Tag: #School

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The Damage Period

Anytime someone is being sued or has a human rights complaint against them, they are always looking to minimize the damage period. They don’t want to pay for your harm for 2 years, when they can only be legally responsible for 6 months.

Common sense, reality and law don’t always match up. These are legal tests. Law tries to put a box around a human experience.

Depending on the legal issue, there are different ways to minimize the damage period.

I took a defamation workshop (notes here), and I found it to be very interesting. I learned about how, if/when, and how you apologize can impact how much you could potentially be on the hook for paying them. For example, let’s say you go on social media and say some horrible shit about someone. You accuse them of being involved in criminal activity, etc. blah blah blah. A week later, you apologize genuinely, take it all back, and try to repair their reputation. You explain you were angry, you made it all up, etc. The apology acts as a time stamp. It legally stops the clock. Your damage period may only be 7 days. But if you apologize after 2 months and the damage has already been done….they have lost business because of what you have said about them. Well, now your costs are going to be much higher.

This is an important concept in human rights complaints for schools, because I have noticed they are always trying to limit their damage period.

This can be good for us.

If they know you have a human rights complaint submitted, they are going to want to “fix it”. Not because they are emotionally motivated, but more financially motivated to do it. They know they are now going to have to justify their actions and provide evidence of accommodation, potentially, to a tribunal. They are going to want to shrink their damage period by providing your child with accommodations. The more concerned they are about you taking your case to a hearing, the more of a commitment to undoing the harm you are going to get.

This is one of the reasons telling them you have filed a human rights complaint before you find out if it’s been accepted or not can be a form of advocacy for your child.

Some people may disagree with me, but in my experience, a human rights complaint offered my child a level of protection. They got the support they needed, and they were protected by retaliation protections in The Code. Depends on what you are dealing with; fast tracking may make the most sense. Sometimes, having a human rights complaint hang over the district, lasting for years, may be the exact thing that you need to keep your kid safe.

If you don’t notice any changes within the next few months after letting the district know you have filed a complaint, they may genuinely feel that they are accommodating your child up to the point of undue hardship and their decisions are justifiable. Doesn’t mean that they are correct.

Lawyers and districts are always thinking of how to reduce their costs, and they will assess how “cost-risky” you are. They have a lot of parents threatening all sorts of things at them. Reality is, not many parents follow through. So if you are a parent who actually files external complaints, you are now sticking out from the crowd.

My suggestion to anyone is to be thoughtful when filing complaints. Don’t rush into it. Be aware of time limits. With the BC HRT and filing a human rights complaint, you have a year. These can be part of your toolbox. For example, if you are considering filing a Teacher’s Regulation Branch, the Ministry wants you to speak with the superintendent first. That can be useful. You may not even need to file the complaint. Start by using human rights language in your advocacy emails and escalate as needed.

I had no idea how much strategizing was involved in advocacy when I first started out. I have learned A LOT.

Your pen can be your sword.

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The Use of Delay

One of the most powerful oppression tools that people use to make someone go away is DELAY.

Creating delay, ongoing, constantly extending, makes people give up like nothing else because they start to feel hopeless that anything will ever be resolved.

So…..They go away feeling tired and defeated.

Delay is like a magic wand. It sucks the life out of people. And they KNOW it.

Even outside of education and other various government systems that are dealing with people’s complaints, they systematically and strategically delay people. They make “mistakes” that extend time. Things get lost or misplaced. Filed incorrectly. People are “confused” and use that as a delay tactic. Technology problems. It is incredible how much this is used. All Intention. I have seen forms being intentionally altered to re-route a complaint to an inappropriate department. Delays work especially well for them on the most vulnerable people. Many, many times, these “mistakes” are not innocent. But most of the time, it’s so difficult to prove intent, which makes it such a powerful strategy.

Delay works like magic for them.

If you are in a position of advocacy, get ready. You will 100% be dealing with this.

You will see a variety of delay tactics. Even ones that seem positive, they can turn them into delays. The duty to consult can be used as a delay tactic, and it takes friggen forever to organize the consultation, and it just goes on and on. Multiple issues with the consultation process just keep happening. An investigation can be a delay tactic. Extending the investigation for a variety of reasons that make it look like they are doing a good job. Dealy. Waiting for you to lose interest in the outcome. It appears that things are being done.

On a systemic level, not funding systems to manage the high volume leads to delay. People will self-select themselves out of systems, wondering if their complaint is worth it or not. It alters the data and shows a decreased need.

When you are advocating, they will not respond to emails. When they do, they will tell you that they will respond next week, and then don’t. They will ask for extensions due to schedule conflicts.

The skill in the delay tactic is to make it look reasonable. How can you complain? If you do, you are the one who looks unreasonable.

Keep your eye out for delay tactics. Keep a log. Dates. What they did. Being able to connect the dots and pull everything together may be very useful one day.

So how do we combat delay? We need to be pleasantly persistent.

Sometimes you just have to ride the wave. Just be aware of what is happening. Document. You’ll learn patience like no other.

But know this. They are delaying things for a reason. The delay has a purpose. You have hit a nerve. You are onto something. They are nervous.

To Do:

  1. GO UP THE CHAIN: When you email them, give them a timeline. If you don’t get a response, go up the chain and include other people or organizations. You literally need to be politely up their butt. They need to see you and hear you. The most stubborn and patient people will most likely be successful in dealing with delay strategies.

Remember: Access delayed is access denied.

Not making a decision is still making a decision.

Being ignored is communication. Silence can be a form of violence.

