I have added this case to my list under the human rights cases tab. I have picked out some paragraphs, but I really encourage you all to read the full case to get the context of what happened to this child and family. The respondents applied for a dismissal and the human rights tribunal decided the complaint should continue.
There are a few paragraphs in this decision that got my noodle thinking, but for this blog, I want to focus on this paragraph below. Paragraph #52.
[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.
The author of this decision decided to emphasize the words anything else. It wasn’t me that bolded that in the paragraph.
So, this is my guess.
When the human rights tribunal emphasizes ANYTHING ELSE are they eluding to an alternative learning space?
A lot of districts have alternative learning programs for students who need alternative learning spaces. There has been a recent uproar over the closing of a learning centre in the Surrey district with parents and students very upset over its closing with media coverage and rallies. The school districts report funding issues. There was also another family who was in the media, and their son was in a life skills program, and he was excluded due to lack of resources. Without systemic financial planning from the Ministry of Education to keep these alternative programs running, they end up closing and students are still being excluded.
In the face of complete exclusion for some students from schools, will school districts be required to provide alternative learning spaces as their ANYTHING ELSE or face human rights complaints? The school districts already have the power to choose the education program for the student and choose classroom placement. This is from the Supreme Court decision Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 SCR 241 (Notable paragraphs are: 76, 77, 78, 79, 80, 81)
What does the tribunal mean by ANYTHING ELSE? They have already acknowledged the school district was “actively and intensively involved in attempting to accommodate Student Y’s disability”.
We are at the brink of having Ombudsperson and possibly the Human Rights Tribunal (if this case goes to a hearing), set forth some expectations around the topic of exclusion.
After you read this case, what is your guess? What do you think anything else means?
To answer that question, we need to look at their role and how they have approached educational matters in the past.
If you are a parent who has received a decision letter, you will have it explained in that decision these statements:
“The role of our office is to impartially assess complaints of administrative unfairness brought against public agencies under our jurisdiction. Our assessment process examines whether the agency’s actions appear consistent with the applicable legislation, the agency’s relevant policy guidelines, and the broader principles of administrative unfairness.”
“My focus is assessing your complaint was on whether the District appears to have followed a reasonable process…”
“While I understand you think the District made the wrong decision, disagreement with a decision does not mean the decision is unreasonable.”
When we look at their previous decisions around education, again they don’t look at whether the decision itself is reasonable but the process.
As you can see here in this case (School’s Out) they focused on not whether the school made the right decision in doing what they did, but that they didn’t inform the parents there is an appeals process. Again, focusing on administrative process. To read more decisions in education you can see them here.
We can also look to their Fair Schools Report from 1995, on how they examine the process of what Fair Schools should look like.
Will they create a similar document, but around exclusion?
Will school districts around the province be told they need to create exclusion policies?
Currently, the administrative process around exclusion is a mess. Ombudsperson will be engaging in a year-long investigation into the “fairness around exclusion”.
Law often takes the best interest of the child approach. From an administrative fairness perspective, what should the legislation, policy or administrative process be for children dealing with exclusion and what is fair?
Ombudsperson BC focuses on this perspective in their announcement stating “Children have limited options to address unfairness in their education and school environments.”
From the child’s point of view, what is fair to them?
This still leaves parents out of the picture. Parents are struggling to work and pay their bills while their children are not allowed to attend school, even if the temporary exclusion is considered to be in the best interest of the child by the school. The School Act gives school districts the final decision around exclusion. Is this where family status complaints with the BC Human Rights Tribunal could fill in the gap?
Ombudsperson will not be examining whether exclusion is newly discriminatory. Each complaint system is a silo with their own legislation that guides them. They are not connected to the Human Rights Code.
Something important to highlight from the Ombudsperson Act S.23 outlines what could happen after the investigation is complete.
