Tag: #ReasonableAccommodations

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Cease and Desist Letters

There are parents who have received a cease and desist letter. I don’t hear this often, but it does happen. Or they will be threatened with being given one.

Here is one example that went public.

Mom threatened with legal action after questioning B.C. principal who’s now accused of misappropriation

2014 letter from school board lawyer warned against ‘defamatory statements’ about Tricia Rooney

CBC News · Posted: Jan 25, 2023 4:12 PM PST | Last Updated: January 25, 2023

Mom threatened with legal action after questioning B.C. principal who’s now accused of misappropriation | CBC News

This parent knew something was wrong, and when she was questioning the spending she was served with a cease and desist letter. Years later, Tricia Rooney is investigated for misappropriating funds.

From the article:

“Last week, Lee’s phone “blew up” with messages from fellow parents when news broke that Rooney, also known as Tricia Low, was accused of misappropriating about $170,000 from Britannia Elementary, where she was principal from 2017 to 2020.

Lee says she felt somewhat vindicated by the news, but she was also angry.

“I have to unpack all the feelings that I have,” she said.

The allegations about misappropriation at Britannia are contained in a notice of claim filed against Rooney earlier this month on behalf of the school board, alleging “conversion, theft and fraud” from the tiny east side school. It includes allegations that she stole donated gift cards intended for families in need.”

One parent whom I am aware of, in another province, was served a cease and desist order because they were on a public platform and they were crying over what was happening with their child. The school district wasn’t aware, but this parent had retained a lawyer for over a year and they were building their case. After the cease and desist order, the lawyer hit them with with something so severe, that they would have begged for a human rights complaint. I thought, oooohhhhh these school district lawyers have made a BIG mistake. They had no idea who they were messing with. It’s a risky move for them to send this to a parent. You are poking the bear.

If you get served a letter like this, I would highly suggest you consult a lawyer.

Depending on what they are wanting you to stop doing, if anything, it may be appropriate to use it in your human rights complaint.

Here is my lawyer referral list. There are paid and free options on this list.

Lawyer Referral – Parent Advocacy Tribunal Help (School Advocacy)

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Part 7 – Applying the Duty to Accommodate – Focus on Needs

Two years ago, in the month of July, I wrote a six-part series on the Duty to Accommodate.

Part 1 – The Power of the Human Rights Code
Part 2 (a) – The Discrimination Test
Part 2 (b) – The Reasonable Justification Test
Part 3 – Meaningful Inquiry
Part 4 – Duty to Consult
Part 5 – Duty to Facilitate
Part 6 – Pulling it All Together

My goal was to make it more accessible and show people, through the trail of case law/tribunal decisions and Human Rights legislation (written authority), the rights their child actually have. Not just what the school district tells them – which is more focused on their own administrative processes and how they compartmentalize students administratively.

Most people when interacting with tribunals and specialized courts are self-represented. Law is not for the highfalutin lawyers. Law is for everyone. Knowing, understanding and applying our rights is a part of life, like grocery shopping and laundry. When we expect people to uphold our rights it does not mean we will automatically be engaging with lawyers either. School employees are duty bearers. Students are rights holders. Schools have the obligation and responsibility to uphold the students rights. (They just may not realize this.)

The pros (+) of the Human Rights Code:

  • It supersedes all school legislation, school board of education policy, administrative procedures and teacher classroom autonomy, etc, when in conflict (discrimination occurs). It is above all laws and policy – so powerful.
  • Every child has the legal right to be accommodated and receive an education.
  • It can create movement sometimes when nothing else has because of the accountability mechanism – human rights complaint process – the damage period.
  • The school knows if you file a complaint, they will have to justify or prove with evidence that they have accommodated your child up to the point of undue hardship.

The cons (-):

  • It only goes up to reasonable accommodations, not ideal or preferred accommodations.
  • The school is considered the experts, and they get to decide the accommodations, not you. You are there for consultation, but you are not the final decision maker.
  • If you don’t want your human rights complaint dismissed, you will need to facilitate reasonable accommodations whether you agree or not.
  • They get to decide class placement in “the best interest of the child,” not the parents’ wishes.

Pro (+) & Con (-)

  • Your rights are defined by case law (this is both very good and challenging). It’s how your rights are defined.
  • You are co-parenting with the government. For some reasons, this is fabulous, like the case law examples in the Co-parenting blog. For other parents they are going to find this frustrating, especially when you feel that you know more about disability and your child’s disability than the educators who are sitting in front of you.

