Understanding The Duty To Accommodate

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This page is intended to address the legal principle of the DUTY TO ACCOMMODATE.

The duty to accommodate applies only to needs that are based on one of the following protected characteristics under the BC Human rights code:

Indigenous identity, race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or class of persons.

There is a duty to accommodate by public service providers, to avoid a negative effect based on a personal characteristic.

Equity matters, too. For example, providing the same thing to all students may have a negative effect on a student with disabilities, who needs accommodations to recieve their human right to equitable access to education.

These negative effects are, or may be, discrimination.

Discrimination in accommodation, service and facility
8   (1)A person must not, without a bona fide and reasonable justification,
(a)deny to a person or class of persons any accommodation, service or facility customarily available to the public, or
(b)discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public
because of the Indigenous identity, race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or class of persons.
(2)A person does not contravene this section by discriminating
(a)on the basis of sex, if the discrimination relates to the maintenance of public decency or to the determination of premiums or benefits under contracts of life or health insurance, or
(b)on the basis of physical or mental disability or age, if the discrimination relates to the determination of premiums or benefits under contracts of life or health insurance.

BC Human Rights Code section (8)

The BC Human Rights Code outlines the Duty To Accommodate in Section 8 (above). There are also layers under the umbrella of the duty to accommodate. There is a process that must be completed in order to obtain those accommodations. Since, this site is focused on disability rights and education, we’ll be discussing disability as the example.

First, the service provider must have proof that someone is disabled.

From the Human Rights Clinic Blog, Stress, Anxiety and the Duty to Accommodate, they explain…

“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.”

Here is Ms. Matheson’s case.

Which now leads us to the Duty to Inquire

Basically, schools may be expected in some situations to do more – if they notice a student is struggling, to communicate with parents/guardians, and describe what supports they can offer.

Accommodating Students with Disabilities
The purpose of the duty to accommodate is to remove the barriers produced by or resulted from students’ disability and to place the student on a level playing field with all other students.
However, the institution may have a duty to inquire in some situations. For example, with a student who does not have an accommodation letter from Disability Service and who appears to be struggling with their studies, the instructor has a duty to inquire and provide information on the supports and services their institution offers. Another example could be if a student is showing unusual behaviours, the instructor needs to talk to the student about their actions and let them know about the resources the institution has available for students.

Justice Institute of BC course on students with disabilities

Here is a link to more information on the Duty to Inquire.

Duty to Consult

A great case that outlines the duty to consult by schools/school districts is the Hewko v. B.C., 2006 BCSC 1638 (CanLII)

There are many useful details in this case; here are a couple that speak to regarding the duty to consult – these statements are from the legal analysis of the case by the BC Supreme Court. They include:

A reminder about Sections 4 and 7 of the School Act:

[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”.

[344]      Section 7(1) of the Act provides that:

A parent of a student of school age attending a school is entitled

            (a)      to be informed, in accordance with the orders of the minister, of the student’s attendance, behaviour and progress in school,

            (b)      on request, to the school plan for the school and the accountability contract of the school district, and

           (c)        to belong to a parent’s advisory council established under section 8.

[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.

A reminder about the IEP Order:

[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.

And a reminder about the Mandate of the BC education system as a whole:

[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.

This summary section speaks to the duty to consult and meaningful consultation as a whole and can be very helpful in your advocacy:

[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.

Duty to Co-operate

It is often said that accommodation is a two-way street. This means that the accommodation process requires co-operation and collaboration from both sides. An employee, for example, who requests accommodation in the workplace must also cooperate in the process of fining the appropriate accommodation. .
The person requesting accommodation has obligations under the duty to accommodate. This is often called the duty to co-operate in the accommodation process. This means that the search for accommodation is an ongoing process and both parties must participate in this process in good faith, reasonably and be open and ready to seriously consider different ideas and suggestions.
This is often referred to as the “accommodation dialogue”, meaning that there is often a lot of back and forth between the parties before a reasonable accommodation may be found and applied.
For example, an employee with a disability has the obligation to disclose enough information about the disability to permit the employer to determine the appropriate accommodation. The employee should also assist in the identification and implementation of the appropriate accommodation.
If the employer proposes a reasonable course of action for the employee to try and fulfill the accommodation request, the employee has a duty to participate to the extent necessary.
A good discussion of the duty to accommodate as a multi party inquiry, including the duty to co-operate, can be found in Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC).

Human Rights Legal Support Centre, Understanding The Duty To Accommodate

Duty to Facilitate Implementation

We (as parents/guardians) have a “Duty to facilitate implementation” under the duty to cooperate. Here is a case law example:

257] I find that the respondent took reasonable steps to deal with Grayson’s dysregulation in a timely manner and that the Loop of School plan was part of this. Further, I find that the Loop of School plan was a reasonable accommodation.

[258] The only person who did not agree with the plan was Ms. Kahn. Her reasons for disagreeing at the time appeared to relate to the fact that Grayson’s time at school would be too short before she would be required to pick him up. However, since the plan depended on starting Grayson out successfully in short but increasing increments, and the plan was supported by all involved in developing it, including Ms. Kahn’s private BCBA and her contact at Kerry’s Place, I find that there was no reasonable basis for Ms. Kahn’s rejection of the Loop of School plan.

[259] An applicant, who in this case is represented by his mother, has an obligation to co-operate in accommodation process, which includes a “duty to facilitate the implementation” of a proposal for accommodation that is reasonable. See Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC) (Renaud); YB v. Conseil des ecoles publiques de l’Est de L’Ontario, 2017 HRTO 492; Fisher v. York University, 2011 HRTO 1229 (“Fisher”).

[260] In rejecting the Loop of School plan, Ms. Kahn failed in her obligation to co-operate in the accommodation process. In so finding, I note that parents do not have the right to dictate the accommodations which their children will be provided with to access education. While parents do have the right to provide input as part of the accommodation process – which Ms. Kahn did in this case – they must accept reasonable accommodations offered by the school board. See UM v. York Region District School Board, 2017 HRTO 1718; Fisher.

To read the whole decision click Kahn v. Upper Grand District School Board, 2019 HRTO 1137 (CanLII)