If you were to give the system a human form, it would be a narcissistic person using coercive control tactics on you.

Here is a page on how to deal when schools are ignoring you.

2. FILE COMPLAINTS. A Section 11 complaint can help speed up the process, as there is a 45 day time limit. External complaints can be a way to hold them accountable. But be prepared, external complaint systems are long. There are ways to fast-track your complaint. But filing a complaint or letting them know that you will be doing so can speed up their sense of urgency. You may need to give them a reason for them want to resolve this ASAP.

3. CREATE & COMMUNICATE EVIDENCE. Document the harm and communicate the harm to the school. It will put add pressure. Especially if they think a human rights complaint could be coming down the line. They will want to limit their damage period.

4. BRING SUPPORT. By bringing in an education support person to witness all the goings-on and them knowing an extra set of eyes on them can help reduce the delay tactics. Also hiring a lawyer has kicked a district into response mode. You don’t need to hire a lawyer thought, an extra set of eyes can do the trick. Here is my education advocacy help directory.

“If you think you are too small to make a difference, you haven’t spent the night with a mosquito.” African proverb quoted by the Dalai Lama

“The most common way people give up their power is by thinking they don’t have any.” – Alice Walker

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District discretion – outside recommendations – denial reasonable

This case is from Manitoba. Cases in other provinces aren’t binding, but still influential and are used nationally in human rights complaints across Canada. We absolutely need to be aware of them.

This is a case to be known.

This parent lost her human rights complaint and filed a judicial review. She lost that as well and has had to pay costs. Paying costs is not something that you risk when filing a human rights complaint, but something you do risk when you file a judicial review. This is thousands of dollars, possibly $20,000 in BC. (Please consult with a lawyer if you are filing a judicial review.)

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

[1]         Maxine Wells (Ms. Wells or the applicant) is a tireless advocate for her son who had learning disability challenges as a student in the Border Land School Division (the Division).  Ms. Wells was in regular contact with his teachers, school administration and Division personnel[1] regarding his learning challenges and how they should be addressed.  Often, there were disagreements about his needs and how they should be addressed.  Several times, Ms. Wells retained independent specialists to assess her son’s learning disabilities and provide recommendations on how to accommodate those learning disabilities in the school setting.  Ms. Wells says that the Division was often dismissive of the recommendations of these specialists.  This became increasingly frustrating for her as she wanted to ensure her son had the best possible outcome in an education framework that did not, from her perspective, appear to be giving him the opportunity to succeed.  She says that ultimately, her son did not achieve the level of learning he could have had the Division followed the recommendations of the specialists as she urged them to do.

[8]         The thrust of Ms. Wells’ application is that she disagrees with the Division’s assessments of her son’s needs and the accommodation measures implemented which, in her opinion, were often not aligned with those of outside clinicians.  More specifically, she submitted that:

  • the Division did not accept assessments provided by experts;

    (etc.)

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The conclusion is interesting as the tribunal saw the teachers as the experts to dismiss the outside experts. I think everything in the paragraph below is interesting. This is how the tribunal views the education staff and the power they support.

We have a case in BC where a parent’s human rights complaint continued partly because outside recommendations were not considered. However, here is a tribunal hearing decision which is different than the legal test for a dismissal.

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[29]      After considering all the evidence in relation to the Complaint, the Investigator concluded that the Board offered reasonable accommodation:

… the evidentiary record suggests that the school provided him with extensive supports, adaptations and programming based on the medical documentation it received, and its own observations of [her] son.  The evidence shows that the school often already had supports in place that met or addressed some recommendations in new reports it received.  While it may not have been able to implement every individual recommendation immediately or at all time, the school made a concerted effort to update and follow the son’s educational plan as per the extensive and changing recommendation made by numerous different clinicians and healthcare professionals through the son’s schooling.  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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This is where a lot of parents can get confused about the IEP process. The schools have a duty to meaningfully consult with you. But the FINAL decision always rests with the school. Not you. You are not an equal partner. There doesn’t need to be a consensus. They don’t need you to agree.

They need to be able to justify their decision-making and provide with evidence that they are providing “reasonable accommodations” up to the point of undue hardship.

Recommendations from professionals are just that, recommendations. This tribunal has asserted that it’s up to the teachers (the district) which recommendations to implement and when. They still need to be able to justify it as reasonable. As removing a barrier and providing “a ramp”, a reasonable ramp. And they will need to provide EVIDENCE to the tribunal that they have done this.

The school districts being aware that they need to provide evidence of reasonable accommodations is why they are aware and concerned about their damage period, when they find out you have filed or are considering filing a complaint.

An important part of the duty to accommodate process isn’t just the discrimination test. The other side of the coin is the reasonable justification test.

The tribunal has repeatedly put the professional responsibility in the hands of education staff to be the ones to figure out how to remove the barriers for disabled students so their education is accessible. Ok then, so do it.

Always remember, they have the responsibility of investigating and figuring out what the barriers are and creating a plan to remove them. Meaningful inquiry.

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

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[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……

[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.

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As always, I am so thankful for the transparency of these cases being public for us to all learn from and be aware, so we can be knowledgeable advocates.

As always, I recommend you read the case in full.

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Settlements

At any time, a settlement can occur during the human rights process. The BC HRT website also states that you can request a mediation meeting at any time.

Some people file a human rights complaint and then, soon after, send a demand letter. Sometimes, if you tell the school that you filed a human rights complaint, they try and make things right. They offer support in exchange for a withdrawal. Which, hey, if your kid gets what they need, success! If the supports leave in the future, file another complaint. Ride it out. Make the complaint last, as they may provide support to limit their damage period. They know they will have to be prepared to provide evidence that they are providing reasonable accommodations.

