Tag: Ministry of Education

A HR Decision for School Employees

There is so much to learn about human rights law when we read decisions.

This decision is not an education case, but it is 100% relevant for school employees filing complaints for disability.

There are people who have gone through the human rights tribunal system and have left quite frustrated. Their experience didn’t pass the legal test of discrimination. Their experience could have been horrible, unfair, and wrong. The tribunal isn’t making a moral compass decision or an unfair wrongness decision. They are the ones who decide if discrimination has occurred. The complaint needs to pass the legal test for discrimination which includes analyzing the accommodation PROCESS.

There is so much to learn from this case. I am going to highlight the learnings that stick out to me, but as usual, I encourage everyone to read the case in full.

Worker A v. Fraser Health Authority, 2025 BCHRT 250

[3]               There is significant evidence to support that Worker A’s mental health was negatively affected by her work during the pandemic, with terrible consequences for her and her family. However, respectfully, the evidence could not support a finding that Fraser Health discriminated against Worker A. This is because Worker A has not identified any disability-related adverse treatment or impacts in her employment. This is necessary to trigger any corresponding duties by Fraser Health to inquire about and/or accommodate her disability-related needs. Even if those duties were triggered, Fraser Health is reasonably certain to prove that it gave Worker A an opportunity to identify any disability-related needs and she did not do so. In those circumstances, its duties in the accommodation process did not arise.  The complaint is dismissed.

[48]           To trigger the protection of the Code, Worker A is required to point to disability-related adverse treatment or adverse impact in her employment. Here I emphasise that the “adverse impacts” must arise in the complainant’s employment and not in their life generally. Adverse impacts in employment include, for example, termination, discipline, differential treatment, or working conditions that unfairly exclude a person from completing work they are otherwise able to do: Hydro-Québec at para. 14.

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Key Takeaways from these two paragraphs”

  • People MUST disclose their disability-related needs.
  • Adverse impacts have to be connected to their employment and not their life generally.

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[49]           Without more, an employee is not adversely impacted in their employment when they are assigned work or subject to management oversight. I agree with Fraser Health that “employers have the fundamental right to manage the workplace and make operational decisions they see fit, subject only to certain legal obligations”: Kondolay v. Pyrotek Aerospace Ltd, 2020 BCHRT 208 at para. 125. Employees may not agree with those decisions, and they may be bad ones that make an employee’s work harder or less efficient. However, absent some negative treatment or job-related consequence for an employee, they are not matters for this Tribunal.

[55]           As I have said, the duty to inquire is triggered when an employer is contemplating action that will negatively affect an employee in their employment (i.e. discipline) and has some reason to believe that the underlying behaviour may be related to disability: Gardiner v. Ministry of Attorney General, 2003 BCHRT 41 at para. 162. In that circumstance, they are required to inquire about the reasons underlying the behaviour. This is intended to put an employee on notice and give them the opportunity to bring forward information that could support an accommodation: Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970. As with any obligation under human rights law, perfection is not the standard.

[58]           In my view, Fraser Health is reasonably certain to prove that it fulfilled any duty to inquire when it gave Worker A the opportunity, in the October 20 meeting, to explain why she was not completing certain work. Worker A was accompanied in that meeting by a union representative. To the extent the next stage may have been disciplinary (which is purely speculative), Worker A had the chance to explain that she could not complete the work for disability-related reasons. Leaving aside the prospect of discipline, this was also an opportunity for Worker A to tell the Manager that she had a disability and needed accommodation. This information would have triggered Fraser Health’s obligations in the accommodation process: Renaud. However, there is no evidence that, at any point before her long-term medical leave, Worker A told the employer that she had a disability or that she required accommodation. In this circumstance, Fraser Health is reasonably certain to prove that its duties in the accommodation process were not triggered, and so any disability-related adverse impacts were justified.

[60] …….

Mr. Vanderveen’s argument that he asked for accommodation by telling Heritage that he was receiving too much work is not persuasive. Many employees may ask their employers to relieve their workload, and such requests may be warranted and entirely reasonable. However, the term “accommodation” is a term of art in human rights law. It refers specifically to the process of removing barriers in employment that relate to personal characteristics protected by the Code – in this case, disability. According to Mr. Vanderveen’s own evidence, he did not tell Heritage that the reason he needed relief was related to his disabilities. As such, the request to relieve his workload could not properly constitute a request for accommodation. [para. 38]

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That is very interesting.

“accommodation” is a term of art in human rights law.”

“the process of removing barriers in employment that relate to personal characteristics protected by the Code – in this case, disability.”

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[63]           This is a sad case. There is a lot of evidence that Worker A took great pride in her work, and her life has been completely altered since her mental health declined in 2020 for reasons related to her working conditions at that time. However, the evidence could not support a finding that Fraser Health discriminated against Worker A in her employment. Her human rights complaint is dismissed.

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This case is similar to an education case that I think is really important for staff to be aware of. Stress and anxiety caused by your workplace is not a disability protected by the Code. The blog by the Human Rights Clinic explains this well.

