Tag: #Barriers

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Teacher Training – Is it enough?

One of my children had a particularly stressful year in school. It flipped both our lives upside down. I left my work because of it. The teacher was ill-equipped to teach a child with learning disabilities. Added to the mix, there were issues of severe bullying within the class. Without going into specifics, it was an “active” classroom on top of everything else. I was so frustrated about the whole situation and felt the adults in the room really didn’t know what they were doing. Some of the information I was providing to them about disability felt very basic to me. Their old school traditional ways of teaching were not working. And just increasing the intensity of traditional pedagogy was making things worse.

Years later I found out from another parent who volunteered in the school that the classroom teacher was frequently, almost on a daily basis, leaving the class in tears. She also had two very young children at home, and I can imagine now just how overwhelmed she must have felt.

Jumping ahead a few years, it was revealed during the hearing at the BC Human Rights Tribunal, for my other child, just how ill-equipped and lacking in knowledge related to disability and mental health the teachers and school counsellors really were.

It seems people’s individual knowledge and skill level had more to do with their own interest, motivation, work experience and self-learning. This produces such a wide spectrum of knowledge among educators. Some people have been amazing and very helpful. People I relied and on and was so thankful for their knowledge. Other people, I wonder how on earth they got here.

One teacher at our hearing, under oath, testified that after graduating from a well respected university program that the word “accommodation” wasn’t something that they had heard of. Ummm….teaching universities…..you might want to review your education program. Shall I name you and read out the transcript? Or was the teacher lying? Or were they confused? A classic defense. Apparently everyone becomes confused when allegations appear. And yet tribunals write in decisions that educators are the experts and they get to decide what professional recommendations to implement or discard.

Teachers are graduating with so little knowledge in their duty to accommodate, human rights, disability and mental health. Basic mental health, like anxiety. Professional development workshops on inclusion are optional. WTF! It sends the wrong message. Apparently skills in inclusive education are nice to have but not essential. Our kids are optional folks!

At another hearing from the BC Human Rights Tribunal, an educator admitted “We aren’t trained for this”. What are you trained for? Teaching the neurotypical kids who are natural sponges and have no barriers for learning? Is that it?

I know there are recent efforts to improve training and skills in educators, and some people currently completing education ready to bust out, but it is still optional for educators and we need a lot MORE! We need to take these researchers and teachers of teachers and clone them. Spread them everywhere.

So many students are not even identified because teachers can’t even tell when a child has a learning disability. I assumed all teachers would be able to identify this. Nope. The skills and knowledge that staff have are very inconsistent. The best teachers are the ones when their own children have disabilities or themselves and they can take their own lived experience and knowledge and combine it with their foundational training. I don’t know what we would do if we didn’t have them.

I knew one teacher who had ADHD didn’t want to disclose it to their colleagues for fear they would think less of them. What does that tell you??

Even with literacy screening recently in kindergarten, do teachers know what to do next? There is no shame is admitting, that you don’t. It’s not your shame to carry, it’s the post-secondary institutions that you paid good money to. There are surveys and research being done and with reports of “severe instruction deficiencies” for teachers who know how to teach kids with dyslexia. Go ahead and take a deep dive on the internet. If you are lost and confused, you are not alone. An education law book was very explicit over how much administrators lack knowledge in education law and human rights.

I don’t want to start giving personal examples about just how shocking the myths, stereotypes and lack of knowledge around disability is amongst classroom teachers and administrators. I was stunned. My trust was completely shook during the hearing. I thought to myself, wow, I really gave them a lot more credit and depended on them than I ever should have. From this point forward I need to assume no one knows anything. You want evidence of just how serious of an issue this is, you can come to my home and read through all of the evidence I have organized in binders.

The number of teachers and educational assistants willing to work in the education system are becoming so low, districts are hiring “responsible adults”. Oh my goodness. Please send help.

I would really love a HUGE spotlight to be tilted towards post-secondary education programs for teachers, and professional development workshops on inclusion and disability. The fact that parents are still dealing with teachers who are punishing neurodivergent/disabled kids because they don’t have “listening bodies” is incredibly frustrating and discriminatory.

WHY are disability and inclusion professional development workshops optional? That is quite the message. Received loud and clear. As a system, do you not find this embarrassing? The teachers who are not signing themselves up for this kind of training, I would argue, are probably the ones who need it the most. The undercurrent of this blog is ableism. Who are we prioritizing? Who are we ignoring? Who are we making optional? Let us think and reflect on this.

Teachers, this can’t be fun for you either. Can you imagine how stressful it would be to have so much responsibility, be held to standards, to potentially be defending your decisions in a hearing, and not even be properly provided with information and skill to do your job in the first place?

This is a topic where I feel we can all come together and be on the same page. It benefits everyone to have teachers feel confident and be skilled.

Improved mandatory teacher training in disability,
mental health and inclusive pedagogy please!!

Please don’t send teachers the message that teaching kids with disabilities are optional.

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Part 7 – Applying the Duty to Accommodate – Focus on Needs

Two years ago, in the month of July, I wrote a six-part series on the Duty to Accommodate.

Part 1 – The Power of the Human Rights Code
Part 2 (a) – The Discrimination Test
Part 2 (b) – The Reasonable Justification Test
Part 3 – Meaningful Inquiry
Part 4 – Duty to Consult
Part 5 – Duty to Facilitate
Part 6 – Pulling it All Together

My goal was to make it more accessible and show people, through the trail of case law/tribunal decisions and Human Rights legislation (written authority), the rights their child actually have. Not just what the school district tells them – which is more focused on their own administrative processes and how they compartmentalize students administratively.

Most people when interacting with tribunals and specialized courts are self-represented. Law is not for the highfalutin lawyers. Law is for everyone. Knowing, understanding and applying our rights is a part of life, like grocery shopping and laundry. When we expect people to uphold our rights it does not mean we will automatically be engaging with lawyers either. School employees are duty bearers. Students are rights holders. Schools have the obligation and responsibility to uphold the students rights. (They just may not realize this.)

The pros (+) of the Human Rights Code:

  • It supersedes all school legislation, school board of education policy, administrative procedures and teacher classroom autonomy, etc, when in conflict (discrimination occurs). It is above all laws and policy – so powerful.
  • Every child has the legal right to be accommodated and receive an education.
  • It can create movement sometimes when nothing else has because of the accountability mechanism – human rights complaint process – the damage period.
  • The school knows if you file a complaint, they will have to justify or prove with evidence that they have accommodated your child up to the point of undue hardship.

The cons (-):

  • It only goes up to reasonable accommodations, not ideal or preferred accommodations.
  • The school is considered the experts, and they get to decide the accommodations, not you. You are there for consultation, but you are not the final decision maker.
  • If you don’t want your human rights complaint dismissed, you will need to facilitate reasonable accommodations whether you agree or not.
  • They get to decide class placement in “the best interest of the child,” not the parents’ wishes.

Pro (+) & Con (-)

  • Your rights are defined by case law (this is both very good and challenging). It’s how your rights are defined.
  • You are co-parenting with the government. For some reasons, this is fabulous, like the case law examples in the Co-parenting blog. For other parents they are going to find this frustrating, especially when you feel that you know more about disability and your child’s disability than the educators who are sitting in front of you.

The Duty to Accommodate will get your child into the classroom with barriers removed, which is HUGE. However, the school, with limited training in disability, has a lot of decision-making power and their own ideas on how to assess the functioning level of your child’s disability and remove those barriers. Add in layers of ableism with myths & stereotypes about disability.

