Tag: BC Education

Knowing our Rights!! Woohoo!

Ok, so I did want to acknowledge the grief part of being forced into heavy advocacy with law and policy. For those needing that acknowledgement you can read my previous blog Knowing our Rights. The path usually starts off that way, but it doesn’t need to stay that way.

For this blog, we are jumping from grief to acceptance to celebration.

There are many people who have been positively impacted personally from being originally forced into advocacy. They then find out there is something about this that drives them, fills them, and they enjoy helping other people.

I am one of those lucky people.

Some people have become teachers, EAs, OTs, social justice advocates, non-profit professionals, become school Trustees, entered politics, etc, etc, and have gone back to school to start a new career because of their experience.

I consider myself to be one of those positively impacted people, as I have found a career I absolutely love. Out of something that started out very horrible. Like throwing up horrible, never sleeping again in my life, horrible.

I am a health care and human rights legal advocate for people who are extremely vulnerable in society. My clients are among the most marginalized, traumatized, and oppressed people in society. I navigate all of the external complaint systems and work on policy systemic work with teams of dedicated advocates and lawyers. I LOVE IT.

I never ever would have gone back to school and ended up in the profession I am in now if it wasn’t for the shit I had to wade through due to advocating for my kids in the education system. It unlocked something already deep inside me that never had a chance to come out. I love law and policy. I find it fascinating. The social justice and direct client support I do, I absolutely love.

My silver lining.

Some people find out that they actually do love all of this law and policy stuff. That’s right up their alley. That they are actually really good at advocating. Some people have started their own businesses in education advocacy or volunteer to help out others. Some people are really moving and shaking up the system.

Sometimes, we have new, wonderful people enter our lives because of our advocacy. Sometimes, we get to contribute to our communities in ways we never imagined. Sometimes, not all parts are bad. OR at least stay bad.

Knowing our rights is empowering.

Helping other people is a precious part of life. Something to be celebrated.

And thanks everyone for reading my blog series about the Duty to Accommodate. The number of people reading the blogs this summer was intense. Hope some of you enjoyed it!

Knowing our rights!! Woohoo!!

Knowing our Rights

I wrote a blog years ago about the non-death loss that parents of disabled children experience.

From that blog.

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“Do you find out about the reality of public education or do you live in blissful ignorance? If you have a child with a disability, you don’t get a choice. It’s made for you.

I was a secretary at a couple of schools and it was amazing to me, how many parents of non-disabled children didn’t even know the name of their child’s teacher. Seriously.

I on other hand, can recite school legislation, explain the difference between Ministry of Education policy and the Human Rights Code, and define the loopholes in a variety of external complaint processes.

This isn’t what I thought it was going to be like. 

This is a loss that needs to be validated. The loss of innocence.”

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Being ignorant to law and policy isn’t a choice. It’s not a topic that we can read about if we have the time or find it enjoyable to learn about. It’s a must. To be able to advocate for our kids and hold the school system accountable. To give our children what they are legally entitled to have, an equitable education, we need to educate ourselves, whether we like it or not. We need to learn how to advocate, research, and practice our skills. We need to be constantly learning. It’s another profession forced on us, not by choice, but survival.

There is grief to that.

We don’t have the privilege of being blissfully not aware of our rights. Assuming that society will just naturally take care of us. Marginalized communities need to be aware. Be aware of a whole host of things. Law, policy, and how to advocate are key parts. We need to know our rights.

So, have a good cry. Scream into your pillow.

And thanks everyone for reading my blog series about the Duty to Accommodate. The number of people reading the blogs this summer was intense.

I see you all.

Showing up.

Whether you like law or not.

Current Process of a Human Rights Complaint

There can be a variation in how your complaint proceeds depending on all sorts of factors. It won’t necessarily be the exact same for everyone.

Here are the RULES for any part of the complaint.

The tribunal has the power to change these rules.

Rule 2 – Tribunal Powers
(1) The tribunal may exercise any power under these rules at the request of a participant or on its own initiative.


(2) The tribunal may waive or vary these rules and may shorten or lengthen any time limits in these rules, as it considers appropriate in the circumstances.

Here are the steps in the process and some good-to-know info:

  1. Submit a complaint. (They will not inform the school that the complaint is being processed.)

You then WAIT – length depending if you filed an application for fast tracking. You can apply for fast-tracking if you have specific reasons at any point in your process.

Even after just submitting your complaint, some people send demand letters at this point. This of course, will be situation specific. When cases are clearly discriminatory or if you are not asking for money and just specific accommodations, those are accepted more easily.

Some people do not want to inform their school for their own reasons, and some like to inform their school. I suggest that there are a lot of strategic reasons to inform them that you have done this. More on this below. I feel it offers a certain level of protection for many reasons. One reason is that they aren’t allowed to retaliate against you or your child for filing a complaint. But, each person’s situation is different, and you need to do what is most comfortable for you and your family.

2. The complaint decision will arrive by email.

Accepted – both you and the respondents will be informed

Declined – only you will be informed

If the complaint is accepted, the respondents will now have a due date to submit a response to your complaint to you and the tribunal via email.

3. Settlement meeting. They are now automatically being set up and you will be informed of the date when you receive the complaint decision.

Settlement meetings can be requested at any time as you move through the process. This won’t be your own shot. Both parties need to agree. Also, at any time, you can submit to the respondents a settlement offer on paper. You just need to put “Without prejudice” at the top of your email. Here is one article of many on how to write without prejudice settlement offers.

