Canadian Human Rights Law

Unsafe at School is working for legislative and policy changes that will improve support for children with diabetes and other medical conditions while attending school. While current laws may not explicitly provide this support, case law and the Canadian Charter of Rights and Freedoms already support the rights of people with disabilities. Common Law duty of care could extend to administering medication and/or taking action in an emergency (can the school ensure your child's safety during a lockdown, earthquake or flood, i.e. when a parent or outside medical help is not available?)


[to] make out a case of discrimination, complainants must be able to show that they were denied a job or a service, or discriminated in employment or in the provision of a service because of race, colour, sex, ethnic origin, sexual orientation, disability, or any other protected ground

Once a complainant has established a prima facie case of discrimination, to justify the rule or practice that caused the discrimination an employer or service provider must show that the affected individual, or group, could not be accommodated without causing undue hardship to the employer or service provider.

The Code applies to all services and facilities customarily available to the public. Public education, and health services to children receiving public education are services customarily available to the public. The school and/or provider of school health services must show that the affected individual or group - e.g. children with diabetes, can not be accommodated without causing undue hardship. Since education and health services are provided to all children - from administered oral medication all the way to delegated nursing care while at school (e.g. gastrostomy care and tube feeding, administration of oxygen, catheterization and suctioning). 

Failing to  provide necessary diabetes care - assisting or performing blood glucose monitoring, counting carbohydrates, insulin injection/insulin pump support, glucagon injection - also fails to accommodate the needs of children with diabetes, is not an undue hardship,  and is therefore discriminatory.

School Districts have a duty to consult - Hewko v. The Board of School Trustees of School District No. 34 (Abbotsford) et al (2006) B.C.S.C. 1638.

Before any decision is made regarding the placement of a child within
the school system and the persons who will have the responsibility to
implement an IEP, the parents must be consulted.

Each party to the consultation has an obligation to provide timely
information and an obligation to make whatever accommodations are
necessary to effect an educational program which is in the best
interests of the child.

The bottom-line requirement for each side in a meaningful
consultation is to be able to demonstrate that the proposal put forward
can produce instructional control of the child

Can a child that is unconscious from hypoglcyemia, or cognitively impaired from hyperglcyemia (lack of insulin), be under instructional control, let alone be considered medically safe or ethically treated?

The Right to Reasonable Accommodation for a Disability - The Duty to Accommodate

The duty to accommodate refers to the legal obligation to take appropriate steps to eliminate discrimination resulting from a rule, practice or barrier that has – or can have – an adverse impact on individuals with disabilities. (A similar duty applies to other areas such as reasonable accommodation for religious differences.) Efforts to accommodate are required up to the point where the person or organization attempting to provide accommodation would suffer “undue hardship” by doing so.

Except from discussion of the Canadian Charter of Rights and Freedoms, Section 15

15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [49]


Within this interpretive context, we can now look closely at Eldridge v. British Columbia (Attorney General), [58] one of the SCC's most recent decisions on Section 15 and a pivotal case on disability rights in Canadian law. The plaintiffs in Eldridge first brought their case before the British Columbia (B.C.) Supreme Court because the province did not provide medical interpretation services to deaf patients. Robin Eldridge had been unable to communicate with her physician, and John and Linda Warren had undergone the ordeal of giving premature birth to their twins without being able to fully comprehend what their doctors and nurses were telling them. The plaintiffs framed their action under Section 15 of the Charter, claiming that provincial hospitals legislation discriminated against the deaf by failing to provide for sign language interpretive services when effective communication was an inherent and necessary component of the delivery of medical services. Both the provincial trial judge and appellate court majority [59] rejected their claim finding that the need for deaf persons to pay for interpreters arose from the fact of the disability and was not an effect of the B.C. Hospital Insurance Act [60] or the Medical and Health Care Services Act. [61]

The appeal to the SCC was allowed. The court began its Section 15(1) analysis [62] by stressing the Section's "two distinct but related purposes." First, the Section "expresses a commitment, deeply ingrained in our social, political and legal culture, to the equal worth and human dignity of all persons." Second, "it instantiates a desire to rectify and prevent discrimination against particular groups Ôsuffering social, political and legal disadvantage in our society.'" [63] The decision continues by taking judicial notice of the "unfortunate truth that the history of disabled persons in Canada is largely one of exclusion and marginalization. Persons with disabilities have too often been excluded from the labour force, denied access to opportunities for social interaction and advancement, subjected to invidious stereotyping and relegated to institutions." By beginning their Section 15(1) analysis in this way, the SCC sends a strong message that equality in the Charter is not just a tool for formally comparing faceless citizens in an abstract manner, but a legitimate ideal that has a particular and dynamic role to play in the lives of individuals and groups that suffer real disadvantage in Canadian society.

