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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.

Human Rights Tribunal Finds Disability Discrimination by Housing Co-Op Inadequately Addressing Mould, Awards Complainant Over $20,000

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In a decision issued on June 1, 2022, Cameron v. Burrardview Housing Co-operative (No. 3), 2022 BCHRT 74, BC Human Rights Tribunal Member Grace Chen held that a housing co-operative discriminated against a member resident when it failed to adequately address issues of moisture and mould that exacerbated the resident’s physical disability. This was physical disability discrimination in services under section 8 of the BC Human Rights Code.

The Respondent housing co-op did not deny the presence of mould in the unit, but denied discriminating.

The complainant had advised the co-op that there was mould in her bathroom which was effecting her health. The co-op hired a company to investigate and the company found that there was a small amount of mould in the townhouse. It made recommendations regarding what had to be done to prevent mould from continue to grow. The complainant hired another company to inspect the air afterwards and that company found a “significant presence of mould and the high potential for health issues in correlation with long term exposure.” The complainant was subsequently diagnosed with a mould allergy. The doctors who saw her found that she had rhinosinusitis, sensitization to mould, hypersensitized airways, and allergy to mould. These were caused by the mould inside her home.

The co-op attempted renovations to remove the mould; however, the tribunal considered them inadequate and not done in a timely enough manner.

The tribunal held that the rhinosinusitis, sensitization to mould, hypersensitized airways, and 
allergy to mould were disabilities covered under the BC Human Rights Code. The tribunal also held that the mould exacerbated her disability, which was considered an adverse impact.

Regarding whether the mould was related to the disability, the tribunal held as follows:

[99] Overall, I find the medical evidence shows Ms. Cameron’s disability is related to the 
mould in her home and that the mould exacerbated her disability. Dr. Stepaniuk’s comment 
does not dissuade me given the other doctors arrive at a different conclusion. While there is 
not enough evidence to show the mould caused her disability, I am persuaded that nexus has 
been established because the medical evidence shows the mould contributes to her disability 
symptoms. 

Regarding the connection with her disability, the tribunal also held the following:

[104] However, I find Burrardview indirectly discriminated against Ms. Cameron when she 
reported in 2016 that her health was being affected by the mould and Burrardview did not act, 
but acted in 2017 when another unit complained of mould. I find the nexus is proven between 
the differential treatment and her disability. 

The Tribunal also held that the housing co-op failed to accommodate the complainant’s disability, stating as follows:

[137] This situation has turned into a battle of mould inspection reports. Ms. Cameron does 
not trust Burrardview or its experts. The experts she retains produced different results than 
Burrardview’s experts. I cannot conclude the final Metro report and final remediation is the last 
reasonable and practical step that Burrardview has taken to the point of undue hardship. Given 
that Ms. Cameron gave evidence that the problem returned, at the very least, there should be 
some follow up on that, and there is no evidence of Burrardview addressing this. 

[138] I find Burrardview has not taken all reasonable and practical steps to accommodate Ms. 
Cameron to the point of undue hardship and has not discharged its duty to accommodate. 

It ordered that the respondent pay for some of the expenses the complainant incurred in relation to retaining the reports. It also ordered the co-op pay the complainant $20,000 for injury to dignity, feelings, and self respect.

Vancouver’s Toscani Coffee Bar Ordered to Pay $4,000 for Racial Discrimination in Refusing Service

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In a decision issued on February 24, 2021, the BC Human Rights Tribunal held that the owner of Vancouver’s Toscani Coffee Bar discriminated against four complainant patrons based on their race when she refused one of them service and referred to him and his friends as “you Arabs.”

Each of the four complainants had previously immigrated from North Africa to Canada. They speak Arabic and identify as having Arabic ancestry. The coffee shop owner is a woman of colour who was raised in a Muslim family in Indonesia. One of the complainants told the owner’s Italian husband, who also works at the coffee shop, that they were unhappy with her service. The owner felt that a few of the complainants were disrespectful towards her in her own business.

