Author: Kim Block

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Families are Advocating – A Year in Review for Human Rights, OIPC Decisions, and the Media!

(This blog was originally posted on my Speaking Up BC website at the time in year 2024)

It’s been quite a year for tribunal decisions. An explosion of decisions that have advanced the human rights code that I haven’t seen occur in a VERY long time. I hope the school districts are paying attention. They need to stop underestimating people. Families are advocating!

Human Rights Decisions

In the last 365 days we have had the following cases.

Student (by Parent) v. School District, 2023 BCHRT 237 – December 19th, 2023
Key Point Summary Link

This case spread across Canada in over 60 different media outlets into large cities and small towns. Even internationally. Media list blog. Who would have ever predicted that would happen!?!

This case was a partial win by a self-represented parent. There are many key highlights of this case that advance the human rights code. It writes that you don’t need an IEP to be protected under the code, self-advocacy expectations are defined, and the most beautiful part is MEANINGFUL INQUIRY. Anxiety gets pushed under the rug as no big deal in schools. This case elevates the attention and seriousness of how anxiety impacts a student. It also brings up the topic of communicating a diagnosis between staff. It also highlights hindsight and how important it is for parents to be communicating to the school what they are seeing at home.

X by Y v. Board of Education of School District No. Z, 2024 BCHRT 72 – March 8, 2024
Key Points – Summary Link

This case was also by a self-represented parent. It wasn’t a personal win for her, but due to her absolute persistence in completing this case AND waiting 15 months for the decision! It did advance the human rights code and the community as a whole has benefited. The jewel out of this case is that education staff are not allowed to give up. They have to continually keep trying by evaluating and adapting their methods. You would think that parents actually don’t need this in writing, but we do.

The Parent v The School District, 2024 BCHRT 113 – April 2024
Key Point Summary Link

This case was again also by a self-represented parent. It confirms that the human rights tribunal will accept family status complaints from parents in connection to the discrimination or harm that their child experiences in an educational setting. This also links to another family status case that occurred at the BC Supreme Court level that confirmed that the tribunal has the authority to accept family status and education as a valid complaint. A public-facing decision, a turning point for parents with disabilities in education.

Child K (by Ehmke) and another v. Queen of All Saints School and another – May 16th, 2024
Key Point Summary Link

This case confirms that the tribunal is willing to name school districts in human rights complaints. FABULOUS. This case also is clear as a bell in saying to education defense lawyers that using TRB complaints will not be accepted for dismissal reasons. So, parents don’t have to fear that filing TRB complaints will compromise their human rights complaint. If anything, I think they help, as a way to gather evidence that the education staff submit. It’s a gold mine of documents that we can access that we would never even know existed.

SUMMARY: Human Rights Cases are very important advocacy tools to use when communicating with your child’s schools. It is very likely that the staff don’t even know what their legal human rights responsibilities are. These cases need to be APPLIED. Then when we all do this, we move the needle.

OIPC Decisions

We also can’t forget the OIPC decisions that occurred in the past year.

Way to go! Two of them were by parent(s)/guardians!

F24-30 April 15th, 2024 – School District Coquitlam
-Section 14 – lawyer-client privilege

F24-09, February 7th 2024 – School District Coquitlam
– Section 13, Section 22

To read the other previous cases in previous years also by parents, here is the list.

Ombudsperson BC

This case came out this year about there not being an appeal avenue for a section 177. That is huge. Parents who receive these can now ask for what the appeal avenue is and if school districts don’t automatically tell them, then they are not following the recommendations and standard from Ombudsperson BC.

School’s out

Media Articles

We also want to look back and appreciate the media articles that were spearheaded by parents. They brought their issues to the attention of the public via the media. That isn’t easy. Way to go! If parent(s)/guardians aren’t brave enough to do this, the public will assume everything is okay-dookie. We thank you!

August 9th, 2024 – The School System has Failed my Kids – Surrey Mom Speaks out

March 30th, 2024 – Vancouver schools lag on playground accessibility, parents say

March 11th, 2024 – Parents demand fix for staffing shortfall at Vancouver school

March 9th, 2024 – Parents voice concerns over ‘crisis-level’ staffing shortages at Vancouver school

March 8th, 2024 – Parent says school district’s decision comes as a huge relief to parents and students 

Social movements are slow.
And this is what advocacy for disability rights is.
A social movement.
It will always be too slow for anyone’s liking.
Really.
While we wait for change, harm is being done.

Some people feel defeated and think what is the point,
the system isn’t changing.

Change very rarely occurs in leaps and bounds.
Certainly not in human systems.
It’s normal for it to be
2 steps forward,
1 step back,
3 steps forward,
1 step back,

It’s always messy.
Never a straight line from A to B.
More like a zig-zag all over the place.
But this is how humans work.
Especially in large groups.
Societies.
No way to get around that.
Just need to muddle through it.

But we are seeing more advocacy tools pop up.
Decisions and accessibility legislation.
Families are advocating.
More external watch bodies are taking notice.
Change is slow.
But it is occurring.
The roots are growing.

What is scary and dangerous is when the system feels no one is watching.
That they are untouchable.
Then the system will change in leaps and bounds.
It can always get worse.

We need to hold the line.
Send the message that we are here.
We are watching.
We are learning.
We will take action.
And clearly, we have.

