Tag: #Barriers

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“this family needed help beyond what I’m trained for” (para 58)

This was a statement by made by the Acting VP in a human rights decision.

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

[58]           Y asked the Acting VP in cross examination how the break from the classroom would have been restorative for X had it happened at home. The Acting VP replied that “Mom knows best”, noting that X was “totally dysregulated”, placed in a challenging classroom, and needed space. The Acting VP said that X spoke a lot about his Dad during this time, and how he missed him. He observed, “this family needed help beyond what I’m trained for.”

This has me asking…

What are educational staff trained for?

AND

When professionals, such as occupational therapists (OT), psychologists, or speech-language pathologists, make recommendations, why are some parents having issues with getting these recommendations placed in their child’s Individual Education Plan (IEP)?

The kinds of education that teachers have for disabilities vary greatly and in my opinion, extremely lacking. Huge gaps. They hold similar beliefs and biases as the general public. I have learned the hard way that some teachers have zero training in this area. There are educational staff who have, on their own, focused their professional development in this area and are extremely valuable. There is a huge sliding scale of knowledge and skill between educators and administrators.

We already know that the human rights code supersedes classroom teacher autonomy.

So above all, they need to provide an equitable education. If they are ignoring or refusing to implement professional recommendations, aren’t they taking a HUGE risk?

If by ignoring professional recommendations, the child isn’t able to access their education equitably and there is harm that occurs, I’d be filing a human rights complaint.

It has been quite a SHOCKING discovery to me, just how little education staff know about disabilities. Especially invisible ones. Some people are very knowledgeable. However, the number of people working in education who have little to zero knowledge is stunning. And scary. And makes complete sense how so many children experience real trauma at school, and so many are being homeschooled unable to return to school.

Here is a report compiled by Jenn Scharf titled Stories of Exclusion 2021. These are a collection of 60 stories told by parents.

I don’t think our education system is fair.

To anyone.

Everyone is being set up to fail. My heart goes out to the educational staff expected to create magic and miracles with such a scarce system. But, if you are ignoring professional recommendations and putting your own personal perspective in its place when you lack such training and expertise, I have no sympathy for you.

I do have sympathy for the child who may be harmed by your willful ignorance. I have sympathy for the family who will now be put in the position of continued advocacy, yet again, and may be considering filing a human rights complaint so their child can get an education.

Is the education system struggling with the concept of inclusion, or is it struggling because not enough people have the knowledge and skills to make it work?

And then add the impacts of scarcity in education

And then add ableism.

AAAAAHHHH ok…. now this all makes sense.

This is why we are all struggling.

This is systemic. Multi-dimensional systemic issues.

And if someone who is reading this thinks…. well they are now starting to have a class on the topic of disabilities in universities, isn’t that something?

It clearly isn’t enough.

Clearly.

Edit: A parent on my Facebook page commented after reading this blog “Not to mention a lot of the disability training they do get is outdated and ableist….” – Excellent point!!

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Daycare Termination and Disability

RE: New Human Rights Case linked to daycare and termination of daycare services due to a perceived disability.

Mother obo Child v. Daycare, 2024 BCHRT 251

Since we all have most likely struggled with daycare issues at some point, I am posting this case.

It is a very interesting case. A situation that parents find themselves trapped in way too often.

The child hasn’t been diagnosed yet.

They suspect he might have ADHD/Autism. Their daycare terminated services.

The mother is self-representing.

This is a dismissal application.

She won.

Her case is continuing to a hearing/mediation meeting.

[1] In September 2020, at the age of two, the Child began attending the Daycare. On around October 22, 2020, the Daycare informed the Child’s parents that it would no longer provide childcare services to the Child. Services ended one month later, around November 20, 2020. The Mother brings this complaint on behalf of the Child. The complaint alleges the Daycare discriminated against the Child when it terminated its services because it perceived him to have a mental disability and because he is a Jehovah Witness, contrary to s. 8 of the Human Rights Code [Code] which prohibits discrimination in services.

[2] The Daycare denies discriminating. It states it terminated services to the Child in accordance with its “Childcare Discharge Policy” because the Daycare was unable to provide the Child with the level of care he required, and not for any reasons related to a real or perceived mental disability or to his religion. The Daycare also says that even if the Child’s perceived mental disability was a factor in the termination, it was justified in ending the childcare service it provided to the Child because the Child engaged in harmful and aggressive behaviour that put the safety of other children at risk. It asks the Tribunal for an order dismissing the complaint against it under s. 27(1)(c).

[3] The issues I must decide are:

a. whether there is no reasonable prospect the Child will succeed in proving the Daycare perceived him to have a disability and, if so, whether the perceived disability factored into the termination of services;

b. if so whether the Daycare is reasonably certain to prove it was justified in its decision to terminate services; and

c. whether there is no reasonable prospect the Child will succeed in proving his religion factored into the termination of services.

[4] For the following reasons, I deny the application. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.

We also have another case where the teenager was bullied due to sexual orientation and he won his case, even though he is heterosexual. It didn’t matter. He was treated and bullied as if he belonged to the protected group.
Jubran v. Board of Trustees, 2002 BCHRT 10 (CanLII)
Here is a summary of key highlights.