At any time, you can send a settlement offer through email, titled “Without prejudice” at the top. Doesn’t matter where you are in the process. You can search on the internet for examples of settlement offers, but really, it doesn’t need to be anything fancy. There are many pages on the BC Human Rights Tribunal Website to read about settlement.

At the beginning of your complaint process, once it’s been accepted, the tribunal will automatically set up a mediation meeting with a mediator. If both parties have legal representation, they are encouraged to do it on their own. But mediation meetings do sometimes fail, and settlement can still occur after.

A lot of settlements happen a couple of weeks before a hearing. This is quite typical, and if you follow hearings on the HRT website, a lot of them drop off before the actual hearing date. At the last case conference before the hearing, the tribunal will encourage both parties to try again with a mediator and organize the mediation meeting.

Some people settle days before a hearing. Settlement can even occur during a hearing. Quite a sizeable chunk of people settle after a hearing and everyone’s cards have been shown.

At some point during the process, parents are sometimes approached by the respondents and asked, what do you feel your child needs in order to be successful? They look at offering them another opportunity to come back to school with more support. This may be appealing to you and mitigate the harm your child has already experienced.

If you are fighting for a monetary settlement amount, the amount you are fighting for is for your kid. This is money that will be held in trust until they are 19. You and/or they can access this money for them. For speech therapy, or counselling, etc. If they want something, and if you agree, they can request portions of it for something they want/need. If you can get your kid back into school with the support they need to be successful, this is also a benefit to them. Getting them the support they need can be way more valuable than any dollar amount you could end up with for them.

I just encourage parents to be open to various ways of obtaining a benefit for their child and other children. Policies can come out of settlements, changes in practice, etc. For most parents, the whole point of filing a human rights complaint is for their child. You can be creative. BUT, I highly suggest you consider getting something of a monetary amount. Even a couple of thousand dollars can go towards counselling, which may be very helpful. Some of the creative resolutions won’t be held up by a court if they don’t fulfill their commitment, but a monetary amount will be.

There have been cases where they have tried to wiggle out of the creative mediation agreements, or given the bare minimum, but still legally fit the terms of the agreement. That’s why I say, if you get at least some monetary amount, you have something. Then you can always file another complaint if the issue is persistent.

If you want a hearing instead of a settlement, I get it. I certainly won’t be the person to try and talk you out of it.

As always, I encourage you to seek legal advice when going through a settlement and having a lawyer review your settlement agreement.

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“It’s how your rights are DEFINED”

Law is fluid, and it changes. It can be bendy and a brick wall, all at the same time. Fun eh?

We always need to keep pushing the line. We do this when we take our cases in front of the tribunal.

Now parents can file a human rights complaint against their child’s school district on behalf of themselves. That wasn’t always the case. Some cases stated education was not a public service to parents, but only to their child. That has changed. Now parents can file a family status complaint. We push by bringing in new evidence and arguing in new ways with other new case law that create stepping stones.

I remember being in a Human Rights Law class, and the professor, who has a PhD in Law stated that people think they have these broad protections under the Charter, but it’s how your rights are DEFINED under the Charter. (Fabulous teacher, by the way. I loved all of her classes. She was phenomenal.)

Disabled students’ rights defined under the Charter by the Supreme Court of Canada are that being in a separate class in school is a reasonable accommodation and could be in the best interest of the child, regardless of what their parents think. I’ll talk more about this below.

The term “reasonable accommodations” is the ceiling and the walls in human rights. Discrimination can also be acceptable if it can be justified. There is a justification test. Even in the Charter there is Section 1.

Q: So, how do we know when our child is being offered reasonable accommodations?

A: It is when the barriers are removed of a disability-related need.

This is going to be very specific to your child. Even kids with the same disability diagnosis are not the same. This is why advocacy will always be part of a disabled person’s life.

From what we know so far….how do we know if discrimination has occurred?

It is not about grades. Just because your child is not at a certain grade level does not mean they are automatically being discriminated against, and they haven’t had the barriers removed.

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

[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.

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It is not about whether outside recommendations have been accepted or not.

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

[29]      After considering all the evidence in relation to the Complaint, the Investigator concluded that the Board offered reasonable accommodation:

… the evidentiary record suggests that the school provided him with extensive supports, adaptations and programming based on the medical documentation it received, and its own observations of [her] son.  The evidence shows that the school often already had supports in place that met or addressed some recommendations in new reports it received.  While it may not have been able to implement every individual recommendation immediately or at all time, the school made a concerted effort to update and follow the son’s educational plan as per the extensive and changing recommendation made by numerous different clinicians and healthcare professionals through the son’s schooling.  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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It is not about classroom placement. Segregated classrooms are considered a reasonable accommodation. They look at the “best interest of the child,” not what the court feels parents believe is the best interest.

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Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 SCR 241

76                              The Tribunal, therefore, balanced the various educational interests of Emily Eaton, taking into account her special needs, and concluded that the best possible placement was in the special class.  It is important to note that the placement proposed was in a class located in a regular school where  “the special class is integrated with the regular classes through morning circle and a buddy system which may include hand-over-hand art activities, music, reading, outings such as walks and recess, special activities like assemblies, mini olympics, interactive games, including rolling balls and playing catch” according to the testimony of the teacher of the class in which the Board proposed to place Emily.  In addition, the Tribunal alluded to the requirement of ongoing assessment of Emily’s best interests so that any changes in her needs could be reflected in the placement.  Finally, the Tribunal stated:

. . . our decision in favour of a special class placement does not relieve the school board and the parents of the obligation to collaborate creatively in a continuing effort to meet her present and future needs.  Emily’s is so unusual a case that unusual responses may well be necessary for her.  Such achievements can only be realized through cooperation, and most important, compromise.

