Parent W and others v. Ministry of Education, 2024 BCHRT 306 – CORRECTED

Date Issued: October 29, 2024
File: CS-000041

Indexed as: Parent W and others v. Ministry of Education, 2024 BCHRT 306

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:

Parent W and Child W (by Parent W) and All parents and their children who participate in a parent-directed educational program as defined by the School Act (by Parent W)

COMPLAINANT

AND:

His Majesty The King In Right Of The Province Of British Columbia As Represented By The Ministry of Education

RESPONDENT

REASONS FOR DECISION
APPLICATION TO DISMISS COMPLAINT
Sections 27(1)(c), d(ii) and (g)

Tribunal Member: Christopher J. Foy

On their own behalf: Parent W

Counsel for the Respondent: Rochelle Pauls

I INTRODUCTION

[1] Parent W filed a total of four separate complaints comprising two individual complaints and two class complaints [ Complaints ]. The four Complaints are as follows:

i. Parent W’s individual complaint;

ii. A representative complaint filed by Parent W on behalf of her child, Child W;

iii. A class complaint filed by Parent W on behalf of all parents who provide a parent-directed educational program as defined by the School Act [ Parent Class ]; and

iv. A class complaint filed by Parent W on behalf of children of school age as defined by the School Act who received an educational program from a parent [ Child Class ].

[2] The Complaints allege that the Ministry of Education [ Ministry ] discriminated against Parent W, Child W, the Parent Class and the Child Class [collectively the Complainants ] in the provision of services contrary to section 8 of the Code by failing to provide equal funding for students, paid to their parents who are the primary service providers of parent-directed educational programs. Parent-directed educational programs, the Complainants say, include homeschooling and a subset of distributed learning programs, now online learning, which require the delivery of the program by a parent.

[3] The gist of the Complaints is that children are statutorily required under the School Act to receive an educational program but if the child receives that program from a parent, the child receives less student funding than if that child attends a Board or Authority run educational program. The Complaints allege that this unequal funding has a discriminatory effect on both parents and children who choose to homeschool based on family status, marital status, gender expression, religion and sex.

[4] The Tribunal has decided to address the Complaints together. By letter dated May 17, 2021, the Tribunal advised the parties that the Complaints will proceed on the basis of family status, marital status, gender expression, religion and sex – with only family status and religion pertaining to Child W and the Child Class.

[5] The Ministry denies discriminating against the Complainants and applies to dismiss the Complaints under s. 27(1)(c), (d)(ii), and (g) of the Code on the basis that there is no reasonable prospect that the Complaints will succeed, the Parent Class and Child Class complaints are not appropriate class complaints, and the Complaints were filed out of time. The Ministry’s main argument is that the Complaints seek a service that the Ministry does not provide to the public: “a direct funding program for parents who opt-out of the public or independent K-12 school system and homeschool their children.”

[6] I am satisfied that the only issue I need to address is whether or not the Ministry is reasonably certain to establish a defence at a hearing that the alleged discriminatory activity does not fall within s. 8 of the Code .

[7] While I do not refer in my decision to all the information filed by the parties in relation to this application to dismiss, I have considered it and thank the parties for their respective submissions. The following is not a complete recitation of the parties’ submissions, but only those necessary to come to my decision.

[8] Below I first set out the background to the Complaints. I then set out my reasons for granting the Ministry’s application to dismiss.

II BaCKGROUND

[9] The following background summary is taken from the parties’ submissions. I make no findings of fact. In order to understand the background of this matter, it is helpful to first review the applicable sections of the School Act and how the Ministry funds education in the province. I will then set out Parent W’s situation.

A. School Act

[10] An “education program” is defined under the School Act as follows:

“educational program” means an organized set of learning activities that, in the opinion of

(a) the board, in the case of learning activities provided by the board,

(a.1) the francophone education authority, in the case of learning activities provided by the francophone education authority,

(b) the minister, in the case of learning activities in a Provincial school, or

(c) the parent, in the case of learning activities provided to a child registered under section 13,

is designed to enable learners to become literate, to develop their individual potential and to acquire the knowledge, skills and attitudes needed to contribute to a healthy, democratic and pluralistic society and a prosperous and sustainable economy;

[11] Under s. 3 of the School Act , a school aged person who is resident in British Columbia must enrol in an educational program. The School Act , sections 12, and 13 allow for parents to provide home education/homeschooling:

Division 4 — Home Education

Home education

12 A parent of a child who is required to enrol in an educational program under section 3

(a) may educate the child at home or elsewhere in accordance with this Division, and

(b) must provide that child with an educational program.

