Tag: #Barriers

Posted on

Grades – Not an Indication of Effective Accommodations, but Harm? Yes!

Tribunals have ruled on cases and have declared that grades are not an indication of whether accommodations are effective or not.

However, they have declared that poor grades could be an adverse effect.

**********

Child was below reading level and grade level.

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

[137]      Y expressed concern that the District would again advance X to the next grade when his reading was still not at grade level. I appreciate Y’s concerns about X not being at the same level as many of his peers. Yet as noted in Moore at paras. 35-36,

[…] As with many public services, educational policies often contemplate that students will achieve certain results.  But the fact that a particular student has not achieved a given result does not end the inquiry.  In some cases, the government may well have done what was necessary to give the student access to the service, yet the hoped-for results did not follow. Moreover, policy documents tend to be aspirational in nature, and may not reflect realistic objectives.  A margin of deference is, as a result, owed to governments and administrators in implementing these broad, aspirational policies. 

But if the evidence demonstrates that the government failed to deliver the mandate and objectives of public education such that a given student was denied meaningful access to the service based on a protected ground, this will justify a finding of prima facie discrimination.

[138]      Ultimately, X’s report card for the end of grade 3 showed that he had “made satisfactory progress in all areas of the curriculum”. It set out areas for continued work over the summer. On the whole, the District has satisfied me on a balance of probabilities that it discharged its duty to accommodate X by providing him with a network of support people; learning support and behavioural support to ensure he continued to develop skills; learning tools and strategies; behavioural tools and strategies; which all culminated in providing meaningful access to educational services. As Y raised concerns and as the District identified X’s needs changing, the District adapted the accommodations in response. While X may have been behind some or even many of his peers academically in some areas, he did make ongoing progress in building skills and tools. While he may not have met or exceeded the academic targets Y expected or hoped, the District reasonably accommodated X to provide him with meaningful access to the education services it provides.

[141]      I acknowledge that X continued to struggle with not finding school a happy place to be and that a consequence of this has been persistent challenges for Y in getting X to attend. I acknowledge that X continues to not read at grade level. However, the District has not withdrawn, but rather has expanded, diversified, layered and adapted the accommodations it has had in place for X. In some aspects, these have “worked”, as they have allowed X to progress toward learning and behavioural goals, as Y herself acknowledged in her evidence. In others they have not, as X remains reluctant on some days to attend school at all. Y acknowledged at several points in her evidence that the District “threw everything at” the situation, giving layers of accommodations and adapting them to X’s needs.

[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.

**********

Next case

A decline in grades doesn’t automatically trigger the duty to inquire – although it is an adverse impact.

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

[75]           The “duty to inquire” is a human rights obligation which arises where the student is facing some adverse impact in their education – ie. discipline, poor grades, lack of meaningful access – and the school is aware, or ought reasonably to be aware, that a student’s disability may be a factor in that impact: eg. Martin v. Carter Chevrolet Oldsmobile, 2001 BCHRT 37 at para. 29; Aydogmus v. York University, 2021 HRTO 176 at para. 59. The purpose of this inquiry is to identify and remove disability-related barriers to a successful education, likely through the process of accommodation. 

[77]           In light of my findings above, I am not persuaded that the District’s duty to inquire and/or accommodate were triggered when it placed the Student in Language 10. Most critically, I have not accepted that Language 10 was an inappropriate placement for the Student. In addition, the Student had performed well in school and was – admirably – preparing to challenge herself academically by applying for enriched courses. There was no prior history of academic accommodations or modifications. In this situation, the District did not have reason to believe that placing the Student in Language 10 would adversely impact her. Nor do I find that the inquiry should have been triggered by the drop in the Student’s grades in the second term. As Teacher X explained, this is when the material got harder. The Student was still passing. Even the Parent did not conclude, based on these grades alone, that the Language class was the cause of the Student’s poor mental health. Rather, the evidence supports that the class was challenging but within the realm of what the Student could reasonably achieve.

********

It is not about grades; it is about providing access to education.