Let us focus on this:
Many seeds have been planted this year.
May they take root and grow



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5 Rules on How to be Untouchable

(Or at least try to be…)

The school district and their lawyers are just waiting for you to do any of the following things listed below…literally sitting back, fingers crossed and waiting. They know what works. They do this all the time.

They can use your own decisions against you in multiple ways. Destroying your credibility at a hearing, filing a section 177 against you, getting your human rights complaint completely dismissed and with costs, shutting down complete communication with you, sending you a cease and desist letter or threatening a defamation lawsuit.

(And before we go any further, trust me, this blog is not from personal experience. For those of you who know which school district I am connected to, please don’t infer, none of these things have happened to me.)

This blog is from reading case law, newspaper articles, finding websites/YouTube videos of pissed-off parents and hearing their stories, hearing stories directly from other parents, and hearing through the grapevine ALLLLL of the multiple other stories floating around our community. This by the way is a national issue, not just a BC issue. So, if you are sitting in a small town in PEI, this stuff still applies.

To the people waiting for you to do any of these things… this is a chess game. It’s not a chess game to us, and its a hard pill to swollow just how strategic navigating the maze needs to be, but we need to realize that this is how its viewed by them. And we need to figure out what the rules are and follow them.

When we follow the rules, we are closer to being untouchable, and we can continue to advocate.

Here we go.

Rule #1 – Always be polite and respectful.

  1. Don’t be rude. Be polite and respectful. Always.
  • Losing your cool and sending in an email that is just blasting them, insulting them, threatening them, etc, etc. is an easy way for them to be all over you and be backed up by the tribunal and court system. This will open the door for them to file a dismissal and get your case dismissed and apply for costs, file a section 177 etc, etc. They are literally hoping you go this route and you make it really easy for them to control you. They can’t wait for this to happen.
  • Sending in your emails doesn’t need to align with exactly how you feel. Your emails need to be written with strategy in mind. Your intent can be to either to document what is happening with the purpose of gathering evidence, to communicate your child’s unmet needs in ways that they can’t claim hindsight later on and trigger meaningful inquiry, to be problem-solving to resolve the immediate issues at hand etc. But making yourself feel better to release the stress valve has the potential of undermining your advocacy and destroying the opportunity for the systemic changes that you are hoping for.
  • It’s a painful part of the advocacy process to think so strategically, but this skill is really really important. I think of it as, we need to become Cheetahs. Cheetahs are loving parents, and affectionate with their young. They are also the most extremely patient and strategic hunters. We need to be cheetahs for maximum efficiency. We can’t let our advocacy efforts be undermined and swept aside because we lose our shit. They will poke us and poke us and just wait for us to explode. We need to have other release values and when we interact with them, we are in cheetah mode.
    .

Rule #2 – No defamation, no naming

2. Don’t name or defame anyone on social media.

  • Defamation is a really easy hook to get you on. Defamation just needs to be said to one other person. It is ridiculous how fast they will jump on this.
    .

See news article below, click to read.

Mom threatened with legal action after questioning B.C. principal who’s now accused of misappropriation
2014 letter from school board lawyer warned against ‘defamatory statements’ about Tricia Rooney
  • That means on any social media site, in conversations with anyone else, you CAN’T name people. You are making yourself way too easy of a target.
  • I took a workshop on defamation. Here are my notes.
  • If you are in a heated battle with the school, keep your circle very small on who you let in. These need to be trusted people in your life. You can talk about your situation, just don’t name anyone.
  • Having fake social media accounts can be ways of interacting with support group FB accounts or posting anonymously can be a layer of protection that will aid in your untouchability.
  • Parents have had human rights cases dismissed and their social media posts were used against them.
  • Trust me, they troll your social media when you become a red flag to them.
  • You never know who is in a Facebook group. Just like it is easy for a parent to make a fake account to protect themselves, it’s easy for anyone to make a fake Facebook account. Facebook groups are public, not private.
    .

Rule #3 – Don’t share confidential information

3. Don’t post content on social media that has the words CONFIDENTIAL on it. This again opens you up to them being able to threaten you with legal action and having the ability to control you.

  • This includes anything from the government that is sent to you in a password protected file or simply has the words CONFIDENTIAL at the top.
  • And yes… this is how the system stays in control and keeps everything hidden. I know. If you want to present this information as evidence in a hearing, that’s a different story. Stuff that is hidden away under privacy laws can still be used as evidence at tribunal hearings and court proceedings. This again is about being strategic about what we do. Be the cheetah. Wait it out. If you play the chess game right, you’ll be able to present the evidence when you need to and maximize your efficiency.
    .

Rule #4 – Don’t protest

4. Do not protest a decision in a school by refusing to leave, or forcing your way into a classroom. Refusing to pick up your kid in the name of protest, I also don’t suggest. You are setting yourself up for a section 177 and you will be accused of not working in good faith with the school, you will not be following your duty to facilitate and your human rights complaint has the potential of being dismissed. If you refuse to pick up your child without good reason in the name of protesting, MFCD may be called.

  • Even if you adamantly disagree with the a decision that the school has made, they have the power to make those decisions whether you agree or not. It’s risky for them if they didn’t meaningfully consult with you, but the School Act and Supreme Court of Canada, do give them the power to make class placement decisions and reasonable accommodation decisions.
  • The only way to maintain your credibility and access to the school is to follow the internal and external complaint systems in a civil manner. I know, that they are the ones controlling the system and this isn’t going to be fair. Totally get it. It doesn’t matter. If you want to give them even more power and have them cut you off at the knees then behaving in a way that makes you non-compliant, or the staff don’t feel physically or psychologically safe around you will end up being a gift to them. It will be so easy for them to file a section 177. Next time you show up at the school the police will be called and you’ll be out the door so fast. Don’t do them any favors. Collect your evidence and nail them in due course. Patience.
    .

