Tag: #employment

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Disability – Related Adverse Impact (Dismissal Application)

School Employee Files Human Rights Complaint

This is an employment case, and the employee is in the school setting. I have only ever written on two other staff employee cases. I don’t focus on this at all, but every once in a while, a case will come along that is very helpful for others to know about. The legal test for employment and human rights can be very specific.

Here are the two other cases:

School Employee
Education Assistant – Employment Human Rights Complaint
A HR Decision for School Employees

This case will now be added in that section as the third one.

Dismissal Application – School Employee

This is a short dismissal application decision. It’s a pretty simple one, and for that reason, this is a great one to highlight some key points.

Misiak v. Board of Education of School District No. 36 (Surrey), 2026 BCHRT 98

[17]           At a hearing, Mr. Misiak would have to establish that he has a disability, that the District treated him adversely, and that the adverse treatment was connected to his physical disability: Moore v. BC (Education),  2012 SCC 61at para. 33. Mr. Misiak is not required to prove the complaint at this time but need only point to some evidence capable of taking the complaint “out of the realm of conjecture”: Berezoutskaiaat para. 24. The threshold to move the complaint forward to a hearing is low.

[18]           The District says there is no evidence that Mr. Misiak has suffered a disability related adverse impact and his compliant has not been taken out of the realm of conjecture. I agree.

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He had an injury to his elbow from 2018 that limited what he could do with his left arm.

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[20]           The materials show WorkSafeBC advised that Mr. Misiak was limited in performing repetitive motion with his left arm, and forceful or sustained gripping with his left hand. The undisputed evidence of the District is that Mr. Misiak was placed in a job that does not require repetitive motions with his left arm or any forceful or sustained gripping. Mr. Misiak has not identified any accommodation that was recommended by WorkSafeBC, or that he requested, that was not implemented.

[19]           ……..The District provided detailed evidence of the recommendations made by WorkSafeBC and how they implemented each recommendation. While Mr. Misiak says in his response that his WorkSafeBC claim was denied and he was not accommodated, the evidence before me shows the District implemented all of the recommendations made by WorkSafeBC.

[22]           Mr. Misiak’s submissions are general complaints about the conduct of members of the health and safety committee at meetings, and the quality of air filters in schools. It is unclear on the materials what equipment Mr. Misiak is saying he had to supply for himself. He says the District took a long time to purchase and install new drill presses for the school’s woodworking program but has not pointed to how this is related to any physical disability he has. Similarly, Mr. Misiak alleges someone stood in front of him during a health and safety meeting and he was unable to respond to questions. Mr. Misiak has not provided any information that links his experience at a meeting to any disability. The District points out that there is no evidence to support Mr. Misiak’s allegation that he was not paid for his work.

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Four points to highlight

* The test to move a complaint past the dismissal stage is LOW….but you still have requirements you must meet.

** You will need to be able to identify your disability-related adverse impact. Not just any adverse impact. It has to pass the discrimination test.

*** You need to point to some kind of evidence that supports what you are claiming.

**** You can have unfair, horrible stuff happen to you, but it doesn’t mean that it is discrimination. There is not going to be legal remedies for all of the negative experiences you have in your life, or for all of the horrible things that people are going to do to you.

You will save yourself a lot of unnecessary pain and deprive the lawyers of their billable hours by understanding what complaint systems can create change and what those systems need from you in order to be successful. There are limitations in all of them, and they are all connected to different legislation. There are also complaint avenues or resolution avenues as an employee that I do not mention in this blog or on my website, as I primarily focus on parents advocating on behalf of their children. Information on complaint system options.

Parents & caregivers, we too have to focus on our kids’ disability-related needs, and how the harm they experience is connected to those needs, to be able to pass the discrimination test. We too, have an education case from the tribunal that has been very clear that not all negative experiences are discrimination.

Discrimination Test

3 questions.

