Fredericton mom awaits next step in human rights challenge over lifting of school COVID rules

A Fredericton mother who filed a human rights complaint against the province over its decision to drop COVID-19 mask and isolation requirements in schools hopes to know within a month whether it will be officially investigated.

Jessica Bleasdale filed the complaint six weeks ago with the New Brunswick Human Rights Commission on behalf of her son River, 12, who has neurodevelopmental and gastrointestinal disabilities, shortly after the province lifted all COVID-19 restrictions.

She has kept River and his brother Rainn, 10, home from school since then, she told the commission earlier this week in her rebuttal to the province's call for her complaint to be dismissed.

"I cannot send my child with disabilities to school where there are no mask protections and isolation requirements for COVID+ individuals, and I cannot send my younger son to school either given that he is at great risk to contract COVID-19 in his school environment without protection measures then bring COVID-19 home to his sibling with disabilities," Bleasdale wrote.

In her complaint, Bleasdale argued River cannot safely participate in school without the protective measures because he is at risk of further complications and learning deficits if he contracts the virus, and that the province's inclusive education policy stipulates it should accommodate him and other students with disabilities who are at risk.

In its response, the government denies discrimination toward River on the basis of any mental or physical disability he "is alleged to suffer from."

Mediation among possible recommendations

After Bleasdale filed her rebuttal, she says the commission mediator assigned to the case told her the next step is for legal counsel and/or the registrar to review the submissions from both parties and make a recommendation.

If the recommendation is to dismiss the complaint, Bleasdale will receive a letter outlining the reasons, as well as instructions on how to appeal, according to the mediator.

"If the recommendation is that the complaint not be dismissed, it will typically be referred forward for an investigation (although sometimes an alternative referral can be made such as attempting mediation, etc.)," the mediator wrote.

"The amount of time required for this step can vary tremendously depending on the legal issues raised by the parties and the amount of documentation provided. On average the determination is made within one month."

81-page rebuttal

Bleasdale's 81-page rebuttal takes aim at the province's description of her son's disabilities as "alleged." She notes she provided supporting medical documentation in her original complaint and provides more.

River has received "disability supports, interventions, and assessments from the Government of New Brunswick since 2016," she wrote.

Bleasdale goes on to argue that "there are no shortages of studies on how COVID-19 has impacted persons with developmental disabilities. According to Google Scholar there are in fact over 36,000 studies on the subject."

There is also "no shortage of unfortunate stories of children and youth who have experienced frightening symptoms from COVID-19 infections as well as whose lives have changed due to long COVID after a COVID-19 infection."

Bleasdale details numerous studies and their findings, and quotes articles and experts.

She also includes letters of support from several experts, including three epidemiologists, an emergency physician, an interventional cardiologist and a psychologist.

She points to a recent letter B.C.'s human rights commissioner wrote to that province's health officer regarding the protection of human rights and mask mandates.

"Given the benefits of the mask mandate for thousands of marginalized people and the minimal impact on those being asked to wear one, the balance at this time favours continuing the mask mandate," wrote commissioner Kasari Govender.

Bleasdale also points out a federal judge in the United States ruled March 23 in favour of 12 immunocompromised students who filed a lawsuit claiming Virginia's new mask-optional law violates their rights under the Americans with Disabilities Act.

U.S. District Judge Norman Moon of Virginia's Western District issued a temporary injunction that allows the 12 families to seek accommodation at their children's schools and subsequently denied a motion by the state to dismiss the challenge.

Education Act is 'extremely clear'

Last week, New Brunswick's child and youth advocate provided legal guidance to the Department of Education that "when a child or a member of their immediate family would be at risk of death or serious complications by the contraction of COVID even if fully vaccinated, and if the conditions in the common learning environment create a reasonable risk of that child contracting and communicating COVID, then the district is under a legal and ethical obligation to provide free services in an accommodation setting during the period of risk."

"We believe that this balances the need for the department to balance the safety and freedoms of most students while still meeting its obligations to families at elevated risk." Kelly Lamrock wrote in a report to the legislative assembly Friday about his review of the lifting of COVID-19 measures in schools.

Districts that attempt to send children home and make parents responsible for educational services when other children are receiving services are "flouting the law," wrote Lamrock, a lawyer and former education minister.

Asked during a news conference that day whether school districts could now face legal action by parents who kept their children home because they felt they were unsafe, Lamrock told reporters that would "depend on a number of factors."

"One thing about legal opinions is I tend to give them on facts that I know. I wouldn't tend to get into what may or may not happen," he said.

"What I can say is that the Education Act is extremely clear in Section 12, that when you can't accommodate in the common learning environment, then there is still an obligation to provide educational services to a student based on their need.

"If you're not doing that, then there is always a risk a parent could ask the courts for their interpretation of the Education Act. And we saw that in the Jeffrey Moore decision of the Supreme Court" of Canada in 2012, when universal access to effective reading education became a constitutional right.

Jeffrey Moore, a severely dyslexic student in B.C., was not getting adequate support within the public school system, his family argued, After a 15-year fight, the Supreme Court ruled unanimously in their favour, saying students with learning disabilities have every right to receive an education that gives them an opportunity to develop their full potential.

"That peril would exist with or without the opinion of the child youth advocate," said Lamrock. "We believe that by giving the opinion up front, we may be able to avoid situations that escalate."

'Hit us hard' on any violations, says minister

Asked that day whether he's concerned the Department of Education could face legal action, Education Minister Dominic Cardy did not answer directly.

He said the department is "continuing to offer help for students who have medical conditions."

He also urged reporters who know of any cases where students' rights aren't being respected to let the department know.

"Hit us hard on that. Let us know publicly, privately, we will take care of that, because it's absolutely important that students' education be interrupted as little as possible, especially kids who are already facing the stress and time away from school of having any sort of medical condition involved," he said.

The department will also "within the limits of our resources, and on a case-by-case basis, we will do our best to extend that same protection to kids whose family conditions are … made challenging because of medical issues," said Cardy.

In his report, Lamrock recommended the government reinstate COVID measures in schools until May 21, see if they reduce case counts, and then work quickly to make a final decision that is "properly balanced, researched, communicated and implemented."

The government is not required to implement the recommendations.

In a joint written statement, Cardy and Health Minister Dorothy Shephard have said their departments will take the recommendations "into consideration."