There are also different types of mediation options. I highly encourage you to read about those.

IF IT WAS NOT SETTLED, it continues.

4. Document Disclosure

This is when you make a list of all of the emails and documents of evidence you have. You send the tribunal and the respondents the list. You send your evidence to the respondents. They will send you their list and documents as well.

You can file applications to remove redactions and apply for documents they haven’t handed over that you feel are relevant to your case. Even if you have gone through OIPC, ask again. The HRT has more power to get you documents.

When you are filing applications or possibly facing a dismissal decision, every decision the tribunal responds to could possibly turn into a public decision, but there is no guarantee.

I have noticed that if the decision advances the human rights code, or is helpful for public knowledge and learning and transparency, they are more likely to post it. But there is no guarantee.

You may also want to consider if you should be amending your complaint at all.
You may want to add additional elements after going through all of your documents, or after consulting with the BC Human Rights Clinic or Disability Alliance. If you are adding smaller details, it’s called adding “particulars”. If you are changing the scope of the complaint (adding new allegations), then that will lead to a decision from the tribunal for them to be accepted or not.

5. Case path decision from the tribunal. Then the tribunal will decide if they will allow the respondents to submit a dismissal application or you will have hearing dates booked.

There are a lot of reasons why they can apply to dismiss your case. If you go on the dismissal form 7.2 you will see the list on page 2 of 6.

They can file a dismissal application by offering you a reasonable settlement. If there is nothing novel about your case, the tribunal may force you to accept their offer by dismissing your case if you don’t accept it.

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Pattinson v. University of Northern British Columbia (No. 4), 2025 BCHRT 57

[3]               The University made a with prejudice offer to Mr. Pattinson to resolve the complaint. Mr. Pattinson did not accept the offer. The University applies to dismiss the complaint on the basis that it would not further the purposes of the Code to proceed with a hearing in circumstances where it made a reasonable settlement offer.

[4]               Mr. Pattinson opposes the dismissal application and disputes that the University’s offer is reasonable.

[5]               For the following reasons, I grant the application and dismiss the complaint. I find the University’s settlement offer is reasonable and it would not further the purposes of the Code to proceed. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.

Notable paragraphs in the case to understand this process more in-depth, I encourage you to read paragraphs 22-24, 27, 36, 38, 56, 59.

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You will need to explain the tribunal and convince them that your case is novel and is in the public interest for the resources and time to be used up by the tribunal for your case to go to a hearing.

For people who actually want to take their case to a hearing, *** TIP: If they don’t think you will actually take your case to a hearing, they may think that you’ll fold before the hearing and not worry about you. If you actually do want to take your case to a hearing, you are going to want them to underestimate you. Don’t let them worry about you. This option will only be available to them 4 months before the hearing. Once you get past this deadline, you are in the clear. Lawyers ALWAYS underestimate parents. They may not do this if they think the tribunal won’t grant the dismissal. If there is something novel or hearing-worthy about your case, then they may not even try. However, you can still fight this and wait for a decision from the tribunal. You will still be able to accept their offer after you get a decision from the tribunal. So you never know, it may be worth it to reject their offer, fight it and see if you can get a public decision out of it, and you’ll still get the offer anyway.

7. Case Management Meeting between the tribunal member, the respondents and yourself about your hearing. Mediation will be offered again to see if you and the district can resolve it. These meetings happen about a month or so before your hearing.

If you don’t want a hearing, this is another opportunity to settle. Depends on how much hardball you want to play.

**Case management meetings can happen at other times, and you can also ask for a case management meeting too.

8. Hearing.

After the hearing is done, most often people submit closing arguments by written submission. You’ll be writing out your final argument on paper. I highly suggest as you move through the hearing that you take notes as you move along, of argument ideas that you are going to want to summarize in your argument. You will have weeks to complete this. 4 weeks is possible. It won’t be a panic rush or anything.

And then wait for the decision – maybe at least 6 months, depending on the complexity of the case

9. Decision arrives by email. You will be informed the day before to let you know that it is coming the next day.

Navigating the human rights tribunal is kind of like a choose-your-own-adventure. It totally depends on what your complaint is about, what YOU want to do with it and how far you want it to go, and the purpose behind you filing the complaint. It all depends.

For advice and help in writing up a complaint, please book a consultation appointment with BC Human Rights Clinic and Disability Alliance. Parents have found these consultation periods very helpful. Send them a draft of your complaint, and you can get great advice.

For some more tips that I can post publicly, see here.

Co-parenting with the Government

The topic of the right to religious freedom has come up a lot. This is outside of my lane of disability writing, but I am surprised by how many parents contact me about this issue, so here is a blog on it.

I want to offer two cases that I think are very important.

E.T. v. Hamilton-Wenworth District School Board, 2017 ONCA 893

This is a case about a parent who didn’t agree with sex education, etc, being taught in school and felt it was in conflict with their right to religious freedom.

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[40]      E.T. cannot, by virtue of his religious beliefs, insist that a non-denominational public school board restructure its inclusive and integrated program, designed to meet its statutory objective of ensuring a respectful and accepting climate for all children, so that he can ensure that his own children are not exposed to any views that he does not accept. Nor do I accept E.T.’s suggestion that the Board could or should ensure that discussion of matters such as sexual orientation and gender identity are discussed purely as matters of fact rather than as matters of “value judgment”. The Board has a statutory mandate to provide an inclusive and tolerant educational environment, one that respects the principles of equality enshrined in s. 15 of the Charter. Equality, inclusivity and acceptance of difference are values, not facts, and it is unrealistic to expect teachers to provide a learning environment that is truly welcoming to all students in a value-free manner.

