Education is a service under the mandate of the provincial government. It has the duty to accommodate students under the BC Human Rights Code Section 8, and to not discriminate as defined (by case law) under the Charter of Rights and Freedoms. We look to provincial human rights decisions to understand how human rights, the duty to accommodate, are applied in education. We also look to Supreme Court decisions to define what is expected in the service of education for children with disabilities.
Duty to Meaningful Inquiry
Disability: General Anxiety Disorder, Trichotillomania
Case: Student (by Parent) v School District 2023 BCHRT 237
Key Takeaways: Meaningful Inquiry – duty of the school to investigate what the barriers are and create a plan to remove them. The word “accommodation” doesn’t need to be used by the parent/guardian to trigger the investigation. Parents need to communicate their child is struggling and that it is connected to their protected ground. A student has a protected ground under the Code even without a designation or IEP. This case also mentions the expectations around self-advocacy for a child with a disability. For details in a summary click here.
Notable Paragraphs: 7, 13, 14, 34, 59, 90, 99, 100, 104
Duty to Meaningful Consultation in Good Faith
Disability: Autism
Case: Hewko v. B.C., 2006 BCSC 1638
Key Takeaways: Duty to meaningful consult in good faith with parents/guardians and what that means. Duty to co-operate in good faith. For details in a summary click here.
Notable Paragraphs: 342, 343, 344, 345, 346, 347, 361
Removing Barriers & Reasonable Accommodations
Disability: ADHD, Dyslexia & Dysgraphia:
Case: X by Y v. Board of Education of School District No. Z, 2024 BCHRT 72
Key Takeaways: The school is responsible for continually monitoring, reviewing and adapting to try to remove barriers and provide reasonable accommodations for the student to access their education. Measurement is not by how the student measures up against standardized testing but by whether the barriers were removed. They aren’t allowed to give up. For details in a summary click here.
Notable Paragraphs: 108, 109, 110, 112, 118, 120, 141, 142, 159, 160, 161
Duty to Facilitate & Exclusion
Disability: Autism and Learning Disability
Case: Kahn v. Upper Grand District School Board, 2019 HRTO 1137
Key Takeaways: Parents must facilitate reasonable accommodations whether they agree with them or not, including reduced hours. What are reasonable accommodations connected to exclusion. For details in a summary click here.
Notable Paragraphs: 254, 256, 258, 259, 260, 261, 271
Bullying
Protected Ground: Sexual Orientation
Case: Jubran v. Board of Trustees, 2002 BCHRT 10
Key Takeaways: The school has to proactively provide a physically and emotionally safe space for students. For details in a summary click here.
Notable Paragraphs: 102, 109, 116, 118, 138
Parents Connected to their Child’s Human Rights Complaint (Family Status)
Protected Ground: Family Status
Cases: Independent School Authority v Parent, 2022 BCSC 570 & The Parent v. The School District, 2024 BCHRT 113
Key Takeaways: Parents can be added under Family Status to their child’s human rights complaints, but they need to do so within a one-year time limit. The BC HRT doesn’t consider parents of disabled children a public interest. For details in a summary click here and here.
Discrimination Test & Access to Education – Supreme Court of Canada
Disability: Dyslexia
Case: British Columbia (Ministry of Education) v. Moore, 2008 BCSC 264
Key Takeaways: Discrimination test, What is meaningful access to education, equitable education and defines what a “service” is for education. For details in a summary click here.
Notable Paragraphs: All of it.
Separated Classroom Placement – Supreme Court of Canada
Disability: Physical Disabilities
Case: Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 SCR 241
Key Takeaway: Parents don’t have the right to choose if they want their child mainstreamed or in a “special education” classroom. The decision belongs to the school. The courts will take a “best interest of the child” approach over the wishes of the parents. Schools need to offer reasonable accommodations, not ideal or perfect.
Notable Paragraphs: 76, 77, 78, 79, 80, 81
