Month: March 2024

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.