Tag: #DutyToAccommodate

Part 6 – Summer Series, Duty to Accommodate – Pulling it all together

The duty to accommodate is a collaborative process where everyone needs to work together to come up with a reasonable accommodation plan.

The accommodations don’t need to be perfect or ideal, just enough of “a ramp” to make accessing education equitable. And not a ramp that goes halfway up the stairs. The accommodations need to remove barriers – level the playing field and make it accessible. We aren’t looking for equal treatment, but equitable treatment.

1. What are the child’s disability-related needs?

    2. What are the barriers the child is experiencing? (Physical, technology, communication, attitudinal, etc)

    3. What are reasonable accommodations that will remove the barriers?

    These are rights-based questions.

    Summary

    Power of the Human Rights Code

    The Human Rights Code is very powerful. Our most powerful form of advocacy. It is the law above all laws. It supersedes all of other laws, Ministry policy, IEP policy, designation standards, administrative procedures, teacher autonomy, when in conflict.

    Students don’t need a designation or an IEP to be protected by the Human Rights Code and get accommodations for their disability related needs.

    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.

    Parents are protected too, and can file a complaint under family status and the discrimination test applies to them.

    Discrimination Test

    1. Does your kid have a disability?
    2. Were they harmed
    3. Is the harm linked to their disability?

    Yes + Yes + Yes = Discrimination

    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.

    The code protects students with disabilities and even perceived disability.

    Reasonable Justification Test

    Schools may be able to justify the reasonable accommodations your child is offered, or maybe not. It is going to be very context-specific to your situation.

    The school will use arguments to justify their behaviour that could include hindsight, safety, collaborative process (they are trying in good faith – not lack of resource related), reasonable accommodation, lack of resources or staffing, blame your child for not self-advocating enough etc. Whether these arguments are grounded in any truth, that is another question. Just because they have arguments doesn’t mean they are strong arguments or that they have evidence to back up what they are saying. We aren’t the only ones who need evidence.

    We need to always be communicating the harm that we are witnessing and how that harm is related to their disability.

    Meaningful Inquiry

    We need to disclose with documentation (ideally) to the school to protect our kids with the Human Rights Code and the Duty to Accommodate process.

    Once the disclosure is communicated to the school, they are now locked in and required to provide our children with a quality, equitable access to an education.

    We don’t need to use the word “accommodation” in order to trigger an investigation. We need to communicate that our child is struggling or experiencing harm due to “disability-related” needs.

    The school has the responsibility to investigate, figure out what the barriers are, and address them.

    The responsibility of bringing forward their accommodation needs does not fall on the shoulders of the student.

    We need to keep communicating and telling the school the harm we are witnessing and are aware of, and how this is connected to their disability. That’s our job. That’s how we engage the duty to inquire (Meaningful inquiry) that will start off the duty to accommodate.

    Emailing our concerns is creating that document trail that we need.

    Duty-to-consult

    You have lots of written authority to back up your right and your child’s right to be consulted on decisions that impact the quality and their participation in their education.

    Parents don’t have the final decision-making say, but before a decision is made, parents must be consulted. There should be enough time given to ensure parents can express their concerns and for them to be considered. That time will vary depending on the needs of the student.

    Duty-to-facilitate

    Schools have the final decision, and if we don’t facilitate that then we can have our human rights complaint dismissed. We may be seen as unreasonable.

    However, if their plans for reasonable accommodations don’t work, they have to keep on reviewing and adapting. They can’t give up. That will require us to keep collaboratively working with them, and documenting and communicating the harm.

    Final Message:

    My series about the duty to accommodate provides you the legal framework and rights-based content so that you have the information you need to ground your advocacy in written authority.

    The how-to fish in all of this is using the discrimination test. That is our sword. We need to disclose our child’s disability with evidence and continually communicate any disability-related harm that we are aware of. That is the magical HOW formula.

    What I am witnessing is that families who use human rights language in their advocacy emails are experiencing more success than families who are not.

    It doesn’t need to be about quoting case law, but even using language like these words can create more appropriate responses from schools.

    Language example:

    disability-related need

    equitable education

    removing barriers

    accessing their education

    accommodation

    consult/collaboration

    harm

    If you hit resistance, you have case law and the Human Rights Code to draw from. We are just asking for schools to follow the law. Some parents are nervous about using rights-based language. Pleasently persistent as an advocacy style can still use rights-based language. You can still have collaborative relationships with staff and use rights-based language. Collaboration is a KEY part of the accommodation process. Using rights-based language and advocacy through a human rights lens does not mean you are fighting anyone. You are simply enacting your child’s rights.

    Our children’s legal rights in education come from human rights case law. These cases were brought forward by parents. Parents wanting to change the system so that other kids don’t experience what their children did.

    In order for these cases to work their magic, they need to be applied. Law can sit there collecting dust if nobody does anything with it. It needs to be applied. You need to use it. We can change the system by all of us advocating through a human rights lens.

    The pen is your sword….well, email. 😉

    or speech-to-text

    or ChatGPT to help write emails

    You’ve got this! 🙌🙌🙌🙌

    Part 5 – Summer Series, Duty to Accommodate – Duty to Facilitate

    To review, we have completed our foundational work. We know the power of the Human Rights Code. We understand the 3-part question for the discrimination test, and the reasonable justification test. We started in on the action part of the Duty to Accommodate with meaningful inquiry, and the duty-to-consult, and now we are the final stage the duty to facilitate.

    The duty to accommodate is a collaborative process. The school district must consult with us and seriously consider our concerns, but the School Act gives them the power to make the final decision. Whether we like it or not.

    Having hard conversations is still collaborating. Respectful disagreement is still collaborating.

    Collaborating in good faith means you need to be honest, genuine, without trying to deceive, take advantage. It’s just really about having the best intentions from everyone when all engage in consultation, for the best interest of the child. When it comes to conversations, I offer you this excellent blog by The Canary Collective: From Power to Partnership: Changing how we talk to families.

