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:

Anonymization attempt by the respondents
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.

Dear Advocates,

I want to share an important story with you all. I LOVE animal documentaries. Absolutely love them. There is so much information about how life works, by watching and learning from nature. For example, Elephants walk incredible distances, and as they move, they change their environment in major ways. One way is by knocking over and tearing up dead trees that end up falling into waterways. As they do this, there is a fish species that depends on these logs to create nurseries to lay their eggs so they are protected. Without these dead trees in the water, their eggs would be eaten. This fish species is only able to survive because elephants pass through their area.

Every single person in this group who is part of a PAC, or advocacy organization, if you are supporting someone else in their advocacy efforts, if you are working as a professional, or if you are advocating for your own child, we are all elephants. We have no idea the impact our advocacy is making. We are tearing down dead trees, and just like how the elephants have no idea the impact they are having on this fish species….we will actually never know, truly….how deep or helpful to others our advocacy is impacting. (Hint: schools also systematically do things so you feel you are hitting a wall, and they never want you to know how powerful you actually are.)

If you are having a day, a week, or a month, of wondering if you are getting anywhere, or you are wondering if what you are doing is pointless. Always, remember the elephants. Your work is having an impact. Conversations change people. You are making a difference. You are helping other people. You may not see the impact immediately or ever, but everything we all do builds. It’s the little things that matter. Keep going elephants. The school year is almost coming to an end.

NEW DECISION – Tribunal Declares: Parents of Disabled Children are NOT Important to Public Interest

Here is a blog post that is a must-read!!

“In a decision on a timeliness application, Parent v School District 2024 BCHRT 113, the tribunal confirms that parents can file a complaint under family status in connection with their child’s human rights discrimination case. I encourage you to read the decision in full.

They say this is not unique and cite Independent School Authority v. Parent, 2022 BCSC 570 as evidence that this has been confirmed before. The timeliness application was not rejected because the school doesn’t owe “a service” to the parents, as originally stated in a human rights complaint decision, which rejected parents being connected under family status in Habetler obo Habetler v. Sooke School District and B.C. (Ministry of Education), 2008 BCHRT 85

When you represent your child in a human rights complaint, any money received during a settlement or from a hearing decision will go directly to them. If you have any financial losses due to your child’s exclusion or emotional harm, then you have also experienced an adverse effect. So, parent(s)/guardians, you can submit a complaint just for you. This is BIG news. It hasn’t been tested at a hearing yet, but your complaint will be considered. It’s confirmed. It’s so possible the tribunal doesn’t even consider it unique. This absolutely needs to be done within the one year or it will not be accepted because…. And hold onto your hats, we are now moving into the shocking part of this decision.

Brace yourself.

The tribunal has declared with this decision, that parents who experience harm connected to their employment because of the discrimination their disabled child experienced at school, is not in the public interest to address this.”

To read the FULL Blog click below.

NEW DECISION – Tribunal Declares: Parents of Disabled Children are Not Important to Public Interest

What really bothers me is that society seems to think it is ok to not have inclusive child care and education and just expect women to exit the workforce and give up their careers to be full-time caregivers and not get paid for that.

I’d like to know if a parent can file a human rights complaint under family status regardless whether their child’s situation would be deemed discrimination or not, but its discrimination to them.

Do they have a protected characteristic?
– Yes. Family Status, Sex. (Child has a disability)
Did they experience an adverse effect?
– Yes. They had to quit school / work / emotional harm (high stress, etc)
Is their adverse effect connected to their protected characteristic?
– Yes. Their child is on reduced hours, or for other reasons of their own children being discriminated against, they left their work or school.

Now all we need is a parent who is willing to test the system….

ADHD, Dyslexia, Dysgraphia – Human Rights Education Case

This is a new case that was posted on the BC Human Rights Tribunal Website March 26th, 2024. This is a timeliness application.

I have read through this case and I feel MANY families can relate to the details of this case or various aspects of this case.

It really deserves a full read, however I have pulled some paragraphs to summarize and give an overview. The analysis of this case by the tribunal member and their determination of whether disability was connected to the harm alleged is really important learning for us parents. It also describes how the tribunal interprets alleged inappropriate accommodations as potential discrimination.

