Tag: Ministry of Education

NEW – OIPC Decision – Coquitlam School District

A New OIPC Decision was posted on April 15th involving the Coquitlam School District. Order F24-30

This is quite a unique decision involving a school district, compared with other decisions I have read. Particularly because I have never seen this section of the FIPPA used before. Section 14 – Solicitor-client privilege.

In some decisions involving all sorts of organizations, the respondents will suddenly be willing to disclose some of the previously withheld documents, only when the inquiry with the adjudicator starts. This is also the case here.

Do organizations just do that kind of stuff in hopes the applicant doesn’t have the stamina to last through these processes?

The summary by the OIPC is clear.

“An applicant made an access request and a privacy complaint to the Board of Education of School District No. 43 (School District) regarding a single email communication between the School District and an independent school. Initially, the School District withheld the email under s. 14 (solicitor-client privilege) of the Freedom of Information and Protection of Privacy Act (FIPPA) and disagreed with the applicant’s privacy complaint. However, during the inquiry, the School District determined that s. 14 did not apply and it disclosed the email to the applicant. It also acknowledged that it disclosed the applicant’s personal information without authority under FIPPA. The adjudicator determined that the issues in dispute were moot and there were no factors that warranted continuing the inquiry. Therefore, the adjudicator cancelled the inquiry.” (https://www.oipc.bc.ca/rulings/orders/)

What do you think of this?

Keep in mind, that this process takes years to wait for an inquiry. Years.

The school district was then paying lawyers to defend them through all of this.

When you think of it…. this parent’s tax dollars were going towards a school district that was paying lawyers to fight them over documents they should have had access to and their privacy was compromised.

Don’t we have school districts complaining of lack of funding?

When reading the details of this inquiry. It’s very interesting….

[11] The applicant’s child transferred from an Independent School to a school within the School District (Public School).

[12] In 2019, the applicant asked the principal of the Public School if any staff from the Public School and the Independent School had communicated about his child. The applicant and the principal exchanged several emails on the subject.

[13] In May 2021, legal counsel for the Independent School contacted the principal of the Public School to get information about whether the Independent School and the Public School had communicated about the applicant’s child. The Public School’s principal responded by email on May 12, 2021. In this email, the principal summarized his efforts to determine whether the communications took place and included a copy of the emails that he and the applicant exchanged in 2019.

[22] The parties agree that s. 14 does not apply to the information in dispute and the School District disclosed the email to the applicant.13 Given that all the information in dispute in this inquiry has been released to the applicant, I find that any order I make would not have a practical effect on the applicant’s right to access the information in dispute. As a result, I find that the issue of whether the School District is authorized to refuse the applicant access to the May 2021 email is moot.

Very interesting. I have so many questions.

[31] The parties agree that the 2021 email constituted a disclosure of the applicant’s personal information that was not authorized by FIPPA.17 The School District submits the unauthorized disclosure was quickly contained because the Independent School’s legal counsel recognized there may be privacy concerns about her receiving the email and immediately deleted it.18 The applicant does not challenge the veracity of the School District’s claim that the legal counsel immediately deleted the email in question.

So…if I am understanding this decision correctly.. lawyers from one school cannot contact another school and obtain information about a student/parents without the consent of the parent, even though they are lawyers?

Good to know.

As always, a big thank you to the parents who saw this through to hold the district accountable and provide us with an opportunity for learning and understanding the system. I am happy to see they had an outcome in their favour.

Ok parent(s)/guardians, keep this in mind for custody disputes, family court matters, human rights complaints, etc.

For anyone going through this process, the OIPC has a guide for completing written submissions. https://www.oipc.bc.ca/media/17752/2024-02-26-gd-instructions-for-written-inquiries.pdf

ADHD, Dyslexia, Dysgraphia – Human Rights Education Case

This is a new case that was posted on the BC Human Rights Tribunal Website March 26th, 2024. This is a timeliness application.

I have read through this case and I feel MANY families can relate to the details of this case or various aspects of this case.

It really deserves a full read, however I have pulled some paragraphs to summarize and give an overview. The analysis of this case by the tribunal member and their determination of whether disability was connected to the harm alleged is really important learning for us parents. It also describes how the tribunal interprets alleged inappropriate accommodations as potential discrimination.