    We can have respectful conversations and advocate fiercely at the exact same time. It’s not one or the other. Both parties have the expectation to collaborate in good faith as part of the accommodation process. At the same time, our advocacy conduct cannot be used against our child to deny them an equitable education.

    “Fierce advocacy” is even supported in case law.

    👇👇👇👇

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    L.B. v. Toronto District School Board, 2015 HRTO 1622

    [77]        The Interim Decision sets out my reasons for issuing an order with respect to the first two points, as follows:

    (a)      School boards have an obligation under the Code to accommodate their students with disabilities to the point of undue hardship, regardless of whether the students are receiving any medical treatment in the community or not;

    (b)      School boards cannot order or demand of parents to place their children into residential psychiatric treatment programs and cannot deny or withhold accommodations to the point of undue hardship on the grounds that the student should be in such a program. While I have no evidence to show that this was the case here, that does not alter the principle;

    (c)      School boards have an obligation under the Education Act to provide appropriate special education placements, programs and services to their exceptional students. Parental conduct or lack of parental authority cannot be used as a justification for not meeting an exceptional student’s needs; and

    (d)      I agree with the decision in R.B. v. Keewatin-Patricia District School Board, (R.B./Keewatin) 2013 HRTO 1436, an HRTO decision cited by both parties in this case, at para 265, that a parent’s “fierce advocacy” for his or her child must not and cannot prevent a school board from accommodating the child’s needs to the point of undue hardship.

    *********

    So whether we fulfill our duty to work in collaboration with the school district the bottom line is that they are still required to meet an exceptional student’s needs. They cannot use our conduct against our child to not fulfill their duties to provide an equitable education.

    However…..

    Keeping that in mind, if we want to file a human rights complaint without at least giving their reasonable accommodation suggestions a chance, we will likely have our complaint dismissed. So our advocating or lack of can’t be held against our child, but if we don’t accept a reasonable accommodation, that can be. 👇👇👇👇

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    A and B obo Infant A v. School District C (No. 5), 2018 BCHRT 25 (CanLII)

    [248]      The School District is not the only party with obligations in the accommodation process. Rather, the parents were obliged, as the Child’s representatives, to work towards facilitating an appropriate accommodation: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. If the School District initiated a reasonable proposal that would, if implemented, accommodate the Child, then the Parents were obliged to facilitate that proposal. Failure to do so is fatal to their complaint of discrimination.

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    One message that has been a running theme in all of my posts is this: 👇👇👇👇

    We need to continually document any harm we are witnessing and email our concerns to the school. We need to connect the harm to any disability-related needs.

    While we do have the duty to facilitate a reasonable accommodation, if that reasonable accommodation doesn’t provide the ramp they think it will, they have the responsibility of continually adapting, reviewing and providing alternatives. They aren’t allowed to give up. 👇👇👇👇

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

    [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……

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    I want to pause here and mention independent schools. Public schools AND independent schools are still held to the same obligations under the Human Rights Code to provide a quality, equitable education.

    Independent schools may have a much easier time reaching the bar for the undue hardship test. If they don’t have the staff, resources, or money to meet the needs of your child, they may have a defence. Private schools are very different than public schools. They interview students and parents, many times, with parents providing reference letters. They can deny anyone they like. They don’t like the shoes you wear; they can deny you. They don’t have the funds that public schools do. Independent schools are very bold and confident when they deny kids entry and when they kick them out. Really, the best thing I can recommend parents is to consult with a lawyer. It will be VERY context dependent. Parents of private schools do file complaints against private schools and they do get settlements. It’s really up to you how much you want to test the system and push the line. Lots of kids when they become “too much” are getting kicked out. It’s heartbreaking for many families and kids as public school failed, and this was their hope. The only thing I can recommend to families is to consult with a lawyer and get the best legal advice you can get. Fast track your complaint; otherwise, waiting over a year to get a complaint to get accepted isn’t going to do your kid any good. Some parents send demand letters, but it is mostly for settlement and not to get them reinstated in the school. I highly suggest you consult with human rights lawyers if you want to fight it.

    Key Takeaways

    Schools have the final decision and if we don’t facilitate that then we can have our human rights complaint dismissed. We may be seen as unreasonable.

    However, if their plans for reasonable accommodations don’t work, they have to keep on reviewing and adapting. They can’t give up. That will require us to keep collaboratively working with them, and documenting and communicating the harm.

    Next Blog

    We are at the end.

    Next week’s post is pulling everything together and a final heartfelt message.

    Part 4 – Summer Series – Duty to Accommodate – Duty to Consult

    We are plowing through the duty to accommodate. We know how powerful the human rights code is, and we understand the discrimination test and the reasonable justification test. We have looked at the first part of the duty to accommodate and how we trigger meaningful inquiry. Now we are moving to the next step – duty to consult.

    How the duty to consult (meaningful consultation) is defined in education came from a human rights case decision. For some people, they would really like meaningful consultation to be more defined, but it is going to be different for every student. One student may only need a 30-minute IEP meeting. Another student may need multiple IEP meetings. IEPs are also living documents that can be updated and adapted at any time of the year. You don’t need to wait for IEP season to come around in the fall to meet with the school team. Some schools have been sending out notices that say each parent gets a 30-minute IEP meeting. Or, they aren’t even getting a meeting. The staff are meeting and they are sending home the IEPs and getting parents to offer feedback on the already created IEP through email.

    We all understand that schools are under constraints.

    BUT

    It doesn’t matter.

    The human rights code prevails. And meaningful consultation is attached to human rights case law. Meaningful consultation will trump a 30-minute restriction on an IEP meeting. If you think that you haven’t been consulted on items and the IEP is incomplete or your child needs accommodations that they aren’t receiving, you have the Human Rights Code behind you. At the bare minimum, they need to consult with you. It needs to be “meaningful”.

