Tag: #Discrimination

Daycare Termination and Disability

RE: New Human Rights Case linked to daycare and termination of daycare services due to a perceived disability.

Since we all have most likely struggled with daycare issues at some point, I am posting this case.

It is a very interesting case. A situation that parents find themselves trapped in way too often.

The child hasn’t been diagnosed yet.

They suspect he might have ADHD/Autism. Their daycare terminated services.

The mother is self-representing.

This is a dismissal application.

She won.

Her case is continuing to a hearing/mediation meeting.

[1] In September 2020, at the age of two, the Child began attending the Daycare. On around October 22, 2020, the Daycare informed the Child’s parents that it would no longer provide childcare services to the Child. Services ended one month later, around November 20, 2020. The Mother brings this complaint on behalf of the Child. The complaint alleges the Daycare discriminated against the Child when it terminated its services because it perceived him to have a mental disability and because he is a Jehovah Witness, contrary to s. 8 of the Human Rights Code [Code] which prohibits discrimination in services.

[2] The Daycare denies discriminating. It states it terminated services to the Child in accordance with its “Childcare Discharge Policy” because the Daycare was unable to provide the Child with the level of care he required, and not for any reasons related to a real or perceived mental disability or to his religion. The Daycare also says that even if the Child’s perceived mental disability was a factor in the termination, it was justified in ending the childcare service it provided to the Child because the Child engaged in harmful and aggressive behaviour that put the safety of other children at risk. It asks the Tribunal for an order dismissing the complaint against it under s. 27(1)(c).

[3] The issues I must decide are:

a. whether there is no reasonable prospect the Child will succeed in proving the Daycare perceived him to have a disability and, if so, whether the perceived disability factored into the termination of services;

b. if so whether the Daycare is reasonably certain to prove it was justified in its decision to terminate services; and

c. whether there is no reasonable prospect the Child will succeed in proving his religion factored into the termination of services.

[4] For the following reasons, I deny the application. 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. I make no findings of fact.

**** This makes me wonder about education settings. Can the school just perceive them to have a disability?

Can they be protected under the Code without a diagnosis yet?

We also have another case where the teenager was bullied due to sexual orientation and he won his case, even though he is heterosexual. It didn’t matter. He was treated and bullied as if he belonged to the protected group.
Jubran v. Board of Trustees, 2002 BCHRT 10 (CanLII)
For summary and key highlights https://www.speakingupbc.com/bullying/

These two cases are examples of a perceived disability/protected ground. There is room here for these to be used in an argument in an educational setting. Whether the tribunal will accept it or not is another question.



Here is the full decision with all of the details.

https://www.bchrt.bc.ca/…/decisions/recent/2024-bchrt-251/

Documenting the Harm

You are feeling helpless.

Out of control.

Wondering what you can say to convince educational staff to not give up on your kid….

The complete desperation, I remember that feeling. I see you and I hear you.

You aren’t sleeping and you are spending hours staring at your ceiling wondering if an answer will present itself.

I will tell you something very very important.

You. need. to. document. the. harm.

All of it.

And not just the harm to your children. You too! Did you lose a promotion? Lose an educational opportunity? Did you quit your job? Have to leave school?

This is going to feel weird.

This is going to feel like you are stepping beyond the boundaries of normal family life. Yup and yup. You are going to feel that your child’s privacy is being violated. Yup. I get the heartache. Totally.

Documenting the harm that your child is experiencing from the education system can be one of the most powerful forms of advocacy, that a parent can gather.

Here is why.

You need evidence to be undeniable.

You need evidence so that you are not dismissed.

Human Rights.

A very important test of human rights complaints and Charter challenges is proving that you or your child is being disadvantaged (harm) because of their disability.

Without evidence, the human rights tribunal will state that your allegations are nothing but conjecture. And will dismiss your case. Done.

Dadmand v. School District No. 36 (Surrey), 2011 BCHRT 323

IN THE MATTER OF THE HUMAN RIGHTS CODE

R.S.B.C. 1996, c. 210 

[16] That provision creates a gate-keeping function that permits the Tribunal to conduct preliminary assessments of human rights complaints with a view to removing those that do not warrant the time and expense of a hearing. It is a discretionary exercise that does not require factual findings. Instead, a Tribunal member assesses the evidence presented by the parties with a view to determining if there is no reasonable prospect the complaint will succeed. The threshold is low. The complainant must only show the evidence takes the case out of the realm of conjecture.

You need admissible evidence. Period.

Without it, the district will be confident that you will not complete your obligation in the legal test of proving discrimination.

This is about the harm that has already occurred. Not something that you anticipate for the future. Something that has occurred in the PAST, and that you have evidence for.

So…… what proof/evidence do you need?

These are things I would think about?

Videos/Pictures/Witnesses/Doctors visits/Counselling visits, etc.

  • Is our child losing sleep? Are they eating less? (Keep a log)
  • Are they writing or drawing out their feelings? Keep their creative expressions.
  • Did you need to increase anxiety medication?
  • Are they requiring counselling? (Note: Government-free counselling will not testify as it is a conflict of interest and the school district knows that)
  • What are you witnessing at home? Log details of everything and take videos.
  • Are they refusing to leave their bed?
  • Are they refusing school? Document the days and for how long. Match it up with attendance on their report cards.
  • Are they self-harming?
  • If you are seeing any mental health responses describe the behaviour as if an alien is watching… what are they doing? For example, they are rolling in bed picking skin off of their right leg and smearing blood on the wall. (Did you take pictures of the blood?) Describe everything from a clinical perspective. I know this is hard, but you need to do it.
  • Are you filming them melting down after school? You can hide the camera.
  • Keep their school work with their grades on the pages
  • Keep all the report cards, suspension reports and emails

From the Human Rights Tribunal

******

What is evidence?