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So what brought on this decision?

Here was the parents request:

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[2]         The appellant advised the Board that his religious beliefs require him to shelter his children from what his religion regards as “false teachings”. He provided the Board with a standard form list of topics that included matters such as “moral relativism”, “environmental worship”, “instruction in sex education”, and “discussion or portrayals of homosexual/bisexual conduct and relationships and/or transgenderism as natural, healthy or acceptable”. He asked the Board to provide him with advance notice of any classroom instruction or discussion of these issues so that he could decide whether or not to withdraw his children from those classes or activities.

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This was the Boards response to his request.

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[3]         The Board offered to exempt the appellant’s children from the “Healthy Living” strand in the elementary program, which is offered as a discrete part of the curriculum and involves education on human development and sexual health. However, the Board explained to the appellant that its Equity Policy aims to provide an integrated secular and respectful learning environment that does not discriminate against any child. The Board’s program aims to promote a positive and inclusive environment that accepts all pupils, including those of any sexual orientation, gender identity and gender expression. The Board advised E.T. that, given the integrated nature of its program and the generality of the items on his list, it was neither practical nor possible to comply with his request for prior notification of any time one of the items on his list would arise for discussion in the classroom. The Board also expressed the concern that if E.T.’s children were required to leave the classroom every time one of these topics came up for discussion, the Board’s policy of providing an inclusive and non-discriminatory program would be undermined.

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The reality is that when we send our children to a public school, we are co-parenting with the government. And the government has the final say. If you want 100% control over your child’s education, don’t send them to a public school. Education is a government service that is for all children, and the government and society have goals for the next generation. If equality and inclusivity conflict with your religious beliefs, you file a human rights complaint against a public school citing religion as your protected ground, you will probably get it dismissed. Schools are legislated to provide an inclusive and tolerant learning environment.

“The Board has a statutory mandate to provide an inclusive and tolerant educational environment, one that respects the principles of equality enshrined in s. 15 of the Charter.”

I also give you this case

Chamberlain v. Surrey School District No. 36, 2002 SCC 86

This is a case about parents’ religious objections to 2SLGBTQIA+ storybooks. The school board’s decision was not to approve books for use in kindergarten and grade 1 for fear of the parents’ religious concerns.

The court overturned the board’s decision because it conflicted with the statutory obligation that public schools have in British Columbia to separate religion from state affairs.  

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“The B.C. School Act confers on the Minister of Education the power to approve basic educational resource materials to be used in teaching the curriculum in public schools, and confers on school boards the authority to approve supplementary educational resource material, subject to Ministerial direction.  A Kindergarten‑Grade One (“K‑1″) teacher asked the Surrey School Board to approve three books as supplementary learning resources, for use in teaching the family life education curriculum.  The books depicted families in which both parents were either women or men — same‑sex parented families.  The Board passed a resolution declining to approve the books.  The Board’s overarching concern, as found by the trial judge, was that the books would engender controversy in light of some parents’ religious objections to the morality of same‑sex relationships.  The Board also felt that children at the K‑1 level should not be exposed to ideas that might conflict with the beliefs of their parents; that children of this age were too young to learn about same‑sex parented families; and that the material was not necessary to achieve the learning outcomes in the curriculum.”

The Result:

“The Board’s decision is unreasonable because the process through which it was made took the Board outside its mandate under the School Act.  First, the Board violated the principles of secularism and tolerance in s. 76 of the Act.  Instead of proceeding on the basis of respect for all types of families, the Board proceeded on an exclusionary philosophy, acting on the concern of certain parents about the morality of same‑sex relationships, without considering the interest of same‑sex parented families and the children who belong to them in receiving equal recognition and respect in the school system.  Second, the Board departed from its own regulation with respect to how decisions on supplementary resources should be made, which required it to consider the relevance of the proposed material to curriculum objectives and the needs of children of same‑sex parented families.  Third, the Board applied the wrong criteria.  It failed to consider the curriculum’s goal that children at the K‑1 level be able to discuss their family models, and that all children be made aware of the diversity of family models in our society.  Instead, the Board applied a criterion of necessity, which was inconsistent with the function of supplementary resources in enriching children’s experience through the use of extra materials of local relevance.  The Board erred in relying on concerns about cognitive dissonance and age‑appropriateness which were foreclosed by the curriculum in this case.” 

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Our society needs to stay the course and fight for an inclusive and equitable society for all people and especially for marginalized groups with deep historical roots in oppression. Public schools are essential in socializing the next generation towards inclusion.

On October 13th 2025 The Tyee posted an article written by Ximena Gonzalez titled: “Inside the Right-Wing Attack on Alberta’s Public Education: MAGA’s Project 2025 has become a blueprint for undermining Canada’s schools in the name of profit and privilege.“

If anyone has come across other cases that they feel are important to this topic, or are newer, I would love it if you could email me and let me know what they are.

kimbpath @ gmail.com

What is Rights-Based Advocacy?

This is my personal understanding and definition of rights-based advocacy. I would answer that question by saying,

“Rights-based advocacy is when you advocate through the lens of the human rights code, use various legal authorities and policies to support your advocacy, and are communicating to the school your child’s unmet disability-related needs. We then advocate for the school to remove the barriers our child is experiencing so they can access an equitable education.” 

For this blog, I am going to focus on the second part.  