Registration

13 (1) A parent of a child who is required under section 12 to provide the child with an educational program must register the child on or before September 30 in each year with

(a) a school of the parent’s choice that is operating in British Columbia,

….

(c) an independent school operating in British Columbia.

….

(4) A person who contravenes subsection (1) commits an offence.

B. Ministry Funding

[12] The Ministry funds Boards and Independent School Authorities [ Authorities ] through a funding allocation system as per sections 106.1-106.4 of the School Act and Independent School Act , and Independent School Regulation . An operating grant based on a common per student amount for each student enrolled is provided by the Ministry to the Boards and Authorities. The Boards and Authorities use the funding to deliver their educational programs.

[13] The Ministry also provides funding via s. 106.3 of the School Act to those Boards and Authorities who choose to deliver educational programs or courses online (formerly called Distributed Learning, now called Online Learning). For ease of reference when either Distributed Learning is mentioned I will use the current term: Online Learning .

[14] Online Learning educational programs or courses follow the British Columbia curriculum and are taught by a British Columbia certified teacher. In addition, students’ progress is evaluated by a British Columbia certified teacher. To be eligible for Ministry funding for Online Learning, Boards and Authorities must ensure student attendance is met.

[15] The Ministry defines homeschooling or home education in the affidavit material before me as follows:

“…an educational program provided to a child by a parent that is not under the supervision or direction of a qualified teacher. Generally it is an alternative method of learning outside the BC K-12 education system. Parents make decisions and provide the program and are not required to follow the provincial curriculum.”

[16] For Boards and Authorities who have registered homeschooled children, the Ministry provides $250.00 to Boards and up to $175.00 to Authorities per student to cover the administrative costs of registering the students. The Ministry states that “No funding is sent to parents or is intended to be provided directly to parents.”

[17] The Ministry’s affidavit material before me sets out that when a homeschooled child is registered with either a Board or an Authority, that Board or Authority must offer the homeschooled child or the parents the following free of charge:

i. evaluation and assessment services to determine the child’s educational progress in relation to students of similar age and ability; and

ii. the loan of educational resource materials that are authorized and recommended by the Minister, and which, in the Board or Independent School’s opinion, are sufficient to enable the child to pursue their educational program.

[18] The Board or Authority does not approve or supervise the educational program of a homeschooled child.

[19] The parent or homeschooled child, or both, are free to accept or reject evaluation or assessment services or the loan of learning resource materials that have been offered by the Board or Authority.

C. Parent W

[20] Parent W is a single mother. Parent W’s child Child W became school aged in 2012. She says that as a result of the “grossly inadequate” funding provided for students whose parents wish to homeschool under ss. 12-13 of the School Act , she decided to enroll Child W in a publicly funded Board or Authority Online Learning program from September 2012 to July 2019 (except for 2013-2014). The materials before me do not indicate what, if any, educational program Child W was provided in the 2013-2014 school year.

[21] According to Parent W, in September 2019, Child W was “not enrolled at any school.” She says that her religious beliefs prompted her to withdraw Child W from an Online Learning program.

[22] On or about August 18, 2020, Parent W registered her child at either a Board or Authority as they were receiving an educational program from her pursuant to ss. 12-13 of the School Act .

III DECISION

[23] Section 27(1)(c) allows the Tribunal to dismiss complaints that do not warrant the time and expense of a full hearing: Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at paras. 22-26 [ Berezoutskaia ]. Under s. 27(1)(c), the threshold for a complaint to proceed to a hearing is low; a complainant need only show that the evidence takes the case out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill , 2011 BCCA 49 at para. 27. The onus is on a respondent to show a complaint does not have a reasonable prospect of success, rather than on a complainant to show discrimination: Stonehouse v. Elk Valley Coal (No. 2) , 2007 BCHRT 305 at para. 11. However, there must be more than a mere possibility of success: Berezoutskaia at paras. 24 and 26.

[24] The Tribunal may consider a defence on an application under s. 27(1)(c). The question is whether it is reasonably certain the Respondent would persuade the Tribunal of the defence at a hearing. If it is reasonably certain a respondent would establish a defence at a hearing of the complaint, there is no reasonable prospect the complaint will succeed: Purdy v. Douglas College and others , 2016 BCHRT 117 at para. 50.

[25] The Ministry argues that the Complaints are seeking direct payments from the Ministry in order to provide educational programs and this is not a service the Ministry provides. It is not a service customarily available to the public. The Ministry says that while they do provide funding for education, it does not do so to the “public” but via Boards and Authorities in accordance with the relevant legislation. Those Boards and Authorities then provide services to the public as per the School Act and Independent School Act .

[26] Section 8 of the Code prohibits discrimination in accommodations, services, and facilities customarily available to the public.

