Characteristic – Physical or Mental Disability

Human Rights Tribunal Finds BC Child Protection Agency Discriminated, Awards Afro-Indigenous Mother $150,000 Compensation

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In a recent decision, the BC Human Rights Tribunal held that an Indigenous mother was discriminated against in her interactions with a child protection agency that retained custody of her children and strictly restricted her access to them for nearly three years. The mother was awarded $150,000 as compensation for injury to her dignity, feelings, and self-respect. This is the second highest award under this category in the tribunal’s history.

Governments in what’s now called Canada have interfered with the relationships between Indigenous caregivers and their children for generations. First, governments, police, and churches forcibly removed children from their homes and families and brought them to residential schools. Then there were the Sixties and Millennium Scoops. Indigenous children in care continue being overrepresented and underserved.

Indigenous families have also been resisting these colonial efforts at assimilation for generations. The Vancouver Aboriginal Child and Family Services Society (“VACFSS”) was meant to be one means of combating the the colonial and racist problems with child “protection.” The purpose of VACFSS was to apply a restorative child welfare model. However, it remains bound by provincial child welfare legislation.

Over 21 days spread out in 2020 and 2021, the BC Human Rights Tribunal Member Devyn Cousineau heard a complaint from an Afro-Indigenous mother, “RR,” that the VACFSS discriminated against her on the basis of her Indigeneity, race, ancestry, colour, and mental disability, in violation of section 8 of the BC Human Rights Code. In a decision issued on November 22, 2022, the Tribunal held that VACFSS discriminated against the complainant mother.

The Tribunal described RR as follows:

RR is a racialized Afro-Indigenous woman. She is the single mother of five children, one who passed away too soon and three who have complex needs. She has a low income and insecure housing. She is an inter-generational survivor of residential schools with disabilities stemming from trauma. She is resourceful, affectionate, a leader in her community, connected to her culture, and loves her children.

According to the Tribunal, VACFSS apprehended RR’s fourchildren for nearly three years and strictly regulated her access to them in a discriminatory way. It held as follows:

For the reasons that follow, I find that VACFSS discriminated against RR. VACFSS’s decisions to retain custody and restrict RR’s access to her children were informed by stereotypes about her as an Indigenous mother with mental health issues, including trauma, and her conflict with the child welfare system. Because of RR’s Indigeneity and trauma, she had a heightened need to be empowered and included in decisions respecting her children and to have complete, ongoing, and accurate information about their wellbeing. Instead, VACFSS responded to her with escalating assertions of power and control, reducing and suspending her access to the children, limiting her communication with their caregivers, and ultimately prolonging their time in care. I find that VACFSS did not have reasonable grounds to continue custody and that none of these adverse impacts can be justified as reasonably necessary to protect RR’s children.

In issuing its decision, the Tribunal made several important findings. Of note, it found that the VACFSS did not have reasonable grounds to believe RR’s children were in need of protection. The Tribunal held as follows about the VACFSS:

Its focus on RR’s trauma, mental health, and relationship with the child welfare system was not related to the actual impact of these characteristics on her children. Rather, it rested on stereotype and assumptions about RR as a parent, and conflict with RR that was connected to her Indigeneity and required accommodation.

According to the Tribunal, VACFSS’s records and evidence in the hearing demonstrated “numerous comments about RR that were derogatory and judgmental.

Further, the Tribunal held that the VACFSS failed to adequately respond to RR’s needs as an Indigenous mother. RR had a negative experience in her interactions with VACFSS because of her Indigeneity and trauma and these impacts led to conflicts with VACFSS. RR did not understand or accept the child protection concerns that VACFSS had and lost trust that VACFSS was working toward returning her children to her in good faith, so resisted. The Tribunal recognized that in these circumstances, Indigenous families sometimes respond by retreating and giving up. RR instead chose resistance. And this resistance “required a human rights response.” Instead, VACFSS “wrongly conflated RR’s resistance with her ability to safely parent her children.” The Tribunal recognized that this pattern was not new and was reflective of the way the state-sanctioned system treated parents in the context of residential schools. It’s a continuing discriminatory trend in the child protection system.

Lastly, the Tribunal Held that VACFSS’s were not reasonable or justified.

In deciding to award RR $150,000 for injury to her dignity, feelings, and self-respect, the Tribunal stated as follows:

Throughout this time, RR was excluded from key parts of her children’s young lives, including their education. She did not see any report cards, she did not get them dressed for picture day, or see a class photo. She was alienated from their school, whose administrators were told at various points to phone the police if she was seen at the school. She was given little information about their lives, which stoked her worst fears. She learned about many significant things that happened to her children, including the level of violence and dysregulation they were experiencing in the Hollyburn residence, for the first time in this hearing.

