Tag: #School

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. 👇👇👇👇👇

**********

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.”

*********

What does this actually mean?

Basically….this 👇

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

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

Common Justification Arguments

  1. Hindsight

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

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

[99]           Next, in B v. School District, 2019 BCHRT 170, the evidence supported that the school district provided the child with the recommended supports and accommodations. The Tribunal found that it was “only with hindsight” that it was possible to say that the child could have benefited from more support: para. 81. It dismissed the complaint in part because there was insufficient evidence to demonstrate that the school district reasonably ought to have known that the child required more: para. 98.

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

2. Reasonable accommodations

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

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

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

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

3. Accommodation is a Process

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

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

[120] Ultimately, on a balance of probabilities, I am satisfied that the District discharged its duty to accommodate X in his grade 2 year by reviewing the Diagnosis Report, developing an IEP, making various support people and strategies available that were incorporated into the classroom and outside, reviewing progress and changes, and adapting its approach in response……

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

4. Self-Advocacy

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

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

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

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

5. Parents are not facilitating the school’s decision

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

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

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

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

6. Saftey

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

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

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

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

7. We don’t have the money or staff

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

***********

Kerber v Alberta, 2025 ABKB 98 

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

**********

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

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

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

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

Please note:

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

In addition:

Not all negative experiences are discrimination.

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

[110] ….I accept that these incidents which X relayed to Y were upsetting to X. I appreciate that the interactions may have fed into X’s general feelings of unease at school, but the fact alone that these events may have happened is not enough, in itself, to establish that X’s disability factored into them. Not all negative experiences are discrimination. Even accepting that these incidents occurred, I did not hear evidence that could establish, on a balance of probabilities, that X’s disability was a factor in the conduct of the adults involved in these interactions.

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

Key Takeaways

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

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

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

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

Next Post Coming Up

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

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

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

See you later!

PART 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.
👇👇👇👇

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!

“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

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.

Gears in Motion – Systemic Change

There have been so many people advocating for change within the education system. I have been witnessing a lot of the “gears” moving.

Understanding Systemic Change

PACs are coming forward and holding rallies, and they are hosting budget information nights with tons of parents showing up. Also advocating for their right to be heard.

Organizations are making headway on the path to an equitable education through investigations or guidance manuals. It’s really quite a time to be paying attention to what is happening. Teacher associations are speaking up.

All eyes are on education!!

Social media has certainly been active. More people and organizations are blogging about budgets and EA cuts.

Here is one thing that is absolutely true.

All of these people and groups that are advocating and leading teams. They are getting really really good at what they are doing. They are expanding their comfort zones and becoming seasoned to be in the ring. They are becoming skilled at speech making, networking, organizing. They are like a fine wine. Just getting better and better, building on skills they already had.

You can’t put the squeezed toothpaste back into the tube.

They will be mentoring and inspiring people they aren’t even realizing, and more people will be following in their footsteps and feel braver to stand up because they are witnessing and having advocacy modelled to them. The connections they create are not just going to melt away come the summer.

The advocacy is just going to grow. More people will join the movement. It is going to get very very loud. The media is paying attention, as they should be.

Decisions about education are a reflection of who society cares about, and who they don’t.

The government is going to need to respond to people or risk losing the trust in its voters. They ran on an election promise of EAs in every classroom from K to grade 3. I hope they just don’t pull all the ones from high schools and just move them to the elementary schools and say, ta-da! Meanwhile, high schools will be falling apart.

Parents are collectively and individually becoming excellent advocates! This is an advocacy education train that is not going to stop. Full steam ahead!

ID: Text – Your enemies will open doors for you that they won’t even know that they’re opening…By the time they figure it out, they won’t have the power to close them.

Go Ahead…Piss me off. Good Luck with That.

This blog is about why Speaking Up BC started, why it is still ticking, and why it will ALWAYS be ticking.

100% this website exists because of how my children’s school district and their lawyers have been engaging with me. Why they think their adversarial strategy benefits them, I have no idea. I know they don’t like this website. I actually at one point thought I wanted to just shut everything down and slip away back into my old life. I actually almost deleted Speaking Up BC. And then they did something that ensured that would never happen. That is when I had it confirmed just how dirty this system really is, and for that reason, I am all in. Until my final breath.

When I think about it, they have been funding my advocacy projects and provided me with life experiences that I have been able to turn into knowledge and lived experience to pass along to all of you. Pain into purpose. All of the content of this website is because of them and how they chose to engage with me. Feel free to send them flowers.