The Duty to Accommodate will get your child into the classroom with barriers removed, which is HUGE. However, the school, with limited training in disability, has a lot of decision-making power and their own ideas on how to assess the functioning level of your child’s disability and remove those barriers. Add in layers of ableism with myths & stereotypes about disability.

Many teachers are still not aware that:

  • Accommodations are not rewards. No child needs to earn their accommodations with good behaviour.
  • They must follow a child’s IEP. It’s not optional or a nice to have or when there is time.
  • The Human Rights Code supersedes teacher classroom autonomy.

Parents are also struggling with educators not following their child’s IEP. There is, after internal advocacy, an accountability mechanism for that. Teachers’ standards are also a very important tool.

BUT….as I digress….

An important part of applying the duty to accommodate, after learning the language for email communication, is knowing where to focus your energy and what to focus on. This is a marathon, not a sprint. If you start taking extra side trips along the running path that are unnecessary and will lead to no where, you will exhaust yourself and deplete your capacity faster. You will burnout constantly trying to scale walls that are unscalable.

What do you focus on?

NEEDS.

You start with their needs. What are they struggling with?

This is how we apply the duty to accommodate.

As a parent, you are witnessing your child’s behaviour and communication at home. Whether they are hiding in their room, crying, having meltdowns after school, what they say, what they don’t say. You feel the energy shifts. The mood changes. The person you knew morphing into someone else. Behaviour is communication. You know your kids in ways that no one else does.

This is where you begin.

Because, since you don’t get to pick the accommodations your child will receive, you focus on the “problem” to be resolved. Which is the area of frustration.

I saw this book online. I haven’t read it. “Fall in love with the problem, not the solution.” It’s actually a book for entrepreneurs. I saw it on some book thread. It was talking about how people create products for life’s problems. An area of frustration. They will invent something that they make into a product and try to sell it to the public because it solves a problem. But if you really want to unleash your creativity, focus on the problem and not get overly attached to your solution.

I thought, wow, this really applies to advocacy, actually. We see the problem (what is not working), and we get attached to our solution. And if PAC, schools, Trustees or other people don’t adopt our solution, then we get incredibly frustrated. But if they don’t adopt our solution, we still have the problem. So toss it back to them. You don’t like my idea. Fine. Solve the problem – remove the barrier. And they need to make “the ramp” go all the way up the stairs, not just halfway.

We can’t tell schools what to do. We are here for consultation. But they are expected and responsible for solving the problem (removing the barrier). There may be multiple solutions. But they need to try and pick the best one (which is what we are here for) for our child and be willing to be flexible and try something else.

Fall in love with the problem, not the solution. In other words, focus on your child’s unmet needs.

Meaningful inquiry —–All you have to do is tell the school that your child is struggling, and this struggle is connected to their disability, and THEY have to investigate and figure this out.

While it is true…..

*******

Wells v. Manitoba (Human Rights Commission) et al., 2025 MBKB 86


 The school must be given some discretion with respect to the specific programming and supports it provided to its students based on medical documentation and ongoing assessments.  As subject matter experts in delivering education, it appears that the school would be in the best position to determine how to provide academic accommodation to students in accordance with its assessments and available medical documentations.

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Ok, then people. You want to be the experts. Be the experts. I’ll be here to consult and provide you with information on my child to help you figure out what the best accommodations are. But the responsibility falls on you. It doesn’t matter how fiercely parents advocate or if they don’t advocate at all; the school is still legally required to provide your child with an accessible education.

A quick nod to self-advocacy when it comes to students.

********

 Student by Parent v. School District BCHRT 237.

[90]           Generally, it is the obligation of the person seeking accommodation to bring forward the relevant facts: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. This can be challenging for children, and especially challenging for children with invisible disabilities. I agree with the Parent that children who require accommodation in their school are in a different situation than adults seeking accommodation. Though they have a role to play in the process, that role will be age and ability-specific, and the burden cannot be on a child to identify and bring forward the facts necessary for their accommodation.

********

Note to educators: If you are an educator and you are feeling overwhelmed or that you are not trained or educated enough in the area of disability or science-based reading interventions, you are NOT alone. I am fully aware that the system is setting you up for failure, and you all feel squeezed between a rock and a hard place. Get it. A lot of times, educators don’t know what to do, and they blame the child as their escape hatch. Even kids as young as grade one! For a lot of people, this seems to be a knee-jerk reaction. Is someone telling you to do this? I don’t get it. Communicating with the child is great. Blaming the victim after the fact. Not great. I really hope conversations are happening at union levels, administration levels, and teacher post-secondary levels are having conversations about proper professional development in disability and reading. Nothing from the 1950’s please.