23 (1)If, after completing an investigation, the Ombudsperson is of the opinion that (a)a decision, recommendation, act or omission that was the subject matter of the investigation was (i)contrary to law, (ii)unjust, oppressive or improperly discriminatory, (iii)made, done or omitted under a statutory provision or other rule of law or practice that is unjust, oppressive or improperly discriminatory, (iv)based wholly or partly on a mistake of law or fact or on irrelevant grounds or consideration, (v)related to the application of arbitrary, unreasonable or unfair procedures, or (vi)otherwise wrong, (b)in doing or omitting an act or in making or acting on a decision or recommendation, an authority (i)did so for an improper purpose, (ii)failed to give adequate and appropriate reasons in relation to the nature of the matter, or (iii)was negligent or acted improperly, or (c)there was unreasonable delay in dealing with the subject matter of the investigation,
the Ombudsperson must report that opinion and the reasons for it to the authority and may make the recommendation the Ombudsperson considers appropriate.
(2)Without restricting subsection (1), the Ombudsperson may recommend that (a)a matter be referred to the appropriate authority for further consideration, (b)an act be remedied, (c)an omission or delay be rectified, (d)a decision or recommendation be cancelled or changed, (e)reasons be given, (f)a practice, procedure or course of conduct be altered, (g)an enactment or other rule of law be reconsidered, or (h)any other steps be taken.
They make recommendations. They can’t force the Ministry of Education and Child Care to do anything. BUT! It would make the Ministry look horrible if they ignored the Ombudsperson BC. AND, given that there has been so much media attention (which is absolutely wonderful), then hopefully the Ministry will be accepting of their recommendation.
All this to say…the analysis by the Ombudsperson BC is going to be VERY interesting. The public report will raise awareness of this issue in a way that we have never seen before. The media has been very interested in covering this topic, which is fabulous. We need to muddle through this topic and see where we land. The points of impact on this topic touch everyone and multiple groups of people who access and work in education. I am very pleased that Ombudsperson is shining a light on this issue, and will be looking at exclusion. It will be very interesting to see the results of their analysis and recommendations for “fairness”.
When it comes to exclusion, what is “fair?”
Ombudsperson states:
“By examining this issue we can make recommendations to support the ministry and school districts in meeting their inclusive education commitments and obligations to all students.”
It will take them a year to investigate.
I will be on the edge of my seat waiting for this to come out!
Due to parents filing external complaints to the Ombudsperson BC department, they have decided to launch an investigation to see if these exclusions are fair.
Today makes me think of Judith.
Judith Heumann, the late disability activist has said “Change never happens at the pace we think it should. It happens over years of people joining together, strategizing, sharing and pulling all the levers they possibly can. Gradually, excruciating slowly, things start to happen, and then suddenly, seemingly out of the blue, something will tip.”
Today it tipped.
THIS is why filing external complaints is so important.
We are all grains of sand that make up a beach. Every complaint matters. It becomes data. Change will never happen if we just suck it up, swallow the circumstances that we are in, and never speak up.
We can never SHUT UP! EVER!
File
File
File
Our lived experience needs to spread far and wide.
Everything we do matters. All of it. Nothing is ever wasted. It builds over time. We will never truly know the full extent of the impact that we have on people and how think and may see things differently. We need to keep going.
To all of the parents who have filed over this topic in the past YEARS, you have all been building blocks to make this happen. ALL of you.
The Burnaby Now has recently posted articles about human rights complaints that are connected to Burnaby.
I am curious to know how the people who filed these complaints feel about that.
Do they like their story being shared? Do they feel that these articles are elevating their advocacy? Or do they wish Burnaby Now never wrote them?
Having courts and tribunal systems be open and transparent to the public is an important feature of our justice system. Court is always open. As a member of the public you can just walk in and watch everything unfold. In special circumstances, lawyers can argue to have a closed courtroom. Having an open court system is a way for us to learn about how our justice system works and how decisions are made. It boosts public confidence and supports the legitimacy of the system.
If you are a parent filing a complaint on behalf of your child, your name, your child’s name and the school district’s name will be anonymized. If you want to name yourself, or the school district you will need to make an application. One parent did just that and won. You can also apply to have just your school districts named. You can file an anonymization application as soon as your complaint is accepted.
