Tag: #Law

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Why a Diagnosis

Why a Diagnosis?

I worked as a school secretary and one day one of the teachers needed support from the principal for one of her students in the class. The principal was new and so she quickly went to the student files, plucked out the child’s file, flipped through it to make sure there wasn’t something she needed to know and then flew off to the class.  I realized in that moment that I should have something written confirmed by my child’s professional of their diagnosis, and not just have this info in emails and verbal conversation. If anything happened at the school, a staff member would check the file and they would be aware.  Wow, I have been SOOOOO thankful that I had that exposure and followed through in making sure that documents were in place for both of my children.

As you can see HERE on the BC Human Rights Clinic page they state:

“In a case called Matheson,[4] Ms. Matheson filed a human rights complaint alleging that she was subjected to abusive behaviour from a supervisor. She had a history of anxiety and panic attacks as well as depression. On two occasions during her employment, Ms. Matheson informed her employer that she was suffering from “stress.” However, she did not provide any medical information that said she had a mental disability.”

The Tribunal dismissed Ms. Matheson’s complaint, stating that “an essential element of a complaint of discrimination in employment on the basis of mental disability is proof that the complainant either had a mental disability… or was perceived to be mentally disabled by the employer.” Click HERE for her case.

Matheson’s case was dismissed because she did not inform her employer (school district) of her disability.  If we do not have a written diagnosis in their student file with the school, as a parent if you file a human rights complaint, the respondents (school district’s legal representation) will cite the Matheson case and your human rights complaint will be dismissed.

We have got to get our kids formally officially diagnosed by proper professionals or your child has no legal human rights ground to stand on.

We need this diagnosis for the following reasons:

  1. Legal human rights processes
  2. Application for disability tax benefits (if applicable)
  3. Navigating the health system for proper medical care
  4. Advocacy in the education system for proper accommodations
  5. Social and emotional reasons – so parents are not blamed for having poor parenting skills and they are able to find other parents who have children with the same disabilities and get support.
  6. For the child – so they understand why they are having specific challenges and they don’t blame themselves for the wrong reasons. For acceptance and self-esteem reasons.

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Here is the wisdom, lived experience, and reflections from parents of children in the education system across BC. Thank you to all who were willing to share.

It’s a diagnosis not a label. I find once my kids knew why things were hard they stopped labelling themselves “stupid, lazy, dumb.”

  • Anonymous

I think a diagnosis helps us to know ourselves….better. it’s been a breath of fresh air to me personally and has helped me forgive myself a bit easier. It’s also helped me identify things that work and don’t work.

On a wider societal scale: .for ADHD, there’s so much stigma, misinformation, out there it’s hard to feel comfortable disclosing..

I ask myself why would I hide my identity/diagnosis? Why do I feel so scared of sharing?

Obvs cuz we are likely to be met with incredulity of “you aren’t that disabled” or they treat you as less than, and that is hard because-as XXXXX said they have power over us.

What they do with that information is the concern….the biases that come into play when they have that information in hand.

But I also know that being loud and proud and dispelling the myths of the neurodivergence I personally have, perhaps can help open the doors for folks around me.

However, I don’t speak from an intersectional voice (I mean not just “being female”). And as such I hope to be an ally to those who do and amplify their voices.

Because there’s even more work to be done there.

My hope is one day everyone can be loud and proud about themselves.

  • Chantelle Movay

And yet WHY should we have to make our private medical information public/known to people who have power over us in order to get support and accommodation? The idea that we have to out ourselves to be able to make a claim is problematic.

  • Anonymous

Our son was diagnosed in 2018 and since then we have seen a world of difference. Because of his formal diagnosis, we were able to get him the support he needed at daycare (1:1) and now in school. He lacked social skills and would only parallel play with his peers but because of his Supports & EAs he has flourished and now plays really well with his peers. The diagnosis has also given him access to speech therapy within the school, an IEP and other tools/resources to help him succeed.

  • Elena Lawson

Human Rights expects this in order for you to be entitled to accommodations. I know that is why it is critical and needed. As for my own child, in general professionals have never been able to give accurate recommendations. People can see “autism” and think they know what my son needs. But then surprise PDA, you actually don’t know shit.

