A lot of human rights decisions from tribunals will focus on whether the school’s response and decision making was reasonable. Where the accommodations reasonable? Was the delay reasonable? Did they try and mitigate the harm? Was that reasonable?
Given what they knew at the time about the child’s disability-related needs, did they make a reasonable decision? It doesn’t need to be the perfect decision, just reasonable. Can they justify it?
When it comes to decision making, in order for it to be administratively fair, they need to explain to you the decision. According to Ombudsperson, you have the right to receive a decision, “Fairness is also about providing clear and meaningful reasons for decisions so the person affected can understand what process your organization followed and how it came to the decision it did.”
If schools are justifying their accommodations as reasonable, it is only fair that they explain why they justify those accommodations. There justification has to meet a specific standard. (See below)
Tribunal decisions have already clearly stated that we don’t get to pick what accommodations are provided to our child, we are on a consultation basis.
Leaving a student to suffer disability-related impacts without accommodations, was not seen as reasonable when they were aware. They couldn’t justify it. If they can’t justify it based on fact and evidence, they are in trouble. It can be discrimination.
Let’s look at some cases and see what they say. I will discuss more below once you read through the cases I have selected with key take aways at the end of the blog. Knowing and understanding this, how can we tailor our advocacy? We can use this to make it work for us, and push them on this. Push them to make their decisions make sense. Justify it as reasonable. They can’t do that? Then we can push the line and move it.
CASE ONE
An example of what is unreasonable:
Student (by Parent) v. School District, 2023 BCHRT 237
[100] In short, I agree with the District that the Parent and Student were obliged to bring forward information relating to accommodation. The Parent did that, when she communicated that the Student had anxiety and trichotillomania and that school was taking a significant toll on her physical and mental health. That information should have been enough to prompt a meaningful inquiry by the school to identify what was triggering the Student’s symptoms and what supports or accommodations may be appropriate to ensure she was able to meaningfully and equitably access her education. The failure to take that step was, in my view, not reasonable. As a result, the disability-related impacts on the Student, arising from conditions in her Language 10 class between April 24 and June 27, 2019, have not been justified and violate s. 8 of the Human Rights Code.
(Summary: school knew she was struggling, knew she had a disability, and that her struggling was connected to school. They didn’t do anything about figuring out if she needed any accommodations. Not a reasonable response.)
*********
CASE TWO
X by Y v. Board of Education of School District No. Z, 2024 BCHRT 72
[112] Accommodation requires a reasonable, not a perfect solution: Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970 [Renaud]. While there may have been other approaches available to the District, this does not necessarily render the one taken unreasonable. What is reasonable and what constitutes undue hardship is fact specific and will turn on the specific circumstances of a particular case: Renaud.
(Summary: You don’t get your perfect or ideal accommodation, only an accommodation that achieves the goal of equity. It will be very case-by-case what that looks like. Not the same for every person.)
********
CASE THREE
Kahn v. Upper Grand District School Board, 2019 HRTO 1137 (CanLII)
[260] In rejecting the Loop of School plan, Ms. Kahn failed in her obligation to co-operate in the accommodation process. In so finding, I note that parents do not have the right to dictate the accommodations which their children will be provided with to access education. While parents do have the right to provide input as part of the accommodation process – which Ms. Kahn did in this case – they must accept reasonable accommodations offered by the school board. See UM v. York Region District School Board, 2017 HRTO 1718; Fisher.
(Summary: School educators determine what the accommodations should be. If you don’t help to facilitate this and give them a chance to see if it works, you wont be able to complain later. You complaint could be dismissed.)
********
CASE FOUR
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.
This case had the court assess their reasonableness in their response and they outlined the reasonableness test.
THE STANDARD OF REVIEW
[10] The standard of review to be applied when the merits of an administrative decision are challenged is reasonableness (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 16). None of the parties suggested that the Legislature intended a different standard or that the rule of law requires the standard of correctness be applied. (Vavilov at para. 17)
[11] In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified. What distinguishes a reasonableness review from a correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision-maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision-maker’s place. (Vavilov at para. 15; see also para. 83)
[12] Other principles which guide a reasonableness review are:
• A decision is unreasonable if there is a failure of rationality internal to the reviewing process or where the decision is untenable in light of the relevant factual and legal constraints (Vavilov at para 101);
• A decision must be based on reasoning that is both rational and logical (Vavilov at para. 102);
• A reasonable decision is one that is justified in light of the facts; the reasonableness of a decision may be jeopardized where the decision-maker has fundamentally misconstrued or failed to account for evidence before it (Vavilov at para. 126);
• A decision-maker’s reasons must meaningfully account for the central issue and concerns raised by the parties. Where a decision-maker fails to meaningfully grapple with key issues or central arguments raised by the parties, that may result in the decision being unreasonable (Vavilov at paras. 127-128).