I am also going to be emailing this case to the Ministry of Education and asking them to explain why they are not screening children in Kindergarten. Dyslexia BC has been advocating for this for years!

The Parent obo the Child v. School District, 2024 BCHRT 91

[8] The Child attended an elementary school in the School District from September 2015 until December 2020. He has dyslexia, dysgraphia, and attention deficit hyperactivity disorder [ADHD].

[9] By the third week of kindergarten in 2015, the Parent alleges that the Child began complaining of constant nausea and experienced diarrhea and vomiting regularly. She states he told her that he was scared to go to school as the work was too hard and he could not do it. The Parent alleges that the Child’s physical ailments were only present on school days and he began resisting going to school, to the extent that he cried all evening before going to school and lay on the floor crying two to three hours before school. The Parent alleges this same pattern persisted throughout the entire time the Child attended the school.

[14] Around August 2018, before the Child started grade three, the Parent alleges that she asked his teacher if he may be dyslexic. The Parent says that the teacher assured her that her son’s situation was normal, and he just needed to keep practicing. The Parent says that she thought that by raising the possibility dyslexia to the teacher it would prompt the teacher to investigate the issue more thoroughly. The Parent says that she ultimately decided to trust the teacher’s opinion, which resulted in the Child not being appropriately accommodated for his disabilities.

[15] In September 2018, the School District conducted a functional behavioral assessment of the Child. Based on the assessment, in November 2018 the School District placed him in a literacy intervention group. The Parent alleges the placement was an inappropriate response to the Child’s disabilities.

[17] In December 2018, the School District created its first Individual Educational Plan [IEP] for the Child. The plan focused on addressing the goals of the Child attending school and managing his anxiety in a positive way at school. It also addressed various ways to increase his reading and writing to advance him from operating at a grade one level. The Parent alleges the IEP did not appropriately address the Child’s disabilities.

[18] In June 2019, the Parent alleges the Child’s IEP was updated with minimal change. She says that worksheets provided by the school over the summer were too hard for the Child to complete. Once again, the Parent alleges the School District’s attempts to accommodate the Child’s disabilities were inappropriate.

[25] In mid 2020, at the end of grade four, the Parent says that she realized the extent of the Child’s reading struggles as he could not read instructions or complete any online school without her providing him with extensive one-to-one support. She alleges his reading skills were much lower than the School District had previously indicated. At that point the Parent says she began doing in-depth research on dyslexia and other disabilities pertaining to reading. She then decided to pay for him to attend tutoring with literacy specialists outside of school.

[31] ……...The Parent stated that she felt incredibly rushed during a less than one hour meeting about the plan for the Child related to the new information and the complexity of the situation. She worried about several educators being involved who did not have training for children with the Child’s learning disabilities and processing challenges.…..

[34] Finally, the Parent noted her concern that as of grade three the School District had already started to consider the Child as not being a candidate for graduation with a high school diploma.

[37] In January 2021, the Parent says that the Child was enrolled in a private school equipped to meet his education needs. She says that at the new school, the Child received 45 minutes of OG tutoring at the new school every day with positive effects. By the time her complaint was filed in November 2021, she described him as a “different child” who did not complain about going to school and did not get headaches and have an upset stomach or diarrhea. The Parent says the Child was learning at grade level and was now being given the opportunity to be successful.

[49] After reviewing the information on file, I have further determined that there is a succession of separate acts of discrimination of the same character that are separate contraventions of the Code extending back to the spring of 2016. I address each allegation in turn.

