Tag: inclusion

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

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

Ok. Let’s get started.

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

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

Here we go!

Section One – Written Authority

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

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

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

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

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

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

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

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

Why are accommodations the priority above other laws and policies?

Section Three – Power of the Human Rights Code

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

Code prevails

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

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

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

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

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

Beautiful.

Section Four- Practical Application

What does this mean in real life?

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. A v. The University, 2020 BCHRT 58 

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

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

Section Five – The Human Rights Code has Limitations

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

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

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

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

Section Six – Discrimination Test

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

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

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

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

Case law.

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

Section Seven – Parents are Protected Too!

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

Section Eight – Something to think about…

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

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

From this week: Key Takeaways:

The Human Rights Code prevails.

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

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

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

Coming Up Next Week:

Understanding the Discrimination Test.

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

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

Summer Series! Duty to Accommodate

Hello Everyone! I am back from vacation and ready to roll!

This summer I am going to be breaking down the Duty to Accommodate into a weekly blog series that will be posted every Sunday night and will continue during the summer.

Why?

What I am witnessing is this. 👉Parents who use human rights language in their advocacy are experiencing higher rates of success in getting their kids the accommodations they need.

I am going to be REALLY breaking down the duty to accommodate. Into weekly digestible accessible chunks. We will look at where the written authority comes from for all of this, as well as key language words. By the end, I am not going to just provide you fish, I will be teaching you HOW to fish. Because context and learning how to apply the duty to accommodate to your specific situation is what is going to make all the magic happen.

You don’t need to be a lawyer to understand this stuff. We can all learn about human rights and how to apply them. Human rights are constantly evolving and advancing. The schools want you to think that this stuff is more complicated than it actually is.

First blog coming July 13th. Let’s get rolling!

I also wanted to take the time to mention that this month is my 4-year anniversary of starting up Speaking Up BC. 😁😁😁

4 years ago I decided to launch a website. The goal was to share with other parent(s)/guardians all the information that I was learning along the way. Everything that I wish I knew earlier. So many things I found to be hidden in education, and it felt by chance I was stumbling along and learning all of this. So much unbelievable stuff was happening. I trusted way too many people who, as it turns out, absolutely did not have my children’s best interests at heart. I would have given anything to have someone warn me. I was so desperate for information, seeking, searching, for anything that would help my children.

So, I started up my own website, and I started posting information about the external complaint systems I was navigating and started blogging. Writing to me gives me peace. One thing is super clear to me over the years. We are very powerful when we network and share information. People need support. It’s really hard to do this on our own. And so I attempt to be a lighthouse. Take it or leave it. Up to you. But I am here. And I am never shutting up.

Oh Education Case Law…

I have something exciting to share. I will be picking up my degree this week from SFU. I decided not to go to the graduation ceremony. Not my jam. Picking up my degree will finalize my interactions with SFU. I am letting that sink in. It’s been quite a journey.

I am remembering when I first started school in fall of 2021. My first class was a law foundations class. I had a fabulous teacher.

I have a visual reminder of that first class. The lecture hall was huge. I would guess at least 250 students??? She asked the class to raise their hand for those who took grade 12 law. Everyone did but me. At that point, I had never taken a class about law in my life. I knew zilch. 95% of the students had laptops. I had a pen and paper notebook. They were all young adults. I was the only …. …cough…mature student in the room. As the room is buzzing with the sounds of 250 Gen Z overachieving students typing on their laptops, I felt like I was taking out my feather quill and dipping it in my inkwell.

For our first assignment, she wanted us to add a creative piece on our topic. How cool is that? So along with the written assignment, I wrote a poem on education case law.

Here it is.

Case Law

Schools are places of learning
They mold, inspire and teach
But much to my surprise
Educational law is out of reach

As parents you have ideas
How your child’s education will go
Case law doesn’t float through your head
Until you have school conflict woes

As I sat consulting with a lawyer
He told me my case wouldn’t stick
There is no case law to support it
I thought he was just being a dick

I searched through all the case law
And much to my surprise
He was right about my case
I was hoping it was a bunch of lies.

Without educational case law
The people in charge are free
To do whatever the fuck they want
Consequences, they never see

Oh, education case law
It was not meant to be
I guess I have nothing left to do
But get drunk on spiked herbal tea.

The End.

She liked my poem. And I do have to say…it is true, there wasn’t case law similar to what my child had experienced. So, I decided to take the district to a hearing and create my own.