Is the ramp being provided?

Which means, are barriers being removed?

Are they being accommodated?

Key takeaways

  • Grades are not evidence by themselves of accommodations not being provided
  • They could be an “adverse effect” so worthy of putting it in a human rights complaint under the adverse effect section.
  • It’s not about the grades that your child is achieving; it is about whether their barriers are removed and their disability-related needs are being accommodated. (The school will need to provide evidence that they are doing so or at least attempting to do so by adapting, reviewing and modifying their attempts.)

We focus on the BARRIERS. As a parent, you are allowed and expected to communicate the harm and mental health needs of your child.

Bottom line: If the school uses grades as a reason to say “everything is fine” while you know full well your child is experiencing harm, please use these cases in your advocacy.

Posted on

Should I tell the school I filed a human rights complaint?

Good question.

There is strategy in this.

This is a worthy question to sit with and think about.

If you aren’t filing to fast-track your complaint, the current wait list is 2.5 years long. Just to find out if your complaint was accepted. (If it is not accepted, you won’t have to wait so long. The ones that are accepted sit in the queue longer until they have the case management capacity for them to proceed.)

The current wait time is long!

When you file a complaint, the school will be unaware unless you tell them. They will only find out if/when your complaint gets accepted.

So, the ball is in your court. What do you want to do?

Here are my reasons for you to consider telling them you filed a complaint. If you talk to other people, which I encourage you to do. They may have different lived experiences. But here are my reasons.

  1. Damage Period. Schools will always try to reduce their liability. In this case, this is good for us. They will try to reduce the harm your child is experiencing so that they won’t have to pay as much or reduce their risk in you being successful at a hearing. Supports that they previously said couldn’t happen will suddenly start to happen. Magic. (They will try to make it seem like it has nothing to do with your complaint.) So telling them they have a human rights complaint coming their way may get your kid more support. If they don’t think you have a case at all, they won’t be concerned. BUT, even still, it puts you in a different category. See reason #2. AND – If nothing else, you will get district eyes, and they will be investigating what is going on.
    .
  2. Parent advocacy. Parents threaten things all the time. All. The. Time. It’s a regular Tuesday for them when a frustrated parent threatens something. I have seen some of the emails. Folks are creative! A much smaller percentage of parents actually file complaints. So if they know you have crossed that line, your threat level just increased. Schools don’t care if you threaten a human rights complaint; they care if you do it. They analyze you by your behaviour. Do you follow through on what you say you will? How far are you willing to go to advocate for your kid? They focus on your behaviour, not your words. If the school thinks you are all bark and no bite, file a complaint. Keep in mind that certain behaviour can kick you out of the advocacy game. 5 Rules on How to be Untouchable. And yet, the school has the duty to provide your child an education regardless of what your advocacy is like.
    .
  3. Retaliation protection. There is retaliation protection built into the legislation of the Human Rights Code. They are not allowed to retaliate against you or your child, which public schools are well aware of that, and if they do, there is an avenue to address that. You can have extra costs given to your child just for the retaliation. People are often scared that filing a complaint will put their child at risk, however, in my experience, it is the opposite. My children got supports they never would have received otherwise, and I felt they were quite protected. The school district knew I could amend my complaint at any time and start adding to it. They knew if I was frustrated, I was more likely to fight and more likely they would then have to justify their behaviour and decisions to the tribunal. When they know external eyes could be looking at this, it can be very helpful.
    .
  4. Resolution time. Because the school is aware, you may wish to see if they want to resolve this sooner rather than later. They may be willing to do that. Some people have had their lawyers send a demand letter or you can even approach them on your own, looking for a solution. They may be interested in talking, as it will be the cheaper route. Or they may not want to take the early resolution route, knowing how long the system takes to process these things. Based on the context of everything, they are strategizing too. They often like to use delay in their favour, but sometimes they realize it’s in their best interest to resolve this now, then feel like they have this hanging over their heads.
    .
  5. Keep it hanging over their heads. It may take a really long time just to find out a complaint has been accepted, and if they are aware of it, they will be on their best behaviour. So use it. Tell them about the complaint, and just let it sit there. They will sit up straighter and just keep it hanging over their heads. Sadly, this is what we need to do just to get our kids their rights, but desperate times call for desperate measures, and that may mean filing external complaints and learning about avenues you never expected to need to have skills in. This is another example of using the system to get our kids an education. It sounds horrible that the wait time is long. But. Then again. They love to use delay on us and hope to exhaust us. We can flip it and use delay to keep them upholding our kids’ rights.
    .