These two cases are examples of a perceived disability/protected ground. There is room here for these to be used in an argument in an educational setting. Whether the tribunal will accept it or not is another question.



Here is the full decision with all of the details.

https://www.bchrt.bc.ca/…/decisions/recent/2024-bchrt-251/

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Let’s Talk about Hindsight!

Hindsight and Meaningful Inquiry

Want to get the school moving on providing your child supports?

Remove their hindsight defence and trigger the duty to accommodate.

Why does the school want a defence at all? To avoid a finding of discrimination if a parent was to ever bring their case to a hearing at the BC Human Rights Tribunal.

If they know we could be successful at a human rights tribunal hearing, they will be much more motivated to provide your child the supports they need NOW. This is because they want to reduce the damage period. They are always focused on reducing the scope of your complaint and minimizing the harm.

Removing their hindsight defence and triggering meaningful inquiry is key for our children.

This decision explains what the hindsight defence is.


Student by Parent v. School District BCHRT 237


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

They may claim, “We didn’t know.” If they didn’t know your child needed more support or ought to have known they needed more support, they will escape responsibility. When they are aware, they must investigate.

So you know what that means.

Parent(s)/guardians need to be VERY communicative with the school and tell them that:

  1. Tell them your child is struggling.
  2. Tell them your child’s struggle is connected to school.
  3. Explain how your child is struggling.
    • Are they crying at home?
    • Are they refusing to attend?
    • Are they melting down after school?
    • Do you have examples of homework or school work to show them as evidence?
  4. Explain how their struggle is connected to their disability.

So, we need to start this off in an email. We need to document it.

Whether they respond to the emails we send is another blog. But we need to build evidence that they were VERY aware, in case they think they can claim they didn’t know. It’s amazing how the defence of “oh we didn’t know, oh I was confused, oh I think we had a misunderstanding, I didn’t realize that…”. We need to be so crystal clear that we don’t give them any wiggle room to say “we didn’t know”.

Human Rights Decisions – Education

There are two human rights decisions that, when put together, are powerful. Both parents self-represented themselves at the BC Human Rights Tribunal.

They must investigate when we tell them our child is struggling. – Meaningful inquiry.

Student by Parent v. School District 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.

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

They aren’t allowed to give up when things aren’t working well. They must review and adapt their approaches.

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

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

Meaningful Inquiry – Duty to Accommodate

By communicating that our child is struggling, we will trigger MEANINGFUL INQUIRY. You are triggering the duty to accommodate.

It is very

very

very

very important that we are communicating with them. This is how we block a hindsight defence.

Schools are increasingly not wanting to put communication in emails, and instead, they want phone calls or meetings. They may say that it is easier to resolve issues through communicating in person/phone. That may be true. But it is not lost on us that it also doesn’t create any documentation.

But that doesn’t stop us from sending emails to create a paper trail and document what is happening. You can create a summary of the minute and put in the email, “Please let me know if I have misunderstood anything or if you need to clarify anything I have written.”

So send those emails. cc: the main people responsible. Principals and LSS teachers for IEP implementation. Each person you cc: in an email could be a potential witness in a hearing.

Just keep sending those emails and create that paper trail. Communicating is part of the collaboration process in the duty to accommodate. So, you are just fulfilling your responsibility in the process.

Any diagnosis you have received from a doctor, even if it didn’t come from a psychoeducational assessment, I suggest you have the doctor write a letter and ask the school to put it in your child’s file. Also, you may want to ask them how this is going to be communicated out to the staff, so they are aware. Anything you can do to provide documentation on a diagnosis locks them into the duty to accommodate.

Blogs on Creating a Document Trail


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

Blogs on How to Communicate with the School

Communication
What is the Ask? Email writing for School Advocacy
5 Rules on how to be Untouchable
The Use of Delay
Defamation. You Said What?
Liability in Education
Email Q & A
How to Gather Evidence
Strong Advocacy = Written Authority

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Barriers! Barriers! Barriers!

When we discuss equity, accessibility the human rights code and accessibility legislation it is ALLLL about removing barriers.

Therefore when we advocate for our kids, any advocacy grounded in rights-based advocacy is going to focus on barriers.

1. Human Rights Code

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

Not all negative experiences are discrimination.

[110] ….I accept that these incidents which X relayed to Y were upsetting to X. I appreciate that the interactions may have fed into X’s general feelings of unease at school, but the fact alone that these events may have happened is not enough, in itself, to establish that X’s disability factored into them. Not all negative experiences are discrimination. Even accepting that these incidents occurred, I did not hear evidence that could establish, on a balance of probabilities, that X’s disability was a factor in the conduct of the adults involved in these interactions.

The test, is whether barriers have been reasonably removed.

[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.

2. Also, accessibility legislation THE ACCESSIBLE BC ACT

Barriers

2   (1)For the purposes of this Act, a barrier is anything that hinders the full and equal participation in society of a person with an impairment.

