Home » Law Library » B.C. Human Rights Tribunal decisions » Recently released decisions » 2024 BCHRT 333

X v. BC Ministry of Children and Family Development, 2024 BCHRT 333

Date Issued: December 4, 2024
File: CS-001310

Indexed as: X v. BC Ministry of Children and Family Development, 2024 BCHRT 333

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:

X

COMPLAINANT

AND:

His Majesty the King in Right of the Province of BC as Represented by the
Ministry of Children and Family Development

RESPONDENT

REASONS FOR DECISION
NO EVIDENCE MOTION

Tribunal Member: Shannon Beckett

On their own behalf: X

Counsel for the Respondent: Rochelle Pauls and Alexandra MacCarthy

Table of Contents

Content Notice: This decision contains language, information, and allegations that relate to domestic violence and child sexual abuse.

I INTRODUCTION

[1] Due to the sensitive nature of the allegations involved in this complaint, including allegations involving young children, the Tribunal has anonymized all names and identifying characteristics of individuals named in this complaint and those called as witnesses, and there is a publication ban in place. [1]

[2] On October 31, 2018, X filed a complaint with the Tribunal alleging His Majesty the King in Right of the Province of British Columbia as Represented by the Ministry of Children and Family Development [the Ministry ], discriminated against him in the area of services, based on his sex and sexual orientation. Through various amendments to the complaint which the Tribunal accepted over time, X broadened his allegations to also include discrimination in the area of services based on mental disability, as well as retaliation. [2]

[3] The discrimination and retaliation complaints in this case arise in the context of the Ministry’s involvement with X and his former partner Y, in relation to child-protection services. The Ministry initially became involved with X in 2018, in relation to concerns Y raised to the Ministry about X’s involvement with her two young sons. The Ministry investigated Y’s concerns and determined that X posed a risk to Y’s sons. The Ministry then took action to prevent X from having contact with Y’s sons, including by pursuing various orders before the Provincial Court. The Ministry maintained involvement with X and Y over a number of years, and in 2021, when X and Y had a daughter together, the Ministry’s involvement expanded to include child-protection concerns in relation to their daughter.

[4] X says that the Ministry’s involvement with him and his family was discriminatory because social workers relied on anti-LGBTQ2S+ stereotypes and tropes about child grooming to deem he was a sexual risk to children. He also says the Ministry fabricated and exaggerated evidence about his mental health and substance use in order to deny him access to his daughter and to Y’s sons, which amounted to further discrimination. X finally argues that after he filed his human rights complaint, the Ministry retaliated against him by harassing, defaming, and intimidating him, and by fabricating evidence against him, all as an attempt to dissuade him from continuing his human rights complaint.

[5] This complaint was set to be heard between April 4-26, 2024. X presented his case on April 15, 16, 17, 18, 22, 23 and 24, 2024. During that time, I heard from four witnesses. In addition to X, I heard evidence from X’s mother about how X has been impacted by his experiences with the Ministry over the years. I also heard evidence from DG and TS, both of whom are young people who met X when they were children and have stayed in contact with him into adulthood. DG and TS both testified about how they met X and what kind of person he is. They also testified about how X’s involvement with the Ministry has impacted him.

[6] At the close of X’s evidence, the Ministry indicated it intended to file what is legally known as a “no evidence motion”. What that means, is that the Ministry is asking the Tribunal to dismiss X’s complaint before the Ministry is required to present any of its evidence.

[7] This decision considers the Ministry’s no evidence motion.

[8] In support of the motion, the Ministry argues that the Tribunal has limited jurisdiction over child-protection matters where the Provincial Court is involved. It further argues that in light of the Tribunal’s limited jurisdiction, X has not provided the Tribunal with any evidence capable of establishing discrimination in the area of services contrary to s. 8 of the Human Rights Code [ Code ], or retaliation contrary to s. 43 of the Code .

[9] X opposes the motion. He disputes that the Tribunal lacks jurisdiction over elements of his complaint, arguing variously that the finality doctrine of issue estoppel does not apply in his case, the Provincial Court did not explicitly rule on the elements underlying his discrimination complaint, and the Provincial Court orders and decisions carry no “justificatory weight” because the Ministry’s agents lied and fabricated evidence in the Court proceedings. X argues that given the Tribunal’s jurisdiction over his complaint, he has provided ample evidence that demonstrates the Ministry discriminated and retaliated against him.

[10] In order to decide the motion, I must consider the impact of Provincial Court decisions and orders on the Tribunal’s consideration of discrimination complaints in the child-protection context. In light of this impact, I must also consider whether there is some reasonable basis in the evidence on which I could reach a conclusion in X’s favour.

[11] For the following reasons, I allow the no evidence motion, and dismiss X’s complaint in its entirety. The vast majority of X’s evidence and arguments about the findings the Tribunal should make in relation to his evidence amount to an attempt to relitigate issues that have already been decided by the Provincial Court. It would be contrary to the principle of finality in decision-making, and would undermine the repute of the justice system, if X were permitted to have the Tribunal hear and decide factual issues that have already been decided by the Court. For the remainder of X’s evidence, I am persuaded that there is no reasonable basis in the evidence that could support a finding of discrimination or retaliation.

II BACKGROUND

[12] The following is a summary of some of the key events that gave rise to this complaint. I have not attempted to recite all of the background facts, or to refer to all of the events that were discussed at the hearing.

[13] The background to this complaint dates back to June 2018, when X’s then partner Y called the Ministry to report her concerns about how X was interacting with her two sons, 4 and 8 years old at the time. Although X takes issue with the inferences the Ministry drew and the actions it took in relation to certain information it received about him, he does not dispute the following facts which are documented in police files, Ministry files, and decisions of the Provincial Court involving X and Y.

[14] When Y called the Ministry on June 1, 2018, a Ministry social worker documented Y’s concerns about X as follows:

  • She had been in a relationship with X since July 2017, and had moved in with him one month prior;
  • There were “red bells and whistles and flags”;
  • Y’s mother was saying Y needed to “get out”;
  • X was buying her son gifts;
  • X slept in her son’s bed;
  • X created a game with her children where they were “tickling beside the groin”;
  • X hung out with her son while they were showering, and had climbed into the bathtub fully clothed and watched her son shower;
  • She did not think X was being a “sexual predator towards her son”, but he was being a “mental predator towards her son”;
  • X was gay when she met him, and now he loved her;
  • X was “brainwashing” her child; and
  • X had legally changed his name from K to X.

