B.C. court overturns human rights ruling awarding Indigenous mother $150K for discrimination

The B.C. Supreme Court has overturned a B.C. Human Rights Tribunal decision that awarded $150,000 to an Afro-Indigenous mother on the grounds child protection authorities had discriminated against her.

In November 2022, the tribunal ruled that Vancouver Aboriginal Child and Family Services Society (VACFSS), a delegated agency of the Ministry of Children and Family Development, had retained the woman’s children and restricted her access to them based on decisions informed stereotypes about her as an Indigenous mother with mental health issues.

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The children were removed from the mother, identified as “RR” in 2016, and ultimately returned to her care after mediation in provincial court.

The proceedings identify RR as a a single mother and an intergenerational survivor of residential schools with disabilities stemming from trauma.

The tribunal ruling further found that VACFSS did not have reasonable grounds to continue keeping the children in its custody and that none of the discriminatory conduct could be justified as reasonably necessary to protect RR’s children.

VACFSS filed an application for judicial review in January 2023, arguing the tribunal had exceeded its jurisdiction by ruling on child protection issues.

In a ruling dated Jan. 22, 2024, Justice Geoffrey Gomery found multiple faults with tribunal member Devyn Cousineau’s decision, but declined to throw the case out completely.

Instead, Gomery ruled the case must be returned to the tribunal for a fresh hearing, and to allow VACFSS to present fresh evidence to address the issues the case ultimately turned on.

Gomery found that VACFSS hadn’t been given a fair opportunity to address key elements of the case, including prior provincial court decisions. He also found Cousineau had made several legal errors in how she approached supervision and custody orders in the case, and how she interpreted the B.C. law governing child welfare, the Child, Family and Community Service Act.

“The Member’s task was not to decide what had happened, or whose account of events was reliable, or whether the children were, in fact, at risk of harm while they remained with RR. By asking whether the Society’s concerns were substantiated, the Member asked the wrong question and erred in law,” Gomery wrote.

“The law required her to evaluate the risk assessment undertaken by the social workers and determine whether it was grounded in credibly-based probability.  The Member rejected this approach because she disapproved of what she termed ‘a Eurocentric conception of, and focus on, risk’ … Though it may be Eurocentric, a focus on risk is what the law requires in this context.”

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Despite the issues with the ruling, Gomery rejected VACFSS’ request that the court quash the case entirely, ruling that the tribunal did have jurisdiction to hear the case and that “RR may yet be entitled to a remedy based on a correct legal analysis.”

By the same measure, Gomery ruled that the tribunal must also entertain any application VAFCSS makes to have the case summarily dismissed.

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