Child (by Parents) v. Surrey School District No. 36, 2025 BCHRT 85
Date Issued: April 4, 2025
File(s): CS-001550
Indexed as: Child (by Parents) v. Surrey School District No. 36, 2025 BCHRT 85
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Child (by Parents)
COMPLAINANT
AND:
Board of Education of School District No. 36 (Surrey)
and the School Principal
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Sections 27(1)(c), 27(1)(d)(ii), and 27(1)(g)
Tribunal Member: Robin Dean
Counsel for the Complainant: Spencer A. Sloane
Counsel for the Respondents: Sari A. Wiens
I INTRODUCTION
[1] On December 12, 2019, the Parents filed a complaint on behalf of their minor child against the Board of Education of School District No. 36 (Surrey) and the Child’s school principal alleging that the School Board and the School Principal discriminated against the Child based on mental and physical disabilities contrary to s. 8 of the Human Rights Code .
[2] Generally, the complaint alleges that the Respondents failed to provide the Child with meaningful and safe access to education. Particularly, the complaint sets out five allegations that the Respondents:
a. failed to incorporate medically recommended accommodations into the Child’s Individual Education Plan [ IEP ] in 2019 [ IEP Allegation ];
b. failed to consult the Parents in 2018 in formulating the Child’s IEP [ Consultation Allegation ];
c. discontinued specialist support for the Child in 2017 [ Specialist Support Allegation ];
d. failed to provide the Child with reasonable accommodation to assist them with managing their disabilities [ Accommodation Allegation ]; and
e. disciplined the Child in a way that put them at medical risk as a result of their disabilities [ Discipline Allegation ].
[3] In this decision, I first consider the Child’s application to limit publication of information that could identify them in connection with this complaint. The Respondents did not object, and I grant the orders sought.
[4] I next consider the scope of the complaint, considering the Respondents’ arguments that the complaint is unparticularized and that the response to the application to dismiss unfairly adds new allegations. After considering these arguments, I determine that the complaint and the response to the application to dismiss contain particulars, which are properly before the Tribunal.
[5] The remainder of these reasons deal with the Respondents’ application to dismiss the complaint under s. 27(1)(c), s. 27(1)(d)(ii), and s. 27(1)(g) of the Code . The Respondents deny discriminating and submit that the allegations against them have no reasonable prospect of success. They say that the Discipline Allegation should not proceed against the School Principal because they were acting at all times within the scope of their employment. Finally, the Respondents argue that the Consultation and Specialist Support Allegations are out of time and should not proceed on that basis.
[6] Therefore, in these reasons, I must decide the following issues:
a. whether proceeding with the complaint against the School Principal would not further the purposes of the Code ;
b. whether the Consultation Allegation and Specialist Support Allegation are part of an alleged continuing contravention, and if not, whether I should nonetheless exercise my discretion to accept them; and
c. whether there is no reasonable prospect the IEP Allegation, the Accommodation Allegation, and the Discipline Allegation will succeed.
[7] For the following reasons, I grant the application to dismiss the Consultation and Specialist Support Allegations because they are out of time. I dismiss the Accommodation Allegation and the Discipline Allegation because they have no reasonable prospect of success. I do not dismiss the IEP Allegation. Because I dismiss the complaint against the School Principal as an individual respondent, this aspect of the complaint will proceed against the School Board alone.
II PRELIMINARY MATTER – APPLICATION TO LIMIT PUBLICATION
[8] The Child applies to limit publication of information that could identify them in connection with this complaint. Specifically, they seek:
a. That their name, the names of their parents and family, and the name of the school where the alleged discriminatory conduct occurred be anonymized;
b. that any reasons or directives of the Tribunal available to the public in these proceedings refer to individuals by initials in a manner that does not identify them; and
c. that any information that would identify the individuals or school involved in this dispute not form part of the public record.
[9] The Respondents agree that limiting publication is appropriate in this case. The Respondents wrote to the Tribunal in October 2021 to confirm their agreement and to indicate that they would be filing their own application to expand the scope of the limitation on publication; however, the Tribunal never received the application materials from the Respondents.
