BCEdAccess is a fully volunteer-run non-profit organization. We are a rights-based organization. Our mission is to ensure that all children with disabilities and diverse abilities have access to an equitable education. We do this by empowering, educating and supporting their parent(s)/guardians in advocating in the public education system. We have a parent(s)/guardian peer support group that has over 6,500 members. We provide information and support to families, as well as advocating for systemic change.
We are in a chronically underfunded school system. Resources are spread very thin. We will need human rights law now more than ever to ensure our children’s rights will be upheld and the education system will follow the law and provide our children with an equitable education. Our children have certain protections under the Human Rights Code. We can use these protections as part of our collaboration and advocacy with schools. I am witnessing that families who use rights-based language in their advocacy are experiencing higher rates of success.
The Human Rights Code is our most powerful form of advocacy as it supersedes all other laws, Ministry policy, school board policy, school district administrative procedures, and teacher classroom autonomy when in conflict with The Code. This blog is about these rights. I will warn you, this blog is long and doesn’t even include everything about education law and our child’s rights in general. This blog is specific to the duty to accommodate. We hope you use this information and return to this page as often as you need to read through it. Please use it as a launching pad for your own research and learning about human rights. For personal advice on your specific situation, please contact the BC Human Rights Clinic or Disability Alliance.
Let us begin.
Equitable education starts with the Moore case.
Moore v. British Columbia (Education), 2012 SCC 61
“The purpose of the School Act in British Columbia is to ensure that “all learners . . . develop their individual potential and . . . acquire the knowledge, skills and attitudes needed to contribute to a healthy, democratic and pluralistic society and a prosperous and sustainable economy”.
The “service” to which J is entitled under s. 8 of the B.C. Human Rights Code is education generally.”
From this human rights case decision, we know that kids with disabilities are entitled to a quality education, and this education is protected under Section 8, of the B.C Human Rights Code. The Human Rights Code, Section 8 is about discrimination in accommodation. Basically, a person cannot, without a reasonable justification, deny a person any accommodation, and they can’t discriminate. To be legally protected under The Code, you need a protected characteristic.
Your child’s accommodations are the priority and will be more important than any other law, policy, administrative procedure, code of conduct, disciplinary process (including suspension), exclusion policy, school rules, or classroom rules in the school system, etc. etc.
In the BC Human Rights Code, section 4, it states:
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CODE PREVAILS
4 If there is a conflict between this Code and any other enactment, this Code prevails.
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This means, teacher classroom autonomy, which some teachers will cite as a reason that they can uphold the decisions they make in the classroom, will not be upheld if discrimination is occurring. The Code supersedes teacher classroom autonomy.
So, if a teacher is denying a student with ADHD breaks for regulation (denying an accommodation), then Section 8 of the Human Rights Code will step in. A child doesn’t need an IEP or a designation to be entitled to accommodations
An Individual Education Plan (IEP) is not a suggestion. It, too, is backed by written authority.
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[70] However, the Ministry disagrees that just because IEPs do not require a parent’s signature the School District is not required to adhere to them. The Ministry says IEPs do have a legal effect and function, as there is a valid legislative and policy framework that provides both authority and guidance for IEPs.
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The legal test is the discrimination test. The discrimination test, comes from the Human Rights Code – human rights case law. The discrimination test will squash any Ministry or school policy. In Student (by Parent) v. School District 2023 BCHRT 237, the student had a diagnosis of Generalized Anxiety Disorder. At the time of the complaint, she did not have a designation or IEP. She was still protected under Section 8 of the Human Rights Code. The school had a duty to provide her with accommodations for her disability.
Lots of kids with ADHD don’t get designations or IEPs. They are still protected under The Code. The Moore case is what set out the discrimination test and defined accommodations as “a ramp” so that our children are legally entitled to an accessible education.
Family Status:
And something else really important to know. It’s not just your kids who are provided a service and protected under the Human Rights Code. You are also as their parent(s)/guardian protected under family status connected to education as a service. These two decisions mean you can file a human rights complaint on behalf of yourself, and the discrimination test will apply to you too!