Stress, Anxiety and the Duty to Accommodate

“In a case called Matheson,[4] Ms. Matheson filed a human rights complaint alleging that she was subjected to abusive behaviour from a supervisor. She had a history of anxiety and panic attacks as well as depression. On two occasions during her employment, Ms. Matheson informed her employer that she was suffering from “stress.” However, she did not provide any medical information that said she had a mental disability.

The Tribunal dismissed Ms. Matheson’s complaint, stating that “an essential element of a complaint of discrimination in employment on the basis of mental disability is proof that the complainant either had a mental disability… or was perceived to be mentally disabled by the employer.” The Tribunal also said that “workplace stress resulting from an employer investigating alleged performance problems, or from a problematic relationship with a supervisor, is not alone sufficient to constitute a disability for Code purposes.”

The takeaway: by failing to provide her employer with proof of a mental disability, Ms. Matheson was unable to establish that she had a mental health condition beyond “the commonly experienced emotion” of stress. Therefore, the employer did not have a duty to accommodate her.”

These decisions are so helpful for the rest of us. They really are gifts of learning, and because of these decisions, people can learn what they need to do to navigate the duty to accommodate process and decide if filing a human rights complaint is an option for them.

  • We need to disclose disability-related needs to trigger the duty to inquire

If you don’t want to disclose your disability to your workplace, cool. That is your right to not do so. Just don’t file a human rights complaint.

  • Be prepared to provide documentation of your disability from a professional.

For more information on the Duty to Accommodate, here are some important topics to be aware of.

Let’s talk about hindsight
Meaningful Inquiry
Reasonable accommodations
Collaboration process

Trying to Collaborate in Good Faith

Trying to collaborate in good faith and discuss “reasonable accommodations” can be the real murky (stressful) part of the accommodation process that has the most potential for disaster.

This is where we are at our most vulnerable.

Here is why.

(Please read every single word of the next paragraph. Twice if necessary.)

As part of the duty to accommodate, both parties are expected to collaborate in good faith. The accommodations offered by the school don’t need to be perfect or ideal for our children; they just need to be reasonable enough for them to be able to access their education. (Whatever that means.) Even though they have to meaningfully consult with us, the school gets to decide what is reasonable. We need to engage in the accommodation process and have a conversation about whether we think their suggestions for reasonable accommodations are going to work. They have the final decision-making power. Even if we don’t agree, if they draw the line in the sand and say this is it. We have the duty to facilitate that decision. Even if we think it is going to harm our kid. Then if it does harm our kid, we have to document it, and the conversation starts all over again. All the while, we need to be civil and can’t lose our shit. If they frustrate us and we shut down and stop engaging, we will have “frustrated the accommodation process”. In an employment situation, they can have your human rights complaint dismissed. However, this important case [L.B.v. Toronto School Board, para 77 (c)(d)], shows that in the education context, even without parental authority, the school still has to fulfill their legal obligations to your child. Just be prepared, they will blame you for everything if you file a human rights complaint. Well…. they always seem to do that anyway…but still. This case will be helpful.

Sounds fun eh?

If you are ready to rip your hair out, it’s not you. It’s them. They know exactly what they are doing as they drag you onto the hamster wheel and make you run and run and run. (Maybe the teachers aren’t in the know of these strategies, but the admin are.)

There are ways to get yourself off the hamster wheel.

These are not in any order of importance. Just a list of strategies to consider.