[15] The social worker also documented that another social worker was listening in on the phone call. The social worker’s notes indicate that while she was talking to Y, the other social worker conducted an internet search of X’s former name, and came upon a website which described X as a “self professed boy lover and pedophile who has been arrested for trafficking child pornography and belonging to several pro-pedophile organizations.” The social worker’s notes indicate that during the phone call, the social worker advised Y about the website, and told Y that the social worker would contact the police.

[16] The police became involved and interviewed Y. A police report indicates Y told the police officer about the same general concerns she related to the Ministry. The report also indicates that Y told police that her son disclosed to her that X slept in bed with him naked sometimes. A further note in the police file indicates that after the interview, a police officer contacted X by phone and advised him not to communicate with Y in any way, or attend the residence where she was staying.

[17] Following Y’s initial report, the Ministry entered into a written safety plan with Y, in which Y agreed to prevent any contact, direct or indirect, between her children and X.

[18] The Ministry then commenced its own investigation. Through its investigation, the Ministry learned that in 1999, X had been charged in New York with possession and importation of child pornography, and that for a time, there had been an outstanding warrant for his arrest in that state. A police report indicates that the police reached out to the New York Attorney’s Office about the context for the charges and why they were dropped in 2001. A lawyer from the office provided a detailed written response to the request which included the following information:

  • The lawyer did not specifically recall the computer images involved, but he reviewed his notes and his recollection was that X’s computer contained images of naked minors;
  • The lawyer recalled that the reason the charges were dropped was because it was not clear that the images met the definition of “child pornography” under United States law, which requires images to depict “sexually explicit conduct”;
  • Although X was not prosecuted in New York for these charges, the Attorney’s Office had “serious concerns about his apparent interest in young children”;
  • The lawyer said he had reviewed a “law enforcement report” and told the police that “it appears [X] admitted that he is a pedophile”.

[19] The Ministry investigation also revealed other information which it considered concerning, including:

  • the existence of two restraining orders from Quebec, which prevented X from having contact with a teenaged boy there;
  • X’s romantic relationship with a man who, after the relationship was over, was convicted of child pornography charges and registered as a sex offender in the United States;
  • X’s online presence on a forum called “Boychat” in which he identified himself as a “boylover”; and
  • other interactions X had with teenaged boys while he was living in Montreal.

[20] On July 5, 2018, Y contacted the Ministry and recanted her allegations against X, and advised she no longer had any concerns about him. Also on July 5, 2018, the Ministry applied for and was granted an interim Protective Intervention Order [the 2018 PIO ] under the Child, Family and Community Service Act [ CFCSA ], which prevented X from having any contact with Y’s children. The 2018 PIO was made on a without prejudice basis, and a trial on the Ministry’s application for the PIO was set to be held in January 2019.

[21] In September 2018, X breached the PIO by attending the birthday party of one of Y’s children. The RCMP attended the birthday party and arrested X for violating the PIO. While at the party, Y gave the police a false name, and told the children at the party not to identify her son to the police. Following the events at the birthday party, the Ministry removed Y’s sons from her care, and placed them initially in a Ministry resource (foster home), and then later in the care of Y’s family members. Eventually, Y’s sons went to live with their biological father, Y’s ex partner.

[22] On November 8, 2018, there was a presentation hearing before the Provincial Court, which resulted in an interim order that Y’s sons would stay in the Ministry’s care. After the presentation hearing, the Ministry withdrew its application for a PIO, and so, the trial concerning the application for a PIO never took place.

[23] On August 2, 2019, after an eight-day protection hearing, the Provincial Court found that Y’s two sons were in need of protection when they were removed from her care in September 2018, and they remained in need of protection as of August 2019 [the August 2019 Protection Hearing Decision ]. Regarding the Court’s assessment of X’s risk to Y’s children, the Court expressly held that “the facts support there being a real possibility of the children being sexually abused or sexually exploited and that the mother is presently unwilling or unable to protect them”. As a result, the Court issued a Temporary Custody Order under the CFCSA , which stated that the children would remain in the Ministry’s care for a period of three months. The Court also denied X’s application for access to the children, which he had made during the protection hearing.

[24] X appealed the August 2019 Protection Hearing Decision. On March 19, 2021, the BC Supreme Court dismissed X’s appeal because it decided that intervening events had made the appeal moot.

[25] In approximately March 2020, it appears that X moved in with Y. A police report indicates X was charged with assault in relation to Y on April 16, 2020.

[26] On June 15, 2020, the Provincial Court granted an order under the Family Law Act [ FLA ], on consent of Y and the biological father of Y’s children, that set out the guardianship and day-to-day care of Y’s sons [the June 2020 FLA Order ]. As part of the order, the children’s father was given most of the “parental authorities” under s. 41 of the FLA , and Y was given supervised access visits with her children. The June 2020 FLA Order also granted a six-month protection order under the FLA , which prohibited X from having any contact, direct or indirect, with Y, or Y’s sons except in the context of certain enumerated legal proceedings.

[27] In September 2021, X and Y’s daughter was born. Shortly after the birth, a Ministry social worker attended the home where X and Y were residing, and interviewed the parents. The Ministry did not at that time, or at any time thereafter, remove X and Y’s daughter under the CFCSA . Nevertheless, through a combination of subsequent orders issued by the Provincial Court starting in November 2021 (described below), X’s access to his daughter was restricted to supervised visits.

[28] In approximately November 2021, X and Y separated. Following their separation, Y made allegations about X to the Ministry, which raised concerns that X might be a sexual risk to their daughter. For example, it appears from a Ministry report that X entered into evidence, that Y told a Ministry social worker that X had engaged in extensive conduct which she said caused her concern, including:

  • when one of her sons had mentioned one of his friends in grade 8 was bisexual, X responded by asking whether the son could get X his friend’s telephone number;
  • X would frequently mention he could “not stop thinking about Sky” who was apparently a teenaged character on a Netflix show;
  • X would frequently drive by the skateboard park looking for “vulnerable” kids and jokingly tell Y “I’m sitting in my car stalking the skateboard park”; and
  • Y found a bag of sex toys and lubrication that X kept in his car, and Y was afraid to look inside the bag for fear of finding sex toys related to minors.