  • Anonymous

I am relieved that you bright this to light. Accommodations and supports/ language/ professional and so on will never be enough. For our family it has been lifesaving – literally. We have found the most inspiring family’s that we could ever ask for. I am grateful for that. 😊

  • Anonymous

Having an early diagnosis for our older child led to assessments and diagnoses for all of us. That has led into participating in groups with others who started traveling the road before us and getting recommendations which, we wouldn’t have heard otherwise. I can’t imagine what family life would be like for us now without that first diagnosis and learning about other options to parenting from mainstream expectations. It’s hard enough as it is, but that would have been awful. In fact, I’m not sure our marriage would have survived. I’m not sure how my partner would have survived mental health crises. Having diagnoses has led to support options through their online school which would not have been available otherwise and which we wouldn’t have been able to provide out of our own limited finances.

  • Anonymous

We had our youngest diagnosed in grade one despite all the comments of “don’t give her a label” from relatives, friends and school admin. It was by far the best thing we ever did to put us on a path of understanding and acceptance. It has led to success in academics and my daughter has become a strong advocate for her needs. There are still some road blocks because of the severity of her Learning Disability but she is well equipped to find solutions to her issues.

  • Cathy McMillian

Without documentation of dx, we run the risk of trying to reinvent the wheel every year. Let’s channel the energy and hopefully the enthusiasm to what works. As well, if everyone could get accommodations by saying junior needs extra time or a scribe or oral exams …. We have to have a measurement or standard

  • Shannon Saunders

Socio-economic privilege provides access to diagnosis. Families in lower classes, disproportionately single parent households, are not provided with this same access. There are additional attitudinal barriers and medical bias that plays into even accessing the inequitable public system, along with personal barriers that are not supported (eg. difficulty navigating fragmented systems). BIPOC children are more likely to be written of as a behavior or family problem, without access to robust multidisciplinary assessment. Assessment and diagnosis are important for many many reasons. But using it as a gate to equity and support puts our most vulnerable families at risk.

  • Anonymous

A diagnosis made it easier for my child to qualify for accommodations in university. Without those accommodations he would struggle to succeed.

  • Anonymous

We missed out on so much due to lack of knowledge of dx and teen attempting suicide and spending 3 weeks in hospital as a result. I’m soooooo very mad at family doctor, psychiatrist, walk-in-clinics, counselors, school, and MCFD. Since dix, I have learned so much more

  • Anonymous

I value this as a way to deflect personal views..refer to medical i always said..but had teachers say we are the professionals..sigh..and another district learning support principal say we dont need reports to know what your child needs..had psychologists come to school to vocalize need..no go on supports..went online..but if we wanted to fight. Yes. Diagnosis would help. Thanks for your efforts..i feel our situation was uniquely bizarre..but sought to leave ir rather than put our girl as psychologist recommended.take her off the battleground..

-Anonymous

The arguing over why certain things were happening and why our child’s behaviour was being blamed on a personality flaw at school was putting our marriage under incredible strain. It was eating away at our son’s self esteem and identity. Once we got a diagnosis everything changed. Not only was he diagnosed but it led to my husband being diagnosed. We all understood and could learn and advocate. The blame and guilt game ended. Proper diagnosis is so essential for life.

  • Anonymous

long story short having documentation changes much of nothing when it comes to public school system. At the end of report from psychologist was around 10 recommendations, a big one was my kid needing 1:1 ea, bell to bell, never happened. Another was he should attend full days of K, never happened. That during school work he should have someone to scribe and or read for him, that happened when convenient for staff. Basically none of the recommendations were used. I had a OT spend an entire day at school, he had lots of good ideas and he too had recommendations, school didn’t follow any of them. His IEP, really was a piece of paper that brought in funding to the district. When my kid was in gr 5 he was at a gr 2 level academically, they tried telling me he was grade level. They say what you want to hear, when your gone, well sadly kids are not treated very well.

They destroyed his self esteem. Two mths in gr 5 I pulled him out of public school, he is about to graduate in a couple weeks and with his Dogwood diploma and he is a A/B student. All of his success no thanks to public school.

