Release: BC Supreme Court confirms Human Rights Tribunal jurisdiction, but sends Indigenous mother back for a rehearing

25/01/2024Access to justice, Family well-being Press

Vancouver, unceded Xʷməθkʷəy̓əm (Musqueam), Sḵwx̱wú7mesh (Squamish) and səlilwətaɬ (Tsleil-Waututh) homelands – Earlier this week, the BC Supreme Court (BCSC) released a decision in Vancouver Aboriginal Child and Family Services Society (VACFSS) v R.R. that impacts how families can hold child welfare agencies accountable for discrimination.

In November 2022, the BC Human Rights Tribunal ruled that VACFSS, a delegated agency of the Ministry of Children and Family Development (MCFD), discriminated against R.R., an Afro-Indigenous mother, while her children were in VACFSS’s care.

Last fall, VACFSS sought review of the Tribunal’s decision, arguing that the Tribunal did not have jurisdiction to consider discriminatory practices under the Child, Family and Community Service Act (CFCSA). West Coast LEAF intervened arguing that ongoing colonialism and social context must be considered in determining the scope of the Tribunal’s role in addressing discrimination in the family policing system, also known as the child welfare system.

This week’s BCSC decision recognizes that the Tribunal does have jurisdiction over discrimination complaints alleged against child welfare agencies, and that caregivers may seek remedies in a human rights forum. The BCSC also found several errors in the Tribunal’s decision and sent the matter back to the Tribunal for reconsideration.

While we are encouraged that the BCSC confirmed the Tribunal’s role in matters that involve the family policing system, we are concerned that the decision downplays the negative impact that discrimination against parents can have on their children. We are also disappointed about the impact of this decision on R.R. and her family, who will now have to navigate another Tribunal case or appeal the BCSC decision.

“This decision has lasting impacts on the ability of parents and caregivers caught up in the family policing system to seek redress under the Human Rights Code,” says Bety Tesfay, staff lawyer at West Coast LEAF. “Yesterday’s ruling is important for families facing discrimination by child welfare agencies. While we’re heartened that the court affirmed existing pathways to correcting human rights violations, there are still systemic issues of discrimination within the family policing system that must be addressed and eliminated.”

West Coast LEAF was represented by pro bono counsel Robin Gage and Emma Ronsely from Arvay Finlay LLP.