Family Status Decisions
The Parent v. The School District, 2024 BCHRT 113
Independent School Authority v Parent, 2022 BCSC 570
Here is the discrimination test from the BC HRT website:
Leading cases: Test for discrimination
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“Moore v. BC (Education), 2012 SCC 61 To prove discrimination, a complainant has to prove that:
1. they have a characteristic protected by the Human Rights Code [Code];
2. they experienced an adverse impact with respect to an area protected by the Code; and
3. the protected characteristic was a factor in the adverse impact.
Once a complainant proves these three things, the respondent can defend itself by proving its conduct was justified. If the respondent proves its conduct was justified, then there is no discrimination. If the respondent’s conduct is not justified, discrimination will be found to occur (para. 33).”
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These 3 questions are asking us:
1. Does your child have a disability/other protected characteristic?
2. Did they experience harm?
3. Was the harm connected to their disability/protected characteristic?
The school district then has the opportunity to defend its decisions.
Here is the “bona fide” and reasonable justification test.
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“British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 at para. 20. Once a complainant proves that a protected characteristic was a factor in adverse treatment regarding a service, the respondent can defend itself by proving that it had a “bona fide and reasonable justification” for its behaviour. It has to show:
1. its behaviour was for a purpose or goal that is rationally connected to the function being performed;
2. it behaved in good faith; and
3. its behaviour was reasonably necessary to accomplish its purpose or goal, in the sense it cannot accommodate the complainant without undue hardship.”
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What does this actually mean?
1. Based on the goals of the education system their decision made sense. It was rational behaviour. (**Remember their goals are a quality education for all students. So, based on this goal, was their behaviour rational?)
2. The decision was in good faith. (honest)
3. The denial of the accommodation was necessary to accomplish the goal of the education service and if they provided the accommodation, it would create an undue hardship for the organization/business. (Eg. They financially couldn’t sustain themselves, or it would be too much of a financial burden.)
In human rights decisions, it is very common to see paragraphs like this before they explain their decision, reviewing the discrimination test.
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Mother obo Child v. Daycare, 2024 BCHRT 251
[24] To prove their complaint at a hearing, the Child will have to prove that he has a characteristic protected by the Code, he was adversely impacted in services, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If he does this, the burden would shift to the Daycare to justify the impact as a bona fide reasonable justification. If the impact is justified, there is no discrimination.
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Key word here is “impact”. This is important.
From the Human Rights Code, Section 2
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DISCRIMINATION AND INTENT
2 Discrimination in contravention of this Code does not require an intention to contravene this Code.
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It is clear, you don’t have to mean to discriminate, to discriminate. It’s not about the person’s intentions. It’s about the impact.
A key point here is that you need to prove to the school your child has a disability with documentation. This documentation will lock them into the duty to accommodate. However, and this is really important. Perceived disability is also protected under the Human Rights Code.
This case is from 1993 in BC.
Silzer v. Chaparral Industries (86) Inc., 1993 CanLII 16481 (BC HRT)
“54] In any event, it is well-established that the protection against discrimination on the basis of disability includes perceived disability: Hamlyn v. Cominco Ltd. (1989), 1989 CanLII 9050 (BC HRT), 11 C.H.R.R. D/333; Biggs v. Hudson (1988), 1988 CanLII 8918 (BC HRT), 9 C.H.R.R. D/5391 (B.C.H.R.C.). It is clear that Chaparral perceived Silzer’s health problems, singly or in combination, as a significant disability, possibly impeding his ability to work without endangering himself and others and entitling him to long-term disability benefits. I find that these facts come within the scope of “mental or physical disability.”
Even if your child is on a waitlist, it is really important to have that documentation that the school does perceive them to have a disaibility. You don’t need to wait for an assessment to be completed to receive accommodations.
Now let’s move into some common justification arguments from school districts.
Common Justification Arguments
1. Hindsight
If the school can say, they didn’t know. Then they are off the hook. For kids who mask, this is a big one.
Student (by Parent) v. School District, 2023 BCHRT 237
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[99] Next, in B v. School District, 2019 BCHRT 170, the evidence supported that the school district provided the child with the recommended supports and accommodations. The Tribunal found that it was “only with hindsight” that it was possible to say that the child could have benefited from more support: para. 81. It dismissed the complaint in part because there was insufficient evidence to demonstrate that the school district reasonably ought to have known that the child required more: para. 98.
