Hewko v. B.C., 2006 BCSC 1638 (CanLII)
This case highlights the schools responsibility to consult with parents and for them to be included in the accommodation process.
From the case:
Duty to Consult
[342] The relevant statutory provisions with respect to a School District’s obligation to consult with parents and students are found in the School Act, and in particular, ss. 4 and 7.
[343] Section 4 of the School Act provides that: “A student is entitled to consult with a teacher, principal, vice principal or director of instruction with regard to that student’s educational program”.
[344] Section 7(1) of the Act provides that:
A parent of a student of school age attending a school is entitled
(a) to be informed, in accordance with the orders of the minister, of the student’s attendance, behaviour and progress in school,
(b) on request, to the school plan for the school and the accountability contract of the school district, and
(c) to belong to a parent’s advisory council established under section 8.
[345] Section 7(2) affords the parent the right to consult with school staff regarding their child’s educational program:
A parent of a student of school age attending a school may, and at the request of a teacher, principal, vice principal or director of instruction must, consult with the teacher, principal, vice principal or director of instruction with respect to the student’s education.
[346] The Individual Education Plan Order and the Mandate for the School System adopted by B.C. Order-in-Council 1280 (August 30, 1989), also require that the parents of special needs students be afforded the opportunity to be consulted about the nature of their children’s education. Pursuant to s. 4 of the Individual Education Plan Order, school boards are required to consult with the parents of special-needs students about the content of the individual education plan for each student. It provides:
Where a board is required to provide an IEP for a student under this order, the board…must offer a parent of the student…the opportunity to be consulted about the preparation of the IEP.
[347] The Mandate for the School System reiterates that parents have the right and responsibility to participate in the process of determining the educational goals, policies and services provided for their children. Teachers have the responsibility to ensure that each student is provided with quality instruction, permitted to participate in all normal school activities and to monitor the behaviour and progress of each learner in accordance with provincial and local policies.
[361] It is possible to summarize some very general principles which inform or provide content to the duty to consult from the above cases.
1. Before any decision is made regarding the placement of a child within the school system and the persons who will have the responsibility to implement an IEP, the parents must be consulted.
2. The depth of consultation and the concomitant obligations for the parties to accommodate the requirements of the other will vary with the known need of a child’s requirement for a modified curriculum.
3. All necessary information in regard to either parties’ position on a proper placement and IEP must be provided in a timely way so that each will have an opportunity to express their interests and concerns and sufficient time to ensure that their representations are seriously considered and wherever possible demonstrably integrated into the proposed plan.
4. Each party to consultation has an obligation to provide timely information and an obligation to make whatever accommodations are necessary to effect an educational program which is in the best interests of the child.
5. In coming up with a placement and an IEP for a child with autism or Autism Spectrum Disorder, Dr. Foxx’s opinion as set out below should be regarded as the most significant underlying principle for meaningful consultation “the program will not work unless everybody sign on to it. And the reason they sign on to it is because it’s a program that makes absolute sense to all parties. It has to be designed as a win-win for everyone so that all the parties understand.”
6. The parents of a special needs child do not have a veto over placement or the IEP. Meaningful consultation does not require agreement by either side – it does require that the school district maintain the right to decide after meaningful consultation.
7. The bottom-line requirement for each side in a meaningful consultation is to be able to demonstrate that the proposal put forward can produce instructional control of the child.