Tag: #HumanRights

“You Can Run on Anger”

“Anger is a motivator

You can’t run on anything else

You can run on anger

It doesn’t need to be fed

It doesn’t need to sleep…

You want to get something done,

Get good and angry“

–Into the Fire (Netflix, Sept, 2024)

This is what a mother is saying during the intro of a Netflix series. It’s about her daughter who went missing and she is saying her daughter’s case was never investigated. She said she was going to find her daughter. If she had to walk God’s green earth, she would do it. She was talking about how before all this happened, she never even knew how to use a computer. She unravelled the mystery.

It’s interesting to me all of the skills we learn and how fast we are willing to step into the unknown when it’s for our kids.

One common thing that I think parents who file human rights complaints all have in common, on some varying levels, is anger.

A violation has occurred.

A trust violation.

We run on anger.

Anger truly is a motivator. Embrace it. It will be the gas in your gas tank.

Anger is like trying to tame a wild beast. Riding a bull. You need to focus it. Get real good. Find an outlet. Like a release valve. But focus that energy. Don’t focus that energy onto people. Channel that anger into MOVEMENT and LEARNING. It needs to flow. It can’t stay buried. It will fester. Breathe in. Breathe out. Learning breathing in, movement breathing out.

People accomplish things they never dreamed they could do. Make it work FOR you.

I love the quote, “Action is the antidote to despair” – Activist Joan Baez

The failing education system is a brewing pot of angry parents. The number of human rights complaints is increasing. (The financial costs of human rights complaints in public education). Is the Ministry of Education and Child Care paying attention yet? The scarcity in education is breathing the oxygen into the fire.

Trust me.

You can run on anger.

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/

Let’s Talk about Hindsight!

How is hindsight an important issue to understand in education?

Well, if anyone is going to claim that their child is experiencing discrimination and go through the human rights tribunal process, a defence the school could use is “hindsight” .


Student by Parent v. School District BCHRT 237
[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.

They will claim “We didn’t know.”

So you know what that means.

Parent(s)/guardians need to be VERY communicative with the school and be telling them that:

  1. Your child is struggling.
  2. Their struggle is connected to school.
  3. How their child is struggling.
  4. How this struggle is connected to their disability.

So, we just need to be emailing constantly.

Whether they respond to those emails is another blog. But we have to have evidence that they were VERY aware and they can’t claim they didn’t know.

By communicating our child is struggling we will trigger MEANINGFUL INQUIRY.

It is very

very

very

very important that we are communicating with them.

Schools are increasingly not wanting to put communication in emails and instead, they are wanting phone calls or meetings.

But that doesn’t stop us from sending emails and creating a paper trail and documenting what is happening.

So send those emails. cc: lots of people.

Again.

Again.

and again.

It doesn’t matter what they do or say.

Regardless. Just keep sending those emails and creating that paper trail.

Regarding documentation. Click the blog Why is Documentation so Important?

Barriers! Barriers! Barriers!

When we discuss equity, accessibility the human rights code and accessibility legislation it is ALLLL about removing barriers.

Therefore when we advocate for our kids, any advocacy grounded in rights-based advocacy is going to focus on barriers.

1. Human Rights Code

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

    Not all negative experiences are discrimination.

    [110] ….I accept that these incidents which X relayed to Y were upsetting to X. I appreciate that the interactions may have fed into X’s general feelings of unease at school, but the fact alone that these events may have happened is not enough, in itself, to establish that X’s disability factored into them. Not all negative experiences are discrimination. Even accepting that these incidents occurred, I did not hear evidence that could establish, on a balance of probabilities, that X’s disability was a factor in the conduct of the adults involved in these interactions.

    The test, is whether barriers have been reasonably removed.

    [142] Y has said that the learning support provided throughout X’s education has not been enough for X to “reach the same level as his peers or possibly excel”. The District’s obligation is reasonable not perfect accommodation. As I have said above, reasonable accommodation is not necessarily measured by whether a student is meeting or exceeding certain standardized learning goals but rather by whether barriers have been removed to provide meaningful access to education.

    2. Also, accessibility legislation THE ACCESSIBLE BC ACT

    Barriers

    2   (1)For the purposes of this Act, a barrier is anything that hinders the full and equal participation in society of a person with an impairment.