The Tribunal also reminded child protection agencies of the great responsibility that comes with their power:

As I have explained, the power that VACFSS exercises as a child protection agency is almost unparalleled in Canadian society: the power to take a person’s children based on an allegation. With such power comes a grave responsibility to exercise its duties free of discrimination. As this case demonstrates, the consequences for failing in that responsibility could not be more severe – for the parent and for the child. In my view, the extraordinary power that VACFSS exercises within its mandate is a factor which weighs in favour of a higher
award.

Some of RR’s feelings were described by the tribunal as follows:

RR was pushed to the brink of hope: “It’s hard to even have hope when you don’t have your children with you. It’s hard to even want to live anymore when you don’t have your kids”. She felt labelled as “another single mother drunk Indian that’s basically disposable” and who would “end up giving up for her kids”. She described the feeling of “so many different fresh workers coming on and they all have an opinion about me”. By the end of the period in the complaint, she says:

I was emotionally, mentally, and physically and emotionally, just exhausted. Like I felt like I was under water and VACFSS is sitting here on a rowboat, and sitting here watching me drown and not even helping me and I’m swimming and trying to catch a breath and trying to breathe. And I’m not getting any help, or … support. I felt like I was drowning.

The injury to dignity award was the second highest ever awarded at the BC Human Rights Tribunal. The Tribunal decided it should be high because the complaint was unprecedented, and it exposed systemic forces of discrimination and their profound impacts on an Indigenous mother.

The Tribunal also ordered VACFSS pay RR $5,000 as costs for improper conduct because it disclosed critical documents late and its former counsel briefed a witness on the evidence of other witnesses who testified before them.

Maintaining a Discriminatory Status Quo is not Always Cheap: Tribunal Finds Bookshop’s Failure to Arrange for ASL Interpreters at Free Workshop Discriminatory, Awards Complainant $2,500

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In a decision issued by the BC Human Rights Tribunal on August 11, 2022, Tribunal Member Devyn Cousineau held that a bookstore discriminated when it failed to provide American Sign Language (“ASL”) interpreters for a man who attended a free workshop and is DeafBlind.

According to the decision, Complainant Craig MacLean requested that Respondent Black Card Books pay for ASL interpreters to accompany him to a three-day workshop in October, 2018 in Vancouver, BC regarding writing and publishing books. The bookstore declined. It suggested that the complainant bring his own interpreters and provided the complainant with the workshop materials in print format. Mr. MacLean attended the workshop without interpreters. He was not able to understand the presentations or communicate with other participants.

In British Columbia, persons with characteristics listed in the BC Human Rights Code (including physical disability) are protected from discrimination when they are accessing publicly available services. To make out a complaint regarding services successfully, complainants must show that they have a protected characteristic, that they experienced a negative impact in relation to the services, and that there was a connection between their protected characteristic and the negative impact. Once this is proven, the respondent needs to justify the impact to avoid a finding against them.

In this case, the complainant showed that there was a connection between his disabilities and his adverse experience at the workshop. He cannot hear and he has a small range of vision within which he can see things up close. To communicate in person, he requires ASL interpretation. Usually he has two interpreters sit close to him to communicate. He did not have the interpreters at the workshop and so was not able to understand the material or communicate. He arrived in what seemed like a large dark room where there were around 100 attendees. This made the room difficult for him to navigate visually. He felt excluded and disheartened.

In finding that Mr. MacLean experienced an adverse impact, the tribunal noted the following at paragraph 22:

As the Supreme Court of Canada has recognized, “the disadvantage experienced by deaf
persons derives largely from barriers to communication with the hearing population”: Eldridge
v. British Columbia (Attorney General), [1997] 3 SCR 624 at para. 57. To enjoy equal access to
public services, a DeafBlind person may require that information be communicated in a
different way than for people who are not DeafBlind. This principle is at the heart of human
rights legislation, which is intended to examine “the way institutions and relations must be
changed in order to make them available, accessible, meaningful and rewarding for the many
diverse groups of which our society is composed”

Once the Tribunal found that the complaint experienced an adverse impact in connection with his disabilities, the Respondent Black Card Books needed to demonstrate that it did everything necessary and practical to accommodate Mr. MacLean and anything more would have amounted to undue hardship. Black Card Books was unsuccessful. When the complainant initially asked for interpreters and the respondent told him he could arrange his own, he offered to send the respondent an invoice. The respondent would not agree to pay. They said they would not pay because the event was free. It should be noted that the respondent’s purpose for putting on the event was largely to entice attendees into buying their publishing program, which cost around $35,000. It only made one sale at the event, which according to the respondent witness’s testimony, did not cover the costs of putting on the event.