    So, now let’s dive in and, as always, we start by looking at the written authority. There is a lot of it backing up the ability to consult with the school.

    👇👇👇👇

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    Hewko v. B.C., 2006 BCSC 1638 (CanLII)

    Duty to Consult

    [342]      The relevant statutory provisions with respect to a School District’s obligation to consult with parents and students are found in the School Act, and in particular, ss. 4 and 7.

    [343]      Section 4 of the School Act provides that: “A student is entitled to consult with a teacher, principal, vice principal or director of instruction with regard to that student’s educational program”.

    [345]      Section 7(2) affords the parent the right to consult with school staff regarding their child’s educational program:

    A parent of a student of school age attending a school may, and at the request of a teacher, principal, vice principal or director of instruction must, consult with the teacher, principal, vice principal or director of instruction with respect to the student’s education.

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    So, to start us off, we have the School Act. This is a law. The Ministry wants school districts to be consulting with students and parents.

    Also, note that students are entitled to consultation too. So if they are receiving a suspension and your child didn’t get a chance to explain their side of the story before the decision was made, you can take this section of the School Act and request a meeting, or it can be part of the Section 11 appeal you file.

    Ok, let’s continue on because we have a lot more written authority that backs up the duty to consult. 👇👇👇👇

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    [346]      The Individual Education Plan Order and the Mandate for the School System adopted by B.C. Order-in-Council 1280 (August 30, 1989), also require that the parents of special needs students be afforded the opportunity to be consulted about the nature of their children’s education.  Pursuant to s. 4 of the Individual Education Plan Order, school boards are required to consult with the parents of special-needs students about the content of the individual education plan for each student.  It provides:

    Where a board is required to provide an IEP for a student under this order, the board…must offer a parent of the student…the opportunity to be consulted about the preparation of the IEP.

    [347]      The Mandate for the School System reiterates that parents have the right and responsibility to participate in the process of determining the educational goals, policies and services provided for their children.  Teachers have the responsibility to ensure that each student is provided with quality instruction, permitted to participate in all normal school activities and to monitor the behaviour and progress of each learner in accordance with provincial and local policies.

    **********

    So, where the School Act is a law, we have now moved on to orders by the Ministry. And this is all from the same human rights case that I listed above.

    Now we get into the details of what all of this means. This is also from the same case.

    **********

    [361]      It is possible to summarize some very general principles which inform or provide content to the duty to consult from the above cases.

    1.         Before any decision is made regarding the placement of a child within the school system and the persons who will have the responsibility to implement an IEP, the parents must be consulted.

    2.         The depth of consultation and the concomitant obligations for the parties to accommodate the requirements of the other will vary with the known need of a child’s requirement for a modified curriculum.

    3.         All necessary information in regard to either parties’ position on a proper placement and IEP must be provided in a timely way so that each will have an opportunity to express their interests and concerns and sufficient time to ensure that their representations are seriously considered and wherever possible demonstrably integrated into the proposed plan.

    4.         Each party to consultation has an obligation to provide timely information and an obligation to make whatever accommodations are necessary to effect an educational program which is in the best interests of the child.

    5.         In coming up with a placement and an IEP for a child with autism or Autism Spectrum Disorder, Dr. Foxx’s opinion as set out below should be regarded as the most significant underlying principle for meaningful consultation “the program will not work unless everybody sign on to it.  And the reason they sign on to it is because it’s a program that makes absolute sense to all parties.  It has to be designed as a win-win for everyone so that all the parties understand.”

    6.         The parents of a special needs child do not have a veto over placement or the IEP.  Meaningful consultation does not require agreement by either side – it does require that the school district maintain the right to decide after meaningful consultation.

    7.         The bottom-line requirement for each side in a meaningful consultation is to be able to demonstrate that the proposal put forward can produce instructional control of the child.

    *********

    Lots of stuff from here. Parents don’t have the final decision-making say, but before a decision is made, parents must be consulted. There should be enough time given to ensure parents can express their concerns and for them to be considered. That time will vary depending on the needs of the student.

    The British Columbia Council of Administrators in Inclusive Education put out a whole guide on meaningful consultation.

    So if you run into any issues with the school not consulting with you, you have this guide from the administrator organization, Ministry orders and school law and what trumps and enforces all of that is the duty to consult in this human rights decision. In theory, no one should be having ANY issues with consultation.

    Which means…. if schools are ignoring you… and I know this happens. You have everything you need to take your issues to the person who is above them. Administrators absolutely should not ignore your emails. Especially when you are outlining your concerns and highlighting how they are connected to your child’s disability-related needs. That is a HUGE no-no. The meaningful inquiry process should be triggered, and the exploration of possible accommodations, if necessary, should begin, which will need to include you for consultation.

    Many school districts on their website have documents related to consultation. The Ministry of Education’s document on Inclusive Education has the word “consult” in the document 73 times. With the extent of written documentation on consultation, clearly, no parent should be getting the silent treatment.

    Key Takeaways

    You have lots of written authority to back up your right and your child’s right to be consulted on decisions that impact the quality and their participation in their education.

    Parents don’t have the final decision-making say, but before a decision is made, parents must be consulted. There should be enough time given to ensure parents can express their concerns and for them to be considered. That time will vary depending on the needs of the student.

    Next Blog

    We will be wrapping up the ACTION parts of the duty to accommodate with the duty to facilitate and some other key items around school responsibilities, and then the final blog will be pulling it all together with a final message.

    We are almost at the end!

    Part 3 – Summer Series – Duty to Accommodate – Meaningful Inquiry

    We have completed our foundational work. We know the power of the Human Rights Code. We understand the 3-part question for the discrimination test, and the reasonable justification test. Now we are focusing on the action part of the Duty to Accommodate.

    How do we trigger the Duty to Accommodate?

