Who Does Society Care About?

This mom speaks the truth. Thank you Ashley Roberts, The Dsylexia Initiative.

ID: A picture of a head with the brain and mental health written inside. Four colour ribbons coming from the head. Text: It's impossible to fight for your child and not have your mental health be impacted. To a Mom her child deserves the world. To have someone invalidate that thought, that feeling, time and time again takes a toll. To sit in a meeting and hear no, or, in my opinion worse yet, the edubabble word salad to mask the no like you're stupid, takes a toll. We are bombarded with the message that to question is to teacher bash, that parents are lazy, worthless, stupid and the children are entitled POS's who need stricteer, better parenting. This masks the whole "spare the rod, spoil the child" mentalility, but of course no one is going to open up and admit that. While we fight an unielding system that absolutely does not care, our children are being damaged, and so we as moms are damaged further. Dyslexia affects the entire family and so mental health of the entire family is impacted as well. There is no way to fight and not pay a price. There just isn't. We must embrace the mental health aspect for our children, and ourselves. Bringing this awareness into the light will empower us all. Hugs xoxox.
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The government distributes society’s resources, and this distribution is not an equitable one. It is based on the wishes of the majority of voters. 27% of people have disabilities in Canada. An article by The Tyee, “Why is Vancouver Funding an Extremely Expensive Private Dyslexia School? questions how these resources are being divided. I question funding for private schools in general, as they seem to be getting a good chunk of taxpayers’ money. Yet, only families who can afford to pay costly yearly tuition fees can access their services, while the schools are escaping human rights violations due to their private business structure. Funded by the government, yet given an escape pod via the “undue hardship” justification test of a limited private business. As this parent feels, some specialized schools are providing the supports that kids aren’t getting in public schools. This option is not available to everyone. You need money. Lots of it. Every year. You need the time, ability and transportation to get your child there. Private schools are an impossibility for most.

Currently, our system is prioritizing some kids over others by how they design teacher education post-secondary programs. Teachers aren’t being properly trained for inclusion. Deciding not to inform teachers about human rights and science-based accommodations is a decision. Surveys internationally are all coming back with the same data. In Canada too, Teachers don’t feel adequately prepared for children with disabilities in their classrooms. And here. And here. And I could go on… and on…. and on.

Children are always going to be vulnerable. They are vulnerable because they don’t have a choice to leave. When children with learning disabilities are not getting proper instruction and support at school they experience levels of shame, embarrassment, chronic stress, anxiety, fear and sometimes bullying. Children are extra vulnerable when they have disabilities. They are in an education prison. They are completely dependent on a society that is ableist, misinformed and sees them as an easy target or easier to sweep aside.

The kids get the message daily that they are a burden to society. Someone who should feel lucky to be tolerated. These messages become internalized.

There are some legislative advancements with the federal and provincial Accessibility Acts.

However, for Canada to become barrier-free by 2040 it would entail a complete culture shift.

Employers post these boilerplate disability statements about being inclusive. However, inviting us to the table just isn’t enough. We need to be included at a level that we are participating in changing the shape of the table. Expecting us to carry on and fit into the same rules, and think the same way, isn’t inclusion. It’s not diversity. It’s performative and useless. For autistic and other neurodiverse individuals it can lead to burnout, mental health issues, and employment issues.

We know that change within society takes time. It’s painfully slow, that is true.

While we are waiting for society to evolve…we need to acknowledge harm is being done. Significant life-altering harm. Let’s take a look at the harsh reality.

Kids are dropping out of school. 30-40% of kids with ADHD drop out of high school.

They are escaping to the streets. 80% of homeless youth have Dyslexia.

They are more likely to engage in self-medicating themselves with drug use.

Their risk of them ending up in prison is higher, leading to the over-representation of people with neurodiversity and disabilities in prison.

From Decoding Dyslexia Ontario
Impacts of unsupported dyslexia: statistics

This is not their individual failure. This is a societal failure. Just how people at the Oscars walk up to the stage to collect their awards, they thank all of the people who helped them along the way. They recognize that they didn’t get to that stage by themselves. Well, guess what folks, the kids dropping out, on the streets, self-medicating and ending up in prison didn’t get there by themselves either. We are failing them. Our education system is failing them. Society’s norms are not inflexible laws of gravity. We can change the structures of human systems. We can operate, function, interact and live differently. Our schools don’t need to function this way.

