AS v. Ministry of Children and Family Development and another, 2024 BCHRT 293
Date Issued: October 21, 2024
File(s): CS-003779
Indexed as: AS v. Ministry of Children and Family Development and another, 2024 BCHRT 293
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
AS
COMPLAINANT
AND:
His Majesty the King in Right of the Province of British Columbia as represented by the Ministry of Children and Family Development and Brian Young
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Ijeamaka Anika
On their own behalf: AS
Counsel for the Respondent: Joanne Kim
I INTRODUCTION
[1] I have anonymized the complainant’s name in this decision to protect their privacy. I explain my rationale later in the decision.
[2] AS alleges that His Majesty the King in the right of the Province of British Columbia, as represented by the Ministry of Child and Family Development and Brian Young [together the Respondents ] , discriminated against her based on mental disability in the area of services contrary to s. 8 of the Human Rights Code by taking away her emotional support rats. AS says the rats helped her in dealing with depression and anxiety.
[3] The Respondents deny discriminating and apply to dismiss the complaint under s. 27(1)(c) of the Code on the basis that AS’s complaint has no reasonable prospect of success. The Respondents argue there is no reasonable prospect that the complaint will succeed because, at the relevant time, the rats were not prescribed to AS treatment for any disability. The Respondents argue that, in any event, they took steps to accommodate AS but could not reasonably do so without jeopardizing the safety, security and wellbeing of the rats and AS. The Respondents also apply to dismiss the complaint against Mr. Young under s. 27(1)(d)(ii) on the basis that proceeding against the individual respondent – Mr. Young – would not further the purposes of the Code. I find it most efficient to consider the dismissal application under s. 27(1)(c).
[4] The Tribunal advised AS of the due date for her response submission. She did not file one and I am satisfied AS had notice and the opportunity to do so.
[5] For the following reasons, the application to dismiss the complaint is granted and the complaint is dismissed. I am satisfied that the Respondents are reasonably certain to establish that they would have incurred undue hardship by allowing AS to continue to keep the rats. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.
II BACKGROUND
[6] The following background is taken from the parties’ materials.
[7] The Ministry provides child protection services under the Child, Family and Community Services Act, RSBC 1996, c. 46. At the relevant time, Mr. Young was the Director of Children Protection. Under the Act, the Director delegates authority to child protection social workers to provide child protection services across the province.
[8] During the relevant time, AS was a child under the continuing care, custody and guardianship of the Respondents at a staffed residential resource home [the resource home ] contracted by the Ministry. The resource home staff [ placement staff ] provided day-to-day care at the home 24 hours a day, 7 days a week. As part of their duties, placement staff cared for AS, including taking her to school and appointments, helping her develop skills for independent living, and attending to any emergency needs. A Ministry staff team, including guardianship social workers, resource social workers, and clinicians for children and youth mental health services [the care team ], also worked with AS while she was under the Respondents’ care.
[9] In February 2020, AS went to a pet store to purchase two rats. Placement and care team staff accompanied her to the store. The Respondents say AS was allowed to purchase the rats in the hopes that they would be therapeutic for her. AS says she bought the rats to help with “mental disorders” and “mental health problems” which she describes as depression and “major anxiety.” AS was responsible for caring for the rats.
[10] In February 2020, placement staff filed the first critical incident report regarding AS. Critical incident reports provide updates to the care team and placement staff regarding significant incidents concerning the wellbeing of a child in care. The first report included the following:
a. A staff member heard sounds from AS’s room which suggested that AS yelling at her rat and throwing objects at it.
b. The staff member told AS to be gentle with her rat and AS yelled at the staff member not to tell her how to treat her pets.
c. Later the same day, another staff member observed AS taking one of the rats outside and throwing snowballs at it. The staff member told AS to be gentle with the rat. AS stopped throwing the snowballs, came inside the house and told the staff member that she was “mad” at the rat for chewing on computer cords.
[11] A few days later, a member of the care team emailed the rest of the care team that there were concerns about AS’s rats, specifically that AS was taking the two rats everywhere including into the bath. The same email stated that AS was not cleaning the rats’ cage appropriately and one of the rats had become ill and needed to be taken to the pet store.
[12] The Respondents say AS also told placement or care team staff that she was feeling dizzy and fainted on occasion but refused to see her doctor regarding her symptoms. The care team consulted with AS’s doctor who noted that AS’s symptoms could be related to how she handled the rats, particularly regarding AS bathing with the rats, not cleaning their feces, and feeding them raw meat without sanitizing afterwards.