Many teachers are still not aware that:

  • Accommodations are not rewards. No child needs to earn their accommodations with good behaviour.
  • They must follow a child’s IEP. It’s not optional or a nice to have or when there is time.
  • The Human Rights Code supersedes teacher classroom autonomy.

Parents are also struggling with educators not following their child’s IEP. There is, after internal advocacy, an accountability mechanism for that. Teachers’ standards are also a very important tool.

BUT….as I digress….

An important part of applying the duty to accommodate, after learning the language for email communication, is knowing where to focus your energy and what to focus on. This is a marathon, not a sprint. If you start taking extra side trips along the running path that are unnecessary and will lead to no where, you will exhaust yourself and deplete your capacity faster. You will burnout constantly trying to scale walls that are unscalable.

What do you focus on?

NEEDS.

You start with their needs. What are they struggling with?

This is how we apply the duty to accommodate.

As a parent, you are witnessing your child’s behaviour and communication at home. Whether they are hiding in their room, crying, having meltdowns after school, what they say, what they don’t say. You feel the energy shifts. The mood changes. The person you knew morphing into someone else. Behaviour is communication. You know your kids in ways that no one else does.

This is where you begin.

Because, since you don’t get to pick the accommodations your child will receive, you focus on the “problem” to be resolved. Which is the area of frustration.

I saw this book online. I haven’t read it. “Fall in love with the problem, not the solution.” It’s actually a book for entrepreneurs. I saw it on some book thread. It was talking about how people create products for life’s problems. An area of frustration. They will invent something that they make into a product and try to sell it to the public because it solves a problem. But if you really want to unleash your creativity, focus on the problem and not get overly attached to your solution.

I thought, wow, this really applies to advocacy, actually. We see the problem (what is not working), and we get attached to our solution. And if PAC, schools, Trustees or other people don’t adopt our solution, then we get incredibly frustrated. But if they don’t adopt our solution, we still have the problem. So toss it back to them. You don’t like my idea. Fine. Solve the problem – remove the barrier. And they need to make “the ramp” go all the way up the stairs, not just halfway.

We can’t tell schools what to do. We are here for consultation. But they are expected and responsible for solving the problem (removing the barrier). There may be multiple solutions. But they need to try and pick the best one (which is what we are here for) for our child and be willing to be flexible and try something else.

Fall in love with the problem, not the solution. In other words, focus on your child’s unmet needs.

Meaningful inquiry —–All you have to do is tell the school that your child is struggling, and this struggle is connected to their disability, and THEY have to investigate and figure this out.

While it is true…..

*******

Wells v. Manitoba (Human Rights Commission) et al., 2025 MBKB 86


 The school must be given some discretion with respect to the specific programming and supports it provided to its students based on medical documentation and ongoing assessments.  As subject matter experts in delivering education, it appears that the school would be in the best position to determine how to provide academic accommodation to students in accordance with its assessments and available medical documentations.

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Ok, then people. You want to be the experts. Be the experts. I’ll be here to consult and provide you with information on my child to help you figure out what the best accommodations are. But the responsibility falls on you. It doesn’t matter how fiercely parents advocate or if they don’t advocate at all; the school is still legally required to provide your child with an accessible education.

A quick nod to self-advocacy when it comes to students.

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 Student by Parent v. School District BCHRT 237.

[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.

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Note to educators: If you are an educator and you are feeling overwhelmed or that you are not trained or educated enough in the area of disability or science-based reading interventions, you are NOT alone. I am fully aware that the system is setting you up for failure, and you all feel squeezed between a rock and a hard place. Get it. A lot of times, educators don’t know what to do, and they blame the child as their escape hatch. Even kids as young as grade one! For a lot of people, this seems to be a knee-jerk reaction. Is someone telling you to do this? I don’t get it. Communicating with the child is great. Blaming the victim after the fact. Not great. I really hope conversations are happening at union levels, administration levels, and teacher post-secondary levels are having conversations about proper professional development in disability and reading. Nothing from the 1950’s please.

Parents, you don’t need to accept excuses from staff for all the reasons they cannot accommodate your child or their blaming your child for not advocating enough. Staffing issues aren’t your problem. They are responsible for figuring this out. They aren’t allowed to give up on your child. They have to keep revising, monitoring and adapting.

If I were to bestow upon you all of the riches from all of the lands, it would be a support system and the duty to accommodate. Using human rights language does not mean we are foaming at the mouth in attack mode. Advocating for your child’s legal rights can be right in line with being pleasantly persistent. Some parents feel that rights-based language is too aggressive and they don’t want to feel unwelcome at the school. Don’t wait until you are so raging mad you are ready to storm the fortress. Build it into your advocacy from the start. Rights-based language is only aggressive if you make it to be. It can be very preventative. It can be what keeps you out of the human rights complaint process.

The duty to accommodate and accessibility legislation all focus on a disability-related need and removing a barrier.

For example:

Student with ADHD. – Teacher is noticing that your child is continuously not handing in their homework and relays this concern to you.

Disability-related need: Executive function skills that involve planning and memory. Focus; may have missed the instructions. Homework isn’t coming home. When it does come home and is completed, it doesn’t get handed to the teacher in the morning. It’s not because of a personality flaw or a character defect. Always look for how the areas of frustration are connected to disability features. Our kids aren’t lazy or unmotivated. They have neurological reasons for their behaviour and they need accommodations.

Barriers (Physical, Attitudinal, Structural) – Attitudinal & Structural (rules) – teacher feels the students are old enough that they shouldn’t have to prompt kids at the end of the day to remember to bring their homework home. Teacher doesn’t want to specifically ask for homework at the start of the day. They want the kids to put it in the homework bin “independently”. Physical – lack of visual prompts for homework reminders. Child is handwriting down instructions, and the printing is illegible. Parent doesn’t know how to support the child in their homework at home.

Focus on the needs. How does the teacher plan on removing the barriers? How can you manage the classroom and make it more inclusive so everyone is being prompted to take homework home and hand it in?

A parent might jump to the solution and want an EA to check in on them at the beginning and end of the day and be very frustrated when told there is no EA time for their child.

Focus on the need: the teacher needs to remove the barriers and figure out how to get your child’s disability-related needs met. If an EA isn’t available for individual prompting, how can they apply prompts for the whole class and make the supports inclusive to everyone? Maybe the teacher uses their classroom website to post homework to assist with parent support for completion. It’s up to them to figure this out. Maybe the student takes a picture of the instructions with their phone.

They need to remove the barriers and resolve the disability-related unmet needs. They need to consult with you, as you know your child, and figure out what will work for your child.

A KEY part in how we uphold our child’s rights is we DOCUMENT. I won’t regurgitate my documentation blogs here, so take a look through the blog list category.

Applying the duty to accommodate means creating a document trail.

I would argue that you are not engaged with rights-based advocacy if you are not creating documented communication between you and the school. (TIP: you may want a separate email address just for school communication. Never delete anything.)

Applying the duty to accommodate means you are aware of all of the duties under the duty to accommodate, you understand that it’s reasonable accommodations, not ideal, what your role is and the responsibilities of the school. You focus on needs. Unmet needs and barriers.

Generally….

