Alberta judge grants injunction on order allowing disabled students to be kept at home amid strike

An Alberta judge has granted an injunction to a ministerial order that allowed the Edmonton public school division to keep some students with disabilities from going to school.

The injunction comes five weeks into a strike between Edmonton Public Schools and Canadian Union of Public Employees (CUPE) Local 3550, which represents educational assistants and support staff. 

In a decision filed Thursday, Court of King's Bench Justice Anna Loparco said it's in the public interest to ensure all students can go to school, even during a labour shortage — and that the four families in the lawsuit have suffered irreparable harm.

"It's, in our view, a huge win for children with disabilities. It's very rare to have cases that reach a written decision like this for equality rights," Orlah O'Kelly said, the lawyer representing the families who brought the case forward.

One of the plaintiffs is Martin Doyle, whose 11-year-old son Ryan has been asked to stay home from school three days a week. Ryan has ADHD and autism that makes him nonverbal. 

"Sometimes he's upset, or he's just crying for unknown reasons. We presume he's just bored and wants to go to school," Doyle said.

"When he sees the bus go by, that's really hard on him."

In addition to the impact on his son, the situation has been challenging financially, Doyle said, adding that he takes unpaid leave from work and pays out of pocket for respite care.

The provincial regulation requiring schools to always offer an in-person class option came into effect in 2022.

According to Loparco's decision, Edmonton Public Schools superintendent Darrel Robertson requested an exemption to that requirement in October, in anticipation of the strike.

Education Minister Demetrios Nicolaides made a ministerial order in January, one day before the strike began at Edmonton schools. The order exempted the school division from having to provide in-person learning, in the name of health and safety for students and staff.

This approach, Loparco said, assumed minimal disruption to the system by only targeting students who use an educational assistant. But she still found it discriminatory.

"This approach failed to consider that non-disabled students might suffer the least amount of harm since they do not have the same disadvantages as the students and could adapt to an at-home learning program more easily," she wrote. 

She concludes that the Education Ministry should take an approach that considers all students and all resources. 

The injunction won't come into effect until Feb. 27 to give the ministry time to consider a new order that complies with Loparco's decision. 

Nicolaides is reviewing the judge's decision, according to a statement CBC News received Thursday afternoon.

According to a letter to families from Robertson, the current arrangements will remain while the division awaits further direction from the Education Ministry.

"Students who are presently on alternative learning arrangements will continue with those arrangements. We are currently examining the decision and conversations have already started about potential adjustments to our contingency plans," the letter says.

Doyle hopes to see a change.

"We're always hopeful they will make better decisions to include all children equally in disruption — and make sure that there's a place for the most vulnerable students that need it the most," he said.

CUPE Alberta president Rory Gill said the union is pleased with the court's decision.

"All children have the right to learn and the minister's order was unjust and cruel," Gill said.

The court also clarified that its decision does not demand the hiring of replacement workers.

Gill was heartened to see that conclusion.