Tribunal Member Devyn Cousineau

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 Marital Status Discrimination Against Employer who Fired Former Employee’s Wife, Awards Compensation Over $70,000

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In a decision issued on June 1, 2022, Martin v. Grapevine Optical and another (No. 2), 2022 BCHRT 76, Tribunal Member Devyn Cousineau held that employer Grapevine Optical in Oliver, British Columbia, discriminated against the complainant optician/store manager by terminating her employment one month after her husband quit. Before quitting, the Complainant Mrs. Martin’s husband Mr. Martin had an altercation with the owner of the store. After quitting, he filed a WorkSafeBC claim. Under the BC Human Rights Code, it is discrimination for an employer to refuse to continue to employ someone due to their marital status.

For the first 8 years that the complainant worked at Grapevine Optical, she had a good relationship with the store owner. She planned to work at the store in the long term and potentially buy and take over the business one day. She started working there in 2008. In 2016, her husband was hired to work at the store to relieve her of some of the burden of her workload. This worked okay until around June, 2019.

On or around June 10, 2019, the store owner and the complainant had a disagreement over a sign that was going to be changed at the store. It was a heated exchange. When the complainant went to leave the store with her husband at the end of the day, she said goodbye to the store owner. The store owner did not respond. Her husband made a remark to the store owner about not responding to his wife. The store owner followed the Martins out of the store and onto the street, where he confronted them. The store owner and Mr. Martin were yelling and angry at eachother. Angry words were exchanged. The Martins then left and went home. Mr. Martin filed a worksafeBC complaint for bullying and harassment.

Mrs. Martin attended work the next day and told the store owner that her husband would not be returning. The relationship between Mrs. Martin and the store owner became strained. On July 10, 2019, the store owner and Mrs. Martin had a conversation where the store owner told her he would be taking over all management duties that she previously did. There was disagreement between the parties about whether the complainant quit during the conversation because she asked to be let go, or was fired. The Tribunal found the following about this:

[42] Mr. Fellnermayr says he asked Mrs. Martin twice if she was quitting and she said yes – a 
claim which she fervently denies. I accept Mrs. Martin’s evidence that she would not have quit 
her job, which she was relying on to feed her family. At the same time, it is apparent that Mr. 
Fellnermayr had not completely thought through the natural consequences of his actions. He 
wanted to reassert control over his workplace by stripping Mrs. Martin of most of her essential 
job duties. Whether he intended it or not, this amounted to the termination of her employment. When she accurately perceived what was happening, he made no efforts to reverse or correct what was happening. Instead, he blamed – and continues to blame – her. 

According to the Tribunal, the Respondent was also estopped from arguing that Mrs. Martin quit her job because the Employment Standards Branch already had an oral hearing and determined that Mrs. Martin was fired from her job further to a complaint made under the Employment Standards Act.

Overall, the tribunal stated the following about the discriminatory nexus between Mrs. Martin’s termination and her marital status:

[59] I accept that Mr. Fellnermayr was increasingly unhappy with the dynamic in the workplace and that some of the above issues were factors in that unhappiness. However, I do not accept that these issues amount to a complete explanation for why he suddenly decided to remove all of Mrs. Martin’s managerial responsibilities and terminate her employment. They had worked together successfully for years, and he relied on her heavily. He never took any steps to correct the behaviour before the incident with Mr. Martin. In my view, the factor that pushed Mr. Fellnermayr to take this extreme step was that he perceived he could no longer trust Mrs. Martin because of what had happened with her husband and the subsequent decline in their relationship. This perception was not based on Mrs. Martin’s behaviour at work in the month after the incident, but arose because of her relationship with her husband. The “final
word” in Mr. Fellnermayr’s written submission reveals the event which marked the beginning of the end: “OMG!!! We were changing a sign. How did that get so wild and crazy?” The heated discussion about the sign led to Mr. Fellnermayr not saying goodbye to Mrs. Martin, which led to Mr. Martin making his sarcastic comment, which led to Mr. Fellnermayr following them out onto the street, which led to a shouting match and the end of Mr. Martin’s employment. Mrs. Martin kept coming to work, and doing her job as she had before. But in Mr. Fellnermayr’s mind, this altercation triggered the ultimate decline in a previously positive working relationship, and led to the end of Mrs. Martin’s employment.

[60] Mr. Fellnermayr’s conduct after the termination supports that he viewed at least part of the problem to stem from the fact that he had hired spouses to work for him. This prompted him to implement a new policy prohibiting the hiring of spouses. This supports an inference that Mrs. Martin’s marriage to Mr. Martin was a factor in her termination.

The tribunal decided to award the Complainant wage loss. It declined to award lost wages to the date of the hearing, but award lost wages for the period between July 10, 2019 when the complainant was fired and December 31, 2020 when she started working part-time at a coffee shop, for a total of $50,836.53. The tribunal also awarded $20,000 for injury to dignity, feelings, and self-respect.