[13] By the end of February 2020, placement staff created rules for AS’s care of the rats and the staff had gone over the rules with AS. It is unclear on the evidence if AS was verbally informed of the rules or if they were written down for her.
[14] In March 2020, a placement staff emailed the care team that AS was clipping the rats’ nails at the kitchen table, throwing rat feces at the placement staff, putting the rats in her underwear, and allowing the rats to defecate on her bed. The email also stated that AS refused to follow the rules and became defensive each time the rules were mentioned. The placement staff and care team agreed that placement staff would go over the rules again with AS.
[15] In April 2020, placement staff filed a second critical incident report regarding AS. The report stated that AS had engaged in self-harm, and disclosed to placement staff that she was letting the rats lick the cuts in her arms and that she had “put rat piss” into the wounds.
[16] In May 2020, the care team and placement staff held an integrated case management [ ICM] meeting to discuss AS’s care. During the meeting, staff noted the following:
a. On several occasions, AS followed maintenance workers who were working in the resource home and put rats on them despite the workers telling AS they felt uncomfortable when she put the rats on them.
b. AS fed raw meat to one of her rats and did not clean up the raw meat left in the home.
c. Rat feces was left in the back deck of the resource home.
d. AS had the rats inside her clothes and in her bed.
[17] Later the same month, care team and placement staff held another ICM meeting on how to address the concerns about the rats and communicate with AS that if she did not abide by the rules, the rats would be rehomed. Notes concerning both meetings are before me.
[18] Following the meeting, the placement staff created an updated version of the rules for AS. The rules, captioned “Rat Rules,” were as follows:
Rats are to eat rat food purchased at the pet store.
The rats need to stay in the cage unless for a snuggle, a roll in the ball or for their weekly bath.
Rats can be bathed once a week. Rat bath day is Sunday! Please use a small amount of no-tears baby soap. The rats are not to come into the bath with humans.
The rat cage needs to be deep cleaned every Sunday. Staff are to help with this (if needed). Everyday the scat is to be shovelled out of the cage and into a bag that is then thrown in the outside garbage can.
Please ensure the rats have fresh food and water daily
If the rat goes to the bathroom outside of the cage, please clean it up and sanitize the area immediately. Feel free to ask staff for help!
Please ask others before putting rats on them. Some people are not completely comfortable around certain animals.
The rats are not allowed in the resource vehicle.
Rats should not be inside of clothing. If the rats would like to snuggle, please use the rat carrier.
[19] The Respondents say that a few weeks before removing the rats from AS’s care, the care team members met with her and explained that if she did not abide by the rules concerning the care of the rats, the rats would be rehomed.
[20] In June 2020, placement staff filed a third critical incident report regarding AS’s treatment of the rats. The report stated:
a. Placement staff observed the rats making crying sounds while AS was trimming their nails. The staff member told AS that she may be trimming the nails the wrong way. AS ignored the staff member.
b. One of the rats began bleeding as a result of the nail trimming and AS suggested giving it a saltwater bath. The staff member told AS this would likely hurt and AS allowed the staff member to apply ointment to the wound.
c. The rat kept licking the wound and AS stated that she may put hot sauce or lemon juice on the wound if the rat did not stop licking the wound. The staff member told her that might also be painful for the rat.
d. AS put the rat in a cage and put a heat lamp very close to the cage, stating the rat needed to stay warm. Two placement staff members told AS the rat was in discomfort due to heat from the lamp being so close to the rat’s cage
[21] Following the third report, the care team members decided that the rats needed to be rehomed and sometime in June or July 2020, the Respondents rehomed the rats. The specific date is unclear on the materials and nothing in this decision turns on it. AS was away on a camping trip at the time. While she was away, the rats were in the care of a placement staff. When AS returned, Mr. Young telephoned and told AS of the Ministry’s decision to rehome the rats and explained the reasons why the rats would not be returned to her.
[22] In her complaint form, AS says that contrary to the reasons the Respondents gave her for taking away her rats, the placement home did not have a no-pet policy, and she was not harming the rats. AS says she spoiled them, kept the rats’ cage clean, and provided them with fresh food and water. AS also says her rats liked to burrow under her clothing, and she accidentally cut their nails too short once. This decision does not turn on whether the placement home had a no-pet policy as it is undisputed that AS purchased the rats and kept them in the placement home and the Respondents’ supported AS in purchasing the rats. I merely state it here for context. I return to the dispute regarding AS’s treatment of the rats in my decision.