[29] In November 2021, the Provincial Court granted a protection order under the FLA , which prevented X from having unsupervised access to his daughter [the 2021 Protection Order ]. The 2021 Protection Order was granted ex parte , which means that X did not appear or have a chance to make submissions about whether it should have been granted. As such, the 2021 Protection Order gave X permission to apply to the Court to have the order set aside. X did apply to set aside the 2021 Protection Order, and he also filed a corresponding application for a protection order against Y, alleging she was psychologically and financially abusing him.

[30] In December 2021, Y and the biological father of Y’s older children entered into a shared parenting time arrangement, which resulted in Y’s sons residing with Y for the majority of the time.

[31] It appears from a Ministry report which X entered into evidence, that on January 4, 2022, Y reported a number of additional concerns about X to a Ministry social worker, including that X appeared very excited to change their daughter’s diaper, and that he would clean her privates so thoroughly it was “creepy”.

[32] On June 29, 2022, the Provincial Court issued a decision on X’s application to set aside the 2021 Protection Order, as well as on his application for a protection order against Y [the June 2022 Protection Order Decision ].The Court ultimately granted a new protection order which prevented X from having any contact with Y’s sons, or with their biological father. The Court also declined to set aside provisions of the 2021 Protection Order involving X’s daughter, due to the “seriousness of the concern of sexual abuse”; however, the Court did amend the order to allow X supervised access to his daughter. The Court dismissed X’s application for a protection order against Y.

[33] In September 2022, the Ministry brought an application before the Provincial Court seeking a supervision order under the CFCSA in relation to Y’s care of her sons and daughter. A presentation hearing was held, after which the Provincial Court issued a decision [the September 2022 Presentation Hearing Decision ], granting the Ministry’s interim care arrangements which involved placing all three children in Y’s care under the supervision of the Ministry. The Court also granted the supervision order sought by the Ministry, which included supervision terms such as unannounced visits by Ministry social workers to Y’s home, restrictions on Y’s ability to change residences, cooperation by Y with a family preservation worker that had been assigned to her family, as well as mandatory attendance of Y at meetings with Ministry social workers. Two terms of the supervision order also related to X’s contact with the children. One term specified that Y was not permitted to allow X any contact with her sons, and another term specified that she was not permitted to allow X any unsupervised access to their daughter without prior approval of the Ministry. The supervision order also included a term requiring X and Y to undertake a Parental Capacity Assessment that was to include a “sexual risk component”.

[34] Following the September 2022 Presentation Hearing Decision, it appears that the supervision order was extended several times.

[35] X’s evidence at the time of the hearing was that the Ministry closed its child protection file on him in March of 2024. However, he testified that he is still bound by a December 16, 2022, extension of the June 2022 Protection Order Decision, made under the FLA , which states that he cannot have contact with his daughter except contact that is “supervised by a responsible adult approved by the Director of Child Family and Community Service or their delegate or as allowed by a court order made under the Family Law Act.”

[36] At the time of the hearing, X said that he had not seen his daughter since December 2023.

III DECISION

[37] To prove his complaint of discrimination, X will have to prove that he has one or more characteristics protected by the Code , he was adversely impacted in the area of services, and one or more of his protected characteristics were a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33.

[38] To prove his complaint of retaliation, X will have to prove:

a) He made a complaint [or might have made a complaint] under the Code , and that the Ministry was aware of the complaint [or possible complaint].

b) the Ministry engaged in or threatened to engage in the conduct described in section 43 of the Code (e.g., evicted, discharged, intimidated etc.), and

c) there is a sufficient connection between the impugned conduct and the complaint [or possible complaint].

Gichuru v. Pallai , 2018 BCCA 78, at para 55.

[39] Based on X’s submissions about the evidence before the Tribunal, it is clear that X is asking the Tribunal to draw an inference of discrimination and retaliation based on how social workers considered information they received about him, allegedly fabricated child-protection concerns in relation to him, and how they initiated or supported legal proceedings in relation to X and the children in his life.

[40] With respect to the test for discrimination, the Ministry acknowledges that X has the protected characteristics of being a bisexual man. However, the Ministry disputes that the evidence before the Tribunal is capable of demonstrating a connection between those protected characteristics and any adverse effects he says he experienced. The Ministry further argues that multiple Provincial Court judges found that the Ministry’s conduct and intervention in X’s life was justified, and it would be improper for the Tribunal to reconsider those findings.

[41] With respect to retaliation, the Ministry says X has failed to provide any evidence capable of demonstrating the Ministry retaliated against him contrary to s. 43 of the Code , and that the majority of his claims of retaliation have to do with alleged retaliation for conduct other than filing (or indicating he was going to file) a human rights complaint.

[42] I first consider the law regarding no evidence motions. I then move on to consider the Ministry’s arguments about the impact of Provincial Court decisions and orders on the Tribunals’ review of discrimination complaints in the child-protection context. Finally, I review the evidence adduced in this case in light of the relevant legal framework.

A. No Evidence Motions

1. No evidence motions are discretionary

[43] The Tribunal has discretion about whether to entertain a no evidence motion: Brar v. British Columbia Veterinary Medical Assn. (No. 16) , 2010 BCHRT 182 at para. 55. To decide whether to entertain a no evidence motion, the Tribunal will consider the impact on the hearing process, the impact on party and Tribunal resources, and fairness to the parties.

[44] No evidence motions are not a common part of the Tribunal’s complaint resolution process, in my view, for good reason. In most cases, the just and efficient resolution of the complaint can best be achieved by completing a hearing, rather than stopping part way to evaluate the merits of the complaint. Where a no evidence motion is allowed to proceed, there is no guarantee that the motion will be successful, or that resources will be saved by not having to complete a full hearing. Further, depending on the context, and particularly where a complainant is self-represented, there may be risk of unfairness in the process to allow a no evidence motion to proceed.

[45] For example, one common fairness issue that arises in relation to no evidence motions has to do with the ability of a complainant to prove their case through respondent witnesses. Frequently, in human rights cases, people aligned in interest to a respondent may possess specific evidence that a complainant may wish to rely on as evidence in support of their own complaint. While it is true that a complainant is free to call a person adverse in interest as their own witness, the just and timely resolution of complaints before the Tribunal often simply involves parties calling witnesses who are aligned in interest, and only calling witnesses who are adverse in interest if the opposing party has not listed the particular witnesses on its own witness list. When a no evidence motion is filed, hearing fairness may be impacted where a complainant was reasonably expecting to be able to question respondent witnesses in order to elicit evidence in support of their complaint.