[50] The Complaint alleges that on April 4, 2016, the Parent emailed the Child’s kindergarten teacher with his reports that he felt rushed when doing work at school, and despite his best efforts he felt he was too slow in completing tasks. The Parent asked the teacher if there was anything that could be done about this problem. The teacher responded with an acknowledgement that the Child did take his time with his work and appears to suggest that the Parent should reassure the Child that he could take time and not be so hard on himself. From my review of this event, I am satisfied that the Complaint sets out an allegation of discrimination where the Child accessing educational services experienced harms because the School District failed to accommodate the Child and did not meet his educational needs by only telling the Parent to tell the Child not to not rush or be too hard on himself. The harm incurred 12 by taking this action only was the Child not receiving a proper education. I am further satisfied the Complaint sets out an allegation that the School District failed to make sufficient inquiries into the nature and extent of the Child’s disability-related needs in response to the Parent’s concerns. In my view, this inaction caused harm where the School District failed to discover Child’s learning disabilities such that he could then be provided with appropriate accommodations to prevent him falling behind. In my view, the Complaint alleges that the Child’s disability was a factor in the harms alleged.

[51] The Complaint alleges that in November 2016, the School District’s response to the Child’s reading difficulties was to send home alphabet cards and provide video links for him to work on sounding out letters and creating simple words. From my review of this event, I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs in this manner. I am further satisfied the Complaint sets out an allegation that the School District failed to make sufficient inquiries into the nature and extent of the Child’s disability-related needs as opposed to sending home alphabet cards and video links to address his needs. In my view, the Complaint alleges that the Child’s disability was a factor in the harms alleged. In my view, the Complaint alleges that the Child’s disability was a factor in the harms alleged.

[52] The Complaint alleges that in the fall of 2017, the School District addressed the Child’s ongoing reading problems by giving him sight cards to take home and providing him with some one-on-one reading support. At this time, the Parent noted her concerns that the Child was merely memorizing the cards and not actually able to spell the words. She also observed that he was guessing words based on pictures. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs in this manner. I am further satisfied the Complaint sets out an allegation that the School District failed to make sufficient inquiries into the nature and extent of the Child’s disability-related needs as opposed to sending home sight cards and providing some one-on-one reading support. In my view, the Complaint alleges that the Child’s disability was a factor in the harms alleged. 13

[53] The Complaint alleges that in August 2018, the School District’s response to the Parent’s concern that the Child might be dyslexic as he continued to struggle in school was to assure her that he just needed to keep practicing. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs in this manner in response to Parent’s concerns. I am further satisfied the Complaint sets out an allegation that the School District failed to make sufficient inquiries into the nature and extent of the Child’s disability-related needs as opposed to staying the course with Child despite ongoing problems and the Parent highlighting the possibility that he could be dyslexic. Once again, I find the Child’s disability was a factor in the harms alleged.

[54] The Complaint alleges that In the fall of 2018, the School District’s response to the Child’s ongoing learning struggles was to conduct a functional behavioural assessment and place him in a literacy intervention group. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs by focusing on the behavioural components and not his disabilities. I am further satisfied the Complaint sets out an allegation that the School District failed to make the appropriate inquiry, conducting a psychoeducational assessment instead of a behavioural assessment, into the nature and extent of the Child’s disability-related needs. Again, failing to accommodate the child after a proper assessment is alleged to have harmed him by not providing a proper education. I find the Child’s disability was a factor in the harms alleged.

[55] The Complaint alleges that in December 2018, the School District created its first IEP for the Child. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs with an IEP that focused on the behavioural components and provided ineffectual learning supports not indicated in the later psychoeducational assessment. Again, the School District is alleged to have failed to make the appropriate inquiry into the nature and extent of the Child’s disabilityrelated needs. It allegedly failed to accommodate the child after a proper assessment resulting in the harms related to not receiving a proper education. I find the Child’s disability was a factor in these harms. 14

[56] The Complaint alleges that in June 2019, the School District updated the IEP with minimal changes and sent worksheets home with the Child to do over the summer break that were allegedly beyond his capabilities. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs with a revised IEP that has the same issues as the first IEP. A further allegation is set out concerning sending home inappropriate worksheets over the summer. Once again, the School District is alleged to have failed to make the appropriate inquiry into the nature and extent of the Child’s disability-related needs. It allegedly harmed the Child by not providing him with a proper education. I find the Child’s disability was a factor in the harms alleged.

[57] The Complaint alleges that in September 2019, the Child’s grade four teacher admitted she was unaware of him having an IEP and provided him with grade two spelling lists work as an accommodation of his disability. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs by sending home grade two spelling lists for him to work on. Once again, the School District is alleged to have failed to make the appropriate inquiry into the nature and extent of the Child’s disability-related needs. It allegedly harmed the Child by not providing a proper education. I find the Child’s disability was a factor in the harms alleged.