I am also going to be emailing this case to the Ministry of Education and asking them to explain why they are not screening children in Kindergarten. Dyslexia BC has been advocating for this for years!

The Parent obo the Child v. School District, 2024 BCHRT 91

[8] The Child attended an elementary school in the School District from September 2015 until December 2020. He has dyslexia, dysgraphia, and attention deficit hyperactivity disorder [ADHD].

[9] By the third week of kindergarten in 2015, the Parent alleges that the Child began complaining of constant nausea and experienced diarrhea and vomiting regularly. She states he told her that he was scared to go to school as the work was too hard and he could not do it. The Parent alleges that the Child’s physical ailments were only present on school days and he began resisting going to school, to the extent that he cried all evening before going to school and lay on the floor crying two to three hours before school. The Parent alleges this same pattern persisted throughout the entire time the Child attended the school.

[14] Around August 2018, before the Child started grade three, the Parent alleges that she asked his teacher if he may be dyslexic. The Parent says that the teacher assured her that her son’s situation was normal, and he just needed to keep practicing. The Parent says that she thought that by raising the possibility dyslexia to the teacher it would prompt the teacher to investigate the issue more thoroughly. The Parent says that she ultimately decided to trust the teacher’s opinion, which resulted in the Child not being appropriately accommodated for his disabilities.

[15] In September 2018, the School District conducted a functional behavioral assessment of the Child. Based on the assessment, in November 2018 the School District placed him in a literacy intervention group. The Parent alleges the placement was an inappropriate response to the Child’s disabilities.

[17] In December 2018, the School District created its first Individual Educational Plan [IEP] for the Child. The plan focused on addressing the goals of the Child attending school and managing his anxiety in a positive way at school. It also addressed various ways to increase his reading and writing to advance him from operating at a grade one level. The Parent alleges the IEP did not appropriately address the Child’s disabilities.

[18] In June 2019, the Parent alleges the Child’s IEP was updated with minimal change. She says that worksheets provided by the school over the summer were too hard for the Child to complete. Once again, the Parent alleges the School District’s attempts to accommodate the Child’s disabilities were inappropriate.

[25] In mid 2020, at the end of grade four, the Parent says that she realized the extent of the Child’s reading struggles as he could not read instructions or complete any online school without her providing him with extensive one-to-one support. She alleges his reading skills were much lower than the School District had previously indicated. At that point the Parent says she began doing in-depth research on dyslexia and other disabilities pertaining to reading. She then decided to pay for him to attend tutoring with literacy specialists outside of school.

[31] ……...The Parent stated that she felt incredibly rushed during a less than one hour meeting about the plan for the Child related to the new information and the complexity of the situation. She worried about several educators being involved who did not have training for children with the Child’s learning disabilities and processing challenges.…..

[34] Finally, the Parent noted her concern that as of grade three the School District had already started to consider the Child as not being a candidate for graduation with a high school diploma.

[37] In January 2021, the Parent says that the Child was enrolled in a private school equipped to meet his education needs. She says that at the new school, the Child received 45 minutes of OG tutoring at the new school every day with positive effects. By the time her complaint was filed in November 2021, she described him as a “different child” who did not complain about going to school and did not get headaches and have an upset stomach or diarrhea. The Parent says the Child was learning at grade level and was now being given the opportunity to be successful.

[49] After reviewing the information on file, I have further determined that there is a succession of separate acts of discrimination of the same character that are separate contraventions of the Code extending back to the spring of 2016. I address each allegation in turn.

[50] The Complaint alleges that on April 4, 2016, the Parent emailed the Child’s kindergarten teacher with his reports that he felt rushed when doing work at school, and despite his best efforts he felt he was too slow in completing tasks. The Parent asked the teacher if there was anything that could be done about this problem. The teacher responded with an acknowledgement that the Child did take his time with his work and appears to suggest that the Parent should reassure the Child that he could take time and not be so hard on himself. From my review of this event, I am satisfied that the Complaint sets out an allegation of discrimination where the Child accessing educational services experienced harms because the School District failed to accommodate the Child and did not meet his educational needs by only telling the Parent to tell the Child not to not rush or be too hard on himself. The harm incurred 12 by taking this action only was the Child not receiving a proper education. I am further satisfied the Complaint sets out an allegation that the School District failed to make sufficient inquiries into the nature and extent of the Child’s disability-related needs in response to the Parent’s concerns. In my view, this inaction caused harm where the School District failed to discover Child’s learning disabilities such that he could then be provided with appropriate accommodations to prevent him falling behind. In my view, the Complaint alleges that the Child’s disability was a factor in the harms alleged.