Rights-based advocacy doesn’t just include policy and law, but we need to be able to communicate to the school that our child has disability-related needs, and that they are experiencing barriers.

Now, the bottom line is that this isn’t really our responsibility to figure this stuff out. It’s actually the schools, and this responsibility is connected to multiple human rights decisions.

However, teachers aren’t trained in every disability and every combination of disabilities, and we know our kids. This is the collaboration part of the accommodation part. They have a duty to consult with us. We can contribute and assist them in creating an effective IEP by helping them identify our children’s disability-related needs and help focus their thinking on being able to identify barriers so they can make a plan on how to remove them.  

People don’t naturally think in this way, so this is a skill we need to learn as well and help our kids’ teachers to think this way too.

The system needs a lot of work, but it’s not going to overhaul itself tomorrow. Today we aren’t living in our dream education fantasy land, we are living in a chronically underfunded resource constrained system with high rates of burn out.  So given the cards that we have been delt, what is the best we can do in this situation to support our children in school?

Whatever situation our child is struggling with in school we need to ask ourselves some questions.

  1. Is there an unmet disability-need here? (They could be experiencing all sorts of unmet needs, It may not be necessarily connected to their disability)
  2. If it is connected to their disability, what is the unmet need?
  3. What is the barrier preventing this unmet need being met?

Now let’s apply this to an example.

Ryan has ADHD. Ryan tends to be more distracted, moving around a lot at the end of the day, and is engaging in social behaviours that other students in the class don’t like. He is taking their pencils and erasers and hiding them, and is saying things (teasing/taunting) that evokes a reaction from them that is negative. This is consistent every day.

When the teacher relays this information to the parent, they think about it and later send an email to the school with their thoughts.

The parent first wonders what the disability-related needs could be related to this situation. People with ADHD need more movement, do better with creative hand on tasks, and struggle sitting. It can be physically painful for them to sit. Their bodies will force them to move. People with ADHD do very well on tasks they are interested in and it is extremely difficult to focus on tasks you have no interest in. They also can require more mental stimulation. Kids with ADHD also have higher relationship needs and connecting with their teacher so they can learn will be more important to them.

They think about these disability related needs and wonder how much movement Ryan is getting during the day, and why they are struggling more so in the afternoon. Their curiosity is that they are wondering if Ryan has been sitting to much during the day and is getting restless and bored with too much pen to paper work. Ryan is then doing things that they find are more mentally stimulating and creating drama in the class is more interesting than doing schoolwork.

Typical classrooms don’t fit the needs of a lot of kids with ADHD. The barrier could be a personal physical barrier – that he is forced to sit too long. The next barriers could be informational or communication – he may not understand the assignments or it fit how he processes information. Classroom teacher management could be the barrier – he finds the teacher too strict and after listening to this all day his more anxious and so he is distracting himself with other things.  It could be he is not interested in what he is working on, and his education isn’t hands on enough and too much pen to paperwork. It could be a relational barrier – he isn’t connected to his teacher and thinks his teacher doesn’t like him so he disconnects more at the end of the day wanting to leave and wish he wasn’t there. It could be an attitudinal barrier or teacher philosophy barrier – that they value pen to paper work over other ways of learning. It could be many barriers. It’s hard for us to know what the barriers are because we are not in school. So this is where communicating with our child’s teacher is going to be very important and to bring up the idea of barriers and trying to brainstorm together what the possible barriers could be.

Could creating more scheduled movement breaks during the day, replacing some of the written assignments with more hands on creative projects that are led by him decrease some of the behavoiurs we don’t want to see and improve his focus to help him last all day? Could the teacher making an effort to check-in with him more often during the day help with building the relationship?

We won’t really know what will work or what won’t work until we try it. We know our kids, but we don’t know what they are like in an education setting 5-days a week when we aren’t in the room and they are on their own. The environment they navigate in school to survive the day and home is completely different.

Even being aware of all of our child’s potential disability-related needs will most likely require us to do quite a bit of research and really know and understand our child’s disability. And then we need to consider their unique personality traits and who they are as people. Disabilities don’t present themselves exactly the same in every person. Disability is also fluid and what a person has capacity for on one day wont necessarily be consistent for all days. No wonder everyone is confused and accessibility can be a struggle.

The more we are informed, the more we can effectively advocate for our child.

For more information on types of barriers and accessibility law, please read my blog Barriers, Barriers, Barriers.

Welcome!

Hello, my name is Kim Block. I have 2 websites.

The one that you are visiting now is called Speaking up BC. My second one is called P.A.T.H – Parent. Advocacy. Tribunal. Help.

On this website (Speaking Up BC), my focus is on school and disability advocacy. The process of advocacy. The philosophy behind advocacy. Community advocacy. Systems. This website is my mic on a stage. (I will still be blogging about education law, human rights decisions, and all of the tools in our toolbox here. The blog lives on!)

My P.A.T.H wesite is all about how to navigate external complaint systems and information about education law. I also offer consultation services. We use external complaint systems as a toolbox within our advocacy, and education law as our tools. Filing external complaints can also bring about systemic change. So these two areas do go hand-in-hand. This website is my toolbox where I get to work. It’s where the action happens.

For those who have been following my journey, you will notice that pages and information from this website have been moved to my P.A.T.H website to create a clearer distinction between the topics.

Part 6 – Summer Series, Duty to Accommodate – Pulling it all together

The duty to accommodate is a collaborative process where everyone needs to work together to come up with a reasonable accommodation plan.

