B.C. judge overturns 'unprecedented' human rights decision

A B.C. Human Rights Tribunal hearing room is shown in this file image from March 29, 2010. (THE CANADIAN PRESS/Darryl Dyck)

A decision awarding $150,000 in damages for discrimination to an Indigenous mom whose children were taken from her and put in foster care has been overturned by a B.C. judge.

Justice Geoffrey Gomery said the B.C. Human Rights Tribunal's decision should be set aside due to "legal errors and procedural unfairness." He also found that the tribunal did have jurisdiction to decide the complaint and ordered a new hearing.

"(The mother) may yet be entitled to a remedy based on a correct legal analysis," he concluded in Monday's ruling. 

But Jonathan Blair, a lawyer representing the mother in the judicial review, said the decision is not only "unfortunate and disappointing," but that there are "many grounds for appeal."

Blair, who is with the Community Legal Assistance Society, did not say if the mother plans to appeal or on what grounds, but did outline a number of issues with the judge's decision, including what he described as a "regressive understanding of human rights and equality."

The tribunal's decision

B.C.'s Human Rights Tribunal decided the case in December of 2022, calling it an "unprecedented complaint."

The mother, referred to only as R.R., brought the complaint against Vancouver Aboriginal Child and Family Services Society after her four children were apprehended and put into foster care, where they remained for more than two years.

Ultimately, the tribunal found that VACFSS "did not have a reasonable basis to conclude that R.R.’s children were in need of protection."

Tribunal member Devin Cousineau ruled that the apprehension of the woman's children and the subsequent limits on her access to them – which included months-long periods of no contact whatsoever – was discriminatory, rooted in stereotypes about and prejudice against her as an Indigenous mom who had experienced mental health issues.

"It exposes systemic forces of discrimination and their profound impacts on an Indigenous mother," Cousineau wrote.

"The discrimination in this case is the effect of a wider web of laws, policies, and practices which interact to create a system stacked against Indigenous families, especially single mothers living in poverty, with disabilities, and with children with disabilities."

VACFSS appealed the decision in January of 2023 on the grounds that the tribunal overstepped its authority and ruled on a matter outside of its jurisdiction.

The judicial review found that was not the case, but that the decision itself "erred in law" and that "the society was deprived of a fair opportunity to address issues upon which the decision turns."

Blair said the fact that the original decision has been overturned does not mean that the discrimination outlined in the decision did not occur.

"It's important for people to realize that this court decision doesn't in any way challenge all the findings in the original decision about the bad behaviour of many of the workers, and the hell that R.R. went through in having her children taken away," he said.

'Difficult' questions and historic wrongs

VACFSS is one of the agencies in B.C. that is given responsibility for child protection matters in Indigenous communities, and has the authority to apply and enforces the Child, Family and Community Services Act. The delegation of this authority to non-governmental organizations is meant to respond to the vast over-representation of Indigenous children and youth who are in government care.

As the tribunal decision notes note, 66 per cent of children in care in British Columbia are Indigenous, even though Indigenous children make up only 10 per cent of the province's child population.

The case, Gomery said, raised "difficult" legal questions but also "engaged consideration of historic wrongs done to Indigenous communities and their persistent aftermath into the present day as well as unresolved debates as to how the needs and interests of vulnerable children, parents, Indigenous communities and the state can best be reconciled."

However, he said historical and social issues – while "undeniably important" – were not what was being decided on review.

"This case comes before me in a court of law, on an application for judicial review. My task is not to attempt to answer questions that have troubled Canadian society for many years, or to say whether the law should change," he said.

"This case concerns a particular decision rendered by the tribunal in a particular statutory context. It is difficult enough to determine whether the decision was fairly made in accordance with legal requirements."

Arguments brushed aside?

The West Coast Legal Education and Action Fund Association, the Union of BC Indian Chiefs, and the Human Rights Commissioner for British Columbia were all granted intervener status in the case. Blair explains that this something that the court allows – broadly speaking – when an organization that is not directly involved can prove it "has a unique and important perspective to bring" and has a stake in the outcome of the case. Often, an intervener will raise issues about how a decision will impact vulnerable or equality-seeking groups.

Gomery does not say what the interveners brought to the proceedings, save for one brief mention.

"Some of the arguments advanced, especially by the interveners, invoke history, morality, international conventions, and policy," Gomery said.

According to Blair, this shows one way in which the decision does not fully "grapple" with all of the issues or arguments presented and how it "brushes aside, and, to some extent, marginalizes the consideration of historical and contextual factors facing Indigenous people and women and mothers."

Blair also takes issue with the judge's assertion that if the child protection workers assessed that R.R.'s children were at risk "in good faith," that decision can not be found to be discriminatory – even if based on "stereotypical reasoning."

This is, according to Blair, out of step with how discrimination is understood by the tribunal and the courts.

"It's quite well settled that human rights law is about the impact on the individual, not the intention of the person perpetuating it," he says.

"If the reasoning is based on the fact that all people in one group are less worthy, and therefore the best interest of the child is protected by removing them from those people, that's discrimination. That's largely what this case was about. And this decision really doesn't grapple with that."

Next steps?

Gomery's decision notes that sending the case back to the tribunal also means VACFSS will have another opportunity to argue that the complaint should be dismissed and will be allowed to "adduce further evidence" if the case comes before the tribunal again. If appealed, the case would go to B.C.'s highest court.

Blair notes that R.R. filed her complaint nearly seven years ago and that this latest decision means she is "still having to fight."