Your role:

  1. Documenting your consistent communication. Communicate, communicate, communicate.
  2. Expressing unmet disability-related needs
  3. Consultation through the IEP process/accommodation meetings
  4. Whatever excuses the school gives you – they are responsible for figuring this out and resolving the barriers to your child’s disability related needs. Human Rights supersede.
  5. Be persistent. It will show them that your eyes are on them. Document the progress. What is working and what isn’t.
  6. Communicating needs is also really important so later they can’t claim hindsight.

School’s role:

  1. Remove barriers and provide your child with what they need so they can “access their education”.
  2. They will need to have evidence that they are providing your child with reasonable accommodations and that they are reviewing, adapting and responding to the changing needs of your child, whether you are advocating or not.
  3. They need to offer an opportunity for meaningful consultation with parents/caregivers.

Key Takeaway

  1. The duty to accommodate is powerful. (Please read the six-part series as your foundation.)
  2. It’s not going to get you 100% of what you want – it’s how your child’s rights are defined. School gets final decision power. “Reasonable” accommodations. Are they making reasonable decisions?
  3. Focus on your child’s needs. It doesn’t matter if they get a designation or an IEP. The schools’ obligations and legal duties don’t change. They still have to accommodate a child with a disability no matter how they administratively process your child.
  4. Be persistent, consistent and document your communication. You need that document trail, and writing about your child’s unmet disability-related needs should trigger meaningful inquiry. Then you are ready to go!

Conclusion:

Learning about the duty to accommodate and learning how to advocate is a life skill every person should have. Disabled or not. I have met adults with privilege who have horrible advocacy skills and are terrified of advocating. Just think of this as free training. You’ll become so good at this, that it will assist you in other areas of your life. (We had a car dealership sell us a car that had the wrong brakes in it. They thought they could wiggle out of it. I am not a door mat. They said to me, “What has happened in your life that you do not trust me?” LMAO. After weeks of persistent and consistent advocacy and calmly informing them I will take them to small claims court, they paid for our brakes to be replaced. They were tough. They really put up a good fight and they thought we would go away using the same strategies that school districts use. Nope. Sorry. Nice try. They don’t work on me. I know what to do.) Thank you school district for all of the advocacy experience and the ability to sharpen my skill. Conflict resolution, relationship building, advocacy – I am very ready for life.

I wish you all the best in your advocacy journey. I highly suggest you find your people for support. You are certainly not alone and you don’t need to do this alone either. There are a lot of parents out there walking the same path as you. If you want, you can find them.

Start here…

BCEdAccess Society
Family Support Institute
Inclusion BC

Here is my GET HELP page.

Best wishes,

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Teachers Regulation Branch (TRB) Decision

Here is an important TRB decision about a teacher who was too rigid and the impacts of their rigidity impacting students differently. More so for Indigenous students and neurodivergent students.

“Polishak did not generally adjust his manner of teaching, classroom expectations or assignments to support students’ individual learning needs. A parent of student (“Student A”) asked for Student A to use headphones in class while working on assignments to assist with focus, which is a helpful strategy for students with ADHD. Polishak did not allow Student A to use headphones and did not allow it for some time after the School principal advised him to do so.”

ALSO:

“In the 2023-2024 school year, Polishak generally used rigid classroom rules, which he rarely modified to support the individual needs of all learners in his classes. These rules negatively impacted some students more than others. Over one-third of the students in the School were Indigenous and many of them bussed to and from the School. Polishak’s rules included:

a. Students were required to value all of the class time by not being late. When a student had a history of lateness, Polishak sometimes refused to let the student enter the classroom. Polishak required late students to wait in the hallway for up to 15 minutes, which resulted in students missing more learning time and sometimes falling behind on in-class assignments.

b. Polishak required students to complete all assignments. He did not usually modify or adjust assignments to meet a student’s individual needs. Polishak imposed a “homework detention” on students who had not completed assignments, by which the assignment had to be completed under his supervision before or after school, at lunch or during the flex block.”

There is more to this decision.

Here is the decision in full:

Jonathon Tyler Polishak

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Reasonable Accommodations for “General Education”

This is a new education case that was posted on June 16th, 2026. This is from Alberta. While it is not binding in BC because it is from a different province, cases from other provinces are still influential and are used by human rights tribunal decision makers to help them interpret and apply human rights law to the case they have in front of them.

JF obo DF v Calgary Board of Education, 2026 AHRC 68

There are some paragraphs in this case that succinctly outline the duty to accommodate. As always I recommend people read the case in full. Lots of details in there about the specific circumstances of the case.

Duty to Accommodate

[26]      The starting point for an analysis of accommodation is found in Central Okanagan School District No. 23 v Renaud,[8] where the Supreme Court of Canada described accommodation as a “multi-party” process:

The search for accommodation is a multi-party inquiry. Along with the employer and the union, there is also a duty on the complainant to assist in securing an appropriate accommodation…

To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.

…

The other aspect of this duty is the obligation to accept reasonable accommodation… The complainant cannot expect a perfect solution.

[27]      The Alberta Court of Appeal stated in Callan v Suncor Inc.[9] that a complainant “is not entitled to dictate the accommodation he or she will accept” and that “[t]here is no duty of instant or perfect accommodation, only reasonable accommodation.”

[28]      As Chief Oviatt stated in RS obo CS v Edmonton School Division (RS)[10] in respect to the above decisions:

These decisions bear on the Complaint. The respondent had a duty to arrange the complainant’s learning environment in a way that he could meaningfully access general education. It also had a duty to reasonably accommodate his disabilities to the point of undue hardship. Undue hardship is a high threshold that places a significant obligation on the service provider. At the same time, all parties must participate and cooperate in the accommodation process. Ultimately, the respondent was best suited to determine how to reasonably accommodate the complainant in light of its operations, and the complainant’s parents had a duty to accept reasonable, not perfect, accommodation.

[30]      In RS, the parents raised complaints in respect to the provision of safe spaces, speech supports, and a one-on-one educational assistant, among other forms of requested accommodations; which are also issues raised in the Complaint. In RS, the Tribunal determined that:

The respondent was obliged to provide reasonable accommodation to the complainant to ensure he had access to general education, and it was entitled to inform its decision using all available information. The physician’s March 2022 medical recommendation was undoubtedly one piece of that information. So was the complainant’s behaviour at school and the respondent’s ability to meet the same objectives by using a classroom educational assistant who prioritized the complainant’s needs. The respondent was entitled to apply its expertise in education to determine a reasonable level of support.

[31]      Finally, in Moore, the Supreme Court of Canada emphasized that “a margin of deference is…owed to governments and administrators in implementing [education policy].”

[35]       There is no information in the records indicating the respondent has failed to provide the support indicated in the January 4, 2024, report to DF. Nor is there any information suggesting any available resources were withheld or that the respondent failed to reasonably accommodate DF considering its operations. Rather, the records include hundreds of pages of correspondence confirming accommodation steps being taken by the School, Student Support and Safety Plan documents from September and October 2024 setting out plans for how School staff will assist DF, and a Learning Plan from October 2024 derived from specialist recommendations.

[36]      In more general terms, it is not sufficient for a complainant to demonstrate that there is a program or treatment that would be beneficial that has not been provided by a school for the Tribunal to find that a respondent school board has violated the Act. This would run counter to the principle outlined in Moore that school boards should be provided some deference in how they meet their obligation to provide meaningful access to education.[13]

[37]      While it is clear from the materials that the complainant’s parents have been dissatisfied with the respondent’s accommodation efforts for some time, the record supports a robust, collaborative approach to accommodation that, although it could be argued was not perfect, reasonably accommodated the complainant to the point of undue hardship.  Prior to the Complaint being filed, and afterwards, hundreds of emails were exchanged between the parties, and many meetings held, to develop, implement, and adapt accommodation plans for DF.