It seems incongruous that a decision reached after such an approach could be considered a burden or a disadvantage imposed on a child.

79                              In my view, the application of a test designed to secure what is in the best interests of the child will best achieve that objective if the test is unencumbered by a presumption.  The operation of a presumption tends to render proceedings more technical and adversarial.  Moreover, there is a risk that in some circumstances, the decision may be made by default rather than on the merits as to what is in the best interests of the child.  I would also question the view that a presumption as to the best interests of a child is a constitutional imperative when the presumption can be automatically displaced by the decision of the child’s parents.  Such a result runs counter to decisions of this Court that the parents’ view of their child’s best interests is not dispositive of the question.  See E. (Mrs.) v. Eve, 1986 CanLII 36 (SCC), [1986] 2 S.C.R. 388; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, 1995 CanLII 115 (SCC), [1995] 1 S.C.R. 315.

80                              I conclude that the placement of Emily which was confirmed by the Tribunal did not constitute the imposition of a burden or disadvantage nor did it constitute the withholding of a benefit or advantage from the child.  Neither the Tribunal’s order nor its reasoning can be construed as a violation of s. 15.  The approach that the Tribunal took is one that is authorized by the general language of s. 8(3) of the Act.  I have concluded that the approach conforms with s. 15(1) of the Charter.  In the circumstances, it is unnecessary and undesirable to consider whether the general language of s. 8(3) or the Regulations would authorize some other approach which might violate s. 15(1).

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It is not about whether a child is experiencing a negative experience. The harm needs to be connected to a disability-related need.

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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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If you don’t agree, it doesn’t automatically mean it is discrimination. If parents don’t facilitate decisions that are “reasonable,” their human rights complaint can be dismissed.

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

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

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

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Reasonable accommodations are about removing barriers. Providing your child “access to their education”. Parents want to pull their hair out, wondering what on earth that means. The thing is, it is so case-by-case specific that policies and human rights law can’t be too prescriptive. What meaningful consultation isn’t going to mean the same thing for each child? Maybe 30 minutes is enough for one kid, but three hours of meetings will be needed for someone else. I know there is a desire to have everything be so exact, but people aren’t like that. We can’t put our kids in boxes. What is reasonable is going to be completely dependent on the disability needs of your child.

We need to remember, like it or not, we are co-parenting with the government, and the school has the final decision-making power over our child’s education. They have to meaningfully consult with us, but even if we don’t agree, they make the final decisions. We can also file complaints if we don’t agree and appeal. We do have avenues. I know this is so frustrating. Especially when we feel we are dealing with education staff who know less about disability than we do.

We need to be able to communicate our child’s disability-related needs in terms of removing barriers. This is rights-based language. Just a little side note. Certainly, not all parents are like this, but there are some parents who are incredibly frustrated that the school isn’t making the features of their kids’ disability disappear. Schools can’t remove your child’s disability, but they can provide an environment that allows them to become the best version of themselves that they can be. There is a difference between the school’s legal responsibility for offering reasonable accommodations to remove barriers and performing an exorcism on your child to remove their disability.

The law changes. As immovable as it seems, it is movable. It takes people bringing their cases to be interpreted in front of decision makers. However, when we decide if we want to take our cases to a hearing, we need to understand where the walls are so we know what we are going to need to argue and what kind of evidence they are seeking.

Understanding where the walls are can also help with our advocacy strategies and what we need to be communicating in emails. Or, can also help us to make decisions about whether to pull our kids from public school altogether.

There is a lot of human rights case law across this country, and as much as I love to find it and read it, I cannot say that I have read everything. Please know that doing your own research and consulting with lawyers may be important for your own advocacy work.

Every child with a disability or perceived disability is protected under the Human Rights Code. Schools are legally entitled to provide children with an equitable education free of discrimination. Even if the school tells you, your child’s needs aren’t “needy enough” for support. Using the discrimination test can be a powerful way to advocate for your child. The other side of the coin is the reasonable justification test, and what the law considers to be “reasonable accommodations” being offered. The more knowledgeable we are and the more understanding of the Duty to Accommodate, the more we can feel confident in advocating for our kids.

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When Should I File my Human Rights Compliant?

The BC HRT has a ONE YEAR limitation to file a complaint

People often wonder when they should file their human rights complaint. Especially when they are dealing with issues that have been happening for a long time.

Sometimes it is a big event that occurs. If it’s only about that one event, then you would have one year to file.

However, when things are murkier.

We don’t want to kill a fly with a house. It’s good to escalate your advocacy in incremental steps. You do want to give people a chance to resolve the issue and see if there is any way for it to be resolved collaboratively. Your child is going to be in school for a long time. Building relationships is important. However, at what point does it become enough? At what point do you feel like nothing is going to change?

Many parents feel like they are a hamster on a wheel. Filing an external complaint can be what gets you off.

If you are advocating alone and it’s not going well, I suggest you reach out to Inclusion BC or Family Support Institute for help. At this time, you may also want to consult with the BC Human Rights Clinic or Disability Alliance. There are also advocacy coaches who can help you with emails and communication with the school.

A lot of the time it comes down to what you are willing to tolerate and when you have had enough.