Rule #5 – Knowledge and your values are power

5. This rule isn’t a rule on not what to do, this is a rule on what to do. This will also help to make you feel personally untouchable.

  • Know your stuff. That means human rights law, duty to accommodate, and external complaint avenues. Learn as much as you can. Knowledge is power. Ground your arguments in evidence and documentation. Stick to the facts. Don’t over-exaggerate. Don’t lie. Your credibility is everything.
  • This to me personally, is so important. Following your values is the most powerful tool to be untouchable. When you align your advocacy with your values, and how you want to treat people, strength is unlimited. What is your fuel? Unfairness? Systemic oppression? Lying? Even though people may be playing dirty with you, or lying to you, navigating your advocacy with how you want to operate and interact with people can give you a sense of emotional untouchability. It’s called inner peace. And it’s priceless.

Be one with the Cheetah.
Make it hard for them.
Don’t be easy prey.
You’ve got this.

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What is the Human Rights Tribunal Take on Exclusion?

The timing of this decision was spot on.

This decision was released January 13th and the Ombudsperson announcement was the day after on January 14th.

Student Y by Grandparent S v. Board of Education of School District No. X, 2024 BCHRT 353

I have added this case to my list under the human rights cases tab. I have picked out some paragraphs, but I really encourage you all to read the full case to get the context of what happened to this child and family. The respondents applied for a dismissal and the human rights tribunal decided the complaint should continue.

There are a few paragraphs in this decision that got my noodle thinking, but for this blog, I want to focus on this paragraph below. Paragraph #52.

[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.

The author of this decision decided to emphasize the words anything else. It wasn’t me that bolded that in the paragraph.

So, this is my guess.

When the human rights tribunal emphasizes ANYTHING ELSE are they eluding to an alternative learning space?

A lot of districts have alternative learning programs for students who need alternative learning spaces. There has been a recent uproar over the closing of a learning centre in the Surrey district with parents and students very upset over its closing with media coverage and rallies. The school districts report funding issues. There was also another family who was in the media, and their son was in a life skills program, and he was excluded due to lack of resources. Without systemic financial planning from the Ministry of Education to keep these alternative programs running, they end up closing and students are still being excluded.

In the face of complete exclusion for some students from schools, will school districts be required to provide alternative learning spaces as their ANYTHING ELSE or face human rights complaints? The school districts already have the power to choose the education program for the student and choose classroom placement. This is from the Supreme Court decision Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 SCR 241 (Notable paragraphs are: 76, 77, 78, 79, 80, 81)

What does the tribunal mean by ANYTHING ELSE? They have already acknowledged the school district was “actively and intensively involved in attempting to accommodate Student Y’s disability”.

We are at the brink of having Ombudsperson and possibly the Human Rights Tribunal (if this case goes to a hearing), set forth some expectations around the topic of exclusion.

After you read this case, what is your guess? What do you think anything else means?

Very interesting times ahead. Very!

Here is a case of exclusion from Ontario.

This case explained the Duty to Facilitate in the context of education.

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Settlement & Mediation Information

Here is some settlement and mediation information.

Fact Sheet from the BC Human Rights Clinic on settlement and mediation

https://bchrc.net/…/FACT-SHEET-Mediations-and…

Guide to Settlement Meetings from the BC HRT (BC Human Rights Tribunal)

https://www.bchrt.bc.ca/law…/guides/settlement-meeting

How to Prepare for Settlement Talks

https://www.bchrt.bc.ca/…/prepare-for-settlement-talks

Mediation policy and mediation process from the BC HRT https://www.bchrt.bc.ca/law-library/policies/mediation/

If there is no settlement resolution, the respondents may decide to file a dismissal application if they feel they have made you a reasonable offer. https://www.bchrt.bc.ca/law…/guides/dismissal-apps/da-7/

Settlement amounts have been noted by the BC HRT in decisions that settlement amounts are increasing. Just because they may apply, doesn’t automatically mean they will be able to force you to accept the amount. Their offer needs to be in the reasonable range of what the tribunal would award you. See this case below.

Bahrami Ghahnavieh v. SolidCAD, A Cansel Company, 2024 BCHRT 226

https://www.canlii.org/…/2024bchrt226/2024bchrt226.html

[33] However, I accept that the trend in Tribunal awards for injury to dignity is upwards…

[38] In the circumstances of the complaint, I find that SolidCAD’s offer of $4000 to Ms. Bahrami Ghahnavieh for injury to dignity is not within the reasonable range of what the Tribunal might order if Ms. Bahrami Ghahnavieh is successful at the hearing on merits. For these reasons, I deny SolidCAD’s application to dismiss the complaint.

The only person that can give you an idea of what would be reasonable based on the context of your complaint would be a lawyer.

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New Human Rights Decision – Denied EA Support – Complaint Accepted!

There is a new decision that was posted on the BC HRT website. All these decisions being posted by the BC HRT are so helpful to parents.

It’s always great to have decisions that give examples of the kinds of human rights complaints that get accepted and the public get a peak into the education system when they read the allegations. So many parents are always wondering….is this a human rights complaint? Well, not getting accommodations by failing to provide an EA is an example.

