Here are some options to consider. Gathering evidence is VERY important. It will make the school district and their lawyers very uncomfortable. They will not like it, and it could help you get that settlement you are looking for. It communicates to the lawyers that you are preparing for a hearing. They will also be concerned that if you have more evidence, you will feel more confident in your case and may ask for a higher settlement amount. So gathering evidence is EXCELLENT behaviour communication. Because remember, they don’t believe your words, but they do believe your behaviour.
You also want to be collecting evidence when things are going well. You never know what could happen in the future.
Step One – Create your own evidence
- Before you even file a Freedom of Information (FOI) request, you are going to be gathering your evidence while you advocate. Emails are KEY.
- Examples of this are:
- After any oral communication (phone call/school meeting/face-to-face conversation) is done, send a follow up email with the meeting notes, summary of the conversation, and key action items or decisions that came from the meeting/conversation. Ask them to reply if you misunderstood anything, or if anything is incorrect.
- Send emails that document your process. Who you spoke to, who you have emailed, about your advocacy. Documenting a timeline of your process is key.
- For some people, situations are so desperate that they are recording school meetings. I have never done this myself but for some people they have gathered the most incredible evidence. In Canada we have one person consent privacy laws. Please do your own research on this. **** IF you are an employee. PLEASE PLEASE consult with an employment lawyer before you do this. Recording your colleagues is VERY different and the case law on this bounces around a lot. You could lose your job over this. So, please consult with a lawyer.
- Gather evidence at home. Take pictures of bruises, homework pages, etc. I know this part will feel like an intrusion in your child’s privacy, but you may want to set up your camera to video their meltdowns at home, or them in a conversation with you about school refusal.
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Step Two – File a FOI
- File a Freedom of Information (FOI) request
- Here are the instructions. **** You are going to want to name every single person you have had a conversation with and list their supervisors above them. Also include the superintendent.
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With the FOI request, you will most likely never get all the evidence that exists. The school district is certainly not going to just hand you over all the evidence you will need to win your case. They are always wanting to reduce their liability.
But what you may get are some stepping stones that could be very helpful later.
Also check to make sure you think you have everything. If you feel like documents are missing or you want them to remove their redactions, you can file an OIPC complaint.
There was one case where during an OIPC process, the Ministry of Education accidently sent the people everything that they were hiding from them. Order 2833
[4] During the inquiry, the Ministry mistakenly gave the applicant access to a largely unredacted copy of the records (unredacted records) that was intended to be provided only to the OIPC. In doing so, the Ministry mistakenly disclosed to the applicant all the information in dispute under ss. 3(1)(b) and 13(1) and most of the information in dispute under s. 22(1).
Also, the school district I made a request through, accidently sent me emails to their lawyers. I had no idea the lawyers were involved so early on. That was an interesting piece of information. So, hey, why not give it a try, submit an FOI, you never know what you will get.
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Step Three. – Filing applications for documents through the BC Human Rights Tribunal (BC HRT) process
PART A – Getting TRB documents
- When you file a human rights complaint, you may want to consider if you want to file Teacher Regulation Branch (TRB) complaints as well.
- This is completely depending on your situation, but you may want to consider not just filing on one person but on multiple people. If you include a principal and file a complaint, it is standard for them to meet with the teacher in trouble with a union rep and there will be meeting minutes. They may submit these to show the TRB they are doing their job and put blame on the teacher. ** But remember, every person you file on you will need to link their behaviour to not being in line with the teachers standards. You can file on teachers, principals and district staff. Anyone who is a certificate holder.
- The school staff think that their documents and communication with the TRB are completely confidential. And they are to a point. If you submit an FOI request after the complaint process is finished, you wont get any of the teacher documents. (Hold this point for later)
- A strategy that they will do if there are multiple filings, on the group is that they will blame each other and provide evidence on the other people in order to get the heat off of them.
- Then, during the human rights complaint process if the mediation settlement meeting fails and you move onto the document disclosure stage, this is where the action happens.
- You can file an application for documents. During the document disclosure phase the respondents (school districts lawyers) will give you a bunch of documents. I can tell you right now, it will be crap. They will be selecting documents meant to send you a message. It will be long. Mostly your communications. They will pick out the ones you are going to not like the most. But here, yet again, they aren’t just going to lay out all of the evidence for you. You are going to need to fight for it. And that fight for it, will be via an application process. Form 7.1 – Order a party to give you documents.
- You can follow this process and apply for documents from your TRB complaints. For me, this process gave me the most incredible evidence. Like, shockingly so.
- You can explain to the tribunal why these documents are relevant to your case, or how you need these documents to question their credibility at the hearing. Be very thoughtful when you write your application.
- ****** No matter what, if you request documents and they tell you they don’t have them, DON’T BELIEVE THEM. File an application anyways. This happened to me, I didn’t believe them. Filed an application, and within weeks I got exactly what I knew they had. This was even after an unsuccessful OIPC complaint. The BC HRT has stronger teeth than the OIPC.
- Filing applications not only gets you evidence, it makes you expensive. This encourages them even more to settle. Something to keep in mind in a settlement meeting, you may want to let them know all of the applications you plan on filing for the document disclosure part of the process. Which, you can file applications continually up to the hearing. Make this process very expensive for them. The School Protection Program is not going to want to pay for all of these lawyer fees.
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PART B – Become a detective
- The second step after you get your FOI is go through everything with a fine tooth comb and look at the names on the email addresses. Who is there, but also who is missing. Think if that information is relevant.
- Count the pages, are there pages missing. Did they remove anything. (I had missing pages)
- Read the emails. Did they mention a meeting or any other documents being created? If so, you are now going to include that in your application for more documents. Follow the trail until you hit a dead end. You are going to want those meeting minutes and a copy of any documents that were created from those meetings.
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PART C – What to just automatically request
- Request minutes for meetings. If teachers are in trouble, they will be meeting with the principal and a union rep. Request those meeting minutes. There is potential golden evidence in there.
- Emails – include teachers, LSS teachers, always a principal, and whoever you last met with – whatever level they are at, request emails that include the name of their supervisor.
- Always include the superintendent. ** We want to know if they were involved and aware. They could be a potential witness at your hearing. School district is going to jump when they see their name on the witness list.
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Step Four – Another round
- Whenever you get documents from your applications, go through everything with a fine tooth comb again. Are there more breadcrumbs that talk about other meetings, involve other people, refer to other documents?
- Request that they remove ALL the redactions. This can be done informally, just through an email to the lawyers, and if they don’t – file another application.
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You are going to need to put your detective hat on and become Nancy Drew. They will most likely be hiding evidence from you, and the tribunal will only be basing their decision on the evidence they have in front of them, not your opinion or thoughts. When people don’t have evidence the tribunal will say something along the lines of your case being dismissed because you haven’t brought your allegations out of the realm of conjecture. Gathering your evidence will be KEY. Be patient. Be methodical. Start the hunt.
Also, remember to document when things are going well.
As this parent reports,
“Districts often argue that they did the best they could with the information they had at the time. Keeping thorough documentation when things are going well makes it’ll a lot more difficult to use this argument, since you will be able to clearly show when specific accommodations were removed and the harm that resulted. I think it also adds to my credibility as a parent, showing that I collaborate in good faith and facilitate accommodations.” – Parent
Related Blogs
Let’s Talk about Hindsight
Why is Documentation so Important?
Evidence of Harm. Effective advocacy in Education
Liability in Education