[38]      Therefore, I find the Complaint has no reasonable prospect of success under section 4 of the Act.

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This complaint did not proceed to a hearing, and it was dismissed.

One of thing that I know is going to stick out to people reading this is “the respondent was best suited to determine how to reasonably accommodate the complainant in light of its operations, “

One thing to keep in mind is that resources must be distributed equitably. Whatever funding the government gets, and how they decide to organize their operations, are they doing so in an equitable manner?

Parents take Ministry to Court – Win for Equitable Education

[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.

There is a zone.

Not getting access, barriersGetting Access “Reasonable Accommodation”Ideal Accommodation
Discrimination, cannot be justified.Having “a ramp” – barrier is removed, it doesn’t promise a certain level of demonstrated ability via grades, just access. An opportunity. Dismissed complaint if parents are expecting ideal and refuse to accept a reasonable accommodation.


X by Y v. Board of Education of School District No. Z, 2024 BCHRT 72

[110] …. 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.

[120] …..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……

Even if they can argue that their decisions aren’t discriminatory, you can still appeal a decision under Section 11 if you don’t agree with it and you think it is harming your child.

Not a single person has wide-sweeping rights under the Human Rights Code or the Charter. It is how your rights are defined, and that is defined in common law. Created by tribunal decisions and courts.

The duty to accommodate is our strongest form of advocacy, but there is a ceiling. It’s not unlimited. It can bring your child up to reasonable accommodations and barriers removed. It may not be the educational experience you wish for them. It doesn’t mean that your kids won’t experience negative experiences or that it won’t be hard. It doesn’t mean they wont experience harm from the education system as a whole.

We need to advocate through multiple pathways, have multiple teams of people in various roles and positions, all advocating for systemic changes. Laws need to be applied. It takes people and organizations to do that. Our education isn’t operating to the fullest it can in implementing human rights for children with disabilities. But it will only bring us up to “reasonable”. If we want our ideal, we need other forms of advocacy and relationship building to bring us the rest of the way.

Here are systemic blogs you may find interesting.


Advocating for Systemic Change
Complaints are the Ultimate Protest
Systemic Imperfection
Who does Society care about?
Why Can’t we Just Sue the Government?
Systemic Impacts of Scarcity in Education


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Dear Parent/Caregiver,

Here is what I would like to tell every new parent of a disabled/neurodivergent child entering the school system. I learned this the hard way. Hoping to pave a path so it’s easier for those who follow.

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You are going to be entering the school system and advocacy will be required.

How the school system responds to you, as a whole, is not personal. They are not peering into your soul and basing their response on what they see. Even if they really like you, it wont change their response. They will protect themselves no matter what, first.

School districts speak a different language. The language of liability. The language of ableism, racism, and patriarchy. They are assessing you based on risk. How risky of disruption or expensive are you going to be?

There is nothing wrong with you. You haven’t done anything wrong. This is not your fault.

The lens through which they evaluate and come to a conclusion about your child is not your shame to carry. It is theirs.

You are dealing with a colonial system. This is a machine that has been operating for a very long time. The machine thinks it is successful and wants to keep going.

When people gaslight you, try to control you, ignore you, and/or silence you, this is an example of the colonial machine. The machine has different priorities. Stability, predictability, risk-management, union contracts, power and control, etc. If the system were a person, we would describe them as narcissistic using coercive control.

If you are someone who has experienced abuse and trauma, this will be especially triggering.

However you cope with this, it is not your shame to carry.

However you learn to navigate K-12 education, please don’t internalize their behaviour towards you as a reflection of your own value.

How they behave is a reflection of the machine, and it has nothing to do with you.

How the machine grinds and turns the wheels is not a reflection of all who personally works within it. There are fabulous caring people in education. Some people help grease the wheel more than others. Some are completely oblivious to it. Others just think, this is how things work and defend the system. If you are in the school system long enough, you will meet wolves in sheep clothing. Intentional or not.

Being able to identify what is a reflection of the machine, can save your mental health and protect your emotional capacity when you advocate.

This is a chess game. There are rules. Learn to play the chess game and it will help you advance. Get the most of what you can for your child and their education while staying afloat.

There is hope.

You will know when you are not getting what your child is entitled to, where to focus your energy, or when it is time to leave. Knowledge is power.

You belong to a community, whether you have found us yet or not. Your people are out there. There are more people advocating for your child than you may realize. Movement has been occurring. The machine doesn’t want you to recognize those. So, we remind ourselves.

“The most common way people give up their power is by thinking they don’t have any.” – Alice Walker

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More blogs on the school system:

Liability in Education
School Emergencies
Understanding Systemic Change

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What is Reasonable? – Duty to Accommodate

A lot of human rights decisions from tribunals will focus on whether the school’s response and decision making was reasonable. Where the accommodations reasonable? Was the delay reasonable? Did they try and mitigate the harm? Was that reasonable?

Given what they knew at the time about the child’s disability-related needs, did they make a reasonable decision? It doesn’t need to be the perfect decision, just reasonable. Can they justify it?

When it comes to decision making, in order for it to be administratively fair, they need to explain to you the decision. According to Ombudsperson, you have the right to receive a decision, “Fairness is also about providing clear and meaningful reasons for decisions so the person affected can understand what process your organization followed and how it came to the decision it did.”

If schools are justifying their accommodations as reasonable, it is only fair that they explain why they justify those accommodations. There justification has to meet a specific standard. (See below)

Tribunal decisions have already clearly stated that we don’t get to pick what accommodations are provided to our child, we are on a consultation basis.

Leaving a student to suffer disability-related impacts without accommodations, was not seen as reasonable when they were aware. They couldn’t justify it. If they can’t justify it based on fact and evidence, they are in trouble. It can be discrimination.

Let’s look at some cases and see what they say. I will discuss more below once you read through the cases I have selected with key take aways at the end of the blog. Knowing and understanding this, how can we tailor our advocacy? We can use this to make it work for us, and push them on this. Push them to make their decisions make sense. Justify it as reasonable. They can’t do that? Then we can push the line and move it.

CASE ONE

An example of what is unreasonable:

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

[100]      In short, I agree with the District that the Parent and Student were obliged to bring forward information relating to accommodation. The Parent did that, when she communicated that the Student had anxiety and trichotillomania and that school was taking a significant toll on her physical and mental health. That information should have been enough to prompt a meaningful inquiry by the school to identify what was triggering the Student’s symptoms and what supports or accommodations may be appropriate to ensure she was able to meaningfully and equitably access her education. The failure to take that step was, in my view, not reasonable. As a result, the disability-related impacts on the Student, arising from conditions in her Language 10 class between April 24 and June 27, 2019, have not been justified and violate s. 8 of the Human Rights Code.

(Summary: school knew she was struggling, knew she had a disability, and that her struggling was connected to school. They didn’t do anything about figuring out if she needed any accommodations. Not a reasonable response.)