[46] With the above considerations in mind, to ensure fairness to X in the present case, I allowed him an opportunity to call any of the witnesses on the Ministry’s witness list before closing his case. X declined to call any additional witnesses. Additionally, the Ministry was transparent and proactive in advising X and the Tribunal at the outset of the hearing, that it was considering filing a no evidence motion at the close of X ‘s case. That allowed X enough notice to be sure he was able to submit any documentary evidence he believed was necessary to support his complaint.

[47] Ultimately, I have decided it is appropriate and fair in the present case to entertain the no evidence motion.

2. Test for no evidence motion

[48] When considering a no evidence motion, the Tribunal considers whether there is some reasonable basis in the evidence on which a conclusion in the complainant’s favour could be reached: Gerin v. I.M.P. Group Ltd. (1994), 1994 CanLII 18459 (NS HRC), 24 C.H.R.R. D/449 (N.S. Bd. Inq.) [ Gerin ] at para. 23-24. This test does not require a full assessment of the evidence, and where there are discrepancies, the Tribunal typically considers the evidence in a manner that is most favourable to the complainant: McLash v. School District #62 (Sooke) and others (No. 2) , 2006 BCHRT 157, at para. 35.

[49] When assessing the “reasonable basis” element of the test, there is only a limited opportunity to weigh and assess the credibility and reliability of evidence, and the Tribunal will generally not do so unless clearly convinced, without deep reflection and analysis, that the evidence is untrustworthy: Gerin at para 23. When engaging in limited weighing and assessment, the Tribunal will consider whether the evidence has an “air of reality” to it, such that if left uncontradicted, it would satisfy a reasonable person: F v. B.C. (Ministry of Children and Family Development) , 2009 BCHRT 122 [ F v. BC ], at para 79. Another way of explaining this is that the Tribunal will consider whether the evidence “meet[s] a certain standard” and is “capable of being relied on”: F v. BC , citing Filgueira v. Garfield Container Transport Inc. (No. 4) , (2005) CHRT 32, at para 17. Finally, in cases where evidence is circumstantial (meaning, it does not directly prove a fact in issue but requires a decision-maker to draw an inference), the Tribunal will consider whether the evidence is “reasonably capable of bridging the inferential gap between the evidence proffered and the element to be proved”: Pardo v. School District No. 43 (Coquitlam) , 2008 BCHRT 129, at para.9, citing Maughan v. UBC , 2008 BCSC 14, at paras. 20-21.

[50] I will apply the above legal framework to my analysis of the no evidence motion before me. I will consider whether the evidence presented in this complaint to date is reasonably capable of supporting a finding that the Ministry discriminated against X in the area of services, or retaliated against him in relation to filing (or indicating he was going to file) a human rights complaint.

[51] In order to apply this framework to the evidence that has been adduced in this complaint so far, I must consider the Ministry’s arguments about the impact of Provincial Court decisions and orders on the Tribunal’s consideration of discrimination complaints in the child-protection context. I will begin by considering that issue, and then I will move on to consider the specific evidence in light of the tests for discrimination and retaliation.

B. Legal Principles Governing the Impact of the Provincial Court Decisions and Orders

[52] In its submissions, the Ministry frames its argument in two ways. First, it argues that the Tribunal does not have the jurisdiction to review decisions made by the BC Provincial Court in relation to custody and access, and that the Tribunal only retains jurisdiction over matters which are “separate and apart from matters that have been determined by the courts”. Second, it argues that the Tribunal ought to decline to exercise its jurisdiction to “revisit matters that have already been determined by the Provincial Court”. These are different arguments, with different legal implications, and the Ministry appears to blend these arguments together as one argument pertaining to the Tribunal’s jurisdiction.

[53] To the extent that the Ministry has framed the issues as relating to the Tribunal’s “jurisdiction”, I do not agree that this is accurate. Nor is it a helpful way to consider the issues raised when a discrimination complaint arises in the child-protection context where the Provincial Court has made relevant decisions and/or orders.

[54] As I explain below, there is no question that the Tribunal has jurisdiction over complaints of discrimination arising in the child-protection context, including where the Provincial Court has made relevant decisions or orders under the CFCSA . Although the Tribunal cannot review Provincial Court decisions or orders themselves, the Tribunal can assess claims of discrimination arising from the same underlying factual matrix. That a claim of discrimination arises in the child-protection context does not change the Tribunal’s jurisdiction, or its approach to considering discrimination claims where other adjudicative bodies have made relevant legal and factual findings. Concerns about the impact of Provincial Court orders and decisions may be addressed by raising with the Tribunal the principle of finality in decision-making, including any relevant legal principles, such as issue estoppel, res judicata , collateral attack, and abuse of process.

1. Discrimination Complaints in Child-Protection Context

[55] Often, when a discrimination complaint involving child-protection matters under the CFCSA comes before the Tribunal, there will be relevant Provincial Court decisions and orders arising from the same set of underlying facts. The Ministry says these situations raise jurisdictional issues, which necessarily limit the scope of what the Tribunal can consider.

[56] I agree with the Ministry’s submissions in part. The Tribunal does not sit in appeal of Provincial Court decisions about child protection. The Tribunal is a creature of statute, and the Code does not bestow any authority to apply the provisions of the CFCSA to determine whether a child is in need of protection or ought to be removed or returned to a parent’s care. The Tribunal cannot review Provincial Court decisions or orders to determine whether they were right or wrong, or whether the process under which they were made was fair or unfair; it is the role of the Superior Courts to consider such matters: RR v. Vancouver Aboriginal Child and Family Services Society (No. 6) , 2022 BCHRT 116 [ RR v. VACFSS ] at para. 290, overturned but not on this point in 2024 BCSC 97; and KW v. BC Ministry of Children and Family Development (No. 2) , 2021 BCHRT 43 [ KW v. MCFD ] at para. 115. However, this does not mean that the Tribunal lacks jurisdiction over the subject matter of a human rights complaint where it arises from the same factual context as a Provincial Court decision or order.

[57] In the present case, a helpful starting point for considering the Ministry’s arguments is that the legal functions and jurisdictions of the Tribunal and the Provincial Court are distinct. Within these distinct functions and jurisdictions, however, the two decision-making bodies may have occasion to exercise their decision-making authority in the context of the same set of facts: Vancouver Aboriginal Child and Family Services Society v R.R , 2024 BCSC 97 [ VACFSS ] at para. 152.

