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.
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.
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:
 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”.
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.
 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:
 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:
 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:
 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
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.
 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.
 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”).
 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)