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CASE TWO

X by Y v. Board of Education of School District No. Z, 2024 BCHRT 72

[112] Accommodation requires a reasonable, not a perfect solution: Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970 [Renaud]. While there may have been other approaches available to the District, this does not necessarily render the one taken unreasonable. What is reasonable and what constitutes undue hardship is fact specific and will turn on the specific circumstances of a particular case: Renaud.

(Summary: You don’t get your perfect or ideal accommodation, only an accommodation that achieves the goal of equity. It will be very case-by-case what that looks like. Not the same for every person.)

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CASE THREE

Kahn v. Upper Grand District School Board, 2019 HRTO 1137 (CanLII)

[260]           In rejecting the Loop of School plan, Ms. Kahn failed in her obligation to co-operate in the accommodation process. In so finding, I note that parents do not have the right to dictate the accommodations which their children will be provided with to access education. While parents do have the right to provide input as part of the accommodation process – which Ms. Kahn did in this case – they must accept reasonable accommodations offered by the school board. See UM v. York Region District School Board, 2017 HRTO 1718; Fisher.

(Summary: School educators determine what the accommodations should be. If you don’t help to facilitate this and give them a chance to see if it works, you wont be able to complain later. You complaint could be dismissed.)

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CASE FOUR

Wells v. Manitoba (Human Rights Commission) et al., 2025 MBKB 86

[1]         Maxine Wells (Ms. Wells or the applicant) is a tireless advocate for her son who had learning disability challenges as a student in the Border Land School Division (the Division).  Ms. Wells was in regular contact with his teachers, school administration and Division personnel[1] regarding his learning challenges and how they should be addressed.  Often, there were disagreements about his needs and how they should be addressed.  Several times, Ms. Wells retained independent specialists to assess her son’s learning disabilities and provide recommendations on how to accommodate those learning disabilities in the school setting.  Ms. Wells says that the Division was often dismissive of the recommendations of these specialists.  This became increasingly frustrating for her as she wanted to ensure her son had the best possible outcome in an education framework that did not, from her perspective, appear to be giving him the opportunity to succeed.  She says that ultimately, her son did not achieve the level of learning he could have had the Division followed the recommendations of the specialists as she urged them to do.

This case had the court assess their reasonableness in their response and they outlined the reasonableness test.

THE STANDARD OF REVIEW

[10]      The standard of review to be applied when the merits of an administrative decision are challenged is reasonableness (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 16).  None of the parties suggested that the Legislature intended a different standard or that the rule of law requires the standard of correctness be applied.  (Vavilov at para. 17)

[11]      In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified.  What distinguishes a reasonableness review from a correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision-maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision-maker’s place.  (Vavilov at para. 15; see also para. 83)

[12]      Other principles which guide a reasonableness review are:

•         A decision is unreasonable if there is a failure of rationality internal to the reviewing process or where the decision is untenable in light of the relevant factual and legal constraints (Vavilov at para 101);

•         A decision must be based on reasoning that is both rational and logical (Vavilov at para. 102);

•         A reasonable decision is one that is justified in light of the facts; the reasonableness of a decision may be jeopardized where the decision-maker has fundamentally misconstrued or failed to account for evidence before it (Vavilov at para. 126);

•         A decision-maker’s reasons must meaningfully account for the central issue and concerns raised by the parties.  Where a decision-maker fails to meaningfully grapple with key issues or central arguments raised by the parties, that may result in the decision being unreasonable (Vavilov at paras. 127-128).

[30]      In my view, the Report is a fulsome consideration of how the Division considered and accommodated the learning disabilities of Ms. Wells’ son.  It is “transparent, intelligent and justified”.  The Investigator understood Ms. Wells’ concerns and considered the evidence with those concerns in mind.  She acknowledged the differences between Ms. Wells and the Division with respect to the son’s learning challenges and reasonably concluded that the Division would be in the best position to determine how to accommodate those challenges, taking into account the available assessments.

[31]      I agree that there was ample evidence of extensive and reasonable efforts by the Division to accommodate the son’s needs, notwithstanding that the applicant did not agree with them.  Dissatisfaction with the decisions of the Division do not amount to discrimination.

[32]      In my opinion, the Report and the decision to dismiss the Complaint is transparent, intelligent and justified.

[33]      The application is dismissed, with costs.

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Professionals have a zone of reasonableness. Their decisions don’t need to be perfect, but there is a standard for reasonableness.

Even with the Teacher’s Regulation Branch, their behaviour has to be a “marked departure” from the Teachers Standards. It has to be unreasonable based on their professional expectations.

So let’s review.

If you feel the accommodations are not reasonable and your child is still not equitably accessing their education…remember they need to remove barriers…. then the school needs to justify their decision making to you in order for it to be possible that it is reasonable and administratively fair.

Their explanation needs to be:

  • Transparent
  • Intelligiable
  • Based on fact and evidence
  • Rational and logical
  • Connect to the key concerns

What can you do?

  • Explain the harm you are witnessing. You are the one best to discuss your child and their needs. They get the final decision, but they are required to meaningful consult with you.
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  • You will need to communicate need to them (in an email) so they don’t claim hindsight later on. You don’t want them to try and claim they made a reasonable decision at the time based on what they knew.
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  • You want to trigger meaningful inquiry by expressing the harm you are witnessing and linking it to school.
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MEANINGFUL INQUIRY – MEANINGFUL CONSULTATION – DOCUMENT DOCUMENT DOCUMENT



The duty to accommodate requires collaboration. Both parties have responsibilities in the process. Advocating for your child is part of the process. If you refuse to collaborate they can claim that you “frustrated” the collaboration process and they made a reasonable decision based on the information they knew at the time. They still have a requirement to accommodate your child whether you are involved in advocacy or not.(1) If you don’t want to be consulted you don’t need to be. They will just make their “reasonable” decision with the information they had at the time, minus any input from you.

*** The duty to accommodate is a process grounded in legally protected rights. This is not a perfect system. It is the most powerful form of advocacy we have, as it forces the schools to do things and explain things that no other system can. Parents experience more success advocating for their kids using a human rights lens. Even with Ombudsperson, it’s a recommendation, not an enforcement.

Push them to justify their behaviour, their decisions through the lens of reasonableness. When they can’t do that, you know you have room to push for further supports. Always come back to the discrimination test. Can you prove harm? Yes? Then keep going.

Keep in mind, you can appeal a decision or an absent of a decision to the School Board called a Section 11 appeal.

I don’t want to tone police, you do you, but when you ask them to justify their decision making, I wouldn’t suggest you use those words. Seeking clarification….. or can you please explain ___ to me so I understand better…
No one is going to fault you for wanting to understand someone’s decision making related to your child’s accommodations.

Having them justify their decision making,
or NOT being able to justify it
can be very helpful with your advocacy and evidence collecting.

Good luck advocates!

Here are some further blogs that expand on concepts I discussed above.

1. Hindsight

2. Duty to accomodate

3. Meaningful Inquiry

4. Meaningful consultation & A Guide to Meaningful Consultation

5. Section 11 appeal

(1) – They have the duty to accommodate your child whether you are involved or not.

L.B. v. Toronto District School Board, 2015 HRTO 1622 (CanLII)


(c)      School boards have an obligation under the Education Act to provide appropriate special education placements, programs and services to their exceptional students. Parental conduct or lack of parental authority cannot be used as a justification for not meeting an exceptional student’s needs; and

(d)      I agree with the decision in R.B. v. Keewatin-Patricia District School Board, (R.B./Keewatin) 2013 HRTO 1436, an HRTO decision cited by both parties in this case, at para 265, that a parent’s “fierce advocacy” for his or her child must not and cannot prevent a school board from accommodating the child’s needs to the point of undue hardship.