[23] Mr. Young told AS she could dispute the decision with the Ministry complaints office and the Representative for Children and Youth.
[24] In July 2020, AS filed a complaint with Office of the Quality Assurance Branch of the Ministry. The Ministry did not accept AS’s complaint and AS requested an administrative review of their decision. The rats remained in the care of the placement staff.
[25] On July 17, 2020, AS’s psychiatrist wrote a letter to the Ministry regarding AS’s rats. The letter stated:
[AS] was receiving additional support from her emotional support rats. At a previous meeting, her caregivers described concerns of inappropriate behaviour and interactions with the emotional support rats. The caregivers reported that [AS] was treating the animals inhumanely. She was reportedly hurting the animals. She was going into the showers with the animals. She was reportedly keeping the animals in her bra and underclothes. They also described concerns of possible sexualized behaviours with the emotional support rats. All of these were the reasons why the emotional support rats were taken away. I should note that [AS] has denied all of these allegations. She has indicated that her mood has been severely depressed and unmotivated since her emotional support rats were taken away. She has indicated that she has become emotionally unstable and irritable.
[AS] would like to be provided with another opportunity to have her emotional support rats. [AS] is eager to do everything in order to improve her interactions with the rats. She is therefore asking to be given a second chance. I have explained to [AS] that it will not be appropriate for emotional support animals to be treated inhumanely.
[26] The care team discussed the letter and AS’s desire to have the rats returned to her care. They decided against returning the rats to AS’s care. The Respondents say that despite the psychiatrist’s letter, the concerns around AS’s mistreatment of the rats remained.
[27] In September 2020, the rats were surrendered to the BC Society for the Prevention of Cruelty to Animals [ SPCA ]. AS’s uncle adopted the rats from SPCA and found a caregiver for them. The parties dispute whether AS was allowed to remain in contact with the rats. AS says she was not allowed to see them or call the caregiver or receive pictures of the rats. The Respondents version of events is that AS remained in contact with the caregiver and the care team planned visits for AS to see the rats. The Respondents put emails regarding arrangements for AS to see the rats in 2021 and emails concerning feedback to the care team following AS’s visits to see the rats before me. AS continued requesting for the rats to be returned to her.
[28] In April 2021, AS’s psychiatrist wrote two letters to the care team. In the first letter, dated April 15, 2021, the psychiatrist stated their “opinion that [AS’s] rats function as emotional support animals for [AS], providing her with much needed support and comfort for her ongoing emotional and mental health challenges.”
[29] AS says there was a lot of back and forth regarding whether she could have her rats back. She told her advocate that a placement staff had assured her they could discuss returning her rats in 2021. On April 16, 2021, AS’s advocate emailed Mr. Young concerning returning the rats to AS. AS’s advocate pointed to the psychiatrist’s letter which stated that the rats were emotional support animals and told Mr. Young that a placement staff could also speak to their observations of AS’s care of the rats. AS’s advocate requested a meeting between AS, the advocate, and the placement staff who could speak to their observations of AS’s care of the rats in 2020. The advocate also told Mr. Young that AS had been assured by a member of the care team that the care team would discuss the return of her rats in 2021.
[30] Between April 16, 2021, and April 29, 2021, Mr. Young and AS’s advocate emailed back and forth to find a suitable time to meet. In the meantime, Mr. Young and the care team communicated by email regarding the psychiatrist’s letter. In the email thread on April 20, 2021, the Child and Youth Mental Health Integrated Practice Clinician on AS’s care team stated the following:
Nothing substantial has changed around the factors that lead to the decision and we would suggest to the team that we stay the course.
The door was left open with [AS] when it shouldn’t have been suggesting the decision could be reviewed in a year which wasn’t what the care team had agreed to. The fragmented and differing messages does not fit with complex care principles or the idea of a care team making decisions together that will impact the mental health of complex youth versus unilateral decision making.
Ultimately we see a decision to return the rats as resulting in increased power struggles resulting in decreased mental health and wellness and decreased environmental and relational stability – all of which we should be trying to maximize as we help her focus on transitioning to independence.
[31] Another care team member emailed in the same thread:
The concern that I would have is that front line care team did not have the capacity to set boundaries with [AS], this would be a different story, if they were better equipped to protect the rats from the behaviour. Because of this there will inevitably be conflict between her and the front line staff if they are able to implement boundaries. I think this undermines the work that has been done to focus on supporting [AS] to do some work around her relational injuries.
If [the resource home] is saying that they will allow the rats then I think we need to expect them to manage that.