  1. Question and document their delay strategies as them not working in good faith. Or any other nonsense they do. You aren’t the only one who has to be collaborative. Delay strategies, ignoring you, dismissing your concerns, is not collaboration. How you question them will be the art of advocacy as to communicate what you are noticing, but not become adversarial.
    • Keep and log every email that they didn’t respond to and every meeting that was cancelled and delayed
    • Keep a timeline for how long things are taking the harm because of the delay
    • Email the list of concerns you have, and note the ones that have not been addressed or have a proposed resolution plan.
    • When you email, you can use the word “notice”. I have noticed that it’s been 3 weeks for us to have a proposed solution to my concerns outlined in my email Nov 12th: Concerns for XXXXX.
    • Another phrase that is good: “It is to my understanding….” And then state what you think, and seek clarification. Is my understanding correct?
    • Email sentences to use: “I am noticing….”, “It is to my understanding that….”, “Is it correct to assume…..” or “I am confused, can you please clarify…..”
  2. Question the reasonableness of their accommodation suggestions – Ask for evidence. Without using the word evidence. If they want to argue that they are providing your child reasonable accommodations to the tribunal, they are going to need to have EVIDENCE to show that.
    • Again, we are using emails as our tool here as documenting is sooooo very important. We absolutely want to communicate in emails. If they don’t want to communicate with you in emails, that is a red flag. (They are up to funky-monkey business, and they know it.) One way of asking for evidence is to say, can you explain to me how this accommodation works for XXXXX? It is extremely reasonable as a parent to want to understand how their plan is going to provide “the ramp”. Ask questions, get them to explain it to you. Don’t let them use vague language. Keep asking questions until you understand exactly what they are talking about. They will use fancy-pancy language with you, hoping to intimidate you. You have every right to understand exactly what they are talking about. If they are not using plain language and instead use jargon, that doesn’t make them look good. What is the point of communicating with each other if we don’t understand what we mean?
  3. Always ask HOW questions. They state your child does _______. Great. HOW does that happen? How. How. How.
    • The tribunal has stated in human rights complaints that the school is in the best position to have discretion to create your child’s education plan, so if they are the experts, then they better behave like the experts. It is their responsibility to investigate why your child is struggling and create a plan on how to remove the barriers. It’s called meaningful inquiry.
  4. File external complaints. Many parents threaten all sorts of things, and quite frankly, not many people do it. They are used to hearing every threat under the sun, and they just sit back and wait for you to explode and leave. If you file a complaint, you will stick out to them. They will underestimate you, until you show them with your behaviour that you are not a doormat. Sometimes, bringing in external eyes and forcing them to provide evidence to someone that they are fulfilling their legal obligations is exactly what needs to happen.
    • All of the external complaint departments are silos. They are VERY specific to the issue you are dealing with. A lot of the time, people could file with all of them as they are possibly dealing with overlapping issues, but not always.
    • To understand which external complaint deals with what issue, please read my page, Resolution Options in Education
    • Also, When should I file?
    • Why does this strategy work? The Damage Period
    • When you should file is basically asking the question to yourself – if, after giving advocacy a chance, what are you willing to tolerate or not tolerate? When will it be enough? Only you can answer that question.
  5. Section 11. In action – not making a decision is making a decision. The School Act Section 11 notes that a lack of a decision is still a decision. If the school is making a decision that “significantly affects the education, health or safety of a student,” you can appeal to the Board of Education.
    • To read more about this INTERNAL advocacy route, please read my page Section 11 – Appeal to the Board of Education
    • Telling the superintendent that you intend to file a Section 11 appeal should at least get you meetings with people in upper management.
    • Not many parents complain past the principal. So again, pulling in district eyes to your child’s school may be necessary. Some principals think they are untouchable. Sometimes we need to remind them that everyone has to answer to someone. It’s kind of how our society works. No one should be untouchable.
  6. Leave if you can. This is an absolute option to consider. There are a lot of parents who feel that if they leave, then “they will win”. This is the emotional well-being of your child. The best revenge is living well. This isn’t a competition. Take your kid and give them something better. Sometimes the fight is worth it, and sometimes it is not. There is nothing wrong with making your child and yourself the priority. They don’t deserve your energy. There is nothing wrong with moving schools or considering other learning options.
    • I say this as someone who is an absolute fighter. My kids were getting better care when I started filing complaints than compared to when I wasn’t. So, for my situation, it was absolutely worth it to stay. Filing complaints is a form of advocacy to push the line, create needed data and change. We need people willing to get in the ring. At the same time, if you need permission to save yourselves and focus on the health of your family, you have got it. I’ll absolutely give it to you. Depends on what your history is or current life issues, sometimes fighting the abusive people in the education system isn’t your journey to take. In the same breath, “Sometimes it is the people no one can imagine anything of who do the things no one can imagine.” ― Alan Turing.
    • No one else can make this decision but you. These aren’t easy decisions as they will impact your child, your family, and you. People just want to be told what to do. I can’t tell you what to do. This is your family, your life. Only you will experience and witness the benefits and consequences of your decisions. Whatever you decide, I hope you find peace.

In summary, the collaboration process can be a case-by-case part that isn’t written in stone and will be very specific to your child. For this reason, there isn’t a cookie-cutter instruction manual on what exactly you need to be doing next. Some people are very collaborative and other people are focused on control and are not collaborative at all. A lot of it will depend on your own resources, perception, values, priorities, and personal situations. For that reason, the uncertainty causes families a lot of stress, and they are terrified of making a mistake. I absolutely encourage you to reach out to support groups, counselling, advocacy coaches and non-profit organizations that offer support. Don’t do this alone. You want to lessen your suffering? Reach out to others. You have a community out there who can sit in front of you and say “me too”.

Want Progress in Team Meetings?

Having diverse opinions is really important in teamwork. When everyone thinks the same, we are in scary territory. It leads to groupthink. I really encourage you to read my blog from 2021, Groupthink…Does it Exist in School Districts and on School Boards.

We do not want a bunch of people who all think the same making all of the decisions. That will suck. It sounds lovely to the people who share the leading opinion, but it is really hell on wheels dressed in a bow. An absolute disaster for society.

I offer the Twinkie theory for consideration.

I watched a clip on Facebook recently which was really spot on. If you value community and relationships, you can’t make polarizing statements.

That is tricky. And I guess it will be context-specific and case-dependent for your audience in other situations. But in team meetings, this is the line we walk. This is where advocacy skill is demonstrated.

Advocating is hard because you have conversations with people you disagree with. You need to have these conversations in a way that allows for further discussions to continue. We don’t want them to shut the door and shut us out. Because most likely, the people you disagree with have a position of power, and they are the ones who are gatekeeping. If you don’t want to engage with people you disagree with, your advocacy will progress at a much slower rate.

The most highly skilled advocates that I have witnessed are people who are able to invite people into uncomfortable conversations and offer them enough safety in that conversation for them to be able to change their mind with dignity.