(2)For certainty and without limiting subsection (1), barriers can be

(a)caused by environments, attitudes, practices, policies, information, communications or technologies, and

(b)affected by intersecting forms of discrimination.

So…… what are barriers?



As outlined from the Onatario’s Unviersity Accessibility Campus (2017)  Here are 5 Barriers

Attitudinal Barriers – are behaviours, perceptions and assumptions that discriminate against persons with disabilities. These barriers often emerge from a lack of understanding, which can lead people to ignore, to judge, or have misconceptions about a person with a disability.

Organizational or systemic barriers are policies, procedures or practices that unfairly discriminate and can prevent individuals from participating fully in a situation. Organizational or systemic barriers are often put into place unintentionally.

Architectural or physical barriers are elements of buildings or outdoor spaces that create barriers to persons with disabilities. These barriers relate to elements such as the design of a building’s stairs or doorways, the layout of rooms, or the width of halls and sidewalks.

Information or communications barriers occur when sensory disabilities, such as hearing, seeing or learning disabilities, have not been considered. These barriers relate to both the sending and receiving of information.

Technological barriers occur when a device or technological platform is not accessible to its intended audience and cannot be used with an assistive device. Technology can enhance the user experience, but it can also create unintentional barriers for some users. Technological barriers are often related to information and communications barriers.

Communicating with the school

When communicating your communiation with the school it is the responsbility of the school to investigate what the barriers are. And to figure out how to remove them. Then they need to monitor, and adapt until the barriers are removed.

You need to express to the school your child is struggling and how they are struggling. Communiating what you are seeing and dealing with and what your concerns are, is key to trigger this inquiry.

Their investigation responsibilities is connected to “Meaningful Inquiry”.
Student (by Parent) v. School District, 2023 BCHRT 237
Summary of the Case with key highlights

[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.

Their responsibility to monitor and adapt
Summary of Case with key highlights

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

Accommodations are ramps, open doorways, open windows, bridges and all other symbolic connections you can think of that all mean the same thing. It’s a way to level the playing field and provide a child with the same opportunity as anyone else. To remove a barrier. To give someone a chance. To not create more obstacles in their path than anyone else.

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NEW – OIPC Decision – Coquitlam School District

A New OIPC Decision was posted on April 15th involving the Coquitlam School District. Order F24-30

This is quite a unique decision involving a school district, compared with other decisions I have read. Particularly because I have never seen this section of the FIPPA used before. Section 14 – Solicitor-client privilege.

In some decisions involving all sorts of organizations, the respondents will suddenly be willing to disclose some of the previously withheld documents, only when the inquiry with the adjudicator starts. This is also the case here.

Do organizations just do that kind of stuff in hopes the applicant doesn’t have the stamina to last through these processes?

The summary by the OIPC is clear.

“An applicant made an access request and a privacy complaint to the Board of Education of School District No. 43 (School District) regarding a single email communication between the School District and an independent school. Initially, the School District withheld the email under s. 14 (solicitor-client privilege) of the Freedom of Information and Protection of Privacy Act (FIPPA) and disagreed with the applicant’s privacy complaint. However, during the inquiry, the School District determined that s. 14 did not apply and it disclosed the email to the applicant. It also acknowledged that it disclosed the applicant’s personal information without authority under FIPPA. The adjudicator determined that the issues in dispute were moot and there were no factors that warranted continuing the inquiry. Therefore, the adjudicator cancelled the inquiry.” (https://www.oipc.bc.ca/rulings/orders/)

What do you think of this?

Keep in mind, that this process takes years to wait for an inquiry. Years.

The school district was then paying lawyers to defend them through all of this.

When you think of it…. this parent’s tax dollars were going towards a school district that was paying lawyers to fight them over documents they should have had access to and their privacy was compromised.

Don’t we have school districts complaining of lack of funding?

When reading the details of this inquiry. It’s very interesting….

[11] The applicant’s child transferred from an Independent School to a school within the School District (Public School).

[12] In 2019, the applicant asked the principal of the Public School if any staff from the Public School and the Independent School had communicated about his child. The applicant and the principal exchanged several emails on the subject.

[13] In May 2021, legal counsel for the Independent School contacted the principal of the Public School to get information about whether the Independent School and the Public School had communicated about the applicant’s child. The Public School’s principal responded by email on May 12, 2021. In this email, the principal summarized his efforts to determine whether the communications took place and included a copy of the emails that he and the applicant exchanged in 2019.

[22] The parties agree that s. 14 does not apply to the information in dispute and the School District disclosed the email to the applicant.13 Given that all the information in dispute in this inquiry has been released to the applicant, I find that any order I make would not have a practical effect on the applicant’s right to access the information in dispute. As a result, I find that the issue of whether the School District is authorized to refuse the applicant access to the May 2021 email is moot.

Very interesting. I have so many questions.

[31] The parties agree that the 2021 email constituted a disclosure of the applicant’s personal information that was not authorized by FIPPA.17 The School District submits the unauthorized disclosure was quickly contained because the Independent School’s legal counsel recognized there may be privacy concerns about her receiving the email and immediately deleted it.18 The applicant does not challenge the veracity of the School District’s claim that the legal counsel immediately deleted the email in question.