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Getting Documents!

Alright, we have seen how the Ministry can “inadvertently” not disclose documents. (wink wink). Yeah right!

Lawyers not disclosing documents and withholding evidence they shouldn’t be, isn’t a new issue AT ALL! They can pull some sneaky shit. This is one area they like to take advantage of, and sometimes it takes a legal process to pry out the evidence. People who engage in litigation for their employment, deal with this issue more than they should. It’s bad, and I don’t want to normalize it. I am just not shocked at all that they had disclosure issues.

Improper conduct complaints have been filed at the BC Human Rights Tribunal (BC HRT) around this issue and I have read decisions when respondents have had to pay costs ($$$) if it discovered during the process of a hearing that documents were not disclosed.

Parents can file a Freedom of Information (FOI) request for documents to their school district requesting information about their child and personal information about themselves as well. If you want an example of how to write this, and have some added information about this process that is good to know, I have a Freedom of Information page. If you look on your district’s website they should have information about it. Know that they will view this as an adversarial move. Just be aware. They don’t like them.

I can tell you right now, you are NOT going to get all the evidence you want through your FOI request alone. It is going to take some time and detective work.

Because schools have risk-management and liability as the captain of their ship for decision making, they are NOT going to just roll over and give you all the evidence you need to be successful against them in a legal process.

You still may get some pretty interesting things in your FOI response package. I have. Some of it has been VERY interesting. They accidently sent copies of emails they sent to their lawyers during one FOI request. Another FOI request gave me an email from the external investigator trying to soothe the staff, saying she had experience with difficult parents. That gave me a good chuckle. Never thought I would be labelled a difficult parent for not wanting innocent children to be hurt. But the GOLD NUGGET evidence I had to get was through the Application process during my human rights complaint.

Let me tell you all about this little adventure.

I submitted an FOI request. What I got back was a lot of documents. They printed them off and shipped them to my house. Around 500 pages. Interesting. Other packages came digitally, so I don’t know why I got paper copies of this one. Other parents have received paper packages sent to their house as well.

I was chunking up the topics and going through everything. Then I put everything back into order. It was then that I realized pages were missing. It would go from 168 and the next page would be 172. ummm. hello. what?

Then there was this one document in particular, a very important email that I was never provided, that was sent to the staff in the school about my child. It was not in the FOI package. BUT. I had an email from the staff member who told me they would be sending this email out, so I knew it had to exist.

When you file an Office of Information Privacy Commissioner (OIPC) complaint, you have to go back to the school district and say, hey, I notice that __________ is missing. Can you recheck your files please and send it to me. When they don’t. Then you can file a complaint. Which I did. By the way, you can file a compliant too if you find the redactions questionable. AND they do push on that. So if they think they can hide stuff and get away with it, they absolutely will. You need be a detective. You need to read everything and look and see if people are talking about meetings, or communicating with people, or sending emails about things that you don’t have notes or copies of. (Also note, the school district will take all the extensions they are allowed to take. They will respond to you late, and make you come to them in hopes you lose it. To exhaust you.)

Now, a complaint with OIPC about missing documents mean you are filing due to an “inadequate search”. Basically, OIPC says, school district can you look more, and the school says, okay fine we did and we couldn’t find it. Then OIPC will come back to you say, they looked and couldn’t find it. OIPC is satisfied. File closed. …..eek…okay then…..

OIPC doesn’t have much teeth with this topic. But I still recommend parents file an OIPC complaint. More work for the district and it forces them to lie to the OIPC. If you ever find out that they weren’t honest, you can go back to the OIPC and re-open the file. If OIPC concludes they were up to no good, you could take that and give it to the Board of Education. Say, hey, your school district is not ethical.

So my file was closed. I did not give up.

I waited….

We reached document disclosure time. The respondents did not provide the email in their disclosure package. I asked them for it. They said they didn’t have it. I told them I was filing an application anyways, which I did. Years of being told they didn’t have it. I never believed them. The form to file an application for documents is Form 7.1 GA 9- tick off the box to order the other party to disclose documents.

Sent in the application and lo and behold. Guess what. (insert eye roll). Along comes the email saying that they found it in someone’s email inbox. BULLSHIT! They couldn’t find that before???? This was an email that was sent YEARS ago. The district’s inbox doesn’t hold that much. I know that because I worked for them. They would have had to dig this up in their delete folder along with everything else they dug up. LIARS. If this email wasn’t disclosed they would have had a very strong defense that my child’s teacher wasn’t aware of their disability which would have been a game changer in their favour. So, this was a huge win for me.

Now about document disclosure in general. Which occurs after an unresolved mediation meeting. If they want to settle with you, you wont reach this stage. The document disclosure the lawyers gave me was friggen ridiculous. They basically try to overwhelm you with many pages of absolutely nothing. I wrote a report on a related issue I was advocating with a group of parents on, and it was 50 pages. They gave me that same report 12 times just connected to different people’s email as an attachment to make their disclosure bulk up. 600 pages of my own writing. Geez, thanks! Their document disclosure wasn’t anything I already had, and they resent me stuff I sent them back to me.

I had to FIGHT for every little piece of evidence that I got. And then when I was getting stuff through the MULITPLE applications I was sending. They were redacting stuff. I didn’t even know if they were allowed to do that or not. So I asked my case manager. They said I could ask to have it removed. So I did. And they were still sending me stuff not fully unredacted. So I had to ask again. I am telling you. Prying evidence out of them will take nothing but sheer persistence. But if they are fighting this hard to keep it, you know it is GOLD. And oh boy!!! Was it ever. Like fall of your chair kind of evidence. I can’t believe staff were putting this stuff in writing. I can tell you the district has since tightened up what they document. For parents who are now struggling with the district not willing to document anything. Sorry folks. I think I had something to do with that. The district learned their lesson.

Another thing I want to tell you about documents. If they keep resending you document packages and shuffling things around with new dates and new subject headings. You can file an improper conduct for that. Keep a list of all of the shady stuff they are doing to try and exhaust you. Wait until you have a bunch of good stuff and then nail them. The form to write an Improper Conduct application is the same as the 7.1 form just tick off the box GA12 – Order another party to pay costs because of their improper conduct.

Lawyers should not be taking advantage of the fact that you are self-representing. But some lawyers will do that. You can also file a complaint against them personally with the Law Society. Here is the Code of Conduct for Lawyers in BC.

Ok, so long story short.

  1. Be pleasantly persistent. Be a cheetah. It is going to take time. Cheetah’s are very very patient. File the complaints you need to file. If you lose your shit in the meantime, they will use it against you and you will go absolutely no where. They can file an improper conduct complaint on you too. Which they would love to do to get the case dismissed. You need to be extremely civil. Here are 5 rules on how to be untouchable. You want them to be the ones you can nail in an improper conduct complaint, if necessary.
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  2. They will not give you everything you need. You are going to need to be a detective. Wait for the right time. File your complaints. You are going to need to hunt for documents very strategically. Unfortunately if often takes the teeth of a legal process to force this evidence out of them.
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  3. If they start playing funky-monkey games with you. Don’t lose your shit. You have options to complain that they are not going to like.
    .

And that my friends is the tale of getting documents.

