B.C. Supreme Court overturns Indigenous mother’s $150K discrimination award

An Afro-Indigenous mother may no longer receive a $150,000 discrimination award after a B.C. Supreme Court judge overturned a ruling that found social workers violated her human rights.

Justine (whose real name is protected by a publication ban) filed a complaint with the B.C. Human Rights Tribunal in 2017, after Vancouver Aboriginal Child and Family Services Society (VACFSS) social workers took her four daughters and separated them into three different foster homes.

In 2022, the tribunal found that VACFSS discriminated against “Justine” based on her Indigeneity and disabilities, violating section eight of B.C.’s Human Rights Code. Then VACFSS asked the B.C. Supreme Court to review the decision and consider tossing it out. 

In 2023, Justice Geoffrey Gomery spent five days hearing arguments from a parade of lawyers representing Justine, VACFSS, the tribunal and “B.C.’s” attorney general, as well as those who chose to intervene — the Union of B.C. Indian Chiefs, the province’s human rights commissioner and West Coast LEAF. 

On Monday, Gomery released his decision. He found that tribunal member Devyn Cousineau erred in her analysis and failed to ensure a fair procedure.

“Accordingly, I set aside the decision and order that it be remitted to the tribunal for further consideration,” Gomery wrote in the Jan. 22 decision. “[Justine] may yet be entitled to a remedy based on a correct legal analysis.” 

Justine told IndigiNews she plans to appeal — and she’s exhausted at the prospect. 

“I have to sit in a court and listen to all the things that were happening to my children and myself. It’s a lot of anxiety leading up to that. A lot of anxiety after, waiting for the decision,” she said.

Justine already spent 21 days sitting through the tribunal’s hearing — and before that, between 2018 and 2019, she spent 26 days in the provincial court, fighting to get her kids out of government “care.” 

“It’s almost like a retraumatization all over again,” she said. “How many more years is this going to go?”

Judge says VACFSS ‘was not afforded a fair opportunity’

In his ruling, Gomery agreed with VACFSS’s assertion that the tribunal’s process was unfair.

It took 17 months for the tribunal to hear Justine’s case in full — and tribunal member Cousineau eventually concluded that “VACFSS’s decisions to retain custody and restrict [Justine’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.”

However, Gomery found Cousineau’s “understanding and description of the issues evolved … to such an extent that [VACFSS] was not afforded a fair opportunity to address them in evidence and argument before the tribunal.”

The agency didn’t get a chance “to address issues upon which the decision turns,” he wrote — such as contested provincial court orders made before the period covered by Justine’s complaint.

Jonathan Blair calls this interpretation of events “very unfortunate.” As a lawyer with the nonprofit firm CLAS, Blair acted as co-counsel for Justine, alongside Danielle Sabelli. 

“It was VACFSS who actually raised much of the circumstances and court documents from before the period of the complaint that the judge seems to say they didn’t have an opportunity to bring forward,” he said. 

IndigiNews asked VACFSS for an interview and a spokesperson for the agency replied by email: “We have no comment to make at this time.”

IndigiNews also asked the “B.C.” attorney general to comment on Gomery’s decision and to disclose how much money the province has spent fighting this discrimination case over the years. 

“We have received the court’s decision and are now taking the time to review it in detail. We have no further comment at this time,” wrote a spokesperson for the ministry. 

A question of jurisdiction

During the judicial review, a sticking point was whether or not the tribunal had exceeded its jurisdiction by weighing in on matters of custody and access.

VACFSS argued that the tribunal’s decision “jeopardizes the safety of Indigenous children by undermining the provincial court’s jurisdiction over child protection matters.”

But, notably, Gomery didn’t agree with this point. He found it was appropriate for the tribunal to hear Justine’s complaint and to consider her compensation request. In fact, he said  “the tribunal was the only adjudicative body possessing jurisdiction” to consider her claim.

“This is a case of concurrent jurisdiction,” he wrote, “in that both the tribunal and the provincial court had jurisdiction to grant different remedies arising from common facts.” 

This is an important recognition, according to B.C. Human Rights Commissioner Kasari Govender, who acted as an intervenor.

“Those who face discrimination in the child protection system can seek accountability for what they’ve experienced,” she told IndigiNews via email. 

Jason Gratl, who intervened on behalf of the Union of B.C. Indian Chiefs, said his client is also “pleased about the principal outcome” of the decision.

“Indigenous people and indeed any member of a marginalized group … can take comfort in the reality that social workers in the province of British Columbia are required to comply with the human rights code in the apprehension of children,” he said.

“We won the war, but [Justine] lost a battle.”

Discrimination definition could affect future cases

Meanwhile, Justine’s lawyers are concerned about the impact Gomery’s decision will have on future discrimination complaints. 

“It makes some findings that are inconsistent with well-established human rights law and inconsistent with Supreme Court of Canada law,” Blair said. “In particular, it really seems to bring back the idea that the intention of the discriminating party matters, which is clearly not the case.”

Blair, Sabelli and several intervenors said they’re concerned with how the decision describes what discrimination is and isn’t. They pointed to paragraph 150 of Gomery’s decision as particularly problematic.

Gomery wrote that a social worker’s assessment can’t be discriminatory when it’s “made in good faith” in accordance with B.C.’s Child, Family and Community Service Act (CFCSA) — which sets out the rules for social workers in the province. This is true “even if it engages stereotypical reasoning and escalating assertions of power and control,” he wrote.

If allowed to stand, Gomery’s decision would “effectively allow social workers to act with impunity without there being any accountability for the harm suffered,” Sabelli added. 

The province’s human rights commissioner also took issue with this part of Gomery’s decision.  

“I am concerned about the court’s findings that child protection decision-makers who apply stereotypical reasoning to their assessments of whether children are at risk — if their decisions are made in good faith under the [CFCSA] — will not be found to be discriminatory,” wrote the commissioner in an email to IndigiNews.  

“We will be keeping a close eye on this issue as the case proceeds.”

Member was ‘distracted’ by her ‘deep skepticism’: judge

Gomery found that Cousineau’s “deep skepticism” of “B.C.’s” colonial child-welfare system “distracted [her] from the question at hand.”

In Cousineau’s decision, she wrote that while the CFCSA “applies equally to all children and families in the province … its impacts on Indigenous people are unique and cannot be separated from the Canadian colonial project founded on the denial of Indigenous title and laws, and deliberate efforts to assimilate and eradicate Indigenous culture, tradition, language, and people.”

She wrote that “the system created and regulated by the CFCSA — which VACFSS is bound to implement — is rooted in a Eurocentric approach to child welfare, heavily focused on a narrow assessment of risk.”

And she ultimately decided that VACFSS didn’t have “reasonable grounds to believe that [Justine’s] children were in need of protection.”

But Gomery wrote it wasn’t Cousineau’s job to decide “whether the children were, in fact, at risk of harm while they remained with [Justine].”

“The law required her to evaluate the risk assessment undertaken by the social workers and determine whether it was grounded in credibly-based probability,” his decision states, in part.

“The member rejected this approach because she disapproved of what she termed ‘a Eurocentric conception of, and focus on, risk.’” 

This was a mistake, wrote Gomery. “Though it may be Eurocentric, a focus on risk is what the law requires in this context.”

In his decision, Gomery acknowledged that Indigenous children are “over-represented in the child protection system … [as] a consequence of laws and policies enacted over many years by Canadian governments.”

And while this case calls for “consideration of historic wrongs done to Indigenous communities and their persistent aftermath into the present day,” he wrote, “My task is not to attempt to answer questions that have troubled Canadian society for many years, or to say whether the law should change.”