THAT is when progress occurs.

Failing Forward with Compassion

Advocacy is never a straight, linear path. It’s two steps forward, one step back. It’s rocky and risky. Messy, really.

As a society, we need to embrace failure. We want our government to be able to pivot when needed, to consult and always reflect on whether their policies and laws are working. There are so many times when unintended effects occur. We don’t ever really know sometimes, until we try something. Unfortunately, at times, it takes people speaking up over the harms they are experiencing to ever really know that something isn’t working. How many times do we hear horrific stories to realize just how wide the gaps are in a system?

Generally speaking, we aren’t great at predicting human behaviour. We think we are. We do risk assessments, but we are often wrong. Risk assessments are educated guesses. They are done in percentages. Given all of these factors, this person has a 30% chance of re-offending. That won’t be true for everyone. Due to the outliers, we overly punish more people out of fear, hoping to get it right 100% of the time.

We want our teachers to be able to pivot with new information. Just because we did something one way for the last 20 years doesn’t mean that we can’t do something different when presented with new information. We want people to be able to change their minds and not dig their heels in the sand when presented with harm.

As parents, we also reflect on whether our parenting strategies are working. Our kids are our greatest teachers. And they certainly let us know when our approaches don’t work.

We need to be compassionate towards ourselves. We put so much weight and responsibility on our shoulders. We don’t want to get anything wrong, as the impacts will be felt by our children. Some parents are so afraid to make a mistake with their advocacy efforts that they do nothing.

I encourage people to get comfortable with failing forward. We fail, we reflect, we learn, and then we take the next step. And the next. And the next. Perfectionism can put us in our own prison.

I have experienced failure a lot in my efforts to push the line. But never completely. Even in the failure, the line has moved. There has always been progress. Sometimes completely unintended. It’s always nice when that works out. Why, yes, I planned this all along. umm…not.

Advocating in our kids’ IEP meetings feels very risky. We can feel full of fear. Fear of pissing people off, and our kids not being liked because of us. That is the worst feeling. The worst kind of fear. It’s one thing if I risk a business idea, but to risk my child’s emotional safety feels intolerable.

Deciding what advocacy approach to take can feel like a risk. Do we file an external complaint? We do our research. We weigh the pros and cons. Sometimes, it’s the only thing we can do; we have tried everything else. Even if your complaint doesn’t unfold the way that you hope, just filing creates data that informs the system. Even if your TRB complaint doesn’t lead to a consent resolution, it stays on their file and will help the next parent, as the TRB often waits for patterns of behaviour to appear. Complaints led to an exclusion investigation from Ombudsperson BC, and I don’t see any successful case summaries about exclusion on their website.

We want society to be compassionate with our own children as they fail forward in life. Making mistakes as they grow. Learning from them. We can be compassionate with ourselves as we stumble around trying to figure things out. Testing out different strategies. Reflecting. Taking in new information. Pivoting. Trying again. It seems, to be successful at anything in life, we need to practice over and over. Which means, we aren’t successful the first time, but maybe the 50th time.

It can be nerve-wracking to advocate for our kids. I love support groups for this reason. Talking to other people who are also out there failing forward helps to make it seem less scary. You can do this.

“Be the change you wish to see in the world”. – Gandhi

When Should I File?

People often wonder when they should file their human rights complaint. Especially when it they are dealing with issues that have been happening for a long time.

Sometimes it is a big event that occurs. If it’s only about that one event, then you would have one year to file.

However, when things are murkier, it’s sometimes about what you are willing to tolerate.

People want to know when the “right” time is. Depends on your situation, but I don’t know if there is ever a “right” time. Or a specific “right” way to advocate. I don’t know anything that is guaranteed. People have different personalities involved in their child’s education. Some people are more flexible, and some are just brick walls.

We don’t want to kill a fly with a house. It’s good to escalate your advocacy in incremental steps. You do want to give people a chance to resolve the issue and see if there is any way for it to be resolved collaboratively. Your child is going to be in school for a long time. Building relationships is important. However, at what point does it become enough? At what point do you feel like nothing is going to change?

Many parents feel like they are a hamster on a wheel. Filing an external complaint can be what gets you off.

If you are advocating alone and it’s not going well, I suggest you reach out to Inclusion BC or Family Support Institute for help. At this time, you may also want to consult with the BC Human Rights Clinic or Disability Alliance. There are also advocacy coaches who can help you with emails and communication with the school.

If you need help, here is a list of people who can help you.

Advocacy Help Directory

Human Rights Help

“It’s how your rights are DEFINED”

Law is fluid, and it changes. It can be bendy and a brick wall, all at the same time. Fun eh?

We always need to keep pushing the line. We do this when we take our cases in front of the tribunal.

Now parents can file a human rights complaint against their child’s school district on behalf of themselves. That wasn’t always the case. Some cases stated education was not a public service to parents, but only to their child. That has changed. Now parents can file a family status complaint. We push by bringing in new evidence and arguing in new ways with other new case law that create stepping stones.

I remember being in a Human Rights Law class, and the professor, who has a PhD in Law stated that people think they have these broad protections under the Charter, but it’s how your rights are DEFINED under the Charter. (Fabulous teacher, by the way. I loved all of her classes. She was phenomenal.)