This decision is an interesting read. I encourage you to read it in full.

The Student (by the parent) v. The School District, 2025 BCHRT 17

This is an anonymization decision but check out the first paragraph.

[1] In April 2022, the Parent made a complaint against the School District on the Student’s behalf. The complaint alleges that the School District discriminated against the Student regarding its services based on the Student’s mental disability. Specifically, the complaint alleges that the School District failed to accommodate the Student by not providing him with an Education Assistant in one of his classes.

So…….

For all you parents struggling to get the appropriate amount of EA support for your child…which in recent years is becoming more and more of a struggle…here you go!

The BC HRT has confirmed that in this case the parent who filed a human rights complaint alleging the school district failed to accommodate their child by not providing him with an Education Assistant in one of his classes is an ACCEPTED human rights complaint which is proceeding through the process.

If you feel your child isn’t getting enough EA support, you have a potential human rights complaint.

For situations that are an emergency, you can apply to have your complaint fast-tracked.

Scroll to page 2 near the bottom. This is the form that you would fill out along with your complaint to fast-track your complaint.

General Application
https://www.bchrt.bc.ca/app/uploads/sites/876/2023/03/form_7_1_print.pdf

If you are filing a family status complaint for yourself, you can also send in a separate complaint just for you. Here is the human rights decision outlining this as an option.
The Parent v. The School District, 2024 BCHRT 113
Here is the summary page.

If you are curious, here is what the complaint form looks like. You will need to be able to answer these questions. Complaint form.

For those of you who would like some help filling it out, you can ask the Human Rights Clinic or contact the people on this page.

You certainly don’t always need to file a human rights complaint to have human rights needs addressed. You can use human rights law in your own advocating. If things are serious, sometimes people will find a lawyer who can address the issues directly with the school.

Also, what is also very interesting about this decision is that school districts clearly do not like being named. So, you know what that means. Something to consider is…..naming them!

Specifically this case:

Child K (by Ehmke) and another v. Queen of All Saints School and another, 2024 BCHRT 150

This tribunal member of this decision felt this situation was distinct from another case that named the school, but we still have decisions that are in support of school districts being identified. In this situation, the tribunal member wanted to err on the side of caution. I can’t blame the HRT for wanting that. It’s hard to predict what is going to happen in the future. If the mother is already creating online publications and has an internet presence, who knows.

It’s a shame school districts are so focused on fighting parents and not choosing the route of peace and resolution. It seems like they are so willing to spend taxpayers’ money on a ridiculous amount of lawyers’ fees instead of spending a ton less money and giving it to a child who experienced harm. The settlement money goes directly to the child, so even if they absolutely hate the parent, it’s not going to the parent. They really do provide the opportunity for people to sharpen their advocacy skills.

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Evidence of Harm. Effective Advocacy in Education.

Why is collecting evidence of harm so important? It will force the school to create action if the harm is related to their disability.

Part of an effective way to advocate for your child is going to be your ability to communicate with the school.

The information that you tell them is going to impact that effectiveness and also trigger certain human rights obligations. They aren’t allowed to just ignore a struggling student with disability related needs.

The Duty to Accommodate is established under section 8 of the Human Rights Code of BC.

In the context of disability, you will need to prove that they have a physical/mental disability that the school was aware of, that they experienced harm, and that this harm was connected to their disability.

If you don’t have evidence of the harm, you will likely have a decision that says you “haven’t brought your allegations out of the realm of conjecture.” You are going to need evidence.

We already have it written in a decision that not all negative experiences are discrimination. Their disability must be a FACTOR in the conduct.

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.

So….. what does this mean as parents?

We need to document the harm. Pictures, videos, recordings, emails, etc. We need evidence.

We need to be able to communicate to the school and connect the dots for them, that what they are doing is creating harm.

As parents, we need to communicate to the school that our child is struggling and this struggle is connected to their disability. This will trigger MEANINGFUL INQUIRY. They must investigate and come up with solutions to try and decrease the impact of harm.

Meaningful Inquiry

[99]           Next, in B v. School District, 2019 BCHRT 170, the evidence supported that the school district provided the child with the recommended supports and accommodations. The Tribunal found that it was “only with hindsight” that it was possible to say that the child could have benefited from more support: para. 81. It dismissed the complaint in part because there was insufficient evidence to demonstrate that the school district reasonably ought to have known that the child required more: para. 98. In contrast here, I have found that the District had sufficient information to trigger some kind of inquiry or response beyond asking the Student how she was doing and, assuming the counsellor did this, advising of available supports.

[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.

We don’t need to necessarily say overtly, that we are considering filing a human rights complaint. We can communicate in a way that shows them we are taking these issues seriously and one way of doing that is to provide them with evidence of the harm.

It may be through pictures of what has happened or video, but it can also just simply be statements the child has made at home about school or drawings they have done or things they have written down. Feel free to quote your child. Emailing this to the school does create an evidence trail so that if things are not resolved and you do decide to file a human rights complaint, all of these emails will form part of your document disclosure and you can bring them to your settlement meeting.

The respondents (the lawyers defending the school district) are going to make arguments that the school’s actions are justified and that reasonable accommodations were provided.

However, we want to show that our child is still experiencing harm, and say that reasonable accommodations were not provided. That’s why we need evidence of the harm.

The school district also has the final decision-making power with your child’s education. Parents have a duty to facilitate. Even if we don’t agree with their decision we must not become a barrier to their decision or if in the future we file a human rights complaint, it may be dismissed. Here is the case that explains the duty to facilitate.

