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New HRT Decision – EA taken away, IEP – VERY Informative!

We have another recent decision from the HRT and there is a LOAD of interesting stuff in here!

This is a dismissal application.

P (by KD) v. Board of Education of School District No. 61 (Greater Victoria) and another, 2025 BCHRT 62

Many thanks to the parent(s)/guardians who stuck it through and brought this decision into fruition.

There are so many good bits in here, I am creating a list before you even dive into the blog. I want you to keep reading all the way to the end and get all good stuff.

  • IEP – what’s required to defend in a dismissal
  • The role of an EA – defence by the SD, 1;1 criteria
  • IEP written contract/legal perspective from the Ministry
  • Educational program required while kids are not physically in school
  • Ministry again dismissed in case, and why.

This is what the complaint is about

[2] P alleges that during the 2019/2020 school year, the respondents did not provide her an appropriate education by refusing her at-home instruction, one-to-one Educational Assistant [ EA ] support, and not following her Individual Education Plan [ IEP ]. P also alleges that the Ministry changed the requirements for IEPs which rendered them ineffective. Finally, P alleges that the School District caused her harm by failing to properly address abuse by another student and took her on an inappropriately long walk despite her scoliosis, which caused her pain and swelling.

[8] P has disabilities including Down Syndrome, scoliosis, and other chronic medical conditions, including heart and lung issues.

[9] For context, P says her time at secondary school from grades eight to twelve included the following negative experiences:

a. Her one-to-one EA assistance was taken away by the school causing her significant trauma.

b. Her parents did not receive a book list or course outlines.

c. She did not receive homework as she was not being taught.

d. She was physically abused by other children while staff left her unattended.

e. She was forced to sit by herself without any form of intellectual stimulation.

Here is also what I find VERY interesting. The parents were alleging that the school didn’t follow the IEP. BUT because they didn’t specify what aspects of the IEP weren’t being followed, this portion of the complaint was dismissed.

SO! What do we learn from this? BE SPECIFIC. If you are going to be alleging your kids IEP wasn’t followed you are going to need to identify exactly what on the IEP wasn’t followed.

a. Failure to follow IEP

[24] I am not persuaded that P has taken the allegation that the School District did not follow her IEP out of the realm of conjecture. She has not specified what elements of her IEP were not followed during the 2019/2020 school year.

Got it!

So this was part of the complaint.

“a. Her one-to-one EA assistance was taken away by the school causing her significant trauma.“

I wonder how many other parents could be filing over this reason!

There are so many interesting things about this case. Something else that has come up a lot with students who are experiencing exclusion. School districts are still required to provide an education program even if kids aren’t physically at school.

b. Denial of at-home schooling

[30] School districts in this province are required to make educational programs available to all school-age children registered in the district. In certain circumstances, this includes at-home or “homebound” instruction. The School District has provided an excerpt from the Minister of Education’s Special Education Services Manual of Policies, Procedures, and Guidelines [ Special Education Manual ] which explains homebound programming in BC. It states:

School districts are required to make available an educational program to all persons of school age who are resident in its district and who are enrolled in a school in the district. School districts must maintain appropriate educational programs for students who are anticipated to be absent from school for extended periods of time. Instruction should be initiated as soon as possible. Authorization from the physician or public health nurse should be received prior to services being provide to students with health problems.

Students eligible for homebound services include:

· Students who are absent from school for medical reasons such as injury, disease, surgery, pregnancy, psychological reasons, etc. […]

[32] P says she required at-home instruction because she could not regularly attend school due to her disabilities. The evidence from both parties demonstrates that P was frequently absent from school for extended periods of time due to disability-related illness. A document prepared by P’s school from October 2019 states that P’s “attendance record throughout high school has been a concern – typical attendance is 10-20 days per year.” For the 2019/2020 school year, the parties agree that the plan was for P to only attend in person one day per week. Based on this information, the Tribunal could reasonably find at a hearing that P did not receive the instruction offered to other students in the district because she could not attend school in person for disability related reasons, and she was not provided instruction in her home. I am satisfied that this information takes out of the realm of conjecture that P’s disability was a factor in the adverse impact she experienced as a result of the School District’s decision to deny at-home instruction.

For parents whose children who have experienced a physical incident at school. If you want to tie it to rights-based advocacy (the Human Rights Code), you need to tie the behaviour to their protected ground (disability).

[55] While I acknowledge the seriousness of this allegation, P has not explained how her disabilities were a factor in the alleged adverse impacts of either the attack or the school’s response. Accordingly, although there is a contradiction in the evidence regarding whether this incident occurred, even if I accept P’s account as true for the purposes of this application, I am not persuaded that she has taken out of conjecture that there is a nexus between any adverse impact and her disabilities. For this reason, this allegation cannot proceed.

We already have a decision from the BC HRT, supported by the BC Supreme Court, that schools are responsible for providing students with a discriminating harrassment free school environment. See the successful case on bullying. “School Board has the duty to provide students with an educational environment that does not expose them to discriminatory harassment.”

Bullying or a one time physical attack needs to be connected to a protected ground.

Also in the case…

As usual, when parents try and link in the Ministry of Education, they always get dismissed.

[75] I agree with the Ministry that the complaint against it should be dismissed in its entirety.

Here is why

[73] …. The Ministry denies this allegation and reiterates that it is not involved in making decisions regarding individual students.

And the overall conclusion was that part of the complaint was dismissed, other parts continued.

Another part I thought this part was VERY interesting….

[48] The School District says one-to-one EAs are limited only to students who are medically dependent and require assistance with toileting. Generally, this is most often at elementary school and only occasionally at middle school. At secondary school, the School District typically shares EAs, to allow for independence and growth.

[49] The School District says that P did not require a one-to-one EA, because she was not medically dependent and because she did not require assistance with toileting. The School District says each class included a teacher and at least one EA to provide support. P always had an adult near her. The purpose was to build P’s independence, which was the most important aspect of her Grade 13 education programming. Due to P’s progress in achieving independence, the School District says she could do many tasks independently and safely under the supervision of staff. According to the School District, one-to-one EA support would not have been conducive to P’s independence goals.