[58] In VACFSS , the Court held that Tribunal has jurisdiction to consider a complaint of discrimination in the provision of services under the CFCSA : at paras 94 and 102. In fact, the Court expressly recognized that the Provincial Court lacks the jurisdiction to adjudicate complaints alleging a breach of the Code : VACFSS at para 96 citing Honda Canada Inc. v. Keays , 2008 SCC 39 at paras. 63-64. Further, the Tribunal is not deprived of jurisdiction in cases where there has been a court proceeding in relation to child-protection services: VACFSS at para. 98.

[59] In cases where there are allegations of discrimination that arise from the same factual context that has been considered by the Provincial Court, it is not accurate to say that the Tribunal lacks the jurisdiction to consider those allegations or that it ought to decline its jurisdiction to consider those allegations. Rather, as it does in all cases where a party relies on the fact that another adjudicative body has made relevant, or potentially relevant, decisions arising from the same factual matrix, the Tribunal approaches the analysis of the discrimination complaint in light of the principle of finality in decision making. That often involves parties making submissions about whether and how doctrines such as res judicata , issue estoppel, collateral attack, or abuse of process may apply in relation to the legal and factual findings which have been made by other adjudicative bodies. The proper focus for the Tribunal is not on whether it has or ought to decline to exercise its jurisdiction over a complaint, rather it is on whether and to what extent these foundational legal principles may apply to preclude parties from relitigating matters in multiple fora.

2. Finality Doctrines

[60] The Supreme Court of Canada has repeatedly emphasised the importance of finality in legal proceedings, including through the following observation by Justice Abella in British Columbia (Workers’ Compensation Board) v. Figliola , 2011 SCC 52, [ Figliola ] at para. 1:

Litigants hope to have their legal issues resolved as equitably and expeditiously as possible by an authoritative adjudicator. Subject only to rights of review or appeal, they expect, in the interests of fairness, to be able to rely on the outcome as final and binding. What they do not expect is to have those same issues relitigated by a different adjudicator in a different forum at the request of a losing party seeking a different result. On the other hand, it may sometimes be the case that justice demands fresh litigation.

[61] Courts and tribunals have long relied on finality doctrines such as res judicata , issue estoppel, collateral attack, and abuse of process to prevent the injury to the administration of justice that occurs when issues that have been decided in one adjudicative forum are relitigated in another adjudicative forum. These doctrines have an important role to play in Tribunal proceedings involving allegations of discrimination in the child-protection context.

[62] In exercising its jurisdiction over child-protection issues under the CFCSA , the Provincial Court frequently makes findings in relation to child-protection issues; for example, in relation to the actions of social workers or other actors under the CFCSA in removing children from a parent’s care, setting access and custody restrictions or conditions, or deciding whether and when a child can be returned to a parent or other individual. In discrimination complaints that come before the Tribunal in the child-protection context, the Tribunal is sometimes asked to look at issues in the human rights framework which relate to these types of issues; for example, allegations that a social worker removed a child from a parent’s care due to unfounded stereotypical views the social worker held about the parent’s race, religion, gender identity, or other protected characteristic. However, the Provincial Court may have made factual or legal findings which may be relevant to, or even determinative of, questions that arise in the discrimination complaint. In those situations, there is a potential for injury to the repute of the justice system if the Tribunal allows relitigation of those legal or factual findings.

[63] When it remitted the complaint back to the Tribunal for consideration, the Court in VACFSS expressed that it is appropriate to consider whether the Tribunal ought to “decline jurisdiction” in cases where the Tribunal has jurisdiction over a complaint of discrimination, and the Provincial Court has made decisions and orders in relation to the same set of facts: VACFSS at paras. 97 and 105. The Court suggested this could be done through consideration of s. 27(1)(f) of the Code , which contemplates the Tribunal exercising its discretion to dismiss a complaint in cases where “the substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding”.

[64] In the present case, the Ministry has not made any arguments about the application of s. 27(1)(f) of the Code , and I do not find it helpful to consider that provision without submissions. Further, I question the applicability of that provision to the context of this complaint where, as the Court in VACFSS appears to have said, the Provincial Court does not have concurrent jurisdiction to consider a complaint of discrimination under the Code : VACFSS at para. 96. It is difficult to understand how the Tribunal could conclude the impact of alleged discrimination was “appropriately dealt with” by an adjudicative body without jurisdiction over human rights issues: Figliola at para 37.

[65] In the present case, given that there are several Provincial Court decisions and orders which arise from the same factual matrix as the discrimination complaint, I find it is appropriate to consider X’s evidence and arguments in line with the Tribunal’s typical approach to considering the scope of its review of discrimination complaints when there are relevant decisions of other adjudicative bodies. I will consider the legal and factual findings in the Provincial Court decisions and orders, and I will determine whether any of the finality doctrines apply.

[66] X’s submissions indicate that he interpreted the Ministry’s submissions about the Tribunal’s jurisdiction as an argument that issue estoppel applies to his complaint. He has made extensive submissions on the question of whether he should be estopped from bringing his complaint before the Tribunal. The Ministry had an opportunity to respond to X’s submissions on this point, but ultimately took the position that the issue was not one of issue estoppel, but one of jurisdiction. Ultimately I have decided that both issue estoppel and abuse of process apply to parts of X’s complaint, and to the extent these doctrines apply, X is precluded from relitigating those parts of his complaint before this Tribunal.

[67] Although neither party specifically referenced abuse of process, in my view, both the Ministry’s submissions about jurisdiction, and X’s submissions about issue estoppel, address the fundamental principle underlying abuse of process, that being, the protection of the fairness and integrity of the administration of justice by preventing needless multiplicity of proceedings: Figliola at para 31.

3. Conclusion on the Legal Principles Governing the Impact of the Provincial Court Decisions and Orders

[68] In the child protection context, where the state has taken action under the CFCSA in relation to children, parents, and other involved persons, the Provincial Court and the Tribunal have different jurisdictions over different issues. The Provincial Court has the jurisdiction to consider the protection issues themselves; for example, whether a child was in need of protection when they were removed, or whether a parent or other individual should have access to or custody of a child. The Tribunal cannot review Provincial Court decisions or orders in the child-protection context to determine whether those decisions or orders are legally or factually correct or made in a fair process. The Tribunal is a creature of statute, whose mandate is expressly limited to considering complaints of discrimination under the Code .