[58] The Complaint alleges in February 2020, the School District’s lack of response to the Parent’s concern that the Child was reversing letters on his written tests is an allegation of discrimination. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs in the face of dyslexia symptoms. Once again, the School District is alleged to have failed to make the appropriate inquiry into the nature and extent of the Child’s disability-related needs. It allegedly harmed the Child by not providing a proper education. I find the Child’s disability was a factor in the harms alleged.

[59] The Complaint alleges on November 4, 2020, that the revised IEP implementing the October 27, 2020, psychoeducational report findings is an allegation of discrimination where it relied on the Parent to organize and pay for the Child’s OG tutoring and inappropriately 15 continued to focus on treating his anxiety. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs with a revised IEP not properly guided by the psychoeducational assessment resulting in the Child not receiving a proper education. I find the Child’s disability was a factor in the harms alleged.

[60] The Complaint alleges on November 5, 2020, that the school principal was unwilling to guarantee that the Child would receive tutoring from someone trained in OG tutoring is an allegation of discrimination for the purposes of this decision. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by committing to provide him with an appropriately trained tutor necessary to meet his learning disability needs. This resulted in the Child not receiving a proper education. I find the Child’s disability was a factor in the harms alleged.

[61] To summarize, the materials before me set out a series of discrete allegations of discrimination incidents involving the School District’s repeated failures to appropriately accommodate the Child’s disability over the five years that he attended school within the School District. These incidents involved the trial of various inappropriate intervention activities, inappropriate IEPs and an inappropriate assessment. All these actions attempting to address the Child’s learning disabilities allegedly resulted in harms related to the Child not receiving a proper education. Further, for much of the period in question, the School District failed to make the appropriate inquiry into the nature and extent of the Child’s disability related needs by way of a psychoeducational assessment.

[65] In concluding there were no significant gaps in this case, I have considered the Parent’s submissions and evidence indicating she was actively engaged in the Child’s education during his time out of school over the years. For example, she participated extensively in the take home activities prescribed by the School District while actively pursuing guidance from his teachers, the school counsellor, and the principal. In my view, the Parent remained very much engaged in the accommodation process throughout the years and this lessens the significance of any gaps between the discrete instances of discrimination outlined above. As an active participant in the School District’s ongoing accommodation of the Child’s learning disabilities, I see less significance in the gaps of months between the discrete allegations. While it is possible 17 to say the Parent had numerous opportunities to file a complaint, the information before me indicates that she was actively engaged as a participant in the accommodation process between events where the issue of accommodation arose, which lessens the significance of the gaps in this case.

[67] For these reasons, the complaint is accepted for filing as it alleges a continuing contravention of the Code.

New Page called ADVOCATE HELP DIRECTORY

You will notice I have added a new page called Advocate Help Directory.

These advocacy organizations and businesses specifically focus on K-12 education advocacy for inclusion in BC.

ADHD Advocacy Society of BC
K-12 Advocacy Info

Autism BC

BCCPAC
Advocacy Info

BC Ed Access – Facebook Parent Support Group
Education Advocacy Resources

Dyslexia BC – offers direct support in school advocacy

Family Support Institute – offers direct support in school advocacy
Education Advocacy Toolkit

FASD Support Society of BC – offers direct support in school advocacy

Inclusion BC – offers direct support in school advocacy
Advocacy Handbook

Jenn Scharf – IEP and advocacy services – offers direct support in school advocacy

K-R

Suzanne Perreault – Inclusive Education Consulting and Counselling – offers direct support

External Complaint Organizations

Ombudsperson BC
Professional Conduct Unit (Teacher’s Regulation Branch)
Human Rights Tribunal BC
Your MLA

Blog from Self-Represented Parent – Human Rights Complaint – Anxiety

The parent who self-represented her daughter has anonymously written a blog about the recent human rights decision on the BC Ed Access to Education website.