Anonymous

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Trying to Collaborate in Good Faith

Trying to collaborate in good faith and discuss “reasonable accommodations” can be the real murky (stressful) part of the accommodation process that has the most potential for disaster.

This is where we are at our most vulnerable.

Here is why.

(Please read every single word of the next paragraph. Twice if necessary.)

As part of the duty to accommodate, both parties are expected to collaborate in good faith. The accommodations offered by the school don’t need to be perfect or ideal for our children; they just need to be reasonable enough for them to be able to access their education. (Whatever that means.) Even though they have to meaningfully consult with us, the school gets to decide what is reasonable. We need to engage in the accommodation process and have a conversation about whether we think their suggestions for reasonable accommodations are going to work. They have the final decision-making power. Even if we don’t agree, if they draw the line in the sand and say this is it. We have the duty to facilitate that decision. Even if we think it is going to harm our kid. Then if it does harm our kid, we have to document it, and the conversation starts all over again. All the while, we need to be civil and can’t lose our shit. If they frustrate us and we shut down and stop engaging, we will have “frustrated the accommodation process”. In an employment situation, they can have your human rights complaint dismissed. However, this important case [L.B.v. Toronto School Board, para 77 (c)(d)], shows that in the education context, even without parental authority, the school still has to fulfill their legal obligations to your child. Just be prepared, they will blame you for everything if you file a human rights complaint. Well…. they always seem to do that anyway…but still. This case will be helpful.

Sounds fun eh?

If you are ready to rip your hair out, it’s not you. It’s them. They know exactly what they are doing as they drag you onto the hamster wheel and make you run and run and run. (Maybe the teachers aren’t in the know of these strategies, but the admin are.)

There are ways to get yourself off the hamster wheel.

These are not in any order of importance. Just a list of strategies to consider.

