Vancouver Aboriginal Child v. Family Services Society, 2024 BCSC 97

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Vancouver Aboriginal child and Family Services Society v. R.R., 2024 BCSC 97 Date: 20240122 Docket: S230534 Registry: Vancouver Between: Vancouver Aboriginal Child and Family Services Society Petitioner And R.R., British Columbia Human Rights Tribunal, and Attorney General of British Columbia Respondents And West Coast Legal Education and Action Fund Association, the Union of BC Indian Chiefs, and the Human Rights Commissioner for British Columbia Intervenors In Chambers Before: The Honourable Mr.

Justice Gomery On judicial review from: An order of the British Columbia Human Rights Tribunal, dated November 22, 2022 ( R.R. v. Vancouver Aboriginal Child and Family Services Society , 2022 BCHRT 116 , File 16765). Reasons for Judgment Counsel for the Petitioner: C.E. Hunter, K.C. C. van Wiltenburg Counsel for R.R.: J. Blair D. Sabelli Counsel for the British Columbia Human Rights Tribunal: K. Hardie S. Monchalin Counsel for the Attorney General of British Columbia : K. Wolfe L. Witten C. Bant Counsel for the West Coast Legal Education and Action Fund: R. J. Gage E.

Ronsley Counsel for the Union of BC Indian Chiefs: J. Gratl Counsel for the Human Rights Commissioner for British Columbia: L. Waddell M. Sokolova Place and Dates of Hearing: Vancouver, B.C. October 30-31, November 1-3 and 24, 2023 Place and Date of Judgment: Vancouver, B.C. January 22, 2024 Table of Contents Introduction .. 4

Background .. 6 The Decision .. 10 Issues .. 17 Legal parameters .. 17 Standard of review .. 17 The record on this application .. 18 The role of the Provincial Court and the Society under CFCSA .. 19 Discrimination under the Code . 22 Analysis .. 23 1. Was the process fair? . 23 Evolution of the issues before the Tribunal 23 Assessment 27 2. Did the Member err in assuming jurisdiction to address RR’s complaint? . 28 3.

Did the Member err in law in concluding that the Provincial Court order of January 18, 2017 and the continuing proceeding in the Provincial Court did not justify the continuing removal of the children from RR’s care? . 32 The Provincial Court orders of May and June 2016 . 32 Legal significance of the 2016 orders . 34 4.

Did the Member otherwise err in law in law in concluding that the continuing removal of the children was not justified? . 38 The Member’s criticism of the CFCSA framework . 39 The CFCSA legal framework . 41 Reconciling the Code and CFCSA frameworks . 44 Did the Member err in law in her application of the CFCSA framework? . 45 Disposition .. 47 Introduction [ 1 ] RR is a racialized Afro-Indigenous woman and the single mother of four living children. Three of the children have special needs.

All were removed from RR’s care pursuant to provisions of the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46 [ CFCSA ]. The removing agency was the Vancouver Aboriginal Child and Family Services Society (the “Society”). The Society dealt with RR through social workers exercising authority delegated under the CFCSA . As provided in the CFCSA , the removal became the subject of an ongoing proceeding in the Provincial Court.

RR and the Society were represented by counsel in the court proceeding. [ 2 ] RR was distressed by her treatment by the social workers and by the continued removal of her children. She filed a complaint with the British Columbia Human Rights Tribunal (the “Tribunal”). At first she was unrepresented, but later on she had lawyers to assist her. The Tribunal accepted the complaint for filing. [ 3 ] Two and a half years after the children were removed, RR and the Society negotiated a resolution under which the children were returned to her care.

This resolution was the product of a mediation supervised by a Provincial Court Judge that lasted three days and included a healing circle. [ 4 ] The proceeding before the Tribunal continued. It culminated in a 21-day hearing before a member of the Tribunal (the “Member”) in 2020 and 2021. In November 2022, the Member issued lengthy reasons for decision (the “Decision”). She found that the Society had discriminated against RR by refusing to return the children to her between April 2017 and December 2018, contrary to s. 8 of the Human Rights Code, R.S.B.C. 1996, c. 210 [ Code ].

The Member awarded RR $150,000 for the injury to her dignity. [ 5 ] The Society seeks to set aside the Decision on judicial review. It maintains that the Decision is wholly undermined by errors of law including errors of jurisdiction. It also submits that the Decision is tainted by procedural unfairness. The Society’s legal argument is largely supported by the Attorney General. RR opposes the application for judicial review. Counsel for the Tribunal has addressed the legal issues at length without arguing the merits, as have three intervenors.

It is fair to say that they take issue with the approach advocated by the Society and the Attorney General.

[ 6 ] All agree that this is an important case, because it raises questions concerning the respective roles of the Provincial Court and the Human Rights Tribunal in addressing the removal of children from Indigenous parents. Indigenous children and parents are over- represented in the child protection system. This is a consequence of laws and policies enacted over many years by Canadian governments.

The Quebec Court of Appeal reviewed this history in Renvoi à la cour d’appel du Québec relatif à la Loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et de Métis, 2022 QCCA 185 at paras. 68-172 .

As the Attorney General states in her written argument: Indigenous children and families in British Columbia have undeniably borne the tragic legacy of colonial policies and practices within the child welfare system. [ 7 ] The questions raised by this case are difficult because they involve consideration of a complex scheme of child protection under the CFCSA and engage consideration of historic wrongs done to Indigenous communities and their persistent aftermath into the present day as well as unresolved debates as to how the needs and interests of vulnerable children, parents, Indigenous communities and the State can best be reconciled.

Some of the arguments advanced, especially by the interveners, invoke history, morality, international conventions, and policy. [ 8 ] While the history and social context are undeniably important, this case comes before me in a court of law, on an application for judicial review. 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. This case concerns a particular decision rendered by the Tribunal in a particular statutory context.

It is difficult enough to determine whether the Decision was fairly made in accordance with legal requirements. Background [ 9 ] RR was born in 1983. She grew up in the Pacific Northwest as the daughter of residential school survivors. She was removed from her parents’ care at age five and placed into the child welfare system. She left home at 14. Subsequently, she lived in poverty, was sometimes homeless, consumed drugs, and abused alcohol. She had a daughter in 2003, when she was 20 years old, a second child in 2009, and a third child in 2011, all as a single mother.

These children were removed from her care for a time in 2013. [ 10 ] In 2014, RR had another child who lived for five months and died in his sleep of viral infections. RR was not at fault in her child’s death, but she took it badly, voluntarily surrendered her living children into foster care, became suicidal, and began drinking dangerously. After several months, she recovered.

In 2016, she gave birth to another child and the children who had been taken into care were returned to her. [ 11 ] At this point, responsibility for child protection matters relating to RR was transferred from the Ministry of Children and Family Development to the Society. [ 12 ] Under the CFCSA, the Society exercises authority delegated to a “director”. On May 4, 2016, Judge Lee of the Provincial Court ordered that the director (that is, the Society) supervise RR’s care of the three younger children.

On June 15, 2016, Judge Harris of the Provincial Court made a further supervision order in respect of the baby, this time on a filing of a written consent to the order by RR. [ 13 ] RR’s relationship with her eldest child, named the “Teenager” in the Decision, was challenging. Both RR and the Teenager were in contact with the Society. In August 2016, the Teenager reported to the Society that RR had physically assaulted her. The Society’s social workers investigated and interviewed the two middle children, then aged five and seven years old.

They said that they were scared at home, that RR had locked them into their rooms with bungee cords, had pinched and slapped them, and that the elder had once become so hungry that she ate drywall. RR and the Teenager denied the substance of the middle children’s allegations. RR acknowledged that her conflict with the Teenager included verbal and physical fights. [ 14 ] On August 9, 2016, the Society advised RR that her children would be removed from her care.