    (2)For certainty and without limiting subsection (1), barriers can be

    (a)caused by environments, attitudes, practices, policies, information, communications or technologies, and

    (b)affected by intersecting forms of discrimination.

    So…… what are barriers?



    As outlined from the Onatario’s Unviersity Accessibility Campus (2017) There are 5 Barriers

    Attitudinal Barriers – are behaviours, perceptions and assumptions that discriminate against persons with disabilities. These barriers often emerge from a lack of understanding, which can lead people to ignore, to judge, or have misconceptions about a person with a disability.

    Organizational or systemic barriers are policies, procedures or practices that unfairly discriminate and can prevent individuals from participating fully in a situation. Organizational or systemic barriers are often put into place unintentionally.

    Architectural or physical barriers are elements of buildings or outdoor spaces that create barriers to persons with disabilities. These barriers relate to elements such as the design of a building’s stairs or doorways, the layout of rooms, or the width of halls and sidewalks.

    Information or communications barriers occur when sensory disabilities, such as hearing, seeing or learning disabilities, have not been considered. These barriers relate to both the sending and receiving of information.

    Technological barriers occur when a device or technological platform is not accessible to its intended audience and cannot be used with an assistive device. Technology can enhance the user experience, but it can also create unintentional barriers for some users. Technological barriers are often related to information and communications barriers.

    Communicating with the school

    When communicating your communiation with the school it is the responsbility of the school to investigate what the barriers are. And to figure out how to remove them. Then they need to monitor, and adapt until the barriers are removed.

    You need to express to the school your child is struggling and how they are struggling. Communiating what you are seeing and dealing with and what your concerns are, is key to trigger this inquiry.

    Their investigation responsibilities is connected to “Meaningful Inquiry”.
    Student (by Parent) v. School District, 2023 BCHRT 237
    Summary of the Case with key highlights

    [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.

    Their responsibiliy to monitor and adapt
    Summary of Case with key highlights

    [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……

    Accommodations are ramps, open doorways, open windows, bridges and all other symbolic connections you can think of that all mean the same thing. It’s a way to level the playing field and provide a child with the same opportunity as anyone else. To remove a barrier. To give someone a chance. To not create more obstacles in their path than anyone else.

    Welcome to a New School Year

    Parents tend to be excited that the school year is starting. Commercials poke fun at the idea of tired parents excited to send their kids back to school. Do we all remember that Staples commercial with the Christmas music playing “the most wonderful time of the year”, parents beaming, collecting school supplies? I do.

    Preparing for another school year, for parents of kids with disabilities is different. Mixed emotions. Fear is one of them. We know we may be facing the verbal minefield of navigating conversations with district administration and processing the non-death loss over and over again when we feel that school hasn’t turned out the way we thought it would.

    We have had to make peace and accept we have become people, we never thought we would be, all in the name of advocating for our children, as we felt pushed to “jump the shark”.

    We try to “get ready” mentally…emotionally, for the upcoming year. Always wondering when the next issue or incident is going to appear.

    The education system is not designed to support inclusion. All those involved are set up to fail. It’s a hit-and-miss situation. Some kids experience it, and some don’t. For the teachers who are in the fight, standing along side of us, but are muzzled by the system to not speak out. We know you are there. We feel you.

    These are the cards we have been dealt.

    So what do we do with it?

    Human rights advocacy is our strongest form of advocacy. It has the strongest teeth. The parents who have navigated through the system have made personal sacrifices to bring these decisions to fruition.

    By using case law, hopefully, a parent(s)/guardian will not need to enter the system to begin with.

    The Human Rights Code and the Duty to Accommodate is both our shield and our sword. Understanding the school’s role and responsibilities and our role and responsibilities is key.

    Duty to Accommodate
    Understanding Exclusion

    School are required to remove barriers and continually monitor students and adapt. Never giving up. Always trying to remove the barriers. They need to investigate what those barriers are, if we tell them our child is struggling.

    We have some hope on the horizon.

