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 Cousineaufound the Vancouver Aboriginal Child and Family Services Society(VACFSS) baseddecisions 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 Gomeryfaulted Cousineau's approach to the case and her handling of the questions it raised.

Gomery orderedB.C.'s Human Rights Tribunal to appoint another member to take a fresh look atthe woman's allegations and possible justifications for actions of child-care workerswho 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 suspicioncast a shadow'

According to the decision, RRidentifies as Afro-Indigenous, and was raisedin the Pacific Northwestby parentswho 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, shegave birth to a son who died of viral infections at the age of five months.

RRwas absolved of any blame in the boy's death, but Cousineau noted that"lingering suspicioncast 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 wheremany 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 accusedCousineau 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 Cousineaufor failingto consider orders arising from the court process that might have justified the actions of careworkers.

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

"It was incumbent on the member to considernot 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 theCFCSAframework 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 RRwas treated badly.

"None of thatis 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."

Blairsaid he was troubled by a portion of Gomery's decision stating that a risk assessmentby 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 RRand her family, who will now have to navigate another tribunal case or appeal (Gomery's) decision."

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