Hopefully you can use this information to help you all in your search.

Stay strong out there!

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The Tribunal Take on Witness Testimony

I find reading human rights decisions FASCINATING!!!

In this decision:

Castro Mosquera v. North Horizon Immigration Consulting Inc., 2026 BCHRT 61

The tribunal member goes into detail about how a tribunal member will interpret witness testimony!

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[15]           For all witness testimony, I start from the presumption that the witness is telling the truth: Hardychuk v. Johnstone, 2012 BCSC 1359 at para. 10. When making findings of fact, I determine which evidence is most plausible based on a balance of probabilities: Mr. S v. Cannae Holdings, 2018 BCHRT 47 at para. 12. When assessing which evidence is most plausible, I consider the credibility and reliability of the witness. I consider factors including the firmness of the witnesses’ memory, whether their evidence changed during cross-examination, whether the evidence seemed unreasonable, impossible, or unlikely, and whether they had a motive to lie: Bradshaw v. Stenner, 2010 BCSC 1398, aff’d 2012 BCCA 296, leave to appeal refused, [2012] S.C.C.A. No. 392 (Q.L.) at para. 186. I also consider whether supporting or contradictory evidence exists, and whether a witness’ evidence is internally and externally consistent: Harder v. Tupas-Singh and another, 2022 BCHRT 50 at para. 6. Overall, I consider whether each witness’s evidence was in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”: Faryna v. Chorny, 1951 CanLII 252 (BCCA) at para. 11.

[16]           I can accept all, some, or none of a witness’ testimony, and I may attach different weight to different parts of a witness’ testimony: Meldrum v. Astro Ventures., 2013 BCHRT 144 at para. 4; Campbell v. Vancouver Police Board (No. 4), 2019 BCHRT 275 at para. 18.

[17]           Overall, I am satisfied the witnesses testified truthfully to the best of their ability. There were several instances where Ms. Mosquera and Ms. Benkhalti gave conflicting evidence on significant issues. For the most part, I find that the conflicting evidence was the result of the misunderstanding between Ms. Mosquera and Ms. Benkhalti and not because their evidence was not credible or reliable. Further, memories surrounding certain events or conversations had understandably faded and some of the differences between the evidence of Ms. Mosquera and Ms. Benkhalti can be attributed to subjective interpretations and perceptions of the same incident.

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This person was self-represented and they wont their case. Even though the discrimination was due to a misunderstanding and it was not intended.

It’s a great reminder that discrimination is not about intent. You will not need to PROVE that they INTENDED to discriminate, just that they did.

Human Rights Code Section 2

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2  Discrimination in contravention of this Code does not require an intention to contravene this Code.

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[8]               For the reasons that follow, I find that North Horizon discriminated – albeit unintentionally – against Ms. Mosquera based on her sex and family status. I also find that North Horizon did not retaliate against her contrary to s. 43 of the Code.

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She is getting over $45,000 in compensation. Click the link above to read the order and read that case in full.

Here is the discrimination test, and the justification test.

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Reducing EA Support Hours = Discrimination

R.B. v. Keewatin-Patricia District School Board, 2013 HRTO 1436

This case is about the school district reducing a student’s Education Assistant (EA) support hours who was doing well with the EA support. The student originally had a full-time EA, and the district cut the time in half. The reduction in support hours led to an increase in “behaviour” that further led to exclusion.

The communication between the parent and the school was difficult, and they were banned from the school. The tribunal found that the district did not do enough to de-escalate the conflict.

The Human Rights Tribunal in Ontario found the school district discriminated. This case is what SOOOOOO many parents experience. It’s a long decision but a worthy one. I feel that many parents can print off this case and connect with what they are experiencing.

Human rights decisions in other provinces are not binding, BUT they are persuasive. So if the district tries to minimize the importance of the decision because it’s in Ontario, don’t believe them. They are just trying to do what they always do. Reduce, minimize, deny, deny. This case is from 2013. This is not “new” that parents advocacy cannot be used against them to justify the school district denying accommodations. Challenging communication does not release them of their legal duty to accommodate children with the disabilities to the point of undue hardship.

Here is another example, as I have outlined in Part 5 – Duty to Facilitate in the Duty to Accommodate series.

L.B. v. Toronto District School Board, 2015 HRTO 1622

[77]        

(c)      School boards have an obligation under the Education Act to provide appropriate special education placements, programs and services to their exceptional students. Parental conduct or lack of parental authority cannot be used as a justification for not meeting an exceptional student’s needs; and

(d)      I agree with the decision in R.B. v. Keewatin-Patricia District School Board, (R.B./Keewatin) 2013 HRTO 1436, an HRTO decision cited by both parties in this case, at para 265, that a parent’s “fierce advocacy” for his or her child must not and cannot prevent a school board from accommodating the child’s needs to the point of undue hardship.

Okay lets get back to the 2013 case R.B v. Keewatin-Patricia District School Board. There is a lot of history with this case and other decisions around it. But for this blog, lets focus on this decision.

The Human Rights Tribunal ordered:

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[281]      The Tribunal orders the following;

a.   Payment by the respondent in the amount of $35,000.00 as monetary compensation for the injury to the applicant’s dignity, feelings and self-respect;

b.   R.B. will return to school in the 2013/2014 school year with a full-time shared EA in the classroom, speech/language support for 30 minutes per week and an appropriate behaviour management plan that has been agreed to by S.F. in consultation with R.B.’s treating specialists.

c.   S.F. is entitled to fully participate in the IPRC review meeting for the 2013/2014 school year and the development of R.B.’s IEP for this year;

d.   The trespass notice and communication ban issued in December 2011 is lifted.

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This is what the complaint alleges in terms of the discrimination test.

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[218]     The applicant’s assertion that he was denied meaningful access to an education can be summarized as follows:

a.   Failure to provide EA support and learning strategies;

b.   Failure to provide appropriate behavioural strategies and to assess R.B.’s academic and behavioural regression in a timely way;

c.   Failure to provide appropriate educational programming during the withdrawal and exclusion.

[219]     In addition, the applicant argues he was reprised against in the following ways:

a.   The reduction of EA support in Grade 2 because of the advocacy of S.F.;

b.   R.B.’s exclusion from school on October 22, 2012;

c.   The communication ban.

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Here are some noteworthy paragraphs to highlight some areas of the decision to read more. There were some other details of the complaint that I haven’t pulled in there. It would just be too long. But this case is something that A LOT of families experience. I truly encourage you to take the time you need to read the case in full.

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[33]        On June 23, 2011, the Vice-Principal advised S.F. that there would be a half-time EA assigned to R.B.’s classroom the next school year at Open Roads Public School (“Open Roads”). Open Roads is a school that amalgamated Riverview and another school. The Vice-Principal advised S.F. that a reduction in Ministry of Education funding had significantly reduced the school’s EA support. She further advised that the school team was confident R.B. would do very well with half-time EA support because of his growth in independence and maturity and the progress he had made in Grade 1.

[98]        On October 22, 2012, R.B. was excluded from school by the school Principal for inappropriate behaviour including swearing, using profanity, spitting, yelling, cutting a child’s sweater, stomping on a child’s leg, throwing material and being non-compliant with his teacher, educational assistant, Vice-Principal and Principal. The Notice of Exclusion stated R.B.’s return to school was conditional upon the completion of a psychological assessment by the respondent’s school psychologist, Dr. Michael Stambrook, and the respondent being confident R.B.’s return would not compromise the physical and mental well-being of R.B. and his classmates.