Disabled students’ rights defined under the Charter by the Supreme Court of Canada are that being in a separate class in school is a reasonable accommodation and could be in the best interest of the child, regardless of what their parents think. I’ll talk more about this below.

The term “reasonable accommodations” is the ceiling and the walls in human rights.

Q: So, how do we know when our child is being offered reasonable accommodations?

A: It is when the barriers are removed of a disability-related need.

These cases are very context-specific. What that means is that no one’s case is going to be the exact same. Depending on the circumstances, your child’s experience may not fit into this. Cases can “differ” from case law. This is where you can make your arguments and make advances in The Code.

From what we know so far….how do we know if discrimination has occurred?

It is not about grades. Just because your child is not at a certain grade level does not mean they are automatically being discriminated against, and they haven’t had the barriers removed.

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

[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.

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It is not about whether outside recommendations have been accepted or not.

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Wells v. Manitoba (Human Rights Commission) et al., 2025 MBKB 86

[29]      After considering all the evidence in relation to the Complaint, the Investigator concluded that the Board offered reasonable accommodation:

… the evidentiary record suggests that the school provided him with extensive supports, adaptations and programming based on the medical documentation it received, and its own observations of [her] son.  The evidence shows that the school often already had supports in place that met or addressed some recommendations in new reports it received.  While it may not have been able to implement every individual recommendation immediately or at all time, the school made a concerted effort to update and follow the son’s educational plan as per the extensive and changing recommendation made by numerous different clinicians and healthcare professionals through the son’s schooling.  The school must be given some discretion with respect to the specific programming and supports it provided to its students based on medical documentation and ongoing assessments.  As subject matter experts in delivering education, it appears that the school would be in the best position to determine how to provide academic accommodation to students in accordance with its assessments and available medical documentations.

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It is not about classroom placement. Segregated classrooms are considered a reasonable accommodation. They look at the “best interest of the child,” not what the court feels parents believe is the best interest.

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Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 SCR 241

76                              The Tribunal, therefore, balanced the various educational interests of Emily Eaton, taking into account her special needs, and concluded that the best possible placement was in the special class.  It is important to note that the placement proposed was in a class located in a regular school where  “the special class is integrated with the regular classes through morning circle and a buddy system which may include hand-over-hand art activities, music, reading, outings such as walks and recess, special activities like assemblies, mini olympics, interactive games, including rolling balls and playing catch” according to the testimony of the teacher of the class in which the Board proposed to place Emily.  In addition, the Tribunal alluded to the requirement of ongoing assessment of Emily’s best interests so that any changes in her needs could be reflected in the placement.  Finally, the Tribunal stated:

. . . our decision in favour of a special class placement does not relieve the school board and the parents of the obligation to collaborate creatively in a continuing effort to meet her present and future needs.  Emily’s is so unusual a case that unusual responses may well be necessary for her.  Such achievements can only be realized through cooperation, and most important, compromise.

It seems incongruous that a decision reached after such an approach could be considered a burden or a disadvantage imposed on a child.

79                              In my view, the application of a test designed to secure what is in the best interests of the child will best achieve that objective if the test is unencumbered by a presumption.  The operation of a presumption tends to render proceedings more technical and adversarial.  Moreover, there is a risk that in some circumstances, the decision may be made by default rather than on the merits as to what is in the best interests of the child.  I would also question the view that a presumption as to the best interests of a child is a constitutional imperative when the presumption can be automatically displaced by the decision of the child’s parents.  Such a result runs counter to decisions of this Court that the parents’ view of their child’s best interests is not dispositive of the question.  See E. (Mrs.) v. Eve, 1986 CanLII 36 (SCC), [1986] 2 S.C.R. 388; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, 1995 CanLII 115 (SCC), [1995] 1 S.C.R. 315.

80                              I conclude that the placement of Emily which was confirmed by the Tribunal did not constitute the imposition of a burden or disadvantage nor did it constitute the withholding of a benefit or advantage from the child.  Neither the Tribunal’s order nor its reasoning can be construed as a violation of s. 15.  The approach that the Tribunal took is one that is authorized by the general language of s. 8(3) of the Act.  I have concluded that the approach conforms with s. 15(1) of the Charter.  In the circumstances, it is unnecessary and undesirable to consider whether the general language of s. 8(3) or the Regulations would authorize some other approach which might violate s. 15(1).

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It is not about whether a child is experiencing a negative experience. The harm needs to be connected to a disability-related need.

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

[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.

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If you don’t agree, it doesn’t automatically mean it is discrimination. If parents don’t facilitate decisions that are “reasonable,” their human rights complaint can be dismissed.

“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.”

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

[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.

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Reasonable accommodations are about removing barriers. Providing your child “access to their education”. Parents want to pull their hair out, wondering what on earth that means. The thing is, it is so case-by-case specific that policies and human rights law can’t be too prescriptive. What meaningful consultation isn’t going to mean the same thing for each child? Maybe 30 minutes is enough for one kid, but three hours of meetings will be needed for someone else. I know there is a desire to have everything be so exact, but people aren’t like that. We can’t put our kids in boxes. What is reasonable is going to be completely dependent on the disability needs of your child.