  1. Question and document their delay strategies as them not working in good faith. Or any other nonsense they do. You aren’t the only one who has to be collaborative. Delay strategies, ignoring you, dismissing your concerns, is not collaboration. How you question them will be the art of advocacy as to communicate what you are noticing, but not become adversarial.
    • Keep and log every email that they didn’t respond to and every meeting that was cancelled and delayed
    • Keep a timeline for how long things are taking the harm because of the delay
    • Email the list of concerns you have, and note the ones that have not been addressed or have a proposed resolution plan.
    • When you email, you can use the word “notice”. I have noticed that it’s been 3 weeks for us to have a proposed solution to my concerns outlined in my email Nov 12th: Concerns for XXXXX.
    • Another phrase that is good: “It is to my understanding….” And then state what you think, and seek clarification. Is my understanding correct?
    • Email sentences to use: “I am noticing….”, “It is to my understanding that….”, “Is it correct to assume…..” or “I am confused, can you please clarify…..”
      .
  2. Question the reasonableness of their accommodation suggestions – Ask for evidence. Without using the word evidence. If they want to argue that they are providing your child reasonable accommodations to the tribunal, they are going to need to have EVIDENCE to show that.
    • Again, we are using emails as our tool here as documenting is sooooo very important. We absolutely want to communicate in emails. If they don’t want to communicate with you in emails, that is a red flag. (They are up to funky-monkey business, and they know it.) One way of asking for evidence is to say, can you explain to me how this accommodation works for XXXXX? It is extremely reasonable as a parent to want to understand how their plan is going to provide “the ramp”. Ask questions, get them to explain it to you. Don’t let them use vague language. Keep asking questions until you understand exactly what they are talking about. They will use fancy-pancy language with you, hoping to intimidate you. You have every right to understand exactly what they are talking about. If they are not using plain language and instead use jargon, that doesn’t make them look good. What is the point of communicating with each other if we don’t understand what we mean?
      .
  3. Always ask HOW questions. They state your child does _______. Great. HOW does that happen? How. How. How.
    • The tribunal has stated in human rights complaints that the school is in the best position to have discretion to create your child’s education plan, so if they are the experts, then they better behave like the experts. It is their responsibility to investigate why your child is struggling and create a plan on how to remove the barriers. It’s called meaningful inquiry.
      .
  4. File external complaints. Many parents threaten all sorts of things, and quite frankly, not many people do it. They are used to hearing every threat under the sun, and they just sit back and wait for you to explode and leave. If you file a complaint, you will stick out to them. They will underestimate you, until you show them with your behaviour that you are not a doormat. Sometimes, bringing in external eyes and forcing them to provide evidence to someone that they are fulfilling their legal obligations is exactly what needs to happen.
    • All of the external complaint departments are silos. They are VERY specific to the issue you are dealing with. A lot of the time, people could file with all of them as they are possibly dealing with overlapping issues, but not always.
    • To understand which external complaint deals with what issue, please read my page, Resolution Options in Education
    • Also, When should I file?
    • Why does this strategy work? The Damage Period
    • When you should file is basically asking the question to yourself – if, after giving advocacy a chance, what are you willing to tolerate or not tolerate? When will it be enough? Only you can answer that question.
      .
  5. Section 11. In action – not making a decision is making a decision. The School Act Section 11 notes that a lack of a decision is still a decision. If the school is making a decision that “significantly affects the education, health or safety of a student,” you can appeal to the Board of Education.
    • To read more about this INTERNAL advocacy route, please read my page Section 11 – Appeal to the Board of Education
    • Telling the superintendent that you intend to file a Section 11 appeal should at least get you meetings with people in upper management.
    • Not many parents complain past the principal. So again, pulling in district eyes to your child’s school may be necessary. Some principals think they are untouchable. Sometimes we need to remind them that everyone has to answer to someone. It’s kind of how our society works. No one should be untouchable.
      .
  6. Leave if you can. This is an absolute option to consider. There are a lot of parents who feel that if they leave, then “they will win”. This is the emotional well-being of your child. The best revenge is living well. This isn’t a competition. Take your kid and give them something better. Sometimes the fight is worth it, and sometimes it is not. There is nothing wrong with making your child and yourself the priority. They don’t deserve your energy. There is nothing wrong with moving schools or considering other learning options.
    • I say this as someone who is an absolute fighter. My kids were getting better care when I started filing complaints than compared to when I wasn’t. So, for my situation, it was absolutely worth it to stay. Filing complaints is a form of advocacy to push the line, create needed data and change. We need people willing to get in the ring. At the same time, if you need permission to save yourselves and focus on the health of your family, you have got it. I’ll absolutely give it to you. Depends on what your history is or current life issues, sometimes fighting the abusive people in the education system isn’t your journey to take. In the same breath, “Sometimes it is the people no one can imagine anything of who do the things no one can imagine.” ― Alan Turing.
    • No one else can make this decision but you. These aren’t easy decisions as they will impact your child, your family, and you. People just want to be told what to do. I can’t tell you what to do. This is your family, your life. Only you will experience and witness the benefits and consequences of your decisions. Whatever you decide, I hope you find peace.
      .

In summary, the collaboration process can be a case-by-case part that isn’t written in stone and will be very specific to your child. For this reason, there isn’t a cookie-cutter instruction manual on what exactly you need to be doing next. Some people are very collaborative and other people are focused on control and are not collaborative at all. A lot of it will depend on your own resources, perception, values, priorities, and personal situations. For that reason, the uncertainty causes families a lot of stress, and they are terrified of making a mistake. I absolutely encourage you to reach out to support groups, counselling, advocacy coaches and non-profit organizations that offer support. Don’t do this alone. You want to lessen your suffering? Reach out to others. You have a community out there who can sit in front of you and say “me too”.

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Why Can’t we Just Sue the Government?

Good question!

Many parent(s)/guardians are asking this question. What they are experiencing in the education system is mass systemic discrimination and they are wondering how in the world is this allowed to happen?? Doesn’t the Charter protect our rights?

Let’s tear this question to bits.

Why can’t we just sue the government?

Funding

  1. A large majority of parents who want to sue the government is because of lack of funding. They want more money from the government to be spent on their children.
    .

When you sue the government it needs to meet a specific legal test. We can’t just sue for lack of funding. If we could, any non-profit organization that felt they weren’t getting enough funding would be suing. That would be all of them. All non-profit organizations of marginalized community groups need more funding and feel they are never getting enough to service their community who are facing lots of discriminatory situations. They are all understaffed. All competing for grants. All desperate. All good and worthy causes. All justified. Yet still… not getting the funding to meet the needs of their community. Keep reading, I’ll explain further.