[10] Complaints at the Tribunal are presumptively public: Mother A obo Child B v. School District C , 2015 BCHRT 64 at para. 7. The Tribunal has discretion to limit publication of identifying information where a person can show their privacy interests outweigh the public interest in full access to the Tribunal’s proceedings: Tribunal Rules of Practice and Procedure [Rules], Rule 5(6); Stein v. British Columbia (Human Rights Tribunal) , 2020 BCSC 70 at para. 64(a). Rule 5(7) sets out the presumption that a minor’s privacy interests outweigh the public interest in accessing the Tribunal’s proceedings.
[11] Following that presumption, I grant the application to limit the publication of information that would identify the Child, and I order that the names of the Child, their parents, their sibling, the school, and the School Principal be anonymized to keep the Child’s identity confidential. As a result, in these reasons, I refer to the Complainant as the Child, their parents as the Parents, the school they attended at the time of the incidents at issue in this complaint as the School, and the school principal as the School Principal.
[12] In terms of the public record, the Child did not make submissions on this aspect of the application. To the extent that I understand the Child to be asking for anonymization of the complaint file that could be made available to the public, I order that prior to releasing any document relating to this complaint to any member of the public, the Tribunal will redact or otherwise anonymize the names of the Child, the Parents, the Child’s sibling, the School, and the School Principal. I trust this captures what the Child has applied for in limiting publication.
III PRELIMINARY ISSUE – SCOPE OF THE COMPLAINT
[13] The Respondents raise preliminary issues which affect the scope of the complaint. In their dismissal application, the Respondents say that some of the allegations in the complaint suffer from a lack of particulars. The Child’s response to the application to dismiss contains new details, which were not included in their complaint. The Respondents characterize these new details as new allegations, which they say are not properly before the Tribunal.
[14] I find that the response to the application to dismiss contains particulars, which are proper, not new allegations, which I agree could not properly be considered a part of the complaint without a successful application to amend.
[15] A complainant who wants to amend their complaint during an outstanding application to dismiss must apply to do so: Tribunal Rules of Practice and Procedure , Rule 24(4)(b). The purpose of this rule is to ensure that a respondent who files an application to dismiss a complaint does not face a moving target: Pausch v. School District No. 34 and othe rs, 2008 BCHRT 154 at paras. 28-29. Respondents are entitled to know the allegations against them to assess whether, or on what basis, to bring their application to dismiss the complaint: Purdy v. Douglas College and others , 2016 BCHRT 117 at paras. 35-37.
[16] At the same time, the Tribunal’s complaint forms are not the equivalent of pleadings in a civil litigation process: White v. Nanaimo Daily News Group Inc. and Klaholz , 2004 BCHRT 350 at para. 23. It is not uncommon, or a violation of the Rules , for a complainant to add particulars of their allegations in response to an application to dismiss. The distinction between particulars and new allegations was set out in Powell v. Morton , 2005 BCHRT 282 at para. 20:
… I must consider whether the amendment contains, on the one hand, further details of the facts on which the complainant intends to rely, or whether, on the other, it constitutes an expansion of the allegations made against the respondents. If the former, it will constitute particulars; if the latter, an amendment. This determination is not to be made in a narrow or technical way, but in a manner which will ensure that the parties are accorded procedural fairness, and that particulars are not used to expand a complaint beyond what can reasonably be said to have been alleged in it. Another way of looking at the questions is to ask whether the materials in issue come within the scope of the complaint filed with the Tribunal, or whether they seek to expand the scope of the complaint.
[17] The Respondents say that the IEP and Accommodation Allegations are not particularized, and they ask that I dismiss these allegations under s. 27(1)(c).
[18] I find that the Child has included particulars for these allegations in their response to the application to dismiss. Those particulars are:
a. the Child’s file was missing reports provided to the School by the Parents;
b. the School failed to read the psychoeducational report from the Gifted Development Center;
c. the School failed to provide the Child with e-books as recommended;
d. the School did not accommodate the Child’s need to wipe down their desk as often as medically recommended causing the Child to miss three to four weeks of school per year; and
e. the School Principal did not update medical information in the Child’s files.
[19] The Respondents say these are not particulars, but new allegations that cannot be raised for the first time in response to the application to dismiss without applying to amend the complaint. I disagree.