    We disclose our child’s disability. That is the on button.

    That means by submitting documentation. This locks the school district in without any wiggle room. If that documentation isn’t possible, we want to send the disclosure to the school via email. The school needs to be aware that they are on a waitlist, or receiving professional supports for their disability, or that you suspect that they have a disability and you would like further testing, etc.

    I know there are different mixed feelings about this. Some people don’t like that disclosure is necessary, but to legally protect yourself, it is essential.

    Here is why disclosure is necessary.

    Duty to inquire.

    For example, I will use employment as an example. This is just an example for example’s sake. Let’s say you start arriving late at work every morning and your employer fires you for your lateness. If they knew that you had a disability, they would have a duty to inquire to see if your disability was related to your lateness. If you said yes, then they would need to offer you accommodations. Maybe a flexible work schedule, or working from home in the morning, etc. But, if you don’t disclose and they fire you and you come back and say it’s discrimination because your lateness is connected to your disability, they are off the hook. They didn’t know. They didn’t have the duty to inquire. By not disclosing, you aren’t locking them into certain obligations. I offer this blog from the BC Human Rights Clinic.

    Do schools have a duty to inquire?

    Yes! And it has been referred to as meaningful inquiry.

    Let’s start with the written authority. 👇👇👇👇

    Student (by Parent) v. School District, 2023 BCHRT 237

    [75]           The “duty to inquire” is a human rights obligation which arises where the student is facing some adverse impact in their education – ie. discipline, poor grades, lack of meaningful access – and the school is aware, or ought reasonably to be aware, that a student’s disability may be a factor in that impact: eg. Martin v. Carter Chevrolet Oldsmobile, 2001 BCHRT 37 at para. 29; Aydogmus v. York University, 2021 HRTO 176 at para. 59. The purpose of this inquiry is to identify and remove disability-related barriers to a successful education, likely through the process of accommodation. 

    So we have the school being aware of harm connected to a students disability, and the point of the “inquiry” is to identify AND remove barriers that are “disability-related” through the accommodation process.

    Lovely.

    This kicks off the accommodation process. We have our foot in the door by identifying the school disability-related harm.

    Also pointed out in this case, as by now we all know:

    [89]          …………the respondent is not responsible to accommodate disability-related needs that it was not aware of or could not reasonably have been aware of.

    Something important to note here, too, is that when we are expressing our kids’ struggles:

    [96]           On balance, I am not persuaded that the District’s response to the situation after April 24, 2019, was a reasonable one. The Parent had brought forward relevant facts of the Student’s diagnoses and the toll that school was taking on her. I do not accept that the onus was entirely on the Parent or Student to utter the magic word of “accommodation” before the school took steps to explore the reasons that the Student’s mental health was being so impacted by school. Nor do I accept that the simple fact that a 13-year-old child with anxiety says they are “fine” is enough to end a school’s obligations. At this point, the school had enough information to understand that something at school was adversely impacting the Student in connection with her disabilities, and it was in the best position to investigate the causes. If it felt it needed more information from the Parent or the Student, it could have and should have asked. Again, the goal is to ensure that the Student is afforded equitable access to an education.

    We don’t need to specifically say: Can my child have accommodations? The school should be identifying this and the school needs to ask us for more information so that they can do their job in giving our kids an equitable access to an education. Bottom line, they need to fulfill their obligations to the student as they are responsible for providing the service.

    Ok, so now let’s move into meaningful inquiry and how this case locked in the duty to inquire in an education setting.

    [99]           Next, in B v. School District, 2019 BCHRT 170, the evidence supported that the school district provided the child with the recommended supports and accommodations. The Tribunal found that it was “only with hindsight” that it was possible to say that the child could have benefited from more support: para. 81. It dismissed the complaint in part because there was insufficient evidence to demonstrate that the school district reasonably ought to have known that the child required more: para. 98. In contrast here, I have found that the District had sufficient information to trigger some kind of inquiry or response beyond asking the Student how she was doing and, assuming the counsellor did this, advising of available supports.

    [100]      In short, I agree with the District that the Parent and Student were obliged to bring forward information relating to accommodation. The Parent did that, when she communicated that the Student had anxiety and trichotillomania and that school was taking a significant toll on her physical and mental health. That information should have been enough to prompt a meaningful inquiry by the school to identify what was triggering the Student’s symptoms and what supports or accommodations may be appropriate to ensure she was able to meaningfully and equitably access her education. The failure to take that step was, in my view, not reasonable. As a result, the disability-related impacts on the Student, arising from conditions in her Language 10 class between April 24 and June 27, 2019, have not been justified and violate s. 8 of the Human Rights Code.

    [104]      In sum, I have found that the conditions in the Student’s grade 8 Language 10 class exacerbated the Student’s anxiety and trichotillomania, and that the District failed to take reasonable steps to investigate and address those conditions during the period between April 24, 2019, and June 27, 2019 (the last day of school). I find this is a violation of s. 8 of the Human Rights Code, and warrants a remedy, which I address below.

    It is on the school to INVESTIGATE and address the conditions.

    They can’t just accept that they are witnessing students struggling. They need to be actively investigating to figure out what the barriers are (not parents’ responsibilities to identify these as we aren’t in school with our kids) it is them that need to investigate, figure out the barriers and address them.

    We express disability-related harm that our kids are experiencing in school and we are now engaged in the duty to accommodate.

    Kids are not responsible for bringing forward their own accommodation needs.

    [90]           Generally, it is the obligation of the person seeking accommodation to bring forward the relevant facts: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. This can be challenging for children, and especially challenging for children with invisible disabilities. I agree with the Parent that children who require accommodation in their school are in a different situation than adults seeking accommodation. Though they have a role to play in the process, that role will be age and ability-specific, and the burden cannot be on a child to identify and bring forward the facts necessary for their accommodation.

