P (by KD) v. Board of Education of School District No. 61 (Greater Victoria) and another, 2025 BCHRT 62
Date Issued: March 7, 2025
File: CS-000219
Indexed as: P (by KD) v. Board of Education of School District No. 61 (Greater Victoria) and another, 2025 BCHRT 62
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:
P (by KD)
COMPLAINANT
AND:
Board of Education of School District No. 61 (Greater Victoria) and His Majesty the King in the Right of the Province of British Columbia as represented by the Ministry of Education and Childcare
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Theressa Etmanski
On their own behalf: P (by KD)
Counsel for the Respondent: Jordan A. Bank
Counsel for the Ministry: Zachary Ansley
I INTRODUCTION
[1] KD has filed a human rights complaint on behalf of his daughter P against the Board of Education of School District No. 61 (Greater Victoria) [ School District ] and His Majesty the King in Right of the Province of British Columbia as represented by the Ministry of Education [ Ministry ], alleging that P was discriminated against throughout her secondary school education because of her disabilities. For the purposes of this application, I attribute the submissions made by KD to P directly.
[2] P alleges that during the 2019/2020 school year, the respondents did not provide her an appropriate education by refusing her at-home instruction, one-to-one Educational Assistant [ EA ] support, and not following her Individual Education Plan [ IEP ]. P also alleges that the Ministry changed the requirements for IEPs which rendered them ineffective. Finally, P alleges that the School District caused her harm by failing to properly address abuse by another student and took her on an inappropriately long walk despite her scoliosis, which caused her pain and swelling.
[3] The Ministry and the School District deny the allegations. They have each applied to dismiss the complaint without a hearing under s. 27(1)(c) of the Human Rights Code because they say the complaint has no reasonable prospect of success. The Ministry says the only specific allegation in the complaint related to the Ministry has no factual basis, and in any event, the allegation if proven would not amount to a violation of the Code . The Ministry also applies to dismiss the allegations against it under s. 27(1)(g) of the Code , because they say the allegations were filed out of time.
[4] The School District denies the allegations that P was assaulted by another student without adult intervention, and that she was taken on an inappropriately long walk. The School District also denies that P’s IEP was not followed and says that P was at all times offered appropriate educational programming consistent with her goals and capabilities. The School District agrees that it denied P’s request for at home instruction and did not provide her with one-to-one EA support. However, the School District says it offered P reasonable alternatives which would advance the objectives set out in her IEP.
[5] To decide this application, I must consider whether P has taken out of the realm of conjecture that the following adverse impacts occurred and were connected to her disabilities:
a. both the School District and the Ministry played a role in failing to provide her with educational programming consistent with her IEP, refusing her one-to-one EA support, and denying her parents’ request that she receive at-home instruction;
b. the School District subjected her to further adverse treatment by not responding appropriately when another student attacked her, and when they disregarded her disability by forcing her to walk further than she was able to without pain; and,
c. the Ministry made IEPs ineffective by removing a parent signature requirement.
[6] For the following reasons, I grant the Ministry’s application to dismiss the entire complaint against it. I also grant the School District’s application in part. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
II BACKGROUND
[7] The following information is taken from the materials provided by the parties. I make no findings of fact.
[8] P has disabilities including Down Syndrome, scoliosis, and other chronic medical conditions, including heart and lung issues.
[9] For context, P says her time at secondary school from grades eight to twelve included the following negative experiences:
a. Her one-to-one EA assistance was taken away by the school causing her significant trauma.
b. Her parents did not receive a book list or course outlines.
c. She did not receive homework as she was not being taught.
d. She was physically abused by other children while staff left her unattended.
e. She was forced to sit by herself without any form of intellectual stimulation.
[10] The parties agree that P was frequently absent during secondary school.
[11] During the 2019/2020 school year, P attended an additional grade 13 year. According to the School District, this was offered to P to assist her to transition from the public education system into the community. At the request of her parents, P only attended school one day per week. P says this agreement was reached with the principal on the condition that the school would keep her safe.
[12] The parties agree that P’s parents requested six hours per week of home instruction for P to learn computer skills during the 2019/2020 school year, but the School District denied this request. The parties also agree that P did not receive one-to-one EA support during this school year.
[13] According to the School District, P’s last day of attendance at school was November 21, 2019. She attended the school’s graduation ceremony in June 2020, where she received a certificate of completion rather than a graduation diploma.