Some people wish they filed a human rights complaint earlier. The harm has been going on for so long. They wonder if they filed years ago, how much discrimination could have been avoided.

You can apply to fast-track your complaint if harm is continuing.

Human rights complaints need to be about what has taken place in the last year. So, if you have issues that go beyond the one year, they may file a timeliness dismissal application and you will need to justify that these issues are a continuing convention of The Code.

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A HR Decision for School Employees

There is so much to learn about human rights law when we read decisions.

This decision is not an education case, but it is 100% relevant for school employees filing complaints for disability.

There are people who have gone through the human rights tribunal system and have left quite frustrated. Their experience didn’t pass the legal test of discrimination. Their experience could have been horrible, unfair, and wrong. The tribunal isn’t making a moral compass decision or an unfair wrongness decision. They are the ones who decide if discrimination has occurred. The complaint needs to pass the legal test for discrimination which includes analyzing the accommodation PROCESS.

There is so much to learn from this case. I am going to highlight the learnings that stick out to me, but as usual, I encourage everyone to read the case in full.

Worker A v. Fraser Health Authority, 2025 BCHRT 250

[3]               There is significant evidence to support that Worker A’s mental health was negatively affected by her work during the pandemic, with terrible consequences for her and her family. However, respectfully, the evidence could not support a finding that Fraser Health discriminated against Worker A. This is because Worker A has not identified any disability-related adverse treatment or impacts in her employment. This is necessary to trigger any corresponding duties by Fraser Health to inquire about and/or accommodate her disability-related needs. Even if those duties were triggered, Fraser Health is reasonably certain to prove that it gave Worker A an opportunity to identify any disability-related needs and she did not do so. In those circumstances, its duties in the accommodation process did not arise.  The complaint is dismissed.

[48]           To trigger the protection of the Code, Worker A is required to point to disability-related adverse treatment or adverse impact in her employment. Here I emphasise that the “adverse impacts” must arise in the complainant’s employment and not in their life generally. Adverse impacts in employment include, for example, termination, discipline, differential treatment, or working conditions that unfairly exclude a person from completing work they are otherwise able to do: Hydro-Québec at para. 14.

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Key Takeaways from these two paragraphs”

  • People MUST disclose their disability-related needs.
  • Adverse impacts have to be connected to their employment and not their life generally.

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[49]           Without more, an employee is not adversely impacted in their employment when they are assigned work or subject to management oversight. I agree with Fraser Health that “employers have the fundamental right to manage the workplace and make operational decisions they see fit, subject only to certain legal obligations”: Kondolay v. Pyrotek Aerospace Ltd, 2020 BCHRT 208 at para. 125. Employees may not agree with those decisions, and they may be bad ones that make an employee’s work harder or less efficient. However, absent some negative treatment or job-related consequence for an employee, they are not matters for this Tribunal.

[55]           As I have said, the duty to inquire is triggered when an employer is contemplating action that will negatively affect an employee in their employment (i.e. discipline) and has some reason to believe that the underlying behaviour may be related to disability: Gardiner v. Ministry of Attorney General, 2003 BCHRT 41 at para. 162. In that circumstance, they are required to inquire about the reasons underlying the behaviour. This is intended to put an employee on notice and give them the opportunity to bring forward information that could support an accommodation: Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970. As with any obligation under human rights law, perfection is not the standard.

[58]           In my view, Fraser Health is reasonably certain to prove that it fulfilled any duty to inquire when it gave Worker A the opportunity, in the October 20 meeting, to explain why she was not completing certain work. Worker A was accompanied in that meeting by a union representative. To the extent the next stage may have been disciplinary (which is purely speculative), Worker A had the chance to explain that she could not complete the work for disability-related reasons. Leaving aside the prospect of discipline, this was also an opportunity for Worker A to tell the Manager that she had a disability and needed accommodation. This information would have triggered Fraser Health’s obligations in the accommodation process: Renaud. However, there is no evidence that, at any point before her long-term medical leave, Worker A told the employer that she had a disability or that she required accommodation. In this circumstance, Fraser Health is reasonably certain to prove that its duties in the accommodation process were not triggered, and so any disability-related adverse impacts were justified.

[60] …….

Mr. Vanderveen’s argument that he asked for accommodation by telling Heritage that he was receiving too much work is not persuasive. Many employees may ask their employers to relieve their workload, and such requests may be warranted and entirely reasonable. However, the term “accommodation” is a term of art in human rights law. It refers specifically to the process of removing barriers in employment that relate to personal characteristics protected by the Code – in this case, disability. According to Mr. Vanderveen’s own evidence, he did not tell Heritage that the reason he needed relief was related to his disabilities. As such, the request to relieve his workload could not properly constitute a request for accommodation. [para. 38]

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That is very interesting.

“accommodation” is a term of art in human rights law.”

“the process of removing barriers in employment that relate to personal characteristics protected by the Code – in this case, disability.”

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[63]           This is a sad case. There is a lot of evidence that Worker A took great pride in her work, and her life has been completely altered since her mental health declined in 2020 for reasons related to her working conditions at that time. However, the evidence could not support a finding that Fraser Health discriminated against Worker A in her employment. Her human rights complaint is dismissed.

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This case is similar to an education case that I think is really important for staff to be aware of. Stress and anxiety caused by your workplace is not a disability protected by the Code. The blog by the Human Rights Clinic explains this well.

Stress, Anxiety and the Duty to Accommodate

“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.” The Tribunal also said that “workplace stress resulting from an employer investigating alleged performance problems, or from a problematic relationship with a supervisor, is not alone sufficient to constitute a disability for Code purposes.”