The accommodations don’t need to be perfect or ideal, just enough of “a ramp” to make accessing education equitable. And not a ramp that goes halfway up the stairs. The accommodations need to remove barriers – level the playing field and make it accessible. We aren’t looking for equal treatment, but equitable treatment.

1. What are the child’s disability-related needs?

    2. What are the barriers the child is experiencing? (Physical, technology, communication, attitudinal, etc)

    3. What are reasonable accommodations that will remove the barriers?

    These are rights-based questions.

    Summary

    Power of the Human Rights Code

    The Human Rights Code is very powerful. Our most powerful form of advocacy. It is the law above all laws. It supersedes all of other laws, Ministry policy, IEP policy, designation standards, administrative procedures, teacher autonomy, when in conflict.

    Students don’t need a designation or an IEP to be protected by the Human Rights Code and get accommodations for their disability related needs.

    ANYTIME the schools give you a reason for denying your child an accommodation, or are not protecting them from bullying, or they use policy in a way that you think is harmful to your child…. in steps the discrimination test.

    Parents are protected too, and can file a complaint under family status and the discrimination test applies to them.

    Discrimination Test

    1. Does your kid have a disability?
    2. Were they harmed
    3. Is the harm linked to their disability?

    Yes + Yes + Yes = Discrimination

    Impact is the focus. The harm your child has experienced. Not intent. They don’t need to intend to discriminate in order for their actions to create discrimination.

    The code protects students with disabilities and even perceived disability.

    Reasonable Justification Test

    Schools may be able to justify the reasonable accommodations your child is offered, or maybe not. It is going to be very context-specific to your situation.

    The school will use arguments to justify their behaviour that could include hindsight, safety, collaborative process (they are trying in good faith – not lack of resource related), reasonable accommodation, lack of resources or staffing, blame your child for not self-advocating enough etc. Whether these arguments are grounded in any truth, that is another question. Just because they have arguments doesn’t mean they are strong arguments or that they have evidence to back up what they are saying. We aren’t the only ones who need evidence.

    We need to always be communicating the harm that we are witnessing and how that harm is related to their disability.

    Meaningful Inquiry

    We need to disclose with documentation (ideally) to the school to protect our kids with the Human Rights Code and the Duty to Accommodate process.

    Once the disclosure is communicated to the school, they are now locked in and required to provide our children with a quality, equitable access to an education.

    We don’t need to use the word “accommodation” in order to trigger an investigation. We need to communicate that our child is struggling or experiencing harm due to “disability-related” needs.

    The school has the responsibility to investigate, figure out what the barriers are, and address them.

    The responsibility of bringing forward their accommodation needs does not fall on the shoulders of the student.

    We need to keep communicating and telling the school the harm we are witnessing and are aware of, and how this is connected to their disability. That’s our job. That’s how we engage the duty to inquire (Meaningful inquiry) that will start off the duty to accommodate.

    Emailing our concerns is creating that document trail that we need.

    Duty-to-consult

    You have lots of written authority to back up your right and your child’s right to be consulted on decisions that impact the quality and their participation in their education.

    Parents don’t have the final decision-making say, but before a decision is made, parents must be consulted. There should be enough time given to ensure parents can express their concerns and for them to be considered. That time will vary depending on the needs of the student.

    Duty-to-facilitate

    Schools have the final decision, and if we don’t facilitate that then we can have our human rights complaint dismissed. We may be seen as unreasonable.

    However, if their plans for reasonable accommodations don’t work, they have to keep on reviewing and adapting. They can’t give up. That will require us to keep collaboratively working with them, and documenting and communicating the harm.

    Final Message:

    My series about the duty to accommodate provides you the legal framework and rights-based content so that you have the information you need to ground your advocacy in written authority.

    The how-to fish in all of this is using the discrimination test. That is our sword. We need to disclose our child’s disability with evidence and continually communicate any disability-related harm that we are aware of. That is the magical HOW formula.

    What I am witnessing is that families who use human rights language in their advocacy emails are experiencing more success than families who are not.

    It doesn’t need to be about quoting case law, but even using language like these words can create more appropriate responses from schools.

    Language example:

    disability-related need

    equitable education

    removing barriers

    accessing their education

    accommodation

    consult/collaboration

    harm

    If you hit resistance, you have case law and the Human Rights Code to draw from. We are just asking for schools to follow the law. Some parents are nervous about using rights-based language. Pleasently persistent as an advocacy style can still use rights-based language. You can still have collaborative relationships with staff and use rights-based language. Collaboration is a KEY part of the accommodation process. Using rights-based language and advocacy through a human rights lens does not mean you are fighting anyone. You are simply enacting your child’s rights.

    Our children’s legal rights in education come from human rights case law. These cases were brought forward by parents. Parents wanting to change the system so that other kids don’t experience what their children did.

    In order for these cases to work their magic, they need to be applied. Law can sit there collecting dust if nobody does anything with it. It needs to be applied. You need to use it. We can change the system by all of us advocating through a human rights lens.

    The pen is your sword….well, email. 😉

    or speech-to-text

    or ChatGPT to help write emails

    You’ve got this! 🙌🙌🙌🙌

    Part 5 – Summer Series, Duty to Accommodate – Duty to Facilitate

    To review, we have completed our foundational work. We know the power of the Human Rights Code. We understand the 3-part question for the discrimination test, and the reasonable justification test. We started in on the action part of the Duty to Accommodate with meaningful inquiry, and the duty-to-consult, and now we are the final stage the duty to facilitate.