Always know that the school district is going to argue anything they want. They can make up any reason/excuse that they want. That DOESN’T mean that the tribunal is going to believe them or accept what they are saying.

The school district’s lawyers will ALWAYS have a response for everything. It doesn’t mean their argument is a strong argument or that they have evidence to back it up.

You can argue back. The decision maker is the tribunal. NOT the respondent’s lawyers, no matter how convincing or confident they want to appear.

When we look at the recent case for exclusion (not this case, another one), the tribunal was asking…

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

[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

They bolded the anything else, not me.

If there is a negative impact on your child not having an EA, you need to document the harm.

Always remember that the district is responsible for removing barriers.

Not providing the appropriate support for them to access their education can be explained to the tribunal as a barrier. The lack of an EA could mean they aren’t providing your child a ramp. Just because the school district says only kids with medical needs&/toiliting support needs get a 1:1, doesn’t mean the tribunal will support that decision-making. The tribunal may feel the criteria for accessing an EA is discriminatory for other kids with other disabilities.

This is why bringing our cases forward for the analysis of the tribunal is so important and a strong form of advocacy. By creating these cases and decisions they are creating a path with street lamps for other parents to walk down when they advocate for their own kids.

Another part that is so fascinating is what they said

[68] The Ministry says that IEPs are not written contracts, as set out in the document “Individual Education Planning for Students with Special Needs: A Resource Guide for Teachers” (Province of British Columbia, November 2009) [ Resource Guide ]:

Q: Should the IEP be signed by the parent and a member of the school-based team?

A: There is no provincial requirement for signatures on an IEP. It should be clear to parents that IEPs are not written contracts, but rather working documents into which they have input along with the staff who work directly with the student. Some schools include signatures on a separate page to document who was present and who received a copy of the IEP.

[70] However, the Ministry disagrees that just because IEPs do not require a parent’s signature the School District is not required to adhere to them. The Ministry says IEPs do have a legal effect and function, as there is a valid legislative and policy framework that provides both authority and guidance for IEPs.

For parents self-representing, you will probably want to keep this case handy to use in your arguments to the tribunal.

A BIG THANK YOU to KD who is self-representing P. This decision is LOADED with helpful information.

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Individual Education Plan (IEP) – They aren’t just Words on a Page

IEP’s can play an important role in providing your child an equitable education.

As written in the human rights decision P (by KD) v. Board of Education of School District No. 61 (Greater Victoria) and another, 2025 BCHRT 62 the Ministry of Education made it clear:

[70] …..The Ministry says IEPs do have a legal effect and function, as there is a valid legislative and policy framework that provides both authority and guidance for IEPs.

For more information about how the Ministry views IEPs in terms of a written contract or requiring a parent signature, please read paragraphs 66 – 71 in the above human rights decision.

So what do they mean by valid legislative and policy framework?

Authority School Act, Section 182 (2) (a)

On the Ministry of Education’s Inclusive Education website they say this:

“School Districts/Independent School Authorities have the autonomy to develop their own IEP template or choose the SMART Goal Template, or Competency Based IEP Template found on MyEducation BC. Specific templates are not mandated as long as the goals used have measurable outcomes.”

The Ministry of Education has an Inclusive Education Manual (2024), and section C is all about developing an IEP

Here is the Ministry’s Guidelines on IEPs for independent schools

Here is the Inclusive Educaiton list of policies and orders

If you are interested, here is a list of all of the School Act Ministerial Orders.

Here is a list of their policies for public schools.

On your own school district’s website, they will also have information about IEP’s and the consultation process.

Here are two excellent resources on information about IEPs and IEP meetings.

The BCCPAC has a guide for parents specifically for IEPs

Inclusion BC has a guide for Inclusive Education. Chapter 5 is all about IEPS.

Two notable human rights cases:

  1. The duty to consult
  2. Student (by Parent) v. School District 2023, BCHRT 237 – Your child doesn’t need to have an IEP in order for them to be protected by the Human Rights Code

Something else very important to keep in mind is that the Human Rights Code Supersedes classroom teacher autonomy. Your child’s teacher has to follow the Human Rights Code. They can’t just say that they will not follow your child’s IEP because it doesn’t match with how they teach.

IEP’s are living documents. You can update them ANYTIME.

The final decision is up to the school on what is written on your child’s IEP but they must consult with you. And it needs to be meaningful consultation. If they tell you they are only giving you 30 minutes for an IEP meeting and you didn’t have enough time to discuss everything and you feel the IEP isn’t appropriate for your child, you can advocate that 30 min isn’t enough time for meaningful consultation. Some parents get letters being sent home that IEP meetings aren’t even happening. They get a paper copy and they are asked to provide feedback by email. umm. NO!!! If you want a meeting to discuss your child’s IEP at ANYTIME In the year, you can advocate for that.

If the school doesn’t allow this, then you can escalate it through the district and just keep going higher and higher.

For this human rights case X by Y v. School District Z 2024 BCHRT 24, the expectation for them to defend that they offered reasonable accommodations is this:

120] Ultimately, on a balance of probabilities, I am satisfied that the District discharged its duty to accommodate X in his grade 2 year by reviewing the Diagnosis Report, developing an IEP, making various support people and strategies available that were incorporated into the classroom and outside, reviewing progress and changes, and adapting its approach in response……

If they aren’t reviewing progress and changes and adapting their response to your child’s needs, you have internal and external complaint options.

There is already legislation, policy and human rights law that will enforce consultation. You can use these in your advocacy.

It is very important to keep documentation of all of your emails with the school and letters being sent home. If you are getting any communication that parents are not allowed to attend their child’s IEP meeting, you may also want to alert the Inclusive Education department in the Ministry.

inclusive.education@gov.bc.ca

IEPs have meaning. They are important. They are a tool.

If you have a teacher who is refusing to follow any of the legislative framework and policies you can always file a TRB complaint.