Parents, you don’t need to accept excuses from staff for all the reasons they cannot accommodate your child or their blaming your child for not advocating enough. Staffing issues aren’t your problem. They are responsible for figuring this out. They aren’t allowed to give up on your child. They have to keep revising, monitoring and adapting.

If I were to bestow upon you all of the riches from all of the lands, it would be a support system and the duty to accommodate. Using human rights language does not mean we are foaming at the mouth in attack mode. Advocating for your child’s legal rights can be right in line with being pleasantly persistent. Some parents feel that rights-based language is too aggressive and they don’t want to feel unwelcome at the school. Don’t wait until you are so raging mad you are ready to storm the fortress. Build it into your advocacy from the start. Rights-based language is only aggressive if you make it to be. It can be very preventative. It can be what keeps you out of the human rights complaint process.

The duty to accommodate and accessibility legislation all focus on a disability-related need and removing a barrier.

For example:

Student with ADHD. – Teacher is noticing that your child is continuously not handing in their homework and relays this concern to you.

Disability-related need: Executive function skills that involve planning and memory. Focus; may have missed the instructions. Homework isn’t coming home. When it does come home and is completed, it doesn’t get handed to the teacher in the morning. It’s not because of a personality flaw or a character defect. Always look for how the areas of frustration are connected to disability features. Our kids aren’t lazy or unmotivated. They have neurological reasons for their behaviour and they need accommodations.

Barriers (Physical, Attitudinal, Structural) – Attitudinal & Structural (rules) – teacher feels the students are old enough that they shouldn’t have to prompt kids at the end of the day to remember to bring their homework home. Teacher doesn’t want to specifically ask for homework at the start of the day. They want the kids to put it in the homework bin “independently”. Physical – lack of visual prompts for homework reminders. Child is handwriting down instructions, and the printing is illegible. Parent doesn’t know how to support the child in their homework at home.

Focus on the needs. How does the teacher plan on removing the barriers? How can you manage the classroom and make it more inclusive so everyone is being prompted to take homework home and hand it in?

A parent might jump to the solution and want an EA to check in on them at the beginning and end of the day and be very frustrated when told there is no EA time for their child.

Focus on the need: the teacher needs to remove the barriers and figure out how to get your child’s disability-related needs met. If an EA isn’t available for individual prompting, how can they apply prompts for the whole class and make the supports inclusive to everyone? Maybe the teacher uses their classroom website to post homework to assist with parent support for completion. It’s up to them to figure this out. Maybe the student takes a picture of the instructions with their phone.

They need to remove the barriers and resolve the disability-related unmet needs. They need to consult with you, as you know your child, and figure out what will work for your child.

A KEY part in how we uphold our child’s rights is we DOCUMENT. I won’t regurgitate my documentation blogs here, so take a look through the blog list category.

Applying the duty to accommodate means creating a document trail.

I would argue that you are not engaged with rights-based advocacy if you are not creating documented communication between you and the school. (TIP: you may want a separate email address just for school communication. Never delete anything.)

Applying the duty to accommodate means you are aware of all of the duties under the duty to accommodate, you understand that it’s reasonable accommodations, not ideal, what your role is and the responsibilities of the school. You focus on needs. Unmet needs and barriers.

Generally….

Your role:

  1. Documenting your consistent communication. Communicate, communicate, communicate.
  2. Expressing unmet disability-related needs
  3. Consultation through the IEP process/accommodation meetings
  4. Whatever excuses the school gives you – they are responsible for figuring this out and resolving the barriers to your child’s disability related needs. Human Rights supersede.
  5. Be persistent. It will show them that your eyes are on them. Document the progress. What is working and what isn’t.
  6. Communicating needs is also really important so later they can’t claim hindsight.

School’s role:

  1. Remove barriers and provide your child with what they need so they can “access their education”.
  2. They will need to have evidence that they are providing your child with reasonable accommodations and that they are reviewing, adapting and responding to the changing needs of your child, whether you are advocating or not.
  3. They need to offer an opportunity for meaningful consultation with parents/caregivers.