[51] The Complaint alleges that in November 2016, the School District’s response to the Child’s reading difficulties was to send home alphabet cards and provide video links for him to work on sounding out letters and creating simple words. From my review of this event, I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs in this manner. I am further satisfied the Complaint sets out an allegation that the School District failed to make sufficient inquiries into the nature and extent of the Child’s disability-related needs as opposed to sending home alphabet cards and video links to address his needs. In my view, the Complaint alleges that the Child’s disability was a factor in the harms alleged. In my view, the Complaint alleges that the Child’s disability was a factor in the harms alleged.

[52] The Complaint alleges that in the fall of 2017, the School District addressed the Child’s ongoing reading problems by giving him sight cards to take home and providing him with some one-on-one reading support. At this time, the Parent noted her concerns that the Child was merely memorizing the cards and not actually able to spell the words. She also observed that he was guessing words based on pictures. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs in this manner. I am further satisfied the Complaint sets out an allegation that the School District failed to make sufficient inquiries into the nature and extent of the Child’s disability-related needs as opposed to sending home sight cards and providing some one-on-one reading support. In my view, the Complaint alleges that the Child’s disability was a factor in the harms alleged. 13

[53] The Complaint alleges that in August 2018, the School District’s response to the Parent’s concern that the Child might be dyslexic as he continued to struggle in school was to assure her that he just needed to keep practicing. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs in this manner in response to Parent’s concerns. I am further satisfied the Complaint sets out an allegation that the School District failed to make sufficient inquiries into the nature and extent of the Child’s disability-related needs as opposed to staying the course with Child despite ongoing problems and the Parent highlighting the possibility that he could be dyslexic. Once again, I find the Child’s disability was a factor in the harms alleged.

[54] The Complaint alleges that In the fall of 2018, the School District’s response to the Child’s ongoing learning struggles was to conduct a functional behavioural assessment and place him in a literacy intervention group. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs by focusing on the behavioural components and not his disabilities. I am further satisfied the Complaint sets out an allegation that the School District failed to make the appropriate inquiry, conducting a psychoeducational assessment instead of a behavioural assessment, into the nature and extent of the Child’s disability-related needs. Again, failing to accommodate the child after a proper assessment is alleged to have harmed him by not providing a proper education. I find the Child’s disability was a factor in the harms alleged.

[55] The Complaint alleges that in December 2018, the School District created its first IEP for the Child. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs with an IEP that focused on the behavioural components and provided ineffectual learning supports not indicated in the later psychoeducational assessment. Again, the School District is alleged to have failed to make the appropriate inquiry into the nature and extent of the Child’s disabilityrelated needs. It allegedly failed to accommodate the child after a proper assessment resulting in the harms related to not receiving a proper education. I find the Child’s disability was a factor in these harms. 14

[56] The Complaint alleges that in June 2019, the School District updated the IEP with minimal changes and sent worksheets home with the Child to do over the summer break that were allegedly beyond his capabilities. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs with a revised IEP that has the same issues as the first IEP. A further allegation is set out concerning sending home inappropriate worksheets over the summer. Once again, the School District is alleged to have failed to make the appropriate inquiry into the nature and extent of the Child’s disability-related needs. It allegedly harmed the Child by not providing him with a proper education. I find the Child’s disability was a factor in the harms alleged.

[57] The Complaint alleges that in September 2019, the Child’s grade four teacher admitted she was unaware of him having an IEP and provided him with grade two spelling lists work as an accommodation of his disability. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs by sending home grade two spelling lists for him to work on. Once again, the School District is alleged to have failed to make the appropriate inquiry into the nature and extent of the Child’s disability-related needs. It allegedly harmed the Child by not providing a proper education. I find the Child’s disability was a factor in the harms alleged.

[58] The Complaint alleges in February 2020, the School District’s lack of response to the Parent’s concern that the Child was reversing letters on his written tests is an allegation of discrimination. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs in the face of dyslexia symptoms. Once again, the School District is alleged to have failed to make the appropriate inquiry into the nature and extent of the Child’s disability-related needs. It allegedly harmed the Child by not providing a proper education. I find the Child’s disability was a factor in the harms alleged.