[32] In a second letter dated April 21, 2021, the psychiatrist stated: “I would like to prescribe [AS] an Emotional Support Animal. It is possible that [AS] two rats that she has been caring for over the years could function as her Emotional Support Animals.”
[33] On the same day as the psychiatrist’s second letter, the resource home’s director emailed Mr. Young and stated:
We are not able to support the request for rats at [AS’s] home. We have identified safety, health and staffing issues that will complicate providing service to the home and as such we cannot proceed with the request.
I think it will be helpful to meet with the care team to discuss the messaging on this subject in the near future. We realize it is an important issue for the child and want to be part of supporting her in getting the message and looking at alternatives that we can support.
[34] In August 2021, the administrative review concluded that the Ministry had the authority to make decisions about rehoming the rats; AS and Ministry staff had a responsibility not to continue to cause or permit an animal to be in distress; and the Ministry had adhered to principles of administrative fairness in providing reasons to AS regarding the decision to rehome the rats. Since the filing of the complaint, AS has aged out of care and the rats have passed away.
III DECISION
A. Anonymization
[35] Rules 5(6) and (7) of the Tribunal’s Rules of Practice and Procedure [ Rules ] deal with limiting publication of personal information. The Tribunal recognizes that complaints often involve highly personal, sensitive information. Sometimes, the privacy interests of parties or others will outweigh the public interest in access to information. To this end, the Tribunal has the power to make orders limiting the disclosure of personal information: Tenant A v. Landlord and Manager, 2007 BCHRT 260 at paras. 6‐8; Lai v. Gateway Casinos and others, 2010 BCHRT 338.
[36] The strong public interest in the openness of, and access to, the Tribunal’s processes and proceedings yields only when outweighed by privacy interests: Kandola v. University of British Columbia and others (No. 3), 2006 BCHRT 391.
[37] Consistent with the best interests of the child, the Tribunal may anonymize names on its own motion to protect the identity of minors: Rule 2(2). This complaint involves events that occurred while the complainant was a minor in the care of the Respondents. It deals with highly personal medical information and AS’s experience as a child in the Ministry’s care. As children are inherently vulnerable, the Rules provides a presumption that the minor’s privacy interests outweigh the public interest in access to the Tribunal’s proceeding: Rule 5(7).
[38] Although AS now an adult, I find that it is appropriate to anonymize AS’s identity as this complaint arises out of events that occurred during her childhood under the Ministry’s care. The public interest in openness and access to the Tribunal’s processes is not impacted by anonymizing AS’s identity in this application.
B. Application to dismiss
[39] In this application, the burden is on the Respondents to show that the complaint should be dismissed because there is no reasonable prospect that AS’s complaint would succeed after a full hearing: s. 27(1)(c).
[40] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[41] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan , 2013 BCSC 942 at para. 77.
[42] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority , 2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission , 1989 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill , 2011 BCCA 49 at para. 27. The threshold to move the complaint to a hearing is low.
[43] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia, 2008 BCSC 1026 at para. 34 . However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City), 2017 BCCA 242 at para. 67.
[44] To prove her complaint at a hearing, AS will have to prove that (1) she has a disability, (2) she was adversely impacted in services, and (3) that her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. AS is not required to prove the complaint at this time but need only point to some evidence capable of taking the complaint “out of the realm of conjecture”: Berezoutskaia at para. 24. If she does that, the burden will shift to the Respondents to justify the impact as a bona fide reasonable justification. If the Respondents justify the impact, there is no discrimination.
[45] I can decide this application by determining whether the Respondents are reasonably certain to prove at a hearing that they discharged their obligation to reasonably accommodate AS. For that reason, I will assume without deciding that AS has taken the elements of her case out of the realm of conjecture.
[46] The Supreme Court of Canada set out the three-stage analysis for determining abona fide reasonable justification defence in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) , 1999 CanLII 646 (SCC), [1999] 3 SCR 868 [ Grismer ]. Applying that analysis in this case, at a hearing, the Respondents would have to establish the following: (1) they adopted the rules regarding caring for the rats at the resource home for a purpose rationally connected to ensuring the safety and wellbeing of children and placement staff in accordance with the Ministry’s mandate; (2) they adopted the standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate purpose; and (3) the Respondents’ behaviour was reasonably necessary to accomplish its purpose or goal, in the sense that the Respondents could not accommodate AS without incurring undue hardship. This third element encompasses the Respondents’ duty to accommodate AS to the point of undue hardship and AS’s duty to cooperate in the accommodation process.
