Let’s Talk about Hindsight!

Hindsight and Meaningful Inquiry

Want to get the school moving on providing your child supports?

Remove their hindsight defence and trigger the duty to accommodate.

Why does the school want a defence at all? To avoid a finding of discrimination if a parent was to ever bring their case to a hearing at the BC Human Rights Tribunal.

If they know we could be successful at a human rights tribunal hearing, they will be much more motivated to provide your child the supports they need NOW. This is because they want to reduce the damage period. They are always focused on reducing the scope of your complaint and minimizing the harm.

Removing their hindsight defence and triggering meaningful inquiry is key for our children.

This decision explains what the hindsight defence is.

Student by Parent v. School District BCHRT 237

[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.

They may claim, “We didn’t know.” If they didn’t know your child needed more support or ought to have known they needed more support, they will escape responsibility. When they are aware, they must investigate.

So you know what that means.

Parent(s)/guardians need to be VERY communicative with the school and tell them that:

Tell them your child is struggling.
Tell them your child’s struggle is connected to school.
Explain how your child is struggling.
- Are they crying at home?
- Are they refusing to attend?
- Are they melting down after school?
- Do you have examples of homework or school work to show them as evidence?
Explain how their struggle is connected to their disability.

So, we need to start this off in an email. We need to document it.

Whether they respond to the emails we send is another blog. But we need to build evidence that they were VERY aware, in case they think they can claim they didn’t know. It’s amazing how the defence of “oh we didn’t know, oh I was confused, oh I think we had a misunderstanding, I didn’t realize that…”. We need to be so crystal clear that we don’t give them any wiggle room to say “we didn’t know”.

Human Rights Decisions – Education

There are two human rights decisions that, when put together, are powerful. Both parents self-represented themselves at the BC Human Rights Tribunal.

They must investigate when we tell them our child is struggling. – Meaningful inquiry.

Student by Parent v. School District BCHRT 237

[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.

[104] In sum, I have found that the conditions in the Student’s grade 8 Language 10 class exacerbated the Student’s anxiety and trichotillomania, and that the District failed to take reasonable steps to investigate and address those conditions during the period between April 24, 2019, and June 27, 2019 (the last day of school). I find this is a violation of s. 8 of the Human Rights Code, and warrants a remedy, which I address below.

They aren’t allowed to give up when things aren’t working well. They must review and adapt their approaches.

X by Y v. Board of Education of School District No. Z, 2024 BCHRT 72

[120] Ultimately, on a balance of probabilities, I am satisfied that the District discharged its duty to accommodate X in his grade 2 year by reviewing the Diagnosis Report, developing an IEP, making various support people and strategies available that were incorporated into the classroom and outside, reviewing progress and changes, and adapting its approach in response……

Meaningful Inquiry – Duty to Accommodate

By communicating that our child is struggling, we will trigger MEANINGFUL INQUIRY. You are triggering the duty to accommodate.

It is very

very

very important that we are communicating with them. This is how we block a hindsight defence.

Schools are increasingly not wanting to put communication in emails, and instead, they want phone calls or meetings. They may say that it is easier to resolve issues through communicating in person/phone. That may be true. But it is not lost on us that it also doesn’t create any documentation.

But that doesn’t stop us from sending emails to create a paper trail and document what is happening. You can create a summary of the minute and put in the email, “Please let me know if I have misunderstood anything or if you need to clarify anything I have written.”

So send those emails. cc: the main people responsible. Principals and LSS teachers for IEP implementation. Each person you cc: in an email could be a potential witness in a hearing.

Just keep sending those emails and create that paper trail. Communicating is part of the collaboration process in the duty to accommodate. So, you are just fulfilling your responsibility in the process.

Any diagnosis you have received from a doctor, even if it didn’t come from a psychoeducational assessment, I suggest you have the doctor write a letter and ask the school to put it in your child’s file. Also, you may want to ask them how this is going to be communicated out to the staff, so they are aware. Anything you can do to provide documentation on a diagnosis locks them into the duty to accommodate.