We need to remember, like it or not, we are co-parenting with the government, and the school has the final say. They have to meaningfully consult with us, but even if we don’t agree, they make the final decisions. We can also file complaints if we don’t agree and appeal. We do have avenues. I know this is so frustrating. Especially when we feel we are dealing with education staff who know less about disability than we do.

We need to be able to communicate our child’s disability-related needs in terms of removing barriers. This is rights-based language. Just a little side note. Certainly, not all parents are like this, but there are some parents who are incredibly frustrated that the school isn’t making the features of their kids’ disability disappear. Schools can’t remove your child’s disability, but they can provide an environment that allows them to become the best version of themselves that they can be. There is a difference between the school’s legal responsibility for offering reasonable accommodations to remove barriers and performing an exorcism.

The law changes. As immovable as it seems, it is movable. It takes people bringing their cases to be interpreted in front of decision makers. However, when we decide if we want to take our cases to a hearing, we need to understand where the walls are so we know what we are going to need to argue and what kind of evidence they are seeking.

There is a lot of human rights case law across this country, and as much as I love to find it and read it, I cannot say that I have read everything. Please know that doing your own research and consulting with lawyers may be important for your own advocacy work.

Every child with a disability or perceived disability is protected under the Human Rights Code. Schools are legally entitled to provide children with an equitable education free of discrimination. Even if the school tells you, your child’s needs aren’t “needy enough” for support. Using the discrimination test can be a powerful way to advocate for your child. The other side of the coin is the reasonable justification test, and what the law considers what is “reasonable accommodations” being offered. The more knowledgeable we are and understanding of the Duty to Accommodate, the more we can feel confident in advocating for our kids.

Settlements

At any time, a settlement can occur during the human rights process. The BC HRT website also states that you can request a mediation meeting at any time.

Some people file a human rights complaint and then, soon after, send a demand letter. Sometimes, if you tell the school that you filed a human rights complaint, they try and make things right. They offer support in exchange for a withdrawal. Which, hey, if your kid gets what they need, success! If the supports leave in the future, file another complaint. Ride it out. Make the complaint last, as they may provide support to limit their damage period. They know they will have to be prepared to provide evidence that they are providing reasonable accommodations.

At any time, you can send a settlement offer through email, titled “Without prejudice” at the top. Doesn’t matter where you are in the process. You can search on the internet for examples of settlement offers, but really, it doesn’t need to be anything fancy. There are many pages on the BC Human Rights Tribunal Website to read about settlement.

At the beginning of your complaint process, once it’s been accepted, the tribunal will automatically set up a mediation meeting with a mediator. If both parties have legal representation, they are encouraged to do it on their own. But mediation meetings do sometimes fail, and settlement can still occur after.

A lot of settlements happen a couple of weeks before a hearing. This is quite typical, and if you follow hearings on the HRT website, a lot of them drop off before the actual hearing date. At the last case conference before the hearing, the tribunal will encourage both parties to try again with a mediator and organize the mediation meeting.

Some people settle days before a hearing. Settlement can even occur during a hearing. Quite a sizeable chunk of people settle after a hearing and everyone’s cards have been shown.

At some point during the process, parents are sometimes approached by the respondents and asked, what do you feel your child needs in order to be successful? They look at offering them another opportunity to come back to school with more support. This may be appealing to you and mitigate the harm your child has already experienced.

If you are fighting for a monetary settlement amount, the amount you are fighting for is for your kid. This is money that will be held in trust until they are 19. You and/or they can access this money for them. For speech therapy, or counselling, etc. If they want something, and if you agree, they can request portions of it for something they want/need. If you can get your kid back into school with the support they need to be successful, this is also a benefit to them. Getting them the support they need can be way more valuable than any dollar amount you could end up with for them.

I just encourage parents to be open to various ways of obtaining a benefit for their child and other children. Policies can come out of settlements, changes in practice, etc. For most parents, the whole point of filing a human rights complaint is for their child. You can be creative. BUT, I highly suggest you consider getting something of a monetary amount. Even a couple of thousand dollars can go towards counselling, which may be very helpful. Some of the creative resolutions won’t be held up by a court if they don’t fulfill their commitment, but a monetary amount will be.

There have been cases where they have tried to wiggle out of the creative mediation agreements, or given the bare minimum, but still legally fit the terms of the agreement. That’s why I say, if you get at least some monetary amount, you have something. Then you can always file another complaint if the issue is persistent.

If you want a hearing instead of a settlement, I get it. I certainly won’t be the person to try and talk you out of it.

As always, I encourage you to seek legal advice when going through a settlement and having a lawyer review your settlement agreement.

Here are some lawyer referrals


BC Human Rights Tribunal – Who Can Help

Disability Alliance – Law Clinic

Lawyer Referrals and free consultation

“You are advocating even when your voice shakes”

This is beautifully written by a fellow parent advocate. She posted this on her Facebook page. I have her permission to share here. Thank you, Sarah!