This teacher was disciplined for the following regarding IEPs:

During the 2021-2022 school year, the following events occurred while Schwarz was employed as a teacher in a learning support program at School A, working with a small group of upper elementary school students (“Class A”):
a. Schwarz failed to properly follow procedures for students’ individual education plans
(“IEPs”):
i. IEPs must be reviewed annually to reflect individualized goals, adaptations,
modifications, services and measures for tracking progress. Teachers must
offer parents an opportunity to consult about their child’s IEP.
ii. Schwarz failed to plan appropriately for the fall 2021 IEP deadlines and
only updated the students’ pictures and changed the name of the responsible
teacher to her own name, before submitting the IEPs to the School principal.
Schwarz did not make changes to the substance of her students’ IEPs and
did not appropriately consult with parents regarding the IEPs.

You don’t need to accept teachers not consulting with you or not updating your child’s IEP.

You have advocacy options:

Internal – keep advocating all the way up the next levels. You will have an inclusive education department in your child’s school district. Inclusive BC in their manual, Chapter 7 is all about how to advocate in the education system effectively.

External – TRB, Ombudsperson, Human Rights Tribunal

Some schools automatically reach out in the spring for a review of the IEP. If your child’s school does not, and you would like this to happen, feel free to send them an email.

You also don’t need to wait for the spring. If at any point in the year, you feel there needs to be some changes, you can request a meeting.

Your child has a human right for an equitable education. The IEP is a very important tool that can help them have those accommodations in place. OH, and one final thing. Accommodations are not earned with good behaviour. Children with disabilities have a right to their accommodations because they are breathing.

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New Human Rights Decision – Professional Recommendations in IEP

Child (by Parents) v. Surrey School District No. 36, 2025 BCHRT 85

More important learnings from human rights decisions!!

This is a dismissal application. Parts of their complaint were dismissed but the part that is continuing is the allegation that the school didn’t incorporate professional recommendations into their child’s IEP.

The human rights tribunal is accepting this as a valid complaint, and it is proceeding. This case can be used to enhance your advocacy.

[66] The Child alleges that the School Board lost or did not read many of the reports that were provided to them, and that as a result, the recommendations contained in those reports were not incorporated into their IEPs. Therefore, they say, the Child’s disabilities were not properly accommodated. The Child says that had the IEPs been developed in line with the medical and psychoeducational recommendations contained in the reports provided to the School Board, their Parents would not have had to intervene with private support services in order to keep the Child at grade level. They say that because the recommendations in the reports were not incorporated into the Child’s IEPs, the Parents were required to provide the Child with tutoring, vision therapy, and auditory therapy, along with other interventions.

[68] The School Board admits that certain of the recommendations contained in the psychoeducational assessment and other medical reports were not included in the Child’s IEPs. However, the School Board says that the IEPs developed for the Child “are consistent with the recognized supports for students with a learning disability like dyslexia within British Columbia.” They say that many of the recommendations from the psychoeducational assessment report in particular were specific to programs available in Colorado, not in BC. They say the IEPs that have been developed for the Child were consistent with the Child’s Ministry of Education designation and “the information regarding [the Child’s] learning needs”, including the provision of a learner support teacher as well as modifications implemented by the classroom teacher. They note that the Child’s progress reports indicate that they have progressed “well” and “overall at grade level”.

[72] While the School Board took steps through the IEPs to accommodate the Child, based on the materials before me, I am not persuaded that they are reasonably certain to prove they took all reasonable and practical steps to remove the disability-related barriers faced by the Child. This allegation will proceed.

We already know from X by Y v. Z that it doesn’t matter what their grades are, its whether the school district removed the barriers to access their education equitably

[142] Y has said that the learning support provided throughout X’s education has not been enough for X to “reach the same level as his peers or possibly excel”. The District’s obligation is reasonable not perfect accommodation. As I have said above, reasonable accommodation is not necessarily measured by whether a student is meeting or exceeding certain standardized learning goals but rather by whether barriers have been removed to provide meaningful access to education.

As always, I extend much appreciation and thanks to the parents who are navigating this system and bringing these decisions forward.

Putting the pieces together

Accepted human rights complaints

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Another new HR decision – Intersecting Identity – Self-Representing Parent – A win!

I have written so many posts that start with New HR decision that it’s starting to sound ridiculous.

So, yes this is another new one. I know we just had a new one a couple of days ago.

I can’t tell you how exciting this is. This is the month of April, only four months into 2025 and we are already at 5 decisions with more to come. This is going to be quite the year!!

Is the Ministry of Education and Child Care paying attention to all of this????

They better wake up!

Here we go.

Decision #5 – This parent is self-representing. They won. The complaint is fully proceeding.

Child (by the Parent) v. School District, 2025 BCHRT 89

This case involves a couple of protected grounds.

[3] The Child identifies as Black and of African race, ancestry and place of origin. The Child has a mild Autism Spectrum Disorder [ ASD ], which the Parent describes as largely diagnosed from his late speech and asymptomatic.

This is a timeliness complaint

What is interesting about this case from an analysis point of view is that there were gaps between the discrimination and multiple allegations were beyond the one-year time limit, and yet it was still accepted.

[25] Having found multiple arguable contraventions of the Code , that are both timely and out of time, it is necessary to next consider whether the late-filed allegations form part of a continuing contravention.

[26] I first considered whether the allegations are of a similar character for the purposes of determining the existence of a continuing contravention of the Code . The School District argues the timely allegations are dissimilar because the timely allegations involve different children at different schools. I disagree with the School District. From my review of the allegations in their entirety, I agree with the Child that they involve the School District’s failure to properly respond in series of altercations where white male students harmed the Child for reasons related to his race, colour, ancestry, place of origin and mental disability. At the same time, the allegations are of a similar character because the Child alleges the School District’s repeated responses to all these incidents were unfair to him for reasons related to the personal characteristics identified. In my view, the similar character of these allegations is not affected in any material way because they occurred at different schools and with different white male children.

[27] I have next considered the existence of gaps between allegations. I have determined that there are no significant gaps for the purposes of s. 22(2) of the Code in this case. I disagree with the School District’s approach to this question by looking at the entire timespan for the allegations in question. In my view, it is more appropriate to look at the length of time between allegations to determine whether they occurred in succession. Here, there were gaps of half of year to about nine months between most of the allegations and these are explained by the somewhat randomness of serious incidents happening when the white male students engaged the Child. The only possibly significant gap in my view, occurred between the November 2019 incident and the Spring 2021 incident. However, this gap is easily explained by the fact that during most of 2020 schools were closed due to pandemic restrictions and the Child was not in physical proximity to the students in question.