Blogs on Creating a Document Trail

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

Blogs on How to Communicate with the School

Communication
What is the Ask? Email writing for School Advocacy
5 Rules on how to be Untouchable
The Use of Delay
Defamation. You Said What?
Liability in Education
Email Q & A
How to Gather Evidence
Strong Advocacy = Written Authority

December 16, 2025December 20, 2025

What is Fatal to a Human Rights Complaint in Education?

A and B obo Infant A v. School District C (No. 5), 2018 BCHRT 25

I have heard of many families in very complex situations. Parents/guardians are struggling with accepting/agreeing to accommodations offered by the school that they feel very strongly won’t work. If you are thinking that the human rights process is a process you might be considering, there are important things to note.

I have pulled the paragraphs/parts of paragraphs from this case that I feel are important for simplicity. I highly encourage people to read the full case to understand the context of everything and how a hearing and the Human Rights Code are applied. It is a layered case and the complexity of the situation is something many families can find themselves in.

I’d like to also note, that even though we are reading this case, there might be information that is not written about that this family may feel is very important that was left out.

Let’s look at the issues this case brings up and how we can be prepared for them.

Some of the topics this case brings up are:

The importance of documentation and having as much evidence as you can.
Witness testimony from parents and education staff (credibility conflicts)
The role and responsibilities of parents/guardians.
- The duty of parents/guardians to facilitate accommodations
- Parent/guardian credibility
- Parents/guardians duty to cooperate in good faith

“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.”

DIRECTLY FROM THE CASE:

[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)

[38] In resolving conflicts in the evidence, and determining whether to accept the evidence of any witness, in whole or in part, I have adopted and applied the test set out in Bradshaw:

Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides. The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his [or her] memory, the ability to resist the influence of interest to modify his [or her] recollection, whether the witness’ evidence harmonizes with independent evidence that has been accepted, whether the witness changes his [or her] testimony during direct and cross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally. Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time. (Bradshaw, para. 186, citations excluded)

[39] I find that the most helpful evidence in this case is the documentary evidence created at the time of events…(continues)

[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.

[43] The Mother acknowledged that she was probably not present for most of the incidents at school that involved her Child. At times, she had a hard time recalling events. For example, the Mother’s testimony on the psychoeducational assessment of her son was wrong by one year. She acknowledged that she was “out a year”. The Mother testified that there is no reason to dispute the emails that were authored by her at the time. The Mother testified “that is what I wrote at that time”.

[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.

(Parents’ Obligations (Paragraph 248-260) ** Important to read in the case. This case was dismissed and discrimination was not found. )

[258] In summary, the evidence shows that the accommodation process of the Child at school was often frustrated by the unreasonable actions or inactions of his Parents. The Parents did not attend re-entry meetings after the Child was sent home from school; the Parents attended the first IEP meeting, but refused to attend future IEP meetings. After November 2015, the Parents stopped providing comments to draft IEPs that were sent to them for review. The Parents refused to participate in the creation of a Safety Plan for the Child. The Parents did not provide the requested medical and psychological information to enable the School to modify the Child’s IEP. The Parents rejected the Principal’s offers of an educational assistant, classroom change, pod change, and school change. The Parents interfered with and rejected the psycho-educational assessment performed by a school psychologist. The Parents opposed any involvement of the District’s Intensive Behavioural Team with the Child. The Parents refused to allow an educational assistant to work with the Child despite it being recommended by his teachers, School Counsellor, and Principal. In a letter dated May 2016, the Parents wrote that the Principal was the “root cause of all this mess”.

[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.

Again, I highly encourage everyone to read the full case. I appreciate every family who has taken their case to the human rights tribunal hearing level. Even cases that have not “won” are still beneficial. It is through their experiences and stories that the rest of us learn and therefore become better advocates for our children to navigate this current system.

TAKE AWAY LEARNING

Whether this is fair or unfair/just or unjust/right or wrong…to uphold a human rights complaint…this is what I take away from this case.

We need to be so thoughtful in how we communicate with the school.
We need to be solution focused.
Our credibility just like the staff’s credibility may be a part of the hearing process if there are issues around credibility and the relationship with the school.
We need to document everything and gather as much evidence as we can.
We need to cooperate and facilitate accommodations and if they are not successful, document the failure. (Paper documentation, video, etc)
We need help. We should seek guidance and advice from as many professionals and other advocacy support people as possible if we find ourselves in a challenging advocacy situation at our child’s school.

