Student Y by Grandparent S v. Board of Education of School District No. X, 2024 BCHRT 353
This decision is an application to dismiss the complaint by the school district. The application was denied and the complaint is continuing.
I really encourage you all to read the full decision to understand the context of this case and the tribunal’s analysis.
[1] Student Y filed her complaint on January 27, 2021. Student Y alleges that School District No. X discriminated against her in the area of services on the grounds of mental and physical disability contrary to s. 8 of the Human Rights Code when it excluded her from school [ Exclusion Allegation ] and, before that, allowed her to attend school for partial days only [ Partial Days Allegation ]. She says the School District neglected and isolated her when she was at school by making her play in a room alone “on countless occasions” [ Neglect Allegation ]. She further alleges that in 2018, a teacher locked her in a closet, and the school did not permit her to travel on the bus with her peers to a field trip location [ 2018 Allegations ]. She says in grade one the School District labelled her as violent, which ultimately caused her peers to reject her [ Grade One Allegation ].
[2] The School District denies discriminating and applies to dismiss Student Y’s complaint under ss. 27(1)(c), 27(1)(d)(ii), and 27(1)(g) of the Code . Under s. 27(1)(g), the School District says that many allegations in the complaint are out of time. The main thrust of its argument under s. 27(1)(c) is that it is reasonably certain to prove a justification defence. Finally, under s. 27(1)(d)(ii), the School District says that Student Y “short-circuited” the accommodation process by filing the complaint and moving out of the School District’s catchment area.
[11] In October 2020, when Student Y was in grade 3, she was diagnosed with:
a. unspecified neurodevelopmental disorder;
b. language disorder;
c. attention deficit/hyperactivity disorder, combined presentation; and
d. developmental coordination disorder.
Student Y says that as a result of her physical and mental disabilities, she has difficulty regulating her emotions, navigating social environments, and coping with unplanned changes and transitions.
[15] The School made the decision to continue the partial day program in Student Y’s grade three year. However, a reintegration plan was developed whereby her time at school would be increased if she had 10 consecutive days at school maintaining “safe, hands to self behaviour.” Under the reintegration plan, Student Y would be sent home if she displayed physical aggression towards staff or peers. On the third consecutive day of being sent home, the school could decide to decrease her daily time at school.
[16] Grandparent S, Student Y’s legal guardian, appealed the decision to keep Student Y on the partial day program, requesting that Student Y be reinstated to a full-time program with “all required levels of support”. The school principal denied the appeal, keeping Student Y on the gradual reintegration plan.
50] To justify the adverse impacts to Student Y at a hearing, the School District would have to prove that: (1) it adopted the standard for a purpose rationally connected to the function being performed, (2) it 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 is reasonably necessary to the accomplishment of that legitimate purpose. This third element encompasses the duty to accommodate the complainant to the point of undue hardship: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 at para. 20.
[51] The main issue between the parties is the third element – whether it is reasonably certain the School District will prove it fulfilled its duty to accommodate Student Y. The School District was obligated to take all reasonable and practical steps to remove the disability-related barriers to Student Y’s meaningful access to education. For the reasons that follow, I am not satisfied that the School District is reasonably certain to prove that it did so.
[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.
[63] For the reasons set out above, I am not satisfied that the School District is reasonably certain to prove that it has not breached the Code in its efforts to support Student Y in accessing her education.
[64] The application to dismiss is denied.