So, when we make our decisions…our laws, our policies, our education training programs…who are we willfully ignoring?

This question needs to be asked EVERY SINGLE time the government makes a decision.

Who is benefiting from this policy or law? Certain people are. It won’t be everyone. So who? Name them. Write it down.

Who is going to be potentially harmed by this policy or law? There will be people harmed in some way by everything they do. So who? Name them. Write it down.

  • Crowded classrooms push kids with disabilities out the door.
  • Underfunding schools pushes kids with disabilities out the door.
  • Lack of proper training of teachers and support staff pushes kids with disabilities out the door.

Adults are pushing kids with disabilities out the door.

Advocating for children with disabilities is hard work, but worthy work. However, I want to acknowledge there is a weathering process parent(s)/guardians all experience. We are slowly eroded by the constant dripping in the advocacy process and/or we become stalagmites building ourselves up by the constant dripping process. These two realities are often braided together.

We are desperate for adequate teacher training. I am not talking about workshops in universal design. I am talking about adequate training in specific disabilities and neurodiversity. We need early screening for dyslexia. We can’t wait for kids to fall behind in literacy skills in grade 3 or 4 and then to be on an assessment waitlist for 2 years that costs $5,000.00. That wait-and-see philosophy is pushing them out the door. It is a disaster. The inaction of our government is failing children and families. There was such hope with the Supreme Court Decision that there would be

How a Dyslexic Student Could Change Canada’s Schools by The Tyee (Nov 12, 2012)

A momentous change for Canadian schools

If I read the Court’s decision (and the School Act) correctly, this and future provincial governments are now bound to provide funding that will ensure that all B.C. students, regardless of talents or disabilities, receive the kind of education set out in the School Act.

That would be a momentous change for schools across Canada as well — perhaps comparable to Brown vs Board of Education, the 1954 U.S. Supreme Court decision that struck down racial segregation in the schools.”

The United States has legislation. Where is Canada?

The government is failing children and families. It doesn’t make any friggen sense to not support children with neurodiversity and disabilities. When supported, kids with ADHD can thrive as adults. Dyslexic thinkers are also incredibly diverse thinkers. It makes no sense as a society to not help these kids flourish because it is possible. Kids with ADHD don’t even have a designation and dyslexia isn’t even a label that schools are allowed to use. “The term dyslexia is not commonly used in the educational system. It has been removed from legislation, policies, procedures and most teacher training programs.” Talk about erasure. We can’t ever shut up about this.

Even if you want to make the argument that the government has limited resources, it doesn’t even make any economic sense to be ignoring such a huge group of people.

We have 1.8 million Canadians with ADHD.

10-20% of people in Canada have dyslexia.

As a country do we want this or this? What on earth is our country doing??

For the good, the bad, and the ugly, no one gets to where they are in life by themselves.

No one.

Here are some helpful organizations in BC

ADHD Society of BC

Dyslexia BC

BCEd Access Society

Inclusion BC

Family Support Institute

Name Them!

As parent(s)/guardians navigate the BC Human Rights Tribunal system, something to think about is anonymization.

The tribunal will automatically anonymize your child and your name whether you ask them to or not. This is to protect the identity of a minor. Even if a parent and child ask to be identified, you are going to need to fight for it. As Lee Ehmke did in her daughter’s complaint. Child K (by Ehmke) and another v. Queen of All Saints School and another, 2024 BCHRT 150

The anonymization process can be addressed by making a general application form 7.1 and submitting it to your case manager. You can make this application as soon as you find out that your complaint has been accepted.

You can decide to name your child’s school district. If you are in an independent school, their name. There are reasons to consider identifying them.

School districts can hide behind anonymization and they will be less concerned about having your complaint proceed to a hearing.

Here are some thoughts to consider on whether to name them or not.