[20] In my view, the further details listed above do not expand the scope of the complaint. Rather, they provide more information about the general allegation that the Child faced disability-related barriers in their education that were not accommodated by the Respondents. The further information tells the Tribunal how the Child alleges they were not properly accommodated. As such, these allegations are not separate from the allegations contained within the complaint.
[21] Whether these particulars are sufficient to overcome the Respondents’ application under s. 27(1)(c) is something I explore below.
IV BACKGROUND
[22] To make this decision, I have considered all the information filed by the parties. In these reasons, I refer only to what is necessary to explain my decision. I make no findings of fact.
[23] The Board of Education of School District No. 36 is a board of education and statutory corporation established under the School Act . The Board operates elementary and secondary schools within School District No. 36, including the Child’s School at the time of the events alleged. The School Principal was at all material times employed by the Board.
[24] The Child has been diagnosed with an endocrine condition called Addison’s Disease, primary immune deficiency, perceptual disabilities, which they say affects their vision and hearing, and dyslexia. In November 2016, the Child received a Ministry of Education funding designation for a learning disability. As I understand it, the Child has had an IEP in place since 2017; however, according to the Parents, they have never been properly consulted on the development of the Child’s IEPs, despite parental consultation being required by the School Board’s policies.
[25] In the materials before me is a September 2016 psychoeducational assessment report from the Gifted Development Center in Colorado, which contains educational recommendations and concludes that it is “very likely” the Child has “stealth dyslexia, a mild form of dyslexia that is often overlooked because the child can compensate well enough to score close to grade level.”
[26] The Child says that they provided the School with the psychoeducational report, a vision assessment, an auditory assessment, medical letters confirming the Child’s diagnoses, and medical care plans for the years 2014 to 2016. The Child also says they provided the School with several other documents including what they call The School Guide for Students with Primary Immunodeficiency Diseases and an action plan for hydrocele management from 2013. The Child alleges that despite providing these documents to the Respondents, they have been overlooked or inadequately incorporated into their IEP. For example, the Child says that the Respondents have failed to provide them with technology to accommodate their disability, despite recommendations since 2017 that their books be loaded onto their computer and e-reader.
[27] In some cases, the Child says that the Respondents did not read or lost the documents that were provided. The Child says that as a result, they have required significant intervention to support their educational needs.
[28] The Child says that it is important they wipe their desk and wash their hands throughout the day to manage their immune deficiency. According to the Child, they have “experienced accommodation issues” with this, which has led to them missing three to four weeks of school per year.
[29] The Child says that because they have Addison’s Disease, they must avoid stressful or embarrassing situations as Addison’s Disease symptoms can be brought on by stress. Despite this, and despite the School Principal’s awareness of the Child’s Addison’s Disease and the situations that trigger it, the Child says that the School Principal subjected them to discipline on October 11, 2019, that put them at medical risk. The School Principal is alleged to have forced the Child to read an apology note out loud to another student to whom the Child had sent messages over Instagram’s direct messaging function during out-of-school hours. The messages were brought to the attention of the School Principal, who concluded they were inappropriate.
[30] The Child says they have visual, auditory, and learning disabilities that made reading the apology out loud stressful and embarrassing for them. The School Principal says they did not expect the Child to have any difficulty reading the apology, despite their dyslexia, that the Child read the note “fluently”, that they were mindful of the Child’s Addison’s Disease, and that they proceeded with the discipline in a “calm manner with a restorative approach.”
[31] After the school discipline incident, the Parents lodged a complaint with the School Board. The School Board investigated the matter through their legal counsel, who found the allegations of discrimination against the School Principal to be unsubstantiated:
I have found that the Respondent was aware of Student A’s disabilities and took the disabilities into consideration when deciding how to proceed. The Respondent kept the meetings calm and had a learning-oriented tone. Student A was able to fluently read the letter and did not present any visible symptoms of distress. I find that there was no direct or indirect discrimination under the Human Rights Code .
V DECISION
A. Section 27(1)(d)(ii) – Proceeding would not further the purposes of the Code
[32] Section 27(1)(d)(ii) allows the Tribunal to dismiss a complaint where proceeding with it would not further the purposes of the Code . These purposes include both private and public interests: s. 3. Deciding whether a complaint furthers those purposes is not only about the interests in the individual complaint. It may also be about broad public policy issues, like the efficiency and responsiveness of the human rights system, and the expense and time involved in a hearing: Dar Santos v. UBC , 2003 BCHRT 73 , at para. 59 , Tillis v. Pacific Western Brewing and Komatsu , 2005 BCHRT 433 at para. 15, Gichuru v. Pallai (No. 2) , 2010 BCHRT 125, at paras. 113-118.