So…if I am understanding this decision correctly.. lawyers from one school cannot contact another school and obtain information about a student/parents without the consent of the parent, even though they are lawyers?

Good to know.

As always, a big thank you to the parents who saw this through to hold the district accountable and provide us with an opportunity for learning and understanding the system. I am happy to see they had an outcome in their favour.

Ok parent(s)/guardians, keep this in mind for custody disputes, family court matters, human rights complaints, etc.

For anyone going through this process, the OIPC has a guide for completing written submissions. https://www.oipc.bc.ca/media/17752/2024-02-26-gd-instructions-for-written-inquiries.pdf

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ADHD, Dyslexia, Dysgraphia – Human Rights Education Case

This is a new case that was posted on the BC Human Rights Tribunal Website March 26th, 2024. This is a timeliness application.

I have read through this case and I feel MANY families can relate to the details of this case or various aspects of this case.

It really deserves a full read, however I have pulled some paragraphs to summarize and give an overview. The analysis of this case by the tribunal member and their determination of whether disability was connected to the harm alleged is really important learning for us parents. It also describes how the tribunal interprets alleged inappropriate accommodations as potential discrimination.

I am also going to be emailing this case to the Ministry of Education and asking them to explain why they are not screening children in Kindergarten. Dyslexia BC has been advocating for this for years!

The Parent obo the Child v. School District, 2024 BCHRT 91

[8] The Child attended an elementary school in the School District from September 2015 until December 2020. He has dyslexia, dysgraphia, and attention deficit hyperactivity disorder [ADHD].

[9] By the third week of kindergarten in 2015, the Parent alleges that the Child began complaining of constant nausea and experienced diarrhea and vomiting regularly. She states he told her that he was scared to go to school as the work was too hard and he could not do it. The Parent alleges that the Child’s physical ailments were only present on school days and he began resisting going to school, to the extent that he cried all evening before going to school and lay on the floor crying two to three hours before school. The Parent alleges this same pattern persisted throughout the entire time the Child attended the school.

[14] Around August 2018, before the Child started grade three, the Parent alleges that she asked his teacher if he may be dyslexic. The Parent says that the teacher assured her that her son’s situation was normal, and he just needed to keep practicing. The Parent says that she thought that by raising the possibility dyslexia to the teacher it would prompt the teacher to investigate the issue more thoroughly. The Parent says that she ultimately decided to trust the teacher’s opinion, which resulted in the Child not being appropriately accommodated for his disabilities.

[15] In September 2018, the School District conducted a functional behavioral assessment of the Child. Based on the assessment, in November 2018 the School District placed him in a literacy intervention group. The Parent alleges the placement was an inappropriate response to the Child’s disabilities.

[17] In December 2018, the School District created its first Individual Educational Plan [IEP] for the Child. The plan focused on addressing the goals of the Child attending school and managing his anxiety in a positive way at school. It also addressed various ways to increase his reading and writing to advance him from operating at a grade one level. The Parent alleges the IEP did not appropriately address the Child’s disabilities.

[18] In June 2019, the Parent alleges the Child’s IEP was updated with minimal change. She says that worksheets provided by the school over the summer were too hard for the Child to complete. Once again, the Parent alleges the School District’s attempts to accommodate the Child’s disabilities were inappropriate.

[25] In mid 2020, at the end of grade four, the Parent says that she realized the extent of the Child’s reading struggles as he could not read instructions or complete any online school without her providing him with extensive one-to-one support. She alleges his reading skills were much lower than the School District had previously indicated. At that point the Parent says she began doing in-depth research on dyslexia and other disabilities pertaining to reading. She then decided to pay for him to attend tutoring with literacy specialists outside of school.

[31] ……...The Parent stated that she felt incredibly rushed during a less than one hour meeting about the plan for the Child related to the new information and the complexity of the situation. She worried about several educators being involved who did not have training for children with the Child’s learning disabilities and processing challenges.…..

[34] Finally, the Parent noted her concern that as of grade three the School District had already started to consider the Child as not being a candidate for graduation with a high school diploma.

[37] In January 2021, the Parent says that the Child was enrolled in a private school equipped to meet his education needs. She says that at the new school, the Child received 45 minutes of OG tutoring at the new school every day with positive effects. By the time her complaint was filed in November 2021, she described him as a “different child” who did not complain about going to school and did not get headaches and have an upset stomach or diarrhea. The Parent says the Child was learning at grade level and was now being given the opportunity to be successful.

[49] After reviewing the information on file, I have further determined that there is a succession of separate acts of discrimination of the same character that are separate contraventions of the Code extending back to the spring of 2016. I address each allegation in turn.