The three younger children were taken by social workers that day, and the Teenager was taken the following month. [ 15 ] On August 10, 2016, RR and representatives of the Society attended before a judge in the Provincial Court. As required by s. 33(3) of CFCSA , the Society filed a report to the court setting out the circumstances of the removal. It applied for an interim custody order, RR opposed, and the hearing was adjourned. [ 16 ] In November 2016, RR and the Society attended a mediation at which RR was represented by counsel.

They did not reach an agreement. [ 17 ] On December 14, 2016, the Society applied to the Provincial Court for a temporary custody order. This application was adjourned subsequently from time to time. [ 18 ] On January 18, 2017, RR and counsel for the Society appeared before Judge Lee of the Provincial Court and consented to an order that the four children be in the interim custody of the Society. A lawyer spoke for RR and explained that RR was in the process of changing counsel, had discussed the matter with both her former and future counsel, and “understands, I think, very well what’s happening here today”.

The order required that a further hearing take place to determine, in the case of the Teenager, whether she was in need of protection, and in the case of the three younger children, whether they were removed in accordance with s. 42 of CFCSA .

It directed that RR have reasonable access to the children, supervised at the discretion of the director. [ 19 ] While the January 18, 2017 order is described as a consent order, it was not an order made on the written consent of RR as provided in s. 60 of the CFCSA . [ 20 ] While proceedings continued in the Provincial Court, the consent order of January 18, 2017 remained in force and was the only order addressing custody of the children prior to April 26, 2019. The proceedings included a trial before Judge Smith that commenced

on March 13, 2018 and continued for 23 days during the months of March, June and October 2018 and April 2019. [ 21 ] In the meantime, RR commenced the proceeding before the Tribunal by filing a complaint on August 25, 2017. In the complaint form, in response to the question, “Why are you filing this complaint?”, she stated: I would like to have my children back in my care. To avoid separation trauma, loss of identity and loss of culture as I did.

As remedies, she sought “any and all remedies available under the BC Human Code”. [ 22 ] Following a three-day mediated family conference in the Provincial Court, during which she was represented by counsel, on April 26, 2019, Judge Smith made a temporary custody order by consent under which the children would remain in the director’s custody for three months to July 26 and RR would have reasonable access to the children during the period of temporary custody.

The order attached a negotiated return plan under which the youngest child would reside with RR by July 31, and the two middle children would reside with her by September 1.

RR was to confirm that she was engaged in trauma counselling with a substance misuse component, participate in ongoing parenting programs as agreed by the parties, not change her physical residence without giving the director 14 days notice in advance, allow unscheduled home visits “as often as the Director deems necessary to ensure the safety and well-being of the children”, and never be under the influence of non-prescription drugs or alcohol in the presence of the children. [ 23 ] The return plan contemplated in the April 26, 2019 order was successfully implemented and there were no further proceedings in the Provincial Court. [ 24 ] While the child protection matter in the Provincial Court was proceeding, between November 2017 and April 2019, the Tribunal addressed two preliminary matters. [ 25 ] In written reasons issued on February 7, 2018 and indexed at 2018 BCHRT 32 , the Tribunal addressed an argument by the Society that the complaint had been filed outside a six-month limitation period under s. 22 of the Code and accepted the complaint for filing “for the alleged discrimination at the meeting with the Society in April 2017 and the meetings with the Society during the weeks of October 3 and 13, 2017” (at para. 29).

This decision was rendered by a different member than the Member who issued the Decision under review in this proceeding. [ 26 ] In further written reasons issued on April 30, 2019 and indexed at 2019 BCHRT 85 , the Member rejected an application by the Society to summarily dismiss the complaint pursuant to s. 27(1) (

c) of the Code . The Member rejected an argument, based on the language of the earlier decision, that the matters in issue concerned only the Society’s conduct at three meetings in 2017. She found that the complaint addressed all the Society’s decisions denying RR custody of her children and limiting her access to them between April 2017 and December 12, 2018. She stated: [13] In my view, RR’s allegation of discrimination concerns [the Society’s] decisions to continue to deny her custody of her children, and place various restrictions on her access to them, from the period beginning in April 2017.

This alleged discrimination is ongoing. However, in fairness to [the Society] in this application, I will only consider those events which had happened before it filed its application to dismiss the complaint on December 12, 2018. To do otherwise would be to create a moving target and deprive the Society of the opportunity to respond to the allegations. [ 27 ] The Member stated that the scope of the complaint was constrained by the proceeding in the Provincial Court. She stated: [81] I have determined that RR’s complaint warrants a hearing.

In doing so, I emphasise that I agree with [the Society] that this Tribunal does not have jurisdiction over orders made by the court in connection with the child protection proceeding: Gonzales v. Ministry of Attorney General , 2009 BCSC 339 . To the extent that aspects of RR’s complaint ultimately arise from that process, they cannot succeed in this forum. However, at this stage RR’s allegations appear to relate exclusively to [the Society’s] decision making in respect of her children.

This is an area over which the Tribunal does have jurisdiction and is the basis on which I am permitting the complaint to proceed. [ 28 ] The hearing leading to the Decision commenced on February 18, 2020. It was affected by the Covid-19 pandemic and only concluded on July 21, 2021. The Decision was issued on November 22, 2022 and is indexed at 2022 BCHRT 116 . The Decision [ 29 ] This case involves the prohibition on discrimination contained in s. 8 of the Code . At the relevant time, it provided, in part: 8

(1) A person must not, without a bona fide and reasonable justification, … (

b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or class of persons. [ 30 ] The grounds of discrimination under consideration were ancestry, colour, mental disability, and race.

The Member treats these grounds collectively as a proxy for Indigenous identity, which was not a prohibited ground of discrimination when the complaint was filed, and now is (by Human Rights Code Amendment Act, 2021, S.B.C. 2021, c. 35, s. 2 ). No one suggests that this was inappropriate, and nothing turns on it.

[ 31 ] Early on in the Decision, the Member offers the following overview of the reasoning: [8] For the reasons that follow, I find that [the Society] discriminated against RR. [The Society]’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, [the Society] 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 [the Society] 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. I order [the Society] to pay RR $150,000 as compensation for injury to her dignity, feelings, and self-respect. … [ 32 ] The analytical framework governing a claim of discrimination contrary to s. 8 of the Code is settled; Moore v. British Columbia (Education), 2012 SCC 61 at para. 33 . There are two stages.

At the first stage, the complainant must make out a presumptive or prima facie case of discrimination by showing that they have a characteristic protected from discrimination under the Code , that they experienced an adverse impact with respect to a service covered by the Code , and that the protected characteristic was a factor in the adverse impact.

At the second stage, the complainant having made their case, the respondent must attempt to justify the discrimination. [ 33 ] Addressing the first stage at para. 11 of the Decision, the Member identifies what RR must establish to make out a claim that she has been the subject of discrimination and states that the only point in issue is the third element of the prima facie test, namely, whether RR’s protected characteristics – in sum, her Indigenous identity – were a factor in the adverse impact suffered by her through her separation from her children and the Society’s decisions to limit her access, restrict her activities with her children, and exclude her from important aspects of their lives. [ 34 ] Turning to the second stage at para. 12, the Member identifies three elements to the Society’s affirmative defence that any discrimination was justified, only one of which is in dispute.

She states that it is undisputed that the Society was acting for a purpose rationally connected with its statutory mandate to protect the children from harm and ensure their safety and well-being, and that it applied a standard adopted in good faith.

The disputed element is whether the standard applied by the Society was reasonably necessary, in the sense that the Society could not meet its goal of protecting the children while accommodating RR without incurring undue hardship. [ 35 ] From this beginning, the Decision proceeds through an exceptionally lengthy and detailed review of the evidence, providing a comprehensive account of the dealings between RR, the Society’s social workers, and an employee of the Society described as the Practice Manager.