[28] Overall, I am satisfied the Child’s allegations from the June 2018 incident to the Spring 2021 incident allegations are of a similar nature in succession to the timely October 2021 incidents allegations. As such, the Complaint is a timely continuing contravention of the Code and it is, therefore, unnecessary for me to determine whether it is in the public interest to allow any late filed allegations to proceed.

There are multiple allegations of bullying connected to racism and what I would label as ableism.

Here is an example.

[13] On October 20, 2021, the Child alleges three higher grade white boys followed him into the bathroom and one of the boys intentionally slammed a bathroom stall door into his face. The Child alleges this incident resulted in him chipping his two front teeth. He alleges the School District principal and vice principal were unmoved by the incident and did not want to report it to the police. The Child alleges the vice principal kept blaming him for screaming and shouting and rolling around on the floor as an attempt to magnify his autism behaviour to justify the other boys’ wrongdoing. Once again, the Child alleges the School District protected the white assailants from receiving any blame for the incident. This allegedly included the School District saying that they did not know which boy had caused the harm to the Child. The Child alleges this incident was a good example of the School District’s staff demonstrating their inclination to favour white children in altercations involving him [the October 20, 2021, incident ]

I encourage everyone to read this case in full.

The other human rights case that was connected to discriminatory bullying is this one. I’ll be adding this case now to that page as well.

Way to go, self-represented parent!

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Policy – “Soft Policing”

Policy is known as “soft policing”.

Policy is not law.

It is literally a group of people coming together and making stuff up. Sometimes policy is based on evidence, and sometimes it is not.

School districts have a lot of policies. I highly recommend you go to your school district site and find the policies and the administrative procedures. They may not be located in the same area. Some district websites are easy to navigate, others not so much. It’s worth the hunt. Policy will likely become part of your advocacy at some point.

A huge role for the Board of Education in your district is to create, review and revise policy as needed.

When they update or add a policy, they will, or should, be posting it publicly for public feedback. This will not be an announcement that gets emailed to you. It will take parents/guardians to be alert to these kinds of things being posted on the district website and to follow what is happening in board meetings.

Many districts have an online option for attending board meetings. Which I really like. You can multitask while you have it on in the background. Or if you are finding a part particularly boring, you can turn off the volume. Sometimes board meetings are interesting. Drama ensues. Showing up in person can also be informative. See who talks to whom, and you can feel the energy in the room that you can’t do over video. There are opportunities to have conversations with the trustees during break or after the meeting that can be helpful.

I HIGHLY suggest you get to know your district’s school trustees. These are the people who are creating these policies, bylaws, approving budgets, making section 11 decisions, and overseeing the superintendent and secretary-treasurer. The board appoints these key people to their positions.

If there is a policy that you would like to bring to the board for consideration, you can certainly email them and discuss this with them. Their role is to listen to you. You can suggest amendments to the current policy, and next time they review their polices, you never know, your suggestions might make it in.

By reading up on policy, you may realize there may also be avenues for you to resolve your issues that you didn’t know were an option. For example, the whistleblowing policy. That is for everyone, not just staff. If you have someone in a position of power who is lying to you or being unethical, this is an option for you to consider in reporting it. Especially if you feel that the issues are not being addressed by the district staff. The whistleblowing complaints are reported to the board.

When there isn’t any transparency and people feel untouchable, it can lead to a lot of funky-monkey business in school districts. It is shameful when the system tries to cover it up. I hate to say this to you, especially if you are a new parent to advocacy. Please don’t be naive. This isn’t care-a-lot, and people in education are not sugarplum fairies. Staff have a fiduciary duty to their employers. Some of these people are wolves in sheep’s clothing. As you advocate and navigate the system, you’ll be learning who is who. Some people are genuinely the kindest and most caring people you will ever meet. The others…will become clear.

Something to keep an eye out for…as policy is not law and can be discriminatory.

Also a key learning – The Human Rights Code supersedes policy, when in conflict.

Get to know your school Trustees, their policies, and administrative procedures. If you want to make changes, email away.

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Participating in the Duty to Accommodate

If you are someone who is asking for accommodations for yourself at work or your child in school, we also have obligations under the Code to follow. If we do not follow this, than our human rights complaints can be dismissed.

Rennie v. BC Ambulance Service, 2025 BCHRT 104

[29] Further, Mr. Rennie obtained a medical letter dated April 13, 2015, from a psychologist. There is no evidence that this letter was provided to BC Ambulance prior to the present complaint proceeding.

[30] In these circumstances, I am persuaded that BC Ambulance is reasonably certain to prove at a hearing that Mr. Rennie failed to participate in his accommodation process by not communicating with BC Ambulance, and its obligation to accommodate came to an end. Therefore, Mr. Rennie’s complaint has no reasonable prospect of succeeding.

This complaint was dismissed.

We have to participate. This falls under the “Duty to co-operate in good faith”

Both parties are expected to do this. Both sides need to communicate.

If the school is ignoring you, keep all those emails that you didn’t get a response to. Those will also be important.

And…

If the school is communicating with you. You can’t ignore them either.

To read about the expectations and responsibilities of the duty to accommodate process read here

Some parents feel that the communication they receive from the school is meant to poke them or bait them. I highly suggest you read 5 Rules on How to be Untouchable. Also keep in mind the communication between the parties needs to be in good faith, so if you feel there is anything sneaky going on, always keep the emails.

The point of the communication and co-operation needs to be focused about figuring out which accommodations work and which ones don’t. Accommodations don’t need to be ideal or perfect, just “reasonable” enough to provide the person with “a ramp”.

So, provide documentation. Communicate in good faith. And one more extension from this topic for parents in education is the Duty to Facilitate. Very similar to this case, but for parents. Failure to facilitate a school decision can lead to your human rights complaint being dismissed.

Knowledge is power.

Know your rights and responsibilities under the Duty to Accommodate.