III DECISION
A. Section 27(1)(c) – No reasonable prospect of success
[14] The Ministry and the School District each apply to dismiss P’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c) The onus is on the Respondents to establish the basis for dismissal.
[15] 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.
[16] 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 [ Chan ] at para. 77 .
[17] 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 .
[18] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia , 2008 BCSC 1026 at para. 34 . However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City) , 2017 BCCA 242 at para 67.
[19] To prove her complaint at a hearing, P will have to prove that she has a characteristic protected by the Code , she was adversely impacted in services, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33. If she did that, the burden would shift to the Respondents to justify the impact as a bona fide reasonable justification. If the impact is justified, there is no discrimination.
[20] The parties do not dispute that P has disabilities within the meaning of the Code. However, they dispute that P experienced the adverse impacts described in the complaint.
[21] P alleges that her education was “significantly and severely attacked” by the Ministry, the School District, and her school. Specifically, she alleges that the Ministry made IEPs ineffective “with no legal standing” because parents were no longer required to sign the IEPs. P says that her IEP was not followed, she was denied in-home teaching, and her EA was shared with the class instead of providing her necessary one-to-one support. She alleges that this affected her ability to learn, and she received no intellectual stimulation. Further, she alleges that she was physically abused by a classmate without adult intervention, and she was taken on an inappropriately long walk, which adversely affected her due to her scoliosis.
1. Allegations against the School District
[22] For the following reasons, I grant the School District’s application to dismiss the complaint with respect to:
a. the allegation that it did not offer P educational programming consistent with her IEP; and
b. the allegation that P was attacked by another student without appropriate adult intervention.
[23] However, I decline to dismiss the complaint concerning the other allegations against the School District. I address each of the allegations in turn.
a. Failure to follow IEP
[24] I am not persuaded that P has taken the allegation that the School District did not follow her IEP out of the realm of conjecture. She has not specified what elements of her IEP were not followed during the 2019/2020 school year.
[25] According to the School District, P’s IEP for the 2019/2020 school year was prepared by P’s Student Support Team, which included the principal of the school, the life skills teacher, the tech exploration teacher, the foods teacher, the art teacher, the technology tutor, an educational assistant, a speech and language pathologist, an occupational therapist, and a physiotherapist. P’s parents were not involved in the creation of this IEP. The sworn statement provided from the P’s school principal says that he spoke to P’s parents at the beginning of the 2019/2020 school year, and they indicated that they had “lost faith” in IEPs. As a result, P’s father said he was not interested in being part of any IEP meetings. It further states that P’s caseworker called P’s father to discuss the IEP, but he did not respond.
[26] The School District says P’s IEP set out the following goals: (a) to support P’s enjoyment of school; (b) to encourage P to progress as much as possible in respect of her skills in literacy, numeracy, social skills, life skills, and physical health; and (c) to connect P’s family with community/adult supports so they did not have to navigate this on their own, and so they had access to supports for P after she was out of the public school system.
[27] Accordingly, the School District says P’s programming for the year was targeted at building life skills and connecting her with community resources. Following these goals, her programs included objectives such as: (i) learning to clear up after eating without prompting; (ii) walking downstairs in a safe manner; and (iii) technology/computer use. These goals and objectives would be developed in the first semester through Lifeskills, Foods and Nutrition, and Physical Education/Fitness classes. The second semester would be similar except Foods and Nutrition would be replaced by Computer Studies.
[28] The School District explains that P’s numeracy learning was done predominantly in Lifeskills, including through online resources. Numeracy was also reinforced through other classes such as measuring and counting items for recipes in cooking class and counting activities or weights in physical education. P’s literacy was taught through an online program, which she could access at home or at school.
[29] Based on the information before me, I am satisfied that there is no reasonable prospect that P will prove the School District failed to follow her IEP. As mentioned above, P has not said how the School District failed to follow her IEP. I cannot base my decision on speculation: Chan . Accordingly, I dismiss this allegation in the complaint.
b. Denial of at-home schooling
[30] School districts in this province are required to make educational programs available to all school-age children registered in the district. In certain circumstances, this includes at-home or “homebound” instruction. The School District has provided an excerpt from the Minister of Education’s Special Education Services Manual of Policies, Procedures, and Guidelines [ Special Education Manual ] which explains homebound programming in BC. It states:
School districts are required to make available an educational program to all persons of school age who are resident in its district and who are enrolled in a school in the district. School districts must maintain appropriate educational programs for students who are anticipated to be absent from school for extended periods of time. Instruction should be initiated as soon as possible. Authorization from the physician or public health nurse should be received prior to services being provide to students with health problems.