The takeaway: by failing to provide her employer with proof of a mental disability, Ms. Matheson was unable to establish that she had a mental health condition beyond “the commonly experienced emotion” of stress. Therefore, the employer did not have a duty to accommodate her.”

These decisions are so helpful for the rest of us. They really are gifts of learning, and because of these decisions, people can learn what they need to do to navigate the duty to accommodate process and decide if filing a human rights complaint is an option for them.

  • We need to disclose disability-related needs to trigger the duty to inquire

If you don’t want to disclose your disability to your workplace, cool. That is your right to not do so. Just don’t file a human rights complaint.

  • Be prepared to provide documentation of your disability from a professional.

For more information on the Duty to Accommodate, here are some important topics to be aware of.

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Is There a Financial Risk to Filing a Human Rights Complaint?

Filing a Human Rights Complaint is not the same as “suing” someone. When people say they are going to sue someone, they are talking about the civil litigation route. There are various types of courts, like small claims courts and tribunals. The Civil Resolution Tribunal is an example.

“You can bring many civil law disputes for amounts from $5,001 to $35,000 to the BC Provincial Court’s small claims court” – Provincial Court of BC

You don’t need to pay a fee to file a human rights complaint. The Human Rights Tribunal is an administrative body and is court-like, known as “quasi-judicial body”. It is a legal process, and so you are entering an adversarial legal process. You and the school district lawyers aren’t buddies working together to suss out the truth. Every move they make is going to be in the best interest of their clients. (Hint: look for the win-win for both of you)

In a civil process, you risk having to pay the legal fees of the person you filed against if you lose. But in the Human Rights Tribunal process, you don’t take that risk.

On the BC HRT’s website page, they state this:

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Costs in court cases

In court, “costs” has a special meaning. Costs are about the costs of going to court.

In court, the losing side usually pays “costs” to the winning side. The “costs” are usually a part of the winning side’s actual costs.

Costs of going to the Human Rights Tribunal

Unlike in court, parties at the Tribunal pay their own costs. The Tribunal does not order the losing side to pay “costs” to the winning side.

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Does a Human Rights Complaint Cost Anything?

If you are self-represented, the Human Rights Tribunal process can be a free process if you aren’t paying lawyers’ fees. If you do retain a lawyer for the full process of your human rights complaint, it is risky. Lawyers’ fees add up VERY quickly and human rights settlements tend to be low. So you could possibly come out with nothing or even be in the hole. You don’t want to have to pay more money than what you get back. Seeking a pro bono lawyer or getting legal advice at various parts of the way (either paid or through the Human Rights Clinic) and being self-represented can keep your costs low or down to absolutely nothing.)

BUT….

And this is a big BUT, so all eyes on this.

You may have to pay costs IF the respondents file an improper conduct complaint against you and apply for costs, or they can also ask that your human rights complaint be dismissed. They are going to want to frustrate you to the point that you lose your shit, and they hope you start attacking them personally and call them names. If you do this, they have got you. They also like to generally do these things in hopes that you will tire. For some people, it just pisses them off even more, and it puts gas in their gas tank to keep going at the injustice of it all. They just don’t know which group you belong to, and so they will test you to figure it out.

Getting you to lose your shit is an EASY way out for them.

Don’t take the bait.

Here is an example:

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Miremadi v. Fairmont Hotel Vancouver (No. 2), 2023 BCHRT 53

[3]               The Respondent applies to dismiss the Complaint under s. 27(1)(d)(ii) of the Human Rights Code [Code]. The Respondent says that Mr. Miremadi has communicated inappropriately with the Respondent’s legal counsel throughout the proceeding, and that in these circumstances, it would not further the purposes of the Code to proceed with the Complaint. The Respondent says that Mr. Miremadi has repeatedly sent rude, derogatory, and demeaning emails to Respondent’s counsel, targeting her personally, and that in some instances, inappropriate personal comments have been based on her race or ethnicity. The Respondent also says Mr. Miremadi has made serious and baseless allegations against Respondent’s counsel, and has refused to follow the Tribunal’s process and directions to address an issue related to disclosure of documents. If the Tribunal dismisses the Complaint, the Respondent also asks that Mr. Miremadi pay the Respondent $1,000 in costs for improper conduct.

[16]           On April 16, 2020, Respondent’s counsel wrote to the Tribunal to advise that Mr. Miremadi had sent her emails referring to her as an “asshole”, “dirtbag”, and “scumbag”, and telling her to “go to hell”. She attached copies of Mr. Miremadi’s correspondence, and referred to Rule 7(7). She requested that the Tribunal dismiss the Complaint, or at least restrict Mr. Miremadi’s continued involvement in the matter, due to the rude and vulgar language he used.  

199]      Overall, the information before me suggests that any costs award may pose financial hardship for Mr. Miremadi. I considered this factor along with the seriousness of his conduct and the impact on the integrity of the Tribunal’s process. I find that in the circumstances, where Mr. Miremadi’s conduct has led to dismissal of his Complaint, one of (if not the) most significant consequence for a complainant at the Tribunal, an award of costs is not necessary for deterrence in the circumstances.

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There is a lot more to this case, and I suggest you read it in full. There is also a long list of leading cases on the BC HRT on improper conduct applications as well.

Lawyers will often intentionally put the wrong dates in emails, or send confusing emails seeking your response for clarification, report technical difficulties in receiving your files, ignore your emails, consistently ask for extensions, all to make you engage with them in hopes to get information and test how you communicate with them, or in hopes you will get frustrated and blow up at them. They are consistently interested in measuring your emotional capacity. It’s all information to them.