Here are reasons you may not want to tell the school.

  1. Retaliation. Even if there is retaliation form to fill out to hold them accountable for their behaviour, it will still be sitting in the long queue, and it won’t help you in the present. Some people do experience really unusual retaliation because the person they are dealing with is unusually spiteful. (It will come back to bite this person later.) You just don’t know how the school is going to react. They might start to do little things that build over time, and your child is now refusing to go to school, and they have managed to weed you out. If they feel like they can’t control you or you are unmanageable, they have a history of knowing how to make people (or your child) so uncomfortable they “choose” to leave on their own. No one knows for sure how the school is going to respond. I can’t promise you anything or guarantee you any kind of response. You know the players on the field. I have never met these people at all. Districts differ. Some district admin have integrity and more of a moral compass than others.
    .
  2. Emotional readiness. Maybe you just aren’t emotionally ready to tell the school. There is no rush. Once you submit it, you can wait until you are ready and you have your plan thought out.
    .

    ********
    If you do decide to tell them, I suggest you email the Superintendent and the Secretary-Treasurer together and don’t cc: anyone in your child’s school.

    Let the school staff pretend that they don’t know what is going on, and build the relationship with the school staff as much as you can, until you think it is beneficial for it to be out in the open. I would suggest you let it play out a bit after you inform the senior administration and then make the call if and when you ever want to be open about it with school staff. That’s just my two cents.
    **************

Sometimes filing a human rights complaint can be the move that gets you off the hamster wheel. The human rights tribunal is also not the only complaint avenue. There may be other avenues that are more suitable for your issue.

I never in my wildest dreams thought I would be filing complaints against the school when my kids started kindergarten. Never. Being in an adversarial position is a position no parent wants to be in. We aren’t entering these external complaint systems with glee. It’s heartbreaking when you think of it. But these systems are tools. This is Hunger Games. We are thrown in the pit by the system. We didn’t ask for this.

We are reacting to reality.

I have zero regrets. These systems kept my kids afloat in an education system that was never designed for them. It scares me to think what might have happened to them, and to me, if I never went this route.

Here is an overview of your external complaint options.

Posted on

Threat Level – BUILD THE FILE

Do not think for a moment that school administration isn’t assessing your threat level.

They are.

Whether you want them to be or not. They won’t ask your permission.

It most likely will NOT be the teacher, but the SENIOR administration absolutely is, and so is the Principal.

They aren’t just assessing you; they are assessing the cost of the situation as a whole. The details and context of your situation. For example: the cost of an extra EA v. lawyer fees. The details of your allegations with the possible outcome of the tribunal, with wait time, with providing current accommodations etc,. The lawyers will be giving them their advice on how concerned they need to be.

I hate that lawyers cost so much, but in this circumstance it can actually work for us. EA’s are way cheaper than lawyers. I used to wonder how on earth the school district lawyers do what they do and sleep at night. They sleep in silk sheets and sleep absolutely fine. Bless them for being so expensive. The insurance company will not be impressed with the bill. School administrators are also very busy and their time is very valuable. If you want to rack up the bill in money and time on an issue, you can absolutely do so. Be expensive in multiple ways.

School is categorized as a service. If you were to walk into a store, in order to obtain something from that store (a service), you need money. It is the currency of that service. You see something you like; you look at the price tag. Chicken is $25.00. Gum is $1.75.

Your threat level is your currency in your child’s education. (How sad is that.)

You don’t need to threaten anyone.