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So, in order to stop the school from arguing this, we must communicate when our child is struggling (harm) and link it to their disability. Send in those emails. Then they cannot claim hindsight. It will also trigger meaningful inquiry. More on this below.
2. Reasonable accommodations
They can argue that the accommodations are reasonable. They don’t need to provide the ideal accommodations, just enough for your kid to equitably access their education.
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X by Y v. Board of Education of School District No. Z, 2024 BCHRT 72
[112] Accommodation requires a reasonable, not a perfect solution: Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970 [Renaud]. While there may have been other approaches available to the District, this does not necessarily render the one taken unreasonable. What is reasonable and what constitutes undue hardship is fact specific and will turn on the specific circumstances of a particular case: Renaud.
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Kids are legally entitled to accommodations that provide a ramp. It doesn’t mean it needs to be perfect, but the ramp can’t go halfway up the stairs or be at a 90-degree angle, making it impossible to use. If the reasonable accommodations are not working and causing harm, this is where we need to continually document the harm and show the school that the ramp they provided isn’t really a ramp, and the access to education isn’t actually happening.
3. Accommodation is a Process
Accommodation is a collaborative process. They can argue that they are trying in good faith and that they aren’t giving up. And the other side of the coin is that if they aren’t doing this, then we can use this case as advocacy.
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X by Y v. Board of Education of School District No. Z, 2024 BCHRT 72
[120] Ultimately, on a balance of probabilities, I am satisfied that the District discharged its duty to accommodate X in his grade 2 year by reviewing the Diagnosis Report, developing an IEP, making various support people and strategies available that were incorporated into the classroom and outside, reviewing progress and changes, and adapting its approach in response……
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The duty to accommodate is a collaborative, ongoing process that requires the participation of both parties to be engaged in good faith. The school was doing that by continually adapting their approach. So if they want to claim they are doing this, it means they can’t give up on your kid. This case is the written authority that will back up your arguments that they have to keep going and keep trying different accommodations. And since they have a duty to consult, and the duty to co-operate in good faith is already there, then as long as they are working, collaborating with you and consulting with you and they keep on trying, they may be able to argue successfully that this is part of the accommodation process.
4. Self-Advocacy
Many times, they blame the student for not advocating enough, and therefore, they didn’t know and can claim hindsight. I offer you this case.
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Student (by Parent) v. School District, 2023 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.
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It’s not on the child. It’s on the adults. We need to keep communicating via email so that they know that your child is struggling.
5. Parents are not facilitating the school’s decision
The School Act gives the school the authority to make the final decision regarding your child’s education. They have a duty to meaningfully consult with you (more on this later), but the final say is theirs. If parents don’t “facilitate” that decision, your human rights complaint may be dismissed.
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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.
[249] I find that, at all times, the school was complying with the terms of the Child’s IEP by providing him with, among other things, sensory breaks and one-on-one support from the School Counsellor. The challenges associated with the Child’s interactions with D, however, required a different approach. The Principal and other school employees attempted to work with the Parents to develop an approach that would take into account the Child’s needs. The parents were apprised of each incident, but this only seemed to elicit more conflict rather than constructive dialogue. The Principal and other school officials attempted to engage the parents in discussions about reducing conflict with D, and developing a safety strategy for the Child, but the parents refused to consider the solution. This was an unreasonable position, which failed to account for the fact that the District also had obligations towards D: McCreath v. Victoria Taxi (1987) Ltd., 2017 BCCA 342.
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6. Safety
Schools need to provide a safe environment for everyone. In this case we have a student who was “included physically aggressive behaviour towards other students an staff” and the tribunal is still looking at the school district to see if there was “anything else reasonable or practical to avoid the negative impact on the individual”.