    Key Takeaways

    Step One: We need to disclose with documentation (ideally) to the school to protect our kids with the Human Rights Code and the Duty to Accommodate process.

    Once the disclosure is communicated to the school, they are now locked in and required to provide our children with a quality, equitable access to an education. It’s all about removing barriers so our kids get an equal playing field. They get a chance, an opportunity, at success just like anyone else.

    We don’t need to use the word “accommodation” in order to trigger an investigation. We need to communicate that our child is struggling or experiencing harm due to “disability-related” needs.

    The school has the responsibility to investigate, figure out what the barriers are, and address them.

    The responsibility of bringing forward their accommodation needs does not fall on the shoulders of the student.

    We need to keep communicating and telling the school the harm we are witnessing and are aware of, and how this is connected to their disability. That’s our job. That’s how we engage the duty to inquire (Meaningful inquiry) that will start off the duty to accommodate.

    Emailing our concerns is creating that document trail that we need.

    Next Blog

    We are now into the next part of the process, the duty to consult (meaningful consultation)

    Part 2 (B) – Summer Series – Duty to Accommodate – Reasonable Justification

    Welcome back! In the first blog we looked at just how powerful the Human Rights Code is. Second blog, we looked at the first part of the discrimination test. Now for the second part of the discrimination test. We are now going to be looking at the reasonable justification test.

    We know the 3 questions now for the discrimination test that we need to argue and prove. Now the school district will have an opportunity to justify it.

    In my experience and from hearing TONS of parents struggling with advocacy situations, I have noticed there are a few patterns in the types of arguments.

    1. They will blame you
    2. They will blame your child (not self-advocating enough seems to be a popular one)
    3. They will act all confused
    4. They will blame a lack of resources (Eg. staffing, time or money)
    5. Safety of staff/your child

    Dealing with the arguments and justifications from the school district tends to be stressful for parents, and it is understandable. It is context-specific, and it gets very fuzzy. It is a case-by-case situation. The more knowledge you have on how they can or cannot justify things, I promise you, you will be able to make better advocacy decisions.

    So we begin.

    We start with written authority. 👇👇👇👇👇

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    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:

    1. its behaviour was for a purpose or goal that is rationally connected to the function being performed;
    2. it behaved in good faith; and
    3. its behaviour was reasonably necessary to accomplish its purpose or goal, in the sense it cannot accommodate the complainant without undue hardship.”

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    What does this actually mean?

    Basically….this 👇

    1. Based on the goals of the education system their decision made sense. It was rational behaviour. (**Remember their goals are a quality education for all students. So, based on this goal, was their behaviour rational?)
    2. The decision was in good faith. (honest)
    3. The denial of the accommodation was necessary to accomplish the goal of the education service and if they provided the accommodation, it would create an undue hardship for the organization/business. (Eg. They financially couldn’t sustain themselves, or it would be too much of a financial burden)

    (Just a little inside information: this is a high bar for a public system to meet if denying accommodations, said human rights lawyer I met with. Independent schools are different – more on this later.)

    Common Justification Arguments

    1. Hindsight

    If the school can say, they didn’t know. Then they are off the hook. For kids who mask, this is a big one.

    Student (by Parent) v. School District, 2023 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.

    So, in order to stop the school from arguing this, we must communicate when our child is struggling (harm) and link it to their disability. Send in those emails. Then they cannot claim hindsight. It will also trigger meaningful inquiry. (more on this on Wednesday)

    2. Reasonable accommodations

    They can argue that the accommodations are reasonable. They don’t need to provide the ideal accommodations, just enough for your kid to equitably access their education.

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

    [112] Accommodation requires a reasonable, not a perfect solution: Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970 [Renaud]. While there may have been other approaches available to the District, this does not necessarily render the one taken unreasonable. What is reasonable and what constitutes undue hardship is fact specific and will turn on the specific circumstances of a particular case: Renaud.

    Kids are legally entitled to accommodations that provide a ramp. It doesn’t mean it needs to be perfect, but the ramp can’t go halfway up the stairs or be at a 90-degree angle, making it impossible to use. If the reasonable accommodations are not working and causing harm, this is where we need to continually document the harm and show the school that the ramp they provided isn’t really a ramp, and the access to education isn’t actually happening.

    3. Accommodation is a Process

    They can argue that they are trying in good faith and that they aren’t giving up. And the other side of the coin is that if they aren’t doing this, then we can use this case as advocacy.

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

    [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……

    The duty to accommodate is a collaborative, ongoing process that requires the participation of both parties to be engaged in good faith. The school was doing that by continually adapting their approach. So if they want to claim they are doing this, it means they can’t give up on your kid. This case is the written authority that will back up your arguments that they have to keep going and keep trying different accommodations. And since they have a duty to consult, and the duty to co-operate in good faith is already there, then as long as they are working, collaborating with you and consulting with you and they keep on trying, they may be able to argue successfully that this is part of the accommodation process. For parents who have their emails ignored, meeting requests ignored, I don’t see how they would be able to argue that what they are doing is part of the natural collaborative process of the accommodation process. ** This is going to be very context-specific and case-by-case. I would recommend you consult a lawyer if you are not happy with what is happening and wonder if what your child is experiencing is a human rights violation.

    4. Self-Advocacy

    Many times, they blame the student for not advocating enough, and therefore, they didn’t know and can claim hindsight. I offer you this beauty.

    Student (by Parent) v. School District, 2023 BCHRT 237

    [90]           Generally, it is the obligation of the person seeking accommodation to bring forward the relevant facts: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. This can be challenging for children, and especially challenging for children with invisible disabilities. I agree with the Parent that children who require accommodation in their school are in a different situation than adults seeking accommodation. Though they have a role to play in the process, that role will be age and ability-specific, and the burden cannot be on a child to identify and bring forward the facts necessary for their accommodation.

    It’s not on the child. It’s on the adults. We need to keep communicating via email so that they know that your child is struggling.

