Tag: #HumanRightsCode

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.

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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.

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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.

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Leading cases: Test for discrimination

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

  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.

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In human rights decisions, it is very common to see paragraphs like this before they explain their decision, reviewing the discrimination test.

Mother obo Child v. Daycare, 2024 BCHRT 251

[24]           To prove their complaint at a hearing, the Child will have to prove that he has a characteristic protected by the Code, he was adversely impacted in services, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If he does this, the burden would shift to the Daycare to justify the impact as a bona fide reasonable justification. If the impact is justified, there is no discrimination.

Key word here is “impact”

Because, and this is important…

From the Human Rights Code, Section 2

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Discrimination and intent

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

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You don’t have to mean to discriminate, to discriminate. It’s not about the person’s intentions. It’s about the impact. You can have a teacher who didn’t mean to discriminate, but the impact has been harm. My children have been denied accommodations by education staff who are following the school culture and normalization of accommodation denial or were professionally unaware/untrained. The impact of their behaviour and decisions was still very harmful. LOTS of kids are slipping through the cracks in the system. It’s not because we have a mass widespread issue of mean teachers cackling over accommodation denial. It’s not about their intentions.

Now let’s break this down and really examine the discrimination test:

Section Two: Question #1

  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