As part of the Justification Test, school districts need to accommodate students to the point of undue hardship.
I have heard from lawyers that in terms for a public school, this is a high bar.
In terms of a very popular cited case from the Supreme Court of Canada on this, it states
Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970
“While the words “short of undue hardship” limit this duty, the use of the term “undue” infers that some hardship is acceptable. More than a mere negligible effort is required. The qualification that the measures be reasonable was an alternate way of expressing the same concept and is a question of fact varying with the circumstances of the case.”
School principals will give you loads of excuses about staff constraints, EA constraints, blah blah blah. Those are excuses. Not the final decision.
Some parents are being told their child cannot be provided a scribe. I would love to hear their undue hardship argument over that. The whole district cannot afford and provide a scribe? Seriously!?!
Go higher.
The DISTRICT as a whole needs to accommodate your child. So look through your million-dollar budgets.
They can hire people. They can hire American Sign Language interpreters. They can hire more EAs. Unless someone makes them, it’s easier for them to just use delay strategies on you and hope you go away.
We must remember…..
Moore v. British Columbia (Education), 2012 SCC 61 (CanLII), [2012] 3 SCR 360
[36] But if the evidence demonstrates that the government failed to deliver the mandate and objectives of public education such that a given student was denied meaningful access to the service based on a protected ground, this will justify a finding of prima facie discrimination.
[37] As previously noted, the mandate and objectives for public education during the relevant period were set out in the School Act,which stated in its preamble that “the purpose of the British Columbia school system is to enable all learners to develop their individual potential and to acquire the knowledge, skills and attitudes needed to contribute to a healthy, democratic and pluralistic society and a prosperous and sustainable economy”. A related policy document, the 1989 Mandate for the School System, O.I.C. 1280/89, said that the government was “responsible for ensuring that all of our youth have the opportunity to obtain high quality schooling that will assist in the development of an educated society” (p. D-96). The Mandate said that schools should develop students who are, among other things, “thoughtful, able to learn and to think critically . . . can communicate information from a broad knowledge base . . . [are] creative, flexible, self-motivated . . . have a positive self image . . . [are] capable of making independent decisions . . . [are] skilled and . . . can contribute to society generally, including the world of work” (p. D-96).
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You can ask schools how your accommodation requests are an undue hardship for the district. Because if you file a human rights complaint, after you complete the burden of proving your case, they will have to justify their decisions or lack of action.
You are not the only one who will have to provide evidence for the tribunal. However, you will need to prove all three elements of the discrimination test first. Then it’s over to them.
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Broe v. The Board of Education of School District No. 67 (Okanagan Skaha) (No.3), 2025 BCHRT 295
[56] If Ms. Broe were successful in establishing all three elements, then the burden would shift to the District to justify its conduct based on a bona fide occupational requirement. If the District proves this defence, then there is no discrimination.
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This case is connected to partial school days.
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Student Y by Grandparent S v. Board of Education of School District No. X, 2024 BCHRT 353
[54] While Student Y was not entitled to a perfect accommodation, I do need some evidence regarding whether other accommodation could or could not have been implemented earlier to avoid some of the negative impact to Student Y. I do not have submissions from the Respondents on whether providing other options would have been possible or would have constituted an undue hardship, financially or otherwise. I do have a lot of evidence before me what the School District did to accommodate Student Y but what is missing is how this accommodation was all that it could have done. Given the lack of evidence before me on undue hardship, I am not persuaded that the School District is reasonably certain to prove they discharged their duty to accommodate.
[55] Finally, the School District says that given Student Y’s behavioural issues, it had authority to put her on a partial day program. It says that Student Y cannot use this forum to challenge the validity of the Ministerial Order granting it that authority. In my view, that is not what Student Y is trying to do with her compliant. The School District’s actions or inactions could still be found to be discriminatory even though it was acting pursuant to Ministerial Order. If there is a conflict between the Code and any other enactment, the Code prevails: Code s. 4.