It’s a two-way street.

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New HR Decision (Section 11 & Timeliness)

ooohhhh gather around for this one!

Lots of interesting learnings in this decision.

Thank you, thank you, thank you to the parent who brought this decision forward.

It was a win for them personally and a win for us for this analysis.

Here we go. This is an exclusion case & Indigenous rights.

Parent obo Student v. BC Ministry of Education and another, 2025 BCHRT 112

There is a lot in here, so I am going to list the important parts that I see.

  1. Ministerial order analysis
  2. Section 11 appeal was dismissed, HR complaint continues
  3. Timeliness application
  4. Ministry of Education dismissed

Respondents Defence Strategy

[10] The School District says that in April 2019, it decided to place the Student on a partial day program pursuant to the Ministry’s Special Needs Students Order, M150/89 [ Ministerial Order ], which states:……

(This policy is used as the school district’s defence to the exclusion in this case.)

[12] In or around 2019, the Student was diagnosed with Attention Deficit/Hyperactivity Disorder-Combined [ ADHD-C ], anxiety, and Oppositional Defiant Disorder [ ODD ].

[13] The School District says the Ministerial Order clearly applied in the Student’s circumstances. It says that shortly after the Student started kindergarten, her teacher raised concerns regarding some of the Student’s behaviours related to self-regulation and ability to follow expectations in the classroom, which indicated a need for extra support. The School District says these behaviours escalated during the period of January to March 2019, and included task avoidance, touching others, eloping from the classroom, disrupting the class environment, being unable to follow simple adult directions, and running through the school. In response, the School District says it began implementing more interventions and support for the Student. However, despite these additional supports, the School District says the Student’s behaviour continued to escalate to the point that neither her educational needs, nor those of her classmates, were being met.

The parent made a section 11 appeal

18] The parties agree that the Parent went through the following steps of the appeal procedure:

a. Step 1: appeal to the school principal who upheld the decision to place the Student on a partial day program.

b. Step 2: appeal to the Assistant Superintendent, Learning Services for the School District, who upheld the school principal’s decision.

c. Step 3: appeal to the Superintendent of Schools, who upheld the Assistant Superintendent’s decision.

d. Step 4: appeal to the Board of Trustees for the School District. The Board issued its decision on November 28, 2019, stating that they did not deem it appropriate to require that the Student be immediately returned to full-time attendance at school.

This is SUPER important – take a look at the reason for the appeal not being upheld

[20] The Superintendent of Appeals summarily dismissed the appeal concerning s. 2(2)(f), and an adjudicator rendered a decision dismissing the appeal under s. 2(2)(b) finding that it did not have jurisdiction to hear the appeal because the Student had not been suspended from school [ Ministry Appeal Decision ].

Because the student hadn’t been suspended!!

They do this a lot!

This is VERY important learning for us.

Ministry of Education – Dismissed

So the parent filed against the Ministry of Education as well. They were dismissed from the case. No surprises here. We have seen this over and over.

[31] The Ministry says there has been a clear legislative choice, as set out in the School Act , to divide the roles and responsibilities for K-12 education in BC between the Ministry and the School District. The services the complaint claims the Ministry ought to have provided have not been delineated as within the scope of the Ministry’s jurisdiction and/or authority and would involve an inappropriate intrusion into the role and responsibilities of the School District.

[32] Further, the Ministry says there is no evidence that it had any involvement in the decisions or actions related to the Student’s educational program. The Ministry provides funding and oversight at a high level with respect to K-12 education.

Ministerial Order does not excuse them from human rights process

Now this is SUPER INTERESTING!

[38] The School District argues that the allegations in the complaint fall outside the jurisdiction of the Tribunal. Specifically, the School District says the complainant is improperly attempting to challenge the validity if the Ministerial Order through the Tribunal’s process. The School District notes that one of the remedies sought in the complaint is “changes made to the School Act to protect children who have special needs,” which is beyond the Tribunal’s authority. The School District says it has the legal authority to put students on a partial day program pursuant to the Ministerial Order, under section 75 and 168(2)(t) of the School Act . In this case, the School District says that the Student demonstrated behaviour which met the criteria for a partial day program as set out in the Ministerial Order.

[39] I agree with the School District that the Tribunal does not have the authority to overturn the Ministerial Order or to find the Ministerial Order itself invalid. Similarly, the Tribunal cannot order that changes be made to the School Act . However, I am not persuaded that the allegations in the current complaint are outside of the jurisdiction of the Tribunal.

See what I mean by the respondents will always have an argument.

The stuff they come up with is fascinating.

I gotta hand it to them, they are creative.

The tribunal’s response was this:

[40] Although reforms to the School Act are raised in the complaint as a potential remedy, I read the allegations as encompassing concerns about the manner in which the Ministerial Orders were applied in these circumstances, and the impact on the Student as an Indigenous child with disabilities, rather than the validity of the Ministerial Orders themselves. This is not a complaint challenging the non-discretionary application of legislative criteria, for example. The determination of the “educational needs” of a student with special needs or other students, as well as the appropriate alternative programming for a child with special needs, per the Ministerial Order, are discretionary decisions made by teachers or other School District personnel. These decisions, if influenced by the protected characteristics of an affected student, are within the Tribunal’s jurisdiction to review.

[43] I do not agree with the School District’s characterization of this issue as one of jurisdiction. Rather, it is part of the human rights analysis the Tribunal must undertake in any case and would more appropriately be raised under s.27(1)(b) or (c) of the Code . Nevertheless, I consider whether the allegations against the School District raise an arguable contravention of the Code under s. 27(1)(g) analysis below.

[44] Accordingly, I deny the School District’s application under s. 27(1)(a) of the Code .

Woohoo!

Now, another benefit of this decision is that the respondents know that this argument wont fly with the tribunal. So, this case helps to whittle down their arguments. That is very good.

AND if this wasn’t interesting enough, we even get a timeliness application.

Timeliness Application

[50] I am satisfied in the current circumstances that the allegations form a continuing contravention, and the most recent act of alleged discrimination occurred within one year of the filing of the complaint. I am further satisfied that the allegations pass the “arguable contravention test.”