    The duty to accommodate is a collaborative process. The school district must consult with us and seriously consider our concerns, but the School Act gives them the power to make the final decision. Whether we like it or not.

    Having hard conversations is still collaborating. Respectful disagreement is still collaborating.

    Collaborating in good faith means you need to be honest, genuine, without trying to deceive, take advantage. It’s just really about having the best intentions from everyone when all engage in consultation, for the best interest of the child. When it comes to conversations, I offer you this excellent blog by The Canary Collective: From Power to Partnership: Changing how we talk to families.

    We can have respectful conversations and advocate fiercely at the exact same time. It’s not one or the other. Both parties have the expectation to collaborate in good faith as part of the accommodation process. At the same time, our advocacy conduct cannot be used against our child to deny them an equitable education.

    “Fierce advocacy” is even supported in case law.

    👇👇👇👇

    ********

    L.B. v. Toronto District School Board, 2015 HRTO 1622

    [77]        The Interim Decision sets out my reasons for issuing an order with respect to the first two points, as follows:

    (a)      School boards have an obligation under the Code to accommodate their students with disabilities to the point of undue hardship, regardless of whether the students are receiving any medical treatment in the community or not;

    (b)      School boards cannot order or demand of parents to place their children into residential psychiatric treatment programs and cannot deny or withhold accommodations to the point of undue hardship on the grounds that the student should be in such a program. While I have no evidence to show that this was the case here, that does not alter the principle;

    (c)      School boards have an obligation under the Education Act to provide appropriate special education placements, programs and services to their exceptional students. Parental conduct or lack of parental authority cannot be used as a justification for not meeting an exceptional student’s needs; and

    (d)      I agree with the decision in R.B. v. Keewatin-Patricia District School Board, (R.B./Keewatin) 2013 HRTO 1436, an HRTO decision cited by both parties in this case, at para 265, that a parent’s “fierce advocacy” for his or her child must not and cannot prevent a school board from accommodating the child’s needs to the point of undue hardship.

    *********

    So whether we fulfill our duty to work in collaboration with the school district the bottom line is that they are still required to meet an exceptional student’s needs. They cannot use our conduct against our child to not fulfill their duties to provide an equitable education.

    However…..

    Keeping that in mind, if we want to file a human rights complaint without at least giving their reasonable accommodation suggestions a chance, we will likely have our complaint dismissed. So our advocating or lack of can’t be held against our child, but if we don’t accept a reasonable accommodation, that can be. 👇👇👇👇

    *********

    A and B obo Infant A v. School District C (No. 5), 2018 BCHRT 25 (CanLII)

    [248]      The School District is not the only party with obligations in the accommodation process. Rather, the parents were obliged, as the Child’s representatives, to work towards facilitating an appropriate accommodation: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. If the School District initiated a reasonable proposal that would, if implemented, accommodate the Child, then the Parents were obliged to facilitate that proposal. Failure to do so is fatal to their complaint of discrimination.

    *********

    One message that has been a running theme in all of my posts is this: 👇👇👇👇

    We need to continually document any harm we are witnessing and email our concerns to the school. We need to connect the harm to any disability-related needs.

    While we do have the duty to facilitate a reasonable accommodation, if that reasonable accommodation doesn’t provide the ramp they think it will, they have the responsibility of continually adapting, reviewing and providing alternatives. They aren’t allowed to give up. 👇👇👇👇

    *********

    X by Y v. Board of Education of School District No. Z, 2024 BCHRT 72

    [120] Ultimately, on a balance of probabilities, I am satisfied that the District discharged its duty to accommodate X in his grade 2 year by reviewing the Diagnosis Report, developing an IEP, making various support people and strategies available that were incorporated into the classroom and outside, reviewing progress and changes, and adapting its approach in response……

    ********

    I want to pause here and mention independent schools. Public schools AND independent schools are still held to the same obligations under the Human Rights Code to provide a quality, equitable education.

    Independent schools may have a much easier time reaching the bar for the undue hardship test. If they don’t have the staff, resources, or money to meet the needs of your child, they may have a defence. Private schools are very different than public schools. They interview students and parents, many times, with parents providing reference letters. They can deny anyone they like. They don’t like the shoes you wear; they can deny you. They don’t have the funds that public schools do. Independent schools are very bold and confident when they deny kids entry and when they kick them out. Really, the best thing I can recommend parents is to consult with a lawyer. It will be VERY context dependent. Parents of private schools do file complaints against private schools and they do get settlements. It’s really up to you how much you want to test the system and push the line. Lots of kids when they become “too much” are getting kicked out. It’s heartbreaking for many families and kids as public school failed, and this was their hope. The only thing I can recommend to families is to consult with a lawyer and get the best legal advice you can get. Fast track your complaint; otherwise, waiting over a year to get a complaint to get accepted isn’t going to do your kid any good. Some parents send demand letters, but it is mostly for settlement and not to get them reinstated in the school. I highly suggest you consult with human rights lawyers if you want to fight it.

    Key Takeaways

    Schools have the final decision and if we don’t facilitate that then we can have our human rights complaint dismissed. We may be seen as unreasonable.

    However, if their plans for reasonable accommodations don’t work, they have to keep on reviewing and adapting. They can’t give up. That will require us to keep collaboratively working with them, and documenting and communicating the harm.

    Next Blog

    We are at the end.

    Next week’s post is pulling everything together and a final heartfelt message.