However, it is also important to be aware.

"Parental conduct or lack of parental authority cannot be used as a justification for not meeting an exceptional student’s needs;"

To view the document on CanLII’s website:
L.B. v. Toronto District School Board, 2015 HRTO 1622 (CanLII)

"a parent’s “fierce advocacy” for his or her child must not and cannot prevent a school board from accommodating the child’s needs to the point of undue hardship."

[77] The Interim Decision sets out my reasons for issuing an order with respect to the first two points, as follows:

(a) School boards have an obligation under the Code to accommodate their students with disabilities to the point of undue hardship, regardless of whether the students are receiving any medical treatment in the community or not;

(b) School boards cannot order or demand of parents to place their children into residential psychiatric treatment programs and cannot deny or withhold accommodations to the point of undue hardship on the grounds that the student should be in such a program. While I have no evidence to show that this was the case here, that does not alter the principle;

(c) School boards have an obligation under the Education Act to provide appropriate special education placements, programs and services to their exceptional students. Parental conduct or lack of parental authority cannot be used as a justification for not meeting an exceptional student’s needs; and

(d) I agree with the decision in R.B. v. Keewatin-Patricia District School Board, (R.B./Keewatin) 2013 HRTO 1436, an HRTO decision cited by both parties in this case, at para 265, that a parent’s “fierce advocacy” for his or her child must not and cannot prevent a school board from accommodating the child’s needs to the point of undue hardship.

*******

Here is the link to the case in full: https://canlii.ca/t/gmd68

December 16, 2025December 20, 2025

Why is Documentation so Important?

Because you need to take your allegations out of the realm of conjecture. A case example from the BC Human Rights Tribunal is below.

N obo S v. T and a School District, 2006 BCHRT 546 (CanLII)

[55] In this case, N states that she is a single parent and has several serious medical conditions, and that, because of this, she has been unfairly treated by the respondents. As examples of the unfair treatment, she states that the respondents have failed to return phone calls, delayed letters, failed to provide information in a timely manner, and did not properly investigate her concerns relating to her son. However, she does not include details of any statements or actions on the part of the respondents which would support such a conclusion. She states only that she “believes” that such a connection exists: that she “believes” that the respondents think they can make her go away by exhausting her; that she “believes” that if she had a partner, her child would have equal treatment; and that she “believes” that she would be treated with more respect if she were married, healthy and had financial resources. In other words, nothing in the complaint takes the allegations out of the realm of conjecture, as the facts alleged in the complaint do not support a nexus between N’s marital status and disability and her alleged unfair treatment by the respondents.

[56] As a result of the above, I dismiss N’s complaint pursuant to s. 27(1)(b) of the Code.

*************

Allegations are what you are claiming to be true. Until they are proven in a hearing and a decision is complete by a tribunal member, until then, they are nothing more than allegations. Be careful about defamation on social media.

So, parents/guardians and loved ones of disabled children in the education system, what does this mean?

It means we need to be documenting EVERYTHING.

Keeping ALL emails, even the good ones.

Logging calls and dates, with who and what was discussed.

Follow up by email on phone calls to outline what was discussed and action steps agreed upon.

Keeping a timeline of events

Taking photos (if your child has been injured)

Take pictures of their school work and/or communication book/agenda

When you child tells you what happened at school, take your own notes and write it down. Email your notes to someone you trust to log the date, time and details. Record your child talking about school.

Email other parents and ask them what they know, and make sure they respond in the email and not the phone. The Human Rights Tribunal can take years. People’s memories will change over time, so it’s really important to get the documented information at that time.

If necessary for your own mental health, take yourself and your child to counselling. They can also write a letter or have their notes involved. If the counsellor is connected to the government services, they won’t be able to testify at a hearing. You need an outside counsellor.)

An added suggestion by Dyslexia BC @DyslexiaBC on Facebook is to bring someone with you to all of your IEP meetings. (That person can take notes and also be a witness.)

You need to be thinking about collecting evidence. Things that can be used as evidence in a hearing are documents, emails, doctors’ letters, counselling letters, counselling invoices, videos, photos, media posts, expert evidence, other parents’ witness statements/emails, voice recordings from meetings, anything that is relevant. Connected. Here is what the Human Rights Tribunal determines to be evidence.