On July 8, 2019, the store owner refused to serve one of the complainants, as she did not desire to serve someone who did not want to be served by her. The owner and complainant then spoke outside. Tribunal Member Devyn Cousineau accepted the complainant’s evidence about the conversation. According to him, the owner said “I don’t want you Arabs here, and you should tell your friends that I don’t want you here. You are not welcome anymore.” The tribunal accepted the owner’s explanation for refusing service as well, stating as follows:

[32] I accept Ms. Conforti’s explanation for why she told Mr. Haouas, Mr. Gharbi and Mr. Ben Maaouia that she would not serve them. She felt they had disrespected her in her own business. She understood that they had talked to others about not wanting her to serve them, and that she was simply granting their wish. She was frustrated that they did not recognize her authority in her own business and went around her to her husband for service or to complain about her. As an immigrant woman of colour raised in a Muslim household, running a business that serves immigrants from all over the world, I accept that Ms. Conforti did not refuse to serve the Complainants because they are Arab.

It was therefore accepted that the owner did not refuse service due to the complainants being Arab. That did not end the matter, however. Discrimination occurred nevertheless because a racial comment was connected to a negative effect on the complainants. The Tribunal held the following about this:

[34] In a discrimination complaint, it is not the respondents’ intention that matters but the effect of their behaviour: Code, s. 2. In this case, the effect of Ms. Conforti’s words was to connect the Complainants’ Arab ancestry to her communication that she would not serve them. The discriminatory words were “spoken at the very same time and place” as she told Mr. Haouas she would not serve him, and they were “inextricably linked” to that communication: Gichuru v. Purewal, 2019 BCSC 484 at para. 484. The effect was discrimination.

For injury to their dignity, feelings, and self-respect, the Tribunal awarded $1,000 to each of the four complainants.

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.

Tribunal Dismisses Complaint Against Strata for Discrimination in Addressing Noisy Neighbour Situation

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annoyed stressed woman covering her ears, looking up loud noise upstairs

In his reasons issued on June 16, 2020, BC Human Rights Tribunal Member Paul Singh dismissed a complaint against a strata for allegedly failing to enforce a noise bylaw against the complainant’s neighbours because of her sex and marital status. The complaint was made under section 8 of the BC Human Rights Code, as strata councils are considered to be providers of accommodation, services, or facilities customarily available to the public.

The complainant owns a condo in a strata. She alleged that the residents in the unit above hers were too loud. According to the Tribunal, several actions were taken by the strata and neighbours in an effort to address the complainant’s concerns. The strata:

  • sent caution notices to the upstairs neighbours,
  • conducted noise inspections,
  • tried to arrange a mediation and other voluntary dispute resolution processes between the neighbours and the complainant,
  • included a note in strata council meeting minutes to keep residents aware of the noise issue,
  • sent out “good neighbour” noise notices to all unit owners in the building,
  • sent a letter to the upstairs neighbours suggesting a change of flooring,
  • adopted a bylaw regarding installation of underlay for new flooring to reduce noise, and
  • retained an engineer to determine whether any structural deficiencies existed between the units.

The upstairs neighbours apparently changed their flooring and started wearing slippers.

The Complainant argued that all of these measures were inadequate.

She alleged that her sex and marital status were a factor in the strata’s failure to adequately address her noise concerns. She thought this was the case because of an exchange she had in the building’s parkade with a strata council member who said something to the effect of “you shouldn’t have to put up with that because you are a single woman.” She said that aside from the discrimination which should be inferred from the comment in the parkade, there was no other explanation for why the strata “did nothing” over three years.

The Tribunal held that there was no reasonable prospect of the complainant succeeding in showing a nexus between her sex or marital status and any adverse impact she experienced from the noise in her unit. It held as follows at paragraph 59 of the decision:

The Respondents do not specifically deny that the Comment was made to Ms. Dolinsky. However, the Comment, even if made, cannot reasonably be seen as anything other than an offhand remark made during a brief, casual conversation. A Strata Council member telling Ms. Dolinsky that she should not have to put up with noise issues because she was a “single woman” is simply not sufficient to establish discrimination under the Code given all the steps the Strata had taken through the years to help address and ameliorate Ms. Dolinsky’s noise concerns.

