absolute snot-filled sobbing thank you, to the Moore family for their advocacy and absolute sheer persistence in spending an incredible amount of years (15?) with uncertainty on how their case was going to land. It went all the way up to the Supreme Court of Canada.

The discrimination test is EVERYTHING. It is our sword. You have a legal leg to stand on connected to written authority because of the Moore family. We use the discrimination test as a sword to slice through the bullshit excuses, crappy policies, inequitable distribution of resources and sheer ableist oppression from school district staff. Any advancement that other families make in their own cases all start with the Moore case. Respect to the Moore family!

As you will notice, when you read the Duty to Accommodate, section 8 isn’t long. So, where do all of these “rules” and expectations come from?

Case law.

I will get to it later on how case law is GOLD.

Section Seven – Parents are Protected Too!

And something else really important to know. It’s not just your kids who are provided a service and protected under the Human Rights Code. You are also as their parent(s)/guardian protected under family status connected to education as a service. These two jewels of decisions mean you can file a human rights complaint on behalf of yourself, and the discrimination test will apply to you too! Thank goodness!! I mean, seriously… It’s about time!

Section Eight – Something to think about…

Using written authority or human rights language in our communication with the school does not mean we are being aggressive, overreactive or overly forceful. It does not mean we need to file a human rights complaint. It does not mean we are going to be battling it out with lawyers. We aren’t tar and feathering people. The use of human rights language is simply enacting rights our children are entitled to by law. Nothing more, nothing less. We are expecting schools to follow the law. That is it.

Using human rights language when we advocate may also be new information to teachers and administrators, not everyone is aware of human rights and what they are even responsible for ensuring they do, within their own jobs. Failure of the system? Totally! Utterly shameful and ridiculous. They are the professionals! The School Act gives them all the final decision-making power. They should at least be knowledgeable about human rights laws. If I worked in education today as an employee, I would be angry that this has not been part of my education and training, and that I am put into situations that leave me ineffective at doing my job, and harming kids. Teachers are at risk of being hauled into hearings. They aren’t fun. The staff who care look white as a ghost, ready to throw up, and some of them cry. Incredibly stressful. And trust me, there are no guarantees the district will come and save you. They would rather risk a hearing happening, hoping the parent will bow out, than make amends. It’s a game of chicken that they have no problem playing. As far as I am concerned, if you are a teacher who doesn’t understand human rights obligations within your job, you are a sitting duck. I highly recommend that organizations that invest in teachers start making this material part of post-secondary education and professional development opportunities.

From this week: Key Takeaways:

The Human Rights Code prevails.

Just know that for this week, the Human Rights Code is very powerful. Our most powerful form of advocacy. It is the law above all laws. It is definitely worth it to invest some time to learn about it, embrace it and most importantly, use it!

ANYTIME the schools give you a reason for denying your child an accommodation, or are not protecting them from bullying, or they use policy in a way that you think is harmful to your child…. in steps the discrimination test.

The discrimination test is our sword. Thank you Moore family and their legal team!

Coming Up Next Week:

Understanding the Discrimination Test.

This part is KEY! We apply the discrimination test to the situations that our children are experiencing to see if they are protected in this situation under the Human Rights Code.

There is still so much left to go!! See you all again next week for the next blog in the series!

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/

Documenting the Harm

You are feeling helpless.

Out of control.

Wondering what you can say to convince educational staff to not give up on your kid….

The complete desperation, I remember that feeling. I see you and I hear you.

You aren’t sleeping and you are spending hours staring at your ceiling wondering if an answer will present itself.

I will tell you something very very important.

You. need. to. document. the. harm.

All of it.

And not just the harm to your children. You too! Did you lose a promotion? Lose an educational opportunity? Did you quit your job? Have to leave school?

This is going to feel weird.

This is going to feel like you are stepping beyond the boundaries of normal family life. Yup and yup. You are going to feel that your child’s privacy is being violated. Yup. I get the heartache. Totally.

Documenting the harm that your child is experiencing from the education system can be one of the most powerful forms of advocacy, that a parent can gather.

Here is why.

You need evidence to be undeniable.

You need evidence so that you are not dismissed.

Human Rights.

A very important test of human rights complaints and Charter challenges is proving that you or your child is being disadvantaged (harm) because of their disability.

Without evidence, the human rights tribunal will state that your allegations are nothing but conjecture. And will dismiss your case. Done.

Dadmand v. School District No. 36 (Surrey), 2011 BCHRT 323

IN THE MATTER OF THE HUMAN RIGHTS CODE

R.S.B.C. 1996, c. 210 

[16] That provision creates a gate-keeping function that permits the Tribunal to conduct preliminary assessments of human rights complaints with a view to removing those that do not warrant the time and expense of a hearing. It is a discretionary exercise that does not require factual findings. Instead, a Tribunal member assesses the evidence presented by the parties with a view to determining if there is no reasonable prospect the complaint will succeed. The threshold is low. The complainant must only show the evidence takes the case out of the realm of conjecture.

You need admissible evidence. Period.

Without it, the district will be confident that you will not complete your obligation in the legal test of proving discrimination.

This is about the harm that has already occurred. Not something that you anticipate for the future. Something that has occurred in the PAST, and that you have evidence for.

So…… what proof/evidence do you need?

These are things I would think about?

Videos/Pictures/Witnesses/Doctors visits/Counselling visits, etc.

  • Is our child losing sleep? Are they eating less? (Keep a log)
  • Are they writing or drawing out their feelings? Keep their creative expressions.
  • Did you need to increase anxiety medication?
  • Are they requiring counselling? (Note: Government-free counselling will not testify as it is a conflict of interest and the school district knows that)
  • What are you witnessing at home? Log details of everything and take videos.
  • Are they refusing to leave their bed?
  • Are they refusing school? Document the days and for how long. Match it up with attendance on their report cards.
  • Are they self-harming?
  • If you are seeing any mental health responses describe the behaviour as if an alien is watching… what are they doing? For example, they are rolling in bed picking skin off of their right leg and smearing blood on the wall. (Did you take pictures of the blood?) Describe everything from a clinical perspective. I know this is hard, but you need to do it.
  • Are you filming them melting down after school? You can hide the camera.
  • Keep their school work with their grades on the pages
  • Keep all the report cards, suspension reports and emails

From the Human Rights Tribunal

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What is evidence?

Evidence can be:

  • oral testimony: a witness answers questions in person, or over a speaker phone if the member agrees
  • documents: documents, such as pay stubs or letters, are given to the tribunal member by a witness and are marked as an exhibit at the hearing
  • things: sometimes witnesses give the tribunal member other things such as photographs – just about anything that helps prove your case – these things may also be marked as an exhibit at the hearing
  • affidavits or other statements: a witness’ evidence can be given to the tribunal in writing – this can be a statement such as a letter, or a statement made under oath or solemn affirmation called an affidavit
  • expert evidence: evidence from an expert that may be oral testimony, an affidavit, or a written report

What evidence will the tribunal accept?

The tribunal can accept almost any evidence that is relevant, which means that it relates to the complaint or to the response to the complaint.

http://www.bchrt.bc.ca/law-library/guides-info-sheets/guides/getting-ready.htm

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You get the idea, depending on the child, the list is endless.

As parents, we know what we know, but we need to prove it. Otherwise, our allegations are essentially worthless.

I actually don’t believe that school staff truly understand the harm that is happening to children and families. We don’t all live in the same world. They don’t see what we see.

This is why, we MUST document the harm in order to tell our kids stories.

Even if we feel that nothing will happen. You never know what years down the line will bring.

Keep the evidence.

The opportunity may present itself in the future to speak your child’s truth.