[33] The Respondents argue that it would not further the Code’s purposes to proceed against the School Principal: Daley v. BC (Ministry of Health) , 2006 BCHRT 341 . I agree.
[34] There are strong policy reasons that favour complaints against individual respondents. As the Supreme Court of Canada has acknowledged, “the aspirational purposes of the Code require that individual perpetrators of discrimination be held accountable for their actions”: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 at para. 56 . This is especially true for allegations of discrimination with a high degree of personal culpability, like sexual or racial harassment: Daley at para. 53 .
[35] On the other hand, naming individual respondents can complicate and delay the resolution of complaints, exacerbate feelings of personal animosity, and cause needless personal distress to individuals who are accused of discrimination: Daley at para. 54 . Because employers and institutional respondents are liable for the acts of their agents, they will be responsible for any remedy ordered by the Tribunal: Code , s. 44(2); Robichaud v. Canada , [1987] 2 SCR 84. In those situations, the remedial aims of the Code may be most fairly and efficiently fulfilled without holding individuals liable.
[36] The Tribunal balances all these considerations to decide whether the purposes of the Code are best served by having a complaint proceed against individuals as well as an institutional respondent, or against the institutional respondent only. It has identified the following factors as relevant:
a. whether the complaint names an institutional employer as a respondent and that respondent has the capacity to fulfill any remedies that the Tribunal might order;
b. whether the institutional respondent has acknowledged the acts and omissions of the individual as its own and has irrevocably acknowledged its responsibility to satisfy any remedial orders which the Tribunal might make in respect of that individual’s conduct; and
c. the nature of the conduct alleged against the individual, including whether:
d. their conduct took place within the regular course of their employment;
e. the person is alleged to have been the directing mind behind the discrimination or to have substantially influenced the course of action taken; and
f. the conduct alleged against the individual has a measure of individual culpability, such as an allegation of discriminatory harassment.
Daley at paras. 60-62 .
[37] In the application to dismiss, the School Board acknowledges that the School Principal was acting at all material times within the scope of their employment with the School Board. It further acknowledges the School Principal’s acts as the School Board’s own and states that it is prepared to satisfy any remedial orders that the Tribunal might make in respect of the School Principal’s conduct.
[38] The Child opposes the Respondents’ application under s. 27(1)(d)(ii). They say that the School Board has not explicitly taken responsibility for the School Principal’s actions. Further, the Child says that affidavit evidence is required from the School Board affirming that it will satisfy any remedial orders made against the School Principal. I disagree that the School Board has not explicitly taken responsibility for the School Principal’s conduct. The Respondents’ written submissions say:
The Board accepts as a fact that the individual respondent was acting in the scope of [their] employment at all times, acknowledges as its own the acts and omissions of its employees in this regard, and acknowledges its responsibility to satisfy any remedial orders which the Tribunal might make in respect of any of its employee’s conduct in this respect. As such there is no basis for including an individually named respondent as a separate respondent in this matter.
[39] In my view, with this statement the School Board acknowledges through its legal counsel that the acts and omissions of the School Principal are its own and that it has a responsibility to satisfy any remedial orders which the Tribunal might make in respect of the School Principal’s conduct. I disagree that affidavit evidence is required in order to satisfy the requirements of Daley . A statement from the respondent or its legal counsel will suffice, even if the respondent fails to use the word “irrevocably” so long as it is clear that the Respondent understands the test and intends to assume responsibility for any remedial orders: Burman v. Rest Haven Lodge and others , 2016 BCHRT 142 at para. 121. In any event, as a part of their reply submissions, the Respondents have provided an affidavit that makes the requisite acknowledgements.
[40] The Child further says that I should not dismiss the complaint against the School Principal because there is a measure of individual culpability to the School Principal’s actions. The foundation for this argument is that the conduct that was the subject of the discipline took place outside of school hours and that the School Principal was the “directing mind” in the school’s response to the incident.