The Member accepts RR’s evidence and much of the evidence of the social workers, though she finds that “many of their decisions and actions were tainted by preconceived notions and opinions about RR, inherited from other social workers and other records relating to RR, as well as their own personal challenges in working effectively with her” (at para. 31).

She concludes that much of the evidence given by the Practice Manager was unreliable. [ 36 ] In addressing the adverse impact of RR’s separation from her children – described as a point that is not in dispute – the Member rejects an argument by the Society that the Tribunal does not have jurisdiction to consider whether the Society’s ongoing custody of the children violated the Code . This rejection carries through into later reasoning and is important to this application for judicial review.

At paras. 290-296, the Member reasons that the only orders made were made by consent and did not reflect judicial determinations that would oust the Tribunal’s jurisdiction.

As she puts it at para. 295: [295] In the result, the court has never issued a decision or made a finding that RR’s children were in need of protection during the relevant time. … In this case, there are no court orders or decisions under attack. [ 37 ] Turning to the question of whether RR’s Indigenous identity was a factor in the adverse impact suffered by her, the Member accepts that no one at the Society intentionally discriminated against RR and, “for the most part, … the social workers involved in this complaint were doing their best under difficult circumstances” (at para. 299).

She explains: I accept that [the Society] and its employees are genuinely dedicated to doing child protection work in a way that recognizes, and does not perpetuate, the discriminatory impacts of child welfare on Indigenous people. They undertake immersive training, and deliberately design policies to better understand and avoid the discriminatory failings of colonial child welfare. However, as I will explain, these positive, and non-discriminatory, intentions are not determinative. [ 38 ] At para. 306, the Member makes three important findings.

First, she finds that the Society did not have a reasonable basis to conclude that RR’s children were in need of protection. Second, she finds that the Society’s reliance on RR’s trauma, child welfare history, and conflict with social workers supported an assumption that she was not fit to parent based on stereotypes and prejudice connected to her mental health and indigeneity.

Third, she finds that “RR faced barriers in her interactions with [the Society] related to her mental health and indigeneity which manifested in a profound mistrust of [the Society] and required accommodation”, but the distrust and conflict it generated “unfairly influenced [the Society’s] decision-making regarding RR’s parenting and triggered an escalating response, causing her further harm”. [ 39 ] At para. 307, the Member adds that she finds the child welfare system inherently harmful to Indigenous families, children and communities because of their indigeneity.

She states: I conclude that the discrimination in this case is the effect of a wider web of laws, policies, and practices which interact to create a system stacked against Indigenous families, especially single mothers living in poverty, with disabilities, and with children with disabilities. In other words, RR’s complaint illuminates systemic discrimination: … [ 40 ] The Member describes “the system created and regulated by CFCSA ” as “rooted in a Eurocentric approach to child welfare, heavily focused on a narrow assessment of risk” (at para. 313).

She says that it is intrinsically problematic, although “not all of these intrinsic problems lead to discrimination against Indigenous families in every case” (at para. 315). She criticizes the Society’s use of risk-assessment tools “based on Eurocentric standards of parenting which fail to account for the unique needs and circumstances of

Indigenous parents and their children” (at para. 316). [ 41 ] The Member refers to the initial decision to remove the children from RR’s care (in August 2016, prior to the commencement of the period covered by the complaint in April 2017), and finds that the evidence does not support a conclusion that the concerns giving rise to the removal were substantiated (at para. 321).

She reasons: [322] Without any finding that the original allegations were substantiated, RR’s child welfare history cannot on its own support a conclusion that there was a likelihood of physical harm. … [323] By April 2017, when the period of this complaint begins, it is not clear that [the Society] even continued to have concerns about physical harm.

When the Associate Practice Manager told RR in November 2016 that her children would be home by Christmas, [the Society] says that the initial protection concerns had been “addressed” and that its focus had shifted to the “presenting behaviour” of the Middle Children. There is no evidence that, during the period of this complaint, RR ever posed a physical threat to her children.

None of the supervised visits raise any concern about physical harm; to the contrary, they report RR is physically affectionate and appropriate with the children. [324] In short, the evidence before me, considered as a whole, does not support that [the Society] had reasonable grounds to believe that RR’s children faced a likelihood of physical harm for the period of this complaint. [ 42 ] The Member finds that the Society wrongly concluded that the children were at risk of suffering emotional harm in RR’s care.

While RR’s interactions with the middle children in some supervised visits were negative and upsetting to both RR and the children, “this was almost inevitable because of the degree of the conflict at the time and the untenable position that RR should be supervised in her visits by the same social workers who were in court arguing in favour of an order that would permanently separate her from her children” (at para. 338). She finds that it could not be inferred that RR would not appropriately parent her children in the safety of her own home.

Moreover, the Society’s failure to accommodate and nurture the children’s need for a connection to their culture violated important rights held by RR and her children and further undermined the reasonableness of the Society’s assessment that the children faced a likelihood of emotional harm in her care (at para. 341). [ 43 ] The Member finds that the middle children had mental health issues that required treatments and were demonstrating a concerning level of violence and dysregulation while they were in care (at para. 343).

She rejects the Society’s contention that it was justified in intervening because RR was unable or unwilling to meet their need for treatment. [ 44 ] The Member concludes: [347] In sum, I am not satisfied that [the Society] had reasonable grounds to believe that RR’s children were in need of protection. 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.

I turn to these issues next. [ 45 ] The Member finds that the Society’s view of RR “through a lens of stereotype” “prevented [it] from assessing the actual needs of her children and led it to view RR as an adversary and threat, triggering an escalating ‘command and control’ response” which was the opposite of what she needed to successfully navigate the system (at para. 361). [ 46 ] The Member describes the system established by the CFCSA as one marked by a profound power imbalance (at para. 363).

RR responded to the power exercised against her within that system by choosing resistance, and “that resistance required a human rights response” (at para. 367).

She finds that, instead, the Society punished RR “with escalating assertions of power and control, at the expense of RR’s agency and relationship with her children” (at para. 371). [ 47 ] Having concluded that RR’s indigeneity was a factor in the adverse impacts she experienced, and that a presumptive case of discrimination is therefore made out, the Member turns to address the Society’s claim that any discrimination was justified (beginning at para. 374). [ 48 ] The Member begins with a finding that the Society has satisfied the first two requirements of a justification defence.

She states: [375] At issue in this complaint are [the Society’s] decisions not to return RR’s children to her care and restrict her access and involvement in their lives. I accept that the purpose of these decisions was to protect RR’s children from harm and ensure their safety and wellbeing: CFCSA , s. 2 . It is a purpose rationally connected to [the Society’s] function as a delegated child protection agency.

The parties do not dispute that [the Society] made the decisions in good faith, believing that they were necessary for the safety and wellbeing of RR’s children. [ 49 ] She concludes that the justification defence fails at the third stage. Discrimination was unjustified because the standards applied by the Society, in its dealings with RR, were not reasonably necessary. She comes to this conclusion on two bases. [ 50 ] The first basis is simply that the Society lacked a basis to retain custody of the children because it did not have reasonable grounds for its belief that the children were in need of protection.

The Member refers back to her previous conclusion and states: [377] Above I have explained that removing an Indigenous child from their family, and interfering in their familial relationships, is a last resort. The first step for [the Society] to justify its ongoing custody of RR’s children would be to establish to reasonable grounds for its belief that her children were in need of protection. I have already found that it has not established such reasonable grounds.