[27] The Tribunal must first identify the service in question and then determine whether that service gives rise to a public relationship between the service provider and the service user: Phillips v. BC Ministry of the Attorney General , 2019 BCHRT 76, para. 12, citing Gould v. Yukon Order of Pioneers , [1996] 1 SCR 571 at para. 58.

[28] The Complaints view the “service” the Ministry provides as creating the funding mechanism for educational programs. They say since parents are allowed to provide an educational program as per the School Act , the omission of equal funding for students, paid to their parents, who are the primary service providers of educational programs, is discriminatory.

[29] In support of the Complainants’ argument that the Ministry provides a service, Parent W says that she has received funds for learning expenses. She says she received $125.00 directly from an Authority when her child was registered with that Authority in 2001-2002. In addition, Parent W says she received “a cheque from the government for compensation for costs related to a teachers’ strike” in 2014.

[30] Parent W also argues that the Ministry’s 2021 publication, Homeschooling Procedures and Guidelines Manual [ Manual ], “indicates that homeschooling is part of Ministry services”. Further she says that in 2014, the Ministry placed a $600.00 cap on how much Boards and Authorities could reimburse third-parties for services and resources to assist students in Online Learning schools.

[31] For the reasons that follow, I am persuaded that the Ministry is reasonably certain to establish a defence at a hearing that they do not provide the service at issue in the Complaints within the meaning of s. 8 of the Code . Consequently, there is no reasonable prospect the Complaints will succeed and I dismiss the Complaints under s.27(1)(c) of the Code .

[32] When the Legislature passes legislation, it is not providing a service to the public within the meaning of s. 8 of the Code : Phillips v. BC , 2019 BCHRT 76 at para. 14; Startek v. British Columbia (Ministry of Finance) 2022 BCHRT 117 at paras. 28-29. The issue whether the Complaints engage a service customarily available to the public turns on whether the Ministry is administering a service created by the applicable legislation, the School Act and Independent School Act , to which the Complainants are merely seeking access.

[33] When the Legislature amended the School Act to allow for homeschooling in 1989, it was clear that funding for parents who provided an educational program was left out of those amendments and all the Legislature was doing was making homeschooling, which was illegal at the time, legal. The amendments gave parents the legal right to opt-out of the public system. The materials before me reference those debates. The Minister of Education at the time, the Honourable Mr. Anthony Brummet, stated the following:

You have to understand that before this acknowledgement of home schooling was in legislation, it was illegal. Therefore all the forces and everything could come in if there was some neglect proven. Now we’re saying that it’s okay to keep your child at home. Then you have to build in protection so it is not abused. That is as simple and as concise as I can possibly be — to give the people a choice; not to set up an alternative system, not to undermine a very good public school system, not to do any of those things, but to give people that choice. [1]

[34] The Complaints are focused on the Ministry’s omission of equal funding to, as Parent W says, “the primary education service providers – parents”. In my view, the Ministry in creating its funding model abides by and is restricted by ss.106.1-106.4 of the School Act . [2] There is no provision in the School Act or the Independent School Act for the funding of educational programs provided by parents. The Ministry’s job is simply to apply the legislated criteria. The Complainants are not eligible for the funds that they seek because the Legislature has not included such funding in either the School Act or Independent School Act .

[35] The applicable legislation has not created or extended a service to the Complainants. The Legislature has specifically left out funding of educational programs provided by parents. The Tribunal in this situation cannot review the Ministry’s actions since the Legislature in creating the restrictions on funding, maintaining the limitation to fund only educational programs for Boards and Authorities, was operating in its sui generis law-making capacity. There is no reasonable prospect the Complainants will prove that the funding for parent-directed educational programs is a service provided by the Ministry within the meaning of the Code .

[36] I now turn to address Parent W’s submissions. I do not find that Parent W receiving $125.00 directly from an Authority when her child was registered with that Authority in 2001-2002, or receiving “a cheque from the government for compensation for costs related to a teachers’ strike” in 2014 creates a “service” that is subject to the protections of s.8 of the Code .

[37] First, I have no evidence in the materials related to the $125.00 paid directly to Parent W back in 2001-2002 from an Authority, and no information as to why that payment was made by the Authority. I also gather that the payment does not relate to Child W since Child W did not become school-aged until 2012. I can only consider information that is before me; I cannot consider what additional evidence might be given if there is a hearing: University of British Columbia v. Chan , 2013 BCSC 942 at para. 77.

[38] With respect to Parent W receiving a cheque under the Temporary Education Support Payment, all this indicates is that Parent W had a child enrolled at a public school at the time of the 2014 teachers’ strike and qualified for the payment. The cheque she received came from Province of British Columbia’s General Account and was specific to this one strike event.