[59] The Complaint alleges on November 4, 2020, that the revised IEP implementing the October 27, 2020, psychoeducational report findings is an allegation of discrimination where it relied on the Parent to organize and pay for the Child’s OG tutoring and inappropriately 15 continued to focus on treating his anxiety. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs with a revised IEP not properly guided by the psychoeducational assessment resulting in the Child not receiving a proper education. I find the Child’s disability was a factor in the harms alleged.

[60] The Complaint alleges on November 5, 2020, that the school principal was unwilling to guarantee that the Child would receive tutoring from someone trained in OG tutoring is an allegation of discrimination for the purposes of this decision. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by committing to provide him with an appropriately trained tutor necessary to meet his learning disability needs. This resulted in the Child not receiving a proper education. I find the Child’s disability was a factor in the harms alleged.

[61] To summarize, the materials before me set out a series of discrete allegations of discrimination incidents involving the School District’s repeated failures to appropriately accommodate the Child’s disability over the five years that he attended school within the School District. These incidents involved the trial of various inappropriate intervention activities, inappropriate IEPs and an inappropriate assessment. All these actions attempting to address the Child’s learning disabilities allegedly resulted in harms related to the Child not receiving a proper education. Further, for much of the period in question, the School District failed to make the appropriate inquiry into the nature and extent of the Child’s disability related needs by way of a psychoeducational assessment.

[65] In concluding there were no significant gaps in this case, I have considered the Parent’s submissions and evidence indicating she was actively engaged in the Child’s education during his time out of school over the years. For example, she participated extensively in the take home activities prescribed by the School District while actively pursuing guidance from his teachers, the school counsellor, and the principal. In my view, the Parent remained very much engaged in the accommodation process throughout the years and this lessens the significance of any gaps between the discrete instances of discrimination outlined above. As an active participant in the School District’s ongoing accommodation of the Child’s learning disabilities, I see less significance in the gaps of months between the discrete allegations. While it is possible 17 to say the Parent had numerous opportunities to file a complaint, the information before me indicates that she was actively engaged as a participant in the accommodation process between events where the issue of accommodation arose, which lessens the significance of the gaps in this case.

[67] For these reasons, the complaint is accepted for filing as it alleges a continuing contravention of the Code.

(March 18th) NEW Education Human Rights Decision by Self-Representing Parent

I first have to start by saying, that I have SO much respect for a parent who is willing to bring their case to a completed hearing AND waited for their decision.

This is now the second parent I am aware of who is self-represented and their case decisions are only within a few months of each other.

If you are interested in the other case posted in December 2023
Student (by Parent) v. School District, 2023 BCHRT 237 

Reading through this case, it is extremely evident that this mother is a resilient person and a persistent advocate for her child, which takes so much bravery and strength. So much respect mama, so much. Thank you for taking your case to a hearing. We will all learn from your case and it will help other parents navigate their advocacy journeys on behalf of their children.

This case was dismissed, and discrimination was not found to meet the legal test. The school district was able to justify its actions on a balance of probabilities.

Through my lens, here are some important analyses of the case. However, I encourage everyone to read the case in full to truly understand the context of the case.

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

Disability: ADHD and Dyslexia

[6] The burden is on Y to establish that X experienced adverse impacts in his education that are connected to his disabilities under s. 8 of the Code: Moore v. BC (Education), 2012 SCC 61 at para. 33. Once that is established, the burden shifts to the District to establish a justification defence. In this case, it is not disputed that X experienced disability-related adverse impacts. Therefore, the issues before me are whether the District has established that it reasonably accommodated X:

a. during grade 2, in relation to the adequacy of learning support?

b. during grade 3, in relation to the adequacy of learning support and in removing him from the classroom after the a behavioural incident?

c. during grade 4, in relation to the adequacy of learning support, consistency in Education Assistant support, and the implementation of the rewards program or “token economy”?

[108] It is also not disputed that X has disability-related challenges with self-regulation and academic learning. He often missed class, was consistently academically behind grade level, and experienced challenges interacting with teachers and peers. He was excluded from the classroom in grade 3 for a few days, and experienced distress over the possible addition or substitution of a new EA in grade 4.

[109] The crux of the complaint arises from the steps taken by the District in respect of these challenges, and whether it can justify its conduct in that regard.