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Student Y by Grandparent S v. Board of Education of School District No. X, 2024 BCHRT 353
[8] During kindergarten, Student Y was referred to the school’s inclusion support team due to her escalated behaviour, which the School District says included physically aggressive behaviour towards other students and staff, escaping, and verbally protesting classroom activities. At that time, the school designated Student Y as Category H: Intensive Behaviour/Severe Mental Health. The designation remained in place for the duration of Student Y’s attendance at the school. The materials before me do not further explain the meaning or consequences of this designation.
52] From the materials before me, I am satisfied that the School District was actively and intensively involved in attempting to accommodate Student Y’s disabilities from the time that Student Y was in grade one up until the time that she was excluded from school in grade three. However, the question before me on this application is whether the School District is reasonably certain to prove that it “could not have done anything else reasonable or practical to avoid the negative impact on the individual”: Moore at para. 49 [Emphasis mine]. In my view, there is a lack of information in the materials before me that would allow me to conclude that the School District is reasonably certain to do so.
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Please note that “anything else” is very open-ended and trying different placements that you may not agree with may still be viewed by the tribunal as part of the accommodation process and may fit the justification test. School districts need to balance the needs of staff and students AND still provide your child with an accessible education. This will be VERY context-specific and case-by-case. I suggest you reach out to an advocate at Inclusion BC or Family Support Institute if you need assistance with advocating.
7. We don’t have the money or staff
We all know the school system is chronically underfunded and struggling with staffing constraints. Legally, when resources are limited, they must be spread around equitably. When we think of the undue hardship test in terms of a financial hardship, this case is very important to keep in mind.
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Kerber v Alberta, 2025 ABKB 98
[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.
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The moral of this court story is that resources need to be spread around equitably among all the students. Not everyone is going to get the same size slice of the pizza. But each person should get the size of the pizza slice that they will need to fill their hunger. Some will need more. Some will need less. Equitable distribution.
Something to just keep in mind that has been pointed out in a human rights decision:
Not all negative experiences are discrimination.
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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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This is why, when there is a connection to the harm and our child’s disability, we are going to need to be very explicit about it in our email communication.
Duty To Accommodate
We are now entering the process of the duty to accommodate.
Do schools have a duty to inquire?
Yes! And it has been referred to as meaningful inquiry.
Meaningful Inquiry
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Student (by Parent) v. School District, 2023 BCHRT 237
[75] The “duty to inquire” is a human rights obligation which arises where the student is facing some adverse impact in their education – ie. discipline, poor grades, lack of meaningful access – and the school is aware, or ought reasonably to be aware, that a student’s disability may be a factor in that impact: eg. Martin v. Carter Chevrolet Oldsmobile, 2001 BCHRT 37 at para. 29; Aydogmus v. York University, 2021 HRTO 176 at para. 59. The purpose of this inquiry is to identify and remove disability-related barriers to a successful education, likely through the process of accommodation.
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So we have the school being aware of harm connected to a students disability, and the point of the “inquiry” is to identify AND remove barriers that are “disability-related” through the accommodation process.
This kicks off the accommodation process. We have our foot in the door by disclosing our child’s disability and identifying the school disability-related harm.
Also pointed out in this case, as by now we all know:
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[89] …………the respondent is not responsible to accommodate disability-related needs that it was not aware of or could not reasonably have been aware of.
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Something important to note here, too, is that when we are expressing our kids’ struggles:
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[96] On balance, I am not persuaded that the District’s response to the situation after April 24, 2019, was a reasonable one. The Parent had brought forward relevant facts of the Student’s diagnoses and the toll that school was taking on her. I do not accept that the onus was entirely on the Parent or Student to utter the magic word of “accommodation” before the school took steps to explore the reasons that the Student’s mental health was being so impacted by school. Nor do I accept that the simple fact that a 13-year-old child with anxiety says they are “fine” is enough to end a school’s obligations. At this point, the school had enough information to understand that something at school was adversely impacting the Student in connection with her disabilities, and it was in the best position to investigate the causes. If it felt it needed more information from the Parent or the Student, it could have and should have asked. Again, the goal is to ensure that the Student is afforded equitable access to an education.
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We don’t need to specifically say: Can my child have accommodations? The school should be identifying this and the school needs to ask us for more information so that they can do their job in giving our kids an equitable access to an education. Bottom line, they need to fulfill their obligations to the student as they are responsible for providing the service.