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.

So, if their decision is creating harm, we are going to need evidence of that to show that what they decided isn’t working.

I know this piece of collecting evidence can be really hard for parents. They don’t feel that they “should” have to do this. They feel that this is being too aggressive and they don’t want to upset people at their child’s school. I get it. No one wants to feel that they are in an adversarial relationship with their child’s school.

When you advocate you can still be pleasantly persistent and communication doesn’t need to be adversarial. However, I haven’t known of any effective advocacy when parents put being viewed as “nice” as their priority, over effective communication.

Here is the Inclusive Education Manual created by Incluison BC for helpful information on how to communicate with your child’s school. Here is Family Support Institute’s Toolkit Resources on education advocacy. And I would also just want to add, that if things get intense…which sometimes they do. Please read my blog on 5 Rules on How to be Untouchable

Document

Communicate

Repeat

And if that doesn’t work….

You have external complaint systems

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Duty to Accommodate – Meaningful Inquiry

There was a very important case that was published by the tribunal in December of 2023 that highlighted some gems. Very helpful clarifications that help parent(s)/guardians in their advocacy.

  1. This case is proof that you don’t need a designation to be protected under the Human Rights Code. Many parents are rightfully confused by this and think that if their kids don’t have an IEP then they can’t file a Human Rights Code. Nope. Your kids just need to have a disability and this disability is communicated to the school. If you have a diagnosis letter that has been given to them, that really locks them in without any wiggle room.
  2. Self-advocacy expectations are defined. Thank goodness! Self-advocacy gets tossed around a lot in school districts. If anything happens about accommodations not being offered they will automatically blame the student for not advocating. Which is BS.
  3. Meaningful inquiry. Parents don’t even need to use the word accommodation to trigger an expectation from schools. This piece is absolutely beautiful.

I have picked out the paragraphs that highlight these gems.

Student (by Parent) v. School District, 2023 BCHRT 237

Some important gems in this decision that I see are:

Meaningful inquiry

[99]           Next, in B v. School District, 2019 BCHRT 170, the evidence supported that the school district provided the child with the recommended supports and accommodations. The Tribunal found that it was “only with hindsight” that it was possible to say that the child could have benefited from more support: para. 81. It dismissed the complaint in part because there was insufficient evidence to demonstrate that the school district reasonably ought to have known that the child required more: para. 98. In contrast here, I have found that the District had sufficient information to trigger some kind of inquiry or response beyond asking the Student how she was doing and, assuming the counsellor did this, advising of available supports.

[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.

[104]      In sum, I have found that the conditions in the Student’s grade 8 Language 10 class exacerbated the Student’s anxiety and trichotillomania, and that the District failed to take reasonable steps to investigate and address those conditions during the period between April 24, 2019, and June 27, 2019 (the last day of school). I find this is a violation of s. 8 of the Human Rights Code, and warrants a remedy, which I address below.

Around self-advocacy for children with invisible disabilities:

[90]           Generally, it is the obligation of the person seeking accommodation to bring forward the relevant facts: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. This can be challenging for children, and especially challenging for children with invisible disabilities. I agree with the Parent that children who require accommodation in their school are in a different situation than adults seeking accommodation. Though they have a role to play in the process, that role will be age and ability-specific, and the burden cannot be on a child to identify and bring forward the facts necessary for their accommodation.

IEP – For a Child with Generalized Anxiety Disorder and Trichotillomania

[59]           This ends the period of this complaint.  However, it is important to note that, in the Student’s grade 11 year, the school developed an individual education plan, or IEP, for her. This IEP set out the Student’s strengths, learning preferences, and goals. It identified specific supports for the Student, including flexible due dates, ensuring the Student was not put on the spot in class, reducing workload whenever possible, providing a quiet learning environment, and frequent teacher check ins. It also established that the Student would meet bi-monthly with the school counsellor to work on her goals. The Student’s grade 11 counsellor explains that she saw the IEP as a way to reduce the burden on the Parent and to support the Student to advocate for herself. From the Parent’s perspective, this was a welcome development that should have been done much sooner.

[7]               In this case, there is no dispute that the Student has disabilities, namely generalized anxiety disorder accompanied by trichotillomania (hair pulling). She is protected under s. 8 of the Human Rights Code from discrimination in her education. This complaint is about the Parent’s allegation that the symptoms of the Student’s disabilities were exacerbated in grades 8 and 9 because of her experience in Language 10 and Language 11, and that the District failed to accommodate her disability-related needs in those classes.

** Even without a designation at the time, she is still protected under the Human Rights Code.

Mental Health Stigma – Failure to Identify Diagnosis

[34]           The Parent did not see this email at the time. From her perspective, the email was not adequate to appropriately communicate the scope of the Student’s school-related needs. It did not fully communicate what the Parent had told the counsellor, and what she had expected would be passed along to the teachers. She felt it was also not realistic to think that the Student would approach a teacher and ask to be excused; in fact, this was not an option that it seems the Student ever exercised. In the Parent’s view, the failure to identify the Student’s diagnoses perpetuated the silence and stigma of mental health and undermined the Student. The message contrasts, for example, with the communication that the Parent sent to the Student’s teachers at the start of her grade 9 year, which said:

Communicating and providing evidence of a diagnosis

[13]           In light of the Student’s barriers in advocating for herself, the adults in her life have had to take on a more proactive role. The Parent’s open and active communication has been critical to ensuring that the Student’s needs are recognized and met in school. Throughout the Student’s education, the Parent has let her schools know about her disabilities, and that she may require monitoring because she is unlikely to proactively seek the support she needs.

