It is important that parents know about important legal precedents and know what rights they and their children have in the school system.

There have been two major lawsuits in BC that were funded by a group of autism parents. 

Auton, 2000

In the Auton, 2000 lawsuit, parents argued that denying their children medically necessary ABA treatment was discrimination under the Canadian Rights and Freedoms act. If ABA was provided through medicare, this would greatly improve access to ABA in the schools. This lawsuit was won in BC, but later struck down by the Supreme Court of Canada. The Auton 2000 decision is an excellent read to see the historical state of things in BC prior to 2000. It is thanks to the BC findings that there were many changes made in BC which included individualized funding for autism treatment (where previously there was nothing) as well as an acceptance that ABA was the best behaviour treatment for children with autism. We need to be forever grateful to those families who sacrificed their time and money for this lawsuit.

Hewko, 2005

Later, the Hewko (2005) lawsuit was started to fight for the right to ABA in BC classrooms. This lawsuit was won in BC and never appealed. The Hewko case has a major bearing on the quality of education for our children. The BC Supreme Court ruled that the Abbotsford School District breached its statutory duty to meaningfully consult with a student’s parents regarding the education of their child with autism. As a result of Hewko, there are three main parent/child rights:

  1. The right to consult. This means that the parents can not simply be “told”, but have a right to participate fully in their child’s education. They also have the right to be consulted prior to an aide being assigned.
  2. The right to review files. Parents can view all student records (unless it’s a protection/abuse case) and request copies. The Freedom of Information and Protection of Privacy will apply.
  3. The aide must have “instructional control” over the child. This is not the same as “functional control”. There is a difference between thriving and surviving.  Your child needs to be learning in a meaningful way.

In Hewko, 2005: [6], [7] and [8] have good descriptors of what went wrong in Abbotsford and [11] states the failure to consult.  [61] and [62] are good statements to refer to. [77]  [78] [87] and [88]are good reminders of what can happen if no ABA program is in place.  Also see [334] and [335].

Moore, 2014, SCC 61

A third lawsuit,  Moore 2005, was brought forward by parents of a child with dyslexia when the Vancouver school district cancelled a special program that had allowed children with dyslexia to learn.  The case was won in the Supreme Court of Canada in 2014.  The judges found that 

  1. North Vancouver did not accommodate the needs of a student with Dyslexia
  2. a finding of “discrimination was made out based on the insufficiently intensive remediation provided by the District for Jeffery’s learning disability, in order for him to get access to education that he was entitled to
  3. Jeffery’s dyslexia program was a “ramp that provides access to the statutory commitment to education made to all children in BC”

Other important documents and resources:

The district of Surrey (#36) is the only district that has ABA Support Workers (ABASW) must have at least 1000h of ABA experience and do not need the Special Education Training (SETA) required by most districts. It is expected by the Surrey School District that ABA SWs will implement programs from a private Behaviour Consultant.  Surrey has a Home-School Collaboration document that explains the importance of maintaining consistent programing and support.  You can download this document to show other districts what is possible.

As well, Surrey has an ABA Advisory where parents can voice their needs to the district.

Thanks to parent advocacy, other districts are also now hiring Educational Assistants who have ABA experience without needing SETA.  Parents should ask about their district or about the level of support for ABA in specific schools on the ASN Closed Parent group.  Keep in mind, whether in Surrey or any other school district, you will likely need to advocate for your child at some point.  

SPECIAL EDUCATION SERVICES: A MANUAL OF POLICIES, PROCEDURES AND GUIDELINES : A Government of BC document available here.

See p V – Collaborative Consultation

See p 6 – Program Development and Delivery (parent must be meaningfully consulted). You could also refer to Staff Development which you are offering

See p 9 – Second paragraph from the bottom 

See p 10 “Parent” – It states that parents know what is best

See p 12 – The process works best when: 

  • there is collaboration and ongoing consultation among teachers, administrative and support personnel, parents, students and representatives of district/community/regional agencies. 
  • parents/guardians and students have the opportunity to be active participants in the process, to initiate discussions regarding the learning needs or request school-based access to support. They should feel welcome and encouraged to contribute throughout the process and are important partners in the development of the Individual Education Plan (IEP). As a rule, students should be included in all phases of the process unless they are unable or unwilling to participate.

See p 13 promote communication and collaborative decision-making between the school and home;

Read the Advocacy Road Map next.