    5. Parents are not facilitating the school’s decision

    The School Act gives the school the authority to make the final decision regarding your child’s education. They have a duty to meaningfully consult with you (more on this later), but the final say is theirs. If parents don’t “facilitate” that decision, your human rights complaint may be dismissed.

    A and B obo Infant A v. School District C (No. 5), 2018 BCHRT 25 (CanLII)

    [248]      The School District is not the only party with obligations in the accommodation process. Rather, the parents were obliged, as the Child’s representatives, to work towards facilitating an appropriate accommodation: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. If the School District initiated a reasonable proposal that would, if implemented, accommodate the Child, then the Parents were obliged to facilitate that proposal. Failure to do so is fatal to their complaint of discrimination.

    [249]      I find that, at all times, the school was complying with the terms of the Child’s IEP by providing him with, among other things, sensory breaks and one-on-one support from the School Counsellor. The challenges associated with the Child’s interactions with D, however, required a different approach. The Principal and other school employees attempted to work with the Parents to develop an approach that would take into account the Child’s needs. The parents were apprised of each incident, but this only seemed to elicit more conflict rather than constructive dialogue. The Principal and other school officials attempted to engage the parents in discussions about reducing conflict with D, and developing a safety strategy for the Child, but the parents refused to consider the solution. This was an unreasonable position, which failed to account for the fact that the District also had obligations towards D: McCreath v. Victoria Taxi (1987) Ltd., 2017 BCCA 342.

    6. Saftey

    Student Y by Grandparent S v. Board of Education of School District No. X, 2024 BCHRT 353 

    [8]               During kindergarten, Student Y was referred to the school’s inclusion support team due to her escalated behaviour, which the School District says included physically aggressive behaviour towards other students and staff, escaping, and verbally protesting classroom activities. At that time, the school designated Student Y as Category H: Intensive Behaviour/Severe Mental Health. The designation remained in place for the duration of Student Y’s attendance at the school. The materials before me do not further explain the meaning or consequences of this designation.

    52] From the materials before me, I am satisfied that the School District was actively and intensively involved in attempting to accommodate Student Y’s disabilities from the time that Student Y was in grade one up until the time that she was excluded from school in grade three. However, the question before me on this application is whether the School District is reasonably certain to prove that it “could not have done anything else reasonable or practical to avoid the negative impact on the individual”: Moore at para. 49 [Emphasis mine]. In my view, there is a lack of information in the materials before me that would allow me to conclude that the School District is reasonably certain to do so.

    So, we have a student who was “included physically aggressive behaviour towards other students an staff” and the tribunal is still looking at the school district to see if there was “anything else reasonable or practical to avoid the negative impact on the individual”. Please note that “anything else” is very open-ended and trying different placements that you may not agree with may still be viewed by the tribunal as part of the accommodation process and may fit the justification test. School districts need to balance the needs of staff and students AND still provide your child with an accessible education. This will be VERY context-specific and case-by-case. I suggest you reach out to an advocate at Inclusion BC or Family Support Institute if you need assistance with advocating.

    7. We don’t have the money or staff

    When we think of the undue hardship test in terms of a financial hardship, this case is very important to keep in mind.

    ***********

    Kerber v Alberta, 2025 ABKB 98 

    [152]      The Charter guarantees equal access to education for all students; the corollary effect is that that the equitable principle must be applied in times of labour or resource shortages.  Here, what is apparent is that there was no consideration of how the reduced resources could be redistributed among all students.  It was assumed that minimal disruption to the system would result by targeting only a sub-set of students – those who use an EA. However, this approach failed to consider that non-disabled students might suffer the least amount of harm since they do not have the same disadvantages as the students with disabilities and could adapt to an at-home learning program more easily, i.e., some non-disabled students switch to at-home learning to free up more resources for complex-needs students, or some of them, to attend school in-person even with the EAs presently unavailable.

    **********

    The moral of this court story is that resources need to be spread around equitably among all the students. Not everyone is going to get the same size slice of the pizza. But each person should get the size of the pizza slice that they will need to fill their hunger. Some will need more. Some will need less. Equitable distribution.

    Here is my rant about staffing, budget, and resources as reasons to deny accommodations. Understandably, the system is chronically underfunded. We are all aware of this. On the surface, it sounds like a very logical argument. BUT. IT. STILL. DOESN’T. MATTER. Your child is legally entitled to an equitable education by law. If your child needs a 10 and all they get is a 5, and we accept the 5, then tomorrow they will get a 3. NOPE! The system needs to figure it out. We need to push the line or there will never be any changes in the system. It is not my job to make it easier for them to keep the status quo or make the system comfortable with “as is”. If they are having problems meeting the needs of their students, then they had better be the ones going back to the Ministry and explain to them how their policies, budget allocation, and structures of education are making it difficult to meet their legal obligations. If we want the system to change, then we can’t accept it. We need to push. AND if you are in a district where senior administrative staff got ridiculous salary increases, good luck to them trying to justify that to the BC Human Rights Tribunal while saying they can’t afford supports for your kid. (You can compare the salary changes on their budget pages. Look for their Statement of Financial Information reports.) Ok. rant over.

    I can tell you that human rights complaints get accepted when the reasons for accommodation denial are not enough staff. Your child should not be without a quality education because of adults designing and maintaining a system that didn’t take their needs into consideration.

    Ok, phew! This has been a heavy blog. We are almost done.

    Please note:

    This is not an exhaustive list. There are so many different types of disabilities and different advocacy situations that parents find themselves in that there just isn’t enough case law to cover every situation and every possible defence. If you have any questions please please contact the BC Human Rights Clinic or Disability Alliance for consultation services if you want legal advice on human rights.

    In addition:

    Not all negative experiences are discrimination.

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

    [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.

    This is why, when there is a connection to the harm and our child’s disability, we are going to need to be very explicit about it in our email communication.