Thanks SFU for being part of the journey and transformation!

New HR Decision… and it’s LOADED

ooohhhh gather around for this one!

Lots of interesting learnings in this decision.

Thank you, thank you, thank you to the parent who brought this decision forward.

It was a win for them personally and a win for us for this analysis.

Here we go. This is an exclusion case & Indigenous rights.

Parent obo Student v. BC Ministry of Education and another, 2025 BCHRT 112

There is a lot in here, so I am going to list the important parts that I see.

  1. Ministerial order analysis
  2. Section 11 appeal was dismissed, HR complaint continues
  3. Timeliness application
  4. Ministry of Education dismissed

Respondents Defence Strategy

[10] The School District says that in April 2019, it decided to place the Student on a partial day program pursuant to the Ministry’s Special Needs Students Order, M150/89 [ Ministerial Order ], which states:……

(This policy is used as the school district’s defence to the exclusion in this case.)

[12] In or around 2019, the Student was diagnosed with Attention Deficit/Hyperactivity Disorder-Combined [ ADHD-C ], anxiety, and Oppositional Defiant Disorder [ ODD ].

[13] The School District says the Ministerial Order clearly applied in the Student’s circumstances. It says that shortly after the Student started kindergarten, her teacher raised concerns regarding some of the Student’s behaviours related to self-regulation and ability to follow expectations in the classroom, which indicated a need for extra support. The School District says these behaviours escalated during the period of January to March 2019, and included task avoidance, touching others, eloping from the classroom, disrupting the class environment, being unable to follow simple adult directions, and running through the school. In response, the School District says it began implementing more interventions and support for the Student. However, despite these additional supports, the School District says the Student’s behaviour continued to escalate to the point that neither her educational needs, nor those of her classmates, were being met.

The parent made a section 11 appeal

18] The parties agree that the Parent went through the following steps of the appeal procedure:

a. Step 1: appeal to the school principal who upheld the decision to place the Student on a partial day program.

b. Step 2: appeal to the Assistant Superintendent, Learning Services for the School District, who upheld the school principal’s decision.

c. Step 3: appeal to the Superintendent of Schools, who upheld the Assistant Superintendent’s decision.

d. Step 4: appeal to the Board of Trustees for the School District. The Board issued its decision on November 28, 2019, stating that they did not deem it appropriate to require that the Student be immediately returned to full-time attendance at school.

This is SUPER important – take a look at the reason for the appeal not being upheld

[20] The Superintendent of Appeals summarily dismissed the appeal concerning s. 2(2)(f), and an adjudicator rendered a decision dismissing the appeal under s. 2(2)(b) finding that it did not have jurisdiction to hear the appeal because the Student had not been suspended from school [ Ministry Appeal Decision ].

Because the student hadn’t been suspended!!

They do this a lot!

This is VERY important learning for us.

Ministry of Education – Dismissed

So the parent filed against the Ministry of Education as well. They were dismissed from the case. No surprises here. We have seen this over and over.

[31] The Ministry says there has been a clear legislative choice, as set out in the School Act , to divide the roles and responsibilities for K-12 education in BC between the Ministry and the School District. The services the complaint claims the Ministry ought to have provided have not been delineated as within the scope of the Ministry’s jurisdiction and/or authority and would involve an inappropriate intrusion into the role and responsibilities of the School District.

[32] Further, the Ministry says there is no evidence that it had any involvement in the decisions or actions related to the Student’s educational program. The Ministry provides funding and oversight at a high level with respect to K-12 education.

Ministerial Order does not excuse them from human rights process

Now this is SUPER INTERESTING!

[38] The School District argues that the allegations in the complaint fall outside the jurisdiction of the Tribunal. Specifically, the School District says the complainant is improperly attempting to challenge the validity if the Ministerial Order through the Tribunal’s process. The School District notes that one of the remedies sought in the complaint is “changes made to the School Act to protect children who have special needs,” which is beyond the Tribunal’s authority. The School District says it has the legal authority to put students on a partial day program pursuant to the Ministerial Order, under section 75 and 168(2)(t) of the School Act . In this case, the School District says that the Student demonstrated behaviour which met the criteria for a partial day program as set out in the Ministerial Order.

[39] I agree with the School District that the Tribunal does not have the authority to overturn the Ministerial Order or to find the Ministerial Order itself invalid. Similarly, the Tribunal cannot order that changes be made to the School Act . However, I am not persuaded that the allegations in the current complaint are outside of the jurisdiction of the Tribunal.