  1. Naming them could reduce the harm families are experiencing at the hands of district staff who feel untouchable. When people are in power, and untouchability becomes the systemic norm, it is very dangerous. The rule of law is an important concept in our country. No one should be untouchable.
  2. The human rights tribunal system is an adversarial legal system. Parent(s) are unrepresented against lawyers, fighting out their case in the arena of law. An area that they are most likely, not educated or trained for. The human rights system can unintentionally become a barrier for parents to access justice due to the adversarial design and lack of access to free legal services and advice. The system is leveraged against the parents. We need to create as many human rights cases to help other parents not even need to enter this system. Human rights cases can be used in your advocacy and showing schools that they can be identified and that you plan to go this route may be the motivation they need.
  3. School districts are notorious for lying, gaslighting and manipulating parents. They have the legislation to give them the power to be the decision-makers of a child’s school environment 5 days a week, 6 hours a day with poorly trained staff in disabilities and mental health. Schools could easily apologize and take accountability for the harm that was caused, but they never do. Only when issues are brought to the attention of the media. They are all so confident, that they just sweep us aside and move on to the next dumpster fire. This is a provincial and national issue. Historically, schools are entrenched in covering up all sorts of things and that toxicity is still normalized today.
  4. We need to start naming school districts. It needs to become the norm. They may have the motivation to resolve issues with parents a lot earlier if they know that they will automatically have parents making applications to name them.

When you make your application, you can use the above points in your argument.

Here is your case law.

Child K (by Ehmke) and another v. Queen of All Saints School and another, 2024 BCHRT 150

Keep this case handy parents if you want your district named. Paragraphs on this topic are 5-34.

(7) The Tribunal has discretion to limit publication of identifying information where a person can show their privacy interests outweigh the public interest in full access to the Tribunal’s proceedings: Tribunal Rules of Practice and Procedure [Rules], Rule 5(6); Stein v. British Columbia (Human Rights Tribunal), 2020 BCSC 70 at para. 64(a). The Tribunal may consider factors like the stage of the proceedings, the nature of the allegations, private details in the complaint, harm to reputation, or any other potential harm: JY at para. 30. It may also consider whether the proposed limitation relates to only a “sliver” of information that minimally impairs the openness of the proceeding: CS v. British Columbia (Workers’ Compensation Appeal Tribunal), 2019 BCCA 406 at para. 37. It is not enough to just assert that a person’s reputation may be tarnished: Stein at para. 64(c).

(29) I appreciate that naming the School could make it easier for motivated and diligent people to identify the people who were involved in the events of this complaint. In that respect, my order will not perfectly protect the people involved. However, I find that – unlike the individual educators and staff involved – there is a specific public interest in the identity of the School as a publicly funded institution serving the public: A obo B v. School District 61, 2014 BCHRT 105 at para. 11. I am not persuaded that this public interest is outweighed by the potential that some of the educators may then be identified. There have already been a number of complaints and proceedings involving the educators and staff, and Mrs. Ehmke points out that many people within the community already know about the complaint.

(30) I deny the application to limit publication of the name of the School.

Thank you to Mama Bear Lee Emhke for smoothing out the path on this one!

Why Can’t we Just Sue the Government?

Good question!

Many parent(s)/guardians are asking this question. What they are experiencing in the education system is mass systemic discrimination and they are wondering how in the world is this allowed to happen?? Doesn’t the Charter protect our rights?

I hope this blog is used as a launching pad for discussion. I encourage people to be critical of this blog, question it, challenge it, and be curious about what I could be missing. What’s your opinion??

Let’s tear this question to bits.

Why can’t we just sue the government?

Funding

  1. A large majority of parents want to sue the government over lack of funding, EA support so their children can get an education. Something connected to scarce resources. They feel that resources are not being distributed fairly and people with disabilities aren’t getting their needs met and this is discrimination.

When you sue the government it needs to meet a specific legal test. We can’t just sue for lack of funding. If we could, any non-profit organization that felt they weren’t getting enough funding would be suing. That would be all of them. All non-profit organizations of marginalized community groups need more funding and feel they are never getting enough to service their community who are facing lots of discriminatory situations. They are all understaffed. All competing for grants. All desperate. All good and worthy causes. All justified. Yet still… not getting the funding to meet the needs of their community. Keep reading, I’ll explain further.