[69] In light of the Tribunal’s legislative mandate, there is no question that the Tribunal has the jurisdiction to consider allegations of discrimination in the child-protection context. Further, the fact that Provincial Court proceedings, decisions, or orders exist in relation to the same set of facts that give rise to a complaint of discrimination that is properly before the Tribunal, does not deprive the Tribunal of jurisdiction over the complaint of discrimination. In such cases, in applying the discrimination framework to the facts, the party seeking to rely on Court orders or decisions may rely on a finality doctrine, such as collateral attack, res judicata , issue estoppel, and/or abuse of process, to preclude relitigation of matters already decided by the Provincial Court.

[70] I now move on to consider the evidence adduced in the hearing so far, in light of the factual and legal findings in the relevant Provincial Court decisions and orders. I will determine if any part of X’s evidence cannot reasonably be relied on to support a finding in his favour by reason of the application of a finality doctrine. I will then move on to consider the remainder of X’s evidence to determine whether it can reasonably support a finding in his favour.

C. X’s Evidence in Light of the Provincial Court Orders and Decisions

1. X’s Evidence Generally

[71] X testified over seven days. Over that time, he provided extensive evidence about his background and early years in Australia, as well as about time he spent living in Montreal. He testified about the website that social workers discovered that identified him as a pedophile, as well as the child pornography charges that were laid against him in New York. He also testified about the two restraining orders preventing him from having contact with a teenaged boy in Montreal. X’s position at the hearing, and in his submissions, is that this historical information is important context which should inform the Tribunal’s assessment of social worker conduct later in X’s life, in relation to their concerns about his risk to Y’s children and his daughter.

[72] In addition to this historical information, X testified about his interactions with social workers in relation to Y’s children, and later, in relation to his daughter. He also testified about the details of his relationship with Y over the years.

[73] In his submissions, X says his evidence demonstrates that social workers engaged in “acts and/or omissions” which adversely impacted him, including by causing harm to his mental health. He further says social workers’ acts and omissions were not based on “credibly-based or objective evidence”, but instead were based on stereotypical views of his sex and sexual orientation, and mistaken beliefs about his mental health. X says that as a result, there was no “evidence” or “objective basis” to support the Ministry’s position that he posed a risk to Y’s children, or to his daughter.

[74] The vast majority of X’s arguments in relation to what the Tribunal should take from the evidence, have to do with the question of whether X was properly characterized by social workers and judges to be a risk to Y’s sons and to his daughter. The issue of whether X ever posed a risk to children has been litigated extensively before the Provincial Court.

[75] As outlined above, from 2018 to 2022, the Provincial Court issued numerous orders and decisions in relation to X, Y, Y’s sons, and X and Y’s daughter. At a high level, the Court made express findings in relation to whether Y’s sons were in need of protection, whether X posed a risk to Y’s sons, whether and to what extent X could have contact with Y’s sons or his own daughter, and whether X posed a risk to his daughter.

[76] In my view, for the most part, X’s complaint before this Tribunal is an attempt to relitigate matters which have already been decided by the Provincial Court. As I explain below, to the extent that X’s evidence and argument relates to matters which have already been decided by the Provincial Court, I find the doctrines of issue estoppel and abuse of process apply to preclude X from relitigating these matters before the Tribunal.

[77] X’s submissions are lengthy, and make numerous arguments about why his complaint can and should be heard at the Tribunal. I have been able to discern several categories of arguments about the evidence in this case to date, and why X says it demonstrates discrimination. I have not attempted in this decision to reference and respond to every discrete statement X makes in his submissions; rather, I have addressed X’s key arguments about the evidence.

[78] I begin with consideration of X’s evidence and arguments about the Ministry’s initial involvement with him and Y in 2018, and how he says the Ministry’s initial child-protection concerns were based on a discriminatory view of his sex and sexual orientation.

2. X’s Evidence About the Ministry’s Child-Protection Concerns in 2018, and Ministry Action and Court Decisions and Orders up to August 2019

[79] X argues the Ministry was patently wrong, and did not meet the requirements of the CFCSA when it initially determined that he posed a risk to Y’s children. Citing various British Columbia case law, he says that the requirement that the children were “likely” to be harmed under the CFCSA was not met, and social worker’s had no reasonable basis in 2018 on which to remove the children from Y’s care and prevent X from seeing them. For about the first twenty pages of his submissions (and then frequently throughout the remainder of his submissions), X discusses each of the concerns he says the social workers considered in coming to their conclusion about his risk, namely:

  • Y’s initial stated concerns about him in June 2018 (that X emphasises she later recanted),
  • the New York child pornography charges,
  • the Quebec restraining orders,
  • the website which describes X as a pedophile,
  • X’s romantic relationship with a man who was convicted of child pornography charges in the United States and registered as a sex offender there,
  • X’s comments on an online forum called “Boychat”, and
  • X’s other interactions with teenaged boys while he was living in Montreal.

[80] Then X goes on to highlight all of the evidence he led at the hearing before the Tribunal, which, he argues, explains why each concern was “baseless”.

[81] X argues that in relying on the above concerns as a basis to assess risk, the social workers were acting on “mere conjecture, suspicion, a hunch or intuition”. He says that the case law states that social workers must have evidence of a “real possibility” of “future harm” before they can take action, and in his case, they did not. X adamantly denies being a pedophile but argues in his submissions that “[e]ven if a person is a ‘pedophile’, it does not establish a ‘likelihood’ to sexually offend in the future.” X argues that as a result of social workers not having any legitimate child-protection concerns, their concern that Y’s children were at risk of sexual abuse or exploitation from him was “made via anti-LGBTQ2S+ prejudice – namely, discriminatory tropes and prejudices that LGBTQ2S+ persons are inherently pedophiles”. He testified at the hearing that “the issue all along was that I was gay, because I have no idea what else it could have been”.