See what I mean by the respondents will always have an argument.

The stuff they come up with is fascinating.

I gotta hand it to them, they are creative.

The tribunal’s response was this:

[40] Although reforms to the School Act are raised in the complaint as a potential remedy, I read the allegations as encompassing concerns about the manner in which the Ministerial Orders were applied in these circumstances, and the impact on the Student as an Indigenous child with disabilities, rather than the validity of the Ministerial Orders themselves. This is not a complaint challenging the non-discretionary application of legislative criteria, for example. The determination of the “educational needs” of a student with special needs or other students, as well as the appropriate alternative programming for a child with special needs, per the Ministerial Order, are discretionary decisions made by teachers or other School District personnel. These decisions, if influenced by the protected characteristics of an affected student, are within the Tribunal’s jurisdiction to review.

[43] I do not agree with the School District’s characterization of this issue as one of jurisdiction. Rather, it is part of the human rights analysis the Tribunal must undertake in any case and would more appropriately be raised under s.27(1)(b) or (c) of the Code . Nevertheless, I consider whether the allegations against the School District raise an arguable contravention of the Code under s. 27(1)(g) analysis below.

[44] Accordingly, I deny the School District’s application under s. 27(1)(a) of the Code .

Woohoo!

Now, another benefit of this decision is that the respondents know that this argument wont fly with the tribunal. So, this case helps to whittle down their arguments. That is very good.

AND if this wasn’t interesting enough, we even get a timeliness application.

Timeliness Application

[50] I am satisfied in the current circumstances that the allegations form a continuing contravention, and the most recent act of alleged discrimination occurred within one year of the filing of the complaint. I am further satisfied that the allegations pass the “arguable contravention test.”

What is a continuing convention of the code?

[47] A complaint is filed in time if the last allegation of discrimination happened within one year, and older allegations are part of a “continuing contravention”: Code , s. 22(2); School District v. Parent obo the Child , 2018 BCCA 136  at para. 68  . A continuing contravention is “a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code , and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City), 2015 BCCA 57 at para. 23  ; School District at para. 50  .

Here are some important allegations that give us a peek into what the parent was dealing with. Always know with these decisions, we aren’t getting the full picture. Decisions are written up to only include the information that is needed for the decision. There is ALWAYS more to the story.

a. February 1, 2019: The Student was put on partial days of school and was not allowed to participate in school activities or be in attendance with her peers;

b. March 1, 2019: The previous vice principal said: “it just gets to a point in the day where we just don’t want to deal with [the Student] anymore”;

c. April 1, 2019: The Parent was called to the school to pick up the Student because “she was having trauma triggered behaviours and several school staff including the principal, vice principal, and EAs had her cornered in the classroom and she was scared, trapped, and in distress;

d. June 1, 2019: The principal said to the Parent: “have you thought about transferring her to a different school?”;

e. June 1, 2019: The Student was separated from her class and was not allowed to be in a classroom with other children;

f. August 1, 2019: The previous Assistant Superintendent said school staff do not want to work with the Student because she is a “dirty girl”;

g. September 1, 2019: “Step 1” meeting with the principal to appeal the decision not to allow the Student in school full time – denied;

h. September 1, 2019: “Step 2” meeting with the Assistant Superintendent to appeal the decision not to allow the Student in school full time – denied;

i. November 1, 2019: “Step 3” meeting with Superintendent of Schools to appeal the decision not to allow the Student in school full time – denied;

j. November 26, 2019: “Step 4” meeting with Board of Trustees to appeal the decision not to allow the Student in school full time – denied.

In conclusion – public interest too!

[66] For these reasons, I find that the complaint is timely. Had I reached a different conclusion, I would have still found that the public interest favours accepting this complaint. The education system has been identified as a common area of human rights concern for Indigenous children: BC Human Rights Tribunal, (2020) “Expanding Our Vision: Cultural Equality and Indigenous Peoples’ Human Rights” at p. 27; Ontario Human Rights Commission, (2018) “To dream together: Indigenous peoples and human rights dialogue report” at p. 40. Courts and Tribunals have taken notice that Indigenous women and girls have been, and continue to be, particularly subject to hurtful biases, stereotypes and assumptions, including that they are “unintelligent” or “people of low or bad character not deserving of the same respect, humanity and dignity as others”: R. v Zakuti , 2021 BCSC 2253 at para. 25; Lindsay v. Toronto District School Board , 2020 HRTO 496 at para. 23. Here, the Student as an Indigenous girl who has been denied full access to the public education system, requires that this complaint be situated in its full socio-historical context. The Code ’s purpose of identifying and eliminating persistent patterns of inequality associated with discrimination protected by the Code is served by this complaint being heard at a hearing on the merits: s. 3(d).