However, if you are a parent filing a family status complaint they may anonymize your name if information about your child is disclosed, or they may not. There is a risk of this hitting the local newspaper. For some people, that would thrill them and the attention they have been wanting. Other people, may feel that their information being shared is a violation. One parent advocated for a consent resolution so that the details of what happened were posted publicly after a settlement. Bravo! That was a genius idea.
Dismissal decisions are not the only decisions being shared. Anything that would benefit the public to be aware of or that advances the Code gets posted. That is timeliness, complaint amendments, improper conduct applications, etc. Not all decisions get posted. Many of them do not. You will not know in advance if the decision is going to get posted or not until the day they tell you it will be posted the next day. You’ll get the decision in the morning and then shortly after it will be on their website.
If anonymization is important to you, this is a conversation I would suggest you have with your case manager. The sooner the better.
Also, know that having a closed hearing is also something you can apply for. Otherwise, your hearing will be posted on their public hearing list, and members of the public can sign up and listen in. This is how people learn about the process and prepare for their own cases.
Most parents I have talked to would love to broadcast their case to as many people as possible. They have reached the point where they want to scream from the tallest mountain. They want everyone to know what happened. But, if this isn’t the case for you, the public attention that could come from a human rights complaint may be something that you consider and discuss with your case manager as soon as your complaint gets accepted.
BC CAISE (BC Council of Administrators in Inclusive Education) in their “A Guide to Meaningful Consultation” manual on page 8 defines it as:
“Meaningful consultation is an ongoing, collaborative effort involving students, families/caregivers, and educational staff, focused on open dialogue and joint decision-making for educational matters. This inclusive process works towards ensuring all voices are heard and decisions are well-informed and clearly communicated. All parties work together towards a balanced outcome, emphasizing recurring dialogue rather than consultation being a single event.”
“When done well, meaningful consultation ensures families/caregivers feel that the school team listens to them and that their experience, knowledge and ideas have been considered.”
“Meaningful consultation encourages open dialogue; it does not mean all parties will agree.”
“When a mutual agreement is not possible, the school team will provide a rationale for their decision-making with regard to the educational programming of the child and ensure ongoing consultation and follow-up.”
If this rationale is not being provided and they refuse to provide it when you ask, you can use this manual and file an Ombudsperson complaint.
I also want to acknowledge that the consultation process can trigger a lot of emotions in us. In order to keep advocating and keep the dialogue going, there are certain rules we parents need to know to navigate this system.
What is an indication of social change for you? There are TONS of them all around us. Pick one. What is it?
For me? One of the many things I see is that more people from marginalized communities are willing to be noticed. To not blend in… as much. People are more willing to be transparent about themselves and use their own lives as a way to advocate. In small ways and big ways. More people are willing to take up space and be seen and heard. Many have taken up blogging and writing books. The internet for disabled individuals has had a huge impact on our ability to connect with other people who are like us. Technology allows us to express ourselves like never before. Sharing our stories is changing the temperature of the water. By connecting with other people we are forming social groups that are often leading to coordinated advocacy projects.
It’s so interesting to me that when you are on the outside of “typical” societal expectations, or you don’t measure up to the ideal measuring stick, just your existence alone is defiance and a daily protest. If you are trying to live your best life, then you are a change-maker. Attempts to fully participate in society is advocacy.
Being transparent and noticeable can be work. You never know how someone is going to respond to you and you need to be ready at a moment’s notice. That kind of constant vigilance can be tiring. You are also more under surveillance, as all eyes are on you. You are representing a community of people, whether you asked to take on that role or not. You are also more vulnerable to discrimination and you need to be ready for that.
On the plus side, it can be nothing short of pure freedom. To be a caged bird, released.
Masking and blending in with the wallpaper is work too. Feeling trapped is not fun emotional work either. That too can be tiring. It’s really just a question of what kind of work and on what scale do you want to be doing? The work of being noticed or the work of masking? For a lot of people, there is no option to hide. Sometimes not having a choice is simpler. You are forced to dive in. This is your reality and now it’s time to run with it. For those with maskable invisible disabilities, I think it’s very natural to sway from side to side and this decision-making is fluid even within a single 20-minute social interaction.