[41] In Baines v. 0781380 BC and others , 2011 BCHRT 266, the Tribunal’s reasoning suggested that there is a spectrum of individual culpability, ranging from the individual engaging in an activity clearly outside the scope of their job duties to the individual simply carrying out their job duties. Where an employee is merely engaged in their job duties, even if in doing so they are found to have violated the Code , they remain within the scope of their job duties: See Lum v. Mullen and others , 2012 BCHRT 198.
[42] Here, even if the Child’s out-of-school conduct was not something that the School Principal should have dealt with, and even if the School Principal was the directing mind behind the discipline, I find that the other Daley factors weigh in favour of dismissing the complaint against the School Principal. As stated above, the School Board has acknowledged the acts and omissions of the School Principal as its own and has irrevocably acknowledged its responsibility to satisfy any remedial orders which the Tribunal might make in respect of the School Principal’s conduct. This weighs heavily in favour of dismissing the complaint against the School Principal.
[43] Further, in terms of the nature of the conduct, I do not find it to have a measure of individual culpability sufficient to warrant continuing the complaint against the School Principal. I acknowledge that the disciplinary meeting may have been a stressful event for the Child, but I do not find the School Principal’s behaviour so egregious as to rise to the level of behaviour that typically attracts individual liability. While the Parents may disagree that the School Principal’s approach was the correct one, this conduct is distinguishable from, for example, sexual or racial harassment in the workplace: Daley at para. 62; Murphy v. Lafarge of Canada and others , 2006 BCHRT 558 at paras. 35-36. In this case, my view is that the School Principal was performing their job, albeit in a manner that could ultimately result in a finding of discrimination: Daley at para. 62. As such, I am satisfied that proceeding with the complaint against the School Principal would not further the purposes of the Code .
[44] Accordingly, I allow the Respondents’ application to dismiss the complaint against the School Principal under s. 27(1)(d)(ii).
B. Section 27(1)(g)
[45] The complaint contains allegations that predate December 12, 2018, including the Specialist Support Allegation (June 2017) and the Consultation Allegation (September 2018).
[46] The School Board argues that the portions of the complaint that predate December 12, 2018, should be dismissed. The Child submits that I should not dismiss any of the allegations because they are all part of a continuing contravention anchored in the timely allegation that the Respondents failed to incorporate medically recommended accommodations into the Child’s 2019 IEP.
[47] Under s. 22(1) of the Code , a complaint must be filed within one year of the alleged contravention. Allegations filed outside this time limit are late and can be dismissed under s. 27(1)(g), unless they form part of an alleged “continuing contravention” with a timely allegation: Code , s. 22(2). The burden is on the Child to establish that their complaint alleges a timely continuing contravention: Dove v. GVRD and others (No. 3) , 2006 BCHRT 374 at para. 38 [ Dove No. 3 ].
[48] To allege a continuing contravention under the Code is to allege discrimination that is ongoing, successive, or repetitive: see generally School District v. Parent obo the Child , 2018 BCCA 136 [ School District ], and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City), 2015 BCCA 57 at para. 23 .
[49] The assessment of whether discrete allegations are a continuing contravention is a “fact specific one which will depend very much on the individual circumstances of each case”: Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para. 17 . Various factors are relevant to this assessment, including the character of the allegations, their nature, and whether they are separated by gaps in time: see generally School District; Rai v. Annacis Auto , 2023 BCHRT 31; Callaghan v. University of Victoria , 2005 BCHRT 589; Bjorklund v. BC Ministry of Public Safety and Solicitor General , 2018 BCHRT 204. Whether or not a gap is significant will be assessed contextually, considering the length itself and any explanations for the gap: Reynolds v. Overwaitea Food Group, 2013 BCHRT 67, at para. 28. A significant, unexplained, gap in time will weigh against finding a continuing contravention: Bjorklund v. BC Ministry of Public Safety and Solicitor General , 2018 BCHRT 204 at para. 14 .
[50] For earlier allegations falling outside the one-year time limit to form part of an alleged continuing contravention with a later allegation falling within the time limit, the earlier allegations must be of the same or similar character as the later allegation: see generally Dove No. 3 at paras. 11-33 and School District at paras. 46-65.