BC Human Rights Tribunal Dismisses Employee’s Sex Discrimination Complaint Against VIHA

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In a decision issued by British Columbia Human Rights Tribunal Member Devyn Cousineau on March 1, 2022 following a three-day hearing from December 6-9, 2021, an employee’s sex discrimination complaint against the Vancouver Island Health Authority (“VIHA”) was dismissed.

Complainant Suzana Kalyn had a history of making two prior human rights complaints against VIHA, and the tribunal noted at paragraphs 24 and 116 that her decision to do so was not made lightly. Her first complaint against VIHA was for terminating from her position in a male-dominated department due to her “gossiping” and generally being tenacious in raising concerns about discrimination regarding herself and other women (the “First Complaint”). In a decision issued on October 9, 2008, the Tribunal found that Ms. Kalyn’s sex (her identity as a female) was a factor in her termination. It ordered that her position as a protection services officer team leader be reinstated.

Ms. Kalyn made another complaint in the Human Rights Tribunal about VIHA reorganizing and changing her position in 2015 (the “Second Complaint”). Not much information about the Second Complaint is publicly available, as it was ultimately settled.

Ms. Kalyn continued working for VIHA. She oversaw dozens of protection services officers in the south island region. Since her return following the First Complaint, she wanted to advance in VIHA. She sought mentorship and was told that most people moving forward in management roles had Master’s degrees. So she obtained one from Royal Roads University in Health Leadership in 2014. Subsequently in 2014, she applied for a position posting at VIHA titled “Manager, Protection Services.” She was interviewed; however, she did not get the job. It was awarded to a man.

She later applied for 12-14 more positions with Island Health that she was not awarded. Island Health argued that it was because she was not qualified.

In November, 2018, the man who was previously awarded the position of “Manager, protection Services” in 2014 vacated the position. Ms. Kalyn applied. She met all of the qualifications for the position. The Executive Director had Ms. Kalyn and her colleague, who was also a team leader, share the responsibilities of the position while the hiring process was conducted. Both she and her colleague applied. He was a man who did not have a Master’s degree. He was ultimately awarded the position. The job posting required a Master’s degree or “equivalent” experience. VIHA argued that the colleague had equivalent experience. Ms. Kalyn argued that he did not.

Ms. Kalyn and two other applicants, including her colleague, participated in interviews. The interview panel ranked Ms. Kalyn’s performance last out of the three.

The Tribunal held the following about job interviews at para 95:

Interview and hiring processes always carry a degree of subjectivity, and as such are ripe
for unconsciously biased decision making that can favour certain types of applicants over
others. Ageism and sexism are two commonly held biases, as is the bias that tends to associate
white, cisgender, men with strong leadership. While it may not be realistically possible to completely eliminate biases from a hiring process, there are ways to mitigate their potential impact – a number of which were employed in the hiring process at issue here.

The Tribunal summarized its findings as follows:

[104] I understand why Mrs. Kalyn believes that discrimination was a factor in the decision. 
She has worked hard to improve her qualifications and advance within the organization. The 
Position at issue in this complaint is perhaps the management role she is best qualified for, and 
she was humiliated when it was awarded to her younger male colleague. In light of her history 
with Island Health, and feeling that her advancement has not been supported, she reached the 
conclusion that this was another manifestation of discrimination in her employment. 

[105] However, viewing the evidence as a whole, I am not satisfied, on a balance of 
probabilities, that Mrs. Kalyn has proved that her age and/or sex were a factor in the decision – 
consciously or unconsciously. I accept Island Health’s non‐discriminatory explanation as a 
complete explanation for the decision to prefer Mr. L and Mr. Clarke over Mrs. Kalyn. The 
allegation of discrimination is dismissed.

Landlord's Harassment Forces New Mother to Vacate Suite 12-days after C-Section

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In a decision issued on February 19, 2020, Valdez v Bahcheli, the BC Human Rights Tribunal held that a landlord’s conduct amounted to discrimination on the basis of sex and family status, in violation of section 10 of the BC Human Rights Code.

A few days after Germaine Valdez gave birth, her landlord Meltem Bahcheli texted her saying that she would need to find a new place to live. The day Valdez returned from the hospital, Bahcheli came to the suite and began yelling at her. Bahcheli told Valdez that if her family did not cooperate and agree to vacating the suite, she would be evicted and refused a reference. Further, Bahcheli would not allow Valdez to stay present in the suite while it was shown to prospective tenants. This meant Valdez would have to walk around outside in the cold with her baby for two hours while recovering from her recent c-section. Her baby was 11 days old.