Whatever decision you make about your willingness to be noticed, and on what scale you decide to share yourself with the rest of us, I wish you all the best in living your best life, whatever that is. Happy New Year!
I have recently had someone publicly tell me that the information I post “is already out there and readily available, and what is the point of providing information if it won’t help anyways?”
And “Being NICE and COLLABORATIVE so they will like you is the wrong approach”
And “this is exactly the response system is hoping for: having parents spend a multitude of energy and hours on researching and getting information to “help their child” in the classroom, so they can self congratulate themselves in showing how collaborative they have been with parents.“
This person feels the human rights system is a waste of time. What needs to occur are legislations changes only and anything less than that is a waste of time. They feel the only response parents should be doing is pulling their kids out of the education system.
Here is my response:
Not to toot my own horn, but for this blog, it’s important I place myself in this topic before I dive in. I don’t want anyone to think I am just making this stuff up. It is an informed blog. One of my degrees is in Human Relations from Concordia University, Montreal, with a certificate in family education. I graduated with honors and an award. This degree is about human systems. How people function in groups of all sizes from families to large organizations and societies, systemic change, and how to intervene when systems become toxic.
Some people when they advocate can reach a point when they are beyond frustrated, angry and bitter. Some people have decided to lash out at other people. The very people they are in the trenches with. They end up making it harder and more emotionally draining for parents who are advocating. I don’t think they realize the impact and how upsetting it is for other parents to hear their comments. Crabs in the bucket. My perception is that there is a lack of understanding of how human systems work, and how systemic change occurs and they are frustrated because how they think they should be able to make systemic change occur, isn’t occurring. The wider the gap between our expectations and reality, the more depressed or angry we will become.
I can’t fit everything in this blog about how human systems work, so for this blog I am going to focus on macro-level and micro-level aspects. Macro-level systems are the big ones. The government bodies that include hundreds and thousands of people. They are our political system, the structure of our economy, the structure from the Constitution of Canada and the impact on our system, democracy, our education systems with public schools, private schools, online schools etc. The large groups of multiple moving parts that involve many complex layers, and are maintained by many layers of legislation, policy, and guidelines. Think of many many gears all locked together. They are all moving. Wish to change one gear, and they will all be impacted. These systems have formal codes of conduct and contracts. Also, the unwritten social contracts and social rules that glues everyone together. These systems are tidal wave systems that do not get pushed off course unless something massive happens. I haven’t even mentioned the topic of power. That’s a whole other blog. Systems that are oppressive like to remain that way, unless it’s detrimental to themselves to not change.
Micro-level changes are things that happen on one-to-one individual levels. Individual social interactions. A 20-minute conversation is a micro-level interaction. This is when we advocate with our child’s teacher and they learn something new about ADHD and now they are adapting their teaching and accepting of movement breaks because they understand things differently.
Some people think, that if we only change this one law, or have this one human rights case, or if we change one piece of legislation then everything will be solved for all of the following generations.
I can promise you, if this is how you think, this is where your pain is because that will never happen. Change will never happen because of one person. Ever. We are dealing with way too many macro-level systems all connected and interacting with each other, AND we are dealing with way too many micro-level individual interactions of ableism and lack of information about disabilities. One person is not going to swoop in and solve it all. The education system provincially has hundreds of thousands of people working in these systems. There is not one solution. If we are waiting for a hero to ride in on a horse and save us all, we’ll be waiting for a very long time.
One person cannot change a human system. It takes teams. Plural. And in our society, it is going to take multiple teams all working together with a common goal for a sustained period of time. These teams are going to have to cover ALL different areas and all different aspects of the multiple gears.
There are 4 elements to a social movement.
There is a trigger event that inspires an intense reaction from the community
ALL of the already established community groups come together and work together as ONE
They have a common simple message that the public can understand. (Eg. Black Lives Matter)
The advocacy of this one common message and connection of all of the groups needs to be for a sustained period of time. A long time.
That is a social movement.
Think of the women’s movement in the 70’s. We still have women’s issues today. But women entering the workforce was quite the shift that started it all off. The different professions women are working in today is because of that social movement.