Students eligible for homebound services include:
· Students who are absent from school for medical reasons such as injury, disease, surgery, pregnancy, psychological reasons, etc. […]
[31] The School District agrees that it did not grant P’s parents’ requests for at-home instruction during the 2019/2020 school year. The School District does not take issue with the first two elements of the Moore test in relation to this allegation. The issue I must decide is whether P has taken out of the realm of conjecture that her disability was a factor in the adverse impact she experienced from the School District’s decision. I find that she has.
[32] P says she required at-home instruction because she could not regularly attend school due to her disabilities. The evidence from both parties demonstrates that P was frequently absent from school for extended periods of time due to disability-related illness. A document prepared by P’s school from October 2019 states that P’s “attendance record throughout high school has been a concern – typical attendance is 10-20 days per year.” For the 2019/2020 school year, the parties agree that the plan was for P to only attend in person one day per week. Based on this information, the Tribunal could reasonably find at a hearing that P did not receive the instruction offered to other students in the district because she could not attend school in person for disability related reasons, and she was not provided instruction in her home. I am satisfied that this information takes out of the realm of conjecture that P’s disability was a factor in the adverse impact she experienced as a result of the School District’s decision to deny at-home instruction.
[33] However, the analysis does not end there. I find it is most efficient to consider the School District’s arguments regarding this allegation in the context of whether they are reasonably certain to prove a justification defence at a hearing.
[34] The Tribunal may consider a justification defence in an application under s. 27(1)(c): Trevena v. Citizens’ Assembly on Electoral Reform and others , 2004 BCHRT 24 at para. 67. If it is reasonably certain that the respondent will establish a defence at a hearing, then there is no reasonable prospect the complaint will succeed: Purdy v. Douglas College and others , 2016 BCHRT 117 at para. 50. At a hearing, the burden of establishing the elements of a justification defence is on the respondent.
[35] To establish a justification defence, the School District would have to prove that: (1) they adopted the standard for a purpose rationally connected to the education of school-age children registered in the district who are “anticipated to be absent from school for extended periods of time”, (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 P to the point of undue hardship: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin Grievance) , [1999] 3 SCR 3 [ Meiorin ] at para. 54 ; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 [ Grismer ] at para. 20.
[36] There does not appear to be any suggestion in the materials before me that the first two elements of the test are at issue. Accordingly, in this application the third element is the focus of the analysis.
[37] The School District says that at-home instruction is very rarely provided, and it is restricted to students with medically fragile conditions, whose absence from school is expected to be longer than 10 days, or students with chronic conditions that result in frequent week-long absences. In Greater Victoria, this is provided through the School District “Hospital Homebound” program. This program provides support to students on a temporary basis, for a maximum of four hours per week. The School District has provided an undated document summarizing this program, which includes the contact information for an individual to contact to request approval. It is not clear if this document is the full policy or procedure for homebound programming in the School District, or if another such document exists, as no further information has been provided for the purposes of this application.
[38] The School District says the Hospital Homebound program was not appropriate for P because:
a. The program is put in place after hospitalization or on the advice of a doctor, neither of which applied to P;
b. The request from her parents was not medically-based, but was for specific programming;
c. P’s parents indicated long-term needs and the Hospital Homebound program has a timeline attached to it – namely, until a student is healthy enough to return to their regular programming.
[39] The Associate Superintendent of the School District provided P’s parents with these same reasons by letter on October 17, 2019. The letter further says that the School District does not believe at-home instruction would be in P’s best interests, was not what was best for her development and educational, social and emotional objectives set out in her IEP, or taking into consideration her limits or needs. The letter provides options for alternative community-based instruction for P.
[40] Specifically, the School District offered the following alternative modes of instruction:
a. meeting P at a public library to show her how to check out a book, learn to log into a public library computer, familiarize herself with the library and its rules and expectations, and work with P to learn computer skills;
b. helping P take a bus to a recreation centre for swimming and physical therapy opportunities; and
c. arranging for P to meet with Community Living BC support staff in public.
[41] The School District says P’s parents rejected this offer and instead pulled P from school altogether.
