B.C. tribunal's award of $150K to Indigenous mom in discrimination case being challenged by child welfare agency

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

A Vancouver child welfare agency is appealing a B.C. Human Rights Tribunal ruling that found an Indigenous mom's children were wrongfully taken from her, awarding her $150,000 in damages for discrimination.

The Vancouver Aboriginal Child and Family Services Society has filed a petition in B.C. Supreme Court seeking a judicial review of the November 2022 decision, alleging the tribunal overstepped its authority and ruled on matters outside of its jurisdiction.

"We understand that this step is very difficult, but it is necessary to ensure Indigenous children are protected as intended by the legislation and our decision in no way reflects on the individual who filed the HRT complaint,” said the agency's board chair Linda Stiller in a statement posted online.

“While we recognize the pain the complainant identified during the hearing, our duty is to ensure that children’s rights are also protected.”

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 noted, 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.

"VACFSS regrets having to file a judicial appeal on this case, particularly as an Indigenous-led agency committed to restorative practice," Stiller said in her statement about the appeal.

The petition to the court outlines several ways in which the agency alleges the tribunal overstepped, including that it made determinations on child protection matters, undermined provincial court orders, and denied VACFSS the right to a fair hearing.

The agency will also be challenging the amount of compensation ordered.

"Given the significant legal issues raised by VACFSS in the judicial review, the organization has also asked that the amount of the financial award be reconsidered by the court," the statement continues.

THE TRIBUNAL DECISION

The case was brought by a mother referred to by the initials R.R. whose four children were placed in foster care, where they remained for more than two years.

In R.R.'s case, the tribunal found "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.

"This is an unprecedented complaint. It exposes systemic forces of discrimination and their profound impacts on an Indigenous mother," she wrote.

Lawyer Aleem Bharmal with the Community Legal Assistance Society, who served as R.R.'s co-counsel, questions the agency's decision to appeal.

"Our client feels re-traumatized by this decision," he said in an email to CTV News.

"We do not agree that this step is in the best interest of Indigenous children and, rather, that allowing this human rights decision to stand and complying with it would have helped improve the agency’s services, and the child welfare system more generally, to be less biased and more equitable."

He says the organization plans to "vigorously defend" the initial ruling in B.C. Supreme Court.