    Part 4 – Summer Series – Duty to Accommodate – Duty to Consult

    We are plowing through the duty to accommodate. We know how powerful the human rights code is, and we understand the discrimination test and the reasonable justification test. We have looked at the first part of the duty to accommodate and how we trigger meaningful inquiry. Now we are moving to the next step – duty to consult.

    How the duty to consult (meaningful consultation) is defined in education came from a human rights case decision. For some people, they would really like meaningful consultation to be more defined, but it is going to be different for every student. One student may only need a 30-minute IEP meeting. Another student may need multiple IEP meetings. IEPs are also living documents that can be updated and adapted at any time of the year. You don’t need to wait for IEP season to come around in the fall to meet with the school team. Some schools have been sending out notices that say each parent gets a 30-minute IEP meeting. Or, they aren’t even getting a meeting. The staff are meeting and they are sending home the IEPs and getting parents to offer feedback on the already created IEP through email.

    We all understand that schools are under constraints.

    BUT

    It doesn’t matter.

    The human rights code prevails. And meaningful consultation is attached to human rights case law. Meaningful consultation will trump a 30-minute restriction on an IEP meeting. If you think that you haven’t been consulted on items and the IEP is incomplete or your child needs accommodations that they aren’t receiving, you have the Human Rights Code behind you. At the bare minimum, they need to consult with you. It needs to be “meaningful”.

    So, now let’s dive in and, as always, we start by looking at the written authority. There is a lot of it backing up the ability to consult with the school.

    👇👇👇👇

    ********

    Hewko v. B.C., 2006 BCSC 1638 (CanLII)

    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”.

    [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.

    ********

    So, to start us off, we have the School Act. This is a law. The Ministry wants school districts to be consulting with students and parents.

    Also, note that students are entitled to consultation too. So if they are receiving a suspension and your child didn’t get a chance to explain their side of the story before the decision was made, you can take this section of the School Act and request a meeting, or it can be part of the Section 11 appeal you file.

    Ok, let’s continue on because we have a lot more written authority that backs up the duty to consult. 👇👇👇👇

    *********

    [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.

    **********

    So, where the School Act is a law, we have now moved on to orders by the Ministry. And this is all from the same human rights case that I listed above.

    Now we get into the details of what all of this means. This is also from the same case.

    **********

    [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.

    *********

    Lots of stuff from here. Parents don’t have the final decision-making say, but before a decision is made, parents must be consulted. There should be enough time given to ensure parents can express their concerns and for them to be considered. That time will vary depending on the needs of the student.

    The British Columbia Council of Administrators in Inclusive Education put out a whole guide on meaningful consultation.

    So if you run into any issues with the school not consulting with you, you have this guide from the administrator organization, Ministry orders and school law and what trumps and enforces all of that is the duty to consult in this human rights decision. In theory, no one should be having ANY issues with consultation.

    Which means…. if schools are ignoring you… and I know this happens. You have everything you need to take your issues to the person who is above them. Administrators absolutely should not ignore your emails. Especially when you are outlining your concerns and highlighting how they are connected to your child’s disability-related needs. That is a HUGE no-no. The meaningful inquiry process should be triggered, and the exploration of possible accommodations, if necessary, should begin, which will need to include you for consultation.

    Many school districts on their website have documents related to consultation. The Ministry of Education’s document on Inclusive Education has the word “consult” in the document 73 times. With the extent of written documentation on consultation, clearly, no parent should be getting the silent treatment.

    Key Takeaways

    You have lots of written authority to back up your right and your child’s right to be consulted on decisions that impact the quality and their participation in their education.

    Parents don’t have the final decision-making say, but before a decision is made, parents must be consulted. There should be enough time given to ensure parents can express their concerns and for them to be considered. That time will vary depending on the needs of the student.

    Next Blog

    We will be wrapping up the ACTION parts of the duty to accommodate with the duty to facilitate and some other key items around school responsibilities, and then the final blog will be pulling it all together with a final message.

    We are almost at the end!

    Part 3 – Summer Series – Duty to Accommodate – Meaningful Inquiry

    We have completed our foundational work. We know the power of the Human Rights Code. We understand the 3-part question for the discrimination test, and the reasonable justification test. Now we are focusing on the action part of the Duty to Accommodate.

    How do we trigger the Duty to Accommodate?

    We disclose our child’s disability. That is the on button.

    That means by submitting documentation. This locks the school district in without any wiggle room. If that documentation isn’t possible, we want to send the disclosure to the school via email. The school needs to be aware that they are on a waitlist, or receiving professional supports for their disability, or that you suspect that they have a disability and you would like further testing, etc.

    I know there are different mixed feelings about this. Some people don’t like that disclosure is necessary, but to legally protect yourself, it is essential.

    Here is why disclosure is necessary.

    Duty to inquire.

    For example, I will use employment as an example. This is just an example for example’s sake. Let’s say you start arriving late at work every morning and your employer fires you for your lateness. If they knew that you had a disability, they would have a duty to inquire to see if your disability was related to your lateness. If you said yes, then they would need to offer you accommodations. Maybe a flexible work schedule, or working from home in the morning, etc. But, if you don’t disclose and they fire you and you come back and say it’s discrimination because your lateness is connected to your disability, they are off the hook. They didn’t know. They didn’t have the duty to inquire. By not disclosing, you aren’t locking them into certain obligations. I offer this blog from the BC Human Rights Clinic.

    Do schools have a duty to inquire?

    Yes! And it has been referred to as meaningful inquiry.