If they did the exact opposite of everything they have been doing, I guarantee you, all the complaints I have filed would never have happened. This website would never exist. The HR decisions never would have been. P.A.T.H. would never have been created, and clearly P.A.T.H. needs to exist for a very long time. They have provided me with ample evidence.

Not only do I have decisions, yup 3 decisions, from the BC Human Rights Tribunal, each with its own gems, benefiting parents’ advocacy. (All paid for by the school district, hundreds of thousands of dollars.) But I have learned so much and have become the advocate I am today because of their “training program”. It’s been a world I have been able to learn and study from that I never would have had access to if they decided to be human and resolve things with me, instead of fighting me. They have now become predictable to me, and that is glorious.

I am not the same person I was 5.5 years ago. My emotional regulation skills are now at such a higher level. I have been able to sharpen my skills with all the experience. What they thought would break me, has actually built me. Now I’ll send flowers.

There are parents that are crossing their fingers that the lawyers just keep pissing me off, waiting for more content. More fence testing opportunities.

The birth of this website was at a time when I was pushed to my limits. Each time I think I reach a limit, I find out…actually, I can keep going. And I am growing, and still growing. When all of this started I was an emotional mess. I look back at emails from the beginning, and oh my word. I wonder who is this person who wrote this ridiculousness. Work. Rest. Grow. Repeat.

This website is because I want parents to benefit from everything that I have gone through. I want to give people as much information as possible. I don’t want any parent to feel that lost or desperate for information, not even for 5 min.

This website has grown into quite the beast. I started out having zero people reading my website with a handful of people reading my blogs. But over the years it has been growing. The stats on this website still shock me…and make me giggle. (hee, hee)

My blogs get posted, and depending on the topic, can reach around 1,500 page views of that blog in just 24 hours and the numbers just climb over the next few days. Even on days of no blogging, my stats are high. Over the last 4 years, they are consistently climbing, with almost 100,000 page views. Almost 20,000 thousand people have been accessing this site.

It’s not just parent(s)/guardians contacting me for help. It’s employees, parents advocating in healthcare and community services, and high school STUDENTS asking for help.

So, let me state the obvious. To the school districts and the 4 most commonly used law firms representing the school districts….when you piss off mama bears, and poke them and fight them, these mama bears go searching, and when they do go searching, they find this website and they will find their community. I already know there are parents out there quoting my website content. Save yourselves and your district a lot of taxpayer’s money and stress, and try working with people and not against them. eh?

I had a reporter from CBC in Ontario contact me and she said I am the only parent that she can find in Canada with a website about this kind of education information. I was like…that can’t be true, seriously? And she said yup, the only parent I can find. The sheer volume of blogs I have written creates a lot of search terms that make it easier for people to find me. I don’t know how the algorithms work but there are a TON of people finding me just off of Google searches. I have people all over Canada contacting me.

For parents who want to blog and start sharing their own experiences, whether it be about the medical field or education, any tips and tricks that you learn navigating the system, there is a very good chance you will have an audience who will benefit. I can’t tell you the number of people who have reached out to me and thanked me for my website.

For the people who are interested in elevating their advocacy to a wider audience…

You can do this too! I really encourage people in other provinces to start this kind of information that is specific to your own provincial systems. We are all dealing with similar things and have similar complaint avenues, but they aren’t exactly the same. In Ontario, the Teacher’s College actually gives parents the teacher’s submissions and they have a specific department for the human rights tribunal for education matters.

Websites can cost a couple hundred a year to maintain. You can create them through WordPress. I had zero training and just figured things out as I went along. You can YouTube on how to create websites. Speaking Up BC is certainly not a fancy design. It’s literally just a template on WordPress.

If you start up a website, send me your link. I’ll start up a parent website page with everyone’s site. We can be like a big spiderweb and all link together.

I just caution people to be very thoughtful about what they put on their website and to not name anyone, and to be aware of defamation. Know the difference between allegations (accusations before proven in court/tribunal) vs. facts proven in court/tribunal. But all of those things that you learn along the way, that lived experience. That is gold! Capture that!

You can also start up a YouTube channel for free! Social media pages! Facebook pages/groups!

I have found in the last 5.5 years I have bounced all over the place in terms of my emotions, from times of forgiveness and healing, to dipping back into anger and sheer disappointment in the system and with the people who are choosing to follow along and treat parents in this way.

I remember when I first started the human rights tribunal process their response to the complaint had me running on anger. I was determined to do a hearing but also wondered how I was going to have it in me to pull that off. The good thing about the tribunal process is that it takes years to get to a hearing. You won’t be the same person in those years. You will have opportunities to sharpen your skills. To grow and learn. Not only mentally with learning things but emotionally as a person.