In the end, the court unanimously found that the province could not satisfy Section 15 simply by providing deaf persons with health care services strictly identical to those received by hearing persons. They accepted that effective communication is an indispensable part of medical services, and that Section 15 placed the province under an obligation to ensure that deaf persons could effectively communicate with health care providers so as to receive equal advantage from their health care benefits under the Provincial Hospital Act. As a result, even though the two statutes in and of themselves did not violate Section 15, the province's failure to ensure the "equal benefit of the law" to persons with disabilities was a violation of the Charter. The court unmistakably endorsed a substantive model of equality when it wrote:


Section 15(1) expressly states, after all, that every individual is "equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination. . . ." The provision makes no distinction between laws that impose unequal burdens and those that deny equal benefits. If we accept the concept of adverse effect discrimination, it seems inevitable, at least at the s. 15(1) stage of analysis, that the government will be required to take special measures to ensure that disadvantaged groups are able to benefit equally from government services. [64]


Furthermore, Section 1 did not save this violation of Section 15, despite the delicate and difficult balance invoked by legislative decisions regarding the budgetary allocation of health-care dollars within the province, because the province did not establish that a total denial of medical interpretation services for the deaf constituted a minimal impairment of their rights. As La Forest stated for the court:


Given the central place of good health in the quality of life of all persons in our society, the provision of substandard medical services to the deaf necessarily diminishes the overall quality of their lives. The government has simply not demonstrated that this unpropitious state of affairs must be tolerated in order to achieve the objective of limiting health care expenditures. Stated differently, the government has not made a "reasonable accommodation" of the appellants' disability. In the language of this Courts' [sic] human rights jurisprudence, it has not accommodated the appellants' needs to the point of "undue hardship." [65]


By interpreting Section 15 in a way that recognizes that certain groups may need a benefit in order to enjoy equality, Eldridge at least opens the possibility that governments are constitutionally required to take positive and substantive steps to ensure that persons with disabilities and other groups who experience discrimination receive the "equal protection and equal benefit" of the law. Also, Section 15 will provide protection even where the law itself is not making a distinction between individuals, but is merely being applied in a way that allows a distinction to exist. [66]

While Eldridge does not require the government to enact nondiscrimination legislation, the decision likely has already influenced Canadian legislation, given the 1998 amendments to the Canadian Human Rights Act [67] which now requires employers to positively accommodate special needs short of undue hardship.

Eldridge has been applauded by numerous scholars and constitutional authorities. In his analysis of Eldridge, Bruce Porter notes that "[u]nder the emerging framework in Eldridge, the violation occurs, essentially, with the unmet need, not with any particular statute." [68] On a broader, doctrinal level, Diane Pothier praises the court's willingness to delve deeper than the kind of analysis that prevailed in the lower courts, where sign language was viewed as just another discrete service that was ancillary to medical care, such as transportation to a hospital or doctor's office. In other words, both the trial judge and a majority of the appellate court placed emphasis on the fact that the province had the discretion to fill its basket of basic medical care with various services, and as long as this basket was equally available to able-bodied persons and persons with disabilities, there was no discrimination. The problem is that such an analysis fails to address the entrenched and unspoken assumption that there is only one "proper" way to receive these services, that is, via spoken communication, and if that means is not available, for whatever reason, then rectification of the situation is merely "ancillary" to basic health care. In Pothier's words:

All patients require communication with their health care providers; hearing patients can do so directly, without charge, whereas deaf patients, assuming the health care provider does not know sign language, require an intermediary. . . . The Supreme Court of Canada's rejection of the characterization of sign language as an ancillary service is thus a rejection of an analysis that privileges able-bodied methods. [69]

The Canadian Supreme Court has explicitly rejected the United States Supreme Court's adherence to formal equality and embraced a substantive model of equality in which the adverse effects of discrimination will be regarded as potentially violative of Section 15, even without any evidence of invidious motivation or malicious intent. With Eldridge, the court has acknowledged that true equality may require the government to take special measures to ensure that disadvantaged groups can fully enjoy and participate in the benefits afforded by law. [70]