In considering whether the respondent proved undue hardship, the tribunal held at paragraph 27 that the issue is not whether an accommodation costs money. Usually accommodations cost money. It will always seem cheaper to maintain the status quo. The question is whether the cost is undue, considering factors like the respondents’ size, economic conditions, and available funds. The Tribunal held the following at paragraph 27:

I accept that paying for ASL interpreters would have increased the cost of putting on the
workshop. But that does not end the analysis, because “[i]t will always seem demonstrably
cheaper to maintain the status quo and not eliminate a discriminatory barrier”: VIA Rail at para.
225. The Human Rights Code requires service providers to meaningfully assess the cost of a
required accommodation before concluding that it is too expensive. “Impressionistic evidence
of increased expense” is not enough: Eldridge at para. 41. Ultimately, the issue is not whether
an accommodation costs money – it often does – but whether that cost is undue, considering
factors like the respondent’s size, economic conditions, and available funds: Dunkley v.
University of British Columbia, 2015 BCHRT 100 at para. 427

The Respondent did not demonstrate that the cost was undue because it did not investigate whether it could afford the cost before refusing to pay it. The store did not make inquiries about what ASL interpreters would be available in Vancouver, how much they would cost, and how that would affect their event budget and the company’s overall financial situation. Further, the offer of allowing the complainant to bring his own interpreters was not reasonable because it put the entire burden of accommodation on the complainant. This would require the complainant to “assimilate into a service that was not designed for him, rather than requiring the service to adapt to meet everyone’s needs.” That would be inconsistent with the purposes of the Human Rights Code, which is meant to ensure that services are inclusive and accessible.

After finding that discrimination occurred, the Tribunal decided to award the complainant $2,500 as compensation for injury to his dignity, feelings, and self-respect. The tribunal also ordered that the respondent provide the complainant the opportunity to participate in the workshop with the interpretation services of his choice.

Human Rights Tribunal Awards Employee Over $23K Following Employer Termination Due to Mental Health Absenteeism

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In a decision issued on February 16, 2018, the BC Human Rights Tribunal held that an employee was discriminated against when his employer terminated his employment following absenteeism due to his depression and anxiety (considered mental disabilities per the BC Human Rights Code).

The Complainant was a shop helper employee in the fabrication department of the Respondent employer Axton Inc, a global heavy industry manufacturing company. Soon after he started working there in 2019, he began missing work due to his depression and anxiety. He was reluctant to disclose this to the employer due to the stigma surrounding mental health conditions. When he became completely disabled from working for a period, he decided to disclose the depression and anxiety. Rather than inquiring into whether he had a mental health condition disabling him from working and accommodating that condition, the employer terminated his employment.

Axton argued that it terminated the Complainant’s employment before it knew or reasonably ought to have known that he had a mental disability. Alternatively, it argued that it accommodated his disability to the point of undue hardship.

The Complainant was 34-years-old at the time of the hearing. He had suffered experienced symptoms of depression and anxiety for most of his life. Following a significant personal loss in 2017, he was diagnosed with Anxiety Disorder and Major Depressive disorder and treated for same starting in 2018.

The Complainant started work in February, 2019. He began leaving work early and missing work soon after that. There were occasions when he did not call in to the workplace to report his absence because of his anxiety and depression symptoms and trying to find a tactful way to explain it. His last day of work was in March, 2019. His anxiety and depression symptoms made him unable to continue attending. He had only mentioned “personal issues” to the employer before that. He had not yet disclosed his disabilities.

A couple of weeks after the Complainant’s last day attending work, the employer sent the Complainant an email asking how he was doing because they had not yet heard from him. The Complainant called a representative for the employer later that day and explained that he was dealing with mental health issues. The Complainant later sent an email confirming that he was dealing with mental issues and did not know when he could return to work, but that he liked his job and wanted to return.

The employer later terminated the Complainant’s employment without making further inquiries about whether he might be experiences issues relating to a mental disability.

The Tribunal held that there was a nexus between the Complainant’s disability and the adverse impact he experienced (job termination) because he was terminated due to absenteeism and the absenteeism was mostly due to the disability. Discrimination was thus established.

The Complainant was awarded $75 for the cost of his steel toed boots that were left at the workplace and not returned to him. In awarding the Complainant $20,000 in compensation for injury to his dignity, feelings, and self-respect, the Tribunal recognized at paragraph 115 that termination is considered the “ultimate employment-related consequence” and that the loss of employment warrants compensation at the high-end of the range.

The Complainant had gone on EI sickness benefits from the time of termination to August, 2019 and then started to look for work in September 2019 before starting a new job in October, 2019. The Tribunal awarded him lost wages for the 4 weeks that he spent looking for work as well as for the difference between incomes at the two jobs for a period of one week. The total wage loss awarded was $2,962.50.

The Tribunal also ordered that the employer take remedial steps regarding the discrimination and pay the Complainant costs in the amount of $250.

Disability Accommodations and the Limits of the COVID-19 Vaccine Card Orders

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Will service providers bear a duty to accommodate people unable to get vaccinated due to their disabilities? The uncertainty surrounding the question is discussed in my post regarding the lack of accommodation for unvaccinated people with disabilities in the new public health orders requiring proof of vaccination. It may depend on whether the mandatory vaccination card orders apply. This post provides information on the limits of the orders’ applicability.

The BC Government Website has their own summary of where and when the orders apply here. It is only a summary. The website is not the law itself. This post offers information on what is stated in the orders. It is only legal information and should not be taken as advice.

