B.C. appeal court restores ‘unprecedented’ $150K discrimination award for Indigenous mom

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

A decision awarding $150,000 in damages for discrimination to an Indigenous mom whose children were taken from her and put in foster care has been upheld by B.C.’s highest court – a decision her lawyers are saying represents an unequivocal win for their client and sends a strong message.

In a unanimous decision handed down Thursday, Chief Justice Leonard Marchand, writing for the three-judge panel of the B.C. Court of Appeal, found there was no basis upon which to interfere with the ruling of the B.C. Human Rights Tribunal.

“By inserting itself into the intimate relationship between parent and child, the state takes on the responsibility of doing so without discrimination. Racial or other stereotypes have no place in decisions to intervene. Relying on stereotypes in such decisions, far from being in the best interests of the child, is in the best interests of no one. If our shared history has taught us anything, it has taught us this,” he wrote.

“Discrimination, whether obvious or insidious, cannot justify the decision to deprive a parent of their child,” the decision concluded.

The mother, referred to only as R.R., first made a human rights complaint against Vancouver Aboriginal Child and Family Services Society in 2017 after her four children were apprehended.

In 2022, the B.C. Human Rights Tribunal found that the apprehension of R.R.’s children and the subsequent limits on her access to them over the next two years – 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,” the tribunal found.

The impact of that discrimination, the tribunal concluded, warranted compensation for injury to dignity, feelings and self-respect “at the highest end of human rights damages.”

• Read more: ‘Unprecedented’: B.C. Human Rights Tribunal awards Indigenous mom $150K in discrimination case

VACFSS sought a judicial review of the decision and succeeded in having it overturned in January of 2024.

Justice Geoffrey Gomery ruled the tribunal’s decision should be set aside due to legal errors and procedural unfairness. He rejected VACFSS’s argument that the tribunal did not have jurisdiction to decide the complaint – sending the case back to the tribunal while explicitly allowing for the possibility that R.R. “may yet be entitled to a remedy based on a correct legal analysis.”

• Read more: B.C. judge overturns ‘unprecedented’ human rights decision

R.R. appealed the lower court’s decision, seeking to have the original tribunal ruling restored in its entirety, leading to Thursday’s ruling in her favour.

One of the central issues raised by VACFSS on cross-appeal was – again – whether the tribunal had jurisdiction to hear R.R.’s complaint and whether it came to the right conclusion.

Jonathan Blair, who is with the Community Legal Assistance Society, is one of the lawyers who represented R.R. He said the appeal court’s decision was “unequivocal” on both issues.

“This is a very important win for our client, who has obviously persevered through a very long process to get here,” he said.

“I think that this is important decision for every parent – and obviously, in particular, Indigenous parents – who has felt helpless or powerless in the face of government action against them.”

The facts of the case, Blair noted, were not contested.

“There’s no dispute about the suffering that R.R. endured and the impact it had on her,” he said.

Rather, he said VACFSS was making a “legal, technical” argument centring on jurisdiction that would prevent R.R. and parents in similar situations from seeking accountability and redress for discrimination using the only mechanism available – the tribunal.

Even though the courts have jurisdiction over child protection and can restrict a parent’s custody or access when it is deemed to be in the best interest of the child, there is no licence to discriminate while making or executing those decisions, Blair said, summarizing one of the key findings on appeal.

“The court is saying you can do child protection work without discriminating,” he said.

“This court unequivocally said even if you’re justified in your intervention, you shouldn’t be doing it in discriminatory manner, and the person who’s the victim of discrimination should have a remedy for that,” he added.

The tribunal, the lower court and the appeal court have all pointed out that R.R.’s case is playing out in a context where Indigenous children continue to be dramatically overrepresented among kids in care – a persistent and pernicious legacy of the residential school system.

Given that, Marchand’s decision notes that ensuring a child protection system is “free from discrimination” is vital for Indigenous families and that protecting families from discrimination “will not prevent social workers from intervening to protect children where justified.”

Danielle Sabelli, co-counsel for R.R., said the case sets an important precedent – and sends a strong message.

“The hope is that decisions like this make people feel that they can come forward, that they can make these complaints, and that if they do, it will be taken seriously,” she said.

“The hope is also that it’s something that does cause child protection agencies to approach their work with more care and understanding – and recognition of how many of their decisions may either consciously or unconsciously be motivated by discrimination.”