Ok, so now let’s move into meaningful inquiry and how this case locked in the duty to inquire in an education setting.
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[99] Next, in B v. School District, 2019 BCHRT 170, the evidence supported that the school district provided the child with the recommended supports and accommodations. The Tribunal found that it was “only with hindsight” that it was possible to say that the child could have benefited from more support: para. 81. It dismissed the complaint in part because there was insufficient evidence to demonstrate that the school district reasonably ought to have known that the child required more: para. 98. In contrast here, I have found that the District had sufficient information to trigger some kind of inquiry or response beyond asking the Student how she was doing and, assuming the counsellor did this, advising of available supports.
[100] In short, I agree with the District that the Parent and Student were obliged to bring forward information relating to accommodation. The Parent did that, when she communicated that the Student had anxiety and trichotillomania and that school was taking a significant toll on her physical and mental health. That information should have been enough to prompt a meaningful inquiry by the school to identify what was triggering the Student’s symptoms and what supports or accommodations may be appropriate to ensure she was able to meaningfully and equitably access her education. The failure to take that step was, in my view, not reasonable. As a result, the disability-related impacts on the Student, arising from conditions in her Language 10 class between April 24 and June 27, 2019, have not been justified and violate s. 8 of the Human Rights Code.
[104] In sum, I have found that the conditions in the Student’s grade 8 Language 10 class exacerbated the Student’s anxiety and trichotillomania, and that the District failed to take reasonable steps to investigate and address those conditions during the period between April 24, 2019, and June 27, 2019 (the last day of school). I find this is a violation of s. 8 of the Human Rights Code, and warrants a remedy, which I address below.
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It is on the school to INVESTIGATE and address the conditions.
They can’t just accept that they are witnessing students struggling. They need to be actively investigating to figure out what the barriers are (not parents’ responsibilities to identify these as we aren’t in school with our kids) it is them that need to investigate, figure out the barriers and address them.
We express disability-related harm that our kids are experiencing in school and we are now engaged in the duty to accommodate.
Kids are not responsible for bringing forward their own accommodation needs.
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[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.
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Meaningful Consultation
How the duty to consult (meaningful consultation) is defined in education came from a human rights case decision. For some people, they would really like meaningful consultation to be more defined, but it is going to be different for every student. One student may only need a 30-minute IEP meeting. Another student may need multiple IEP meetings. IEPs are also living documents that can be updated and adapted at any time of the year. You don’t need to wait for IEP season to come around in the fall to meet with the school team. Some schools have been sending out notices that say each parent gets a 30-minute IEP meeting. Or, they aren’t even getting a meeting. The staff are meeting and they are sending home the IEPs and getting parents to offer feedback on the already created IEP through email.
We all understand that schools are under constraints.
BUT. It doesn’t matter.
The human rights code prevails. And meaningful consultation is attached to human rights case law. Meaningful consultation will trump a 30-minute restriction on an IEP meeting. If you think that you haven’t been consulted on items and the IEP is incomplete or your child needs accommodations that they aren’t receiving, you have the Human Rights Code behind you. At the bare minimum, they need to consult with you. It needs to be “meaningful”.
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Duty to Consult
[342] The relevant statutory provisions with respect to a School District’s obligation to consult with parents and students are found in the School Act, and in particular, ss. 4 and 7.
[343] Section 4 of the School Act provides that: “A student is entitled to consult with a teacher, principal, vice principal or director of instruction with regard to that student’s educational program”.
[345] Section 7(2) affords the parent the right to consult with school staff regarding their child’s educational program:
A parent of a student of school age attending a school may, and at the request of a teacher, principal, vice principal or director of instruction must, consult with the teacher, principal, vice principal or director of instruction with respect to the student’s education.
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So, to start us off, we have the School Act. This is a law. The Ministry wants school districts to be consulting with students and parents.
Also, note that students are entitled to consultation too. So if they are receiving a suspension and your child didn’t get a chance to explain their side of the story before the decision was made, you can take this section of the School Act and request a meeting, or it can be part of the Section 11 appeal you file.