And here is this beautiful statement

Dismissal denied – Complaint Proceeding

[68] I deny the application to dismiss the complaint against the School District. These allegations will proceed to a hearing.

I really encourage you to read the case in full. There are a lot of interesting details in there.

Due to the parent’s persistence in bringing this case forward, we have some very interesting legal analysis that are advancing the human rights code. This decision is now an advocacy tool and we are learning about what we need to do.  The piece about appeals being denied around suspensions is very interesting to have this documented.

It would be interesting to see a section 11 appeal done if the school refuses to log it as a suspension. Topics to discuss amongst education advocates, the importance of exclusion being labelled a suspension.

A big thank you to this parent’s advocacy.

“If not you, then who?”

I was at a kids’ baseball game, they were around grade 8 & 9. The ball went soaring high up in the air, into right field. The kid just stood there and didn’t move. The ball landed a few feet away.

The coach yells out, “If not you… then who?”

I am not writing this to comment on the coaches comment. I do think about this a lot. I visually replay this event in my mind. I thought about this a lot, going through my child’s human rights complaint, determined as all hell, all the way to a hearing. If not me….than who? This is the ball of crap that has been hit hard straight into my zone. If not me, then who?

Who else is going to do this? My neighbour? Our dentist? What about my friend who lives across the street?

The answer may sound obvious, but there is a twist.

Of course, it has to be me. Or does it?

When you go through the human rights process, you can self-represent, or you can have a lawyer and there is a THIRD option.

You can have anyone be your advocate and be your representative. It could be your neighbour. It could be your friend who lives down the street. It could be anyone to support you and help you through the process.

Is there someone in your life who can work with you together on this project, and you all work together as a team? You can both be crafting emails. You can both be preparing for a mediation meeting. You don’t need to do this alone.

If not you, then you and a support person. That’s who.

Just something to think about and consider.

Here is information on the BC HRT website about this.

Rule 7 – Representation before the Tribunal – page 4 in the table of contents


How participants may be represented
(1) A participant may be represented by a lawyer or other person, or may be self-represented.

(2) The representative may be:

(a) lawyer or other person authorized to practice law in British Columbia under the Legal Profession Act, or

(b) a person who acts as a representative with no expectation of a fee, gain or reward, direct or indirect, from the participant they represent, except for persons identified in s. 15(3) of the Legal Profession Act.


You will see it in cases. It will look like this.

Text:

Tribunal Member: Devyn Cousineau

Agent for the Complainant: Dr. Bob Uttl

Counsel for the Respondent: Jamie Hoopes, Alyssa Paex, and Ilan Burkes

“It doesn’t make a difference”

Yes, it does!

That sentence literally makes me want to rip my face off. My body actually physically responds first, when I hear that from people. It’s like a wave that just rushes over my body. And I have to sit still for just a minute, so I don’t lose my shit.

….okay I am actually going to sit in this and lose my shit for a bit.

Yes. It. Does. Make. A. Difference.

Many people have the expectation that one big thing needs to happen and then the education system is suddenly going to change overnight.

That is impossible.

I can tell you right now, it is never going to happen.

(When systems are forced to change overnight, it doesn’t tend to be by choice or for the better)

Social movements that change the hearts and minds of people are slow and painful, and laborious work. Anti-ableism work is slow and painful and laborious work.

It requires a bunch of little things, moderate things, quiet work, and loud work all mixed up together by multiple groups of people over and over again. Everything adds up. You won’t see it all. You won’t know all the players on all of the teams. You won’t understand it all. There will be many side conversations, many unknown emails, many people working in the shadows and many people working in the spotlight.

Saying, “what is the point, it’s not going to do anything anyways”

Sorry, but YOU have missed the point.

When I hear that, what you have taught me is that you don’t understand how systems work. What breaks me, is that by people making those comments, you are undermining other people’s efforts. Please, please, please, keep your comments to yourself.

We need to lift people up and cheer them on. Not the opposite. Change is never a simple, clear line from A to B. It’s two steps forward, one step back. It’s messy, it’s confusing, it’s uncomfortable, and it’s all over the place. Because we are always stepping into uncharted territory. When people push the line, they don’t know what is going to happen. How people are going to react, because in this space and time, it’s never been done before. People are inspired and moved, and it changes people’s thinking, watching other people step into advocacy. It shows people what is possible, or what won’t work, and where we need to go next. It’s all valuable.