General Organization of the Orders

Service providers and unvaccinated potential service users are likely to be confused about exactly who can attend what facilities and services, when. The government announcement on August 23, 2021 framed the vaccination passports as being required primarily at “non-essential” services. However, the orders are framed differently. One order applies to post-secondary housing (the “Post-Secondary Housing Vaccine Order”), the second to food and liquor service premises (the “Food and Liquor Services Vaccine Order”), and the third to “gatherings and events” (the “Gatherings and Events Vaccine Order”). Together, I will call these the “Orders.”

Determining whether one of these orders applies, from a strictly legal standpoint, is not so much about determining whether the service is essential or non-essential. With respect to the third order, the determination is about whether the service constitutes an event or gathering covered by the order.

Who the Orders do not Apply to

The orders do not apply to people who are under 12-years of age.

These three orders do not require employees/staff to have a vaccine passport (unless, for example, the staff member attends a restaurant as a patron, or a faculty member lives in university housing). They are directed at residents who reside in post-secondary housing, patrons of food and liquor serving premises, and persons who attend “events” as participants.

However, note that there are two other provincial health officer orders (here and here) that do require proof of vaccination for health care workers in long term care and assisted living facilities, private hospitals, and provincial mental health facilities. Those two orders do not specifically provide for disability accommodations on human rights grounds, although human rights protections may still exist.

Post-Secondary Housing Exceptions

The order regarding vaccine card requirements in post-secondary housing applies to most student housing at universities and colleges in British Columbia.

As per the definition of “post-secondary housing” in the order, “family or apartment housing” for students is not included. As such, it seems that the Post-Secondary Housing Vaccine Order is mainly meant to target dorms rather than family on-campus housing and apartments.

Food and Liquor Services Exceptions

The Food and Liquor Services Vaccine Order applies to food establishments that have table service/patron seating. Restaurants (including buffets) and cafes with table service are included. Food primary or liquor primary establishments such as pubs, bars, lounges, night clubs, private clubs, and liquor manufacturing facilities with tasting rooms or private seating are included.

According to the preamble of the Food and Liquor Services Vaccine Order, paragraph M, it does not apply to:

Gatherings and Events Applicability

The Gatherings and Events Vaccine Order mandates proof of vaccination for participants in certain indoor “places” where “events” are held.

Applicable Places

A “place” is defined in the order as a venue, including the following places (but not including a “private residence”):

**vacation accommodation is defined in the order as: a house, townhouse, cottage, cabin, apartment, condominium, mobile home, recreational vehicle, hotel suite, tent, yurt, houseboat or any other type of living accommodation, and any associated deck, garden or yard, in which a person is residing, but which is not the person’s primary residence.

Applicable Event Purposes

The Gatherings and Events Vaccine Order defines “event” so that the order only applies to activities happening at places for the following Applicable Event Purposes:

For some clarity, the definition of “event” in the vaccine card portion of the order stipulates that the following event types constitute events held for the Applicable Event Purposes:

a ticketed sports activity, concert, theatrical production, dance or symphony performance, festival, conference, convention, trade fair, home show, workshop, wedding reception, funeral reception not at a funeral home, and a sponsored, ticketed party

Number of Participants Involved

When it comes to having to provide proof of vaccination, the Gatherings and Events Order only applies to “gatherings” of participants in the activity. Exactly what “gathering” means is not set out in the order, but, presumably, there would need to be more that one participant involved in the activity for it to constitute a gathering.

As described above, when the event constitutes a gathering of 50 or less people and is not for the purpose of “an adult sports activity” or “an exercise, fitness or dance activity or class,” the Gatherings and Events Order does not apply.

Inside v. Outside

As per section D. 2. of the order, proof of vaccination applies only to activities occurring inside. Per section A.2. of the order, an event held in a tent with two or more sides is an inside event, and per section A.3., an event held in a tent without sides is an outside event. It’s unclear whether the definitions regarding tents and inside and outside events apply to the proof of vaccination section of the order. Either way, for proof of vaccination requirements to apply, the activity needs to be happening inside.

Specific Exceptions

The Gatherings and Events Vaccine Order includes a specific list of who and what activities it is not meant to apply to in the preamble at paragraph L. The specific exceptions are as follows:

Summary Checklist

Taken together, the following checklist describes the conditions that need to be met for the Gatherings and Events Vaccine Order to be applicable:

If any of the conditions of the checklist are not met, the Gatherings and Events Vaccine Order likely does not apply.

Do the BC COVID-19 Vaccination Passport Orders Prevail Over Human Rights Legislation Requiring Disability Accommodation?

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The law regarding BC’s COVID-19 vaccination passport and entry into various establishments in the province was published today. This post discusses the publication of the relevant orders, their lack of human rights (disability) accommodations, the issue of whether they prevail over the discrimination protections set out in the Human Rights Code, their relationship with the Charter, and the protections available to service providers who follow them. Activities that are not covered by the orders will be set out in a later post.