The Tribunal also held the following at paragraph 62:

…it is not the Tribunal’s role to assess the merits of a strata’s management decisions for its building, including the process for investigating and enforcing bylaws, so long
as those decisions are not used as a pretext for discrimination. What concerns the Tribunal is only whether a characteristic protected by the Code was a factor in these decisions: Li v. Options Community Services and others, 2020 BCHRT 104 at para. 84.

Complaint About Hair Salon’s Alleged Refusal to Provide Hair Cut to Transgender Woman Dismissed

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In reasons for decision regarding X v Hot Mess Hair Salon (No 2), 2020 BCHRT 42, the BC Human Rights Tribunal dismissed a complaint against Hot Mess Hair Salon for allegedly refusing to provide a transgender woman hair style and cut services.

When complaint X inquired on a hair stylist’s Facebook page about pricing for a style and cut, the stylist replied that she only does women’s hair. When the complainant stated “actually I’m a girl ha, ha (it happens a lot lol)” and then went on to ask about availability, she received no answer. It appeared to her that the stylist blocked her from Facebook.

X then searched for the stylist on the internet and found that she worked for Hot Mess. X contacted Hot Mess to express her frustration, the owner apologized, assured her that she had not been blocked (she said the stylist’s Facebook page had been “locked”), and offered her a free hair style and cut. The stylist did the same. X refused and filed the Human Rights Complaint.

Ultimately, the tribunal dismissed the complaint, finding that X did not establish a connection between her gender identity and her inability to schedule a hairstyling appointment. It stated the following:

[32] In order for the complaint to succeed it would be necessary for the Tribunal to draw the inference that her gender was at least a factor in her being prevented from making an appointment to have her hair styled and cut. I am unable to draw such an inference for the following reasons.

[33] I have the evidence of X that she is satisfied that the stylist was not actually locked out of Facebook. Unfortunately, her reasons for reaching that conclusion are not supported by any expert evidence with respect to the use of Facebook or Instagram. Combine that with apparent efforts by the stylist to have a conversation with X and to book her in for a style and cut and then an attempt by Ms. Simpson to do the same, and I am not in a position to conclude that the events of March 5 were precipitated by X’s gender. It is just as probable that they were precipitated by the stylist’s expressed inability to respond to X via Facebook.

Complaint About Hair Salon's Alleged Refusal to Provide Hair Cut to Transgender Woman Dismissed

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In reasons for decision regarding X v Hot Mess Hair Salon (No 2), 2020 BCHRT 42, the BC Human Rights Tribunal dismissed a complaint against Hot Mess Hair Salon for allegedly refusing to provide a transgender woman hair style and cut services.

When complaint X inquired on a hair stylist’s Facebook page about pricing for a style and cut, the stylist replied that she only does women’s hair. When the complainant stated “actually I’m a girl ha, ha (it happens a lot lol)” and then went on to ask about availability, she received no answer. It appeared to her that the stylist blocked her from Facebook.

X then searched for the stylist on the internet and found that she worked for Hot Mess. X contacted Hot Mess to express her frustration, the owner apologized, assured her that she had not been blocked (she said the stylist’s Facebook page had been “locked”), and offered her a free hair style and cut. The stylist did the same. X refused and filed the Human Rights Complaint.

Ultimately, the tribunal dismissed the complaint, finding that X did not establish a connection between her gender identity and her inability to schedule a hairstyling appointment. It stated the following:

[32] In order for the complaint to succeed it would be necessary for the Tribunal to draw the inference that her gender was at least a factor in her being prevented from making an appointment to have her hair styled and cut. I am unable to draw such an inference for the following reasons.

[33] I have the evidence of X that she is satisfied that the stylist was not actually locked out of Facebook. Unfortunately, her reasons for reaching that conclusion are not supported by any expert evidence with respect to the use of Facebook or Instagram. Combine that with apparent efforts by the stylist to have a conversation with X and to book her in for a style and cut and then an attempt by Ms. Simpson to do the same, and I am not in a position to conclude that the events of March 5 were precipitated by X’s gender. It is just as probable that they were precipitated by the stylist’s expressed inability to respond to X via Facebook.