Key Takeaway

  1. The duty to accommodate is powerful. (Please read the six-part series as your foundation.)
  2. It’s not going to get you 100% of what you want – it’s how your child’s rights are defined. School gets final decision power. “Reasonable” accommodations. Are they making reasonable decisions?
  3. Focus on your child’s needs. It doesn’t matter if they get a designation or an IEP. The schools’ obligations and legal duties don’t change. They still have to accommodate a child with a disability no matter how they administratively process your child.
  4. Be persistent, consistent and document your communication. You need that document trail, and writing about your child’s unmet disability-related needs should trigger meaningful inquiry. Then you are ready to go!

Conclusion:

Learning about the duty to accommodate and learning how to advocate is a life skill every person should have. Disabled or not. I have met adults with privilege who have horrible advocacy skills and are terrified of advocating. Just think of this as free training. You’ll become so good at this, that it will assist you in other areas of your life. (We had a car dealership sell us a car that had the wrong brakes in it. They thought they could wiggle out of it. I am not a door mat. They said to me, “What has happened in your life that you do not trust me?” LMAO. After weeks of persistent and consistent advocacy and calmly informing them I will take them to small claims court, they paid for our brakes to be replaced. They were tough. They really put up a good fight and they thought we would go away using the same strategies that school districts use. Nope. Sorry. Nice try. They don’t work on me. I know what to do.) Thank you school district for all of the advocacy experience and the ability to sharpen my skill. Conflict resolution, relationship building, advocacy – I am very ready for life.

I wish you all the best in your advocacy journey. I highly suggest you find your people for support. You are certainly not alone and you don’t need to do this alone either. There are a lot of parents out there walking the same path as you. If you want, you can find them.

Start here…

BCEdAccess Society
Family Support Institute
Inclusion BC

Here is my GET HELP page.

Best wishes,

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Teachers Regulation Branch (TRB) Decision

Here is an important TRB decision about a teacher who was too rigid and the impacts of their rigidity impacting students differently. More so for Indigenous students and neurodivergent students.

“Polishak did not generally adjust his manner of teaching, classroom expectations or assignments to support students’ individual learning needs. A parent of student (“Student A”) asked for Student A to use headphones in class while working on assignments to assist with focus, which is a helpful strategy for students with ADHD. Polishak did not allow Student A to use headphones and did not allow it for some time after the School principal advised him to do so.”

ALSO:

“In the 2023-2024 school year, Polishak generally used rigid classroom rules, which he rarely modified to support the individual needs of all learners in his classes. These rules negatively impacted some students more than others. Over one-third of the students in the School were Indigenous and many of them bussed to and from the School. Polishak’s rules included:

a. Students were required to value all of the class time by not being late. When a student had a history of lateness, Polishak sometimes refused to let the student enter the classroom. Polishak required late students to wait in the hallway for up to 15 minutes, which resulted in students missing more learning time and sometimes falling behind on in-class assignments.

b. Polishak required students to complete all assignments. He did not usually modify or adjust assignments to meet a student’s individual needs. Polishak imposed a “homework detention” on students who had not completed assignments, by which the assignment had to be completed under his supervision before or after school, at lunch or during the flex block.”

There is more to this decision.

Here is the decision in full:

Jonathon Tyler Polishak

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Reasonable Accommodations for “General Education”

This is a new education case that was posted on June 16th, 2026. This is from Alberta. While it is not binding in BC because it is from a different province, cases from other provinces are still influential and are used by human rights tribunal decision makers to help them interpret and apply human rights law to the case they have in front of them.

JF obo DF v Calgary Board of Education, 2026 AHRC 68

There are some paragraphs in this case that succinctly outline the duty to accommodate. As always I recommend people read the case in full. Lots of details in there about the specific circumstances of the case.

Duty to Accommodate

[26]      The starting point for an analysis of accommodation is found in Central Okanagan School District No. 23 v Renaud,[8] where the Supreme Court of Canada described accommodation as a “multi-party” process:

The search for accommodation is a multi-party inquiry. Along with the employer and the union, there is also a duty on the complainant to assist in securing an appropriate accommodation…

To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.

…

The other aspect of this duty is the obligation to accept reasonable accommodation… The complainant cannot expect a perfect solution.

[27]      The Alberta Court of Appeal stated in Callan v Suncor Inc.[9] that a complainant “is not entitled to dictate the accommodation he or she will accept” and that “[t]here is no duty of instant or perfect accommodation, only reasonable accommodation.”