[42] I understand P’s position to be that the Hospital Homebound program is not what her parents were requesting. P says the Homebound program “does not emphasize learning,” and was “designed to help sick children pass time.” Rather, her parents appear to have been seeking at-home instruction to meet P’s specific needs. P says that her two elder brothers were also born with special needs, and they both previously received at-home instruction. P does not say when her brothers received this at-home instruction but says that this option was taken away three years prior to the filing of this complaint, due to a change in WorkSafeBC regulations. P says this change has significantly and severely impeded the rights of sick children to receive an education. The School District does not provide any information about any at-home instruction program that was previously offered.
[43] I am satisfied based on the information before me that the Tribunal could reasonably conclude that the School District knew, or ought to have known, that P’s request for at-home instruction was at least in part a request for accommodation for her disabilities. The law is clear that the School District has an obligation to accommodate students to the point of undue hardship. At the same time, P was not entitled to perfect accommodation, but a reasonable one: Central Okanagan School District No. 23 v. Renaud , [1992] 2 SCR 970 [ Renaud ]. P also has an obligation to participate in the accommodation process: Renaud at p. 994‐995. What is reasonable and what constitutes undue hardship is fact specific and will turn on the specific circumstances of a particular case: Renaud .
[44] I am not satisfied at this time that the School District is reasonably certain to prove that they satisfied their duty to accommodate P to the point of undue hardship. There is no evidence before me that providing P with at-home instruction would have caused undue hardship to the School District. To the contrary, there is evidence that processes were already in place to facilitate at-home instruction for students. I am not satisfied that the School District is reasonably certain to prove that P’s parents’ proposal was an unreasonable accommodation or that implementing it would have caused any hardship.
[45] At this time, I am also not persuaded that P did not participate in the accommodation process. There is no evidence before me to suggest that the School District informed P’s parents of a requirement to provide medical documentation in support of their request, but they refused. I have also not been provided with a policy document that confirms this criterion. P says her parents participated in two meetings with the Associate Superintendent of the School District, and they felt that they were not being listened to. At that point, P says she withdrew from school based on the advice of her doctor, because continuing in the circumstances would be detrimental to her mental health. The Tribunal has previously found that a justification defence that centres on people’s reaction to discrimination would be tantamount to blaming them “for refusing to continue to tolerate the discriminatory treatment she was receiving”: Radek v. Henderson Development (Canada) and Securiguard Services (No. 3) , 2005 BCHRT 302 at para. 484.
[46] I find a hearing on all the evidence is necessary to resolve these issues. For these reasons, I decline to dismiss this allegation.
c. Insufficient EA support
[47] The School District agrees that P was not provided with one-to-one EA support during the 2019/2020 school year. However, there is a contradiction in the evidence regarding whether P required one-to-one EA support at that time.
[48] The School District says one-to-one EAs are limited only to students who are medically dependent and require assistance with toileting. Generally, this is most often at elementary school and only occasionally at middle school. At secondary school, the School District typically shares EAs, to allow for independence and growth.
[49] The School District says that P did not require a one-to-one EA, because she was not medically dependent and because she did not require assistance with toileting. The School District says each class included a teacher and at least one EA to provide support. P always had an adult near her. The purpose was to build P’s independence, which was the most important aspect of her Grade 13 education programming. Due to P’s progress in achieving independence, the School District says she could do many tasks independently and safely under the supervision of staff. According to the School District, one-to-one EA support would not have been conducive to P’s independence goals.
[50] In contrast, P says she was unable to multitask or complete her schoolwork without an EA sitting next to her to help her break the work down into small manageable steps. She says she required an EA to move her from “question to question” and “task to task.” She says every time the EA moved away from her, she “froze and suffered”. Without an EA beside her, she would sit at her desk and “do nothing”. She states that not having an EA with her made her feel anxious and stressed, and she became frightened to attend school.
[51] P further says there are documents in the possession of the respondents which would show that the School District had promised P a one-to-one EA for middle school and high school, but that promise was not upheld. I understand that P has previously applied for disclosure of a document from the respondents, which the Tribunal ordered them to produce; however, it is not clear if this is the same document she now refers to. In any event, both respondents confirmed that they did not have the document ordered by the Tribunal to be disclosed in their possession. I cannot give any weight to documents not before me in the current application.