  1. Does your child have a disability?
  2. Did they experience harm?
  3. Was the harm connected to their disability?
    .

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

[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.

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Education Assistant – Employment Human Rights Complaint

I just want to preface this with a message before I even dive into this. Tribunal decisions do not reflect all of the information or the full story. They are not tell all novels. They only highlight the information that they need to legally analyze the discrimination decision. There could be all sorts of stuff that you will never publicly read about.

I don’t typically post decisions regarding education staff as my focus is for parents/caregivers and students. I did write a blog that I think is helpful for education staff filing human rights complaints. However, this decision is unique in that I don’t often see an Education Assistant (EA) human rights complaints in BC. This complaint raises some interesting issues and demonstrates some important procedural fairness accommodations that I think is important for parents/caregivers and students to know about who are considering navigating or currently navigating.

What started this complaint was her disagreement over an Autistic student being excluded from school. It then snowballed into harassment and bullying allegations from Ms. Broe to other staff and staff filed allegations against her.

[14]           Ms. Gowe worked with Ms. Broe at the Secondary School from 2010 to 2018. Ms. Gowe stated that Ms. Broe would often come to her with concerns, and she would try to provide clarification, support, and direction to Ms. Broe about her role. However, Ms. Gowe testified that around the fall of 2017, she became concerned that Ms. Broe was being overly critical of other staff and not staying within the scope of her role as a CEA. Ms. Gowe was also approached by several staff who reported concerns about Ms. Broe’s behaviour. Ms. Gowe began documenting these concerns in case Ms. Broe’s behaviour escalated further.

[15]           From Ms. Broe’s perspective, it was her job to do what she thought was right for the students even if this was perceived as her challenging the decisions of other staff. One example from this period was discussed by several witnesses at the hearing. Ms. Broe testified extensively about a decision made without her input to temporarily remove a student with Autism she worked with from the Secondary School. Ms. Broe felt this was the wrong decision and she needed to take action to return the student to school. Ms. Broe first brought her concerns to a special education teacher, who subsequently approached Ms. Gowe with her own concerns that Ms. Broe was being overly critical of another staff member involved in the decision. Ms. Broe then went to the school Principal and subsequently, feeling that someone had lied to the Principal about the student, reached out to the Director of Support Services at the District, Susan Thomson. Ms. Thomson met with Ms. Broe to listen to her concerns but informed her that the decision had been made by a “darn good team” and she needed to move on. Ms. Gowe testified that she was concerned that Ms. Broe’s actions around this issue were causing stress to other staff and indicated that Ms. Broe was “crossing boundaries” and unable to let things go.

I am aware that if you are an EA and you are advocating on behalf of a student, you can end up putting your head on the chopping block. Even though on paper, documents say that advocating is part of your job, “4.4 Advocate for the protection of the legal and human rights of students and their families“. In reality, that isn’t necessarily so. This is true for teachers as well. A teacher who blogs The Canary Collective wrote about her experience. Her first line in her first blog ” I never imagined that advocating for students would put my career at risk.” She says she was disciplined for advocating.

Regarding this case with the education assistant, I am not going to post all of the details of this case. You can read through it all. It sounds like it’s been a difficult experience for many people involved, including Ms. Broe. This is the third posted public decision in this case. You can find the other two on CanLii.

Broe v. The Board of Education of School District No. 67 (Okanagan Skaha) (No.3), 2025 BCHRT 295

I do want to highlight some hearing procedural items that occurred that I think is important be aware of, to know what is possible.

Flexibility – Procedural Fairness



[49]           Ms. Broe worked hard to represent herself in this complaint. I gave her significant latitude with her testimony, which took place over seven days. Similarly, she was allowed to extensively cross-examine the District’s witnesses, including a full day with Mr. Corday and more than a day with Mr. Burgoyne.