[51] The Specialist Support Allegation and the Consultation Allegation involve the failure to provide the Child with adequate accommodation. The materials before me set out allegations about a series of incidents which involved responding to or failing to respond to the Child’s disabilities. I am satisfied that the allegations of discrimination prior to December 12, 2018, are of a similar character as the later allegation that in September 2019 the Respondents failed to incorporate medically recommended accommodations into the Child’s IEP.
[52] However, there are large gaps in time between these allegations. The School Board submits that the gaps are significant. If unexplained, long gaps could be fatal to finding a continuing contravention. The Parents do not explain the reason for the gaps, and generally, a gap of a year or more is considered very lengthy. Under the particular circumstances of this case, the unexplained gaps in time between the allegations are significant and weigh against a finding of continuing contravention: see The Parent obo the Child v. School District , 2024 BCHRT 91 at para. 64. I am not satisfied that the allegations prior to December 12, 2018, form part of an alleged continuing contravention with the IEP Allegation. These allegations are late.
[53] Nevertheless, I have discretion to accept the late allegations under s. 22(3) of the Code. The burden is on the complainant to persuade the Tribunal to accept the complaint. I must consider two things: public interest and substantial prejudice.
[54] The Tribunal assesses the public interest in a late-filed complaint in light of the purposes of the Code . These include identifying and eliminating persistent patterns of inequality, and providing a remedy for persons who are discriminated against: s. 3. It may consider factors like the length of the delay, the reasons for the delay, the complainant’s interest in accessing the Tribunal, the respondent’s interest in being able to continue its activities without worrying about stale complaints, whether the complainant got legal advice, and the public interest in the complaint itself: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite , 2014 BCCA 220 [Mzite] at para. 53 and 63; Hoang v. Warnaco and Johns , 2007 BCHRT 24; Complainant v. The Board of Education of School District No. 61 (Greater Victoria) , 2022 BCHRT 44 at para. 18. These are important factors, but they are not necessarily determinative and not every factor will be relevant in every case: Goddard v. Dixon , 2012 BCSC 161 at para. 152; Mzite at para. 55. The inquiry is always fact and context specific.
[55] The onus is on the Child to establish that relieving against the time limits would be in the public interest and would not result in substantial prejudice to any person.
[56] Relying on this onus, the School Board says that the Child has not provided the Tribunal with any public interest arguments and therefore the untimely allegations should be dismissed. I agree. The burden is on the Child to explain why it would be in the public interest to accept the untimely allegations. This they have not done. I dismiss the Specialist Support Allegation and the Consultation Allegation. Because I do so, I do not need to consider whether substantial prejudice would result to any person because of the delay in filing the complaint.
C. Section 27(1)(c) – No reasonable prospect of success
[57] Of the remaining allegations, the Child alleges that the School Board failed to:
a. incorporate expert recommended medical and psychoeducational accommodations into the Child’s IEPs—the IEP Allegation;
b. provide reasonable accommodations, on an ongoing basis—the Accommodation Allegation; and
c. discipline the Child in a way that did not subject them to medical risk—the Discipline Allegation.
[58] The School Board applies to dismiss these allegations on the basis that they have no reasonable prospect of success: Code, s. 27(1)(c). The onus is on the Respondents to establish the basis for dismissal.
[59] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[60] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence ” : Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan , 2013 BCSC 942 at para. 77 .
[61] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority , 2021 BCSC 2176 at para. 20 ; SEPQA v. Canadian Human Rights Commission , [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 [ Hill ] at para. 27 .
[62] To prove their complaint at a hearing, the Child will have to prove that they have a characteristic protected by the Code , they were adversely impacted in services, and their protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33. If they did that, the burden would shift to the School Board to justify the impact as a bona fide reasonable justification. If the impact is justified, there is no discrimination.
[63] Many of the School Board’s arguments centre on justification.
[64] To justify adverse impacts at a hearing, the School Board would have to prove that: (1) they adopted the standard for a purpose rationally connected to the function being performed, (2) they adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and (3) the standard is reasonably necessary to the accomplishment of that legitimate purpose. This third element encompasses their duty to accommodate the Child to the point of undue hardship: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 [ Grismer ] at para. 20.
[65] I now turn to the merits of the s. 27(1)(c) application.