    The BC’s Office of the Human Rights Commissioner has started a campaign called Rights in focus: Lived realities in BC

    Education inequalities is highlighted as the #2 issue. To read more about the education section you can read the report. Raising these issues and making them public will not mean that our issues will go away. Changes in human systems are painfully slow. And while we wait….harm is being done. But this is what is required to create social change. We need to do the slow consistent work of changing hearts and minds. And while we do this heavy lifting, we are weathered by it. But every little step we make and every little advancement all adds up. The little things do matter. They matter immensely. The little things are actually what leads to change. All of us. Lifting at once.

    There are clearly financial costs to human rights complaints in education in BC. There are also financial costs that go beyond just the lawyer’s fees and settlements for society at large. There are social, societal and human costs too. Raising awareness of these issues is step one. I am very excited that these inequity issues are being highlighted by the Commissoner’s Office.

    We need to get loud.

    Doing this by ourselves is exhausting. This is why having a support system, network, and having organizations elevate our voices is exactly what we need.

    To all of the fellow parents out there, getting ready for another school system….I feel like we need a group hug.

    “May the odds be ever in your favor” – The Hunger Games.

    The Financial Cost of Human Rights Complaints in Public Education

    (25 month period)

    Freedom of Information Request – Ministry of Finance

    This is for human rights complaints in public schools only. We aren’t even including private schools.

    Settlement fees – $252,000
    Legal fees – $1,088,772.33

    The average settlement for the 16 claims is $15,000.00

    To read the full FOI results click below.

    https://drive.google.com/file/d/1ywz1rDQd1syFH_AbRT03koOVVsJnBtND/view?usp=sharing

    I did a separate FOI request back in 2022 for 10 years.

    From 2012-2022 almost 4.5 million in 10 years.

    Almost $7,000,000.00 since 2012.

    And the costs are rising.

    Welcoming P.A.T.H. (Parent. Advocacy. Tribunal. Help)

    This summer I am deep into writing workshops to start up P.A.T.H in the fall.

    P.A.T.H is a part-time passion of mine, where I will provide workshops. These topics are for navigating external complaint systems that are available for parents advocating in the BC K-12 education system here in Canada.

    Many parents feel the same sentiment. We are the main source of accountability in the education system. For that reason, here we are.

    Many parents are spinning in circles trying to advocate for their kids, feeling like they are getting absolutely nowhere. For that reason, here we are.

    These workshops will focus on filing complaints with Ombudsperson BC, Teachers Regulation Branch, Office of the Information and Privacy Commissioner, Ministry of Education, Whistleblower policy, and the Human Rights Tribunal process. For more details on workshop topics you can read my SERVICES page. It’s amazing all of the bits of information that are important to know about when dealing with education issues through these avenues.

    To read about how in the world I landed here, my history, and why I am doing this, read my ABOUT ME page.

    And lastly, it’s important to establish our rules of communication to best protect all of you.

    When navigating these administrative tribunal systems, it is important to keep in mind that anything you say about your issues with your child’s school are called out-of-court statements. These are allegations. They are statements that haven’t been proven to be true….yet. Even though you feel they are true, until they are proven in court or in front of a tribunal and a decision has been made, they are nothing more than allegations. This is important to keep in mind so you can decide who you talk to /or not talk to about your case. We all need social support systems. However, when considering what to post on social media, I encourage you to be thoughtful. There may be eyes on your social media accounts.

    Defamation is something you can be sued over. Here is the legal definition of defamation from the criminal code. Defamation only requires you to say something defamatory to one person. If what you are saying is true, AND that you have evidence for it, it’s not defamation. Here is a great resource on Dial-A-Lawyer on this topic.

    I am not a lawyer. We do not have lawyer-client privilege, which means if you are in the human rights tribunal process, I could potentially be called as a witness at a hearing or our email communications be requested. The best way to protect yourself is to keep yourself really clean and not email me any confidential documents, not tell me any identifying details about your case, and not even use your real name…. you may even want to use/create a non-identifying email address. My commitment is to reduce your risk. Peace of mind is priceless. That is why I have established rules for email communication.

    To read about them, you can click on my contact page.

    I want to be helping out as many parents/guardians as I possibly can, for a long time. These rules are like the walls of the house that will keep this house standing.

    It’s also important to note that legal advice applied to your case and navigating complaint systems are two different things. When it comes to legal advice, you should only be getting legal advice from a lawyer. Anything less, and what may seem like a benefit to you, will actually not benefit you at all.