[52] Nevertheless, the issue of whether P needed one-to-one EA support goes to the heart of whether she experienced adverse treatment by the School District when they did not provide this support. I am satisfied based on P’s statements of her experience that she has taken this allegation out of the realm of conjecture. I find this issue must be resolved through a full hearing where evidence can be tested, expert evidence can be called, and witnesses can be cross-examined. Accordingly, I decline to dismiss this allegation at this time.
d. Inappropriate physical activity and abuse by another student
[53] The parties have provided conflicting information regarding the remaining two allegations against the School District.
[54] The School District denies P’s allegation that another student attacked her in front of a teacher in gym class on October 10, 2019. The School District says it conducted an investigation after P’s mother informed them about this allegation. The gym teacher, three EAs, and the case manager all confirmed that an adult had eyes on P for the entire gym class, and that they had not witnessed any physical altercations with any students, including P.
[55] While I acknowledge the seriousness of this allegation, P has not explained how her disabilities were a factor in the alleged adverse impacts of either the attack or the school’s response. Accordingly, although there is a contradiction in the evidence regarding whether this incident occurred, even if I accept P’s account as true for the purposes of this application, I am not persuaded that she has taken out of conjecture that there is a nexus between any adverse impact and her disabilities. For this reason, this allegation cannot proceed.
[56] The School District also denies P’s allegation that she was taken on an inappropriately long walk on October 17, 2019. The School District says it was a regular practice to grant P breaks during her walks whenever needed. Generally, she would not walk longer than 20 minutes at a time without a break. This was consistent with her IEP goals, which were developed in consultation with an occupational therapist. Further, the School District says the EA working with P on October 17, 2019, had worked with her in some capacity for over four years. On that day, the EA says that P was not taken on a walk any longer than was typical at the time, and P was granted breaks as per usual.
[57] In contrast, P says she told the teachers that her back and legs were hurting on this walk, but they forced her to continue. She says this caused swelling in both legs and she suffered over the next few days as a result. It is undisputed that P’s mother reported this incident to the school principal on October 18, 2019.
[58] I am satisfied based on P’s statements of her experience that she has taken out of the realm of conjecture that she experienced an adverse impact, and that one or more of her disabilities were a factor. I also find there is a foundational issue of credibility with respect to this allegation, and neither party has provided corroborative evidence that could resolve it at this stage. Notably, the School District has not provided any evidence regarding its investigations into this alleged incident, such as contemporaneous notes or sworn statements from the staff who were interviewed. P has also not provided any medical documentation to support the adverse impact. I find that a hearing is necessary to determine if the alleged conduct occurred through the examination of evidence, as well as witness testimony and cross-examination.
2. Allegations against the Ministry
[59] P alleges that the Ministry also played a role in “attacking” her education. However, the Ministry says P has provided no basis for this claim. The Ministry says P has not provided a factual foundation or any evidence to take this allegation out of the realm of conjecture. Rather, the Ministry says that the bulk of the allegations in the complaint pertain exclusively to the School District and not to the Ministry. The Ministry further says that the only allegation in the complaint specific to the Ministry is that the Ministry made IEPs ineffective by removing the parent signature requirement, and there is no factual foundation for this allegation.
[60] Although P provided a response to this application, she does not address the Ministry’s submissions. For the following reasons, I agree with the Ministry that P has not provided a basis to take any of the allegations against it out of the realm of conjecture.
[61] In support of its position that it is not involved in the allegations about P’s education or programming set out in this complaint, the Ministry says it and the School District have distinct roles established by legislation and regulations, including the School Act and the regulations thereunder. While the Ministry is responsible for the framework for the public education system, establishing broad policy, and providing funding to school boards, the statutory duty to deliver educational programs belongs to school boards, including the School District.
[62] As a result, the Ministry says the School District is responsible for making all decisions relating to specific schools and programs within its district. The School District also determines the allocation and distribution of funds or budgets for specific purposes among its particular schools. This allocation and decision-making are an exercise of the School District’s exclusive management and control over its own budget.
[63] The Ministry says the School District has sole responsibility over the school-student interactions described in the complaint. The Ministry says the fact that an entity provides funding to another entity which in turn provides a service is not, in and of itself, sufficient to found a contravention of the Code as against the funding entity: Johnson v. BC (Ministry of Health) and others , 2009 BCHRT 48 at para. 44.
[64] Based on this information, and in the absence of any specific information to refute the Ministry’s position, I accept that the Ministry is reasonably certain to prove that it was not involved in the decisions made by P’s school or the School District with respect to her programming in accordance with her IEP, EA support, home schooling request, or the two specific incidents involving P in October 2019. I address P’s specific allegations against the Ministry with respect to her IEP, at-home instruction, and EA support below.