Publication of the Orders

While BC Premier John Horgan, Provincial Health Officer Dr. Bonnie Henry, and Health Minister Adrian Dix announced the upcoming provincial health order(s) on August 23, 2021, the law itself was not published here on the BC Office of the Provincial Health Officer website until yesterday evening and this morning. The Provincial Health Officer Order regarding post-secondary institution housing and the COVID-19 vaccine cards is dated September 9, 2021 but was published yesterday evening. The Provincial Health Officer Orders regarding the COVID-19 vaccine passport and food and liquor serving premises is dated yesterday September 10, 2021 but was published today, and the Order regarding COVID-19 vaccination passports and “gatherings and events” is also dated yesterday but was published this morning. In this post, I will call all three of these, taken together, the “Orders.”

Lack of Human Rights (Disability) Accommodations

Further to my post of August 23, 2021 and in line with what Dr. Henry stated at the press conference regarding the anticipated Orders on August 23, 2021, the Orders do not provide exemptions for people who cannot get vaccinated or provide proof of vaccination for medical reasons. The only people who the orders make exemptions for are those under 12 years of age. This means that the orders will conflict with the BC Human Rights Code, which prohibits discrimination and requires service providers to accommodate people with disabilities to the greatest extent possible. The orders also conflict with the guidance of BC’s Human Rights Commissioner, who released a policy guidance document in July, 2021 affirming that service providers must seek to accommodate people who are unable to get vaccinated on the grounds of their BC Human Rights Code protected characteristics (disability, religion, family status, etc.).

The orders are more restrictive than the current order regarding face coverings in indoor spaces, which does include human rights exemptions for people with disabilities, as follows:

Requests to Reconsider Order

Though there is not specific provision for disability accommodations in the Orders, there is mention that persons who want to avoid complying with the Orders can ask the Provincial Health Officer (Dr. Bonnie Henry) directly for reconsideration of the Orders applying to them. The process is set out in section 43 of the Public Health Act as follows:

The manner of making requests is set out by the Provincial Health Officer as follows:

As such, the Order can only be varied in relation to certain individuals in a limited set of circumstances, when a request is made to the Provincial Health Officer with documentation from a medical practitioner that the health of a person would be “seriously jeopardized” if the person were to receive the vaccine, as well as the person’s relevant medical records. And consideration of these requests is discretionary; there’s no guarantee for an exemption even with the required medical documentation.

Do the Orders Prevail Over the Human Rights Code?

There is uncertainty surrounding whether service providers who are in breach of the Human Rights Code due to acting in accordance with the Public Health Officer orders will be shielded from liability for discrimination. On the one hand, there are Public Health Act provisions meant to protect those who are following the Orders from legal and other adverse action. However, at the same time, there is a paramountcy provision in the Human Rights Code stipulating that if there is a conflict between the Human Rights Code and another enactment (such as the Public Health Act), the Human Rights Code prevails.

Public Health Act Provisions Regarding Immunity from Legal Proceedings

The provisions of the Public Health Act that give immunity to service providers responsible for the vaccine passport screening are as follows:

As such, it may be that service providers acting in accordance with the order but contrary to the Human Rights Code cannot have a human rights complaint brought against them successfully UNLESS they are acting in bad faith. It is a high threshold for finding bad faith conduct and it would need to involve something uniquely egregious.

However, sections 92 and 93 of the Public Health Act may also be read narrowly so that they only capture court actions (for example in tort or contract) for damages, but not human rights complaints brought in the BC Human Rights Tribunal. Or the provisions could be interpreted so that they allow a complainant to successfully bring a human rights complaint, but not be entitled to any damages.

Further uncertainty comes with analyzing the Public Health Act provisions in the context of the Human Rights Code‘s paramountcy provision, and that is discussed further, below.

Additional Public Health Act Protection from Adverse Action for Service Providers

In addition to being shielded from legal proceedings, potentially including human rights complaints, service providers acting in accordance with the orders are also generally shielded from any “adverse action,” which is defined as “an action that would adversely affect, or that threatens to adversely affect, the personal, financial or other interests of a person, or a relative, dependent, friend or business or other close associate of that person, and includes any prescribed action.” This means that if someone feels aggrieved by a service provider carrying out an order and so attempts to take adverse action against that service provider in some way, they’re potentially contravening the Public Health Act section 94. One such contravention might include the recent rumours that opponents of the vaccination passports plan to call restaurants carrying out the order and make fake take out orders to harm the businesses.

It is possible that this provision may also be interpreted as preventing potential complainants from successfully bringing a complaint under the BC Human Rights Code, because doing so could potentially be interpreted as an “adverse action.” However, it does not appear that the intention of this provision was to capture human rights complaints, and this section of the Public Health Act is so broad that it may potentially be unconstitutional. And again, further uncertainty comes with analyzing the Public Health Act provisions in the context of the Human Rights Code‘s paramountcy provision, and that is discussed further, below

As per section 99 of the Public Health Act, contraventions of section 94 are an offence. Section 99 offences can come with alternative penalties under section 107 such as paying a person compensation and/or, additionally under section 108 of the Public Health Act, a fine of up to $25,000, imprisonment of up to 6 months, or both.