The good thing is, is that you can file an improper conduct on THEM as well.

You will want to read the important info page on this that is posted on the BC HRT website.

Here is a section from that page:

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Improper conduct is conduct that harms the process or the parties.

Conduct can be improper even if the party did not mean to harm the process or the parties.

Usually, the Tribunal will not order costs for minor problems.

Minor problem example:A party files a document late. Usually, this isn’t enough to order costs.

Examples of conduct that may be improper and result in a costs order:

  • Treating people in the process badly
    • Being rude or sarcastic during a hearing
    • Badmouthing other parties or Tribunal staff or members
    • Threatening other parties or Tribunal staff or members
    • Being disrespectful to other parties or Tribunal staff or members
  • Harming the hearing process
    • Destroying evidence
    • Lying to the Tribunal when giving evidence
  • Causing unnecessary cost or delay
    • Refusing to follow a Tribunal order
    • Saying you’ll attend the hearing then not showing up, with no excuse
    • Waiting until the hearing to say that the Tribunal doesn’t have power to deal with the complaint

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So, before you send emails to the lawyers, take a breather. Know that everything they do and do not do is strategic, and keep your eyes on them. Their strategy is information for you, too!

Collect and keep everything from them, and if you feel that what they are doing might meet the test for improper conduct, it might be something you wish to consider.

The BC HRT needs to know and be aware of what these lawyers are doing. As self-representative individuals, it already feels unfair that we are up against lawyers in a legal arena. It should at least be procedurally fair.

If nothing else, you can shine a light on what you have been dealing with. There is value in that!

Not everyone is going to be dealing with ruthless lawyers. Some of them are very focused on ending complaints and are solution-focused for a settlement, wanting as little disruption and lawyer fees costs for their clients as possible. This is when win-win solutions, early on, are very possible, and improper conduct complaints aren’t even on the radar.

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Compensation Amount

Getting compensation for your child who was harmed, is one of the reasons parents file complaints. Certainly not the only reason. There are lots of ways that your child can benefit beyond compensation. However, for this blog let us focus on the monetary benefits.

Historically, education cases have always been low in terms of what the tribunal has awarded. I have seen some cases that were quite surprising to me how much an adult got for not being able to bring a stroller into a store or having an appointment cancelled. Here we are talking about children and the impacts on them that could last a lifetime, and children don’t seem to be compensated enough. It seems a little off to me. This is an area that I think needs attention, but in this case, Student (by Parent) v. School District, 2023 BCHRT 237, there is some hope.

It was $5,000 for serious harm from the dates April 24 and June 27, 2019.

$5,000 for 64 days. AND this was only for one class out of 8 classes that took place every other day. Previously before this it was $4,000 and $10,000 that spanned years.

Previous cases, older cases, were Moore and Jubran. These were the only other public education cases for which complainants were awarded amounts that I am aware of in BC.

BC Human Rights Clinic has an awards chart that shows how much compensation has been given. This document was updated on April 3rd, 2025

The Moore case: Compensation for injury to dignity, feelings, and self-respect was for $10,000 for a time period that was years.

Jubran v. Board of Trustees, 2002 BCHRT 10: Compensation for injury to dignity, feelings, and self-respect was $4,000. This was for years of bullying and harassment.

These cases are older. The tribunals’ compensation amounts have been increasing, which they have acknowledged.

When it comes to an amount, it is important to note:

Spielberger v. Sofo Kitchens Ltd., 2025 BCHRT 1

160]      I start by noting that the Tribunal is not bound by its past decisions regarding how much compensation it orders for injury to dignity. However, I will keep Gardner in mind. I will also keep in mind that Gardner is ten years old, and that the value of the award in it must be viewed considering inflation.

[161]      In deciding an appropriate amount of compensation, I am guided by the factors considered in Gichuru v. The Law Society of British Columbia (No. 9) 2011 BCHRT 185, which include the time and nature of the discrimination, the period and frequency of the discrimination, any vulnerability of the complainant, the impact of the discrimination upon the complainant, and the totality of the relationship between the complainant and respondent: at para. 260; upheld in 2014 BCCA 396.

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Settlement will go into a Trust Account

It is also important to note that the money you get for your child will need to go into a trust account. This trust account will be managed until they are 19 years old by a government trust organization. If you get money from a hearing, it too will need to go into a trust account that you will need to manage until they are 19 years old. You can take money out before they are 19 years old; it just needs to be logged and recorded what was spent on the child.

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More than just Compensation

When you go into a mediation meeting, you can ask for certain things that you would never get out of a decision from the tribunal.

What does your kid need? What supports do you want for them at school?

Do you want policy? Do you want the schools to change an administrative procedure? What other kind of systemic changes do you think are important?

There are things beyond just compensation that may be very helpful for your child and your community.

Mediation Meetings

Mediation meetings are a cost-risk analysis. They are trying to determine how expensive they think you are going to be and what the chances are of you succeeding.

Be prepared. Write it out in terms of what you feel is fair based on the criteria above. It sounds horrible, but you are going to need to articulate the level of harm. You may find this uncomfortable or maybe liberating, but if you hold back, you may be compensated less because of it. As usual, the more evidence you have to support this, the better of a position you will be in. Schools assess everything in terms of risk management and liability.

Settlements are typically higher than what you will get at a hearing. The closer you get to a hearing than if you settle early on, the amount tends to increase as well. It just means that you need to be prepared and do the work for a hearing, just in case. You can also hire a lawyer to assist you in just the mediation part.