What is a continuing convention of the code?

[47] A complaint is filed in time if the last allegation of discrimination happened within one year, and older allegations are part of a “continuing contravention”: Code , s. 22(2); School District v. Parent obo the Child , 2018 BCCA 136  at para. 68  . A continuing contravention is “a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code , and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City), 2015 BCCA 57 at para. 23  ; School District at para. 50  .

Here are some important allegations that give us a peek into what the parent was dealing with. Always know with these decisions, we aren’t getting the full picture. Decisions are written up to only include the information that is needed for the decision. There is ALWAYS more to the story.

a. February 1, 2019: The Student was put on partial days of school and was not allowed to participate in school activities or be in attendance with her peers;

b. March 1, 2019: The previous vice principal said: “it just gets to a point in the day where we just don’t want to deal with [the Student] anymore”;

c. April 1, 2019: The Parent was called to the school to pick up the Student because “she was having trauma triggered behaviours and several school staff including the principal, vice principal, and EAs had her cornered in the classroom and she was scared, trapped, and in distress;

d. June 1, 2019: The principal said to the Parent: “have you thought about transferring her to a different school?”;

e. June 1, 2019: The Student was separated from her class and was not allowed to be in a classroom with other children;

f. August 1, 2019: The previous Assistant Superintendent said school staff do not want to work with the Student because she is a “dirty girl”;

g. September 1, 2019: “Step 1” meeting with the principal to appeal the decision not to allow the Student in school full time – denied;

h. September 1, 2019: “Step 2” meeting with the Assistant Superintendent to appeal the decision not to allow the Student in school full time – denied;

i. November 1, 2019: “Step 3” meeting with Superintendent of Schools to appeal the decision not to allow the Student in school full time – denied;

j. November 26, 2019: “Step 4” meeting with Board of Trustees to appeal the decision not to allow the Student in school full time – denied.

In conclusion – public interest too!

[66] For these reasons, I find that the complaint is timely. Had I reached a different conclusion, I would have still found that the public interest favours accepting this complaint. The education system has been identified as a common area of human rights concern for Indigenous children: BC Human Rights Tribunal, (2020) “Expanding Our Vision: Cultural Equality and Indigenous Peoples’ Human Rights” at p. 27; Ontario Human Rights Commission, (2018) “To dream together: Indigenous peoples and human rights dialogue report” at p. 40. Courts and Tribunals have taken notice that Indigenous women and girls have been, and continue to be, particularly subject to hurtful biases, stereotypes and assumptions, including that they are “unintelligent” or “people of low or bad character not deserving of the same respect, humanity and dignity as others”: R. v Zakuti , 2021 BCSC 2253 at para. 25; Lindsay v. Toronto District School Board , 2020 HRTO 496 at para. 23. Here, the Student as an Indigenous girl who has been denied full access to the public education system, requires that this complaint be situated in its full socio-historical context. The Code ’s purpose of identifying and eliminating persistent patterns of inequality associated with discrimination protected by the Code is served by this complaint being heard at a hearing on the merits: s. 3(d).

And here is this beautiful statement

Dismissal denied – Complaint Proceeding

[68] I deny the application to dismiss the complaint against the School District. These allegations will proceed to a hearing.

I really encourage you to read the case in full. There are a lot of interesting details in there.

Due to the parent’s persistence in bringing this case forward, we have some very interesting legal analysis that are advancing the human rights code. This decision is now an advocacy tool and we are learning about what we need to do.  The piece about appeals being denied around suspensions is very interesting to have this documented.

It would be interesting to see a section 11 appeal done if the school refuses to log it as a suspension. Topics to discuss amongst education advocates, the importance of exclusion being labelled a suspension.

A big thank you to this parent’s advocacy.

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What is Rights-Based Advocacy?

This is my personal understanding and definition of rights-based advocacy. I would answer that question by saying,

“Rights-based advocacy is when you advocate through the lens of the human rights code, use various legal authorities and policies to support your advocacy, and are communicating to the school your child’s unmet disability-related needs. We then advocate for the school to remove the barriers our child is experiencing so they can access an equitable education.” 

For this blog, I am going to focus on the second part.  

Rights-based advocacy doesn’t just include policy and law, but we need to be able to communicate to the school that our child has disability-related needs, and that they are experiencing barriers.

Now, the bottom line is that this isn’t really our responsibility to figure this stuff out. It’s actually the schools, and this responsibility is connected to multiple human rights decisions.

However, teachers aren’t trained in every disability and every combination of disabilities, and we know our kids. This is the collaboration part of the accommodation part. They have a duty to consult with us. We can contribute and assist them in creating an effective IEP by helping them identify our children’s disability-related needs and help focus their thinking on being able to identify barriers so they can make a plan on how to remove them.  

People don’t naturally think in this way, so this is a skill we need to learn as well and help our kids’ teachers to think this way too.

The system needs a lot of work, but it’s not going to overhaul itself tomorrow. Today we aren’t living in our dream education fantasy land, we are living in a chronically underfunded resource constrained system with high rates of burn out.  So given the cards that we have been delt, what is the best we can do in this situation to support our children in school?

Whatever situation our child is struggling with in school we need to ask ourselves some questions.

  1. Is there an unmet disability-need here? (They could be experiencing all sorts of unmet needs, It may not be necessarily connected to their disability)
  2. If it is connected to their disability, what is the unmet need?
  3. What is the barrier preventing this unmet need being met?

Now let’s apply this to an example.

Ryan has ADHD. Ryan tends to be more distracted, moving around a lot at the end of the day, and is engaging in social behaviours that other students in the class don’t like. He is taking their pencils and erasers and hiding them, and is saying things (teasing/taunting) that evokes a reaction from them that is negative. This is consistent every day.

When the teacher relays this information to the parent, they think about it and later send an email to the school with their thoughts.

The parent first wonders what the disability-related needs could be related to this situation. People with ADHD need more movement, do better with creative hand on tasks, and struggle sitting. It can be physically painful for them to sit. Their bodies will force them to move. People with ADHD do very well on tasks they are interested in and it is extremely difficult to focus on tasks you have no interest in. They also can require more mental stimulation. Kids with ADHD also have higher relationship needs and connecting with their teacher so they can learn will be more important to them.

