This is a dismissal decision. Self-representing mother won. Lawyers lost.
Keep that in mind. Just because you are up against lawyers on your own, it is not hopeless. Just because they are lawyers doesn’t mean they can wave a magic wand and wiggle out of everything. We have a few cases of parents advancing the Human Rights Code and either getting a discrimination declaration or advancing their cases past a dismissal application.
Here is the case. It’s not the typical ones we see. This is about family status and medical vulnerability.
Student G (by Mother G) v. Board of Education School District 41 (Burnaby)
“He says the School District discriminated against him based on his family status, as the child of a person who is clinically extremely vulnerable to COVID-19, when it rescinded the requirement for all staff and students to wear face masks in school, in March 2022. He also says that after the mask requirement was rescinded, the School District did not take enough steps to allow him to participate in school without exposing his father to COVID-19. I understand him to allege an ongoing failure to accommodate him by the School District.”
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I want to just take a moment here to offer a seed of thought.
When we read human rights decisions, we typically are not going to see our own cases written out in decisions before us. But there may be paragraphs or pieces of a case, or concepts of a case that apply. We may read cases and think…mmmmm that is interesting. Never thought of that.
When lawyers make their arguments, they use case law to support their arguments. They can use case law to say, “See, look at this case; it’s the same thing.” Judges and tribunal members need to follow other case law examples. If it’s in the same province, it is “binding”. If it is another province, it is “influential”. Depending on the level of court, it has different levels of bindingness or influence. I don’t want to get too much into this. You can do your research on this. But, lawyers can also use case law to say, “See, look at this case; it is very different, you can’t apply this law to this situation.”
If you are someone who has a medically complex child or family member, there may be aspects to this decision that you think may apply to you. It may not be about COVID, or it may not even be about a family status connection, but if you were to read this case, are there aspects where you think…. hey….. this actually is very interesting and applies to our situation. You may realize the level of accommodation that you may be entitled to by reading this case.
I do want to admit that I am not quite sure what to highlight in this case for all of you, as I don’t have personal experience in seeking accommodations for medical conditions.
For people with complex medical or immune challenges, I would suggest you read this case, and I’ll be listing it on my Education Case page, as I am sure this will benefit others. You will see what I cannot see, based on your own lived experience.
Why did the mother win?
[3] For the reasons set out below, I deny the School District’s application to dismiss the complaint. I am not satisfied that Student G has no reasonable prospect of proving he experienced an adverse impact in his education, given the evidence before me that he was exposed to a heightened risk of COVID-19 infection in the school environment. I am not satisfied that he has no reasonable prospect of proving this was connected to his family status, based on evidence that there is a significant risk of people with his father’s medical condition acquiring COVID-19 from school children in their household. I am not satisfied the School District is reasonably certain to prove its conduct was justified. There is no dispute that the School District took some steps to accommodate Student G, by minimising his exposure to COVID-19 at school. But on the materials before me the School District is not reasonably certain to prove it took all reasonable and practical steps to do so.
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EVIDENCE.
The bar to win a dismissal is not high. You need evidence that “brings your allegations out of the realm of conjecture.” Here is my blog and a case law example of how to respond to a dismissal application.
I also want to highlight this part of the case, because people often get The Charter and Human Rights Code confused.
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[4] The School District also applies to dismiss part of the complaint—specifically an allegation in the complaint that the School District contravened the Canadian Charter of Rights and Freedoms—on the basis that it is not within the Tribunal’s jurisdiction. In response, Student G clarified that he is not advancing a Charter claim, and acknowledged that the Tribunal does not have jurisdiction over constitutional questions regarding the Charter. I find it is unnecessary to dismiss any part of the complaint on this basis because I consider the statement to be background only.
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The Charter is part of the Constitution of Canada. This is the highest form of law in Canada.
The BC Human Rights Code is provincial and covers the provincial government and private businesses, private employers, landlords, etc. You can file a complaint with the BC Human Rights Tribunal.
The Human Rights Act is federal. This applies to the federal government and federal businesses like an airline. You can file a complaint with the Canadian Human Rights Commission.
If you were to “advance a Charter claim” you would be filing a civil claim through the BC Supreme Court. Not the BC Human Rights Tribunal.
When people typically say they are “suing” someone, it is through civil action. The court system.
The tribunal is not a court (it is a quasi-judicial body) and you are not “suing” anyone when you file a Human Rights complaint. There are differences between a civil claim and a human rights complaint. One of them is that when you file a civil claim, you risk paying the costs (lawyers’ fees) to the people you are “suing” if you lose. For the human rights tribunal process, you do not risk costs like this in the same way. I have written a blog Is there a Risk in Filing a Human Rights Complaint?
(There are a lot of great YouTube videos that explain our court systems. Have fun learning and exploring.)
When you file a human rights complaint, you are still entering an adversarial legal system. The school district’s lawyers have their clients as their priority, and everything they do and everything they say is for the best interest of their clients, not you. If it works out that what is best for your child and they are aware this is best for them, that is the goal. Win-win for everyone.
Here are my blogs on how liability influences their decision-making.
Liability in Education
School Protection Program – School Districts – Lawyers: The Three Musketeers
Congratulations to Mother G, who won, and her child’s complaint is now continuing. On track for a hearing. If it ends in a settlement, I hope they get the remedies they are seeking. Thanks for the decision!