    In addition to my degrees, I have a certificate as a Family Life Educator and this is the framework in which I will be operating P.A.T.H. That is, I am not the expert of you, your family, your child, or your situation. I offer up lots of information like a Sunday brunch buffet. It is up to you to reflect on your life and decide what you want to put on your plate. Only you will know what is best for you and your family. I just want to help you make the most informed decision and empower you with the knowledge to be able to advocate in ways that address your family’s needs.

    And so, we have P. A. T. H

    As we move into September I’ll be starting the conversation on workshop dates.

    Have a wonderful summer!

    New Education Law Page

    There aren’t many education cases that make it to a hearing through the BC Human Rights Tribunal process. Especially in BC. However, every time they do, they advance the Human Rights Code in Education.

    To the families who pursued their cases, not everyone had a “win” for themselves personally, but our community won. It is because of all of you for having done the hard emotional labour and sometimes at huge financial costs, that our kids have hope.

    Only three of the cases listed on this page received a settlement.

    However, these cases have left a legacy of advocacy tools for parents. These cases are the only advocacy tools that really have “teeth”.

    Click here to read the new Education Law page on my P.A.T.H (Parent. Advocacy. Tribunal. Help) website to read these top cases.

    Large dark green oval, with white letters that read P.A.T.H Parent. Advocacy. Tribunal. Help.

    “Jumping the Shark”

    As I look back on my educational advocacy experience I ask myself…. at what point did I jump the shark? And what was the last straw that made me do it?

    There is a term in show biz called “jumping the shark”. It’s when the TV series, which was doing amazingly well, starts to suck. At what point did the show “jump the shark”?

    I think of jumping the shark in terms of our experience in education, when we realize what we hoped was going well, actually isn’t. When things take a turn. Reality sets in. In terms of advocacy, it is at this point in time we stop being doormats and prioritize being “nice”. (And really, advocating doesn’t mean ripping the skin off people’s faces. We can be respectful, and maintain civility.) Sometimes that means contacting district administration and filing external complaints if necessary. But the days of head nodding are over.

    Parents naturally want a good relationship with their child’s school.

    No parent wants to feel unwelcome. A troublemaker. Causing people discomfort. I never in my life could have predicted our family’s education experience when my children started kindergarten. Never. If someone told me 10 years ago, this is how things would be, I wouldn’t have believed them.

    I am someone who is very sensitive. I know that about my own neurodiversity. If I mentally don’t feel well, I feel it physically. In big ways.

    When I first started filing Teacher Regulation Branch complaints, of which I filed 4 of them at the start, I broke out into stress hives. They were all around my chest and back, ironically where my heart is.

    I never wanted to see the look of dread on someone’s face when I walked into my children’s elementary school.

    I wanted to have a good relationship with people.

    But here is the thing…

    If you lie to me.

    If you gaslight me.

    If you manipulate me.

    If you ignore my emails.

    You are the one who is breaking the good relationship with me first.

    It’s already over. I just haven’t clued into that yet.

    No matter how much discomfort someone feels around me, the bottom line, my kids come first. I struggle with prioritizing the feelings of adults in the schools over my kids. They are adults with resources and skills to regulate their own emotions. Children who are being discriminated against in school can do nothing but endure. They are trapped. Hoping their parents will pull them out of the quicksand.

    At some point, you just have to see things for what they truly are.

    Behind their smiles.

    We need to snap into reality. Prioritize the physical, mental, and emotional safety of our kids, and just “jump the shark”.

    Head nodding days are over. Hello Human Rights Code.

    TRB Complaints = HRT Dismissal? NOPE!!

    We have another fabulous decision from the Human Rights Tribunal.

    Child K (by Ehmke) and another v. Queen of All Saints School and another

    The topics under this decision include:

    1. Anonymization attempt by the respondents
    2. Dismissal attempt – Due to TRB decisions

    The parent, Lee Ehmke who has fought with legal representation has won to be named. She is in a legal battle with the Queen of All Saints School within the Catholic Independent Schools of Vancouver Archdiocese.

    Since she’s working so hard to name these people, let me say it one more time. She is in a human rights battle with the Queen of All Saints School within the Catholic Independent Schools of Vancouver Archdiocese.