[28]      As Chief Oviatt stated in RS obo CS v Edmonton School Division (RS)[10] in respect to the above decisions:

These decisions bear on the Complaint. The respondent had a duty to arrange the complainant’s learning environment in a way that he could meaningfully access general education. It also had a duty to reasonably accommodate his disabilities to the point of undue hardship. Undue hardship is a high threshold that places a significant obligation on the service provider. At the same time, all parties must participate and cooperate in the accommodation process. Ultimately, the respondent was best suited to determine how to reasonably accommodate the complainant in light of its operations, and the complainant’s parents had a duty to accept reasonable, not perfect, accommodation.

[30]      In RS, the parents raised complaints in respect to the provision of safe spaces, speech supports, and a one-on-one educational assistant, among other forms of requested accommodations; which are also issues raised in the Complaint. In RS, the Tribunal determined that:

The respondent was obliged to provide reasonable accommodation to the complainant to ensure he had access to general education, and it was entitled to inform its decision using all available information. The physician’s March 2022 medical recommendation was undoubtedly one piece of that information. So was the complainant’s behaviour at school and the respondent’s ability to meet the same objectives by using a classroom educational assistant who prioritized the complainant’s needs. The respondent was entitled to apply its expertise in education to determine a reasonable level of support.

[31]      Finally, in Moore, the Supreme Court of Canada emphasized that “a margin of deference is…owed to governments and administrators in implementing [education policy].”

[35]       There is no information in the records indicating the respondent has failed to provide the support indicated in the January 4, 2024, report to DF. Nor is there any information suggesting any available resources were withheld or that the respondent failed to reasonably accommodate DF considering its operations. Rather, the records include hundreds of pages of correspondence confirming accommodation steps being taken by the School, Student Support and Safety Plan documents from September and October 2024 setting out plans for how School staff will assist DF, and a Learning Plan from October 2024 derived from specialist recommendations.

[36]      In more general terms, it is not sufficient for a complainant to demonstrate that there is a program or treatment that would be beneficial that has not been provided by a school for the Tribunal to find that a respondent school board has violated the Act. This would run counter to the principle outlined in Moore that school boards should be provided some deference in how they meet their obligation to provide meaningful access to education.[13]

[37]      While it is clear from the materials that the complainant’s parents have been dissatisfied with the respondent’s accommodation efforts for some time, the record supports a robust, collaborative approach to accommodation that, although it could be argued was not perfect, reasonably accommodated the complainant to the point of undue hardship.  Prior to the Complaint being filed, and afterwards, hundreds of emails were exchanged between the parties, and many meetings held, to develop, implement, and adapt accommodation plans for DF.

[38]      Therefore, I find the Complaint has no reasonable prospect of success under section 4 of the Act.

*******

This complaint did not proceed to a hearing, and it was dismissed.

One of thing that I know is going to stick out to people reading this is “the respondent was best suited to determine how to reasonably accommodate the complainant in light of its operations, “

One thing to keep in mind is that resources must be distributed equitably. Whatever funding the government gets, and how they decide to organize their operations, are they doing so in an equitable manner?

Parents take Ministry to Court – Win for Equitable Education

[152]      The Charter guarantees equal access to education for all students; the corollary effect is that that the equitable principle must be applied in times of labour or resource shortages.  Here, what is apparent is that there was no consideration of how the reduced resources could be redistributed among all students.  It was assumed that minimal disruption to the system would result by targeting only a sub-set of students – those who use an EA. However, this approach failed to consider that non-disabled students might suffer the least amount of harm since they do not have the same disadvantages as the students with disabilities and could adapt to an at-home learning program more easily, i.e., some non-disabled students switch to at-home learning to free up more resources for complex-needs students, or some of them, to attend school in-person even with the EAs presently unavailable.

There is a zone.

Not getting access, barriersGetting Access “Reasonable Accommodation”Ideal Accommodation
Discrimination, cannot be justified.Having “a ramp” – barrier is removed, it doesn’t promise a certain level of demonstrated ability via grades, just access. An opportunity. Dismissed complaint if parents are expecting ideal and refuse to accept a reasonable accommodation.


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

[110] …. Not all negative experiences are discrimination. Even accepting that these incidents occurred, I did not hear evidence that could establish, on a balance of probabilities, that X’s disability was a factor in the conduct of the adults involved in these interactions.