No Mention of Human Rights Code in Events and Gatherings Order

Interestingly, there is no mention of the BC Human Rights Code in the third order regarding events and gatherings. In contrast, the other two Provincial Health Officer orders regarding food and liquor establishments and university housing have included a provision in their preamble regarding the Provincial Health Officer’s consideration of the Human Rights Code. For example, in the preamble to the order regarding vaccine passports at university housing, the following is stated about the Human Rights Code:

O. In addition, I recognize the interests protected by the Human Rights Code, and have taken these into consideration when exercising my powers to protect the health interests of residents, staff and faculty at post-secondary institutions;

Human Rights Code Paramountcy Provision

Although there is no mention of the Human Rights Code in one of the Orders, the code still generally applies when someone experiences an adverse effect (such as being denied entry to a venue) as a result of their disability not being accommodated by a service provider.

The Public Health Act sections potentially shielding service providers from human rights code liability for discrimination, or having to pay damages for discrimination, must be read and analyzed with reference to section 4 of the Human Rights Code, which stipulates as follows:

Code prevails

4   If there is a conflict between this Code and any other enactment, this Code prevails.

Given this section of the Human Rights Code, a complainant could argue before the Human Rights Tribunal that although the Orders mandate vaccination cards without any reasonable exemption to accommodate for disability, this conflicts with the Human Rights Code, which requires accommodation. Per section 4 of the Human Rights Code, the code, with it’s accommodation requirements, prevails.

Further, a complainant could also potentially argue before the Human Rights Tribunal that although the Public Health Act provides immunity from legal proceedings for damages and protection from adverse actions to service providers when they follow the Orders, this conflicts with the Human Rights Code, which allows complainants to bring a human rights complaint, for damages, when they have been discriminated against. Per section 4 of the Human Rights Code, the prevailing provisions are those of the Human Rights Code that allow a complainant to bring a human rights complaint for damages.

Constitution/Charter of Rights and Freedoms Consideration

All three of the recent orders regarding vaccination passports do include a provision regarding the Canadian Charter of Rights and Freedoms. I often hear people bringing up the issue of these types of orders violating their charter rights and therefore being of no force and effect. That is not necessarily true. Under Canada’s Charter, it is possible for law to violate constitutionally protected rights, but in a way that is considered justified per the Charter. And so in that case, a court considering a Charter challenge can uphold a law even though it was considered unconstitutional, because the Court finds this justified under the Charter. The Orders bring up this issue by stating as follows in their preambles:

I further recognize that constitutionally-protected interests include the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms, including the right to life, liberty and security of the person, along with freedom of religion and conscience, freedom of thought, belief, opinion and expression. These rights and freedoms are not, however, absolute and are subject to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. These limits include proportionate, precautionary and evidence-based restrictions to prevent loss of life, serious illness and disruption of our health system and society. When exercising my powers to protect the health of the public from the risks posed by COVID-19, I am aware of my obligation to choose measures that limit the Charter rights and freedoms of British Columbians less intrusively, where doing so is consistent with public health principles;

Activities Not Covered By the Orders

Service providers and unvaccinated potential service users are likely to be confused about exactly who can attend what facilities and services, when. The government announcement on August 23, 2021 framed the vaccination passports as being required primarily at “non-essential” services. However, the orders are framed differently. One order applies to university housing, the second to food and liquor service premises, and the third to “gatherings and events.”

I plan on discussing what is not covered by the Orders in a separate post, which will follow.

BC previously warned that “birth alert” system disproportionately affecting Indigenous parents was “illegal and unconstitutional”

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“Birth alerts” in BC refer to the controversial practice where social workers flag expectant parents to hospital staff without their consent when they believe the expectant parent poses a risk to the newborn. The birth alert directs hospital staff to alert the social worker when the baby is born. Ministry of Children and Family Development (“MCFD”) records from 2019 show that birth alerts result in the removal of a newborn from their parents “approximately 28% of the time.” Indigenous families are disproportionately affected by the birth alert system. According to MCFD’s records, 58% of parents impacted by birth alerts in 2018 were Indigenous. Birth alerts have been referred to in a report by the National Inquiry Into Missing Indigenous Women and Girls as “racist and discriminatory” and a “gross violation of the rights of the child, the mother, and the community.” Former Representative for Children and Youth Mary Ellen Turpel-Lafond stated the following to IndigiNews about the practice:

“Apologies and amends are necessary, as there has been harm done, including promoting the stereotypes that Indigenous families require intense surveillance because they cannot safely care for their own children,”

https://indiginews.com/vancouver-island/birth-alerts

On May 6, 2019, the BC Attorney General’s office sent a memo to the MCFD confirming that:

“the use of hospital alerts, and other activities involving the disclosure of information without the consent of expectant parents is both illegal and unconstitutional.”

https://indiginews.com/vancouver-island/birth-alerts

However, the practice was not banned by the BC government until September 16, 2019.