    This battle has already gone to the BC Supreme Court when the respondents had a failed attempt through a judicial review to remove her from being the FIRST parent attached under Family Status with her daughter’s human rights complaint. You can read that lovely decision here. Independent School Authority v Parents, 2022 BCSC 570.

    Thanks Lee!! We owe you!!!

    First, let’s get to the point of the human rights complaint.

    Failure to provide a designation and IEP.

    Read that again parents. This is an accepted human rights complaint issue.

    Show of hands….anyone else struggling with this?

    Another student who only got a designation and IEP during the human rights process was in the case Student by Parent v. School District BCHRT 237. And you can read my blog about this case and the subsequent news media attention that spread across Canada.

    Ok, back to this case.

    (37) Child K has a chronic health condition which impacts her ability to do certain tasks in a classroom, including writing. Mrs. Ehmke alleges that, throughout grade 2, her teacher failed to provide necessary classroom accommodations to meet Child K’s disability-related needs. She says that she asked the School to provide Child K with an Individualized Education Plan [IEP], but the School took the position that Child K was not entitled to one because her needs were being met through classroom adaptations. Towards the end of the school year, Mrs. Ehmke asked the School to apply for a Ministry of Education funding designation for Child K. The School declined to pursue a designation at that time. It said that it would address the issue in the fall of 2018, when the applications to the Ministry were due.

    (38) Mrs. Ehmke says that, throughout the year, Child K’s school-related anxiety was escalating because her disability-related needs were not being met. On April 24, 2018, Child K stopped attending School because of that anxiety. She never returned. The following year, Child K enrolled in a public school, where she received a Ministry designation and an IEP.

    Second, anonymization and why the HRT felt they should be publicly named. (Keep this case handy parents if you want your district named. Paragraphs on this topic are 5-34.)

    (7) The Tribunal has discretion to limit publication of identifying information where a person can show their privacy interests outweigh the public interest in full access to the Tribunal’s proceedings: Tribunal Rules of Practice and Procedure [Rules], Rule 5(6); Stein v. British Columbia (Human Rights Tribunal), 2020 BCSC 70 at para. 64(a). The Tribunal may consider factors like the stage of the proceedings, the nature of the allegations, private detail in the complaint, harm to reputation, or any other potential harm: JY at para. 30. It may also consider whether the proposed limitation relates to only a “sliver” of information that minimally impairs the openness of the proceeding: CS v. British Columbia (Workers’ Compensation Appeal Tribunal), 2019 BCCA 406 at para. 37. It is not enough to just assert that a person’s reputation may be tarnished: Stein at para. 64(c).

    (29) I appreciate that naming the School could make it easier for motivated and diligent people to identify the people who were involved in the events of this complaint. In that respect, my order will not perfectly protect the people involved. However, I find that – unlike the individual educators and staff involved – there is a specific public interest in the identity of the School as a publicly funded institution serving the public: A obo B v. School District 61, 2014 BCHRT 105 at para. 11. I am not persuaded that this public interest is outweighed by the potential that some of the educators may then be identified. There have already been a number of complaints and proceedings involving the educators and staff, and Mrs. Ehmke points out that many people within the community already know about the complaint.

    (30) I deny the application to limit publication of the name of the School.

    Thirdly, now let’s look at the whole TRB issue.

    There are parts of what is written here that have made me very happy that this is pointed out. In writing. In a decision. Available on CANLII forever and ever. And if the Ministry of Education is paying attention…which they should be. Poke poke Ministry, pay attention. Your procedural processes with how the TRB department comes to its decisions are in need of closer reflection and examination.

    I’ll say it again, just because I can. This time louder, for the people in the back.

    Your procedural processes with how the TRB department comes to its decisions are in need of closer reflection and examination.

    Ok….you heard that?

    Great.

    Let’s move on to the juicy details.

    (61) In this case, the Commissioner decided to take no further action following his investigation.

    What, pray tell, you may ask….how does such a thing happen… you may ask…. shocking isn’t it… (Insert eye roll).