Quality of Life

2. Something to keep in mind, the government doesn’t owe us a certain standard of living. There is no legislation or law on this. We know this because people are sleeping on the streets and they can’t sue the government for being in that position.

Democracy & Charter of Rights

3. Our government works as a democracy. The system that we have to express our dislike over how the government spends our money, is through voting, contacting your MLA, or peaceful protesting. Other social movement activities like signing petitions, or starting your own non-profit organizations to work with other community members to advocate are all “system” approved ways of furthering your cause. As we will read below in case law, courts will not tell the government how to spend their money when it’s connected to resources in dealing with inequity. The government is allowed to take a “one-step” at a time approach when addressing issues of inequality. They are allowed to determine how to spend society’s limited resources and create social policy when choosing between disadvantaged groups. Something to keep in mind, our system is set up as a separation of powers between the government and the court system. The “conversation” that happens back and forth between courts and the government creating laws is often referred to as the democratic dialogue. See the two Supreme Court of Canada decisions related to Charter Challenges below.

Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66 (CanLII), [2004] 3 SCR 381

[75] [I]t is not realistic for the Court to assume that there are unlimited funds to address the needs of all.”

[79] While purely financial considerations are not sufficient to justify the infringement of Charter rights, they are relevant to determining the standard of deference for the test of minimal impairment when reviewing legislation which is enacted for a purpose which is not financial.

[83] It is also clear that while financial considerations alone may not justify Charter infringements . . . governments must be afforded wide latitude to determine the proper distribution of resources in society . . .  This is especially true where Parliament, in providing specific social benefits, has to choose between disadvantaged groups . . . .

Fraser V. Canada [2020] SCC 28

[ 207 ]                      Governments must be afforded the latitude to act incrementally when addressing a deeply ingrained, complex and persistent social phenomenon such as inequality. (This assumes that the inequality arises from factors in society; where the government itself has created the inequality, matters are, as we have already indicated, somewhat different.) There are processes by which a government must set its priorities, allocate its budget, and obtain parliamentary approval of its programs. In designing legislation to address a particular equality issue, a government can draw on far more internal and external expertise than we judges can. As a result, it is better positioned than we are to appreciate the consequences of a particular course of law‑making, both upon society and upon public resources. With these practical realities in mind, we must also recognize that, were a government expected to remove all inequalities for all groups on every occasion it acted, it may be disinclined to act, given that any remedial scheme will inevitably be under‑inclusive in some respect. Governments would, understandably, become “reluctant to create any new [remedial] benefit schemes because their limits would depend on an accurate prediction of the outcome of court proceedings under s. 15(1) of the Charter ” ( Egan v. Canada , [1995] 2 SCR 513, at para. 104, per Sopinka J.).

[ 208 ]                      To avoid this chilling effect, and to encourage governments to enact remedial legislation addressing pre‑existing disadvantage, this Court has (until now) judiciously accepted that governments may implement reforms “one step at a time, [and] address[s ] [the reforms] to the phase of the problem which seems most acute to the legislative mind” ( R. v. Edwards Books and Art Ltd. , [1986] 2 SCR 713, at p. 772, quoting Williamson v. Lee Optical of Oklahoma , 348 US 483 (1955), at p. The focal point in assessing remedial legislation is not to ask whether the government has met “the gold standard” ( Auton , at para. 62; see also paras. 59-61), but to recognize that government should not be obliged to deal with all aspects of a problem at once. It must surely be permitted to take incremental measures. It must be given reasonable leeway to deal with problems one step at a time, to balance possible inequalities under the law against other inequalities resulting from the adoption of a course of action, and to take account of the difficulties, whether social, economic or budgetary , that would arise if it attempted to deal with social and economic problems in their entirety, assuming such problems can ever be perceived in their entirety. [Emphasis added.]

[ 213 ] …..This is because only legislatures have the institutional capacity to conduct the research and study necessary to assess how, and at what pace, its resources should be applied to most effectively address a particular pre‑existing equality issue (and ultimately, to oversee that implementation) . Courts are not well placed to define the nature and scope of an obligation to enact 
sufficiently remedial legislation (Ferrel v. Ontario (Attorney General) (1998), 42 OR (3d) 97 (CA), at p. 113).