We need to work at both a macro-level and a micro-level. Even if we had a piece of legislation change or a fantastic policy manual from the government we are still going to be dealing with the individual people who are ableists and want power over. Any change coming from the top down and they will figure out ways to get around it, ignore it, and we will still be struggling with the same shit.
It’s not that we just need to get EA standards and everything will change.
It’s not that we just need to get legislation changed.
It’s not that we just need this one class action human rights case.
We need everyone. We need ALL of it. It is all hands on deck. We need every disability organization, we need all parents, we need trustees, we need educators, we need PAC’s, we need unions, we need everyone working in their own corners advocating for accessibility and inclusion.
Anything less than that, and we will not be able to move the needle enough to notice change in this generation.
It takes a micro-level AND a macro-level response.
Social change, where people really feel that the needle moved, that is noticeable… usually takes 3 generations. But not always…
We are in a catch-22 when it comes to legislation changes. The government won’t enact legislation or funding commitments to items that they feel the majority of their constituents don’t want. Their goal is to get re-elected. If they don’t get re-elected they can’t pursue any of their goals. So, if the public doesn’t care about kids with disabilities and their access to an equitable education…. the government isn’t going to put a massive amount of money into that. They need to make their constituents happy. We also know that society is generally ableist. And oppressive. We are also dealing with evolutionary instincts. Humans are complex. We are a mix of beautifulness and survival instincts. When resources are tight, we want them for ourselves.
Everyone’s advocacy efforts are all part of the work. It all matters. Every single one of you. There is no one single solution or even one single group that is going to just fix everything in a couple of years. It takes massive amounts of people ALL advocating in our own corners. Micro-level and macro-level advocacy work. We can’t just change legislation. We need to change the hearts and minds of everyone to uphold and embrace the legislation even if it does change.
Having said all of this: “Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has” -Margaret Mead
Very true. It all starts somewhere. Seeds get planted by small groups that grow over time.
If you are someone who is belittling other parents’ advocacy efforts. Telling them there is no point to any of their work, and that the system will never change. Which is actually impossible, because systems always change. They are maintained by people and society changes all the time. Please, and I say this with love in my heart. Please find counselling or keep your comments to yourself. The human rights process may have been a waste of time for some people, which I am truly sorry. The human rights system enforces the Human Rights Code and creates the Duty to Accommodate which is the strongest piece of advocacy tool that we have as parents, and those cases that advanced the Code were because of parents who sacrificed. You are not helping anyone by belittling all of parent’s advocacy and telling them there is no point. You are now the one making this worse for them. When you make statements telling people to give up, you are now oppressing them. I have zero tolerance for that.
This is a marathon. Not a sprint.
It’s a team sport. We all need to train individually but run together.
Let’s build each other up and be supportive.
For further reading on social change I recommend the book: Let’s Move the Needle. An Activism Handbook for Artists, Grafters, Creatives, and Makers. By Shannon Downey
This is a VERY interesting decision as it is a parent claiming discrimination to not having equal funding and this unequal funding they felt was discriminatory. Funding is a reason many parents would like to file a class action against the Ministry. This decision supports the reality, that we can’t just sue the government over lack of funding. Especially, the Ministry of Education and Child Care.
And the main crux of the argument of why we cannot file a complaint against the Ministry of Education and Child Care in connection to funding is because they are just following the legislation that is voted on and passed in the Legislature. The Legislature creates the School Act. The funding is given to the school districts. The school districts make the decisions on how the funding is allocated. As stated below the Tribunal dismisses complaints against bodies whose only role in funding is oversight.
Every human rights decision that I have ever read that included the Ministry of Education in a complaint, has been dismissed every. single. time. I really encourage everyone to read this case in full. The analysis is very interesting. I thank this parent for filing such a complaint and allowing the tribunal to apply their interpretation and analysis so that we can learn from it and understand how the system works.
I really can’t say it enough, that if you think you have a case, filing complaints is a form of advocacy. Even if you personally “lose” it is not a loss for the community. This is a HUGE form of advocacy. It’s information and knowledge that lets us understand where the lines are. Where the boundaries are. We could end up wasting TONS of time and energy advocating in the wrong direction. These decisions are literally GOLD.