To read it click BEHIND THE DECISION: REFLECTIONS AND IMPORTANT FINDINGS ON THE RECENT HUMAN RIGHTS EDUCATION CASE

Family Status – Human Rights Complaints in Education

Here is some clarity to something that can be confusing when it comes to parents adding themselves to their child’s human rights complaint in education. (Your complaint will also need to pass the discrimination test.)

You need to file separate complaints. One for your child and one for you. Then, when and if they are both accepted, then you need to file an application to join them.

As a parent, it makes logical sense in our head to just include ourselves in our child’s complaint because we see everything so connected, but that is not the process that one needs to go through. So, to save yourself some time in further applications and playing catch up, when you file your child’s complaint, also file a separate complaint for you. Wait to see if both are accepted and then you need to file a 7.1 Form to join the complaints.

Here is the application page. You will want Application Form 7.1 – General Application. If you go to page 2 of 7, on that list, 7th on the list down, you will see “Join two or more complaints”

It is highly likely that the respondents will be making submissions for them not to be joined, or to dismiss your complaint. So, just mentally be prepared for that.

Here is the groundbreaking case that brought this option out in the open. So thankful for this brave parent.

Groundbreaking BC HRT – Accepts Parent on Child’s HR Complaint

Direct link on CanLII

You may want to quote this case directly in your complaint.

Also, keep in mind the one-year time limit for filing. If you file outside of the one-year time limit you may want to consider this case. Also, be aware that you will need to have evidence of the harm related to your loss of work or emotional harm.

Experience is such a valuable teacher.

If you have any questions, call the BC Human Rights Clinic. They are the best people to talk to about your complaint or any questions about the process. Processes do change, forms change, and with each new human rights case decision that gets posted – arguments can change. (This blog was written on Dec 21st, 2023)

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

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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

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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.

Burnaby Teachers are Joining the Inclusion Conversation

Today in The Burnaby Now newspaper there is an opinion piece written by the BC Teacher’s Federation.

I love that a teacher’s organization is speaking up about the challenges to inclusion and it’s not just parents making noise in the media.

The Ministry of Education and Child Care needs to fund and pay for teachers, EA’s and support staff to return to work earlier than the first day of school so that inclusion can be planned for and parents consulted.

For the full article:

Opinion: Burnaby educators committed to inclusion, fully funded public education

What is Fatal to a Human Rights Complaint in Education?

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

I have heard of many families in very complex situations. Parents/guardians are struggling with accepting/agreeing to accommodations offered by the school that they feel very strongly won’t work. If you are thinking that the human rights process is a process you might be considering, there are important things to note.

I have pulled the paragraphs/parts of paragraphs from this case that I feel are important for simplicity. I highly encourage people to read the full case to understand the context of everything and how a hearing and the Human Rights Code are applied. It is a layered case and the complexity of the situation is something many families can find themselves in.

I’d like to also note, that even though we are reading this case, there might be information that is not written about that this family may feel is very important that was left out.

Let’s look at the issues this case brings up and how we can be prepared for them.

Some of the topics this case brings up are:

The importance of documentation and having as much evidence as you can.
Witness testimony from parents and education staff (credibility conflicts)
The role and responsibilities of parents/guardians.
- The duty of parents/guardians to facilitate accommodations
- Parent/guardian credibility
- Parents/guardians duty to cooperate in good faith

“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.”

DIRECTLY FROM THE CASE:

[37] I am entitled to accept some, none or all of a witness’ testimony. Where there was disagreement in the evidence, my findings and reasons are set out. Where necessary to do so, I have assessed credibility and considered factors such as the witness’ demeanour, powers of observation, opportunity for knowledge, judgment, memory, and ability to describe clearly what they saw and heard….(continues)

[38] In resolving conflicts in the evidence, and determining whether to accept the evidence of any witness, in whole or in part, I have adopted and applied the test set out in Bradshaw:

Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides. The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his [or her] memory, the ability to resist the influence of interest to modify his [or her] recollection, whether the witness’ evidence harmonizes with independent evidence that has been accepted, whether the witness changes his [or her] testimony during direct and cross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally. Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time. (Bradshaw, para. 186, citations excluded)

[39] I find that the most helpful evidence in this case is the documentary evidence created at the time of events…(continues)

[42] I have assigned relatively little weight to the Mother’s evidence where it conflicted with the first-hand accounts given by the School Counsellor, Principal, Vice Principal, and Teachers H, M, and G. I have found the Mother’s hearsay evidence considerably less reliable than the direct evidence of reliable witnesses, where there is a conflict.