[47] AS has not submitted a response to this dismissal application. I am satisfied, on the materials before me, that AS had notice of the dismissal application. Nonetheless, I have considered the whole evidence before me, and I am satisfied that the Respondents are reasonably certain to establish the three elements at a hearing. I set out my reasons next.
[48] Regarding the first and second elements, there is no dispute that the Respondents are reasonably certain to prove that the standard of providing guidelines for the care of pets was reasonably required in the resource home to ensure the safety and wellbeing of the pets and residents in the resource home. The Respondents have put the rules before me which they say provided AS with guidance in her care of the rats.
[49] In the context of all the materials before me, the heart of the dispute between the parties is whether the Respondents accommodated AS to the point of undue hardship. I understand AS to argue that even though the rats helped her in dealing with her disabilities and providing them with adequate care, the Respondents took the rats away and refused to return them. Therefore, I must decide whether it is reasonably certain that the Respondents will make out the third element of Grismer at a hearing.
[50] The Respondents argue that allowing AS to keep the rats, given the ongoing concerns for their safety and for AS’s health and wellbeing, would constitute undue hardship. They say care team and placement staff offered AS support in caring for the rats and repeatedly advised AS of the concerns about her treatment of the rats and the need to abide by the rules. The Respondents say they only decided to rehome the rats after the care team’s efforts to address AS’s behaviour towards the rats failed.
[51] Further, the Respondents say that even after rehoming the rats, the care team supported AS in visiting them with their new caretaker. AS disputes that she was allowed to remain in contact with the rats after they were rehomed. I can resolve this dispute on the contemporaneous evidence before me. On the evidence before me, the care team continued to arrange for AS to visit the rats until October 2021. Based on the emails among care team and placement staff, AS visited the rats on multiple occasions in 2021.
[52] In her complaint form, AS argues that she made sure the rats’ cage was clean, they had fresh water in their cage, and she never harmed them. In the materials before me, AS’s advocate also suggests a placement staff member could attest to AS adequately caring for the rats. AS and her advocate’s statements are unsupported by the contemporaneous evidence of the critical incident reports. Considering that AS did not make submissions in this dismissal application, I must only consider the evidence before me and cannot speculate about what evidence might be called at the hearing:Chan at para. 77. Accordingly, I can resolve this dispute based on the contemporaneous evidence of the care team’s critical incident reports regarding AS’s care of the rats, which the Respondents put before me. I find that the Respondents are reasonably certain to prove their concerns for the rats and AS’s health, safety, and well-being. Based on the care team’s reports, the placement staff:
a. Reported concerning behaviour in AS’s handling of the rats, as I noted above.
b. Reported concern for AS’s wellbeing due to her handling of the rats. AS was experiencing dizziness and headaches and refused to see her doctor. The care team consulted AS’s doctor, who noted that she may contract infections through the feces and urine of the rats which could cause infection and explain the dizziness and headaches.
[53] Further, the evidence before me is also that the placement and care staff took the following steps to assist AS in her care of the rats:
a. The placement and care staff created the rules concerning AS’s care of the rats and went over them with AS.
b. Care team or placement staff went with AS to a pet store for further guidance on caring for the rats, updated the rules and posted them for AS in the resource home.
c. AS was informed that the rats would be rehomed if she did not abide by the rules regarding their care.
[54] The Respondents argue that despite the efforts of the care team and placement staff to assist AS in caring for the rats, AS’s handling of the rats remained concerning and she refused to accept help or guidance from either the care team or placement staff.
[55] I am persuaded the Respondents are reasonably certain to prove that it would constitute undue hardship to allow the rats to remain in AS’s care. My decision is based on the combination of critical incident reports regarding AS’s care of the rats, concerns for AS’s physical and mental health and wellbeing, the steps taken by the placement staff and care team to support AS in caring for the rats. My conclusion is not affected by the later letters from AS’s doctor or the suggestion by AS’s advocate that AS may have been told by placement or care staff that they could revisit the removal of the rats.
[56] On the evidence, the Respondents took all practical steps to accommodate AS by supporting her in her care of the rats, setting rules when concerns arose, and informing her of the consequences, and after her behaviour did not change, they reasonably removed the rats. For the reasons set out above, I am satisfied that there is no reasonable prospect the complaint would succeed at a hearing. The complaint is dismissed in its entirety under s. 27(1)(c).
IV CONCLUSION
[57] The complaint is dismissed.
Ijeamaka Anika
Tribunal Member