[120] …..by reviewing the Diagnosis Report, developing an IEP, making various support people and strategies available that were incorporated into the classroom and outside, reviewing progress and changes, and adapting its approach in response……

Even if they can argue that their decisions aren’t discriminatory, you can still appeal a decision under Section 11 if you don’t agree with it and you think it is harming your child.

Not a single person has wide-sweeping rights under the Human Rights Code or the Charter. It is how your rights are defined, and that is defined in common law. Created by tribunal decisions and courts.

The duty to accommodate is our strongest form of advocacy, but there is a ceiling. It’s not unlimited. It can bring your child up to reasonable accommodations and barriers removed. It may not be the educational experience you wish for them. It doesn’t mean that your kids won’t experience negative experiences or that it won’t be hard. It doesn’t mean they wont experience harm from the education system as a whole.

We need to advocate through multiple pathways, have multiple teams of people in various roles and positions, all advocating for systemic changes. Laws need to be applied. It takes people and organizations to do that. Our education isn’t operating to the fullest it can in implementing human rights for children with disabilities. But it will only bring us up to “reasonable”. If we want our ideal, we need other forms of advocacy and relationship building to bring us the rest of the way.

Here are systemic blogs you may find interesting.


Advocating for Systemic Change
Complaints are the Ultimate Protest
Systemic Imperfection
Who does Society care about?
Why Can’t we Just Sue the Government?
Systemic Impacts of Scarcity in Education


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Disability – Related Adverse Impact (Dismissal Application)

School Employee Files Human Rights Complaint

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

Here are the two other cases:

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

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

Dismissal Application – School Employee

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

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

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

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

*******

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

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

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

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

*******

Four points to highlight

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

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

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

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

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

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

Discrimination Test

3 questions.

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

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

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

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Strong Advocacy = Written Authority

School staff have a lot of discretion and power in decision-making related to our children. Not just to their learning but to their socialization. This is given to them by the School Act, other collective agreements, and even human rights decisions uphold their expertise.

At the same time, many of them lack knowledge in education law to fulfil their duties lawfully, and they can easily overstep and make mistakes. This gap in knowledge and a call for more legal training for educators is even written about in education law textbooks. (Education Law in Canada: A Guide for Teachers and Administrators, 2nd Edition. Edited by David C. Young). This book even lacks sufficient knowledge on the Duty to Accommodate, which they admit. This book for 2025, the written content entered was capped at February 2024.

We know that the Human Rights Code supersedes teacher classroom autonomy, but many educators don’t. For some, it is quite the wake-up call when they find this out. Accommodations are required. They don’t get to decide not to provide them because of how they want to run their classroom.

Many of them don’t know the legal obligations around IEPs. They aren’t just words on a page. Many of them are not aware that they can have a Teachers Regulation Branch complaint filed against them if they don’t follow them.

Chances are, if you have read all of my blogs, you will know more about your child’s rights than they will. Which is really a failing for all involved. I don’t think it is fair for teachers to truly not understand what their legal responsibilities are, either. I would feel nervous in that role.

But first, before we dive in: What is written authority?

Written authority is law, policy or some kind of document. Something that is written and acts on behalf of other people, that has power, and people will use it as a decision-making tool. If school staff deny our requests, we always want to ask them something along the lines of: What is the written authority that supports your decision? Basically, says who? Where does it come from? People just can’t just make stuff up.

Staff may feel very confident when making statements. You would swear by their confidence that they are true. Not necessarily. And not that they are intentionally trying to mislead you. Although some people may flat-out lie to you. As I have experienced both.

When they tell us information, especially when it is related to a decision, always ask where that information comes from.

If they tell you that teachers are allowed to _______________________.

Then we can ask them to show us where the written authority is that states they are allowed to do that.

Basically, administrators are very good at spinning stories and making things look very professional. They may legitimately believe what they are saying. We want to cautiously accept what they are saying to us, and always question what they are telling us. We don’t accept vague assertions. How you want to frame your inquiry is up to you. Maybe as a sense of curiosity, and wanting to understand your rights. But you have every right to understand fully where they are coming from, and which written authority they are basing their information on. Sometimes they are correct in what they are telling us, but we also know that the Human Rights Code supersedes policy.

The topic of trust is a layered topic when it comes to education for families with kids with disabilities. We have been hurt over and over again. We know the district operates from a liability lens and they have many obligations connected to staff and the public that go beyond the best interest of our child. We want to believe that they know what they are talking about. But sometimes… honestly…. they just don’t. Or they don’t understand the whole picture.