During my process, there have been times when I have benefited from reaching out to counselling services to help emotionally manage everything. Rhodes College has students from their counselling program that you can access Affordable Counselling which was around $25 per hour or even less, when I accessed it years ago.

I now work in a profession where I navigate the human rights tribunal as my career and help people with their human rights issues, full-time. I love it!

I think a big part of my success in navigating these systems has been because I am completely willing to fall flat on my face and push into unknown territory. I just don’t care if I fail. There are always gems of goodness in “failure”. Is it ever really a failure? It’s just a step really. Part of the process of getting really good at something.

So, you know what? Go ahead…piss me off. Good luck with that.

It’s all just gas in my gas tank.

This website will be available forever. I even joked with my husband that I want it put in my will that our children are required to pay for the domain name to keep this going. HA!

One thing I learned through this process is to trust myself. I have more in me than I even realized. I can do hard things. I can learn. I can grow.

I am not the only one.

School districts and their lawyers will always underestimate parent(s)/guardians. We don’t need to underestimate ourselves.

There are lots of us who are navigating these systems and they are turning into fine-tuned advocacy machines. Some are writing books, starting businesses, starting non-profit organizations (BCEdAccess, Dyslexia BC, InspireFASD, ADHD Society) leading DPACs, advocating in the media, and making career changes to enter the education system.

So, you know what? Go ahead… piss us off! Good luck with that.

Evidence of Harm. Effective Advocacy in Education.

Why is collecting evidence of harm so important?

Part of an effective way to advocate for your child is going to be your ability to communicate with the school.

The information that you tell them is going to impact that effectiveness and also trigger certain human rights obligations.

The Duty to Accommodate is established under section 8 of the Human Rights Code of BC.

In order for you to convince the tribunal that your child has experienced discrimination, the first part of the test will be to prove the 3-part discrimination test.

This is from the website of the BC Human Rights Tribunal

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).”

In the context of disability, you will need to prove that they have a physical/mental disability that the school was aware of, that they experienced harm, and that this harm was connected to their disability.

We already have it written in a decision that not all negative experiences are discrimination. Their disability must be a FACTOR in the conduct.

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.

So….. what does this mean as parents?

We need to document the harm.

Here is my blog Documenting the Harm specifically on how to do that.

We need to be able to communicate to the school and connect the dots for them, that what they are doing is creating harm.

As parents, we need to communicate to the school that our child is struggling and this struggle is connected to their disability. This will trigger MEANINGFUL INQUIRY. They must investigate and come up with solutions to try and decrease the impact of harm.

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.

We don’t need to necessarily say overtly, that we are considering filing a human rights complaint. We can communicate in a way that shows them we are taking these issues seriously and one way of doing that is to provide them with evidence of the harm.

It may be through pictures of what has happened or video, but it can also just simply be statements the child has made at home about school or drawings they have done or things they have written down. Feel free to quote your child. Emailing this to the school does create an evidence trail so that if things are not resolved and you do decide to file a human rights complaint, all of these emails will form part of your document disclosure and you can bring them to your settlement meeting.

The respondents (the lawyers defending the school district) are going to make arguments that the school’s actions are justified and that reasonable accommodations were provided.

However, if your child is still experiencing harm, how can they argue that reasonable accommodations were provided? That’s why we need evidence of the harm.

The school district also has the final decision-making power with your child’s education. Parents have a duty to facilitate. Even if we don’t agree with their decision we must not become a barrier to their decision or if in the future we file a human rights complaint, it may be dismissed. Here is the case that created the duty to facilitate.

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

[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.

So, if their decision is creating harm, we are going to need evidence of that to show that what they decided isn’t working.

I know this piece of collecting evidence can be really hard for parents. They don’t feel that they “should” have to do this. They feel that this is being too aggressive and they don’t want to upset people at their child’s school. I get it. No one wants to feel that they are in an adversarial relationship with their child’s school. Jumping the shark can be really hard.

When you advocate you can still be pleasantly persistent and communication doesn’t need to be adversarial. However, I haven’t known of any effective advocacy when parents put being viewed as “nice” as their priority, over effective communication.

Here is the Inclusive Education Manual created by Incluison BC for helpful information on how to communicate with your child’s school. Here is Family Support Institute’s Toolkit Resources on education advocacy. And I would also just want to add, that if things get intense…which sometimes they do. Please read my blog on 5 Rules on How to be Untouchable

Document

Communicate

Repeat

And if that doesn’t work….