They think about these disability related needs and wonder how much movement Ryan is getting during the day, and why they are struggling more so in the afternoon. Their curiosity is that they are wondering if Ryan has been sitting to much during the day and is getting restless and bored with too much pen to paper work. Ryan is then doing things that they find are more mentally stimulating and creating drama in the class is more interesting than doing schoolwork.

Typical classrooms don’t fit the needs of a lot of kids with ADHD. The barrier could be a personal physical barrier – that he is forced to sit too long. The next barriers could be informational or communication – he may not understand the assignments or it fit how he processes information. Classroom teacher management could be the barrier – he finds the teacher too strict and after listening to this all day his more anxious and so he is distracting himself with other things.  It could be he is not interested in what he is working on, and his education isn’t hands on enough and too much pen to paperwork. It could be a relational barrier – he isn’t connected to his teacher and thinks his teacher doesn’t like him so he disconnects more at the end of the day wanting to leave and wish he wasn’t there. It could be an attitudinal barrier or teacher philosophy barrier – that they value pen to paper work over other ways of learning. It could be many barriers. It’s hard for us to know what the barriers are because we are not in school. So this is where communicating with our child’s teacher is going to be very important and to bring up the idea of barriers and trying to brainstorm together what the possible barriers could be.

Could creating more scheduled movement breaks during the day, replacing some of the written assignments with more hands on creative projects that are led by him decrease some of the behavoiurs we don’t want to see and improve his focus to help him last all day? Could the teacher making an effort to check-in with him more often during the day help with building the relationship?

We won’t really know what will work or what won’t work until we try it. We know our kids, but we don’t know what they are like in an education setting 5-days a week when we aren’t in the room and they are on their own. The environment they navigate in school to survive the day and home is completely different.

Even being aware of all of our child’s potential disability-related needs will most likely require us to do quite a bit of research and really know and understand our child’s disability. And then we need to consider their unique personality traits and who they are as people. Disabilities don’t present themselves exactly the same in every person. Disability is also fluid and what a person has capacity for on one day wont necessarily be consistent for all days. No wonder everyone is confused and accessibility can be a struggle.

The more we are informed, the more we can effectively advocate for our child.

For more information on types of barriers and accessibility law, please read my blog Barriers, Barriers, Barriers.

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Co-parenting with the Government

The topic of the right to religious freedom has come up a lot. This is outside of my lane of disability writing, but I am surprised by how many parents contact me about this issue, so here is a blog on it.

I want to offer two cases that I think are very important.

E.T. v. Hamilton-Wenworth District School Board, 2017 ONCA 893

This is a case about a parent who didn’t agree with sex education, etc, being taught in school and felt it was in conflict with their right to religious freedom.

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[40]      E.T. cannot, by virtue of his religious beliefs, insist that a non-denominational public school board restructure its inclusive and integrated program, designed to meet its statutory objective of ensuring a respectful and accepting climate for all children, so that he can ensure that his own children are not exposed to any views that he does not accept. Nor do I accept E.T.’s suggestion that the Board could or should ensure that discussion of matters such as sexual orientation and gender identity are discussed purely as matters of fact rather than as matters of “value judgment”. The Board has a statutory mandate to provide an inclusive and tolerant educational environment, one that respects the principles of equality enshrined in s. 15 of the Charter. Equality, inclusivity and acceptance of difference are values, not facts, and it is unrealistic to expect teachers to provide a learning environment that is truly welcoming to all students in a value-free manner.

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So what brought on this decision?

Here was the parents request:

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[2]         The appellant advised the Board that his religious beliefs require him to shelter his children from what his religion regards as “false teachings”. He provided the Board with a standard form list of topics that included matters such as “moral relativism”, “environmental worship”, “instruction in sex education”, and “discussion or portrayals of homosexual/bisexual conduct and relationships and/or transgenderism as natural, healthy or acceptable”. He asked the Board to provide him with advance notice of any classroom instruction or discussion of these issues so that he could decide whether or not to withdraw his children from those classes or activities.

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This was the Boards response to his request.

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[3]         The Board offered to exempt the appellant’s children from the “Healthy Living” strand in the elementary program, which is offered as a discrete part of the curriculum and involves education on human development and sexual health. However, the Board explained to the appellant that its Equity Policy aims to provide an integrated secular and respectful learning environment that does not discriminate against any child. The Board’s program aims to promote a positive and inclusive environment that accepts all pupils, including those of any sexual orientation, gender identity and gender expression. The Board advised E.T. that, given the integrated nature of its program and the generality of the items on his list, it was neither practical nor possible to comply with his request for prior notification of any time one of the items on his list would arise for discussion in the classroom. The Board also expressed the concern that if E.T.’s children were required to leave the classroom every time one of these topics came up for discussion, the Board’s policy of providing an inclusive and non-discriminatory program would be undermined.

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The reality is that when we send our children to a public school, we are co-parenting with the government. And the government has the final say. If you want 100% control over your child’s education, don’t send them to a public school. Education is a government service that is for all children, and the government and society have goals for the next generation. If equality and inclusivity conflict with your religious beliefs, you file a human rights complaint against a public school citing religion as your protected ground, you will probably get it dismissed. Schools are legislated to provide an inclusive and tolerant learning environment.

“The Board has a statutory mandate to provide an inclusive and tolerant educational environment, one that respects the principles of equality enshrined in s. 15 of the Charter.”

I also give you this case

Chamberlain v. Surrey School District No. 36, 2002 SCC 86

This is a case about parents’ religious objections to 2SLGBTQIA+ storybooks. The school board’s decision was not to approve books for use in kindergarten and grade 1 for fear of the parents’ religious concerns.

The court overturned the board’s decision because it conflicted with the statutory obligation that public schools have in British Columbia to separate religion from state affairs.  