Absent a basis to retain custody of the children, its decisions cannot be justified and are discriminatory. [Emphasis added.] [ 51 ] Second, in the alternative, the Member concludes that, even if the Society had a reasonable basis to retain custody, there were

less disruptive means of protecting the children. In its negotiations with RR, the Society insisted on two concessions that RR refused to give: first, that she agree to attend residential trauma treatment, and second, that she submit to a parental capacity assessment. The Member is not satisfied that either was a reasonable prerequisite to the return of the children. [ 52 ] The Member therefore finds that the Society violated s. 8 of the Code . She declines to order the Society to implement better policies and training with respect to its interactions with Indigenous peoples.

The only substantive remedy necessary is an award for injury to dignity. She concludes: [424] This is an unprecedented complaint. It exposes systemic forces of discrimination and their profound impacts on an Indigenous mother. In my view, it is a complaint that warrants an award at the highest end of human rights damages. Considering all of these circumstances, I am satisfied that the amount RR asked for – $150,000 – reflects the injury to her dignity, feelings, and self-respect. Issues [ 53 ] The parties are represented by competent and thoughtful counsel who have framed their positions variously.

In my view, the arguments give rise to four main issues: 1. Was the process before the Tribunal fair? 2. Did the Member err in assuming jurisdiction to address RR’s complaint? 3. Did the Member err in law in concluding that the Provincial Court order of January 18, 2017 and the continuing proceeding in the Provincial Court did not justify the continuing removal of the children from RR’s care? 4. Did the Member otherwise err in law in concluding that the continuing removal of the children was not justified? Legal parameters Standard of review [ 54 ] There is no dispute as to the standard of review in this case.

It is determined by the combination of s. 32(

q) of the Code and s. 59 of the Administrative Tribunals Act, S.B.C. 2004, c. 45 . It is a standard of correctness for all questions except those respecting the exercise of discretion, findings of fact, and the application of the common law rules of natural justice and procedural fairness. Findings of fact must not be set aside unless there was no evidence to support them or they were otherwise unreasonable. Discretionary decisions must not be set aside unless they are patently unreasonable.

In respect of questions of natural justice and procedural fairness, the court must decide whether, in all of the circumstances, the Tribunal acted fairly. [ 55 ] The issues identified above involve alleged errors of law (including jurisdiction) and fairness. On both, the standard of review is non-deferential. However, it is important to bear in mind the high deference owed to the Member’s findings of fact and any exercise of discretion. It is necessary to respect the distinct role and experience of the Tribunal in adjudicating claims under the Code .

The court’s essential role is as a check to ensure that legal norms and boundaries are respected. The record on this application [ 56 ] Ordinarily, judicial review of a decision of the Tribunal takes place on the same record as was before the Tribunal; Air Canada v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 BCCA 387 at para. 34 . This is a reflection of the supervisory role of the court. However, material that was not before the Tribunal may be admitted, in the court’s discretion, that is consistent with the limited supervisory jurisdiction of the court; Air Canada at para. 40 .

Evidence that bears on jurisdictional arguments and the court’s assessment of the fairness of the procedure adopted will often qualify. The court must consider the relevance and reliability of the evidence, and whether it is necessary to a determination of the arguments; English v. Richmond (City), 2021 BCCA 442 at para. 88 ; Chestacow v. British Columbia (Workers’ Compensation Appeal Tribunal), 2023 BCCA 389 at para. 27 ; Society of the Friends of Strathcona Park v.

British Columbia (Environment), 2013 BCSC 1105 at para. 96 . [ 57 ] In this case, the Society has submitted two affidavits attaching materials from the Provincial Court’s record of the CFCSA proceeding involving RR and the Society. RR objects to the admission of this material into the record on this application for judicial review. [ 58 ] There is no doubt as to the reliability of the material in question. At least some of it is relevant to the arguments advanced.

A full assessment of the relevance requires engagement with the substance of the arguments. [ 59 ] In the reasons that follow, I identify those portions of the disputed materials that I view as necessary and relevant to the determination of the issues, always bearing in mind the limited supervisory role of the court. To that extent, the disputed materials are admitted into evidence and form part of the record on this application.

The role of the Provincial Court and the Society under CFCSA [ 60 ] The CFCSA provides a detailed framework for the provision of services to children and families with a view to the safety and well-being of children; s. 2 . Those services may lead to interventions and the removal of children from their parents, where a child is in need of protection; s. 13. The statute recognizes the unfortunate reality that, if a child is in need of protection, it is very often because the

action or inaction of a parent has put the child at risk. Thus, s. 13(1) lists 12 circumstances in which a child may be in need of protection, eight of which expressly contemplate action or inaction on the part of a parent. [ 61 ] Any person who has reason to believe that a child needs protection must report the matter to a director or a person designated by a director; s. 14. In this case, the social workers employed by the Society were designated as directors pursuant to s. 91. CFCSA confers on a director authority to investigate the report and make an assessment; s. 16.

In certain circumstances, a director may remove a child into the director’s care without a court order; s. 30(1). The requirements are that the director must have reasonable grounds to believe that the child needs protection, and that the child’s health or safety is in immediate danger or that no less disruptive measure that is available is adequate to protect the child. [ 62 ] There are circumstances apart from those contemplated in s. 30 in which a director may be obliged to remove a child.

If the child is the subject of an interim order that the director supervise the child’s care, removal is obligatory if the director has reasonable grounds to believe that a person has not complied with a term or condition of the order and the order requires removal in that event; s. 36(1)(b). [ 63 ] Removal of a child initiates a proceeding in the Provincial Court. If the director is retaining care and custody of the child, they must report to the court and there must be a presentation hearing within seven days at which the court must make an order addressing the child’s custody; ss. 34, 35.

Even if the child is returned prior to the presentation hearing, the director must still make a written report to the court; s. 33(3) . [ 64 ] A presentation hearing is

summary in nature. Conflicts in the evidence are resolved in favour of the director unless the facts the director seeks to establish are manifestly wrong or untrue or unlikely to have occurred; B.B. v. British Columbia (Director of Child, Family and Community Services), 2005 BCCA 46 at para. 14 . [ 65 ] The statute contemplates a further substantive hearing, called a protection hearing, within 45 days; s. 37(2). In practice, due to limits on the availability of court time on short notice, contested protection hearings are commenced within 45 days and then adjourned for many months; B.B. at para. 15 .

That is what happened in this case. [ 66 ] At the protection hearing, the court must determine whether the child was in need of protection at the date of removal and, if so, determine what order is in the child’s best interests; s. 40; B.B. at para. 16 . One option is granting temporary custody to the director; s. 41(1). Upon the anticipated expiration of a temporary custody order, the director may apply for a continuing custody order; s. 49(1); B.B. at para. 19 . [ 67 ] The CFCSA provides mechanisms for consensual resolution of disputes arising from a child’s removal at every stage of the process.

It authorizes voluntary care agreements and special needs agreements under which a parent may give the care of a child to the director for a time (ss. 6, 7); agreements with youth and young adults (ss. 12.2, 12.3); family conferences for the development of plans of care (ss. 20, 21), mediation and the postponement of time limits so that mediation or a family conference can take place (ss. 22, 23) and consent orders without a hearing, the giving of evidence, or a finding that a child needs protection (s. 60).

A parent’s formal consent to a removal order as provided by s. 60 is not an admission that the director had grounds to remove the child (s. 60(5)). [ 68 ] In B.B. , Huddart J.A. spoke for the court and stressed the flexibility, informality, and evolutionary character of child protection proceedings under the CFCSA . She stated: [34] This Court noted in J.(L.) v.

British Columbia (Director of Child, Family & Community Services) (2000), 78 B.C.L.R. (3d) 233, 2000 BCCA 446 at paras. 26 , 28 and 34 that, despite the unavoidable adversarial quality to protection proceedings, the “thrust of the Act is to provide solutions for unsatisfactory home situations including supervisory orders and the provision of support services to assist the parents” (para. 28). To that end, proceedings must be as flexible and informal as is consistent with fairness. The primary goal is to reach a consensual resolution .