(***NOTE: If you are an employee of the school district, recording laws differ for you. Please consult with a lawyer as case law around this topic fluctuates.)

In the same thread of thought, be careful what you offer up in your emails and conversations to the school district. They are also collecting evidence on you.

I will leave you with this case example below.

A and B obo Infant A v. School District C (No. 5), 2018 BCHRT 25 (CanLII)

A. The Mother

[40] Overall, I have found the Mother to be sincere in her testimony. She cares about her Child and became emotional when describing his feelings. However, I do not find her evidence reliable. I find her testimony not to be in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”. The weight, and thus reliability, of the Mother’s evidence was affected by the fact that her testimony was almost entirely based on hearsay and double hearsay. The Mother was not a witness to most of the interactions she described.

[41] The Tribunal may admit any evidence that it considers necessary and appropriate, whether or not the evidence is admissible in a court of law: Code, s. 27.2. Silver Campsites Ltd. v. James, 2013 BCCA 292 at para. 39. I considered the Mother’s hearsay testimony to be necessary and appropriate because it directly addressed the critical issues in the complaint and there were no other witnesses available to present it. The Father and Child did not testify on these issues. I assessed the Mother’s hearsay evidence on a point-by-point basis, with the objective of ensuring that I could make necessary findings of fact based on reliable evidence: Radek v. Henderson Development (Canada) and Securiguard Services (No. 3), 2005 BCHRT 302 [Radek]. I have considered the following in determining the weight to give to hearsay evidence:

I have considered in each instance the reliability of the evidence, the necessity for its introduction as hearsay rather than first-hand evidence, the probative value of the evidence, and whether the other parties would be unfairly prejudiced or otherwise disadvantaged through my reliance on it. (para. 54)

[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.

[45] The Mother’s credibility was also impacted by her acrimonious relationship with most of the Respondent witnesses. I have considered her contemporaneous correspondence in assessing credibility because it speaks to hear capacity to perceive, recollect, and communicate facts objectively. Together with her husband, the Mother repeatedly sent letters and other communications attacking the character of most of the Respondent witnesses. For example, the Parents wrote letters about the Superintendent to the federal government, provincial government, board of education, RCMP, politicians and others. When confronted with this correspondence, the Mother minimized the tenor of her communications and its effect on the Respondent witnesses. The Mother maintained that she and her husband treated staff respectfully.

[46] The Mother also provided inconsistent testimony. For example, the Mother testified that she did not accuse Teacher G of racism. When confronted during cross-examination, the Mother acknowledged accusing Teacher G of favouring one child over the other, and the other child not necessarily being black. The Mother ultimately acknowledged accusing Teacher G of racism. She explained finding it “very frustrating” when Teacher G prejudged her son and did not follow guidelines.

December 15, 2025December 15, 2025

Wait Time for External Complaint Systems

Filing external complaints can take a long time BUT there are a few options to help speed things up.

There are a lot of people filing complaints. Some of them are about being overcharged on bills from the government, to city bylaws, to very serious, immediate risks related to shelter. There are a large variety of types of complaints. For complaints that involve children who are currently experiencing harm, there are ways to speed up the process.

Ombudsperson BC

So how long does it take? According to their annual report 2023-2024 p. 99

53% of the files were closed within 30-90 days.

98% of the files were closed within one year.

What many people don’t know about is the early resolution option. They have an early resolution team. “Early Resolution team can quickly resolve
a complaint by doing an expedited investigation of the public body the complaint is about.” (p. 19) If you are currently dealing with issues, like the school is ignoring you, then this can be a quick intervention to get the conversation flowing again.

I highly encourage you to ask if this is an option. Especially if your issue is time-sensitive.

Teachers Regulation Branch

This process is currently at 10-12 months for everything to be completed. 3-5 days for your complaint to be accepted and sent out to the educator.

If you have an urgent physical or psychological safety concern about an education staff person, you will get a faster response from the Superintendent than you will through the TRB branch.