Quality of Life

2. Something to keep in mind, the government doesn’t owe us a certain standard of living. There is no legislation or law on this. We know this because people are sleeping on the streets and they can’t sue the government for being in that position.

Democracy & Charter of Rights

3. Our government works as a democracy. The system that we have to express our dislike over how the government spends our money, is through voting, contacting your MLA, or peaceful protesting. Other social movement activities like signing petitions, or starting your own non-profit organizations to work with other community members to advocate are all “system” approved ways of furthering your cause. As we will read below in case law, courts will not tell the government how to spend their money when it’s connected to resources in dealing with inequity. The government is allowed to take a “one-step” at a time approach when addressing issues of inequality. They are allowed to determine how to spend society’s limited resources and create social policy when choosing between disadvantaged groups. Something to keep in mind, our system is set up as a separation of powers between the government and the court system. The “conversation” that happens back and forth between courts and the government creating laws is often referred to as the democratic dialogue. See the two Supreme Court of Canada decisions related to Charter Challenges below.

Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66 (CanLII), [2004] 3 SCR 381

[75] [I]t is not realistic for the Court to assume that there are unlimited funds to address the needs of all.”

[79] While purely financial considerations are not sufficient to justify the infringement of Charter rights, they are relevant to determining the standard of deference for the test of minimal impairment when reviewing legislation which is enacted for a purpose which is not financial.

[83] It is also clear that while financial considerations alone may not justify Charter infringements . . . governments must be afforded wide latitude to determine the proper distribution of resources in society . . .  This is especially true where Parliament, in providing specific social benefits, has to choose between disadvantaged groups . . . .

Fraser V. Canada [2020] SCC 28

207 ]                      Governments must be afforded the latitude to act incrementally when addressing a deeply ingrained, complex and persistent social phenomenon such as inequality. (This assumes that the inequality arises from factors in society; where the government itself has created the inequality, matters are, as we have already indicated, somewhat different.) There are processes by which a government must set its priorities, allocate its budget, and obtain parliamentary approval of its programs. In designing legislation to address a particular equality issue, a government can draw on far more internal and external expertise than we judges can. As a result, it is better positioned than we are to appreciate the consequences of a particular course of law‑making, both upon society and upon public resources. With these practical realities in mind, we must also recognize that, were a government expected to remove all inequalities for all groups on every occasion it acted, it may be disinclined to act, given that any remedial scheme will inevitably be under‑inclusive in some respect. Governments would, understandably, become “reluctant to create any new [remedial] benefit schemes because their limits would depend on an accurate prediction of the outcome of court proceedings under s. 15(1) of the Charter ” ( Egan v. Canada , [1995] 2 SCR 513, at para. 104, per Sopinka J.).

208 ]                      To avoid this chilling effect, and to encourage governments to enact remedial legislation addressing pre‑existing disadvantage, this Court has (until now) judiciously accepted that governments may implement reforms “one step at a time, [and] address[s ] [the reforms] to the phase of the problem which seems most acute to the legislative mind” ( R. v. Edwards Books and Art Ltd. , [1986] 2 SCR 713, at p. 772, quoting Williamson v. Lee Optical of Oklahoma , 348 US 483 (1955), at p. The focal point in assessing remedial legislation is not to ask whether the government has met “the gold standard”Auton , at para. 62; see also paras. 59-61), but to recognize that government should not be obliged to deal with all aspects of a problem at once. It must surely be permitted to take incremental measures. It must be given reasonable leeway to deal with problems one step at a time, to balance possible inequalities under the law against other inequalities resulting from the adoption of a course of action, and to take account of the difficulties, whether social, economic or budgetary , that would arise if it attempted to deal with social and economic problems in their entirety, assuming such problems can ever be perceived in their entirety. [Emphasis added.]

213 ] …..This is because only legislatures have the institutional capacity to conduct the research and study necessary to assess how, and at what pace, its resources should be applied to most effectively address a particular pre‑existing equality issue (and ultimately, to oversee that implementation) . Courts are not well placed to define the nature and scope of an obligation to enact 
sufficiently remedial legislation (Ferrel v. Ontario (Attorney General) (1998), 42 OR (3d) 97 (CA), at p. 113).