[50]           This was a difficult hearing for Ms. Broe and some of the witnesses involved. One witness expressed that it felt like Ms. Broe was using the Tribunal process to get “revenge” for the events in the complaint. It was clear that revisiting these events was stressful for Ms. Broe, and her emotions were often heightened. Although she had the opportunity to ask questions, and receive answers, from individuals involved in the events leading to this complaint, she expressed that some of the evidence was hurtful and caused her to question her sense of self.

[51]           We took additional breaks as necessary. Ms. Broe was also offered the option of having a support person sit with her throughout the hearing, however the person she identified was not available. Having expressed that seeing Mr. Corday in the virtual hearing room was a trigger for Ms. Broe, he agreed to attend the hearing with his camera turned off, with the exception of when he was providing his testimony.

[52]           Ms. Broe was also given significant latitude with respect to her documentary evidence. Before the hearing, I held a case conference with the parties where we discussed, among other things, how to admit documents at the hearing. I explained that any documents previously submitted to the Tribunal in preliminary applications would not form part of the hearing record, and if a party wanted to introduce a document at the hearing, they had to provide it as part of their book of documents. I confirmed these instructions in writing. The parties agreed to prepare a joint book of documents, which they submitted to the Tribunal a few days before the hearing began.

[53]           On the first day of the hearing, however, Ms. Broe sought to rely on documents that were not included in the joint book of documents and which she had not provided to the Tribunal for the purpose of the hearing. I reminded Ms. Broe of the instructions I had provided and directed her to review all her documents after we had adjourned for the day, submit them to the Tribunal and the District, and we would address any procedural fairness issues the following day. Ms. Broe agreed to follow these instructions.

[54]           The next morning however, she had not provided the documents and expressed that she had not slept and was confused about the process. We revisited the document issue the morning of the third day of hearing, as Ms. Broe again wished to rely on the documents she had not provided according to my instructions. The District’s legal counsel offered a solution: she would send the Tribunal a file containing all the documents Ms. Broe had disclosed to the District in advance of the hearing and would not object to these documents being admitted on the basis of inadequate notice. This allowed the Tribunal to access Ms. Broe’s documents, one by one, as Ms. Broe sought to introduce them. While there were still delays caused by this approach, the District’s cooperation in problem-solving allowed Ms. Broe to present the evidence that she had previously prepared in a manner that made sense to her. I thank legal counsel for her efforts in this regard.

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The tribunal is very aware for people filing complaints, this is not an easy process, and many people navigating the process have mental disabilities. It’s stressful and emotional. It is a legal process and by how our legal system is designed, it is adversarial. Most people don’t have lawyers or training in any legal education. Some people are incarcerated while they are navigating this process. For the tribunal, it is their role to make this process as fair as possible for both sides.

If you need something, don’t assume you will get a no. Always ask! You never know what is possible.

The final decision was that her complaint was dismissed. She didn’t meet the legal test for discrimination. You have the burden of proof to prove you were discriminated against, and then if you do that then the respondents need to try to prove that it was justifiable to the point of undue hardship.

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[57]           For the reasons that follow, I find that Ms. Broe has not met her burden of proving the elements of her case.

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Tribunal members who write decisions will sometimes acknowledge that people have been harmed by the events they are describing in their cases. In this case, they did this as well. Which I always appreciate when they do that. I hope that acknowledgement and validation is helpful for people. Human rights decisions also state that negative experiences are not necessarily discrimination. This is a legal test about a very specific act. Discrimination. Not a moral test or honesty test about harmful or unfair events.

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

[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.

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As always, we learn from these decisions. The more information we have, the more we can make informed decisions. Sometimes filing a human rights complaint is incredibly helpful and sometimes it is not the best avenue to heal and process stressful events. Also, tribunal members can also make wrong decisions. I think for a lot of people filing complaints, they just can’t tolerate the injustice or unfairness of what they feel has happened, and they are compelled to do something about it. I hope for everyone involved in this case, they are able to heal, find some peace, and move on.

I wonder what happened to the student who was being excluded…