[14]           There is no dispute that, due to the Parent’s advocacy, various individuals within the School District were aware of the Student’s diagnoses before and during the period of this complaint. For example, in the spring of grade 7, the Parent provided the elementary school with a note from the Student’s psychiatrist confirming that the Student had a “long-standing diagnosis of General Anxiety Disorder”. At the Parent’s request, this note was placed in the Student’s school file.

** This is a very important aspect as this ensures that a district has a duty to accommodate.

From the Human Rights Clinic Blog, Stress, Anxiety and the Duty to Accommodate, they explain…

“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.”

Here is Ms. Matheson’s case.

The media attention that this case brought can be seen here.

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“It depends…”

People want to know what navigating the human rights tribunal system is going to be like for them. If it is going to be a lot work, or how many hours they will they need to have available for them to do it.

It all depends.

It depends on what your goals are.

Do you want a settlement for your child with specific remedies for them? For example, more EA support, a new school district policy, and/or settlement money. Currently, with the complaint process, the settlement meeting option is coming before anything else. Document disclosure, applications, case conferences, etc. Those all come after if the settlement meeting didn’t bring the parties together on an agreement.

If you want to take your case to a hearing, now we are talking about a whole other level. You are going to need to self-educate yourself more.

Everyone’s experience isn’t exactly the same and their cases aren’t exactly the same. Some parents are absolutely LIVID and that anger propels them forward into action. Some people are sad about how everything has unfolded, and they just want this to be over and move on. Some people need certain things to happen in order for them to move on. I find it also depends if you are in a public school or a private school. If you have a lawyer or if you are self-representing. It depends if your child is still in the school or if you have already pulled them out. It also depends very much on the complexity of your case, and how much learning you are going to need to do. Some people fear retaliation, while others see this process as protecting their child from retaliation. It also depends on who you are as a person and how much experience you have navigating systems. Some people have already been self-representing themselves in family court and so they already know how to regulate their emotions and go through the system. Their confidence levels are higher. Some people have support systems and are already part of advocacy groups, and/or they have other forms of emotional support in place. It all depends on so many factors. Some people navigating the tribunal system have had experiences of closure and peace, feeling heard. Others have felt it didn’t bring what they were looking for and it was a waste of time. For some people it feels like a big deal to file a human rights complaint, other people don’t think anything of it, just do it, and carry on in their day. It all depends.

There are a few common themes in people who file human rights complaints, that I have seen so far.

  1. They want change. They never want another child to experience what their child did. They want to change the education system.
  2. They want accountability. Having these people get away with what they did, they cannot accept. Part of this, I have noticed, is that people fear that they will just keep doing what they are doing and so this does come back to point #1, and not wanting another child to have the same experience.
  3. They want to be seen and heard. Having their child pushed off to the side, discarded as unimportant, just eats them away. Many of these parents have been receiving nothing but the silent treatment and filing a human rights complaint is a way of saying, HELLO!

Sometimes people want to know everything before they start something. Others feel it’s better to not know everything and just do it. Deal with things as they come up. For example, some people want to go to business school to learn how to start a business and some people just do it. It’s very interesting how people approach things.

What I do want to say is that you can’t depend on your experience being like someone else’s. It really can be so different depending on so many factors.

It’s impossible to predict the future. I don’t know what this experience is going to be like for you. One thing that I think is true for everyone, is that you will learn more bout yourself by navigating this system. You’ll find out where your boundary lines are, and what triggers you and moves you forward. Or, what you are willing to live with. I think there is potential for it to be an interesting journey, nonetheless. Advocacy always is.

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The Next Generation of Student Advocates

In the last year or so, we’ve had an increase in student advocacy throughout the BC Human Rights Tribunal Process. These students are doing things that not all adults can even bring themselves to do. Here is some hope for the future.

All of these advocates want to make some noise about their experiences. I encourage you to read their complaints in full. All four were able to experience different layers of success with their decisions.

Let’s take a look!!

Advocate #1

Vick v. Board of Education of School District No. 41 (Burnaby), 2024 BCHRT 104

[4] Ms. Vick alleges having a learning disability and other mental disabilities. She is a former student at the School District. Ms. Vick was a minor during the period when the allegations in question occurred and at the time she filed this complaint.

[5]               Ms. Vick alleges generally that multiple teachers at the School District were hostile towards her for being unable to complete course work on time because of her learning disabilities and mental illnesses. She says this occurred despite the teachers knowing about her disabilities.

[15]           In the August 8, 2022, complaint amendment, Ms. Vick confirmed she wanted to name the School District as the respondent in the April 6, 2022, complaint

33]           Ms. Vick is seeking justice for the School District’s alleged failure to accommodate her mental disabilities. She believes her case is unique and novel in that it involves a School District service provider failing to properly accommodate her disabilities.

[31] ….Ms. Vick demonstrated her maturity regarding the existence of the Code and the Tribunal process when she filed her first complaint with the Tribunal in September 2021 and this complaint on April 6, 2022, while still a minor on both occasions.

Two complaints she has filed. Good for her. As a way to enhance her justice seeking, here is a list of her allegations against the Burnaby School District from her complaint filed in 2022.