[229 ] Similar issues will undoubtedly arise with any other social welfare legislation or government attempts to remedy systemic disadvantage. By reserving the right to arbitrarily second‑guess and undo any legislation that attempts to incrementally address systemic disadvantage, the Court makes it more practically difficult for legislatures and governments to implement policies that promote equality. Put simply, we see restricting the government’s ability to incrementally address disadvantage as a peculiar way to promote equality.

Human Rights Cases Involving Ministry of Education

4. Every single human rights case that I have read across Canada, that has included the provincial Ministry of Education in their complaint, has been dismissed. If their complaint continues, the Ministry of Education is never involved. I haven’t read one case where the Ministry of Education was included. The Ministry gives the funding to the districts and the districts decide how to allocate the money, which removes the Ministry of Education from decisions that would pull them into the human rights complaints about kids not accessing needed resources.

5. I know someone who had the opportunity to consult a lawyer regarding this matter. They were told a way to file a class action human rights complaint that could involve the Ministry of Education is if the Ministry have policy that is discriminatory. This route is still possible if they do this. Here is an example of this in a Charter court case that took place in Alberta. Kerber v Alberta, 2025 ABKB 98 

Human Rights Process

6. I have been asked, why can’t we just file a class action human rights complaint against the Ministry of Education? So we have established, it would need to be something like a discriminatory policy in order for it to be connected to the Ministry. If there is a group of parents who want to file a class action human rights complaint who wants to create a decision from the tribunal, we would need to find a group of parents who were potentially prepared for a 8-10-year fight. Right now, just for a single complaint to reach a hearing level at the BC HRT, it will take about 4-5 years according to flow chart produced by the BC Human Rights Clinic. It could take a year for the tribunal to write a decision, if not more. This case took 15 months for the tribunal to write up the decision. Especially if it was a class-action human rights complaint it could be long and complex. Class action lawsuits tend to be long. Lawyers fees for one parent I know, was given an estimate for $30,000 for hearing preparation and a $10,000 per day for a hearing. The school district lawyer will know your resources for lawyer fees are limited and they will do everything they can to drive up your lawyer costs. So this group of parents would need to be prepared to spend thousands and thousands of dollars, agree to not accept any settlement, and continue along to a hearing. OR they would need to be ready to self-represent themselves. OR they could find a unicorn of a lawyer willing to do pro-bono work. (So many parents have had their pro-bono lawyer drop them before a hearing. We would need to find someone willing to commit for the long haul for free.) After the BC HRT decision is posted, the Ministry could possibly file a Judicial Review after the decision. With a class action decision, the compensation money might be large enough or the precedent be enough that the school districts lawyers would view it worthwhile to pursue further a Judicial Review. That would launch it now to the BC Supreme Court. Even with all that, a policy change would affect only those impacted by the policy and wouldn’t make the systemic change that parents are looking for when they ask the question, why can’t we just sue the government? (Which typically means, how do we get more funding?) If parents want a policy change, I wonder if it would be best to file a single complaint and get the policy change during a settlement mediation meeting. It would be so much faster and they could get the policy change that they need much faster so it could impact their children. Not 10 years later. However, that would just be a policy change within their district, and not provincially. The very system that is intended to resolve discriminatory issues can be a barrier itself.

Courts & Education

7. Generally, the courts don’t like education cases. It depends on what you are suing for and what the legal test is.

For example: Educational Malpractice

Gould v. Regina (East) School Division No. 77, 1996 CanLII 6807 (SK KB)