[50] The Complaint alleges that on April 4, 2016, the Parent emailed the Child’s kindergarten teacher with his reports that he felt rushed when doing work at school, and despite his best efforts he felt he was too slow in completing tasks. The Parent asked the teacher if there was anything that could be done about this problem. The teacher responded with an acknowledgement that the Child did take his time with his work and appears to suggest that the Parent should reassure the Child that he could take time and not be so hard on himself. From my review of this event, I am satisfied that the Complaint sets out an allegation of discrimination where the Child accessing educational services experienced harms because the School District failed to accommodate the Child and did not meet his educational needs by only telling the Parent to tell the Child not to not rush or be too hard on himself. The harm incurred 12 by taking this action only was the Child not receiving a proper education. I am further satisfied the Complaint sets out an allegation that the School District failed to make sufficient inquiries into the nature and extent of the Child’s disability-related needs in response to the Parent’s concerns. In my view, this inaction caused harm where the School District failed to discover Child’s learning disabilities such that he could then be provided with appropriate accommodations to prevent him falling behind. In my view, the Complaint alleges that the Child’s disability was a factor in the harms alleged.

[51] The Complaint alleges that in November 2016, the School District’s response to the Child’s reading difficulties was to send home alphabet cards and provide video links for him to work on sounding out letters and creating simple words. From my review of this event, I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs in this manner. I am further satisfied the Complaint sets out an allegation that the School District failed to make sufficient inquiries into the nature and extent of the Child’s disability-related needs as opposed to sending home alphabet cards and video links to address his needs. In my view, the Complaint alleges that the Child’s disability was a factor in the harms alleged. In my view, the Complaint alleges that the Child’s disability was a factor in the harms alleged.

[52] The Complaint alleges that in the fall of 2017, the School District addressed the Child’s ongoing reading problems by giving him sight cards to take home and providing him with some one-on-one reading support. At this time, the Parent noted her concerns that the Child was merely memorizing the cards and not actually able to spell the words. She also observed that he was guessing words based on pictures. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs in this manner. I am further satisfied the Complaint sets out an allegation that the School District failed to make sufficient inquiries into the nature and extent of the Child’s disability-related needs as opposed to sending home sight cards and providing some one-on-one reading support. In my view, the Complaint alleges that the Child’s disability was a factor in the harms alleged. 13

[53] The Complaint alleges that in August 2018, the School District’s response to the Parent’s concern that the Child might be dyslexic as he continued to struggle in school was to assure her that he just needed to keep practicing. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs in this manner in response to Parent’s concerns. I am further satisfied the Complaint sets out an allegation that the School District failed to make sufficient inquiries into the nature and extent of the Child’s disability-related needs as opposed to staying the course with Child despite ongoing problems and the Parent highlighting the possibility that he could be dyslexic. Once again, I find the Child’s disability was a factor in the harms alleged.

[54] The Complaint alleges that In the fall of 2018, the School District’s response to the Child’s ongoing learning struggles was to conduct a functional behavioural assessment and place him in a literacy intervention group. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs by focusing on the behavioural components and not his disabilities. I am further satisfied the Complaint sets out an allegation that the School District failed to make the appropriate inquiry, conducting a psychoeducational assessment instead of a behavioural assessment, into the nature and extent of the Child’s disability-related needs. Again, failing to accommodate the child after a proper assessment is alleged to have harmed him by not providing a proper education. I find the Child’s disability was a factor in the harms alleged.

[55] The Complaint alleges that in December 2018, the School District created its first IEP for the Child. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs with an IEP that focused on the behavioural components and provided ineffectual learning supports not indicated in the later psychoeducational assessment. Again, the School District is alleged to have failed to make the appropriate inquiry into the nature and extent of the Child’s disabilityrelated needs. It allegedly failed to accommodate the child after a proper assessment resulting in the harms related to not receiving a proper education. I find the Child’s disability was a factor in these harms. 14

[56] The Complaint alleges that in June 2019, the School District updated the IEP with minimal changes and sent worksheets home with the Child to do over the summer break that were allegedly beyond his capabilities. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs with a revised IEP that has the same issues as the first IEP. A further allegation is set out concerning sending home inappropriate worksheets over the summer. Once again, the School District is alleged to have failed to make the appropriate inquiry into the nature and extent of the Child’s disability-related needs. It allegedly harmed the Child by not providing him with a proper education. I find the Child’s disability was a factor in the harms alleged.

[57] The Complaint alleges that in September 2019, the Child’s grade four teacher admitted she was unaware of him having an IEP and provided him with grade two spelling lists work as an accommodation of his disability. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs by sending home grade two spelling lists for him to work on. Once again, the School District is alleged to have failed to make the appropriate inquiry into the nature and extent of the Child’s disability-related needs. It allegedly harmed the Child by not providing a proper education. I find the Child’s disability was a factor in the harms alleged.

[58] The Complaint alleges in February 2020, the School District’s lack of response to the Parent’s concern that the Child was reversing letters on his written tests is an allegation of discrimination. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs in the face of dyslexia symptoms. Once again, the School District is alleged to have failed to make the appropriate inquiry into the nature and extent of the Child’s disability-related needs. It allegedly harmed the Child by not providing a proper education. I find the Child’s disability was a factor in the harms alleged.