You have external complaint systems

External Resolution Options in Education

Welcome to a New School Year

Parents tend to be excited that the school year is starting. Commercials poke fun at the idea of tired parents excited to send their kids back to school. Do we all remember that Staples commercial with the Christmas music playing “the most wonderful time of the year”, parents beaming, collecting school supplies? I do.

Preparing for another school year, for parents of kids with disabilities is different. Mixed emotions. Fear is one of them. We know we may be facing the verbal minefield of navigating conversations with district administration and processing the non-death loss over and over again when we feel that school hasn’t turned out the way we thought it would.

We have had to make peace and accept we have become people, we never thought we would be, all in the name of advocating for our children, as we felt pushed to “jump the shark”.

We try to “get ready” mentally…emotionally, for the upcoming year. Always wondering when the next issue or incident is going to appear.

The education system is not designed to support inclusion. All those involved are set up to fail. It’s a hit-and-miss situation. Some kids experience it, and some don’t. For the teachers who are in the fight, standing along side of us, but are muzzled by the system to not speak out. We know you are there. We feel you.

These are the cards we have been dealt.

So what do we do with it?

Human rights advocacy is our strongest form of advocacy. It has the strongest teeth. The parents who have navigated through the system have made personal sacrifices to bring these decisions to fruition.

By using case law, hopefully, a parent(s)/guardian will not need to enter the system to begin with.

The Human Rights Code and the Duty to Accommodate is both our shield and our sword. Understanding the school’s role and responsibilities and our role and responsibilities is key.

Duty to Accommodate
Understanding Exclusion

School are required to remove barriers and continually monitor students and adapt. Never giving up. Always trying to remove the barriers. They need to investigate what those barriers are, if we tell them our child is struggling.

We have some hope on the horizon.

The BC’s Office of the Human Rights Commissioner has started a campaign called Rights in focus: Lived realities in BC

Education inequalities is highlighted as the #2 issue. To read more about the education section you can read the report. Raising these issues and making them public will not mean that our issues will go away. Changes in human systems are painfully slow. And while we wait….harm is being done. But this is what is required to create social change. We need to do the slow consistent work of changing hearts and minds. And while we do this heavy lifting, we are weathered by it. But every little step we make and every little advancement all adds up. The little things do matter. They matter immensely. The little things are actually what leads to change. All of us. Lifting at once.

There are clearly financial costs to human rights complaints in education in BC. There are also financial costs that go beyond just the lawyer’s fees and settlements for society at large. There are social, societal and human costs too. Raising awareness of these issues is step one. I am very excited that these inequity issues are being highlighted by the Commissoner’s Office.

We need to get loud.

Doing this by ourselves is exhausting. This is why having a support system, network, and having organizations elevate our voices is exactly what we need.

To all of the fellow parents out there, getting ready for another school system….I feel like we need a group hug.

“May the odds be ever in your favor” – The Hunger Games.

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.

That is BULLSHIT.

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.

Communication Expectations in Education Defined by BC Government

Parents often wonder….

  • how much communication is too little?
  • Too much?
  • Am I allowed to…?
  • What can I expect?

Some parents have lots of communication with their children’s teachers and other parents are struggling not knowing any information or too little to even advocate for their children.

If you hit a brick wall or if you are not getting the information you need, having a policy from the government on communication expectations can be the key you need to get you through the door.

As of July 1st, 2023 this is the Reporting Policy from the BC Government.

Here are just a few clips from the policy statement. To read the full document click here.

Policy Statement

“Meaningful and flexible communication of student learning across British Columbia’s K-12 school system ensures parents/guardians and students are informed about student learning.“

“All learners benefit from individualized descriptive feedback and personal involvement in the assessment process.“

“Communication of student learning is ongoing throughout the year. This Policy is designed to ensure school districts have the freedom and flexibility to communicate about student learning in a way that best meets the needs of students; this includes communication with students and parents/guardians that is inclusive, accessible, and culturally responsive.” 

“Teachers provide timely feedback to parents/guardians and/or students that is responsive to student needs. The communication between home and school can take many forms.” 

Rationale

“Meaningful and flexible communication of student learning in clear and accessible language enables parents/guardians, students, teachers, and administrators to proactively work together to enhance student learning. This Policy ensures the student and parents/guardians are partners in the dialogue about the student’s learning and the best ways to support and further learning. Students benefit when they and their parents/guardians are made aware of their strengths and areas of needed growth and are provided support early.”