[229 ] Similar issues will undoubtedly arise with any other social welfare legislation or government attempts to remedy systemic disadvantage. By reserving the right to arbitrarily second‑guess and undo any legislation that attempts to incrementally address systemic disadvantage, the Court makes it more practically difficult for legislatures and governments to implement policies that promote equality. Put simply, we see restricting the government’s ability to incrementally address disadvantage as a peculiar way to promote equality.

Human Rights Cases Involving Ministry of Education

4. Every single human rights case that I have read across Canada, that has included the provincial Ministry of Education in their complaint, has been dismissed. If their complaint continues, the Ministry of Education is never involved. I haven’t read one case where the Ministry of Education was included. The Ministry gives the funding to the districts and the districts decide how to allocate the money, which removes the Ministry of Education from decisions that would pull them into the human rights complaints about kids not accessing needed resources.

5. I know someone who had the opportunity to consult a lawyer regarding this matter. They were told a way to file a class action human rights complaint that could involve the Ministry of Education is if the Ministry have policy that is discriminatory. This route is still possible if they do this.

Human Rights Process

6. I have been asked, why can’t we just file a class action human rights complaint against the Ministry of Education? So we have established, it would need to be something like a discriminatory policy in order for it to be connected to the Ministry. If there is a group of parents who want to file a class action human rights complaint who wants to create a decision from the tribunal, we would need to find a group of parents who were potentially prepared for a 8-10-year fight. Right now, just for a single complaint to reach a hearing level at the BC HRT, it will take about 4-5 years according to flow chart produced by the BC Human Rights Clinic. It could take a year for the tribunal to write a decision, if not more. This case took 15 months for the tribunal to write up the decision. Especially if it was a class-action human rights complaint it could be long and complex. Class action lawsuits tend to be long. Lawyers fees for one parent I know, was given an estimate for $30,000 for hearing preparation and a $10,000 per day for a hearing. So this group of parents would need to be prepared to spend thousands of dollars, agree to not accept any settlement, and continue along to a hearing. OR they would need to be ready to self-represent themselves. OR they could find a unicorn of a lawyer willing to do pro-bono work. (So many parents have had their pro-bono lawyer drop them before a hearing. We would need to find someone willing to commit for the long haul for free.) After the BC HRT decision is posted, the Ministry could possibly file a judicial review after the decision. With a class action decision, the compensation money might be large enough or the precedent be enough that they view it worthwhile to pursue further. That would launch it now to the BC Supreme Court for more legal fees and more time…. and even with all that, a policy change would affect only those impacted by the policy and wouldn’t make the systemic change that parents are looking for when they ask the question, why can’t we just sue the government? If parents want a policy change, I wonder if it would be best to file a single complaint and get the policy change during a settlement mediation meeting. It would be so much faster and they could get the policy change that they need much faster so it could impact their children. Not 10 years later. The very system that is intended to resolve discriminatory issues can be a barrier itself.

Courts & Education

7. Generally, the courts don’t like education cases. It depends on what you are suing for and what the legal test is.

For example: Educational Malpractice

Gould v. Regina (East) School Division No. 77, 1996 CanLII 6807 (SK KB)

“The courts are an inappropriate forum to test the
efficacy of educational programs and pedagogical methods.
That judicial interference would be the inevitable result of
the recognition of a legal duty of care is clear from the fact
that in presenting their case, plaintiffs would, of necessity,
call upon jurors to decide whether they should have been
taught one subject instead of another, or whether one teaching
method was more appropriate than another, or whether certain
tests should have been administered or test results
interpreted in one way rather than another, and so on, ad
infinitum.  It simply is not within the judicial function to
evaluate conflicting theories of how best to educate.  Even if
it were possible to determine with exactitude the pedagogical
course to follow with respect to particular individuals, yet
another problem would arise.  Public education involves an
inherent stress between taking action to satisfy the
educational needs of the individual student and the needs of
the student body as a whole. It is not for the courts to
determine how best to utilize scarce educational resources to
achieve these sometimes conflicting objectives.
  Simply
stated, the recognition of a cause of action sounding in
negligence to recover for “educational malpractice” would
impermissibly require the courts to oversee the administration
of the State’s public school system.