Continuing in the same case,
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[346] The Individual Education Plan Order and the Mandate for the School System adopted by B.C. Order-in-Council 1280 (August 30, 1989), also require that the parents of special needs students be afforded the opportunity to be consulted about the nature of their children’s education. Pursuant to s. 4 of the Individual Education Plan Order, school boards are required to consult with the parents of special-needs students about the content of the individual education plan for each student. It provides:
Where a board is required to provide an IEP for a student under this order, the board…must offer a parent of the student…the opportunity to be consulted about the preparation of the IEP.
[347] The Mandate for the School System reiterates that parents have the right and responsibility to participate in the process of determining the educational goals, policies and services provided for their children. Teachers have the responsibility to ensure that each student is provided with quality instruction, permitted to participate in all normal school activities and to monitor the behaviour and progress of each learner in accordance with provincial and local policies.
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So, where the School Act is a law, we have now moved on to orders by the Ministry. And this is all from the same human rights case that I listed above.
Now we get into the details of what all of this means. This is also from the same case.
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[361] It is possible to summarize some very general principles which inform or provide content to the duty to consult from the above cases.
1. Before any decision is made regarding the placement of a child within the school system and the persons who will have the responsibility to implement an IEP, the parents must be consulted.
2. The depth of consultation and the concomitant obligations for the parties to accommodate the requirements of the other will vary with the known need of a child’s requirement for a modified curriculum.
3. All necessary information in regard to either parties’ position on a proper placement and IEP must be provided in a timely way so that each will have an opportunity to express their interests and concerns and sufficient time to ensure that their representations are seriously considered and wherever possible demonstrably integrated into the proposed plan.
4. Each party to consultation has an obligation to provide timely information and an obligation to make whatever accommodations are necessary to effect an educational program which is in the best interests of the child.
5. In coming up with a placement and an IEP for a child with autism or Autism Spectrum Disorder, Dr. Foxx’s opinion as set out below should be regarded as the most significant underlying principle for meaningful consultation “the program will not work unless everybody sign on to it. And the reason they sign on to it is because it’s a program that makes absolute sense to all parties. It has to be designed as a win-win for everyone so that all the parties understand.”
6. The parents of a special needs child do not have a veto over placement or the IEP. Meaningful consultation does not require agreement by either side – it does require that the school district maintain the right to decide after meaningful consultation.
7. The bottom-line requirement for each side in a meaningful consultation is to be able to demonstrate that the proposal put forward can produce instructional control of the child.
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Lots of stuff from here. Parents don’t have the final decision-making say, but before a decision is made, parents must be consulted. There should be enough time given to ensure parents can express their concerns and for them to be considered. That time will vary depending on the needs of the student. The British Columbia Council of Administrators in Inclusive Education put out a whole guide on meaningful consultation.
So if you run into any issues with the school not consulting with you, you have this guide from the administrator organization, Ministry orders and school law and what trumps and enforces all of that is the duty to consult in this human rights decision. In theory, no one should be having consultation issues. In reality, we know this is not the case. We need to take what is a legal right, all of this written authority, and apply it.
Duty to Facilitate
The duty to accommodate is a collaborative process. The school district must consult with us and seriously consider our concerns, but the School Act gives them the power to make the final decision. Whether we like it or not.
Having hard conversations is still collaborating. Respectful disagreement is still collaborating.
Collaborating in good faith means you need to be honest, genuine, without trying to deceive, take advantage. It’s just really about having the best intentions from everyone when all engage in consultation, for the best interest of the child.
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.
“Fierce advocacy” is even supported in case law.
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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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So whether we fulfill our duty to work in collaboration with the school district the bottom line is that they are still required to meet an exceptional student’s needs. They cannot use our conduct against our child to not fulfill their duties to provide an equitable education.
However…..
Keeping that in mind, if we want to file a human rights complaint without at least giving their reasonable accommodation suggestions a chance, we will likely have our complaint dismissed. So our advocating or lack of can’t be held against our child, but if we don’t accept a reasonable accommodation, that can be.
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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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The running theme is this:
We need to continually document any harm we are witnessing and email our concerns to the school. We need to connect the harm to any disability-related needs.