[43] The Mother acknowledged that she was probably not present for most of the incidents at school that involved her Child. At times, she had a hard time recalling events. For example, the Mother’s testimony on the psychoeducational assessment of her son was wrong by one year. She acknowledged that she was “out a year”. The Mother testified that there is no reason to dispute the emails that were authored by her at the time. The Mother testified “that is what I wrote at that time”.

[44] During cross-examination, the Mother responded to several questions regarding her testimony about her Child’s version of events by saying that she did not know or was not there. She acknowledged that most of her knowledge of the incidents came through her Child. I find that her son was more likely than not motivated to minimize his involvement in some incidents when reporting them to his Parents, so as to avoid discipline. For example, the Mother described disciplining the Child in relation to an incident where he swore at the Principal. She described their punishment as “Draconian”. (In retrospect, the Mother regretted using that word in her letter). As another example, regarding the November 2016 Incident, the Child only reported to his Parents that he grabbed another student by the collar, whereas I find, as a fact, that the Child choked a student, pushed him over a railing, and spat in his face.

(Parents’ Obligations (Paragraph 248-260) ** Important to read in the case. This case was dismissed and discrimination was not found. )

[258] In summary, the evidence shows that the accommodation process of the Child at school was often frustrated by the unreasonable actions or inactions of his Parents. The Parents did not attend re-entry meetings after the Child was sent home from school; the Parents attended the first IEP meeting, but refused to attend future IEP meetings. After November 2015, the Parents stopped providing comments to draft IEPs that were sent to them for review. The Parents refused to participate in the creation of a Safety Plan for the Child. The Parents did not provide the requested medical and psychological information to enable the School to modify the Child’s IEP. The Parents rejected the Principal’s offers of an educational assistant, classroom change, pod change, and school change. The Parents interfered with and rejected the psycho-educational assessment performed by a school psychologist. The Parents opposed any involvement of the District’s Intensive Behavioural Team with the Child. The Parents refused to allow an educational assistant to work with the Child despite it being recommended by his teachers, School Counsellor, and Principal. In a letter dated May 2016, the Parents wrote that the Principal was the “root cause of all this mess”.

[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.

Again, I highly encourage everyone to read the full case. I appreciate every family who has taken their case to the human rights tribunal hearing level. Even cases that have not “won” are still beneficial. It is through their experiences and stories that the rest of us learn and therefore become better advocates for our children to navigate this current system.

TAKE AWAY LEARNING

Whether this is fair or unfair/just or unjust/right or wrong…to uphold a human rights complaint…this is what I take away from this case.

We need to be so thoughtful in how we communicate with the school.
We need to be solution focused.
Our credibility just like the staff’s credibility may be a part of the hearing process if there are issues around credibility and the relationship with the school.
We need to document everything and gather as much evidence as we can.
We need to cooperate and facilitate accommodations and if they are not successful, document the failure. (Paper documentation, video, etc)
We need help. We should seek guidance and advice from as many professionals and other advocacy support people as possible if we find ourselves in a challenging advocacy situation at our child’s school.

However, it is also important to be aware.

"Parental conduct or lack of parental authority cannot be used as a justification for not meeting an exceptional student’s needs;"

To view the document on CanLII’s website:
L.B. v. Toronto District School Board, 2015 HRTO 1622 (CanLII)

"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."

[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.

Here is the link to the case in full: https://canlii.ca/t/gmd68

For more updated human rights process information please click on my Human Rights Tribunal page and scan down to the “Things that are not explicitly explained but are good to know…”

For more information on understanding the duty to accommodate.

I offer an Education/Human Rights Workbook to parents/guardians. Hopefully, this process can help clarify your case.

I wish you all the best,

Tag: inclusion