Absent such a resolution, “a court will be obliged to make the order or orders it thinks fit based on the state of the current evidence before it” (para. 26). The scheme of the Act envisages “an evolving process whereby a court is enabled, on the best evidence currently available, to decide what should be done concerning the custody and care of children” (para. 34). … [Emphasis added.] [ 69 ] Justice Huddart described the process, once there has been a determination that a child is in need of protection, as more inquisitorial than adversarial.

She stated, at para. 35: … Once the Director has established on the balance of probabilities that a child is in need of protection and the court has made that determination, whether on an application under s. 41 or s. 49, the court must assess the evidence before it to determine the appropriate care arrangement within the strictures imposed by the Act . Until a continuing custody order is made, the duty to determine what care arrangement is most appropriate for a child lies with the court, not with the Director or the parents, unless they agree .

No general rule should deflect the court’s attention from the necessary inquiry into the child’s needs and the parents’ ability to meet them, with such support as the community is able to provide. [Emphasis added.] [ 70 ] On the other hand, Justice Huddart noted that there may be a disposition by agreement, in the form of a consent order under s. 60, without a court finding that a child is in need of protection or any adjudication of factual disputes; B.B. at para. 2 .

The Member relied on this aspect of the reasoning in B.B. in coming to her conclusion, noted above, that in this case “there are no court orders or decisions under attack” (at para. 295 of the Decision). The Society takes issue with this aspect of the Member’s reasoning. Discrimination under the Code [ 71 ]

Section 8 of the Code governs discrimination in the provision of “services”. It encompasses the provision of public services by entities such as the Society under statutory authority; Workers’ Compensation Board v. British Columbia (Council of Human Rights),

(B.C.C.A.), 47 B.C.L.R. (2d) 119; British Columbia Council of Licensed Practical Nurses v. Mans, (B.C.C.A.); Murphy v. B.C. Ministry for Children and Families, 1999 BCHRT 19 at paras. 21-25. [72] The analytical framework and the Member’s outline of the essential components of a claim of discrimination under the Code, asoutlined above at paras. [32] to [34], are not in dispute.

They were settled by British Columbia (Superintendent of Motor Vehicles) v.British Columbia (Council of Human Rights), (SCC), [1999], 3 S.C.R. 868 [Grismer] (a case cited by the Member atparas. 12 and 374-376). [73] It is necessary to say a little more about the third element of the defence of justification. The defence of justification involvesapparently discriminatory conduct flowing from the application by the respondent, in good faith, of a standard for a purpose or goal thatis rationally connected to a function being performed by the respondent.

The third element is that: … the standard is reasonably necessary to accomplish its purpose or goal, in the sense that the defendant cannot accommodate personswith the characteristics of the claimant without incurring undue hardship. Grismer at para. 20. [74] Speaking for the court in Grismer at para. 21, McLachlin J. (as she then was) explains: … Having chosen and defined the purpose or goal – be it safety, efficiency, or any other valid object – the focus shifts to the means bywhich the employer or service provider seeks to achieve the purpose or goal. The means must be tailored to the ends.

For example, if anemployer’s goal is workplace safety, then the employer is entitled to insist on hiring standards reasonably required to provide thatworkplace safety. However, the employer is not entitled to set standards that are either higher than necessary for workplace safety orirrelevant to the work required, and which arbitrarily exclude some classes of workers.

On the other hand, if the policy or practice isreasonably necessary to an appropriate purpose or goal, and accommodation short of undue hardship has been incorporated into thestandard, the fact that the standard excludes some classes of people does not amount to discrimination. Such a policy or practice has, inthe words of s. 8 of the Human Rights Code, a “bona fide and reasonable justification”. Exclusion is only justifiable where the employeror service provider has made every possible accommodation short of undue hardship. [Emphasis added.] [75]

Section 4 of the Code provides: 4. If there is a conflict between this Code and any other enactment, this Code prevails. [76] In some cases, the Tribunal may be called upon to resolve a conflict between the prohibition on discrimination in the Code andsome other legislative enactment by invoking the paramountcy of the Code, as stated in s. 4. However, it can only address a supposedconflict between the Code and other legislation in accordance with a procedure requiring notice to and, potentially, submissions from theAttorney General; Code, s. 32(

k) and Administrative Tribunals Act, s. 46.1(3)-(9). [77] In this case, no notice was given to the Attorney General. It was not open to the Tribunal, and would not be open to the court, todecide the case on the basis of a supposed legislative conflict resolved by the paramountcy clause. Analysis 1. Was the process fair? [78] The Member’s understanding of the Provincial Court proceeding and its jurisdictional and legal implications is critical to theDecision.

As will be seen, the Member’s understanding and description of the issues evolved through the proceeding before theTribunal to such an extent that the Society was not afforded a fair opportunity to address them in evidence and argument before theTribunal. Evolution of the issues before the Tribunal [79] The starting point for the Member and the parties was the Member’s conclusion at para. 81 of her decision of April 30, 2019(indexed at 2019 BCHRT 85) rejecting the Society’s application to summarily dismiss RR’s complaint.

The Member drew a distinctionbetween the child-protection process overseen by the Provincial Court, and the Society’s decision-making in respect of the children. Though this paragraph is quoted above, I repeat it here for ease of reference, this time with emphasis added: [81] I have determined that RR’s complaint warrants a hearing. In doing so, I emphasise that I agree with [the Society] that thisTribunal does not have jurisdiction over orders made by the court in connection with the child protection proceeding: Gonzales v.Ministry of Attorney General, 2009 BCSC 339.

To the extent that aspects of RR’s complaint ultimately arise from that process, theycannot succeed in this forum. However, at this stage RR’s allegations appear to relate exclusively to [the Society’s] decision making inrespect of her children. This is an area over which the Tribunal does have jurisdiction and is the basis on which I am permitting thecomplaint to proceed. [80] The parties proceeded into the hearing on the basis of the distinction identified by the Member. Neither party led much evidenceconcerning what had happened in the court proceedings.

In the course of the hearing, the Member noted the absence of evidenceconcerning the process in the Provincial Court, and said that she understood. On the ninth day of the hearing, she stated: One thing I want to raise with counsel to think about during this break is that I understand that counsel’s (sic) deliberately not touchingon or explaining things that are happening in connection with court.

And I understand the explanation for that, but at some point I will have to understand what was happening in court so that I can understand my jurisdiction. Obviously, I can’t be ruling or making decisions about whether or not things were discriminatory if they flowed from a court process . So I think that I need to understand at a minimum kind of the timeline of what – and the steps that were being taken in court and the decisions that flowed from the court as opposed to staff members or individuals involved with [the Society] so that I can know what I’m meant to be looking at.

And I don’t know – I leave it to you in terms of how this comes in. I’m content with an agreed statement of facts, a timeline, or something like that – an explanation of what the court orders were, when they happened.

But I need to understand that because otherwise I’m concerned that I’m looking – I don’t know where certain decision are coming from. … And if they come from court, that’s when I’m not going near them . [Emphasis added.] [ 81 ] The difficulty was that the distinction drawn between the Provincial Court’s process and the Society’s decision-making was unstable and ultimately untenable, because the process resulted from decision-making by the participants and the Society’s decision- making was the subject of RR’s complaint.

It appears that the Member came to appreciate the problem, but not until the evidence was in and she was considering the parties’ final submissions. In the end, her understanding of the area that was out-of-bounds narrowed from decisions that “flowed from a court process” to decisions that were the subject of substantive judicial adjudication (of which there were none).