“The courts are an inappropriate forum to test the
efficacy of educational programs and pedagogical methods.
That judicial interference would be the inevitable result of
the recognition of a legal duty of care is clear from the fact
that in presenting their case, plaintiffs would, of necessity,
call upon jurors to decide whether they should have been
taught one subject instead of another, or whether one teaching
method was more appropriate than another, or whether certain
tests should have been administered or test results
interpreted in one way rather than another, and so on, ad
infinitum.  It simply is not within the judicial function to
evaluate conflicting theories of how best to educate.  Even if
it were possible to determine with exactitude the pedagogical
course to follow with respect to particular individuals, yet
another problem would arise.  Public education involves an
inherent stress between taking action to satisfy the
educational needs of the individual student and the needs of
the student body as a whole. It is not for the courts to
determine how best to utilize scarce educational resources to
achieve these sometimes conflicting objectives.  Simply
stated, the recognition of a cause of action sounding in
negligence to recover for “educational malpractice” would
impermissibly require the courts to oversee the administration
of the State’s public school system.“

Costs & Risk

8. If we did want to try and sue the government via the court system and not the human rights route, we would need to be prepared for it to possibly be tossed out. That wouldn’t be such a bad risk to take, however, if we lose the respondents will ask the courts that we pay their legal fees. Which can happen for the losing party in court cases. You’ll want to read this link. Costs are awarded to the successful party.

The Charter – Limited

9. What I learned from my human rights law class was that we don’t just have open-ended rights under the Charter, our rights are how they are DEFINED under the Charter. And that is case law. Case law tells us how our rights to not be discriminated against is defined. An example of this definition is the case Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 SCR 241. This case famously defined reasonable accommodations and separate classes for students with a disability as a reasonable accommodation due to what is considered reasonable and best interest of the child. All of the human rights cases that make it to hearings are what define our rights under the law too. These definitions and interpretations of law are important. (Duty to accommodate) Each decision defines our rights.

10. Also an important part of the Charter to understand is Section One – Reasonable Limits. The purpose of this “Section 1 effects a balance between the rights of the individual and the interests of society by permitting limits to be placed on guaranteed rights and freedoms. “Most modern constitutions recognize that rights are not absolute and can be limited if this is necessary to achieve an important objective and if the limit is appropriately tailored, or proportionate.” (Canada (Attorney General) v. JTI-Macdonald Corp., [2007] 2 SCR 610, at paragraph 36).”

To take a Charter challenge all the way to the Supreme Court of Canada it would be a 10-year fight, we would need a pro bono lawyer, and based on the case law I have seen, I am not aware of any case law that would be substantial in helping us to force the government to increase funding and resources for kids with disabilities in education.

11. Law isn’t the magic bullet that people tend to think it is. Laws can come into force but they need to be APPLIED for them to have an impact. That means that advocacy around using these laws will still need to happen. Law is a tool for us to use. The system needs to uphold these laws through its systems and accountability design. If the system doesn’t uphold a new law, it won’t be the magic we want it to be. We have laws that say it’s illegal to discriminate, and yet it still happens every day. We still need to change people’s hearts and minds. Law is a start, but it is just the beginning of the work. We need to take these laws and apply them. Laws won’t fix everything, but they are hugely important. We need a social movement AND laws. We need to use every avenue we have. I think of the parachute activities I used to play with my kids at Strong Start centers. We’d all have a piece of the very large parachute to hold onto and put the ball in and bounce it around. We all need to lift and do the work together if we want to keep the ball of inclusion on the parachute. We all need to be in our own corners, all lifting together simultaneously. All of the work done at BCCPAC, parent advocacy groups, advocacy organizations, human rights work, BC Ed Access, School Trustees, BCTF, Teacher’s unions, Post-secondary teacher education programs, EA programs, Professional Support Staff, Counsellors, Ministry of Education and Child Care, accessibility committees, and individual parents, all of us.

So now what?

This part is my opinion and experience. The soft spot of the education system is money. The people in power care about money.

It needs to become more expensive and time-consuming to deal with the consequences of discriminating against students with disabilities. Providing an inclusive education needs to become easier and less expensive. Which means to me, through my lens…. human rights complaints. LOTS OF THEM.

I can tell you 100%, and I have witnessed these meetings, that when systems get too many human rights complaints and their litigation costs go through the roof, then and only then do they start to look at how they can make policy changes to reduce the number of human rights complaints. I don’t care what their motivation is, the results are still the same. Policy in the right direction. Staff training. This is what it seems to take.

Human Rights complaints have the potential of being very expensive, as we advance the purpose of the Code and create those gold nugget decisions.