[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.

[111] With it not disputed that X encountered disability-related barriers to his education, the burden shifts to the District to justify its actions. To justify the disability-related adverse impacts that X experienced, the District must prove that (1) they adopted the standard for a purpose rationally connected to the function being performed; (2) they adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and (3) the standard was reasonably necessary in that it took all reasonable and practical steps to accommodate the Student: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 [Grismer] at para. 20.

[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.

[118] It was when X stopped taking medication for his ADHD around midway through the grade 2 year that he regressed in his behavioural challenges. On seeing that X was struggling with the small group setting for learning supports, the District pivoted to provide him with one on-one support. In other words, it continued to monitor and adapt based on X’s needs.

[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……

[141] I acknowledge that X continued to struggle with not finding school a happy place to be and that a consequence of this has been persistent challenges for Y in getting X to attend. I acknowledge that X continues to not read at grade level. However, the District has not withdrawn, but rather has expanded, diversified, layered and adapted the accommodations it has had in place for X. In some aspects, these have “worked”, as they have allowed X to progress toward learning and behavioural goals, as Y herself acknowledged in her evidence. In others they have not, as X remains reluctant on some days to attend school at all. Y acknowledged at several points in her evidence that the District “threw everything at” the situation, giving layers of accommodations and adapting them to X’s needs.

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

[159] The District cannot control all social interactions between students and is not obligated to provide perfect accommodation. It is obligated to take all reasonable and practical steps to remove the disability-related barriers to X’s meaningful access to education. Insofar as X may have experienced some social friction with peers related to the token economy, I am satisfied on a balance of probabilities, that the token economy was part of a broader package of accommodation that was reasonable, and that the District took reasonable steps to address the social challenges X was experiencing.

[160] I acknowledge the ongoing challenges X is facing and appreciate that the steps taken by the District have not resolved them to the extent Y would hope. However, for the reasons set out above, I have found that the District has not breached the Code in its efforts to support X in accessing education.

[161] For the above reasons, the complaint is dismissed under s. 37(1) of the Code.

Self-Advocacy and Victim Blaming in Education

Certain elements of self-advocacy need to be in place.

1. The person on some level needs to be accepting of their disability AND be willing to talk about it.

2. They have to be able to identify when they need help.

3. They need to identify what they need help with and have the language to express it.

4. They need a trusted adult who has proved their willingness to listen to them over time.

5. The child needs to feel heard.

6. The child needs to feel that this trusted adult will believe them when they say they need help.

7. This needs to be repeated enough times and be predictable enough for the self-advocate to feel comfortable and safe to advocate for their needs.

Often school staff will say…..

Well _____________ happened, but if XXXX advocated for himself, this wouldn’t have happened.

Children since they enter school are socialized to believe they MUST follow authority or something really bad is going to happen. They think they will be disappointing all the adults in their lives, and kids deep down just want to make their loved ones love them.

All they want to do is to make the adults (especially their parents but also their teachers) in their lives happy so that they will feel worthy and good about themselves. We need to look at their situation through the lens of a child.

There is so much systemic ableism, that people don’t want to acknowledge it. If they do, they are now responsible for changing it.

Learning self-advocacy can take a lifetime. Adults have a hard time advocating. It’s stressful and anxiety-producing for all of us. We need to have realistic expectations for our children. Especially when they are navigating an oppressive system, based on hierarchy, and control. They live in this environment 5 days a week, we don’t.

We have a human rights decision on our side.

It’s easy for schools to make us think our kids share responsibility or are responsible for all of it.

Let’s keep in mind….

Self-advocacy expectations have been defined by the BC Human Rights Tribunal. In Student by Parent v. School District 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.

Self-represented Parent of Child’s Education Discrimination Case – Partial Win – Human Rights Tribunal

This is the only completed case that I have seen by a self-represented parent in BC, in an education case. And they succeeded in a partial win.

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

Some important gems in this decision that I see are:

Meaningful inquiry

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

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

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

Around self-advocacy for children with invisible disabilities:

[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.

