This case is a fascinating read.
Parents took the Ministry of Education in Alberta to court.
Kerber v Alberta, 2025 ABKB 98
There are two parts that stick out to me, that I think you will all find interesting.
The Ministry trying to disconnect from their own orders they create and the labour shortage paragraph.
Let me hook you in with this line:
[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.
EQUITABLE PRINCIPLES MUST BE APPLIED IN TIMES OF LABOUR OR RESOURCE SHORTAGES. Woohoo! Thank you!
This case is in relation to a strike.
[1] Approximately 3,700 complex-needs students have been advised by their schools that they must continue their education programs on an at-home or a rotating in-school basis because of the strike involving support workers at Edmonton Public Schools. This situation has persisted for over five weeks.
Why?
Because…..
[7] On January 9, 2025, CUPE 3550 issued a notice that it would be going on strike as of January 13, 2025. A range of support staff, including administrative assistants, clerks, educational assistants, food preparers, interpreters, library technicians, licensed practical nurses, speech language pathology assistants, and technicians have been on strike since that date.
So the Ministry of Education in Alberta did this.
[9] On January 12, 2025, the day prior to the strike, the Minister of Education, Demetrios Nicolaides, signed Ministerial Order #002/2025. The Ministerial Order states:
I, Demetrios Nicolaides, Minister of Education, pursuant to section 4 of the In-person Learning Regulation, exempt The Board of Trustees of Edmonton School Division from the application of section 2 of the regulation to provide an in-person learning option, at the schools under its authority, to students who require an educational assistant due to complex needs where the continued attendance of those students at in-person learning may risk the health and safety of the student or other students or staff, subject to the terms and conditions in the attached Appendix.
Which means kids with complex needs are being excluded from in-person learning.
So 4 parents took the Ministry of Education to court.
[4] The Applicants, who are four complex-needs students affected by the Ministerial Order, seek an interlocutory injunction suspending the operation of the Ministerial Order or, alternatively, an exemption to the Ministerial Order, until the summary judgment or trial can be heard and determined on the Charter issue.
The Ministry of Education tried to pass the issue and blame the school district. Saying the school district didn’t have to follow the order they were just given permission to do so. (OMG! Insert huge eye roll. I actually laughed out loud when I read this!)
[26] Alberta argues that the Ministerial Order does not require the ESD to stop providing in-person learning to particular students; it merely permits the ESD to make decisions about at-home learning considering the safety of all students and staff within its schools in light of the strike action.
The court saw through that BS.
[40] While Alberta is correct that the Ministerial Order does not require any student to learn at-home, the Ministerial Order is the permissive enabling enactment that grants the ESD the authority to make decisions about which students must switch to full or partial at-home learning. Alberta is the correct party to name in this application.
So Ministries of Education across Canada, if you write discriminatory policies don’t blame the school districts for acting on them.
For those who like legal mumbo-jumbo, there are various forms of legal analysis in this decision.
The conclusion was that the parents won the injunction they were seeking.
And as mentioned before I really like this paragraph
[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.
And yes I too would like to thank these parents for bringing forward education cases under legal analysis.
[161] I wish to thank counsel for their excellent submissions.
[162] I also wish to extend my gratitude to the parties and the families for their participation in this important issue.
If you want to skip the legal analysis and just go to the conclusion at the bottom, it starts on paragraph 153. Here is some of it.
[157] The nature of the harm that the Applicants would suffer is significant.
[158] The nature of the legislation under attack is the provision of education – a fundamental service owed to all young people.
[159] The public interest lies in ensuring equitable treatment of all students during a labour shortage and a fair redistribution of available resources that does not discriminate based on a disability.