You do not need to prove or have evidence that your child’s school intended to harm them. That it was on purpose. Just that they did.
Let’s travel back in time to January 2020. Pre-COVID. I started an online course on Rental Property Management. I was lost in terms of what I wanted to do for work. There were aspects of rental property that intrigued me. Enough for me to take up an online course and see where it leads. This decision changed the course of my life.
I was reading a chapter a month, then took the online test. Each month, one more chapter. Then COVID hit. I had more time on my hands. Two chapters a month.
I found it to be quite boring. The only two chapters I found interesting were the chapter on law and the other one on human rights. A flag, a road sign, an indication of my interests. I started to read chapter 14 on human rights in the middle of August. (Note: One-year timeline for my child’s complaint was September 19th, 2020). At first, I was unaware the clock was ticking. I was reading through the chapter, and my eyes read this line:
“…the Human Rights Code does not require an actual intent to contravene (section 2). Thus, unintentional acts that have the effect of discrimination are prohibited under the HRC and are subject to the HRC’s remedies.”
This chapter was FULL of information all about the human rights process, complaint filing, and discrimination.
And I couldn’t stop thinking about it.
If you could envision a train going down one track, and someone pulling the lever to switch tracks. This was it. What was holding me back was that I thought I would have to prove that they intended to hurt her. I didn’t know how I would gather evidence for that. I didn’t have evidence for that at the time or that I would ever get it. (Through the application process, I did gather evidence of horror.)
I had previously looked at the BC HRT website, but it all looked really scary to me and overwhelming looking at all of the information. The never-ending pages.
It was THAT sentence and THAT chapter that sent me off to the Human Rights Clinic. It was easier to digest the content and the information when reading it all in chapter format than reading it off in sections on a website. I sent an email, with evidence attached, to the BC Human Rights Clinic. My question was, can I file a human rights complaint? 5 days later, they called me back. Told me to file.
And I was off.
The rest is history.
People usually need to feel that people are doing things intentionally to hurt their kids to justify filing a human rights complaint. School staff can be so ableist and ignorant that they don’t even realize the harm they are causing. Completely oblivious. They could also be prioritizing administrative convenience and other justifications that they willfully looked the other way. They may truly believe and think they are in the right, believing that they have teacher autonomy and they can decide if your child gets accommodations or not. That they don’t have to follow the IEP. It’s their classroom. Their circus. You don’t need to prove that they intended to harm your child, just that they did.
It all comes down to the discrimination test.
Which you have the burden to prove, with evidence.
It’s not about intent. It’s about impact.
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Human Rights Code:
Discrimination and intent
2 Discrimination in contravention of this Code does not require an intention to contravene this Code.
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This is from the BC HRT website on Leading cases: Test for discrimination
Leading cases: Test for discrimination
“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).”
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I filed my first human rights complaint 5 days before the one-year timeline. Like Indiana Jones, I slid through just in time…and grabbed my hat.