If a newborn has been traumatically removed from your family shortly after birth, you may not even know yet that the removal resulted from a birth alert. According to MCFD, it has not advised families that their privacy rights have been breached with the issuance of birth alerts.

One spokesperson for MCFD claimed in a statement to IndigiNews that this was because MCFD did not want to “retraumatize” affected families by providing notifications of past birth alerts. In my view, this response only reinforces that the MCFD takes a discriminatory and paternalistic approach in its interactions with Indigenous families. The baby alert approach promoted a stereotype that Indigenous families are not capable of safely caring for their own children. The comment from the MCFD about retraumatization again reinforces a stereotype that Indigenous families are not capable of deciding what is best for them.

The MCFD should notify families that their privacy was breached by the issuance of a birth alert and then the families can decide for themselves whether they wish to potentially face retraumatization by going through a process of seeking an apology and amends. MacIsaac and Company is currently investigating potential claims regarding this matter.

 

Disability Discrimination Complaint Against Maple Ridge Hyundai Dismissed

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Cardiff, UK: June 02, 2020: Hyundai Car Dealership. The Hyundai Motor Company, commonly known as Hyundai Motors, is a South Korean multinational automotive manufacturer. Illustrative Editorial

In reasons released today regarding the case of Verozinis v Kot Auto Group dba Maple Ridge Hyundai, 2020 BCHRT 156, Tribunal Member Norman Trerise dismissed a human rights complaint against the Hyundai car dealership located in Maple Ridge, BC.

The Complainant, Spyros Verozinis, alleged that when he attended the Maple Ridge Honda Dealership with his wife to buy a vehicle, the Finance Manager engaged in high pressure communications regarding the details of the vehicle and he was unable to fully understand what was occurring due to his disability – congenital deafness. He alleged that he ended up purchasing a vehicle he would not have purchased if his disability were not taken advantage of and he fully understood the terms of the sale. As such, he complained he was discriminated against on the grounds of mental and physical disability in the area of service contrary to the BC Human Rights Code.

Following a 2-day hearing, the Tribunal found that the Complainant’s mental and physical disabilities were not a factor in him being sold the vehicle. Mr. Verozinis was successful in establishing that he had a physical or mental disability. However, he failed to established that he experienced adverse treatment related to his disability and the car sale. The Tribunal held that he was too inconsistent on this issue to be reliable and instead preferred the evidence of the car dealership’s witness. Regarding the inconsistency, the Tribunal found the following at paras 45 and 46:

[45] Mr. Verozinis has testified both that he was adversely impacted because the vehicle was purchased by his wife rather than by him and that he did not receive the vehicle he wanted being a hybrid or electric vehicle but instead received a gas‐powered vehicle. However, Mr. Verozinis has testified to his awareness that a vehicle in the category that he desired was not within the financing capability of his wife. In other words, Mr. Verozinis had to know and I find that he did know that the vehicle his wife was purchasing at the time of the transaction with the Respondent was a gas‐powered vehicle. Accordingly, I find that Mr. Verozinis was not adversely impacted by the purchase of a gas‐powered vehicle as opposed to a hybrid or electric‐powered vehicle.

[46] More contentious is Mr. Verozinis’ inconsistency around understanding that the vehicle was purchased by his wife. It is clear on the evidence that Mr. Verozinis understood that his wife was financing the purchase of the vehicle, either because Mr. Verozinis believed that his bankruptcy prevented him from purchasing the vehicle at all or because he understood that if the vehicle was purchased in his name it would be at a higher interest rate than if his wife purchased the vehicle. In either event, Mr. Verozinis clearly understood that the financing of the vehicle was dependent upon his wife’s income rather than his own.

Further, the Respondent was successful in demonstrating that it took all reasonable and practical steps to avoid an adverse impact on the Complainant because their employees offered to use a microphone, spoke loudly and clearly, and sat so he could see their faces at all times.

The Tribunal also held at para 55 that “generally, a person seeking accommodation must give the service provider the facts needed to accommodate, facilitate the implementation of reasonable accommodation proposals, and accept reasonable accommodation.”

This case demonstrates that those alleging discrimination should ensure they are clear and consistent when giving evidence at a hearing. It also demonstrates that people with disabilities who need accommodation must assist service providers in accommodating them before they can allege that the service provider has failed to do so. Further, it demonstrates that service providers should make all reasonable and practical efforts to accommodate those with disabilities.