    Key Takeaways

    Schools may be able to justify the reasonable accommodations your child is offered, or maybe not. It is going to be very context-specific to your situation. But there are some general arguments to be aware of and the case law associated with them, as some can be excellent advocacy tools.

    The school will use arguments to justify their behaviour that could include hindsight, safety, collaborative process (they are trying in good faith – not lack of resource related), reasonable accommodation, lack of resources or staffing, blame your child for not self-advocating enough etc. Whether these arguments are grounded in any truth, that is another question. Just because they have arguments doesn’t mean they are strong arguments or that they have evidence to back up what they are saying. We aren’t the only ones who need evidence.

    We need to always be communicating the harm that we are witnessing and how that harm is related to their disability.

    If you ever need advice, please see legal consultations with a lawyer or legal advocate at BC Human Rights Clinic or Disability Alliance.

    Next Post Coming Up

    Now we dive into the process of the Duty to Accommodate.

    What are the steps that we need to take? How do we trigger the process and what are the expectations for both parties as we move through this collaborative process?

    The next blogs will be less intense, I promise. We just needed to get through some very important foundational work. And we did it, woohoo!

    See you later!

    Part 2 (A)- Summer Series, Duty to Accommodate – Discrimination Test

    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.

    ********

    Leading cases: Test for discrimination

    “Moore v. BC (Education), 2012 SCC 61
    To prove discrimination, a complainant has to prove that:

    1. they have a characteristic protected by the Human Rights Code [Code];
    2. they experienced an adverse impact with respect to an area protected by the Code; and
    3. 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.

    1. Does your child have a disability?
    2. Did they experience harm?
    3. 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:

    1. its behaviour was for a purpose or goal that is rationally connected to the function being performed;
    2. it behaved in good faith; and
    3. 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.

    ********

    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

    ********

    Discrimination and intent

    2  Discrimination in contravention of this Code does not require an intention to contravene this Code.

    ********

    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

    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.

    1. Does your kid have a disability?
    2. Were they harmed?
    3. 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

    Participating in the Duty to Accommodate

    If you are someone who is asking for accommodations for yourself at work or your child in school, we also have obligations under the Code to follow. If we do not follow this, than our human rights complaints can be dismissed.

    Rennie v. BC Ambulance Service, 2025 BCHRT 104

    [29] Further, Mr. Rennie obtained a medical letter dated April 13, 2015, from a psychologist. There is no evidence that this letter was provided to BC Ambulance prior to the present complaint proceeding.

    [30] In these circumstances, I am persuaded that BC Ambulance is reasonably certain to prove at a hearing that Mr. Rennie failed to participate in his accommodation process by not communicating with BC Ambulance, and its obligation to accommodate came to an end. Therefore, Mr. Rennie’s complaint has no reasonable prospect of succeeding.

    This complaint was dismissed.

    We have to participate. This falls under the “Duty to co-operate in good faith”

    Both parties are expected to do this. Both sides need to communicate.

    If the school is ignoring you, keep all those emails that you didn’t get a response to. Those will also be important.

    And…

    If the school is communicating with you. You can’t ignore them either.

    To read about the expectations and responsibilities of the duty to accommodate process read here

    Some parents feel that the communication they receive from the school is meant to poke them or bait them. I highly suggest you read 5 Rules on How to be Untouchable. Also keep in mind the communication between the parties needs to be in good faith, so if you feel there is anything sneaky going on, always keep the emails.

    The point of the communication and co-operation needs to be focused about figuring out which accommodations work and which ones don’t. Accommodations don’t need to be ideal or perfect, just “reasonable” enough to provide the person with “a ramp”.

    So, provide documentation. Communicate in good faith. And one more extension from this topic for parents in education is the Duty to Facilitate. Very similar to this case, but for parents. Failure to facilitate a school decision can lead to your human rights complaint being dismissed.

    Knowledge is power.

    Know your rights and responsibilities under the Duty to Accommodate.

    It’s a two-way street.

    What is Fatal to a Human Rights Complaint in Education?

    A and B obo Infant A v. School District C (No. 5), 2018 BCHRT 25

    I have heard of many families in very complex situations. Parents/guardians are struggling with accepting/agreeing to accommodations offered by the school that they feel very strongly won’t work. If you are thinking that the human rights process is a process you might be considering, there are important things to note.

    I have pulled the paragraphs/parts of paragraphs from this case that I feel are important for simplicity.  I highly encourage people to read the full case to understand the context of everything and how a hearing and the Human Rights Code are applied. It is a layered case and the complexity of the situation is something many families can find themselves in.  

    I’d like to also note, that even though we are reading this case, there might be information that is not written about that this family may feel is very important that was left out.

    Let’s look at the issues this case brings up and how we can be prepared for them.

    Some of the topics this case brings up are:

    1. The importance of documentation and having as much evidence as you can.
    2. Witness testimony from parents and education staff (credibility conflicts)
    3. The role and responsibilities of parents/guardians.
      • The duty of parents/guardians to facilitate accommodations
      • Parent/guardian credibility
      • Parents/guardians duty to cooperate in good faith

    “If the School District initiated a reasonable proposal that would, if implemented, accommodate the Child, then the Parents were obliged to facilitate that proposal. Failure to do so is fatal to their complaint of discrimination.”