[39] Parent W references the Manual, which she says “indicates that homeschooling is part of Ministry services”. However, I am unable to determine on the material before me whether or not the Manual sets out what Parent W claims.

[40] In my view, even if the Manual did say what Parent W claims it does, given my comments on the legislative restriction to funding educational programs only for Boards and Authorities I am not persuaded that the Complaints have a reasonable prospect of proving equal funding for parent directed educational programs is a service provided by the Ministry within the meaning of the Code .

[41] Further, Parent W’s reliance on the funding cap of $600.00 placed by the Ministry on Boards and Authorities for third-party service providers does not persuade me that the Ministry was providing a “service” under s. 8 of the Code . Parent W claims the funding cap shows that the Ministry “controls” the funding decisions.

[42] The Ministry says that the Boards and Authorities are responsible for setting the funding level (up to a maximum of $600.00 per student) for third-party services based on what is required for their students to be successful in the students’ educational program. The Ministry states:

It is not a fund targeted to each student to be utilized in full but specific to the educational services which the certified educators have determined are required as part of the students’ educational program.

[43] Based on the materials before me, third-party services are for learning support materials or resources to learners. The Boards and Authorities do not pay parents directly and are not permitted to make payments directly to parents for reimbursements to third-party resources and service providers. This $600.00 cap on reimbursements to third parties was put in place by the Ministry in February 2014. The rationale for this policy was explained in a letter dated January 3, 2014 by the Ministry to the Board of Education Chairs and the Federation of Independent Schools Associations of BC as follows:

Many distributed learning (DL) schools around the province provide resource/service allocation funds so that DL students have access to educational services that are not easily delivered through DL.

For example, a brick-and-mortar Physical Education curriculum might include swimming, while a Fine Arts curriculum could include a music program. Third-party services enable a DL student to access similar learning, e.g. swimming or music lessons. In practice, access to third-party services has led to competition between schools for DL students based on the amount of money provided for third-party resources/services.

The amount of DL schools provide for third party services has traditionally not been set by the Ministry of Education in either public or independent schools. While DL schools do not pay parents directly, many DL schools (public and independent) offer up to $1,200 in “resource/service credits” for enrolled students in grades K-9. These credits support school-approved third-party services and resources that assist students in meeting Ministry curricular outcomes. Other DL schools do not provide any third-party and resource funds; all services and materials are provided by the DL school.

….

The $600 per student cap will reduce the pressure on DL schools to compete based on the amount of money provided to third-party resource/services. In addition, a larger portion of the operating grant will remain with the school or District to offer stronger school-based DL programs.

[44] The Ministry’s role is one of funding and oversight of Boards and Authorities in keeping with the restrictions of the School Act and Independent School Act . In my view, the Ministry’s role in implementing the $600.00 cap regarding third-party service expenditures by Boards and Authorities does not make the Ministry a provider of the “service” that is at issue in the Complaints – funding to parents who homeschool or provide parent-directed educational programs.

[45] In Moore v. British Columbia (Education) , 2012 SCC 61, the Supreme Court of Canada found that the province’s role in funding and overseeing education in the province was not sufficient to establish liability for decisions made by a school district about how to allocate its funding: para. 54. This reasoning is also reflected in Tribunal decisions dismissing complaints against organizations whose only role is funding or oversight: Hoffman and another v. BC Ministry of Social Development) and another , 2012 BCHRT 187 at para. 94; Hunter v. BC (Ministry of Health) and others (No. 2) , 2005 BCHRT 408 at paras. 24-26; Stone v. Coast Mountain Bus Company & others , 2005 BCHRT 50 at paras. 47-48.

[46] Parent W argues that Moore is distinguishable because “unlike Moore, the Ministry and not any Board or Authority controls the decision making related to the funding of the education programs at issue.”

[47] Parent W’s argument doesn’t account for the funding restrictions placed on the Ministry by the Legislature. The Ministry does not create the funding model in a vacuum. The Ministry abides by the applicable legislation, which only allows for funding of education programs for Boards and Authorities. With respect to how Boards and Authorities may be restricted by a limit of how much money they allot for third-party service providers, this is consistent with the Ministry’s role of funding and oversight.

IV CONCLUSION

[48] The Ministry’s application to dismiss the Complaints is granted.

Christopher J. Foy

Tribunal Member

This version of the Reasons for Decision has been amended in accordance with the Correction of December 20, 2024

[1] This corrects this decision in accordance with the Tribunal’s decision in Parent W and others v. Ministry of Education (No. 2) , 2024 BCHRT 350

[2] The names of the parent and child are anonymized to Parent W and Child W.

Devyn Cousineau

Tribunal Member