1. IEP Allegation
[66] The Child alleges that the School Board lost or did not read many of the reports that were provided to them, and that as a result, the recommendations contained in those reports were not incorporated into their IEPs. Therefore, they say, the Child’s disabilities were not properly accommodated. The Child says that had the IEPs been developed in line with the medical and psychoeducational recommendations contained in the reports provided to the School Board, their Parents would not have had to intervene with private support services in order to keep the Child at grade level. They say that because the recommendations in the reports were not incorporated into the Child’s IEPs, the Parents were required to provide the Child with tutoring, vision therapy, and auditory therapy, along with other interventions.
[67] The Child has provided the Tribunal with the reports and documents that they say they gave to the School Board as well as the IEPs that were in place during the relevant time periods. The materials before me indicate that some of the recommendations from the reports were not incorporated into the Child’s IEPs. Comparing the reports with the IEPs, in addition to the recommendations from the psychoeducational assessment report, it appears that some of these recommendations include, but may not be limited to:
a. Frequent breaks to avoid auditory fatigue;
b. Pre-teaching of new information and vocabulary;
c. Visual supports for auditory and verbal information;
d. Second-language accommodations; and
e. Providing the Child with e-books.
[68] The School Board admits that certain of the recommendations contained in the psychoeducational assessment and other medical reports were not included in the Child’s IEPs. However, the School Board says that the IEPs developed for the Child “are consistent with the recognized supports for students with a learning disability like dyslexia within British Columbia.” They say that many of the recommendations from the psychoeducational assessment report in particular were specific to programs available in Colorado, not in BC. They say the IEPs that have been developed for the Child were consistent with the Child’s Ministry of Education designation and “the information regarding [the Child’s] learning needs”, including the provision of a learner support teacher as well as modifications implemented by the classroom teacher. They note that the Child’s progress reports indicate that they have progressed “well” and “overall at grade level”.
[69] As I understand it, the School Board accepts it had a duty to accommodate and adopt appropriate IEPs, which were an accommodation for the Child’s disabilities. The issue before me on this application is whether the Board is reasonably certain to establish at a hearing that it met with the duty to accommodate in formulating the IEPs as they did.
[70] The School Board was required to take all reasonable and practical steps to remove disability-related barriers that their students face at school: Moore at para. 49. For the reasons that follow, I am not satisfied on the materials before me that the School Board is reasonably certain to establish that it met the duty to accommodate the Child.
[71] While the School Board clearly made efforts to accommodate the Child’s disabilities, I am not persuaded on the evidence before me that they could not have reasonably done more to assist the Child in overcoming the barriers they faced at school. While the School Board says that the IEPs were formulated in line with what was provincially recognized, accommodation must be done on a case-by-case basis. It is not one-size-fits-all: James and Rowland v. The Owners, Strata Plan VR1120 , 2023 BCHRT 220 at para. 50. It may be that it would have been undue hardship to have implemented the Colorado recommendations and the recommendations from the other reports, however, I do not have that evidence before me on this application. Further, my conclusion is supported by the evidence that the Parents had to intervene substantially in the Child’s education to keep them at grade level. It appears from the materials before me that at least some of the supports the Parents provided to the Child were in line with the recommendations contained in the reports—i.e. the recommendations that the Child alleges were not implemented at the School.
[72] While the School Board took steps through the IEPs to accommodate the Child, based on the materials before me, I am not persuaded that they are reasonably certain to prove they took all reasonable and practical steps to remove the disability-related barriers faced by the Child. This allegation will proceed.
2. Accommodation Allegation
[73] As I understand it, the Accommodation Allegation has been particularized as follows:
a. there were “accommodation issues” with the Child wiping down their desk as often as medically recommended; and
b. the School Principal did not update medical information in the Child’s files.
[74] I find that there is no reasonable prospect that these aspects of the complaint will succeed.
[75] The Child alleges that there were “accommodation issues” with them wiping down their desk as often as medically recommended, which resulted in them missing three to four weeks of school annually. However, the Child does not specify what these accommodation issues were and how the Respondents’ action or inaction was engaged. There is an assertion that accommodation issues were at play, but no articulation of what the Respondents did or failed to do. For this reason, I am satisfied that this allegation has no reasonable prospect of success.