There are a lot of reasons people file human rights complaints.

  • People want change – advocacy reasons
  • They want their harm acknowledged
  • They want certain things to happen that they can get from a settlement
  • They want to ensure the schools are providing reasonable accommodations, and filing a human rights complaint forces schools to consider the damage period.
  • They want the discrimination to stop, and for schools not to do this to anyone else or at least think twice before they do.
  • They are pissed off and need to do something, anything, but have what their child experienced just swept under the rug

Lots of good reasons.

Compensation is one of those reasons, too. Most people I know want a specific amount because of the acknowledgment piece, or they want their kids to have counselling/tutoring or other services to undue the harm that has occurred. They feel their kids are owed a repair. Rightly so.

I highly suggest you do your research and look at other decisions and what was awarded to people. It will give you a good idea of the range to expect. Also, what arguments were used to justify why it was high or why it was lower. Looking at decisions when the lawyers offer a with prejudice offer and people reject them, can be interesting and eye-opening.

Here are instructions on how to look up case law. Or you can just go to the awards chart that the BC Human Rights Clinic on their website in the resource section, and they link the cases in the chart too! Very helpful.

For more information on the mediation meeting process, BC Human Rights Tribunal has this mediation policy page.

Family Status – Filing a Complaint for YOU

You are representing your child in a human rights complaint. This is not a family human rights complaint. If you want to be compensated for your lost days of work, and/or emotional harm than you will need to file a separate complaint for yourself under family status.

For more detailed information on this click here.

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Post-Secondary Human Rights Complaint, Settlement Offer

This is a case that involves a nursing student at a post-secondary institution.

Student D v. Selkirk College, 2025 BCHRT 178

[2]               Student D was a student in the Bachelor of Nursing program at Selkirk College. She alleges the College discriminated against her in the area of services on the grounds of mental and physical disability contrary to s.8 of the Code. She says the College failed to reasonably accommodate her disabilities which negatively affected her academic performance, and she ultimately withdrew from the program.

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This is a dismissal application, but it’s a specific type of dismissal application. The respondents offered her a settlement offer that can be disclosed to the tribunal. It is called a “with prejudice” offer.

If you offer a settlement offer to the respondents and you don’t want it to be disclosed to the tribunal, you need to write “without prejudice” at the top of your email/offer.

If you turn down a with prejudice offer, the respondents can file a dismissal application that ultimately forces you to accept the offer. The only way to not accept it is to convince the tribunal that your case is worthy of the time and resources of the tribunal for a hearing, as it will benefit the public interest and potentially make case law advancements. Or you can just not accept it and walk away with nothing.

This case can also give you ideas on what kinds of things you can ask for in a mediation meeting.

This is an important case to read for young adults in post-secondary.

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[7]               Student D has achondroplasia, generalized anxiety disorder, and auditory processing disorder. In September 2017, she started a four-year Bachelor of Nursing program at the College. Student D says that between April 28, 2020, and July 14, 2020, during the practicum portion of her program, she made requests for accommodation to her instructors and school administrators who failed to provide her the requested accommodations. Student D withdrew from her program on September 21, 2020.

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This is what she was offered, which she turned down. She felt the amount was too low. And so now the tribunal has to make a decision about allowing it to continue to a hearing or not. Respondents cannot file this kind of dismissal if the hearing is within the next 4 months.

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[9]               On February 3, 2025, the College made a with prejudice offer to settle the complaint on the following terms:

a.    The amount of $20,000 for injury to dignity, feelings, and self-respect.

b.    The amount of $24,394.30 for lost wages, less statutory deductions, representing a delay to potential graduation from the Bachelor of Nursing program by one year, less her average annual earnings as a care aide and educational assistant, and less a 30% contingency to account for the potential non-graduation from the program.

c.     The College will provide Student D with a letter of regret acknowledging the distress she experienced in the program.

d.    The College will provide a revised transcript replacing any “fail”, “no credit granted” or “partial credit granted” notations with a “withdrawal” notation. The College will also provide a transfer letter endorsing Student D as a candidate for any nursing programs in other post-secondary institutions.

e.    The College will commit to reviewing its Accessibility Services for Students program and making any updates it deems necessary.

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The tribunal dismissed her human rights complaint and allowed her to accept the offer she originally rejected, if she wanted it. You can read more about how they analyzed the appropriate settlement amount in the case. I haven’t pulled any of that out for this blog. Fighting this type of dismissal is low risk because you can always accept the same offer, even if you lose the dismissal application. Sometimes these are posted publicly, and some dismissal applications are private. But this is also a great way to get a public record of your case.

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[10]           The offer remains open for acceptance notwithstanding the filing of the application to dismiss the complaint. The offer will expire two weeks following the Tribunal’s decision on the application to dismiss.

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And the decision from the tribunal is….

👇👇👇

[47]           The Tribunal routinely hears and decides cases that concern disability accommodation in educational settings, and I am not persuaded that the circumstances of the present case engage broader public policy issues that warrant proceeding in the face of a reasonable settlement offer. Further, considerable resources of the parties and the Tribunal would be required for a hearing of this matter. The Tribunal encourages parties to resolve their disputes in good faith on a voluntary basis. The College’s settlement offer contains terms that the Tribunal cannot order at a hearing, such as issuing a letter of regret, providing a revised transcript, and the transfer letter. The College’s offer also includes terms to ensure the discrimination does not occur again by reviewing its accessibility policies and training its faculty. Under the circumstances, I find that allowing this complaint to proceed would not further the purposes of the Code.