While we do have the duty to facilitate a reasonable accommodation, if that reasonable accommodation doesn’t provide the ramp they think it will, they have the responsibility of continually adapting, reviewing and providing alternatives. They aren’t allowed to give up.
X by Y v. Board of Education of School District No. Z, 2024 BCHRT 72
[120] Ultimately, on a balance of probabilities, I am satisfied that the District discharged its duty to accommodate X in his grade 2 year by reviewing the Diagnosis Report, developing an IEP, making various support people and strategies available that were incorporated into the classroom and outside, reviewing progress and changes, and adapting its approach in response……
Summary
Rights-based language
Disability-related needs
Removing barriers
Adverse effect/harm
Accommodation
Collaborate in good faith
Equitable education
Power of the Human Rights Code
The Human Rights Code is very powerful. Our most powerful form of advocacy. It is the law above all laws. It supersedes all of other laws, Ministry policy, IEP policy, designation standards, administrative procedures, teacher autonomy, when in conflict.
Students don’t need a designation or an IEP to be protected by the Human Rights Code and get accommodations for their disability related needs.
ANYTIME the schools give you a reason for denying your child an accommodation, or are not protecting them from bullying, or they use policy in a way that you think is harmful to your child…. in steps the discrimination test.
Parents are protected too, and can file a complaint under family status and the discrimination test applies to them.
Discrimination Test
1. Does your kid have a disability?
2. Were they harmed
3. Is the harm linked to their disability?
Yes + Yes + Yes = Discrimination
Impact is the focus. The harm your child has experienced. Not intent. They don’t need to intend to discriminate in order for their actions to create discrimination.
The code protects students with disabilities and even perceived disability.
Reasonable Justification Test
Schools may be able to justify the reasonable accommodations your child is offered, or maybe not. It is going to be very context-specific to your situation.
The school will use arguments to justify their behaviour that could include hindsight, safety, collaborative process (they are trying in good faith – not lack of resource related), reasonable accommodation, lack of resources or staffing, blame your child for not self-advocating enough etc. Whether these arguments are grounded in any truth, that is another question. Just because they have arguments doesn’t mean they are strong arguments or that they have evidence to back up what they are saying. We aren’t the only ones who need evidence.
We need to always be communicating the harm that we are witnessing and how trelated to their disability.
Meaningful Inquiry
We need to disclose with documentation (ideally) to the school to protect our kids with the Human Rights Code and the Duty to Accommodate process.
Once the disclosure is communicated to the school, they are now locked in and required to provide our children with a quality, equitable access to an education.
We don’t need to use the word “accommodation” in order to trigger an investigation. We need to communicate that our child is struggling or experiencing harm due to “disability-related” needs.
The school has the responsibility to investigate, figure out what the barriers are, and address them.
The responsibility of bringing forward their accommodation needs does not fall on the shoulders of the student.
We need to keep communicating and telling the school the harm we are witnessing and are aware of, and how this is connected to their disability. That’s our job. That’s how we engage the duty to inquire (Meaningful inquiry) that will start off the duty to accommodate.
Emailing our concerns is creating that document trail that we need.
Duty-to-consult
You have lots of written authority to back up your right and your child’s right to be consulted on decisions that impact the quality and their participation in their education.
Parents don’t have the final decision-making say, but before a decision is made, parents must be consulted. There should be enough time given to ensure parents can express their concerns and for them to be considered. That time will vary depending on the needs of the student.
Duty-to-facilitate
Schools have the final decision, and if we don’t facilitate that then we can have our human rights complaint dismissed. We may be seen as unreasonable.
However, if their plans for reasonable accommodations don’t work, they have to keep on reviewing and adapting. They can’t give up. That will require us to keep collaboratively working with them, and documenting and communicating the harm.
Final Message:
As we are aware, our chronically underfunded education system resources are even more scarce over the years. We must remember that the district has the responsibility to spread resources equitably for all students. Rights-based advocacy is our most powerful form of advocacy. All children are entitled to a quality education. I suspect the need to lean into the Human Rights Code to uphold our children’s rights under the law will become more necessary this school year and following school years still to come. We are simply expecting the education system to follow the law.
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