So what is that zone of trust that we need to enter? Where we can bring ourselves to trust them enought to drop our kids off every day, but also not believe everything they say and be vigilant enough to not assume they are doing everything they can or should for our child?

Ask where that information comes from.

Because you have a lot of written authorities on your side too.

The strongest form of advocacy includes the following: strong documentation, evidence, and written authorities (using law, policy, and other documents created by the school). Follow official internal complaint/advocacy channels. When necessary, file external complaints.

Info to know!

Evidence of Harm
How to Gather Evidence
Email Writing for Schools

Depending on the issue that you are navigating, ground your advocacy in:

  1. Human Rights Law – Duty to Accommodate
  2. School Act & Section 11
  3. Teachers Standards
  4. Students rights
  5. Parents rights
  6. Ministry Policy and Orders
  7. School Board Policy & Administrative Procedures – will be posted on your district’s website
  8. Accessibility Legislation – your district will have its accessibility committee posted on the district website.
  9. Administrative Procedural Fairness (Ombudsperson BC)
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Instead of us just taking their word for it, we can ask them to explain

For example: You are telling me they have full autonomy to make discipline decisions. How is the teacher’s discipline decision in line with the Teachers Standard #1?

Or

How has the school’s approach to my child’s IEP development been in line with #4 & #5?

If they have to go in front of the tribunal at the BC Human Rights Tribunal, they will need to provide evidence that they are providing your child with reasonable accommodations. So why not show you this now?

No one anywhere in any profession can just operate in a way or say things that are not grounded in truth, ethics, evidence, or in line with laws and policies. Not nurses, pharmacists, counsellors, car mechanics, engineers, dentists, etc, etc, etc.

We don’t want fluffy conversations that they think they can just float past us and we just accept these without understanding what they are talking about. We don’t accept vague beliefs or opinions. If they are using words that you don’t understand, stop them and ask them to explain. If they state something, we want to know, where is this coming from? Show me.

As you advocate, you will get better and better. You will learn more and more. Your child is getting an education. So are you.

They aren’t breaking you. They are building you. You can take this pile of shit that you are dealing with and turn it into fertilizer.

This stuff isn’t easy. Take it inch by inch. We don’t move mountains in a day. Scream into a pillow and then get to work.

Ask for help!

Here is the school advocacy help directory. These people know their stuff, and they can help you. You don’t need to do this alone. For those who would like to consult with a lawyer, I recommend Kesari Law Corp.

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Self-Advocacy and Victim Blaming in Education

Self-Advocacy for Students in School

I have put this blog under my IEP category because this is a topic that parents deal with a lot during their IEP meetings. Teachers expect students to self-advocate during IEP meetings. Which can be really hard for kids, under that kind of pressure. They are also very eager to put self-advocacy into IEPs. I often wonder if they think this takes them off the hook, and they are less responsible for implementation. Even outside of IEP meetings, this topic of self-advocacy comes up a lot. The expectations are sometimes unrealistic, and they are creating new problems.

Self-advocacy isn’t easy, especially in an education setting, which is very authoritative, and kids are expected to fall in line.

Certain elements need to be in place to help nurture self-advocacy.

1. The student on some level needs to be accepting of their disability AND be willing to talk about it.

2. They have to be able to identify when they need help.

3. They need to identify what they need help with and have the language/a way to express it.

4. They need a trusted adult who has proved their willingness to listen to them over time.

5. They need to feel heard.

6. They need to feel that this trusted adult will believe them when they say they need help.

7. This needs to be repeated enough times and be predictable enough for the self-advocate to feel comfortable and safe to advocate for their needs.

School staff may say…..

Well _____________ happened, but if XXXX advocated for himself, this wouldn’t have happened.

The reality of the School Environment

Children, since they enter school, are socialized to believe they MUST follow authority, or something really bad is going to happen. They think they will be disappointing all the adults in their lives, and kids deep down just want to make their loved ones love them.

All they want to do is to make the adults (especially their parents but also their teachers) in their lives happy so that they will feel worthy and good about themselves. We need to look at their situation through the lens of a child.

Learning self-advocacy can take a lifetime. Adults have a hard time advocating. We need to have realistic expectations for our children. Especially when they are navigating an oppressive system, based on hierarchy and control. They live in this environment 5 days a week; we don’t. Many times, kids are expressing themselves and their needs, only to end up not being believed.