IEP – For a Child with Generalized Anxiety Disorder and Trichotillomania

[59]           This ends the period of this complaint.  However, it is important to note that, in the Student’s grade 11 year, the school developed an individual education plan, or IEP, for her. This IEP set out the Student’s strengths, learning preferences, and goals. It identified specific supports for the Student, including flexible due dates, ensuring the Student was not put on the spot in class, reducing workload whenever possible, providing a quiet learning environment, and frequent teacher check ins. It also established that the Student would meet bi-monthly with the school counsellor to work on her goals. The Student’s grade 11 counsellor explains that she saw the IEP as a way to reduce the burden on the Parent and to support the Student to advocate for herself. From the Parent’s perspective, this was a welcome development that should have been done much sooner.

[7]               In this case, there is no dispute that the Student has disabilities, namely generalized anxiety disorder accompanied by trichotillomania (hair pulling). She is protected under s. 8 of the Human Rights Code from discrimination in her education. This complaint is about the Parent’s allegation that the symptoms of the Student’s disabilities were exacerbated in grades 8 and 9 because of her experience in Language 10 and Language 11, and that the District failed to accommodate her disability-related needs in those classes.

** Even without a designation at the time, she is still protected under the Human Rights Code.

Mental Health Stigma – Failure to Identify Diagnosis

[34]           The Parent did not see this email at the time. From her perspective, the email was not adequate to appropriately communicate the scope of the Student’s school-related needs. It did not fully communicate what the Parent had told the counsellor, and what she had expected would be passed along to the teachers. She felt it was also not realistic to think that the Student would approach a teacher and ask to be excused; in fact, this was not an option that it seems the Student ever exercised. In the Parent’s view, the failure to identify the Student’s diagnoses perpetuated the silence and stigma of mental health and undermined the Student. The message contrasts, for example, with the communication that the Parent sent to the Student’s teachers at the start of her grade 9 year, which said:

Communicating and providing evidence of a diagnosis

[13]           In light of the Student’s barriers in advocating for herself, the adults in her life have had to take on a more proactive role. The Parent’s open and active communication has been critical to ensuring that the Student’s needs are recognized and met in school. Throughout the Student’s education, the Parent has let her schools know about her disabilities, and that she may require monitoring because she is unlikely to proactively seek the support she needs.

[14]           There is no dispute that, due to the Parent’s advocacy, various individuals within the School District were aware of the Student’s diagnoses before and during the period of this complaint. For example, in the spring of grade 7, the Parent provided the elementary school with a note from the Student’s psychiatrist confirming that the Student had a “long-standing diagnosis of General Anxiety Disorder”. At the Parent’s request, this note was placed in the Student’s school file.

** This is a very important aspect as this ensures that a district has a duty to accommodate.

From the Human Rights Clinic Blog, Stress, Anxiety and the Duty to Accommodate, they explain…

“However, she did not provide any medical information that said she had a mental disability.

The Tribunal dismissed Ms. Matheson’s complaint, stating that “an essential element of a complaint of discrimination in employment on the basis of mental disability is proof that the complainant either had a mental disability… or was perceived to be mentally disabled by the employer.”

Here is Ms. Matheson’s case.

Family Status – Human Rights Complaints in Education

Here is some clarity to something that can be confusing when it comes to parents adding themselves to their child’s human rights complaint in education. (Your complaint will also need to pass the discrimination test.)

You need to file separate complaints. One for your child and one for you. Then, when and if they are both accepted, then you need to file an application to join them.

As a parent, it makes logical sense in our head to just include ourselves in our child’s complaint because we see everything so connected, but that is not the process that one needs to go through. So, to save yourself some time in further applications and playing catch up, when you file your child’s complaint, also file a separate complaint for you. Wait to see if both are accepted and then you need to file a 7.1 Form to join the complaints.

Here is the application page. You will want Application Form 7.1 – General Application. If you go to page 2 of 7, on that list, 7th on the list down, you will see “Join two or more complaints”

It is highly likely that the respondents will be making submissions for them not to be joined, or to dismiss your complaint. So, just mentally be prepared for that.

Here is the groundbreaking case that brought this option out in the open. So thankful for this brave parent.

Groundbreaking BC HRT – Accepts Parent on Child’s HR Complaint

Direct link on CanLII

You may want to quote this case directly in your complaint.

Also, keep in mind the one-year time limit for filing. If you file outside of the one-year time limit you may want to consider this case. Also, be aware that you will need to have evidence of the harm related to your loss of work or emotional harm.

Experience is such a valuable teacher.