[99]        During the exclusion, R.B. was provided with instruction from an itinerant teacher three hours per week in the public library. S.F. supplemented this instruction. S.F. developed a good rapport with the itinerant teacher and R.B. made significant academic gains under her instruction. For example, when he was excluded, R.B. was reading at level 2. By February 2013, he was reading at level 7.

[113]     The respondent alleges S.F. made unfounded allegations that R.B. was bullied in Grade 2...

[118]     Based on the respondent’s own evidence, I cannot find that S.F. made unfounded allegations of bullying in R.B.’s Grade 2 school year.

[119]     The respondent asserts that S.F. falsely accused the school of segregating R.B. in Grade 2.

[124]     Based on this evidence, I cannot conclude that S.F. made unfounded allegations of segregation in R.B.’s Grade 2 school year.

[130]     The respondent argues S.F. interfered with the accommodation process when she did not advise the Grade 2 teacher that R.B. was no longer taking medication in response to her inquiries in the fall of 2011, at a time when his behaviour was escalating. The evidence from Dr. Warkentin was R.B. was off medication by the end of October 2011.

[137]     For these reasons I cannot find that S.F.’s failure to disclose the fact that R.B. was no longer taking medication in the fall of 2011 interfered with the school’s ability to accommodate R.B.

[143]     I find that S.F.’s spouse made the statement to the Principal “if you want threatening, I’ll show you fucking threatening”. This statement was a verbal threat. There is no evidence before me that S.F.’s spouse physically threatened the Principal. Although the Principal testified he lunged towards her, the Vice-Principal testified he stepped towards her. Neither witness testified that he made any physical threat. The Principal left the room and the police were called.

[144]     The fact that S.F.’s spouse made this comment cannot be attributed as misconduct on S.F.’s part. Further, there is no connection between the comment and the accommodation process for R.B

[154]     Based on the above evidence, I cannot conclude that S.F.’s conduct prevented the school from accommodating R.B. in Grade 2. Even accepting that her conduct made her relationship with the school staff extremely difficult, there is no evidence that this difficult relationship prevented the school from meeting R.B.’s educational needs in Grade 2. Put simply, there is no evidence to establish a connection between S.F.’s conduct and the accommodation process for R.B.

[248]     During the period of the exclusion, R.B. was provided with instruction from an itinerant teacher for three hours per week in the public library.

Conclusion:

[255]     The applicant has established that he was denied a meaningful education when his EA support was cut in half in Grade 2, when he did not have an appropriate behaviour management plan from Grade 2 onwards, when he was excluded from school in October 2012 without appropriate educational instruction, and when the communication ban denied S.F. the opportunity to meet with R.B.’s teachers and EAs in order to ensure that his needs were met.

[256]     When a student is excluded from school, he is denied an education. No one would suggest that providing a student three hours of instruction per week in a public library, regardless of the effectiveness of that instruction, is an appropriate education. Dr. Stambrook agreed.

ORDER

[281]      The Tribunal orders the following;

a.   Payment by the respondent in the amount of $35,000.00 as monetary compensation for the injury to the applicant’s dignity, feelings and self-respect;

b.   R.B. will return to school in the 2013/2014 school year with a full-time shared EA in the classroom, speech/language support for 30 minutes per week and an appropriate behaviour management plan that has been agreed to by S.F. in consultation with R.B.’s treating specialists.

c.   S.F. is entitled to fully participate in the IPRC review meeting for the 2013/2014 school year and the development of R.B.’s IEP for this year;

d.   The trespass notice and communication ban issued in December 2011 is lifted.

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Another case that was accepted by the BC Human Rights Tribunal when a student was denied an EA for one of their classes, was mentioned in this anonymization decision:

This decision is an anonymization decision, but in the first paragraph it summarizes what the crux of the complaint is about.

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

[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.

REDUCING EA HOURS THAT LED TO HARM AND A DENIAL OF ACCESSING EDUCATION CAN BE A DISCRIMINATION CLAIM

Posted on

Improper Conduct – Hiding Disclosure

There is a new human rights decision out today, and it is not education-related. BUT, there is a part of this decision that I do want to highlight because what this person experiences is something parents need to be aware of. I struggled with disclosure issues. What a fight! Even if they tell you they don’t have documents, make an application anyway! Surprise surprise! It does exist!

Neske v. Sobeys Inc. (No.2), 2026 BCHRT 37

This person was awarded an extra $15,000 for costs due to the respondents withholding evidence weeks before the hearing.

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[156]      Ms. Neske alleges that Sobeys engaged in improper conduct by failing to disclose material documents until the weeks leading up to the hearing. She submits that during the dismissal application process, Sobeys selectively withheld key documents pertaining to its discussions about restructuring management in the pharmacy department, and that as a result, her complaint could have been unjustly dismissed. She argues that in the circumstances, Sobeys conduct was reprehensible and deserving of a significant award of costs. She seeks an award in the amount of her legal fees up to the date of the application to dismiss, with the actual amount to be agreed on by the parties. Alternatively, she seeks an order of $15,000.

[157]      Sobeys says that costs are not warranted in this case. It submits that the threshold for a finding of improper conduct is high and imports a notion of intentional wrongdoing or culpable action which a reasonable person would know is wrong, and which has a significant and detrimental impact on the hearing. It further submits that there was nothing improper about its disclosure in this case and there has not been any prejudice to Ms. Neske. It says that in its decision to deny Sobeys’ dismissal application, the Tribunal highlighted a lack of information about the elimination of the position, and as a result, Sobeys searched for and identified additional documentation which was disclosed in advance of the hearing.

[158]      I am satisfied that an award of costs for improper conduct is appropriate in the present case.

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I had to file so many applications for documents, and then I was getting ridiculous evidence that was just GOLD. Also, I noticed a few months before the hearing, suddenly other documents were being given to me that I was never even aware of. They clearly didn’t want an improper cost awarded for them for only giving them over weeks before the hearing. But if they didn’t give them to me and the hearing occured and it was discovered during questioning that these documents existed, then they’d be in big trouble.

So, what do we do about this?

I have an idea.

This is where we can all work together.

I want to create a list of possible documents parents should request in Freedom of Information Requests or during the document disclosure phase.

Every time I learn of a new possible document, I’ll add it to the list.

I’ll start

  • Counselling intake notes or intake form
  • Union meeting notes. (When teachers are in trouble, they have a meeting with the principal and often a union representative)
  • School-Based Team Meeting Notes
  • Student File (The office one, counselling file, LSS file)
  • Work safe incident report form
  • IEP meeting notes
  • Employee file (paper and digital)
  • Complaint file at the Teacher’s Regulation Branch
    .

Anything else?

Teachers….. what other kind of documents do you all fill out?

I will start a new page with this list when I get some more info for people to refer back to. Let’s go team! Many hands make light work.

EDIT: Suggestions from others

Threat/violence incident reports

Attendance records with reasons for absence listed (many times being sent home is marked as “parent excused”)

All communication between outside agencies and specialists

Raw scores from any formal or informal assessments, including reading screeners

Raw scores from all standardized assessments

Principal incident logs (often maintained outside the student file)

EA logs or daily support notes

Behaviour tracking forms or data collection sheets

Violence Threat Risk Assessment (VTRA) reports

Union grievances