Children and teens need a safe adult to go to in schools. Someone that they know will help them when they need it. Finding that person and building that relationship can be key. If it’s not the teacher, could it be the counsellor, the case manager, the head teacher, the VP, or another teacher?

BC Human Rights Tribunal – Advocacy

We have a human rights decision on our side.

It’s easy for schools to make us think our kids share responsibility or are responsible for all of it.

Educators may have to be informed of how self-advocacy expectations have been defined by the BC Human Rights Tribunal. In Student by Parent v. School District BCHRT 237.

Remember the power of the Human Rights Code.

[90]           Generally, it is the obligation of the person seeking accommodation to bring forward the relevant facts: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. This can be challenging for children, and especially challenging for children with invisible disabilities. I agree with the Parent that children who require accommodation in their school are in a different situation than adults seeking accommodation. Though they have a role to play in the process, that role will be age and ability-specific, and the burden cannot be on a child to identify and bring forward the facts necessary for their accommodation.

We Learn. They Learn.

Advocacy will always be a part of your child’s life. There will never be a time when they will not be advocating for their own needs. Ask anyone with a disability, doesn’t matter their age, and they will still be advocating for their disability-related needs.

You are modelling what advocacy looks like. When they see you advocate, they learn from you how to do it, but they also learn that they are valued enough and that they are worth the effort. A lot of the advocacy that we do they will never know about. But we often reassure them that we are talking with the school and we are advocating for them.

My kids took notice of my efforts more than I realized. It teaches them to its okay to take up space. You are worth it.

I do have to say, it is very cool to watch your children self-advocate as they grow over the years and become adults. They are always watching and learning. Children have their own timing for things. My children grew into this at different times, and they are still growing as young adults. Of course. Self-advocacy skills never stop. They evolve and grow as we grow.

There are advocacy trainings you can take. Inclusion BC, Family Support Institute and the BC PAC have advertised for advocacy development workshops, along with disability specific orgnaizations, at various times of the year.

The name of the game is learning.

We learn. They learn.

Advocacy is Context Specific

As a self-advocate, I would say my advocacy is very context-specific. My approaches vary depending on who I am talking to, in what environment and situation I am in, and even my own capacity at that moment. I don’t have a memorized statement that I just play over on repeat in situations.

The environment of the education system is a very unique environment, and I tell people, this is a different kind of chess game you are in. It requires a specific skill set and a very specific process. Learning the “rules” of the game in education advocacy will help you greatly.

Internal School Advocacy
External Complaint Avenues
5 Rules on How to be Untouchable
Liability in Education
Understanding Systemic Change
The Duty to Accommodate

BC Human Rights Tribunal Complaint Process – The Blame Game

Do not be surprised that if you file a human rights complaint, the response from the lawyers will be blaming your child for not self-advocating, and that is why the school district is not responsible for their accommodations.

It is a common chess move they make. So, just a heads up.

They will also blame you.

However…..”Parental conduct or lack of parental authority cannot be used as a justification for not meeting an exceptional student’s needs“

We do have case decisions on our side, too – regarding fierce advocacy or lack of it.

We can have respectful conversations and advocate fiercely at the exact same time. It’s not one or the other. Both parties have the expectation to collaborate in good faith as part of the accommodation process. At the same time, our advocacy conduct cannot be used against our child to deny them an equitable education.

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L.B. v. Toronto District School Board, 2015 HRTO 1622

[77]        The Interim Decision sets out my reasons for issuing an order with respect to the first two points, as follows:

(a)      School boards have an obligation under the Code to accommodate their students with disabilities to the point of undue hardship, regardless of whether the students are receiving any medical treatment in the community or not;

(b)      School boards cannot order or demand of parents to place their children into residential psychiatric treatment programs and cannot deny or withhold accommodations to the point of undue hardship on the grounds that the student should be in such a program. While I have no evidence to show that this was the case here, that does not alter the principle;

(c)      School boards have an obligation under the Education Act to provide appropriate special education placements, programs and services to their exceptional students. Parental conduct or lack of parental authority cannot be used as a justification for not meeting an exceptional student’s needs; and

(d)      I agree with the decision in R.B. v. Keewatin-Patricia District School Board, (R.B./Keewatin) 2013 HRTO 1436, an HRTO decision cited by both parties in this case, at para 265, that a parent’s “fierce advocacy” for his or her child must not and cannot prevent a school board from accommodating the child’s needs to the point of undue hardship.

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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?
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  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.
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  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.
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  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.
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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/

Posted on

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/