Dealing with ableism is slow and painful work. But necessary. Social movements are like that.

Every little bit of advocacy we do, all adds up. It all matters. Every bit of human rights law advancements, every decision, every DPAC inclusion meeting, every email to your MLA or school Trustee, every advocacy advancement you make, every time you support another parent. All of it.

We need an army of informed and empowered parents, spreading out and reaching all the corners of the province.

For those of you who are willing and able to get in the ring and make discrimination expensive, hats off to you, we need you. File away.

SOCIAL MOVEMENT + HUMAN RIGHTS LAW = MORE EQUITY, LESS ABLEISM

If anyone wants to consult with an lawyer who specializes in education, I recommend https://www.kesarilaw.com/

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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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Human Rights Decision by Self-Representing Parent – They Can’t Give Up

I first have to start by saying, that I have SO much respect for a parent who is willing to bring their case to a completed hearing AND waited for their decision.

This is now the second parent I am aware of who is self-represented and their case decisions are only within a few months of each other.

If you are interested in the other case posted in December 2023
Student (by Parent) v. School District, 2023 BCHRT 237 

Reading through this case, it is extremely evident that this mother is a resilient person and a persistent advocate for her child, which takes so much bravery and strength. So much respect mama, so much. Thank you for taking your case to a hearing. We will all learn from your case and it will help other parents navigate their advocacy journeys on behalf of their children.

This case was dismissed, and discrimination was not found to meet the legal test. The school district was able to justify its actions on a balance of probabilities.

Through my lens, here are some important analyses of the case. However, I encourage everyone to read the case in full to truly understand the context of the case.

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

Disability: ADHD and Dyslexia

[6] The burden is on Y to establish that X experienced adverse impacts in his education that are connected to his disabilities under s. 8 of the Code: Moore v. BC (Education), 2012 SCC 61 at para. 33. Once that is established, the burden shifts to the District to establish a justification defence. In this case, it is not disputed that X experienced disability-related adverse impacts. Therefore, the issues before me are whether the District has established that it reasonably accommodated X:

a. during grade 2, in relation to the adequacy of learning support?

b. during grade 3, in relation to the adequacy of learning support and in removing him from the classroom after the a behavioural incident?

c. during grade 4, in relation to the adequacy of learning support, consistency in Education Assistant support, and the implementation of the rewards program or “token economy”?

[108] It is also not disputed that X has disability-related challenges with self-regulation and academic learning. He often missed class, was consistently academically behind grade level, and experienced challenges interacting with teachers and peers. He was excluded from the classroom in grade 3 for a few days, and experienced distress over the possible addition or substitution of a new EA in grade 4.

[109] The crux of the complaint arises from the steps taken by the District in respect of these challenges, and whether it can justify its conduct in that regard.

[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.

[111] With it not disputed that X encountered disability-related barriers to his education, the burden shifts to the District to justify its actions. To justify the disability-related adverse impacts that X experienced, the District must prove that (1) they adopted the standard for a purpose rationally connected to the function being performed; (2) they adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and (3) the standard was reasonably necessary in that it took all reasonable and practical steps to accommodate the Student: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 [Grismer] at para. 20.

[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.

[118] It was when X stopped taking medication for his ADHD around midway through the grade 2 year that he regressed in his behavioural challenges. On seeing that X was struggling with the small group setting for learning supports, the District pivoted to provide him with one on-one support. In other words, it continued to monitor and adapt based on X’s needs.

[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……

[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.

[159] The District cannot control all social interactions between students and is not obligated to provide perfect accommodation. It is obligated to take all reasonable and practical steps to remove the disability-related barriers to X’s meaningful access to education. Insofar as X may have experienced some social friction with peers related to the token economy, I am satisfied on a balance of probabilities, that the token economy was part of a broader package of accommodation that was reasonable, and that the District took reasonable steps to address the social challenges X was experiencing.

[160] I acknowledge the ongoing challenges X is facing and appreciate that the steps taken by the District have not resolved them to the extent Y would hope. However, for the reasons set out above, I have found that the District has not breached the Code in its efforts to support X in accessing education.

[161] For the above reasons, the complaint is dismissed under s. 37(1) of the Code.

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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.