[56] I am not satisfied that the School District is reasonably certain to prove it took all reasonable and practical steps to address the challenges Student Y was experiencing in accessing her education. While at a hearing of this matter, the School District may adduce evidence that it accommodated Student Y up to the point of undue hardship, it has not done so here, and I decline to dismiss the Exclusion Allegation and the Partial Days Allegation under s. 27(1)(c).
[52] From the materials before me, I am satisfied that the School District was actively and intensively involved in attempting to accommodate Student Y’s disabilities from the time that Student Y was in grade one up until the time that she was excluded from school in grade three. However, the question before me on this application is whether the School District is reasonably certain to prove that it “could not have done anything else reasonable or practical to avoid the negative impact on the individual”: Moore at para. 49 [Emphasis mine]. In my view, there is a lack of information in the materials before me that would allow me to conclude that the School District is reasonably certain to do so.
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** If anyone is looking for a bus transportation case for kids with disabilities, I give you this one from Ontario. The parents won.
M.O. v. Ottawa Catholic District School Board, 2010 HRTO 1754
[59] There is no issue that the transportation the Board provides to its students is a “service” within the meaning of the Code. The Board stressed that student transportation is a “privilege” and not a “right” and that it is ancillary to its core function of providing education services. There can be no doubt, however, that having chosen to provide transportation to support the ability of students to access education, the Board has an obligation not to discriminate in the provision of that service: see Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624 (CanLII).
[85] The Board can validly rely on the cost of accommodation as a defence to its obligation to provide the requested transportation. However, impressionistic evidence of increased expense will not generally suffice: see Grismer, above. I find the evidence of the potential financial cost to the Board of accommodating this applicant to be impressionistic and not persuasive.
[86] In conclusion, I find that the Board discriminated against the applicant in imposing a requirement on him that resulted in adverse treatment based on his disability. As the accommodation of the applicant would not lead to undue hardship, the Board has failed to establish a justification for the unequal treatment.
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They go further into the cost analysis in the full case, which as always I encourage you to read both cases in full.
We even know that in Kerber v Alberta, 2025 ABKB 98
[152] The Charter guarantees equal access to education for all students; the corollary effect is that that the equitable principle must be applied in times of labour or resource shortages. Here, what is apparent is that there was no consideration of how the reduced resources could be redistributed among all students.
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When it comes to costs…this case is about a post-secondary discrimination case, which the person won.
Dunkley v. UBC and another, 2015 BCHRT 100
[682] UBC addressed the issue of undue hardship in its letter to Dr. Dunkley summarizing the January 20, 2011, meeting. It stated in part:
…It had been estimated that the costs involved in providing interpreter services necessary to accommodate Dr. Dunkley’s training requirements in the program would be at least $500,000/ year for a total cost of 2.5 million dollars for the five year program. Dr. Rungta explained that he fully recognized the obligation of UBC Postgraduate Medical Education to accommodate Dr. Dunkley’s disability, but stated that the requirement to do so is only to the point of undue hardship. Given the cost of providing the interpreter services that Dr. Dunkley will require, UBC has concluded that this represents undue hardship as UBC cannot provide the accommodation she has requested.
[683] In its January 6, 2011, letter to the Ministry and in its submissions UBC described the cost of providing Dr. Dunkley with interpreter services as “prohibitive”. For the reasons that follow, I find that UBC has not supported this conclusion with concrete evidence and has not established that the cost of interpreter services would have resulted in undue hardship.
[684] I have found that UBC did not reasonably assess the cost of the accommodation. I found the calculations it relied on unreliable and inflated for the reasons set out above. It did not undertake reasonable steps to assess alternatives that might reduce costs while providing meaningful access to the program in terms of program goals.
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AND ASL interpreters for Deaf children, here is another successful case.
The bar is high folks.
I am willing to bet that there are a lot of educators out there who are not aware of what they are actually responsible for.
They are duty bearers.
Many do not realize that IEPs are NOT optional. And human rights supersede their teacher classroom autonomy. We see in the first case above that a Ministerial Order is not enough; the Code prevails.
Here is an accepted case on a student being denied an EA for one of his classes.
Your child has rights.