At the same time, her appreciation of the time period in dispute expanded, in that she came to consider that she must address the legal and factual basis for the Society’s removal of the children in August 2016, before the period covered by the complaint. [ 82 ] The evidentiary hearing concluded on July 21, 2021. The parties then exchanged lengthy written submissions according to an agreed schedule, beginning with RR’s submission on November 15, 2021 and ending with RR’s reply on March 15, 2022.

RR’s written submission included, as an appendix, an agreed chronology of the Provincial Court proceedings that began with the removal of the three younger children on August 9, 2016. [ 83 ] To this point, the parties had no reason to investigate or address anything that had happened in court prior to August 2016. The Society was not on notice that it might have to address the legal and factual basis for the Society’s removal of the children in August 2016.

Its position, as stated in its written argument at p. 143, was that the children had been removed under an order of the court as provided by the CFCSA . [ 84 ] On July 13, 2022, with the case under reserve, the Member wrote to the parties with questions about the Provincial Court proceeding. She noted the orders listed in the chronology and asked: 1. Were all the orders made by consent under s. 60 of the CFCSA ? If not, please explain. … 3.

At [p. 143] of its submission, [the Society] says that “RR’s children were apprehended under order of the court, after having fully reviewed the relevant issues under the CFCSA ”. What order(

s) does this refer to? 4. Am I correct that August 10, 2017, was the presentation hearing in court ( CFCSA, s. 35 )? Did the court make any order at this hearing? 5. Was there ever any finding by the court that the children were in need of protection?

If so, please refer me to the order or decision. [ 85 ] It is clear with the benefit of hindsight that the Member had shifted her focus from the Court’s process to the Court’s orders at a time when the parties had finished submitting evidence, after a hearing that had lasted 21 days. [ 86 ] Counsel initially responded to the Member’s letter jointly, requesting a delay in order that they might access orders from the court system. I view the request as confirming that neither party had yet paid attention to the details of the orders made by the Provincial Court.

On September 7, 2022, the Member wrote the parties to remind them that she was still awaiting a response and on September 20 she convened a conference call to set a

schedule for the parties’ responses to her questions. [ 87 ] On September 21, 2022, RR’s counsel submitted the temporary custody orders of January 17, 2018 and April 26, 2019 and a court

summary sheet “for the relevant period”. Counsel submitted that:

a) no issues were adjudicated by the court; and

b) all substantive orders were made by consent under s. 60 or, alternatively, on verbal consent;

c) without the court needing to make a finding of protection. [ 88 ] Counsel for the Society responded on September 28, 2022. He noted that not all of the orders were made on the filing of a written consent pursuant to s. 60 and submitted that, “implicit in all of the orders made … is that there must be an underlying child protection issue that warrants a court making an order which protects the children”. He added: While the court need not specifically make a finding that a child is in need of protection until a full hearing, that is only required if the parent was opposing an order.

When the orders are by consent, it is a presumption that the child are ( sic ) in need of protection. In the intervening period of time between initial apprehension and an order for protection, many factors and facts would change. [ 89 ] In the Decision, the Member rejects this argument, holding that she cannot proceed on the “assumption” that the removal of the children from RR’s care in August 2016 was justified (at para. 321). She finds that the removal was based on allegations of physical

harm to the children and “the evidence before me is insufficient to support a conclusion that those allegations were substantiated orsupported a likelihood that the children would be physically harmed with RR”. Assessment [90] During the evidentiary hearing, the parties were not on notice that the Society would be required to legally and factuallysubstantiate its grounds for removing the children from RR’s care in 2016, prior to the period covered by the complaint. The 2016removal was not in issue.

The parties were not on notice that legal and jurisdictional issues could turn on an analysis of Provincial Courtorders made in 2016 and subsequently. What mattered, it seemed, were not the details of the orders but the process from which theyflowed, and there was no real issue as to how that process had unfolded. [91] In my opinion, the Society was deprived of a fair opportunity to address issues upon which the Decision turns. It cannot befaulted for failing to adduce before the Tribunal uncontroversial material, in particular, the 2016 Provincial Court orders, upon which itnow seeks to rely.

These orders are admissible in this proceeding. I will return to the further implications of my finding of an unfairprocess later in these reasons. 2. Did the Member err in assuming jurisdiction to address RR’s complaint? [92] The Member held that she had jurisdiction to review the Society’s decision-making, in providing services to RR and her children,that had not been subject to any court decision, including its decision not to return the children to RR through the period of the complaint(Decision, para. 296).

The Society submits that, in finding that it was not entitled to retain the children, the Member adjudicated a matterwithin the exclusive jurisdiction of the Provincial Court under CFCSA. [93] The concept of an error that is jurisdictional, as opposed to simply a legal error, has proved elusive and challenging inadministrative law because it is often difficult to distinguish decisions of an administrative tribunal that raise truly jurisdictionalquestions from those entailing an unremarkable application of an enabling statute.

After wrestling with the concept for years, theSupreme Court abandoned it for the purpose of addressing the standard of review in Canada (Minister of Citizenship and Immigration) v.Vavilov, 2019 SCC 65 at paras. 65-68. The standard of review is not in issue in this case. I understand the Society’s jurisdictionalargument as a contention that it was not open to the Tribunal, as a matter of law, to adjudicate RR’s claim.

The contention that theMember embarked upon an adjudicative exercise that was out-of-bounds to the Tribunal is what makes the argument “jurisdictional”. [94] In my opinion, the Society’s argument is mistaken. For the purpose of addressing RR’s discrimination complaint under s. 8 ofthe Code, the Member had jurisdiction to consider whether the Society’s decisions in the provision of services under the CFCSA werediscriminatory. Under the CFCSA, the Provincial Court, not the Tribunal, is responsible to determine whether a child must be removedfrom a parent’s care or returned to the parent, possibly under supervision.

The Tribunal cannot make such a determination. But theTribunal can consider the requirements of the CFCSA for the purpose of adjudicating a discrimination claim that is properly before it. [95] In her initial complaint filed on August 25, 2019, RR stated that her objective was to get her children back in her care. While thiswas not relief that the Tribunal could grant, nor was it the only relief RR sought. She sought “any and all remedies available” under theCode. [96] By the time the substantive hearing began before the Member in February 2020, the Provincial Court proceeding was concluded.

There were no remaining issues between RR and the Society concerning the ongoing custody and care of her children. What remainedwas RR’s claim that the Society had discriminated against her in withholding the children between April 2017 and December 12, 2018. This was not a claim that could have been brought in the Provincial Court. It was not a claim that could be advanced pursuant toprovisions of the CFCSA. It was a claim alleging a breach of s. 8 of the Code, and there is no civil right of action in any court fordiscrimination contrary to the Code; Honda Canada Inc. v.

Keays, 2008 SCC 39 at paras. 63-64. [97] The Tribunal was the only adjudicative body possessing jurisdiction to consider RR’s claim to be compensated for discriminationsuffered by her at the hands of the Society. This is a case of concurrent jurisdiction, in that both the Tribunal and the Provincial Courthad jurisdiction to grant different remedies arising from common facts.

The Tribunal’s continuing jurisdiction is evinced by thepresence in the Code of provisions providing that it might, in the exercise of its discretion, have deferred consideration of RR’s complaintor dismissed it outright on the basis that it was being or had been appropriately addressed through proceedings in the Provincial Court;Code, ss. 25, 27(1)(f); Government of the Province of British Columbia v. Tozer, , 60 B.C.L.R. (3d) 160 (S.C.) atparas. 51-53 and 127; Northern Regional Health Authority v. Horrocks, 2021 SCC 42 at para. 33.

