The term “hearsay” in this context is when kids come home and tell us things that happened at school that we didn’t witness ourselves.
Here is the heart of the issue. ———- When your child comes home and tells you what happened in school that day—– that in of itself is not evidence the tribunal will automatically accept as fact just on its own. You need evidence. The tribunal will assign little weight to hearsay evidence, compared to staff who can testify firsthand to what they witnessed.
Naturally, the first question is – how do I collect evidence when I am not even there at the school?
Good question.
This is the pickle you are in. You need to gather evidence in other ways.
There was a recent BC Human Rights Tribunal decision posted, and it lays out how all of the mother’s allegations were not accepted without evidence. Some of the evidence provided from the school conflicted with her allegations. We have the burden to prove that our allegations are true first. Then, when we complete that, it falls to the school district to justify it, or prove the allegations are not true, with evidence.
Here is the case.
Child D (by Mother D) v. The School District, 2026 BCHRT 106
Each allegation was not accepted by the tribunal because there was no evidence to support the allegation and/or to link the harm to the protected ground – Indigenous Identity. I highly suggest you read the case in full to fully grasp what requirements are needed for the tribunal. Each allegation is clearly listed and explained. I would basically need to cut and paste the whole case here to give it justice.
I am going to come back to this case later, because if you are a family struggling with family law court issues, there are aspects of this case that highlight the school’s interaction with that. Two parents had different perspectives and take on the child’s education experience. If you are struggling with this – this case will be of interest to you.
Here is another case that went all the way to a hearing and deals with the issue of hearsay from a child.
*******
A and B obo Infant A v. School District C (No. 5), 2018 BCHRT 25 (CanLII)
[42] I have assigned relatively little weight to the Mother’s evidence where it conflicted with the first-hand accounts given by the School Counsellor, Principal, Vice Principal, and Teachers H, M, and G. I have found the Mother’s hearsay evidence considerably less reliable than the direct evidence of reliable witnesses, where there is a conflict.
[37] I am entitled to accept some, none or all of a witness’ testimony. Where there was disagreement in the evidence, my findings and reasons are set out. Where necessary to do so, I have assessed credibility and considered factors such as the witness’ demeanour, powers of observation, opportunity for knowledge, judgment, memory, and ability to describe clearly what they saw and heard….(continues)
[228] In summary, none of these incidents amount to discrimination under the Code. The Mother made numerous allegations about the School District accepting the word of Caucasian students over that of her Child, but agreed in cross-examination, that she did not know the races of the other students involved. Contrary to her testimony, the students involved in the Second October 2015 Incident, April 2016 Incident, and November 2016 Incident were not Caucasian.
********
[44] During cross-examination, the Mother responded to several questions regarding her testimony about her Child’s version of events by saying that she did not know or was not there. She acknowledged that most of her knowledge of the incidents came through her Child. I find that her son was more likely than not motivated to minimize his involvement in some incidents when reporting them to his Parents, so as to avoid discipline. For example, the Mother described disciplining the Child in relation to an incident where he swore at the Principal. She described their punishment as “Draconian”. (In retrospect, the Mother regretted using that word in her letter). As another example, regarding the November 2016 Incident, the Child only reported to his Parents that he grabbed another student by the collar, whereas I find, as a fact, that the Child choked a student, pushed him over a railing, and spat in his face.
********
Depending on their age and ability, you may want to consider having your child be a witness. Here is a blog about having your child testify. Does my child need to testify?
Here is a case example of a teenager who testified.
******
Student (by Parent) v. School District, 2023 BCHRT 237
[2] I commend the Student for her participation in this difficult process. She gave evidence that was helpful, straightforward, and credible, and which I have relied on to decide this case. I also thank the Parent and representatives of the District for their hard work and sensitivity in presenting their respective cases.
******
Having your child testify will remove the issue of hearsay or double hearsay.
Also…document, document, document.
Because we are not there witnessing events, the more evidence we can have documented in emails, the better position we will be in to assess our complaint and the evidence we will need to prove our allegations.
Here are blogs on gathering evidence
Documentation
Improper Conduct – Hiding Disclosure – What documents to ask for
Why is Documentation so Important?
Evidence of Harm. Effective advocacy in Education
How to Gather Evidence
Remember, we have to prove the elements of the discrimination test. The burden falls on us to provide evidence that these things occurred.
Broe v. School Board of Education
[57] For the reasons that follow, I find that Ms. Broe has not met her burden of proving the elements of her case.
Discrimination Test
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.