[65] The Ministry says that the only allegation in the complaint specific to the Ministry is that the Ministry removed a parent signature requirement for IEPs “about 9 years ago”. As the complaint was written in November 2019, the Ministry infers that the alleged discrimination is said to have occurred in approximately 2010. P alleges that this change meant that the IEP no longer had any legal standing, and schools did not need to follow it any longer. This resulted in special needs students suffering in the school system.
[66] However, the Ministry says there is no foundation for this allegation, as the Ministry has never required a parent signature on IEPs, either before or after 2010. Consequently, the Ministry has never removed such a requirement. Based on the following information provided by the Ministry, I accept that it is reasonably certain to prove their defence to this allegation at a hearing.
[67] According to the Ministry, IEPs are governed primarily by the Individual Education Plan Order , as amended over time [ Ministerial Orders ]. At all times, the Ministerial Orders have required the School District to offer a parent of the student, and where appropriate, the student the “opportunity to be consulted” about the preparation of an IEP. The Ministerial Orders further specify that where an IEP is prepared for a student as required therein, the School District must provide that student with learning activities in accordance with the IEP.
[68] The Ministry says that IEPs are not written contracts, as set out in the document “Individual Education Planning for Students with Special Needs: A Resource Guide for Teachers” (Province of British Columbia, November 2009) [ Resource Guide ]:
Q: Should the IEP be signed by the parent and a member of the school-based team?
A: There is no provincial requirement for signatures on an IEP. It should be clear to parents that IEPs are not written contracts, but rather working documents into which they have input along with the staff who work directly with the student. Some schools include signatures on a separate page to document who was present and who received a copy of the IEP.
[69] The Ministry says that the Resource Guide was written in 2009, prior to 2010 when the complainant alleges the purported signature was removed.
[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.
[71] Finally, even if P were to prove that it had done so, the Ministry argues that removing a parent signature requirement from IEPs would not be a contravention of the Code .
[72] Although I agree that the allegation that the Ministry removed the parent signature requirement on IEPs has no reasonable prospect of success, I do not agree that this is the only allegation against the Ministry in the complaint. The complaint also alleges that P’s parents applied to the Ministry for at-home instruction for P. However, I am not persuaded that there is any basis in the evidence that the Ministry was responsible for decisions about at-home instruction for students. The evidence before me is clear that school districts are responsible for providing their own policies and procedures regarding home-based educational programming, and the School District has acknowledged that they made the decision to deny at-home instruction to P. Accordingly, I am not persuaded that P has taken out of the realm of conjecture that the Ministry’s acts or omissions resulted in the denial of her parents’ request.
[73] Further, in her response to this application, P alleges that the Ministry gave permission to the principal of her school to “arbitrarily take away funding [P] qualified for and share [her EA] with the class.” The Ministry denies this allegation and reiterates that it is not involved in making decisions regarding individual students.
[74] P has not provided sufficient details about this allegation to take it out of the realm of conjecture. Specifically, she has not provided information about the date this allegedly occurred, so it is unclear whether this allegation falls within the temporal scope of the complaint as accepted by the Tribunal, which is limited to the 2019/2020 school year. She has also not explained how she was aware of communications between the Ministry and the School District about funding decisions related to her EA support. Indeed, P has provided no facts or evidence upon which the Tribunal could conclude that the Ministry took away funding to which P was entitled. Accordingly, I am not persuaded that this allegation is more than speculation or conjecture.
[75] I agree with the Ministry that the complaint against it should be dismissed in its entirety.
IV CONCLUSION
[76] I grant the School District’s application in part. While I have dismissed two of P’s allegations against the School District, the following allegations will proceed to a hearing:
a. P alleges that the School District did not provide her one-to-one EA support in the 2019/2020 school year, which affected her ability to learn;
b. P alleges the School District denied her request for at-home education; and
c. P alleges the School District subjected her to adverse treatment, including on October 17, 2019, when the school forced her to go on a long walk without regard for her scoliosis, causing her pain and swelling.
[77] I encourage P and the School District to make use of the Tribunal’s mediation services to resolve the remaining issues in this complaint.
[78] I grant the Ministry’s application to dismiss the entire complaint against it.
Theressa Etmanski
Tribunal Member