[7]               On January 1, 2018, Ms. Vick alleges a teacher sent a rude email to her mother in response to her mother’s request that Ms. Vick be accommodated for her disabilities [the January 1, 2018, Allegation].

[8]               On July 1, 2019, Ms. Vick alleges a summer schoolteacher refused to provider her with any accommodations while her support teacher was on a break. She says the teacher also stood beside her desk, pressuring her to finish a test [the July 1, 2019, Allegation]

[9]               On November 1, 2019, Ms. Vick alleges that she asked a teacher for an extension of time to finish an assignment, but permission was not granted until her support teacher later asked on her behalf. Later the same day, Mr. Vick alleges she was told to leave the class during a manic episode, despite not acting aggressively [the November 1, 2019, Allegation No. 1]

[10]           On November 1, 2019, Ms. Vick alleges a teacher made fun of one of her disabilities by asking if she was manic in a joking and sarcastic way [the November 1, 2019, Allegation No. 2]

[11]           On June 1, 2021, Ms. Vick alleges a teacher who was aware of her disabilities acted in a hostile manner when she was unable to finish her homework on time following a “mixed episode”. Ms. Vick says the teacher later told her in an email that it was not discrimination to refuse an accommodation. Finally, Ms. Vick alleges the teacher later dismissed the class 40 minutes early preventing her from doing a mandatory presentation, which resulted in her failing the class [the June 1, 2021, Allegation].

[12]           On September 9, 2021, Ms. Vick filed a complaint against the Ministry of Education alleging it neglected to make reasonable adjustments in how it provided education to those with mental illnesses, including herself, which would reduce the negative effects of mental illness on education outcomes. Ms. Vick alleges teachers’ lack the training related to teaching students with mental disabilities. She also alleges teachers failed to identify children with disabilities needing to be referred for an assessment of their diagnosis. Finally, teachers failed children with mental disabilities as they did not know the options for accommodating their disabilities.

Advocate #2

Child K (by Ehmke) and another v. Queen of All Saints School and another

Here are the allegations:

(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.

This was an anonymization decision. The child and the parent were fighting to be named and name the school. The tribunal took caution and decided to name the parent and the school, and said that when she is an adult she can decide if she wants to change her name on this decision. It is noted in the decision,

[11]           In consenting to anonymize and limit publication of Child K’s name, Mrs. Ehmke is clear that her purpose is to preserve Child K’s right to choose, when she is old enough, whether to make her identity in this complaint process public to people outside their school and faith communities. Mrs. Ehmke describes Child K as a person who is “activist-minded” and is used to advocating for herself in connection with her disabilities. She says that it is not helpful for Child K to keep her disabilities invisible, and that most people within their school and faith communities are already aware of the circumstances giving rise to this complaint. These submissions are important to understand Mrs. Ehmke’s position about whether to extend anonymization orders and publication bans to other people involved in the complaint.

[12]           I anonymize and order a ban on publication of Child K’s name in connection with this complaint, unless or until Child K identifies herself as a party to this complaint after she is 19 years old, in which case the publication ban will cease.

It takes a lot of bravery to break through the stigma attached to anxiety and be a role model to others. Both child and Mom have paved a path by this decision.

Advocate #3

Student (by Parent) v. School District, 2023 BCHRT 237

[2]               I commend the Student for her participation in this difficult process. She gave evidence that was helpful, straightforward, and credible, and which I have relied on to decide this case. I also thank the Parent and representatives of the District for their hard work and sensitivity in presenting their respective cases.

[114]      Finally – a note for the Student. It was apparent to me in this hearing that there are many caring adults invested in the Student’s wellbeing and development. She is an impressive young person with a sophisticated understanding of herself and her needs, and a Parent who is proactively equipping her with the tools she will need to continue her success into adulthood. I congratulate her on all that she has achieved, and wish her the best with what is to come.

Testifying can be intimidating and stressful for adults. She chose to speak up and talk about her experience. By doing so, this decision was written. This decision brought meaningful inquiry into the duty to accommodate and other advancements in The Code.

Advocate #4

Bigam by MacDonald v. Board of Education of School District No. 23 (Central Okanagan) and others, 2024 BCHRT 288

Given that the tribunal is always overly cautious about protecting the identity of minors, I assume that the teenager wanted to be named.

If that is true then ALL 3 advocates wanted to be named in their complaints.

Here are the allegations made by Advocate #3.

[1]               Faith Bigam, who has been diagnosed with multiple sclerosis [MS], was in Grade 11 when a teacher allegedly prevented her from presenting during a school assembly at which she had been slated to speak [assembly incident]. In her complaint, she alleges that the teacher (Kathryn Lafontaine), the school principal (Kathy Weninger), and the school district discriminated against her based on mental and physical disability in the area of services contrary to s. 8 of the Human Rights Code by preventing her from speaking and by mishandling the assembly incident after it occurred. She says that because of these events, she was unable to return to school and ultimately lost out on important social and educational opportunities.

[7]               According to Ms. Bigam, she was concerned that she would be bullied at George Elliot should the students there find out that she had MS. Ms. Bigam says that in Grade 11 she missed a lot of school due to health issues, which made it difficult to maintain her friendships. She says that she found it anxiety provoking to go to school. Despite these concerns, however, and with the encouragement of one of her teachers, Leslie Plummer, Ms. Bigam decided in early March 2019 to talk to the school about MS and living with MS. Ms. Bigam says: “I finally realized that it was important to me to talk about MS and to spread awareness about it in a positive way at school…” Ms. Bigam “thought it would be beneficial to the school, and to me and others like me.”