In fact if you do…. your strength just crashed.

They will view you as weak. They know they will be able to control you, poke you and watch you create your own documentation to weaken your cause. Human rights complaints get dismissed due to rudeness, insulting language, swearing etc, etc, etc. They would LOVE for you to destroy your own case by losing your shit. They cross their fingers for it.

Your strength, your muscles, your flex is going to be documentation and the language you use in your emails.

Why?

Because those will allow you to be successful if and when you file external complaints. That is the threat. They know you are “building your file”. That is what lawyers do. They also build the file in case it ever goes for a Judicial Review. If an employer wants to fire someone they don’t like, they start padding the file. HR departments do this all the time. They pad the file with little things, whether it’s true or not. It all builds over time. Everything builds. Lawyers argue over the smallest things and never let anything go because they know that it’s the little things over time that could be what tips the scales and you win your case.

BUILD YOUR FILE.

Document. Everything.

You may say to me… Kim…I can’t.

I don’t have the capacity.

I don’t have the resources.

I am barely hanging on.

How do I get the school to accommodate my child?

I say, yes, it is unfair. Totally.

The unfairness doesn’t change reality or my response.

I am so sorry.

But here it is.

You may need to file complaints to get yourself off the hamster wheel. So, BUILD your file now.

You may not have the capacity now. You may not have the resources now. You may not be mad enough now. But a few years from now… you just may be. You may have the capacity that you never expected to have. You can’t predict the future. And you will be thanking your younger self for creating this document trail that will now elevate your human rights complaint when you are ready to file. It will give you options. It will give you choice. That is power.

People will naturally think that they are tough and that they are sticking up for their kid when they make a lot of noise, when they get angry, when they threaten the school. I friggen get it. I was so mad, I told the district I was going to gut them like a fish. So, I totally get it. But if you REALLY want to scare the shit out of them and increase your threat level, BUILD YOUR FILE – gather your evidence, document in emails.

Parents threaten the school all the time. It’s just background noise to them. They don’t care. Truly. You think you are having an impact on them. You aren’t. The only arena they are concerned about is the legal one and public relations. If they know you don’t have the documentation (evidence) they are not concerned one bit. Not one bit. You think they are worried because of what you wrote, but they aren’t. They know the one thing that triggers concern in them is documentation, and if you don’t have it, you are nothing to them. They don’t need to do anything. They will flick you off like an annoying bug.

So please,

Document.

Be strategic.

Hearings are years from now, and the tribunal will rely on it.

Elshazly v. Vancouver Police Board 2026 BCHRT 195

This hearing was 6 years after the event.

[11]          The witnesses testified about events that happened in a short period of time, nearly six years earlier. I consider that over this length of time, memories have understandably faded, shifted, or hardened around a particular version of events: Clarke v. City of Vancouver and another, 2024 BCHRT 298 at para. 24. In my view, no party’s account of the incident is completely reliable. ………

[12]         On most issues, I have found that the most reliable evidence is contained in documents created at the time of the events, including the audiovisual recordings put into evidence. I have used these documents as a “reliable yardstick against which to compare and assess the reliability of the witness’ testimony”: Boschoff v. Inspired Retreats, 2014 BCHRT 6 at para. 8; Clarke at para. 24.

*********

Your documentation = your muscle.

** AND, the building of your file now may just be what creates the change so that you will never have to file a complaint. Because the school will know. They will see your muscle flex.

Build your file.

It will benefit you in ways you will never even be aware of. The people who are not building their files will absolutely be walked over.

You are teaching the school how to see you.

The best gift you can give your kid, whether you are comfortable doing this or not, is to build their file.

Don’t wait until you feel comfortable doing this, just do it. You wait until you are ready, you’ll be waiting until a crisis hits. Be uncomfortable and do it anyways. The alternative is worse. Trust me. Way worse.

It may be the very thing that keeps you out of the external complaint system.

We can build an army. A well-informed, knowledgeable, empowered army of passionate parents. All building our files.