Evidence can be:

  • oral testimony: a witness answers questions in person, or over a speaker phone if the member agrees
  • documents: documents, such as pay stubs or letters, are given to the tribunal member by a witness and are marked as an exhibit at the hearing
  • things: sometimes witnesses give the tribunal member other things such as photographs – just about anything that helps prove your case – these things may also be marked as an exhibit at the hearing
  • affidavits or other statements: a witness’ evidence can be given to the tribunal in writing – this can be a statement such as a letter, or a statement made under oath or solemn affirmation called an affidavit
  • expert evidence: evidence from an expert that may be oral testimony, an affidavit, or a written report

What evidence will the tribunal accept?

The tribunal can accept almost any evidence that is relevant, which means that it relates to the complaint or to the response to the complaint.

http://www.bchrt.bc.ca/law-library/guides-info-sheets/guides/getting-ready.htm

******

You get the idea, depending on the child, the list is endless.

As parents, we know what we know, but we need to prove it. Otherwise, our allegations are essentially worthless.

I actually don’t believe that school staff truly understand the harm that is happening to children and families. We don’t all live in the same world. They don’t see what we see.

This is why, we MUST document the harm in order to tell our kids stories.

Even if we feel that nothing will happen. You never know what years down the line will bring.

Keep the evidence.

The opportunity may present itself in the future to speak your child’s truth.

The Underground World of Human Rights Complaints in Education

By systemic design, human rights complaints in education are underground. A hidden world, away from prying eyes and transparent investigation. This is not for privacy and confidentiality.

  1. Back in the day, with focused education-reporters, this article was written about the expense of lawyers fees for Harris and Co. Vancouver Sun – School districts and the money spent on Harris & Co. What is NOT mentioned in this article is that the money for Harris & Co. also covers human rights complaints filed by parents on behalf of their children.
  2. On the Harris & Co. website, they list the services they offer to school districts. What is explicitly missing, is that they defend human rights complaints, both by employees and by parents. The words “human rights” are missing. Search the database of the Human Rights Tribunal, you will see the cases with the names of the lawyers that link back to their law firm.
  3. On the Human Rights Tribunal website, find me where parents can get information about discrimination related to education services? Last year, I emailed them informing that information specific to education is badly needed. I received no response. No updates on the website have been made. I have had to do my own research and write blogs like this: Understanding the Duty to Accommodate, Why is documentation so important, and create a Human Rights Tribunal and an Education Law page to help other parents understand their rights. I am asking this honestly, for anyone reading this, please send me any links that you can on human rights and education in BC. I’d love to know where this information is posted. If you want to find info on human rights in BC in education the only place to look is case law. So I created my case page. (Which actually should be updated with all of my newest finds.) I swear, I need 26 hours in a day.
  4. Meanwhile in Ontario the Human Rights Tribunal has a Special Education Tribunal, and an Ombudsperson branch focused on Education. Don’t even get me started talking about the Teacher’s Regulation Branch here in BC. That’s a whole other story still in progress.
  5. The Ministry of Education doesn’t even track human rights complaints. Evidence – the state of human rights complaints in BC. No one is even paying attention to all of this. No oversight. Nothing. No monitoring. No accountability. Yup. Read that again.
  6. We already know that the obvious form of exclusion happens from BCEd’s exclusion tracker. We rarely see articles about education human rights complaints in the news. Surrey School District. Parents need to “out” their child. Data with anonymity specific to education isn’t available. Discrimination in school systems is so wide spread. It’s just been accepted as part of the daily fabric of how the education system functions and parents are left to advocate, taking up the responsibility on their own.

So this underground hidden world exists…

Interesting…

Anyone care to take a guess as to why????

I have a couple interesting theories. None that I can write out on social media.

Interesting to note:

  1. Education human rights cases tend to be very long and complex. Weeks long.
  2. The human rights tribunal is already an overwhelmed system as it is. 3-5 years is the current estimate start to end time.
  3. According to the HRT annual report only 1% of complaints make it to a hearing, and if you are unrepresented against lawyers only 20% win their cases. Without hearings happening in education, we don’t have enough case law in education around discrimination.
  4. Parents are quoted &120,000.00 in lawyers frees for a 5 day hearing for lawyer representation. If you win, the settlement offers are small fractions of your legal fees.
  5. Pro-bono lawyers, once you get a settlement offer, wont agree to take your case to a hearing. Or good luck finding one who will.
  6. There is a turn of the tide happening right now. The latest human rights hearing list, has three cases in education, all in the same month.

It is a hidden underground world.

You want a concrete example of what systemic oppression looks like…well…here it is folks!

Oh and fun fact, this system isn’t changing anytime soon.

Where is the outrage?

Oh, that’s underground too.

You see, at Harris & Co. they do explicitly list “defamation issues including defamation on social media” as part of their services.

Lucky us.