    (83) I acknowledge, and agree with Mrs. Ehmke, that the process followed by the Commissioner to decide whether to take no further action under s. 52 is less procedurally robust than the process undertaken by a hearing panel adjudicating a complaint after a citation is issued. Various cases have recognized the lower level of procedural fairness required at the initial stages of a disciplinary body’s proceedings: eg. Kuny v. College of Registered Nurses of Manitoba, 2017 MBCA 111 paras. 21-22. The reason that there is a reduced duty of fairness at the preliminary stage is because the stakes are relatively low. The complainant’s legal interest is a right to have their complaint investigated: JN at para. 80. For the educator, a decision not to issue a citation allows them to continue in their profession without restriction: JN at para. 84. It is only at the disciplinary hearing stage that the educators’ right to practice their profession is engaged, and more significant obligations of procedural fairness arise: Kuny at para. 16(3), citing Kane v Bd of Governors of UBC, [1980] 1 SCR 1105 at 1113. This lower level of procedural fairness is reflected in the fact that the participants in the preliminary stage do not have notice 22 of each others’ evidence or arguments, or an opportunity to respond directly to each others’ materials.

    This inability for parents to respond directly to the teacher’s materials allows for all sorts of ridiculousness to happen. The teachers can respond to the complaint, but parents are never allowed to respond to the teachers submissions AND we aren’t even allowed access to read it. Umm…..HELLO. WTF! In Ontario, the Teachers’ college does give a copy of the submission to the parents. But not in BC. (I have an OIPC complaint currently in progress around this denial of access). BUT…. and this is a HUGE BUT. If you are in a human rights process, you can make an application for documents and get access to everything that they submitted. YES. You read that right. It can be….ummm….shall I say….. *cough*…..very eye-opening. I highly suggest it to any parent(s) going through the process. Something you may want to consider. *wink wink*

    Ok, continuing on. By the way I really encourage you all to read the case. All the paragraphs talking about the TRB are 42-117.

    (84) I do not find that the lower level of procedural fairness required at the preliminary stage of the disciplinary proceeding is determinative of whether the Commissioner’s decisions to take no further action were judicial. A process may be judicial even if it does not involve oral evidence, cross-examination, or adversarial argument, or where there are other more robust fact-finding mechanisms available. For example, courts may decide issues by summary judgement or trial, or may strike pleadings without making factual findings. In doing so, there is no question they are exercising a judicial function: see generally discussion in Hryniak v. Mauldin, 2014 SCC 7. Here, the fact that the parties did not have full procedural rights reflects the preliminary stage of the proceeding and not the nature of the exercise. I consider Mrs. Ehmke’s limited role in the proceedings to be a factor more helpfully considered when I turn to whether – as a matter of my discretion – it is fair to apply estoppel.

    My frustration with the process of the TRB and their circular logic can be read on my Professional Conduct Unit page. By the way, this page on my website is ALWAYS in the top 5 pages viewed.

    Another Human Rights Decision that was successful in exposing the harm that happened to a student, but yet had zero action decisions from the TRB was Student by Parent v. School District BCHRT 237. Seriously, how can anyone read this case and not have serious concerns that the TRB’s response was zero. Another parent that would have had a limited role in the proceeding with their “lower level of procedural fairness”.

    Ok…. I am getting off course here.

    I need to bring you back to another important part.

    (112) Finally, I consider the public policy considerations weighing against an estoppel. I recognize that the law requires parties to “put their best foot forward” to establish their allegations when first called upon to do so: Danyluk at para. 18. However, if a person filing a complaint to the TRB understood that their civil and human rights could be determined in the Commissioner’s investigation and decision about whether to issue a citation, it would create an incentive for complainants to “mount a full-scale case” at a stage where such an approach may not be warranted or appropriate within the statutory scheme: Penner at para. 62; Danyluk at para. 73. Alternatively, people may be deterred from filing complaints based on a possibility that their civil and human rights could be determined in a process where they have limited participatory rights: Penner at para. 63.

    Ok. I know this was a lot of reading. Thanks for sticking with me.

    The case decision is 34 pages. It’s long. But it’s a beauty.

    I wish you luck Lee!!

    Oh, and just for kicks. One more time. Just for you Lee. She is in a human rights battle with the Queen of All Saints School within the Catholic Independent Schools of Vancouver Archdiocese.