[82] All of X’s evidence and arguments about social workers’ child-protection concerns in 2018, the removal of Y’s children, and the assessment that X was a risk to the children, relate to issues which have been expressly and finally decided by the Provincial Court.

a. Provincial Court Findings

[83] In the August 2019 Protection Hearing Decision, the Court made the following relevant findings:

a) Y’s two sons were in need of protection when they were removed from her care in September 2018.

b) The evidence supporting that Y’s sons were in need of protection in September 2018 included:

a. Y’s stated concerns about X to the Ministry on June 1, 2018, which were “numerous, detailed and deeply felt by [Y]”,

b. information revealed after June 1, including: New York child pornography charges against X, the 2009 restraining orders against him in Quebec, the 2008 conviction of his former boyfriend for possessing child pornography and X’s online comments many years ago on “Boychat”; and

c. the fact that despite a PIO being in place, X and Y were prepared to breach the PIO, and Y “took steps to avoid detection when the police arrived”.

c) The Ministry was well founded in seeking the 2018 PIO preventing X from having contact with Y’s children.

d) At the time of the protection hearing, Y’s two sons were still in need of protection.

e) Y had shown herself to have a “blind spot” in relation to X.

f) The Court held that “each piece of evidence that is suggestive of [X] being a paedophile has significant limitations. However, collectively, and when joined with the mother’s expressed concerns when living with [X] I am of the view that the facts support there being a real possibility of the children being sexually abused or sexually exploited ”. [emphasis added]

[84] Based on my review of the above decision, I find X provided the Provincial Court with the same evidence, and made essentially the same arguments, as he now makes before this Tribunal. The Provincial Court firmly rejected his arguments that he was not a risk to the children and ought to have been granted access to them. In fact, the Court found that the children were in need of protection when the Ministry removed them, and that the children remained in need of protection because there was a “real possibility” that X would sexually abuse or exploit them, and that Y was (at the time) unwilling or unable to protect them.

[85] Beyond his arguments about the Ministry’s original concerns and assessment of risk, X also argues that the Ministry’s application for a PIO in 2018 was an example of a “calculated attack on a vulnerable minority [X]; and wholly discriminatory against [X] for his sexual orientation.” He argues the social worker who applied for the PIO “plotted” against him by applying for the order at a time when, in his view, she “knew the police would declare there were no reasonable grounds to believe [X] had done anything wrong”. He argues that because the order was granted without prejudice, he was “denied a voice” and denied the right to lead evidence to rebut the necessity for the PIO. Again, this issue was considered and decided by the Provincial Court in the August 2019 Protection Decision, after X had a full opportunity to explain why, in his view, the Ministry social worker had no basis for the order in the first place. As I have set out above, the Court found the Ministry had been “well founded” in seeking the 2018 PIO preventing X from having contact with Y’s children.

b. Issue Estoppel and Abuse of Process

[86] X had the opportunity, over eight days at the Provincial Court, to have the issues of whether and how he was a risk to Y’s children, and whether the Ministry was right to seek the 2018 PIO, adjudicated. X responds to the Ministry’s arguments about why the Tribunal should not allow him to bring these issues before the Tribunal, by arguing that the Ministry’s argument is “inherently a claim of ‘issue estoppel’”.

[87] The three requirements, often referred to as “preconditions”, of issue estoppel, are that the parties, or their privies, were the same in both proceedings; the same question has been decided; and the earlier decision was final: Figliola at para. 27. If these three preconditions are met, then a decision-maker must nevertheless determine whether it is in the interests of justice that issue estoppel should apply: Danyluk v. Ainsworth Technologies Inc. , 2001 SCC 44 [ Danyluk ], at paras. 67 and 80.

[88] X argues he was not a full party at the August 2019 protection hearing, and that he was only given “limited” party status. I interpret X’s argument as disputing that the first precondition for estoppel was met in this case. X further argues that none of the Provincial Court decisions, including the August 2019 Protection Hearing Decision, are final decisions, and that the Provincial Court never decided the explicit issues he now brings before this Tribunal. Finally, he argues that because the Ministry engaged in misconduct in the August 2019 protection hearing, it would “manifestly work a gross injustice” if the Tribunal were to estop his complaint, in whole or in part.

[89] On the question of whether the parties were the same in both proceedings, I disagree with X that because the Court only gave him what he characterizes as “limited” party status, he was not effectively a party for the purposes of the August 2019 protection hearing. The rules governing issue estoppel should not be mechanically applied ( Danyluk at para. 33), and I find that in substance, if not also in form, X was a party in the August 2019 protection hearing. Even though X was not the father of Y’s children, the Court permitted X to participate in the hearing and be represented by counsel because the Court found he qualified as a “parent” for the purposes of the CFCSA . Further, X was provided a full opportunity to make submissions and provide the Court with evidence, and the Court allowed him to bring his own application for access to Y’s children. Finally, the Court’s decision made findings specifically about X, and the final order substantively affected him by preventing him from having any access to Y’s children. The Ministry was a party at the protection hearing, and so was Y. The Ministry is again a party in the proceeding before this Tribunal and so is X. X does not argue that the first precondition to issue estoppel is not met because Y is not a party in this human rights complaint. In any event, with respect to the factual findings at issue in the present case, the Ministry and X are the key parties in both proceedings. For the purposes of the application of issue estoppel, I find the parties are the same in both proceedings.

[90] With respect to X’s arguments about the issues he says the Provincial Court never explicitly ruled on, I disagree with X’s characterization of the issues. Through his arguments about the August 2019 Protection Hearing Decision, X tries to parse the general finding of the Court that the children were in need of protection, into smaller issues, such as a specific finding that the Ministry was wrong to rely on the website that referred to him as a pedophile as a legitimate cause for concern. I disagree with each of X’s arguments in this regard. The Court had all of the evidence about the Ministry’s concerns before it, and made a decision which acknowledged that even if each piece of evidence the Ministry relied on may have had “significant limitations”, “collectively” and when joined with Y’s expressed concerns when she was living with X, there was a real possibility that Y’s sons could be sexually abused or exploited. That the Court did not make specific findings using the specific words X now uses to characterize the issues, does not change the Court’s findings or mean that the Court did not consider the factual issues X now brings before this Tribunal. In my view, X’s arguments about the issues that he says the Court did and did not decide, reflect a distorted and inaccurate expression of what the Court actually found. Ultimately, I find the second precondition of issues estoppel is met here.

[91] Finally, on the issue of finality, X sets out a number of reasons he says the various decisions are not final, including an argument about the summary nature of presentation hearings under the CFCSA , and an argument that because the Ministry closed its administrative file on him before the merits of his appeal of the August 2019 Protection Hearing Decision could be considered, the decision itself cannot be considered “final”.