[59] The Complaint alleges on November 4, 2020, that the revised IEP implementing the October 27, 2020, psychoeducational report findings is an allegation of discrimination where it relied on the Parent to organize and pay for the Child’s OG tutoring and inappropriately 15 continued to focus on treating his anxiety. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by addressing his learning disability needs with a revised IEP not properly guided by the psychoeducational assessment resulting in the Child not receiving a proper education. I find the Child’s disability was a factor in the harms alleged.

[60] The Complaint alleges on November 5, 2020, that the school principal was unwilling to guarantee that the Child would receive tutoring from someone trained in OG tutoring is an allegation of discrimination for the purposes of this decision. I am satisfied that the Complaint sets out allegations of discrimination where the School District failed to accommodate the Child by committing to provide him with an appropriately trained tutor necessary to meet his learning disability needs. This resulted in the Child not receiving a proper education. I find the Child’s disability was a factor in the harms alleged.

[61] To summarize, the materials before me set out a series of discrete allegations of discrimination incidents involving the School District’s repeated failures to appropriately accommodate the Child’s disability over the five years that he attended school within the School District. These incidents involved the trial of various inappropriate intervention activities, inappropriate IEPs and an inappropriate assessment. All these actions attempting to address the Child’s learning disabilities allegedly resulted in harms related to the Child not receiving a proper education. Further, for much of the period in question, the School District failed to make the appropriate inquiry into the nature and extent of the Child’s disability related needs by way of a psychoeducational assessment.

[65] In concluding there were no significant gaps in this case, I have considered the Parent’s submissions and evidence indicating she was actively engaged in the Child’s education during his time out of school over the years. For example, she participated extensively in the take home activities prescribed by the School District while actively pursuing guidance from his teachers, the school counsellor, and the principal. In my view, the Parent remained very much engaged in the accommodation process throughout the years and this lessens the significance of any gaps between the discrete instances of discrimination outlined above. As an active participant in the School District’s ongoing accommodation of the Child’s learning disabilities, I see less significance in the gaps of months between the discrete allegations. While it is possible 17 to say the Parent had numerous opportunities to file a complaint, the information before me indicates that she was actively engaged as a participant in the accommodation process between events where the issue of accommodation arose, which lessens the significance of the gaps in this case.

[67] For these reasons, the complaint is accepted for filing as it alleges a continuing contravention of the Code.

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Family Status – Human Rights Complaints in Education

Here is some clarity to something that can be confusing when it comes to parents adding themselves to their child’s human rights complaint in education. (Your complaint will also need to pass the discrimination test.)

You need to file separate complaints. One for your child and one for you. Then, when and if they are both accepted, then you need to file an application to join them.

As a parent, it makes logical sense in our head to just include ourselves in our child’s complaint because we see everything so connected, but that is not the process that one needs to go through. So, to save yourself some time in further applications and playing catch up, when you file your child’s complaint, also file a separate complaint for you. Wait to see if both are accepted and then you need to file a 7.1 Form to join the complaints.

Here is the application page. You will want Application Form 7.1 – General Application. If you go to page 2 of 7, on that list, 7th on the list down, you will see “Join two or more complaints”

It is highly likely that the respondents will be making submissions for them not to be joined, or to dismiss your complaint. So, just mentally be prepared for that.

Here is the groundbreaking case that brought this option out in the open. So thankful for this brave parent.

Groundbreaking BC HRT – Accepts Parent on Child’s HR Complaint

Direct link on CanLII

You may want to quote this case directly in your complaint.

Also, keep in mind the one-year time limit for filing. If you file outside of the one-year time limit you may want to consider this case. Also, be aware that you will need to have evidence of the harm related to your loss of work or emotional harm.

Experience is such a valuable teacher.

If you have any questions, call the BC Human Rights Clinic. They are the best people to talk to about your complaint or any questions about the process. Processes do change, forms change, and with each new human rights case decision that gets posted – arguments can change. (This blog was written on Dec 21st, 2023)

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Responding to Dismissal Applications

Broe v. Board of Education of School District No. 67 (Okanagan Skaha) and another, 2023 BCHRT 157

There was a case posted today that I thought discussed dismissals in a very informative way. Anyone who is self-representing and needs to respond to a dismissal application must be aware of how they need to meet the criteria so that their case can continue through the tribunal process and not be dismissed.

In the case Broe v. Board of Education of School District No. 67 (Okanagan Skaha) and another, 2023 BCHRT 157, I find the following paragraphs to be very helpful. The written decision has cases attached for you to review as part of the decision to cite if necessary in your argument and to understand further. I have linked the cases for convenience.

There is legal language in these descriptions that you might have to do your own research on if you do not have a law background.

YouTube videos I find are the most accessible as they are aimed at teaching people who are not lawyers how to understand law. If one video doesn’t tickle your fancy, keep up the search. There are a TON of them out there.

From the case:

[4] The issue before me is whether there is no reasonable prospect Ms. Broe will be successful at a hearing…

[35] On such an application, the respondent has the burden to show the complaint has no reasonable prospect of success. The complainant must only put evidence before the Tribunal that takes the complaint out of the realm of conjecture. This is not a high bar: Ritchie v. Central Okanagan Search and Rescue Society and others, 2016 BCHRT 110 at para 118.