The existence of the Provincial Courtproceeding did not foreclose the Tribunal from considering RR’s claim, rather, it could decide whether to address her claim, in theexercise of its discretion. [98] The narrow jurisdictional issue is correctly identified in the Decision. It is whether RR’s claim necessarily involves an attack ona decision made by the Provincial Court in addressing the dispute between RR and the Society. The Tribunal had jurisdiction to considerRR’s complaint unless jurisdiction was lost by reason of the court proceeding. The mere existence of the court proceeding would not beenough.

The question was: what had the Court done? Another way of asking the same question is: what had the Court ordered? [99] In what follows, I conclude that the Member misunderstood the legal effect of the Provincial Court orders and erred in law. I donot think that her error should be characterized as an error of jurisdiction, because she embarked upon the correct inquiry and asked theright question. She had jurisdiction to consider RR’s complaint that she had been the victim of unjustified discrimination.

In addressingthat complaint, she had to consider the possible justificatory implications of orders made by the Provincial Court. To the extent that sheerred, I do not characterize the error as jurisdictional. [100] In reply, the Society submits that “the flaw in the Tribunal’s assumption of jurisdiction is not that it gave effect to individualhuman rights, but that it failed to do so in a manner that is driven by the child-focused approach mandated by the CFCSA”. In otherwords, the real burden of the Society’s complaint lies not with the Tribunal’s decision to hear the complaint, but with its legal reasoning

in deciding the case. This is not really a jurisdictional argument. [ 101 ] The Society and the Attorney General submit that concurrent jurisdiction is unworkable and disproportionate. They submit that the difficulties are exemplified by this case, in which a 23-day hearing resulting in a mediated resolution in the Provincial Court was followed by a 21-day hearing addressing many of the same issues before the Tribunal. They point to Provincial Court’s great expertise in adjudicating disputes under the CFCSA .

They submit that concurrent jurisdiction gives rise to operational conflict, and undermines the objectives of the CFCSA . [ 102 ] With respect, these are policy arguments.

They may well support an argument for legislative change but, for the reasons already given, they do not persuade me that, by virtue of the existence of the Provincial Court’s supervisory jurisdiction, the Tribunal lacks legal competence to address a complaint of discrimination in the provision of services provided under the CFCSA . [ 103 ] In oral argument, the Society submitted, in the alternative, that the Tribunal erred in assuming jurisdiction in the circumstances of this case. This is essentially an argument about the exercise of the Tribunal’s discretion under s. 27(1) (

f) of the Code . The standard of review dictates that I may only overturn a discretionary decision if it was patently unreasonable. RR points out that, following the dismissal on April 30, 2019 of its application seeking

summary dismissal of the complaint, the Society did not invoke s. 27(1) (f). She asks me not to entertain the Society’s alternative argument, and to reject it if I do. [ 104 ] Above, I concluded that the legal and jurisdictional issues were not well defined at the outset of the hearing, and the Society was not afforded a fair opportunity to address questions critical to the Decision.

Until the very end of the hearing before the Member, the parties and the Member were not concerning themselves with the details of the Provincial Court proceeding, because it seemed that the entire process was off-limits. [ 105 ] As will be seen, I am of the view that this case must be remitted to the Tribunal for further consideration.

In my view, in light of the issues now presented for decision, fairness requires that the Society be afforded an opportunity to urge the Tribunal to dismiss RR’s complaint on the ground that, in the language of s. 27(1) (f), “the substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding”. It is for the Tribunal to address such an application.

In the context of that application, the parties will be able to supplement the record as to what happened in the Provincial Court proceeding, and address whether that court process addresses the substance of RR’s complaint. It is only after the Tribunal has addressed that question, on a proper evidentiary foundation, that the court would be in a position to decide whether a discretionary decision by the Tribunal not to decline jurisdiction was patently unreasonable. 3.

Did the Member err in law in concluding that the Provincial Court order of January 18, 2017 and the continuing proceeding in the Provincial Court did not justify the continuing removal of the children from RR’s care? [ 106 ] There are four orders of the Provincial Court that bear on an analysis of the Society’s claim that its continuing custody of the children was justified. Only the custody orders of January 17, 2018 and April 26, 2019 were in evidence before the Member.

Notwithstanding the usual rule that an administrative tribunal’s decision cannot be criticized and overturned on the basis of evidence and argument not advanced before the tribunal, I have concluded above that the 2016 orders must also be addressed on this application for judicial review. The Provincial Court orders of May and June 2016 [ 107 ] The Provincial Court order of May 4, 2016 references the three younger children and states: After a hearing at Vancouver, B.C. this day where Patricia L.

MacDonald appeared as the Lawyer for the Director of Child, Family and Community Service; and where Monika Follett appeared as Duty Counsel for [RR], the mother of the child; and by consent; THIS COURT ORDERS that pursuant to

section 33.2(2) of the Act, the Director supervise the mother’s care of [the baby]; THIIS COURT FURTHER ORDERS that pursuant to section 46(3) of the Act , the Director supervise [the two middle children] for a period of six months to November 4, 2016; THIS COURT FURTHER ORDERS that pursuant to

section 41.1 of the Act, the Director supervise the care of the children pursuant to the terms and conditions as set out below: … 3. The mother must allow the Director or the Director’s Agents to visit and inspect the home and meet directly and privately with the children, at any time, whether scheduled in advance or not, and as often as the Director deems necessary to ensure the safety and well-being of the children; … 9. The Director must remove the children if the mother fails to comply with supervision term 3 of this Order; … [ 108 ] The order of June 15 references only the baby.

Unlike the May order, it references a written consent of RR filed pursuant to s. 60 of CFCSA . It replaces the provision for supervision of RR’s care of the baby pursuant to s. 33.2(2) with no end date with a provision for supervision pursuant to s. 41(2.1) with an end date of November 4, 2016. It contains the same clauses 3 and 9 as the May order. [ 109 ] While the June order does not refer to the May order, it is clear that it was intended to replace the May order, so far as the baby

was concerned. The May order remained in effect in respect of the two middle children. [ 110 ] Both orders were still in effect on August 9, 2016, when social workers removed the three younger children from RR’s care. [ 111 ] While the May order states that it was made by consent, unlike the June order, it seemingly was not made on the basis of a filed written consent pursuant to CFCSA s. 60 . An order under. s. 60 may be made without a finding that the child needs protection (sub- s. (4)) and without any admission by parents that there are grounds for removal of a child (sub-s. (5)).

In the context of custody orders, citing B.B. and E.B. v. British Columbia (Director of Child, Family and Community Services, 2016 BCCA 66 , the Member reasons at para. 293 of the Decision that the filing of a written consent is immaterial, given the scheme of CFCSA , which allows parties to move forward without court adjudication and express findings that children are in need of protection. I address this aspect of the Member’s reasoning below. In my opinion, it cannot be said of the May order that it did not entail a court adjudication as to the best interests of the middle children.

The order states that it is made pursuant to s. 46(3) which expressly contemplates a supervision order for a specified period of up to six months “in the child’s best interests”. [ 112 ] The May order also entailed an adjudication of the best interests of the baby.

Section 33.2(2) required the court making the May 4 order to satisfy itself that there were reasonable grounds to support the director’s concerns regarding the child. It was replaced by the June order and, while s. 41(2.1) would have required a finding that the baby was in need of protection, the June order was a consent order pursuant to s. 60 and no such finding was therefore required. The making of the June order was consistent with and did not undermine the finding that grounded the May order.

Legal significance of the 2016 orders [ 113 ] In the Decision, the Member states: [290]The Tribunal cannot review decisions made by the BC Provincial Court in relation to custody or access: … . However, in this case, the Court has not made any decisions related to RR’s children. All of the interim and temporary custody orders which continued [the Society’s] custody over the children during the relevant period were entered into by consent.

They were necessitated by [the Society’s] ongoing assessment – which RR always disputed – that the children were in need of protection. [ 114 ] There was only one custody order in force during the period covered by the complaint. It was the temporary custody order of January 18, 2017.