If you have any questions, call the BC Human Rights Clinic. They are the best people to talk to about your complaint or any questions about the process. Processes do change, forms change, and with each new human rights case decision that gets posted – arguments can change. (This blog was written on Dec 21st, 2023)

What is Fatal to a Human Rights Complaint in Education?

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

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

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

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

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

Some of the topics this case brings up are:

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

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

DIRECTLY FROM THE CASE:

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

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

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

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

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

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

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

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

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

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

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

TAKE AWAY LEARNING

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

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

However, it is also important to be aware.

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

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

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

I wish you all the best,

Why is Documentation so Important?

Because you need to take your allegations out of the realm of conjecture. A case example from the BC Human Rights Tribunal is below.

N obo S v. T and a School District, 2006 BCHRT 546 (CanLII)

[55]           In this case, N states that she is a single parent and has several serious medical conditions, and that, because of this, she has been unfairly treated by the respondents.  As examples of the unfair treatment, she states that the respondents have failed to return phone calls, delayed letters, failed to provide information in a timely manner, and did not properly investigate her concerns relating to her son.  However, she does not include details of any statements or actions on the part of the respondents which would support such a conclusion.  She states only that she “believes” that such a connection exists: that she “believes” that the respondents think they can make her go away by exhausting her; that she “believes” that if she had a partner, her child would have equal treatment; and that she “believes” that she would be treated with more respect if she were married, healthy and had financial resources.   In other words, nothing in the complaint takes the allegations out of the realm of conjecture, as the facts alleged in the complaint do not support a nexus between N’s marital status and disability and her alleged unfair treatment by the respondents. 

[56]           As a result of the above, I dismiss N’s complaint pursuant to s. 27(1)(b) of the Code.

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

Allegations are what you are claiming to be true. Until they are proven in a hearing and a decision is complete by a tribunal member, until then, they are nothing more than allegations. Be careful about defamation on social media.

So, parents/guardians and loved ones of disabled children in the education system, what does this mean?

It means we need to be documenting EVERYTHING.

Keeping ALL emails, even the good ones.

Logging calls and dates, with who and what was discussed.

Follow up by email on phone calls to outline what was discussed and action steps agreed upon.

Keeping a timeline of events

Taking photos (if your child has been injured)

Take pictures of their school work and/or communication book/agenda

When you child tells you what happened at school, take your own notes and write it down. Email your notes to someone you trust to log the date, time and details. Record your child talking about school.

Email other parents and ask them what they know, and make sure they respond in the email and not the phone. The Human Rights Tribunal can take years. People’s memories will change over time, so it’s really important to get the documented information at that time.

If necessary for your own mental health, take yourself and your child to counselling. They can also write a letter or have their notes involved. If the counsellor is connected to the government services, they won’t be able to testify at a hearing. You need an outside counsellor.)

An added suggestion by Dyslexia BC @DyslexiaBC on Facebook is to bring someone with you to all of your IEP meetings. (That person can take notes and also be a witness.)

You need to be thinking about collecting evidence. Things that can be used as evidence in a hearing are documents, emails, doctors’ letters, counselling letters, counselling invoices, videos, photos, media posts, expert evidence, other parents’ witness statements/emails, voice recordings from meetings, anything that is relevant. Connected. Here is what the Human Rights Tribunal determines to be evidence.

In the same thread of thought, be careful what you offer up in your emails and conversations to the school district. They are also collecting evidence on you.

I will leave you with this case example below.

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

A.   The Mother

[40]           Overall, I have found the Mother to be sincere in her testimony. She cares about her Child and became emotional when describing his feelings. However, I do not find her evidence reliable. I find her testimony not to be in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”. The weight, and thus reliability, of the Mother’s evidence was affected by the fact that her testimony was almost entirely based on hearsay and double hearsay. The Mother was not a witness to most of the interactions she described.

