Currently with the case path pilot at the BC Human Rights Tribunal, the possibility for the respondents to submit a dismissal application comes after an unresolved settlement meeting. If the parties can resolve the issues, the complaint carries on and document disclosure comes next, and then a dismissal application. The BC HRT is reviewing this process now to decide if they will continue with it.
A recent tribunal decision has revealed some very important and helpful information for parents.
This is from the case
P (by KD) v. Board of Education of School District No. 61 (Greater Victoria) and another, 2025 BCHRT 62
Here is some helpful information to know about dismissal applications.
[17] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority , 2021 BCSC 2176 at para. 20 ; SEPQA v. Canadian Human Rights Commission , [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 [ Hill ] at para. 27
.
If we are going to allege that the school district didn’t follow the IEP, we are going to need to be specific!
Because if you are not, the tribunal will conclude that you have not taken your allegations out the realm of conjecture.
[24] I am not persuaded that P has taken the allegation that the School District did not follow her IEP out of the realm of conjecture. She has not specified what elements of her IEP were not followed during the 2019/2020 school year.
[29] Based on the information before me, I am satisfied that there is no reasonable prospect that P will prove the School District failed to follow her IEP. As mentioned above, P has not said how the School District failed to follow her IEP. I cannot base my decision on speculation: Chan . Accordingly, I dismiss this allegation in the complaint.
- You need to be specific
- You need to provide documented evidence
This is why documenting is SO IMPORTANT
I have blogs written on this topic. Please see the legal blog page to access them.
When the respondents write a dismissal application part of their defense is going to be a justification of the school districts behaviour. Here is their test, and what they will have to convince the tribunal.
[35] To establish a justification defence, the School District would have to prove that: (1) they adopted the standard for a purpose rationally connected to the education of school-age children registered in the district who are “anticipated to be absent from school for extended periods of time”, (2) they 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 their duty to accommodate P to the point of undue hardship: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin Grievance) , [1999] 3 SCR 3 [ Meiorin ] at para. 54
; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 [ Grismer ] at para. 20.
This is also important to know when analysing your own case,
[43] I am satisfied based on the information before me that the Tribunal could reasonably conclude that the School District knew, or ought to have known, that P’s request for at-home instruction was at least in part a request for accommodation for her disabilities. The law is clear that the School District has an obligation to accommodate students to the point of undue hardship. At the same time, P was not entitled to perfect accommodation, but a reasonable one: Central Okanagan School District No. 23 v. Renaud , [1992] 2 SCR 970 [ Renaud ]. P also has an obligation to participate in the accommodation process: Renaud at p. 994‐995. What is reasonable and what constitutes undue hardship is fact specific and will turn on the specific circumstances of a particular case: Renaud .
You need to provide enough evidence for the tribunal to come to this conclusion:
[52] Nevertheless, the issue of whether P needed one-to-one EA support goes to the heart of whether she experienced adverse treatment by the School District when they did not provide this support. I am satisfied based on P’s statements of her experience that she has taken this allegation out of the realm of conjecture. I find this issue must be resolved through a full hearing where evidence can be tested, expert evidence can be called, and witnesses can be cross-examined. Accordingly, I decline to dismiss this allegation at this time.
It is REALLY REALLY important, that if you are responding to a dismissal application, that you read as many dismissals in education as possible.
They are VERY informative.
My new goal is to collect as many dismissal application education cases as possible and create a list. Right now this is a work in progress.