    DIRECTLY FROM THE CASE:

    [37]           I am entitled to accept some, none or all of a witness’ testimony. Where there was disagreement in the evidence, my findings and reasons are set out. Where necessary to do so, I have assessed credibility and considered factors such as the witness’ demeanour, powers of observation, opportunity for knowledge, judgment, memory, and ability to describe clearly what they saw and heard….(continues)

    [38]           In resolving conflicts in the evidence, and determining whether to accept the evidence of any witness, in whole or in part, I have adopted and applied the test set out in Bradshaw:

    Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides. The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his [or her] memory, the ability to resist the influence of interest to modify his [or her] recollection, whether the witness’ evidence harmonizes with independent evidence that has been accepted, whether the witness changes his [or her] testimony during direct and cross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally. Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time. (Bradshaw, para. 186, citations excluded)

    [39]           I find that the most helpful evidence in this case is the documentary evidence created at the time of events…(continues)

    [42]           I have assigned relatively little weight to the Mother’s evidence where it conflicted with the first-hand accounts given by the School Counsellor, Principal, Vice Principal, and Teachers H, M, and G. I have found the Mother’s hearsay evidence considerably less reliable than the direct evidence of reliable witnesses, where there is a conflict.

    [43]           The Mother acknowledged that she was probably not present for most of the incidents at school that involved her Child. At times, she had a hard time recalling events. For example, the Mother’s testimony on the psychoeducational assessment of her son was wrong by one year. She acknowledged that she was “out a year”. The Mother testified that there is no reason to dispute the emails that were authored by her at the time. The Mother testified “that is what I wrote at that time”.

    [44]           During cross-examination, the Mother responded to several questions regarding her testimony about her Child’s version of events by saying that she did not know or was not there. She acknowledged that most of her knowledge of the incidents came through her Child. I find that her son was more likely than not motivated to minimize his involvement in some incidents when reporting them to his Parents, so as to avoid discipline. For example, the Mother described disciplining the Child in relation to an incident where he swore at the Principal. She described their punishment as “Draconian”. (In retrospect, the Mother regretted using that word in her letter). As another example, regarding the November 2016 Incident, the Child only reported to his Parents that he grabbed another student by the collar, whereas I find, as a fact, that the Child choked a student, pushed him over a railing, and spat in his face.

    (Parents’ Obligations (Paragraph 248-260) ** Important to read in the case. This case was dismissed and discrimination was not found. )

    [258] In summary, the evidence shows that the accommodation process of the Child at school was often frustrated by the unreasonable actions or inactions of his Parents. The Parents did not attend re-entry meetings after the Child was sent home from school; the Parents attended the first IEP meeting, but refused to attend future IEP meetings. After November 2015, the Parents stopped providing comments to draft IEPs that were sent to them for review. The Parents refused to participate in the creation of a Safety Plan for the Child. The Parents did not provide the requested medical and psychological information to enable the School to modify the Child’s IEP. The Parents rejected the Principal’s offers of an educational assistant, classroom change, pod change, and school change. The Parents interfered with and rejected the psycho-educational assessment performed by a school psychologist. The Parents opposed any involvement of the District’s Intensive Behavioural Team with the Child. The Parents refused to allow an educational assistant to work with the Child despite it being recommended by his teachers, School Counsellor, and Principal. In a letter dated May 2016, the Parents wrote that the Principal was the “root cause of all this mess”.

    [248]      The School District is not the only party with obligations in the accommodation process. Rather, the parents were obliged, as the Child’s representatives, to work towards facilitating an appropriate accommodation: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. If the School District initiated a reasonable proposal that would, if implemented, accommodate the Child, then the Parents were obliged to facilitate that proposal. Failure to do so is fatal to their complaint of discrimination.

    Again, I highly encourage everyone to read the full case. I appreciate every family who has taken their case to the human rights tribunal hearing level. Even cases that have not “won” are still beneficial. It is through their experiences and stories that the rest of us learn and therefore become better advocates for our children to navigate this current system.

    TAKE AWAY LEARNING

    Whether this is fair or unfair/just or unjust/right or wrong…to uphold a human rights complaint…this is what I take away from this case.

    1. We need to be so thoughtful in how we communicate with the school.
    2. We need to be solution focused.
    3. Our credibility just like the staff’s credibility may be a part of the hearing process if there are issues around credibility and the relationship with the school.
    4. We need to document everything and gather as much evidence as we can.
    5. We need to cooperate and facilitate accommodations and if they are not successful, document the failure. (Paper documentation, video, etc)
    6. We need help. We should seek guidance and advice from as many professionals and other advocacy support people as possible if we find ourselves in a challenging advocacy situation at our child’s school.

    However, it is also important to be aware.

    "Parental conduct or lack of parental authority cannot be used as a justification for not meeting an exceptional student’s needs;"

    To view the document on CanLII’s website:
    L.B. v. Toronto District School Board, 2015 HRTO 1622 (CanLII)

    "a parent’s “fierce advocacy” for his or her child must not and cannot prevent a school board from accommodating the child’s needs to the point of undue hardship."
    [77] The Interim Decision sets out my reasons for issuing an order with respect to the first two points, as follows:
    (a) School boards have an obligation under the Code to accommodate their students with disabilities to the point of undue hardship, regardless of whether the students are receiving any medical treatment in the community or not;
    (b) School boards cannot order or demand of parents to place their children into residential psychiatric treatment programs and cannot deny or withhold accommodations to the point of undue hardship on the grounds that the student should be in such a program. While I have no evidence to show that this was the case here, that does not alter the principle;
    (c) School boards have an obligation under the Education Act to provide appropriate special education placements, programs and services to their exceptional students. Parental conduct or lack of parental authority cannot be used as a justification for not meeting an exceptional student’s needs; and
    (d) I agree with the decision in R.B. v. Keewatin-Patricia District School Board, (R.B./Keewatin) 2013 HRTO 1436, an HRTO decision cited by both parties in this case, at para 265, that a parent’s “fierce advocacy” for his or her child must not and cannot prevent a school board from accommodating the child’s needs to the point of undue hardship.
    Here is the link to the case in full: https://canlii.ca/t/gmd68

    For more updated human rights process information please click on my Human Rights Tribunal page and scan down to the “Things that are not explicitly explained but are good to know…”

    For more information on understanding the duty to accommodate.

    I offer an Education/Human Rights Workbook to parents/guardians. Hopefully, this process can help clarify your case.

    I wish you all the best,