The Tribunal ordered that Bahcheli pay Valdez $1,923.56 for moving expenses and $9,000 as compensation for injury to her dignity, feelings, and self-respect.

In delivering reasons, the Tribunal held as follows:

[30] Ms. Bahcheli’s behaviour was having a serious impact on Mrs. Valdez. She was frequently crying. She was having to physically exert herself more than she should have been, immediately following a c‐section. As a result, she experienced some unusual bleeding that required medical attention. Mr. Valdez testified emotionally about this time. He explained that all he wanted to do was make sure his wife was safe, but they had very limited resources. He was working and going to school and so could not be at the apartment all day to intervene with Ms. Bahcheli. They could not afford to hire movers and he wanted to make sure Mrs. Valdez was doing as little physical activity as possible.

…

[40] There were no issues in the Valdezes’ tenancy until Mrs. Valdez told Ms. Bahcheli that she had given birth. A person’s family status includes the size and composition of their family: Fakhoury v. Las Brisas Ltd (1987), 8 CHRR D/4028 (Ont. Bd. Inq). It includes having a baby: Cha v. Hollyburn Estates Ltd., 2005 BCHRT 409. In the housing context, the protection from discrimination based on family status “exists precisely to protect families, and others who may be screened out of tight housing markets, from being unjustifiably excluded from safe and secure housing”: Abernathy v. Stevenson, 2017 BCHRT 239 at para. 15.

…

[43] The birth triggered Ms. Bahcheli to begin what would become a torrent of accusations that the Valdezes had lied to her and misrepresented themselves. Over the next few weeks, she refused to meet and deal with the Valdezes in a professional way, threatened to start legal action against them and charge them sums of money for wasting her time, and insisted on frequent, uninterrupted access to their apartment at her own convenience. I am satisfied that Ms. Bahcheli’s conduct over this period constituted harassment at a point when Mrs. Valdez was particularly vulnerable. The harassment was directly connected to the birth of Mrs. Valdez’s child.


Landlord’s Harassment Forces New Mother to Vacate Suite 12-days after C-Section

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In a decision issued on February 19, 2020, Valdez v Bahcheli, the BC Human Rights Tribunal held that a landlord’s conduct amounted to discrimination on the basis of sex and family status, in violation of section 10 of the BC Human Rights Code.

A few days after Germaine Valdez gave birth, her landlord Meltem Bahcheli texted her saying that she would need to find a new place to live. The day Valdez returned from the hospital, Bahcheli came to the suite and began yelling at her. Bahcheli told Valdez that if her family did not cooperate and agree to vacating the suite, she would be evicted and refused a reference. Further, Bahcheli would not allow Valdez to stay present in the suite while it was shown to prospective tenants. This meant Valdez would have to walk around outside in the cold with her baby for two hours while recovering from her recent c-section. Her baby was 11 days old.

The Tribunal ordered that Bahcheli pay Valdez $1,923.56 for moving expenses and $9,000 as compensation for injury to her dignity, feelings, and self-respect.

In delivering reasons, the Tribunal held as follows:

[30] Ms. Bahcheli’s behaviour was having a serious impact on Mrs. Valdez. She was frequently crying. She was having to physically exert herself more than she should have been, immediately following a c‐section. As a result, she experienced some unusual bleeding that required medical attention. Mr. Valdez testified emotionally about this time. He explained that all he wanted to do was make sure his wife was safe, but they had very limited resources. He was working and going to school and so could not be at the apartment all day to intervene with Ms. Bahcheli. They could not afford to hire movers and he wanted to make sure Mrs. Valdez was doing as little physical activity as possible.

…

[40] There were no issues in the Valdezes’ tenancy until Mrs. Valdez told Ms. Bahcheli that she had given birth. A person’s family status includes the size and composition of their family: Fakhoury v. Las Brisas Ltd (1987), 8 CHRR D/4028 (Ont. Bd. Inq). It includes having a baby: Cha v. Hollyburn Estates Ltd., 2005 BCHRT 409. In the housing context, the protection from discrimination based on family status “exists precisely to protect families, and others who may be screened out of tight housing markets, from being unjustifiably excluded from safe and secure housing”: Abernathy v. Stevenson, 2017 BCHRT 239 at para. 15.

…

[43] The birth triggered Ms. Bahcheli to begin what would become a torrent of accusations that the Valdezes had lied to her and misrepresented themselves. Over the next few weeks, she refused to meet and deal with the Valdezes in a professional way, threatened to start legal action against them and charge them sums of money for wasting her time, and insisted on frequent, uninterrupted access to their apartment at her own convenience. I am satisfied that Ms. Bahcheli’s conduct over this period constituted harassment at a point when Mrs. Valdez was particularly vulnerable. The harassment was directly connected to the birth of Mrs. Valdez’s child.