[41]           The Tribunal may admit any evidence that it considers necessary and appropriate, whether or not the evidence is admissible in a court of law: Code, s. 27.2. Silver Campsites Ltd. v. James, 2013 BCCA 292 at para. 39. I considered the Mother’s hearsay testimony to be necessary and appropriate because it directly addressed the critical issues in the complaint and there were no other witnesses available to present it. The Father and Child did not testify on these issues. I assessed the Mother’s hearsay evidence on a point-by-point basis, with the objective of ensuring that I could make necessary findings of fact based on reliable evidence: Radek v. Henderson Development (Canada) and Securiguard Services (No. 3), 2005 BCHRT 302 [Radek]. I have considered the following in determining the weight to give to hearsay evidence:

I have considered in each instance the reliability of the evidence, the necessity for its introduction as hearsay rather than first-hand evidence, the probative value of the evidence, and whether the other parties would be unfairly prejudiced or otherwise disadvantaged through my reliance on it. (para. 54)

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

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

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

[45]           The Mother’s credibility was also impacted by her acrimonious relationship with most of the Respondent witnesses. I have considered her contemporaneous correspondence in assessing credibility because it speaks to hear capacity to perceive, recollect, and communicate facts objectively. Together with her husband, the Mother repeatedly sent letters and other communications attacking the character of most of the Respondent witnesses. For example, the Parents wrote letters about the Superintendent to the federal government, provincial government, board of education, RCMP, politicians and others. When confronted with this correspondence, the Mother minimized the tenor of her communications and its effect on the Respondent witnesses. The Mother maintained that she and her husband treated staff respectfully.

[46]           The Mother also provided inconsistent testimony. For example, the Mother testified that she did not accuse Teacher G of racism. When confronted during cross-examination, the Mother acknowledged accusing Teacher G of favouring one child over the other, and the other child not necessarily being black. The Mother ultimately acknowledged accusing Teacher G of racism. She explained finding it “very frustrating” when Teacher G prejudged her son and did not follow guidelines.

What You Need to Know About the Teacher’s Regulation Branch -Decision Letters (Professional Conduct Unit)

  1. The decision from the Commissioner if final and binding. There is nothing you can do to change it no matter how wrong you think it may be.
  2. You have two options after you receive the decision letter. You can either apply for a Judicial Review through the BC Supreme Court or file a complaint with Ombudsperson.
  3. For a Judicial Review there are a few things to note. As noted in this document from the BC Supreme Court on Judicial Reviews.

Page 3:

This is a look at whether the Commissioner errored in law and how it was applied. Not about the actual decision.

A Human Rights Lawyer told me that Judicial reviews are very risky as very rarely do the complainants win. The respondents can and will apply for costs to have their legal fees paid for. You as the parent will then need to pay. Legal fees can be tens of thousands of dollars.

I HIGHLY encourage parents/guardians who are considering this route to consult with a lawyer. The $500 you spend on a consultation fee may save you thousands of dollars in the end.

4. Next option is Ombudsperson BC. The chances of them conducting a review are very slim. Please email me if you would like more details or tips or how to get your case at least to an investigator. Ombudsperson will also not look at the decision, but looks at the process. They track every attempt at a complaint, so even it yours doesn’t make it to an investigator, your intake form alone is helping. Your arguments to them are going to need to be grounded in administrative fairness.

I have asked the Ombudsperson separate the TRB from the Ministry of Education in their annual data reports, so we can track how many people are filing complaints against the TRB, as they refused to disclose this information in a Freedom of Information request. They seemed receptive to the idea, so I’ll be watching their annual report coming out this to year to see if my request was accepted. If not, I’ll follow up.

5. Right now, if someone asked me what they could do with decision letters that they know are not right. I would tell them, to please consider filing with Ombudsperson and go through the process, even if the chances of success are slim. We need to let them know that we are not satisfied with the TRB and Ombudsperson determines what needs are out there, based on whether people are filing complaints or not. So, your voice on this does matter.

Please consider providing feedback to the Ministry of Education.

Also, please consider contacting me. There is a wider much larger project that I am working on, and I would love to hear other people’s stories.

6. Getting your complaint to a consent resolution is slim. Right now the most recent stats from the Commissioner’s office reveals that from April – June, only 7% made it to a consent resolution.

It sounds like a dead end. What’s the point? Here it is. When we file complaints they stay on the certificate holder’s record. If there is more than one complaint and they build, the chance of success increase. You are basically filing to help out the next parent or the next child. And, who knows…maybe this isn’t the first time that someone has filed a complaint and yours will actually be successful.

If we say nothing and don’t speak up, it helps no one. It’s like it never even happened. Don’t get your hopes up. Manage expectations, but file with the TRB, and then file with Ombudsperson. Oh and then call me and blab all about it. I’ll make your effort worth it. You’ll be part of a larger story. 😉