Kayla Bergsson Talks on Danish Podcast About Human Rights in Times of Crisis

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COVID-19 Amounts to Disability & Employers Must Accommodate Employees Amidst the Crisis, BC Human Rights Commissioner States

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On March 23, 2020, BC’s Human Rights Commissioner Kasari Govender released a statement on COVID-19, saying that in her view, COVID-19 amounts to a disability. While she recognized that in the rapidly changing circumstances, there has not been time for courts of the BC Human Rights Tribunal to weigh in on the matter, she was prepared to provide her opinion. She gave the following reasoning:

The seriousness of this illness – and the potential stigma that attaches to it – make it more akin to the legal protections that apply to HIV than to the common cold. Therefore, discrimination on the basis of someone having (or appearing to have) COVID-19, is prohibited under the Code except where the duty bearer can justify such treatment (for example, to prohibit or diminish the transmission of the virus).

Commissioner Govender also asserted that in addition to the BC Human Rights Code protecting people with the virus from being discriminated against, it also protects people from being discriminated against based on the ethnicity, place of origin, race, colour, or ancestry. This means employers, landlords, and service providers “cannot discriminate against someone on the basis of whether a person comes from (or appears to come from) a COVID-19 hotspot such as Italy or China.”

Additionally, she stated, discrimination based on family status is protected. This means that with the closure of daycares and schools, duty bearers must accommodate parents so that they can ensure their children are cared for.

According to Commissioner Govender, employers have a number of duties in the midst of COVID-19. They cannot make discipline or firing decisions based on someone having (or exhibiting symptoms of) COVID-19 (although they can lay employees off if there is not enough work for the as a result of the impacts of COVID-19). They must accommodate employees that may have COVID-19, or are particularly vulerable to COVID-19 (for example if they are elderly or immunocompromised) by providing flexible arrangements, such as working from home.

Commissioner Govender also presented a survey for citizens to complete in order to assist her with carrying out her duties and advocate for people facing discrimination during the pandemic. The survey asks about how your human rights are being impacted during COVID-19 and you are encouraged to fill it out.

Legislation Allows BC Employees Unpaid COVID-19-Related Leave

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On Monday, March 23, 2020, the British Columbia Government amended the BC Employment Standards Act with Bill 16 – Employment Standards Amendment Act (No. 2), 2020  to grant BC employees the ability to take a job-protected unpaid COVID-19-related leave.

This leave was mentioned in our previous post regarding human rights, employment law, and COVID-19, however, the legislation and details contained within it were not known until March 23, 2020.

In introducing the new legislation in parliament, the Honourable Michael Farnworth stated the following:

Bill 16 amends the Employment Standards Act to provide unpaid job-protected leave to employees in British Columbia during the COVID-19 crisis. COVID-19 is an unprecedented public health emergency for British Columbians and for people across Canada and around the world.

The most important part of our work is protecting British Columbians. During this crisis, no employee will lose their job or be fired for following an order of the provincial health officer or for needing to care for a child whose school is closed.

According to section 52.12(2) of the legislation, employees are entitled to unpaid leave if, in relation to COVID-19, any of the following situations apply:

  1. the employee has been diagnosed with COVID-19 and is acting in accordance with their doctor or an order of a medical health officer;
  2. the employee is in quarantine or self-isolation in accordance with an order of the provincial health officer (Dr. Bonnie Henry – her Orders are available here), an order made under the Quarantine Act (for example, the most recent emergency order requiring persons entering Canada from elsewhere to self-isolate for 14 days), guidelines of the BC Centre for Disease Control (available here), or guidelines of the Public Health Agency of Canada (available here);
  3. the employer, due to a concern about exposing others, has directed the employee not to work;
  4. the employee is providing care to their child due to the closure of the child’s school, daycare, or similar facility; or
  5. the employee is outside the province and cannot return to BC because of travel or border restrictions.

These circumstances outlined in section 52.12(2) are quite broad, as they allow people to follow not only the provincial health officer’s orders, but her recommendations as well. For example, when the legislation was being debated, MLA Sonia Fursteau asked for confirmation that it protects a cashier with significant respiratory issues from needing to attend work. Someone in this position is protected because the provincial health minister has recommended that they not attend work.

Section 52.12(3) of the legislation allows the leave to carry on for as long as the circumstances in section 52.12(2) apply to the employee.

The Employment Standards Act, as amended, allows the employer to request proof the the above circumstance exists; however, the employee is not required to provide a doctor’s note. What kind of proof is required will thus vary according to the circumstances and is yet to be seen. If an employee needs to take the leave due to their child’s daycare being closed, for example, a letter from the daycare notifying parents of the closure may be sufficient proof.

The Employment Standards Amendment Act also came with transitional provisions that make employees eligible for the leave as of January 27, 2020 (the first day a coronavirus case was reported in BC). This means that if an employee is already off of work because of an eligible situation set out in section 52.12(2), they cannot be terminated. It also means that if an employee was terminated after January 27, 2020 but before March 23, 2020, due to the circumstances outlined in section 52.12(2), the employer must offer the employee re-employment in the same or a comparable position.

Presumably, if an employee is terminated in the above circumstances, for example when they need to stay home and care for a child who has lost childcare, a human rights complaint could still be available as well.