We have a new Human Rights Decision issued in October but was just posted on their website on December 12th, 2024.
Ward and others v. Ministry of Education, 2024 BCHRT 306
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 Code by 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.