Costs & Risk

8. If we did want to try and sue the government via the court system and not the human rights route, we would need to be prepared for it to possibly be tossed out. That wouldn’t be such a bad risk to take, however, if we lose the respondents will ask the courts that we pay their legal fees. Which can happen for the losing party in court cases. You’ll want to read this link. Costs are awarded to the successful party.

The CharterLimited

9. What I learned from my human rights law class was that we don’t just have open-ended rights under the Charter, our rights are how they are DEFINED under the Charter. And that is case law. Case law tells us how our rights to not be discriminated against is defined. An example of this definition is the case Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 SCR 241. This case famously defined reasonable accommodations and separate classes for students with a disability as a reasonable accommodation due to what is considered reasonable and best interest of the child. All of the human rights cases that make it to hearings are what define our rights under the law too. These definitions and interpretations of law are important. (Duty to accommodate) Each decision defines our rights.

10. Also an important part of the Charter to understand is Section One – Reasonable Limits. The purpose of this “Section 1 effects a balance between the rights of the individual and the interests of society by permitting limits to be placed on guaranteed rights and freedoms. “Most modern constitutions recognize that rights are not absolute and can be limited if this is necessary to achieve an important objective and if the limit is appropriately tailored, or proportionate. (Canada (Attorney General) v. JTI-Macdonald Corp., [2007] 2 SCR 610, at paragraph 36).”

To take a Charter challenge all the way to the Supreme Court of Canada it would be a 10-year fight, we would need a pro bono lawyer, and based on the case law I have seen, I am not aware of any case law that would be substantial in helping us to force the government to increase funding and resources for kids with disabilities in education.

11. Law isn’t the magic bullet that people tend to think it is. Laws can come into force but they need to be APPLIED for them to have an impact. That means that advocacy around using these laws will still need to happen. Law is a tool for us to use. The system needs to uphold these laws through its systems and accountability design. If the system doesn’t uphold a new law, it won’t be the magic we want it to be. We have laws that say it’s illegal to discriminate, and yet it still happens every day. We still need to change people’s hearts and minds. Law is a start, but it is just the beginning of the work. We need to take these laws and apply them. Laws won’t fix everything, but they are hugely important. We need a social movement AND laws. We need to use every avenue we have. I think of the parachute activities I used to play with my kids at Strong Start centers. We’d all have a piece of the very large parachute to hold onto and put the ball in and bounce it around. We all need to lift and do the work together if we want to keep the ball of inclusion on the parachute. We all need to be in our own corners, all lifting together simultaneously. All of the work done at BCCPAC, parent advocacy groups, advocacy organizations, human rights work, BC Ed Access, School Trustees, BCTF, Teacher’s unions, Post-secondary teacher education programs, EA programs, Professional Support Staff, Counsellors, Ministry of Education and Child Care, accessibility committees, and individual parents, all of us.

So now what?

This part is my opinion and experience. The soft spot of the education system is money. The people in power care about money.

It needs to become more expensive and time-consuming to deal with the consequences of discriminating against students with disabilities. Providing an inclusive education needs to become easier and less expensive. Which means to me, through my lens…. human rights complaints. LOTS OF THEM.

I can tell you 100%, and I have witnessed these meetings, that when systems get too many human rights complaints and their litigation costs go through the roof, then and only then do they start to look at how they can make policy changes to reduce the number of human rights complaints. I don’t care what their motivation is, the results are still the same. Policy in the right direction. Staff training. This is what it seems to take.

Human Rights complaints have the potential of being very expensive, as we advance the purpose of the Code and create those gold nugget decisions.

Dealing with ableism is slow and painful work. But necessary. Social movements are like that.

Every little bit of advocacy we do, all adds up. It all matters. Every bit of human rights law advancements, every decision, every DPAC inclusion meeting, every email to your MLA or school Trustee, every advocacy advancement you make, every time you support another parent. All of it.

We need an army of informed and empowered parents, spreading out and reaching all the corners of the province.

For those of you who are willing and able to get in the ring and make discrimination expensive, hats off to you, we need you. File away.

SOCIAL MOVEMENT + HUMAN RIGHTS LAW = MORE EQUITY, LESS ABLEISM