[36] In considering applications under s. 27(1)(c), the Tribunal considers the entirety of the materials filed by the parties to determine if the complaint has no reasonable prospect of success. The test requires more than a mere chance the complaint will succeed: Wickham and Wickham v. Mesa Contemporary Folk Art and others, 2004 BCHRT 134 at para. 12.

[37] In order to succeed at a hearing, Ms. Broe must demonstrate she has a protected characteristic; that she experienced an adverse impact in relation to her employment; and that there was a nexus between that protected characteristic and the adverse impact alleged: Moore v. British Columbia, 2012 SCC 61 at para. 33.

[38] To establish a justification defence at a hearing, the Respondents must show they adopted a standard in good faith for a purpose rationally connected to the performance of the job and that it would have been an undue hardship to accommodate Ms. Broe: British Columbia

I also highly recommend you visit the Leading Cases page on the Tribunal’s website which lists leading cases depending on the reason for the dismissal application.

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Late filing – Timeliness of Complaint

This is a decision from the Human Rights Tribunal, posted in the September category for 2023.

The complainant filed the human rights complaint after the one-year deadline. These applications for late filing are very rarely accepted, and this case was accepted. They have dismissed cases that were one day or three days late. Brutal.

It’s also notable because it involves accessibility issues for a disabled student in a post-secondary school. This case was considered novel because the student is autistic. See paragraph 44 for details.

Here is the case and I have selected a few paragraphs from the main case.

Schulz v. Camosun College, 2023 BCHRT 142

[6] Millie Schulz has multiple mental disabilities, including autism spectrum disorder [ASD], attention deficit disorder [ADD], and post-traumatic stress disorder [PTSD].

[16] On January 4, 2021, Millie Schulz sent a letter to the College dropping out the MHA program. After noting their issues and barriers, they said they did not feel supported in their classes with CAL, which was only looking out the College’s interests.

[37] Where the delay is due to a disabling condition, the Tribunal has observed that it may be in the public interest to accept a late-filed complaint: MacAlpine v. Office of the Representative for Children and Youth, 2011 BCHRT 29 at para. 42. Disabling conditions can include physical and mental ailments resulting in great difficulty coping with even the basic daily tasks of life: Naziel-Wilson v. Providence Health Care and another, 2014 BCHRT 170 at para. 21

[42] Millie Schulz argues their case is unique as it involves a complainant with ASD. While the Tribunal has addressed mental health discrimination in the provision of services, it has not addressed many of the issues impacting individuals with ASD, and their need for accommodation, especially in a school or employment setting. They cite one Tribunal case dealing with autism from 2011, which points out that the nature of adult autism and how it manifests itself in the workplace is poorly understood, and individuals with this disability are subject to stigma and stereotyping: Noriega v. B. C. (Min. of Children and Family Development), 2011 BCHRT 199 at para 28.

[44] While appreciating this case is quite common in terms of the Tribunal dealing with the accommodation of a student with mental disabilities in a post-secondary setting, I find that the 12 subject matter of accommodating autism, in particular ASD, is sufficiently unique to attract some public interest in allowing the complaint to proceed late filed.

[45] After weighing all the factors, I have decided it is in the public interest to accept this late-filed complaint. While appreciating a significant delay in filing occurred, this factor is outweighed by the reasons for delay associated with Millie Schulz’s mental disabilities and the novelty of the case. It is now necessary to address the issue of whether any substantial prejudice would result. C. Substantial Prejudice

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What is Fatal to a Human Rights Complaint in Education?

A and B obo Infant A v. School District C (No. 5), 2018 BCHRT 25

I have heard of many families in very complex situations. Parents/guardians are struggling with accepting/agreeing to accommodations offered by the school that they feel very strongly won’t work. If you are thinking that the human rights process is a process you might be considering, there are important things to note.

I have pulled the paragraphs/parts of paragraphs from this case that I feel are important for simplicity.  I highly encourage people to read the full case to understand the context of everything and how a hearing and the Human Rights Code are applied. It is a layered case and the complexity of the situation is something many families can find themselves in.  

I’d like to also note, that even though we are reading this case, there might be information that is not written about that this family may feel is very important that was left out.

Let’s look at the issues this case brings up and how we can be prepared for them.

Some of the topics this case brings up are:

  1. The importance of documentation and having as much evidence as you can.
  2. Witness testimony from parents and education staff (credibility conflicts)
  3. The role and responsibilities of parents/guardians.
    • The duty of parents/guardians to facilitate accommodations
    • Parent/guardian credibility
    • Parents/guardians duty to cooperate in good faith

“If the School District initiated a reasonable proposal that would, if implemented, accommodate the Child, then the Parents were obliged to facilitate that proposal. Failure to do so is fatal to their complaint of discrimination.”