Another child and parent paving the path by exposing their complaint to the public.

**********

Learning to advocate for yourself and feeling the confidence and bravery to stand up for yourself does not come easy. Especially when you grow up in an ableist society and you are given these micro messages all day long that your rights are less than.

I can’t say how impressed I am that these four are speaking up for themselves and using their experience as examples for others to learn from and advance the human rights code. Just by having these decisions published for the public to witness and learn from is worthy advocacy. An interesting trend, they are determined to name themselves and the school districts. Is that due to anger? Justice seeking? There is so much stigma about mental health and disability and these four are pushing the boundaries on what can be talked about and not remain hidden. I wish all four of these students all the best and many many many thanks!

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Parents take Ministry of Education to Court – Win for Equitable Education

This case is a fascinating read.

Parents took the Ministry of Education in Alberta to court.

Kerber v Alberta, 2025 ABKB 98 

https://www.ctvnews.ca/edmonton/article/parents-take-province-to-court-over-order-keeping-some-kids-out-of-classrooms-during-strike

There are two parts that stick out to me, that I think you will all find interesting.

The Ministry trying to disconnect from their own orders they create and the labour shortage paragraph.

Let me hook you in with this line:

[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.  It was assumed that minimal disruption to the system would result by targeting only a sub-set of students – those who use an EA. However, this approach failed to consider that non-disabled students might suffer the least amount of harm since they do not have the same disadvantages as the students with disabilities and could adapt to an at-home learning program more easily, i.e., some non-disabled students switch to at-home learning to free up more resources for complex-needs students, or some of them, to attend school in-person even with the EAs presently unavailable.

EQUITABLE PRINCIPLES MUST BE APPLIED IN TIMES OF LABOUR OR RESOURCE SHORTAGES. Woohoo! Thank you!

This case is in relation to a strike.

[1]               Approximately 3,700 complex-needs students have been advised by their schools that they must continue their education programs on an at-home or a rotating in-school basis because of the strike involving support workers at Edmonton Public Schools. This situation has persisted for over five weeks. 

Why?

Because…..

[7]               On January 9, 2025, CUPE 3550 issued a notice that it would be going on strike as of January 13, 2025. A range of support staff, including administrative assistants, clerks, educational assistants, food preparers, interpreters, library technicians, licensed practical nurses, speech language pathology assistants, and technicians have been on strike since that date.

So the Ministry of Education in Alberta did this.

[9]               On January 12, 2025, the day prior to the strike, the Minister of Education, Demetrios Nicolaides, signed Ministerial Order #002/2025. The Ministerial Order states:

I, Demetrios Nicolaides, Minister of Education, pursuant to section 4 of the In-person Learning Regulation, exempt The Board of Trustees of Edmonton School Division from the application of section 2 of the regulation to provide an in-person learning option, at the schools under its authority, to students who require an educational assistant due to complex needs where the continued attendance of those students at in-person learning may risk the health and safety of the student or other students or staff, subject to the terms and conditions in the attached Appendix.

Which means kids with complex needs are being excluded from in-person learning.

So 4 parents took the Ministry of Education to court.

[4]               The Applicants, who are four complex-needs students affected by the Ministerial Order, seek an interlocutory injunction suspending the operation of the Ministerial Order or, alternatively, an exemption to the Ministerial Order, until the summary judgment or trial can be heard and determined on the Charter issue.

The Ministry of Education tried to pass the issue and blame the school district. Saying the school district didn’t have to follow the order they were just given permission to do so. (OMG! Insert huge eye roll. I actually laughed out loud when I read this!)

[26]           Alberta argues that the Ministerial Order does not require the ESD to stop providing in-person learning to particular students; it merely permits the ESD to make decisions about at-home learning considering the safety of all students and staff within its schools in light of the strike action. 

The court saw through that BS.

[40]           While Alberta is correct that the Ministerial Order does not require any student to learn at-home, the Ministerial Order is the permissive enabling enactment that grants the ESD the authority to make decisions about which students must switch to full or partial at-home learning. Alberta is the correct party to name in this application.

So Ministries of Education across Canada, if you write discriminatory policies don’t blame the school districts for acting on them.

For those who like legal mumbo-jumbo, there are various forms of legal analysis in this decision.

The conclusion was that the parents won the injunction they were seeking.

And as mentioned before I really like this paragraph

[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.  It was assumed that minimal disruption to the system would result by targeting only a sub-set of students – those who use an EA. However, this approach failed to consider that non-disabled students might suffer the least amount of harm since they do not have the same disadvantages as the students with disabilities and could adapt to an at-home learning program more easily, i.e., some non-disabled students switch to at-home learning to free up more resources for complex-needs students, or some of them, to attend school in-person even with the EAs presently unavailable.

And yes I too would like to thank these parents for bringing forward education cases under legal analysis.

[161]      I wish to thank counsel for their excellent submissions.

[162]      I also wish to extend my gratitude to the parties and the families for their participation in this important issue.

If you want to skip the legal analysis and just go to the conclusion at the bottom, it starts on paragraph 153. Here is some of it.

[157]      The nature of the harm that the Applicants would suffer is significant.

[158]      The nature of the legislation under attack is the provision of education – a fundamental service owed to all young people.

[159]      The public interest lies in ensuring equitable treatment of all students during a labour shortage and a fair redistribution of available resources that does not discriminate based on a disability.