[30] In my view, the Report is a fulsome consideration of how the Division considered and accommodated the learning disabilities of Ms. Wells’ son. It is “transparent, intelligent and justified”. The Investigator understood Ms. Wells’ concerns and considered the evidence with those concerns in mind. She acknowledged the differences between Ms. Wells and the Division with respect to the son’s learning challenges and reasonably concluded that the Division would be in the best position to determine how to accommodate those challenges, taking into account the available assessments.
[31] I agree that there was ample evidence of extensive and reasonable efforts by the Division to accommodate the son’s needs, notwithstanding that the applicant did not agree with them. Dissatisfaction with the decisions of the Division do not amount to discrimination.
[32] In my opinion, the Report and the decision to dismiss the Complaint is transparent, intelligent and justified.
[33] The application is dismissed, with costs.
***************
Professionals have a zone of reasonableness. Their decisions don’t need to be perfect, but there is a standard for reasonableness.
Even with the Teacher’s Regulation Branch, their behaviour has to be a “marked departure” from the Teachers Standards. It has to be unreasonable based on their professional expectations.
So let’s review.
If you feel the accommodations are not reasonable and your child is still not equitably accessing their education…remember they need to remove barriers…. then the school needs to justify their decision making to you in order for it to be possible that it is reasonable and administratively fair.
Their explanation needs to be:
- Transparent
- Intelligiable
- Based on fact and evidence
- Rational and logical
- Connect to the key concerns
What can you do?
- Explain the harm you are witnessing. You are the one best to discuss your child and their needs. They get the final decision, but they are required to meaningful consult with you.
.
- You will need to communicate need to them (in an email) so they don’t claim hindsight later on. You don’t want them to try and claim they made a reasonable decision at the time based on what they knew.
.
- You want to trigger meaningful inquiry by expressing the harm you are witnessing and linking it to school.
.
MEANINGFUL INQUIRY – MEANINGFUL CONSULTATION – DOCUMENT DOCUMENT DOCUMENT
The duty to accommodate requires collaboration. Both parties have responsibilities in the process. Advocating for your child is part of the process. If you refuse to collaborate they can claim that you “frustrated” the collaboration process and they made a reasonable decision based on the information they knew at the time. They still have a requirement to accommodate your child whether you are involved in advocacy or not.(1) If you don’t want to be consulted you don’t need to be. They will just make their “reasonable” decision with the information they had at the time, minus any input from you.
*** The duty to accommodate is a process grounded in legally protected rights. This is not a perfect system. It is the most powerful form of advocacy we have, as it forces the schools to do things and explain things that no other system can. Parents experience more success advocating for their kids using a human rights lens. Even with Ombudsperson, it’s a recommendation, not an enforcement.
Push them to justify their behaviour, their decisions through the lens of reasonableness. When they can’t do that, you know you have room to push for further supports. Always come back to the discrimination test. Can you prove harm? Yes? Then keep going.
Keep in mind, you can appeal a decision or an absent of a decision to the School Board called a Section 11 appeal.
I don’t want to tone police, you do you, but when you ask them to justify their decision making, I wouldn’t suggest you use those words. Seeking clarification….. or can you please explain ___ to me so I understand better…
No one is going to fault you for wanting to understand someone’s decision making related to your child’s accommodations.
Having them justify their decision making,
or NOT being able to justify it
can be very helpful with your advocacy and evidence collecting.
Good luck advocates!
Here are some further blogs that expand on concepts I discussed above.
1. Hindsight
4. Meaningful consultation & A Guide to Meaningful Consultation
(1) – They have the duty to accommodate your child whether you are involved or not.
L.B. v. Toronto District School Board, 2015 HRTO 1622 (CanLII)
(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.