For those of you who have your children in online learning, this may be of particular interest. This parent was filing a complaint and a class action complaint.
Here is the complaint and the Ministry of Education’s main argument:
[2] The Complaints allege that the Ministry of Education [ Ministry ] discriminated against Ms. Ward, Praise, the Parent Class and the Child Class and the Child Class [collectively the Complainants ] in the provision of services contrary to section 8 of the Codeby failing to provide equal funding for students, paid to their parents who are the primary service providers of parent-directed educational programs. Parent-directed educational programs, the Complainants say, include homeschooling and a subset of distributed learning programs, now online learning, which require the delivery of the program by a parent.
in the provision of services contrary to section 8 of the Codeby failing to provide equal funding for students, paid to their parents who are the primary service providers of parent-directed educational programs. Parent-directed educational programs, the Complainants say, include homeschooling and a subset of distributed learning programs, now online learning, which require the delivery of the program by a parent.
[3] The gist of the Complaints is that children are statutorily required under the School Act to receive an educational program but if the child receives that program from a parent, the child receives less student funding than if that child attends a Board or Authority run educational program. The Complaints allege that this unequal funding has a discriminatory effect on both parents and children who choose to homeschool based on family status, marital status, gender expression, religion and sex.
[5]….. The Ministry’s main argument is that the Complaints seek a service that the Ministry does not provide to the public: “a direct funding program for parents who opt-out of the public or independent K-12 school system and homeschool their children.”
[25] The Ministry argues that the Complaints are seeking direct payments from the Ministry in order to provide educational programs and this is not a service the Ministry provides. It is not a service customarily available to the public. The Ministry says that while they do provide funding for education, it does not do so to the “public” but via Boards and Authorities in accordance with the relevant legislation. Those Boards and Authorities then provide services to the public as per the School Act and Independent School Act.
Some interesting key points in the analysis related to funding is:
[32] When the Legislature passes legislation, it is not providing a service to the public within the meaning of s. 8 of the Code :Phillips v. BC, 2019 BCHRT 76 at para. 14; Startek v. British Columbia (Ministry of Finance) 2022 BCHRT 117 at paras. 28-29. The issue whether the Complaints engage a service customarily available to the public turns on whether the Ministry is administering a service created by the applicable legislation, the School Act and Independent School Act, to which the Complainants are merely seeking access.
[34] The Complaints are focused on the Ministry’s omission of equal funding to, as Ms. Ward says, “the primary education service providers – parents”. In my view, the Ministry in creating its funding model abides by and is restricted by ss.106.1-106.4 of the School Act. [2] There is no provision in the School Act or the Independent School Act for the funding of educational programs provided by parents. The Ministry’s job is simply to apply the legislated criteria.The Complainants are not eligible for the funds that they seek because the Legislature has not included such funding in either the School Act or Independent School Act .
[35] The applicable legislation has not created or extended a service to the Complainants. The Legislature has specifically left out funding of educational programs provided by parents. The Tribunal in this situation cannot review the Ministry’s actions since the Legislature in creating the restrictions on funding, maintaining the limitation to fund only educational programs for Boards and Authorities, was operating in its sui generis law-making capacity. There is no reasonable prospect the Complainants will prove that the funding for parent-directed educational programs is a service provided by the Ministry within the meaning of the Code.
[45] In Moore v. British Columbia (Education), 2012 SCC 61, the Supreme Court of Canada found that the province’s role in funding and overseeing education in the province was not sufficient to establish liability for decisions made by a school district about how to allocate its funding: para. 54. This reasoning is also reflected in Tribunal decisions dismissing complaints against organizations whose only role is funding or oversight:Hoffman and another v. BC Ministry of Social Development) and another , 2012 BCHRT 187 at para. 94; Hunter v. BC (Ministry of Health) and others (No. 2) , 2005 BCHRT 408 at paras. 24-26; Stone v. Coast Mountain Bus Company & others , 2005 BCHRT 50 at paras. 47-48.
[48] The Ministry’s application to dismiss the Complaints is granted.
