The law of food allergy and accommodation in Canadian schools

Abstract

Background: There is ongoing controversy surrounding the appropriate standards and limits of accommodation of children with food allergies in schools. We identify and explain how relevant Canadian common law, legislation, constitutional law and human rights policy can inform future school policy around allergy, disability and food bans.

Main body: The Canadian Charter of Rights and Freedoms applies to governmental laws or policies, including the policies of schools, and grants every individual the right to freedom from discrimination based on, among other things, disability. Canadian constitutional and human rights law define disability broadly including perceived disabilities. Provincial human rights tribunals in both Ontario and BC have explicitly found allergy to be a disability requiring accommodation, even in cases not involving anaphylaxis risk. However, the cases most pertinent to the scenarios faced by schools have found that food bans may not be required, due to recent scientific evidence that they do not render allergy sufferers safer.

Conclusion: Anaphylaxis-level allergy constitutes a disability under both the Charter and human rights legislation, despite the fact that higher courts have not definitively ruled on the matter. Accordingly, schools must make careful decisions about how to deal with life-threatening allergies among their students. Food bans are generally not legally necessary, and, in the absence of new legislation, are only likely to become so if sufficient scientific evidence demonstrates that they increase safety for students. School policies should be substantially informed by evidence-based research in order to ensure ongoing congruence with human rights law.

Keywords: Allergy policy; Anaphylaxis; Disability; Health law; Human rights; School policy.