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You are fighting for your child when the school system keeps failing them. You are trying to decode reports, emails, and endless jargon just to get basic support and sometimes not even that! You are sitting through meetings where you’re told to “be patient” …again…while your child slips further behind.

You’re spending your evenings learning about dyslexia, ADHD, and learning differences instead of relaxing. Even trying to help other parents who are just starting out on this long road.

You are sacrificing time, money, and energy to hire tutors and specialists because the system won’t. You are reaching out to anyone who is willing to listen or help, but most of the time hit dead ends. While your friends are driving their kids to soccer or dance, you’re driving yours to yet another tutoring session or trying to read with them, or encouraging them to do more Lexia.

You are holding back tears when others brag about grades or awards, because you know how hard your child works just to keep up.

You are cheering for small victories no one else notices… your child remembering a vowel sound rule, reading one new word, writing a sentence, finishing homework without a meltdown.

You are showing grace to teachers who care, and restraint with those who don’t understand.

You are exhausted, frustrated, and invisible, but still showing up, again and again.

You are advocating even when your voice shakes. You are pushing forward when you have nothing left to give. This is me…I know I’m not alone, but some days sure feel very lonely!

If this is also you…just know you are not alone,

Your fight matters. Your child is not broken, but the system definitely is, and your love is changing everything.

On the days, like today, when progress feels impossible, when hope feels far away, remember this: You’re doing it right… Your child comes first, you know best, keep pushing even when you have nothing left because your child is counting on you! ❤️

By Sarah Johnson

District discretion – outside recommendations – denial reasonable

This case is from Manitoba. Cases in other provinces aren’t binding, but still influential and are used nationally in human rights complaints across Canada. We absolutely need to be aware of them.

This is a case to be known.

This parent lost her human rights complaint and filed a judicial review. She lost that as well and has had to pay costs. Paying costs is not something that you risk when filing a human rights complaint, but something you do risk when you file a judicial review. This is thousands of dollars, possibly $20,000 in BC. (Please consult with a lawyer if you are filing a judicial review.)

Wells v. Manitoba (Human Rights Commission) et al., 2025 MBKB 86

[1]         Maxine Wells (Ms. Wells or the applicant) is a tireless advocate for her son who had learning disability challenges as a student in the Border Land School Division (the Division).  Ms. Wells was in regular contact with his teachers, school administration and Division personnel[1] regarding his learning challenges and how they should be addressed.  Often, there were disagreements about his needs and how they should be addressed.  Several times, Ms. Wells retained independent specialists to assess her son’s learning disabilities and provide recommendations on how to accommodate those learning disabilities in the school setting.  Ms. Wells says that the Division was often dismissive of the recommendations of these specialists.  This became increasingly frustrating for her as she wanted to ensure her son had the best possible outcome in an education framework that did not, from her perspective, appear to be giving him the opportunity to succeed.  She says that ultimately, her son did not achieve the level of learning he could have had the Division followed the recommendations of the specialists as she urged them to do.

[8]         The thrust of Ms. Wells’ application is that she disagrees with the Division’s assessments of her son’s needs and the accommodation measures implemented which, in her opinion, were often not aligned with those of outside clinicians.  More specifically, she submitted that:

  • the Division did not accept assessments provided by experts;

    (etc.)

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The conclusion is interesting as the tribunal saw the teachers as the experts to dismiss the outside experts. I think everything in the paragraph below is interesting. This is how the tribunal views the education staff and the power they support.

We have a case in BC where a parent’s human rights complaint continued partly because outside recommendations were not considered. However, here is a tribunal hearing decision which is different than the legal test for a dismissal.

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[29]      After considering all the evidence in relation to the Complaint, the Investigator concluded that the Board offered reasonable accommodation:

… the evidentiary record suggests that the school provided him with extensive supports, adaptations and programming based on the medical documentation it received, and its own observations of [her] son.  The evidence shows that the school often already had supports in place that met or addressed some recommendations in new reports it received.  While it may not have been able to implement every individual recommendation immediately or at all time, the school made a concerted effort to update and follow the son’s educational plan as per the extensive and changing recommendation made by numerous different clinicians and healthcare professionals through the son’s schooling.  The school must be given some discretion with respect to the specific programming and supports it provided to its students based on medical documentation and ongoing assessments.  As subject matter experts in delivering education, it appears that the school would be in the best position to determine how to provide academic accommodation to students in accordance with its assessments and available medical documentations.

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This is where a lot of parents can get confused about the IEP process. The schools have a duty to meaningfully consult with you. But the FINAL decision always rests with the school. Not you. You are not an equal partner. There doesn’t need to be a consensus. They don’t need you to agree.

They need to be able to justify their decision-making and provide with evidence that they are providing “reasonable accommodations” up to the point of undue hardship.

Recommendations from professionals are just that, recommendations. This tribunal has asserted that it’s up to the teachers (the district) which recommendations to implement and when. They still need to be able to justify it as reasonable. As removing a barrier and providing “a ramp”, a reasonable ramp. And they will need to provide EVIDENCE to the tribunal that they have done this.

The school districts being aware that they need to provide evidence of reasonable accommodations is why they are aware and concerned about their damage period, when they find out you have filed or are considering filing a complaint.