    Let’s start with the written authority. 👇👇👇👇

    Student (by Parent) v. School District, 2023 BCHRT 237

    [75]           The “duty to inquire” is a human rights obligation which arises where the student is facing some adverse impact in their education – ie. discipline, poor grades, lack of meaningful access – and the school is aware, or ought reasonably to be aware, that a student’s disability may be a factor in that impact: eg. Martin v. Carter Chevrolet Oldsmobile, 2001 BCHRT 37 at para. 29; Aydogmus v. York University, 2021 HRTO 176 at para. 59. The purpose of this inquiry is to identify and remove disability-related barriers to a successful education, likely through the process of accommodation. 

    So we have the school being aware of harm connected to a students disability, and the point of the “inquiry” is to identify AND remove barriers that are “disability-related” through the accommodation process.

    Lovely.

    This kicks off the accommodation process. We have our foot in the door by identifying the school disability-related harm.

    Also pointed out in this case, as by now we all know:

    [89]          …………the respondent is not responsible to accommodate disability-related needs that it was not aware of or could not reasonably have been aware of.

    Something important to note here, too, is that when we are expressing our kids’ struggles:

    [96]           On balance, I am not persuaded that the District’s response to the situation after April 24, 2019, was a reasonable one. The Parent had brought forward relevant facts of the Student’s diagnoses and the toll that school was taking on her. I do not accept that the onus was entirely on the Parent or Student to utter the magic word of “accommodation” before the school took steps to explore the reasons that the Student’s mental health was being so impacted by school. Nor do I accept that the simple fact that a 13-year-old child with anxiety says they are “fine” is enough to end a school’s obligations. At this point, the school had enough information to understand that something at school was adversely impacting the Student in connection with her disabilities, and it was in the best position to investigate the causes. If it felt it needed more information from the Parent or the Student, it could have and should have asked. Again, the goal is to ensure that the Student is afforded equitable access to an education.

    We don’t need to specifically say: Can my child have accommodations? The school should be identifying this and the school needs to ask us for more information so that they can do their job in giving our kids an equitable access to an education. Bottom line, they need to fulfill their obligations to the student as they are responsible for providing the service.

    Ok, so now let’s move into meaningful inquiry and how this case locked in the duty to inquire in an education setting.

    [99]           Next, in B v. School District, 2019 BCHRT 170, the evidence supported that the school district provided the child with the recommended supports and accommodations. The Tribunal found that it was “only with hindsight” that it was possible to say that the child could have benefited from more support: para. 81. It dismissed the complaint in part because there was insufficient evidence to demonstrate that the school district reasonably ought to have known that the child required more: para. 98. In contrast here, I have found that the District had sufficient information to trigger some kind of inquiry or response beyond asking the Student how she was doing and, assuming the counsellor did this, advising of available supports.

    [100]      In short, I agree with the District that the Parent and Student were obliged to bring forward information relating to accommodation. The Parent did that, when she communicated that the Student had anxiety and trichotillomania and that school was taking a significant toll on her physical and mental health. That information should have been enough to prompt a meaningful inquiry by the school to identify what was triggering the Student’s symptoms and what supports or accommodations may be appropriate to ensure she was able to meaningfully and equitably access her education. The failure to take that step was, in my view, not reasonable. As a result, the disability-related impacts on the Student, arising from conditions in her Language 10 class between April 24 and June 27, 2019, have not been justified and violate s. 8 of the Human Rights Code.

    [104]      In sum, I have found that the conditions in the Student’s grade 8 Language 10 class exacerbated the Student’s anxiety and trichotillomania, and that the District failed to take reasonable steps to investigate and address those conditions during the period between April 24, 2019, and June 27, 2019 (the last day of school). I find this is a violation of s. 8 of the Human Rights Code, and warrants a remedy, which I address below.

    It is on the school to INVESTIGATE and address the conditions.

    They can’t just accept that they are witnessing students struggling. They need to be actively investigating to figure out what the barriers are (not parents’ responsibilities to identify these as we aren’t in school with our kids) it is them that need to investigate, figure out the barriers and address them.

    We express disability-related harm that our kids are experiencing in school and we are now engaged in the duty to accommodate.

    Kids are not responsible for bringing forward their own accommodation needs.

    [90]           Generally, it is the obligation of the person seeking accommodation to bring forward the relevant facts: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. This can be challenging for children, and especially challenging for children with invisible disabilities. I agree with the Parent that children who require accommodation in their school are in a different situation than adults seeking accommodation. Though they have a role to play in the process, that role will be age and ability-specific, and the burden cannot be on a child to identify and bring forward the facts necessary for their accommodation.

    Key Takeaways

    Step One: We need to disclose with documentation (ideally) to the school to protect our kids with the Human Rights Code and the Duty to Accommodate process.

    Once the disclosure is communicated to the school, they are now locked in and required to provide our children with a quality, equitable access to an education. It’s all about removing barriers so our kids get an equal playing field. They get a chance, an opportunity, at success just like anyone else.

    We don’t need to use the word “accommodation” in order to trigger an investigation. We need to communicate that our child is struggling or experiencing harm due to “disability-related” needs.

    The school has the responsibility to investigate, figure out what the barriers are, and address them.

    The responsibility of bringing forward their accommodation needs does not fall on the shoulders of the student.

    We need to keep communicating and telling the school the harm we are witnessing and are aware of, and how this is connected to their disability. That’s our job. That’s how we engage the duty to inquire (Meaningful inquiry) that will start off the duty to accommodate.

    Emailing our concerns is creating that document trail that we need.

    Next Blog

    We are now into the next part of the process, the duty to consult (meaningful consultation)