DIRECTLY FROM THE CASE:

[37]           I am entitled to accept some, none or all of a witness’ testimony. Where there was disagreement in the evidence, my findings and reasons are set out. Where necessary to do so, I have assessed credibility and considered factors such as the witness’ demeanour, powers of observation, opportunity for knowledge, judgment, memory, and ability to describe clearly what they saw and heard….(continues)

[38]           In resolving conflicts in the evidence, and determining whether to accept the evidence of any witness, in whole or in part, I have adopted and applied the test set out in Bradshaw:

Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides. The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his [or her] memory, the ability to resist the influence of interest to modify his [or her] recollection, whether the witness’ evidence harmonizes with independent evidence that has been accepted, whether the witness changes his [or her] testimony during direct and cross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally. Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time. (Bradshaw, para. 186, citations excluded)

[39]           I find that the most helpful evidence in this case is the documentary evidence created at the time of events…(continues)

[42]           I have assigned relatively little weight to the Mother’s evidence where it conflicted with the first-hand accounts given by the School Counsellor, Principal, Vice Principal, and Teachers H, M, and G. I have found the Mother’s hearsay evidence considerably less reliable than the direct evidence of reliable witnesses, where there is a conflict.

[43]           The Mother acknowledged that she was probably not present for most of the incidents at school that involved her Child. At times, she had a hard time recalling events. For example, the Mother’s testimony on the psychoeducational assessment of her son was wrong by one year. She acknowledged that she was “out a year”. The Mother testified that there is no reason to dispute the emails that were authored by her at the time. The Mother testified “that is what I wrote at that time”.

[44]           During cross-examination, the Mother responded to several questions regarding her testimony about her Child’s version of events by saying that she did not know or was not there. She acknowledged that most of her knowledge of the incidents came through her Child. I find that her son was more likely than not motivated to minimize his involvement in some incidents when reporting them to his Parents, so as to avoid discipline. For example, the Mother described disciplining the Child in relation to an incident where he swore at the Principal. She described their punishment as “Draconian”. (In retrospect, the Mother regretted using that word in her letter). As another example, regarding the November 2016 Incident, the Child only reported to his Parents that he grabbed another student by the collar, whereas I find, as a fact, that the Child choked a student, pushed him over a railing, and spat in his face.

(Parents’ Obligations (Paragraph 248-260) ** Important to read in the case. This case was dismissed and discrimination was not found. )

[258] In summary, the evidence shows that the accommodation process of the Child at school was often frustrated by the unreasonable actions or inactions of his Parents. The Parents did not attend re-entry meetings after the Child was sent home from school; the Parents attended the first IEP meeting, but refused to attend future IEP meetings. After November 2015, the Parents stopped providing comments to draft IEPs that were sent to them for review. The Parents refused to participate in the creation of a Safety Plan for the Child. The Parents did not provide the requested medical and psychological information to enable the School to modify the Child’s IEP. The Parents rejected the Principal’s offers of an educational assistant, classroom change, pod change, and school change. The Parents interfered with and rejected the psycho-educational assessment performed by a school psychologist. The Parents opposed any involvement of the District’s Intensive Behavioural Team with the Child. The Parents refused to allow an educational assistant to work with the Child despite it being recommended by his teachers, School Counsellor, and Principal. In a letter dated May 2016, the Parents wrote that the Principal was the “root cause of all this mess”.

[248]      The School District is not the only party with obligations in the accommodation process. Rather, the parents were obliged, as the Child’s representatives, to work towards facilitating an appropriate accommodation: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. If the School District initiated a reasonable proposal that would, if implemented, accommodate the Child, then the Parents were obliged to facilitate that proposal. Failure to do so is fatal to their complaint of discrimination.

Again, I highly encourage everyone to read the full case. I appreciate every family who has taken their case to the human rights tribunal hearing level. Even cases that have not “won” are still beneficial. It is through their experiences and stories that the rest of us learn and therefore become better advocates for our children to navigate this current system.

TAKE AWAY LEARNING

Whether this is fair or unfair/just or unjust/right or wrong…to uphold a human rights complaint…this is what I take away from this case.

  1. We need to be so thoughtful in how we communicate with the school.
  2. We need to be solution focused.
  3. Our credibility just like the staff’s credibility may be a part of the hearing process if there are issues around credibility and the relationship with the school.
  4. We need to document everything and gather as much evidence as we can.
  5. We need to cooperate and facilitate accommodations and if they are not successful, document the failure. (Paper documentation, video, etc)
  6. We need help. We should seek guidance and advice from as many professionals and other advocacy support people as possible if we find ourselves in a challenging advocacy situation at our child’s school.

However, it is also important to be aware.

"Parental conduct or lack of parental authority cannot be used as a justification for not meeting an exceptional student’s needs;"

To view the document on CanLII’s website:
L.B. v. Toronto District School Board, 2015 HRTO 1622 (CanLII)

"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."
[77] The Interim Decision sets out my reasons for issuing an order with respect to the first two points, as follows:
(a) School boards have an obligation under the Code to accommodate their students with disabilities to the point of undue hardship, regardless of whether the students are receiving any medical treatment in the community or not;
(b) School boards cannot order or demand of parents to place their children into residential psychiatric treatment programs and cannot deny or withhold accommodations to the point of undue hardship on the grounds that the student should be in such a program. While I have no evidence to show that this was the case here, that does not alter the principle;
(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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Here is the link to the case in full: https://canlii.ca/t/gmd68