An important part of the duty to accommodate process isn’t just the discrimination test. The other side of the coin is the reasonable justification test.

The tribunal has repeatedly put the professional responsibility in the hands of education staff to be the ones to figure out how to remove the barriers for disabled students so their education is accessible. Ok then, so do it.

Always remember, they have the responsibility of investigating and figuring out what the barriers are and creating a plan to remove them. Meaningful inquiry.

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

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[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……

[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.

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As always, I am so thankful for the transparency of these cases being public for us to all learn from and be aware, so we can be knowledgeable advocates.

As always, I recommend you read the case in full.

Advocacy Writing – Your MLA

I have been learning just how powerful letter writing can be.

People from prison have written letters to anyone who will listen, and because of their letters, university courses in specific programs started. Non-profits have started up, and innocent people have gotten representation and their names cleared. Almost 100% of the time, the letter writers were completely unaware of the impact their letters had on people and how they planted seeds of change.

One advocate wrote so much to the government all over Canada that they didn’t realize she was just one person and thought she was a fully staffed national organization. Too funny!

There is an important concept in human rights law called “hindsight”. People can’t be held legally responsible for their inaction if they didn’t know about it. The law looks at what they knew at the time. Was their decision-making reasonable based on the information they had at the time?

We want people in positions of power not to be able to claim ignorance. If we are demanding action, we don’t want them to be able to say they didn’t know.

Part of the importance of filing external complaints is the data trail it leaves.

Advocacy fatigue is real for a lot of people. People with privilege really don’t understand the extreme weight that systemic oppression forces onto people. A book I think really sheds light on this with evidence from studies is called “Weathering: The Extraordinary Stress of Ordinary Life in an Unjust Society” by Arline T. Geronimus. I won’t provide any spoiler alerts, but it’s worth the read.

Some people are fuelled by advocacy whether they want to be or not. Many parents fit into this category. An example is my blog, “You Can Run on Anger“. Many neurodivergent people are especially in tune and responsive to injustice. It’s not by accident that many people who take up leadership roles in non-profits are ND themselves. We are built for this. I think of the Cars movie, “I am speed.” 😉 LOL

I think the human spirit is somehow tied to letter writing. A symbol of hope. We have always had the dreamy concept that if we are stranded on an island, what will save us is the letter in a bottle.

Here is something that is important to know about your MLA. Your school trustees and your local MLA rub elbows many times at community events. They often have a history together, and many school trustees run in their local MLA elections. Your school district does not want to embarrass their school trustees by you ratting out the district about all of the horrible things they are doing. Pull in the superintendent. Contacting your MLA can be a strategic move.

Your MLA will not get involved in your issues if you have open complaints. That includes Ombudsperson complaints, human rights complaints etc. You can still email them about everything, just don’t expect them to comment on anything.

If you want your information to remain confidential and anonymous, be clear about that at the start, and ask if this can be respected.

Your MLA is an important person because they need to listen to their constituents (you), hear about your issues and then they can use it to speak up about these issues in parliament. They also track how many people are coming to them about the same issue. This is what guides their work.

From Role of an MLA:

“Members meet regularly with constituents and attend community meetings and events. Constituency offices assist British Columbians who have questions or concerns about provincial programs, policies, and benefits. Members may also contact ministers or ministry officials about policies and programs affecting individual British Columbians.

There are also opportunities for Members to raise constituent perspectives and concerns in the Legislative Assembly during debates by making statements or presenting petitions, and by asking government to act on issues affecting residents of their electoral district or the province.“

They may not be able to solve your problem, but alerting them to the issues is very important. If I am going to plead anything with parents is to please make your experience count. Don’t let it get pushed under the rug like it never happened. Writing to your MLA and cc: the Human Rights Commissioner can make such a difference. Things accumulate. As more people write, the mountain builds. If you have one last breath in you, let it be this.

One of my favourite quotes from disability activist Judith Heumann is:

“Change never happens at the pace we think it should. It happens over years of people joining together, strategizing, sharing, and pulling all of the levers they possibly can. Gradually, excruciatingly slowly, things start to happen, and then suddenly, seemingly out of the blue, something will tip.” – Judith Heumann

What can be so emotionally unsatisfying is that people in positions of power NEVER want to let on just how powerful we really are. They are afraid to open the floodgates in society. The system as a whole is really trying to keep everyone somewhat calm so that they don’t storm the fortress, as has literally occurred so many times in history. They use delay. Or when you do hit a nerve, they strategically time things much later so that you aren’t aware it was you that actually brought that on. We can’t have them claim they didn’t know. When you email the Ministry of Education cc: Human Rights Commissioner and your MLA.

Know this: your voice matters. The more people speaking up does create cultural changes. What society views as acceptable now has changed over the decades, and all of that has been brought, carried and exposed on the backs of those most harmed. Being aware of people’s experiences changes our expectations of our government.

I give you the beginning.

Dear (insert MLA’s name)

I am writing to you on behalf of my child. My goal is for you to be aware of the issues that families are facing when they have a child with a disability/neurodivergence in education. We need systemic change.

Here is our story.