Education as a Human RightLindsay A. Waddell

3rd Floor – 195 Alexander Street

Vancouver, BC V6A 1N8

T: 604-689-4457

1-888-689-4457

lindsaywaddell@unionlawyers.com

www.unionlawyers.com

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Overview Where does the right to an education come from?

What does the Human Rights Code provide?

What does discrimination really mean?

What does accommodation mean?

What you need to know about the BC Human Rights Tribunal

Key cases and principles Hewko

Moore

Questions

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International Instruments• UN Charter – imposes an obligation on member states

to protect and promote human rights

• Universal Declaration of Human Rights – Article 26

Everyone has a right to education.Elementary and fundamental education shall be free.Elementary education shall be compulsory.Education shall be directed at the full development of the human personality and to the strengthening of respect for human rights

and fundamental freedoms. Parents have a right to choose the kind of education that shall be given to their children.

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School Act School Act, R.S.B.C. 1996 c. 4121. Domestic legislation aimed at enabling “all learners 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.” For children with special needs, special education is the means by which this goal, and meaningful access to education, is achieved.

Ministerial Orders and Policy1. Ministerial Order (M150-89 provides that generally speaking

special needs students will be provided with an educational program in an integrated classroom)

2. Other ministerial orders establish the need for IEP’s, reporting requirements and other support services for special needs students.

3. Ministry of Education’s Special Education Services Policy Manual

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Charter

The Charter applies to government laws and actions, including schools legislation and decisions made by Provincial governments, government ministries and school boards in relation to the provision of education.

S. 15 Right to equal benefit and treatment before and under the law.

S. 23 Right for French and English language minorities to receive education in their language.

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Human Rights Code

Prohibits discrimination.Applies both to government and private actors.Applies to specific areas of public life, including:

Discrimination in accommodation, service and facility.8 (1) A person must not, without a bona fide and reasonable justification,

(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or

(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons.

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What is discrimination?

• Depends upon the context in which you use it.

• The Charter uses one test for discrimination. The Human Rights Code uses another.

• Prima facie discrimination (complainant’s burden)1. member of a protected group or possesses a characteristic

associated with a prohibited ground;2. adverse treatment;3. nexus between membership or characteristic and adverse

treatment.

• Complainant bears the burden of proving prima facie discrimination. Respondent can successfully defend if they can establish a bonafide and reasonable justification.

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What is accommodation?

• No perfect or desired accommodation.

• Entitled only to reasonable accommodation.

• Accommodation required to point of undue hardship.

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BC Human Rights Tribunal

(Important Stuff)

• Short timelimit for filing: 6 months.

• Unless…..the alleged contravention is “continuing”.

• “continuing contravention” does not include:

1. An ongoing state of affairs2. Asking for the same thing over and over3. One act with continuing effects or consequences

• Defined as a “succession or repetition of separate acts of discrimination of the same character.”

• Don’t wait to file a complaint. File early, and amend if necessary to accommodate changing circumstances.

• Narrow discretion to accept late filed complaints.9

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BC HUMAN RIGHTS TRIBUNAL PROCESS – FLOW CHART

Complaint filed

Complaint screened

Complaint deferred?

Early Settlement Meeting Option

Response filed

Disclosure

Dismissal Application

Case Conference and Further Disclosure

Settlement Meeting Option

Complaint not accepted for

filing

Complaint settled

Complaint dismissed

Complaint settled

Hearing

Complaint justified or dismissed

BC Human Rights Tribunal

(Somewhat important Stuff)

1. Publicity

1. Cost

1. Stress

1. Length of process (and therefore resolution)

1. Remedies available

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3rd Floor, 195 Alexander Street

Vancouver, BC V6A 1N8

T 604-689-4457

1-888-689-4457

lindsaywaddell@unionlawyers.com

www.unionlawyers.com

Lindsay A. Waddell

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