Why is collecting evidence of harm so important?
Part of an effective way to advocate for your child is going to be your ability to communicate with the school.
The information that you tell them is going to impact that effectiveness and also trigger certain human rights obligations.
The Duty to Accommodate is established under section 8 of the Human Rights Code of BC.
In order for you to convince the tribunal that your child has experienced discrimination, the first part of the test will be to prove the 3-part discrimination test.
This is from the website of the BC Human Rights Tribunal
“Moore v. BC (Education), 2012 SCC 61. To prove discrimination, a complainant has to prove that:
- they have a characteristic protected by the Human Rights Code [Code];
- they experienced an adverse impact with respect to an area protected by the Code; and
- the protected characteristic was a factor in the adverse impact.
Once a complainant proves these three things, the respondent can defend itself by proving its conduct was justified. If the respondent proves its conduct was justified, then there is no discrimination. If the respondent’s conduct is not justified, discrimination will be found to occur (para. 33).”
In the context of disability, you will need to prove that they have a physical/mental disability that the school was aware of, that they experienced harm, and that this harm was connected to their disability.
We already have it written in a decision that not all negative experiences are discrimination. Their disability must be a FACTOR in the conduct.
X by Y v. Board of Education of School District No. Z, 2024 BCHRT 72
110] ….I accept that these incidents which X relayed to Y were upsetting to X. I appreciate that the interactions may have fed into X’s general feelings of unease at school, but the fact alone that these events may have happened is not enough, in itself, to establish that X’s disability factored into them. Not all negative experiences are discrimination. Even accepting that these incidents occurred, I did not hear evidence that could establish, on a balance of probabilities, that X’s disability was a factor in the conduct of the adults involved in these interactions.
So….. what does this mean as parents?
We need to document the harm.
Here is my blog Documenting the Harm specifically on how to do that.
We need to be able to communicate to the school and connect the dots for them, that what they are doing is creating harm.
As parents, we need to communicate to the school that our child is struggling and this struggle is connected to their disability. This will trigger MEANINGFUL INQUIRY. They must investigate and come up with solutions to try and decrease the impact of harm.
[99] Next, in B v. School District, 2019 BCHRT 170, the evidence supported that the school district provided the child with the recommended supports and accommodations. The Tribunal found that it was “only with hindsight” that it was possible to say that the child could have benefited from more support: para. 81. It dismissed the complaint in part because there was insufficient evidence to demonstrate that the school district reasonably ought to have known that the child required more: para. 98. In contrast here, I have found that the District had sufficient information to trigger some kind of inquiry or response beyond asking the Student how she was doing and, assuming the counsellor did this, advising of available supports.
[100] In short, I agree with the District that the Parent and Student were obliged to bring forward information relating to accommodation. The Parent did that, when she communicated that the Student had anxiety and trichotillomania and that school was taking a significant toll on her physical and mental health. That information should have been enough to prompt a meaningful inquiry by the school to identify what was triggering the Student’s symptoms and what supports or accommodations may be appropriate to ensure she was able to meaningfully and equitably access her education. The failure to take that step was, in my view, not reasonable. As a result, the disability-related impacts on the Student, arising from conditions in her Language 10 class between April 24 and June 27, 2019, have not been justified and violate s. 8 of the Human Rights Code.
We don’t need to necessarily say overtly, that we are considering filing a human rights complaint. We can communicate in a way that shows them we are taking these issues seriously and one way of doing that is to provide them with evidence of the harm.
It may be through pictures of what has happened or video, but it can also just simply be statements the child has made at home about school or drawings they have done or things they have written down. Feel free to quote your child. Emailing this to the school does create an evidence trail so that if things are not resolved and you do decide to file a human rights complaint, all of these emails will form part of your document disclosure and you can bring them to your settlement meeting.
The respondents (the lawyers defending the school district) are going to make arguments that the school’s actions are justified and that reasonable accommodations were provided.
However, if your child is still experiencing harm, how can they argue that reasonable accommodations were provided? That’s why we need evidence of the harm.
The school district also has the final decision-making power with your child’s education. Parents have a duty to facilitate. Even if we don’t agree with their decision we must not become a barrier to their decision or if in the future we file a human rights complaint, it may be dismissed. Here is the case that created the duty to facilitate.
A and B obo Infant A v. School District C (No. 5), 2018 BCHRT 25
[248] The School District is not the only party with obligations in the accommodation process. Rather, the parents were obliged, as the Child’s representatives, to work towards facilitating an appropriate accommodation: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. If the School District initiated a reasonable proposal that would, if implemented, accommodate the Child, then the Parents were obliged to facilitate that proposal. Failure to do so is fatal to their complaint of discrimination.
So, if their decision is creating harm, we are going to need evidence of that to show that what they decided isn’t working.
I know this piece of collecting evidence can be really hard for parents. They don’t feel that they “should” have to do this. They feel that this is being too aggressive and they don’t want to upset people at their child’s school. I get it. No one wants to feel that they are in an adversarial relationship with their child’s school. Jumping the shark can be really hard.
When you advocate you can still be pleasantly persistent and communication doesn’t need to be adversarial. However, I haven’t known of any effective advocacy when parents put being viewed as “nice” as their priority, over effective communication.
Here is the Inclusive Education Manual created by Incluison BC for helpful information on how to communicate with your child’s school. Here is Family Support Institute’s Toolkit Resources on education advocacy. And I would also just want to add, that if things get intense…which sometimes they do. Please read my blog on 5 Rules on How to be Untouchable
Document
Communicate
Repeat
And if that doesn’t work….
You have external complaint systems