Judge overturns landmark $150K human rights award for mother who claimed discrimination

A B.C. Supreme Court judge has overturned a landmark human rights tribunal decision awarding $150,000 to a mother who claimed she was discriminated against by Canada's longest-serving Indigenous child-care agency.

In the original decision, tribunal member Devyn Cousineau found the Vancouver Aboriginal Child and Family Services Society (VACFSS) based decisions about the woman's right to custody of her four children on "stereotypes about her as an Indigenous mother with mental health issues."

In reaching a conclusion on a complaint she called "unprecedented," Cousineau said the law governing child protection in B.C. was "rooted in a Eurocentric approach" to child welfare.

But in a judicial review of the case released earlier this week, Justice Geoffrey Gomery faulted Cousineau's approach to the case and her handling of the questions it raised.

Gomery ordered B.C.'s Human Rights Tribunal to appoint another member to take a fresh look at the woman's allegations — and possible justifications for actions of child-care workers who denied her access to her four children.

"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 [the woman known as] RR," 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.... Though it may be Eurocentric, a focus on risk is what the law requires in this context."

'Lingering suspicion cast a shadow'

According to the decision, RR identifies as Afro-Indigenous, and was raised in the Pacific Northwest by parents who were multi-generational survivors of the residential school system.

She had her first child in 2003, when she was 20. The ministry became involved six days later, prompted — in part — by concerns about her history with drugs and alcohol.

The woman lost access to three of her children in 2013 but regained custody later that year. In 2014, she gave birth to a son who died of viral infections at the age of five months.

RR was absolved of any blame in the boy's death, but Cousineau noted that "lingering suspicion cast a shadow on her records with child welfare authorities."

Gomery's ruling notes the "exceptionally lengthy and detailed review of the evidence" detailed in a 21-day hearing before the human rights tribunal that followed a 23-day provincial court hearing where many of the same issues were argued.

'Just as a judge of the provincial court would'

Both the province and Vancouver Aboriginal Child and Family Services Society accused Cousineau of overstepping her jurisdiction by weighing in on matters that had already been decided by the provincial court.

Gomery's ruling is highly technical.

He said the mere existence of a provincial court proceeding didn't preclude the human rights tribunal from hearing RR's claim — but faulted Cousineau for failing to consider orders arising from the court process that might have justified the actions of care workers.

He also said she should have viewed the case through the framework of the law that governs child protection — the Child, Family and Community Service Act (CFCSA).

"It was incumbent on the member to consider not whether the social workers were correct in their conclusions as to whether the children were at risk in RR's care, but whether they had reasonable grounds (under the law) to believe what they did at the time," Gomery wrote.

"The member had to apply the CFCSA framework just as a judge of the provincial court would apply it."

'That is a really concerning finding'

RR's lawyer, Jonathan Blair, said Gomery's decision was disappointing. He said neither the society's petition nor Gomery's decision challenge the central finding of Cousineau's decision: that RR was treated badly.

"None of that is disputed," said Blair, who works with the Community Legal Assistance Society.

"What has happened is that this matter has now been prolonged for her based on legal technicalities and both the society and the attorney general's attempt to remove the tribunal's [power] to scrutinize their protection workers."

Blair said he was troubled by a portion of Gomery's decision stating that a risk assessment by child protection workers "made in good faith, cannot be discriminatory, even if it engages stereotypical reasoning and escalating assertions of power and control."

"That is a really concerning finding," Blair said.

"Discrimination is not based on intention. Intention is not necessary for a finding of discrimination, because many people discriminate based on unconscious biases or stereotypes or systemic discrimination aspects."

One of the intervenors in the case, the West Coast Legal Education and Action Fund, echoed Blair's concerns.

"We are concerned that the decision downplays the negative impact that discrimination against parents can have on their children," the organization said in a statement.

"We are also disappointed about the impact of this decision on RR and her family, who will now have to navigate another tribunal case or appeal (Gomery's) decision."

Blair said he believed RR would have grounds to appeal, but that no decision had been made.