[76] The Child also alleges that the School Principal failed to accurately update the Child’s files to reflect increased dosage information for medication the Child had been prescribed to manage an onset of their Addison’s Disease symptoms. The Child asserts that under-dosing the drug could have had lethal implications for them. The School Board acknowledges that a mistake was made in updating the Child’s files but says that they moved quickly to correct the mistake once the Mother brought it to their attention. The School Board also emphasizes the dosage information was correct on the medication vials themselves.
[77] As I understand it, there is no dispute between the parties that the Child has a disability, that the disability may require the School Board to administer medication to the Child in emergency circumstances, and that the School Board agreed as a service provider to store and administer the medication as required. Put another way, there is no dispute that the School Board accepted its duty to accommodate in this regard, and the issue on the merits is whether in making an administrative error in recording the details of the accommodation in the Child’s file, it breached the Code . As such, the issue for me to decide on this application is whether the School District is reasonably certain to establish at a hearing that on this issue it satisfied the duty to accommodate. Though the parties did not frame their arguments in precisely these terms, I understand this to be the essence of the dispute before me and am satisfied that the parties have had a full and fair opportunity to make submissions on this point.
[78] Having reviewed the materials, I am satisfied that the School Board is reasonably certain to establish a defence at a hearing. The duty to accommodate does not require perfection: Central Okanagan School District No. 23 v. Renaud , 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970. An administrative error or oversight in recording the details of an accommodation in a respondent’s records is not, without more, a breach of the duty to accommodate. Here, the Respondents acknowledge the administrative error. They say, however, that the dosage information was correct on the medication vials themselves and that the Child’s file was updated as soon as it was brought to the School Principal’s attention that the file contained the incorrect dosage information. These points do not appear to be in dispute. Given the nature of the error and the School Board’s efforts, which were prompt, I find that the School Board is reasonably certain to establish at a hearing that they satisfied the duty to accommodate and that there was nothing more they reasonably or practically could have done in the circumstances. Thankfully in the circumstances the administrative error did not result in harm to the Child.
[79] I dismiss this aspect of the Child’s complaint.
3. Discipline Allegation
[80] The Child alleges that the School Principal subjected them to medical risk when the School Principal disciplined the Child, which the Child says caused them embarrassment and stress. The Child says the discipline meeting was dangerous to them given their Addison’s Disease.
[81] The School Board argues that the School Principal’s actions in disciplining the Child were investigated, and the complaint found to be unsubstantiated. Therefore, they say, there is no reasonable prospect this aspect of the complaint will succeed.
[82] The same issues that are before the Tribunal were before the investigator, who determined that no discrimination under the Code occurred. The investigator found that the School Principal was aware of the Child’s disabilities and considered those disabilities when determining how to proceed with the discipline meeting. According to the investigator’s findings, the School Principal kept the meeting “calm” with a “learning-oriented tone.” She determined that the Child did not present any visible symptoms of distress and had no difficulty reading the apology.
[83] The investigator’s determination is not dispositive of whether the complaint should be dismissed under s. 27(1)(c), although it is a relevant consideration: Horner v. Concord Security Corporation , 2003 BCHRT 86 at para. 24. My determination depends on a global assessment of all the application to dismiss materials: Horner at para. 29.
[84] Even assuming for the purposes of this application that the Child has taken their allegation beyond the realm of speculation and conjecture, I am persuaded that the School Board is reasonably certain to prove that it accommodated the Child’s needs in structuring the discipline meeting.
[85] The undisputed evidence before me is that the School Principal structured the meeting in an intentional way because they knew that stressful events could trigger the Child’s Addison’s Disease. The School Principal held the meeting privately in their office with only themselves, the Child, and the other student present. There is also undisputed evidence that the School Principal used a calm, non-threatening tone during the discipline meeting. While the Child says that reading the apology aloud caused them stress and embarrassment, it is unclear on the materials before me what the School Board could have reasonably or practically done to avoid the allegedly negative impact on them. Further, the School Board was not required to be perfect in its accommodation. On a global assessment of the materials before me, I am persuaded that the School Board is reasonably certain to establish at a hearing that it satisfied the duty to accommodate.
VI CONCLUSION
[86] I grant the application to dismiss except with regard to IEP Allegation. As I have dismissed the complaint against the School Principal as an individual Respondent, the IEP Allegation will proceed against the School Board alone.
Robin Dean
Tribunal Member