BC Human Rights Tribunal

Acceptance of complaints is currently at 12-18 months. On their automatic email response, they state:

“The tribunal is completing its review of complaints filed in 2023. We expect to begin reviewing cases filed in 2024 in the fall of 2025”

Now, before you fall off your seat, let me explain the fast-tracking option.

You can apply to fast-track your complaint if it’s urgent. An example listed on the BCHRT website fast-tracking page is this:

“The complaint is about a child’s education. The child will not graduate this year, without a fast solution.”

So it needs to be something that your child is experiencing harm with NOW. Like exclusion, or not getting their accommodations now. If you pulled your child and they are at a different school and you just filed about discrimination they experienced but are no longer experiencing, unfortunately, you will need to go through the long wait.

Fast-tracking is about speeding up the process at any time during your complaint. So you could file the fast-tracking application when you file your human rights complaint, or if you are in the process and needs become urgent, you can still file a fast-tracking application at any time.

When you file a fast-tracking application, and it gets accepted as that, they aren’t kidding. Things move fast. It’s days or a couple of weeks till you will find out.

Here is the page about fast-tracking. You will need to read this page to know how you will need to make your argument. You will be filing out a general application form. On the home page, they have the FORMS tab and you will be filing out the 7.1 general application form. Fast-tracking is on the list that you tick off.

I encourage people to consider the fast-tracking option. The worst thing will be you will be told no. But you may be surprised by how fast and willing they are to accept your application when it comes to children and education.

OIPC

It will be about 3-5 months before you are connected to an investigator. It can take about a month to find out if your complaint has been accepted. If your case goes to an adjudicator, it can take about a year from the time you are told it is moving onto the next step. Though for your file to reach an inquiry, it’s not too common.

There isn’t a fast-tracking option that I am aware of, but if you urgently need this information, always ask.

Section 11 Appeal

This is an internal complaint system, as you are appealing a decision made by the district to the Board of Education. But this process has a firm timeline attached to it.

From the School Act

11 (7)A board must

(a)make a decision under this section within 45 days of the date on which the board receives the appeal, and

(b)promptly report that decision to the person making the appeal.

** Always Ask

The external complaints systems are not always processing urgent complaints, or complaints for children or vulnerable people. One complaint I read about was about someone’s neighbour doing something they didn’t like.

Complaints that involve children in education, especially if the harm is continuing, require a faster reaction. Always ask. Always express the urgency of what you are dealing with. Ombudsperson and the BC Human Rights Tribunal both have processes to prioritize more urgent requests.

I find the wait time for these processes are currently working at to be a barrier in itself. Access delayed is access denied. The wait times can be daunting for some people. The BC HRT is currently working on how to speed up their process, so hopefully, we will see some movement.

If your issue is time sensitive, when you file your complaint with any of these complaint systems, highlight that it is time sensitive and ask them if there are any ways to speed up the process.

December 15, 2025May 17, 2026

When Should I File my Human Rights Compliant?

The BC HRT has a ONE YEAR limitation to file a complaint

People often wonder when they should file their human rights complaint. Especially when they are dealing with issues that have been happening for a long time.

Sometimes it is a big event that occurs. If it’s only about that one event, then you would have one year to file.

However, when things are murkier.

We don’t want to kill a fly with a house. It’s good to escalate your advocacy in incremental steps. You do want to give people a chance to resolve the issue and see if there is any way for it to be resolved collaboratively. Your child is going to be in school for a long time. Building relationships is important. However, at what point does it become enough? At what point do you feel like nothing is going to change?

Many parents feel like they are a hamster on a wheel. Filing an external complaint can be what gets you off.

If you are advocating alone and it’s not going well, I suggest you reach out to Inclusion BC or Family Support Institute for help. At this time, you may also want to consult with the BC Human Rights Clinic or Disability Alliance. There are also advocacy coaches who can help you with emails and communication with the school.

A lot of the time it comes down to what you are willing to tolerate and when you have had enough.

Some people wish they filed a human rights complaint earlier. The harm has been going on for so long. They wonder if they filed years ago, how much discrimination could have been avoided.

You can apply to fast-track your complaint if harm is continuing.

Human rights complaints need to be about what has taken place in the last year. So, if you have issues that go beyond the one year, they may file a timeliness dismissal application and you will need to justify that these issues are a continuing convention of The Code.