I infer that the Member understood that the January 2017 order could only have been made either on the basis of a finding that the children were in need of protection or, absent such a finding, on the basis of a consent provided by RR while she disputed that the children were in need of protection. [ 115 ] The Member’s understanding was mistaken.

Because RR’s relationship with her children was subject to court-ordered supervision when the children were removed in August 2016, apart from RR’s consent, the Society was not limited to justifying the removal and the making of a temporary custody order on the basis that the children were in need of protection. The removal could be justified under s. 42(1) (

b) of CFCSA on the basis that: (

b) the director has reasonable grounds to believe that a person has not complied with a term or condition of the supervision order or interim order and a director is required by that order to remove the child if the person does not comply with that term or condition. [ 116 ] In determining whether the removal of the children in August 2016 was justifiable apart from RR’s consent, the proper inquiry was not simply whether the children were in need of protection.

It was whether the director had reasonable grounds to believe that RR had not complied with her obligation under clause 3 of the terms and conditions of the May 4 and June 15 orders. In that event, clause 9 of the orders required the director to remove the children from RR’s care. [ 117 ] The Member did not address this question because she was unaware of the May 4 and June 15 orders. She considered that her finding that the Society lacked reasonable grounds to conclude that the children were in need of protection was dispositive of the issue of justification.

Her alternative finding that there were less disruptive means of protecting the children than removal is also undermined by her inability to address whether the Society was obliged to remove the children in the first place. It is not obvious what findings the Member would have made, had she been made aware of the May 4 and June 15 orders. [ 118 ] The broader question concerns the legal significance of Provincial Court orders addressing the parenting of RR’s children generally.

The Member concluded that, in the context of the Human Rights proceeding, they have no significance at all if they were made by consent and did not reflect an adjudication of rights. At para. 295, she stated: In this case, there are no court orders or decisions under attack. [ 119 ] The Member’s conclusion that consent orders lack legal significance in the context of this case is untenable. To begin with, a consent order is still an order of the court, attaching real legal consequences to an agreement between the parties; Esteghamat-Adakani v. Taherkhani, 2023 BCCA 290 at para. 92 .

Breach of a consent order may be a contempt of court; North Vancouver (District) v. Sorrenti, 2004 BCCA 316 at paras. 1-2 and 18 . [ 120 ] A consent order can only be made pursuant to s. 60 of the CFCSA on certain preconditions. The consent of parents must be in writing; s. 60(1) . They must have been advised to consult with independent legal counsel before signing the consent, understand the nature and consequences of the consent, and given the consent voluntarily; s. 60(2).

The court must inquire and satisfy itself that these preconditions are satisfied; British Columbia (Director of Child, Family and Community Service) v. F.J.V. AND J.P.D., 2023 BCPC 28 at para. 53 . [ 121 ] The Member states: [293] RR argues, and I accept, that parents may consent to interim or temporary orders for a variety of reasons. In this case, RR’s consent allowed [the Society] to provide services to the children and for the parties to plan for the children without court adjudication:

BB at para. 2. Though the parties agree that all interim and temporary custody orders were made by consent, it does not appear that all consents were made in the written form contemplated by s. 60. [The Society] has not provided me with any authority to suggest that this is significant. BB and EB support that the courts honour the intent of consent orders, which allow the parties to move forward without court adjudication and without express findings that children are in need of protection.

In this case, it was to be the role of the judge hearing the continuing custody application to determine whether the children were in need of protection at the time of removal and whether such an order was warranted. Ultimately, the judge never made that determination because the matter was resolved by another consent order which led to the return of the children. [ 122 ] The January 18, 2017 order was not made pursuant to s. 60 .

The Member errs in holding, at para. 293, that there is no significant difference between a consent order made pursuant to s. 60 and any other order, expressed as made by consent, but without fulfilling the statutory prerequisites. The formalities – written consent received following due inquiry by the court – associated with a consent order under s. 60 are important. Absent recourse to s. 60 , the specific provision of s. 60(5), that a parent’s consent to an order is not an admission by the parent of any grounds alleged by the director for removing a child, is not engaged.

The Member cites B.B. and E.B. for the proposition that the courts honour the intent of consent orders allowing parties to move forward without court adjudication and express findings that children are in need of protection. B.B. and E.B. concerned consent orders under s. 60 and did not address a consent order made other than pursuant to s. 60 . [ 123 ] In my opinion, even in the absence of the 2016 orders, the Member erred in law in failing to give any weight to the January 2017 order in addressing the question of justification.

It carried justificatory weight by virtue of the court’s approval, and the Society was entitled to rely upon that approval as an indication that its removal of the children was legally justified, at least when the order was made. [ 124 ] Circumstances may have changed after the January 2017 order was made, to the point that the removal of the children from RR’s care was no longer justified. The Society could have negotiated the return of the children sooner than it did.

The Member found, as a matter of fact, that the Society’s dealings with RR prior to the eventual return of the children were tainted with prejudice and stereotypical reasoning. The justification offered by the January 2017 order could not be a full answer to RR’s complaint that she suffered discrimination afterwards because I have held that the Tribunal’s remit is limited by the Provincial Court’s decisions and not its ongoing process. [ 125 ] Nevertheless, the January 2017 order is not irrelevant to an analysis of the justification issue in respect of the period after the order was made.

It would be incumbent on RR to demonstrate that circumstances had changed to the point that the justification offered by the order was no longer relevant. [ 126 ] To summarize, I conclude that the Member erred in law in several respects. Having regard to the 2016 supervision orders, it was legal error not to consider whether the Society had reasonable grounds to believe that RR had not complied with her obligation to allow the Society’s agents to visit and inspect the home and meet directly and privately with the children, justifying the removal of the children in August 2016.

Independently, it was legal error to give no weight to the January 2017 custody order in considering whether the removal of the children was justified in 2016, and in considering whether the Society’s subsequent refusal to agree to the children’s return was justified. [ 127 ] On the other hand, I reject the Society’s argument that the Member was legally bound to conclude that the ongoing removal of the children was justified.

The January 2017 order and ongoing proceedings in the Provincial Court afterwards would not of themselves suffice to justify otherwise discriminatory conduct following a material change of circumstances. 4. Did the Member otherwise err in law in law in concluding that the continuing removal of the children was not justified? [ 128 ] The Society and the Attorney General submit that the Member erred in law by failing to apply the legal standards that govern the provision of child protection services under the CFCSA . As the Society puts it, the Member “undermined the CFCSA ’s protective mandate”.

According to the Attorney General’s formulation, the Decision imposes a “new requirement of formal ‘substantiation’ as part of determining the reasonableness of protection concerns, despite the lack of any such requirement under the relevant provisions of the CFCSA ”. [ 129 ] RR responds that there is nothing wrong with the approach taken by the Member. Under it, “all a social worker is expected to do is act reasonably and in a non-discriminatory manner”.

RR submits that: It is nonsensical to suggest that the child-centred approach of the CFCSA takes precedence over the purpose of the Code , to the extent that the Tribunal is required to adopt the same framework. … … [Discriminating against a parent can have a discriminatory effect on the child … It is therefore never in the best interests of the child for child protection workers to discriminate against the child’s parent, as was done in this case. [ 130 ] RR responds to the Attorney General that “a social worker can have an honest belief about a child’s legitimate need that is not premised on a discriminatory basis” and concludes: Essentially, the AG suggests that in order to ensure the safety and well-being of children, the director should have the ability to discriminate with impunity. [ 131 ] Underlying this debate is the reality that child protection law, embodied in CFCSA and largely administered by the Provincial Court , and human rights law, embodied in the Code and largely administered by the Tribunal , examine the facts of this case throug

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