Please stop telling people to give up, why bother and what’s the point.

Lots of people are not giving up. Lots of people want to be a bother. And lots of people have a lot of points.

So to all of the people out there who are doing the quiet work, the moderate work, and the loud work, I encourage you to take your points and be pointy.

Everything adds up. The stepping stones all become useful for different things at various times. You will never really know all the ways that impact the system. None of it is a waste.

Society thanks you.

Understanding Systemic Change

Rant over.

School District Lawyers

Here is the Code of Professional Conduct for Lawyers – from the Law Society.

I have pulled out some interesting pieces I think are good for us to know. If you feel the lawyer you are dealing with isn’t being ethical, you can file a complaint with the Law Society.

You can also file an improper conduct complaint with the BC HRT.

There are the top 3 school law firms that I know about who take on the majority of education law cases. They all operate in similar ways in how they interact with parents.

Here are some code of ethics pieces that are good to know.

Encouraging compromise or settlement

3.2-4 A lawyer must advise and encourage a client to compromise or settle a dispute whenever it is possible to do so on a reasonable basis and must discourage the client from commencing or continuing useless legal proceedings.

(School district lawyers tend to delay and want these processes to drag on. They think parents will get tired and give up. Part of me wonders if they are also taking advantage of the system and see us parents as cash cows for their law firm.)

7.2  Responsibility to lawyers and others

Courtesy and good faith

7.2-1  A lawyer must be courteous and civil and act in good faith with all persons with whom the lawyer has dealings in the course of their practice. 

(If they play dirty, not only can you file an improper conduct complaint with the HRT, but also a complaint with the law society.)

7.2-4  A lawyer must not, in the course of a professional practice, send correspondence or otherwise communicate to a client, another lawyer or any other person in a manner that is abusive, offensive, or otherwise inconsistent with the proper tone of a professional communication from a lawyer.

[heading amended 11/2024]

Communicating with an unrepresented person
7.2-9 When a lawyer deals on a client’s behalf with an unrepresented person, the lawyer must:

(a) urge the unrepresented person to obtain independent legal representation;

(b) take care to see that the unrepresented person is not proceeding under the impression that their interests will be protected by the lawyer; and

(c) make it clear to the unrepresented person that the lawyer is acting exclusively in the interests of the client.

[[heading added, rule amended 11/2024]

(NOTE: The school district lawyers will ALWAYS do whatever is best for their client. Not you. Not your child. If they are doing anything that benefits your child or you, it is because it benefits their client to be doing that. Period.)

2.2  Integrity

2.2-1  A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity.

Commentary

[1]  Integrity is the fundamental quality of any person who seeks to practise as a member of the legal profession. If clients have any doubt about their lawyers’ trustworthiness, the essential element in the true lawyer-client relationship will be missing. If integrity is lacking, the lawyer’s usefulness to the client and reputation within the profession will be destroyed, regardless of how competent the lawyer may be.

[2]  Public confidence in the administration of justice and in the legal profession may be eroded by a lawyer’s irresponsible conduct. Accordingly, a lawyer’s conduct should reflect favourably on the legal profession, inspire the confidence, respect and trust of clients and of the community, and avoid even the appearance of impropriety.

[3]  Dishonourable or questionable conduct on the part of a lawyer in either private life or professional practice will reflect adversely upon the integrity of the profession and the administration of justice. Whether within or outside the professional sphere, if the conduct is such that knowledge of it would be likely to impair a client’s trust in the lawyer, the Society may be justified in taking disciplinary action.

[4]  Generally, however, the Society will not be concerned with the purely private or extra-professional activities of a lawyer that do not bring into question the lawyer’s professional integrity.

[[1] amended 10/2021]

Just be aware….

Keep your eyes open.

Everything they do or do not do is for the benefit of their client. If you want a settlement, it’s going to need to be a win-win for both parties, or they won’t take it. It’s a cost-risk analysis for them. If you want a hearing, then who cares, just keep going.

If they think you aren’t paying attention, they may think they can slip a needle in a haystack.

Be ready to file a complaint. It has the potential to benefit you, and it exposes the reality to the tribunal. Also, something VERY important. If we don’t speak up, it’s like our experience didn’t happen because “the system” no one else will know about it.

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.