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“The B.C. School Act confers on the Minister of Education the power to approve basic educational resource materials to be used in teaching the curriculum in public schools, and confers on school boards the authority to approve supplementary educational resource material, subject to Ministerial direction.  A Kindergarten‑Grade One (“K‑1″) teacher asked the Surrey School Board to approve three books as supplementary learning resources, for use in teaching the family life education curriculum.  The books depicted families in which both parents were either women or men — same‑sex parented families.  The Board passed a resolution declining to approve the books.  The Board’s overarching concern, as found by the trial judge, was that the books would engender controversy in light of some parents’ religious objections to the morality of same‑sex relationships.  The Board also felt that children at the K‑1 level should not be exposed to ideas that might conflict with the beliefs of their parents; that children of this age were too young to learn about same‑sex parented families; and that the material was not necessary to achieve the learning outcomes in the curriculum.”

The Result:

“The Board’s decision is unreasonable because the process through which it was made took the Board outside its mandate under the School Act.  First, the Board violated the principles of secularism and tolerance in s. 76 of the Act.  Instead of proceeding on the basis of respect for all types of families, the Board proceeded on an exclusionary philosophy, acting on the concern of certain parents about the morality of same‑sex relationships, without considering the interest of same‑sex parented families and the children who belong to them in receiving equal recognition and respect in the school system.  Second, the Board departed from its own regulation with respect to how decisions on supplementary resources should be made, which required it to consider the relevance of the proposed material to curriculum objectives and the needs of children of same‑sex parented families.  Third, the Board applied the wrong criteria.  It failed to consider the curriculum’s goal that children at the K‑1 level be able to discuss their family models, and that all children be made aware of the diversity of family models in our society.  Instead, the Board applied a criterion of necessity, which was inconsistent with the function of supplementary resources in enriching children’s experience through the use of extra materials of local relevance.  The Board erred in relying on concerns about cognitive dissonance and age‑appropriateness which were foreclosed by the curriculum in this case.” 

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Our society needs to stay the course and fight for an inclusive and equitable society for all people and especially for marginalized groups with deep historical roots in oppression. Public schools are essential in socializing the next generation towards inclusion.

On October 13th 2025 The Tyee posted an article written by Ximena Gonzalez titled: “Inside the Right-Wing Attack on Alberta’s Public Education: MAGA’s Project 2025 has become a blueprint for undermining Canada’s schools in the name of profit and privilege.“

If anyone has come across other cases that they feel are important to this topic, or are newer, I would love it if you could email me and let me know what they are.

kimbpath @ gmail.com

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Fairness at the BC Human Rights Tribunal

There are a lot of people self-representing themselves in many legal avenues. Small claims courts, family law, and residential tribunals are just to name a few. Most people navigating the human rights tribunal are self-represented as well.

What all these legal avenues have in common is that they are swamped with work, backed up, and everyone in these systems experiences way longer delays than anyone should ever have to experience. Navigating the human rights tribunal system has taught me patience and the art of waiting like no other experience has or would.

Fairness for a self-represented person is very important. We always want to make sure we are experiencing a fair process, especially when we are in an adversarial legal situation against lawyers. Already, it feels unfair. Because it is. So the process becomes extra important. The term you want to research is “procedural fairness”.

Tribunal members, adjudicators and judges are very used to dealing with the self-represented litigant vs. lawyer situations. This happens A LOT! To start out with, between 50-80% of the people are self-representing, depending on the area of law. That is already incredibly high. Then, of the self-representing litigants in this study “89.3% of respondents said that the other side in their case was represented by counsel, while 10.6% percent stated that the other side was also self-representing.” (p. 6) Wow, so most people are representing themselves in legal proceedings and most of the time they are up against lawyers.

There is a lot of case law already on trying to ensure a fair process.

There are cases that will point this out, and I encourage you to earmark these and use them just in case you feel you need them. There are lots on the procedural fairness page on the BC HRT below.

Here is one example of the HRT bending to ensure fairness:

Teacher v. School District and others, 2025 BCHRT 179

[3]               The Teacher provided further evidence and argument in her Form 5 – Time Limit Reply, which I decided to consider because she is self-represented and should be given some latitude in raising new allegations and arguments in reply. In fairness to the Respondents, I considered their further submissions responding to the Teacher’s reply. Finally, I considered the Teacher’s reply to the Respondent’s further submissions as a matter of fairness.

Here is another case regarding making submissions

Taylor v Mallany, 2019 NLCA 25

[24]      At paragraph 53 of the decision, Green J.A. notes that the Principles impose responsibility on judges, court officials, and members to the Bar to “ensure that self-represented persons are provided with fair access and equal treatment by the court” which includes “opportunities for all persons to understand and meaningfully present their case.” And further at paragraph 54, he suggests that the Principles should be treated as having some legal effect:

The Right to Make Submissions

[26]      A fundamental element of the right to be heard is the right of a party to present their case to the decision-maker.

Procedural Fairness at the HRT

Here is the page on procedural fairness for the BC Human Rights Tribunal. I encourage you to read this if you are going to be navigating the process.

Here are some things that I have learned:

  1. If you are having meetings, you can ask for an agenda to be created so that you know what to expect and can do some research beforehand to prepare for the meeting
  2. ALWAYS ask questions. If you think something is fishy, ask! You have a right to ask questions.
  3. Push the line. If you think something isn’t fair, say so. People can’t read your mind and you are the one with all of the information about your situation. These systems aren’t designed for anyone in particular, so if your situation doesn’t fit the mold, speak up. Always ask for something that you want. If they say no, then you at least got your answer. Don’t assume the answer will be no.
  4. Lawyers aren’t allowed to take advantage of you becuase you are self-representing, so if you they are messing with you, you can call them on it by filing an improper conduct complaint with the HRT or file a complaint with the law society.

Here are some of my tips for navigating the HRT.

The tribunal members have their hands tied in many ways, but I can tell you, I have noticed when they are still able to stay in their lane, uphold case law, they will be flexible to ensure fairness to both sides. Which I have appreciated.

The HRT is a legal process. It’s a legal test. Doesn’t mean your experience didn’t happen.

Like any self-representing person, reading case law is a great place to learn about law. Here are the instructions to navigate Canlii. There are lots of great YouTube videos for people self-representing.

And for those who are interested, here is a fascinating report on self-represented litigants in Canada.