School Employee Files Human Rights Complaint
This is an employment case, and the employee is in the school setting. I have only ever written on two other staff employee cases. I don’t focus on this at all, but every once in a while, a case will come along that is very helpful for others to know about. The legal test for employment and human rights can be very specific.
Here are the two other cases:
School Employee
Education Assistant – Employment Human Rights Complaint
A HR Decision for School Employees
This case will now be added in that section as the third one.
Dismissal Application – School Employee
This is a short dismissal application decision. It’s a pretty simple one, and for that reason, this is a great one to highlight some key points.
Misiak v. Board of Education of School District No. 36 (Surrey), 2026 BCHRT 98
[17] At a hearing, Mr. Misiak would have to establish that he has a disability, that the District treated him adversely, and that the adverse treatment was connected to his physical disability: Moore v. BC (Education), 2012 SCC 61at para. 33. Mr. Misiak is not required to prove the complaint at this time but need only point to some evidence capable of taking the complaint “out of the realm of conjecture”: Berezoutskaiaat para. 24. The threshold to move the complaint forward to a hearing is low.
[18] The District says there is no evidence that Mr. Misiak has suffered a disability related adverse impact and his compliant has not been taken out of the realm of conjecture. I agree.
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He had an injury to his elbow from 2018 that limited what he could do with his left arm.
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[20] The materials show WorkSafeBC advised that Mr. Misiak was limited in performing repetitive motion with his left arm, and forceful or sustained gripping with his left hand. The undisputed evidence of the District is that Mr. Misiak was placed in a job that does not require repetitive motions with his left arm or any forceful or sustained gripping. Mr. Misiak has not identified any accommodation that was recommended by WorkSafeBC, or that he requested, that was not implemented.
[19] ……..The District provided detailed evidence of the recommendations made by WorkSafeBC and how they implemented each recommendation. While Mr. Misiak says in his response that his WorkSafeBC claim was denied and he was not accommodated, the evidence before me shows the District implemented all of the recommendations made by WorkSafeBC.
[22] Mr. Misiak’s submissions are general complaints about the conduct of members of the health and safety committee at meetings, and the quality of air filters in schools. It is unclear on the materials what equipment Mr. Misiak is saying he had to supply for himself. He says the District took a long time to purchase and install new drill presses for the school’s woodworking program but has not pointed to how this is related to any physical disability he has. Similarly, Mr. Misiak alleges someone stood in front of him during a health and safety meeting and he was unable to respond to questions. Mr. Misiak has not provided any information that links his experience at a meeting to any disability. The District points out that there is no evidence to support Mr. Misiak’s allegation that he was not paid for his work.
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Four points to highlight
* The test to move a complaint past the dismissal stage is LOW….but you still have requirements you must meet.
** You will need to be able to identify your disability-related adverse impact. Not just any adverse impact. It has to pass the discrimination test.
*** You need to point to some kind of evidence that supports what you are claiming.
**** You can have unfair, horrible stuff happen to you, but it doesn’t mean that it is discrimination. There is not going to be legal remedies for all of the negative experiences you have in your life, or for all of the horrible things that people are going to do to you.
You will save yourself a lot of unnecessary pain and deprive the lawyers of their billable hours by understanding what complaint systems can create change and what those systems need from you in order to be successful. There are limitations in all of them, and they are all connected to different legislation. There are also complaint avenues or resolution avenues as an employee that I do not mention in this blog or on my website, as I primarily focus on parents advocating on behalf of their children. Information on complaint system options.
Parents & caregivers, we too have to focus on our kids’ disability-related needs, and how the harm they experience is connected to those needs, to be able to pass the discrimination test. We too, have an education case from the tribunal that has been very clear that not all negative experiences are discrimination.
Discrimination Test
3 questions.
- Does your child have a disability?
- Did they experience harm?
- Was the harm connected to their disability?
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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.