Everything the system uses against us, we can reverse and fling it back at them.

They use delay.

We can drag them through YEARS of litigation.

You want to throw delay at me?

Oh honey, I can file complaints, and this isn’t going to be over for you anytime soon.

They will want to limit their damage period.

If I were to ever wish anything for anyone starting out in education with a disabled child, it would be three things.

  1. Get connected to your community. You aren’t alone.
  2. Become knowledgeable of your rights and your child’s rights. Learn about the duty to accommodate.
  3. BUILD YOUR FILE.


THE LANGUAGE to build your file – IS THE DUTY TO ACCOMMODATE.

Blogs on this topic
Documenting for Advocacy ** Key blog
School Protection Program – School Districts – Lawyers: The Three Musketeers
Riddle: Who has the final decision making power?
Liability in Education
This is an Emergency! Serious School Incidents

Posted on

Documenting for Advocacy

Documentation is KEY to your success as an advocate for your child. Absolutely KEY. Without documentation, any success you experience will be due to pure luck.

I have blogs on this topic:

Documentation
Improper Conduct – Hiding Disclosure – What documents to ask for
Why is Documentation so Important?
Evidence of Harm. Effective advocacy in Education
How to Gather Evidence
BCHRT – You need evidence. Hearsay from your child will not be enough.
Getting Documents

But before you get to the blogs. I want to front-load you with this list first.

  1. Email is the best way to record all important communications. Store and organize your emails. Keep ALL of them. You never know what will be useful. Some people like having a separate email just for communicating with the school. You need to not just document what is not working, but also what is working.
  2. After a meeting or a phone call, summarize what was said and email them to confirm that you have captured what was said. Give them an opportunity to clarify anything if you misunderstood. Note the next steps or any actionable items that were agreed upon.
  3. All external complaints require you to try and resolve your issues at the lowest level possible. You will need to send in your emails as evidence that you have made these attempts and that they were unresolved. These emails are going to be what will assist you with getting your complaint accepted by these organizations.
  4. Without evidence, your human rights complaint will go absolutely nowhere. When people have evidence or there is a lack of evidence of the school doing anything (ignoring your emails, not attempting to provide any accommodations, etc) that will all be needed.
  5. All external complaint systems need evidence for their decision-making.
  6. Your emails will trigger certain human rights obligations based on what you say in your email. You will need that information documented.
  7. If it has not been documented, it is like it never happened. Hearings are years after you filed a complaint. Witness memories fade. But when it has been written down in an email, it is like a diamond. Forever.
  8. Emails are not private. Multiple people will be reading them and examining them. Write your emails like they will be read out a tribunal.

Now you are ready for the deeper dive into the blogs.

Note: I just want to acknowledge how emotional it is to realize that this feels like another job. That you are entering into another profession. It sucks. I want to hug you. I have been there and lived this. It is uncomfortable to feel like you are creating “evidence”. The parents/caregivers that resist this reality and don’t feel it is necessary to create documentation, to send thoughtful advocacy emails, will spend their years spinning, getting absolutely nowhere. The system will walk all over you because they can. This sucks. I hear that. It doesn’t matter. While you are grappling with this reality, please document. You can feel uncomfortable and document at the same time. Your child needs you to do this. You are either going to feel uncomfortable watching the harm continuing or you are going to be uncomfortable creating a document trail. Take your pick. What uncomfortableness can you live with? Who are you prioritizing? The adults? Or your child? Advocating for your child’s human rights is not being aggressive. It can be done in a very non-aggressive and respectful way. Document. Document. Document.

Posted on

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.

Posted on

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.

********

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.

********

 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.

********

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,

Posted on

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

Posted on

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.

*******

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


Posted on

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.

*******

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

******

More blogs on the school system:

Liability in Education
School Emergencies
Understanding Systemic Change

Posted on

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.)

*********

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.)

********

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.)

********

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.

***************

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.
    .
  • 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.
    .
  • You want to trigger meaningful inquiry by expressing the harm you are witnessing and linking it to school.
    .

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.