[92] I disagree with X’s arguments about the finality of the August 2019 Protection Hearing Decision. That decision conclusively determined questions of fact and law. It came at the end of a full hearing, where parties were able to provide evidence and argument, and X’s arguments about the summary nature of presentation hearings do not apply. Further, there was an appeal available to X after the hearing, and X availed himself of that appeal. The BC Supreme Court appeal judge considered X’s arguments (including that his appeal on the merits should be heard as a matter of justice and fairness to him) and ultimately rejected them, finding that the appeal had been rendered moot.

[93] Finally, X argues that it would “manifestly work a gross injustice” if the Tribunal were to prevent him from bringing his full complaint before the Tribunal. In support, X variously argues that a social worker “intentionally misled” the Court in relation to the issue of when Y recanted her stated concerns about X, and that in relation to the 2018 PIO, a social worker “swore to false claims”, and “referred – impermissibly and unlawfully – to the withdrawn charge; and to [the New York District Attorney Lawyer’s] comments, which also included an untrue, hearsay, unreliable statement”. X accuses the Ministry of engaging in “actual perjury; gross misrepresentations; and fabrications of evidence” during the August 2019 protection hearing, and says that because of the Ministry’s deception, the Court decisions are wrong and not justified.

[94] As I have already explained, the Tribunal does not sit in appeal of the Provincial Court, and I cannot consider whether the August 2019 Protection Hearing Decision was wrong or reached after a fair process. The Tribunal is not the proper forum to argue that witnesses perjured themselves in another process or to otherwise challenge the Court’s findings. The proper avenue for consideration of those issues is through the Superior Courts, and as I have noted already, X did appeal the August 2019 Protection Hearing Decision, and the BC Supreme Court dismissed his appeal.

[95] I have reviewed all of X’s evidence and, in my view, X has not raised any issues either through his evidence or through his submissions, which persuade me that there is some overarching consideration or some fundamental injustice that would justify the Tribunal in allowing relitigation of the issues identified above which have already been determined by the Provincial Court. Even if I were to consider X’s evidence and arguments afresh in this complaint, as I describe in detail below, the conclusions X asks the Tribunal to draw from his evidence lack any air of reality.

[96] If I am wrong in my analysis of issue estoppel in relation to the findings in the August 2019 Protection Hearing Decision, I would nevertheless find that it would amount to an abuse of the Tribunal’s process, and would undermine the repute of the justice system, if X were permitted to have the Tribunal hear and decide the above issues of fact that have already been determined by the Court.

[97] In Toronto (City) v. C.U.P.E., Local 79 , 2003 SCC 63 [ Toronto City ], the Supreme Court of Canada described abuse of process as follows (at paras. 42 and 51):

42 The attraction of the doctrine of abuse of process is that it is unencumbered by the specific requirements of res judicata while offering the discretion to prevent relitigation, essentially for the purpose of preserving the integrity of the court’s process .

…

51 [T]he doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.

[98] Unlike issue estoppel, abuse of process does not require application of a formalized test in which a party has to demonstrate a decision is final, or, that the parties are the same. The doctrine of abuse of process is aimed broadly at protection of the fairness and integrity of the administration of justice, by preventing needless multiplicity of proceedings: Figliola at para 31. In cases like the present, where two adjudicative for a are so significantly different in function and purpose, it can be difficult to articulate the application of the principle of finality by using the tests for issue estoppel, cause of action estoppel, or collateral attack. Nevertheless, where it is clear that issues that a party brings before the Tribunal have already been considered and decided in another forum, sometimes, as in the present case, extensively, the doctrine of abuse of process is triggered.

[99] This case raises a clear example of abuse of process. In order to find in X’s favour in relation to the issues surrounding the Ministry’s initial concerns about him in 2018, and the ultimate decision to prevent him from having contact with Y’s sons, the Tribunal would have to allow X to relitigate the same factual issues that were litigated before the Court, and come to a completely different conclusion about the evidence. Namely, the Tribunal would have to re-evaluate all the evidence that was before the Provincial Court and agree with X’s contention that the Ministry had an insufficient basis to be concerned about his sexual risk to the children. As the Court in Toronto City explained, in such a case, the inconsistency of the final result would undermine the credibility of both the Tribunal and Provincial Court processes, and diminish their authority, credibility, and aim of finality. Further, if the Tribunal were to come to the same conclusions as the Court, then significant judicial and party resources would be wasted on relitigation.

c. Impact of Findings of Issue Estoppel and Abuse of Process on No Evidence Motion

[100] For the above reasons, I find X is estopped from relitigating in his human rights complaint, issues determined by the Provincial Court. In the alternative, I find X is precluded from relitigating these issues based on the doctrine of abuse of process. In either case, the Tribunal will not reconsider X’s evidence and arguments about the matters which I have identified above as having already been decided by the Provincial Court.

[101] For the purpose of this no evidence motion, and in the context of the Ministry’s child protection concerns in 2018, and Ministry conduct up to August 2019, the Court’s key findings are that:

a) Y’s sons were in need of protection when they were removed from her care in September 2018 and at the time of the protection hearing,

b) the Ministry was well-founded in seeking the PIO, and

c) there was a real possibility of the children being sexually abused or exploited by X.

[102] With respect to his discrimination complaint, X argues that because the Ministry had no basis to consider him a risk to the children, that must give rise to an inference of discrimination on the basis of his sex and sexual orientation. This basis for supporting an inference, hinges on the Tribunal reaching a different conclusion than the Provincial Court did, and I have found that X may not relitigate the Court’s findings.

[103] With respect to his retaliation complaint, X argues that the Ministry’s conduct in 2018 and 2019 in “ignoring contrary evidence…which did, or could, establish the [Ministry’s] claims of him to be false”, was done, not in legitimate pursuit of child-protection concerns, but to undermine his discrimination complaint before the Tribunal, or to otherwise “thwart” his human rights complaint or “oust the Tribunal’s jurisdiction”. In essence, he says, the Tribunal should infer the Ministry retaliated against him because he was never a risk to the children, but the Ministry had to fabricate risk in order to undermine his human rights complaint. Again, the basis X provides as supporting the inference of retaliation depends on the Tribunal reaching a different conclusion than the Provincial Court did, and I have found that X may not relitigate the Court’s findings.

[104] Therefore, for the purposes of this no evidence motion, I find X’s evidence about the above-noted issues relating to the Ministry’s child protection concerns in 2018, and Ministry conduct up to August 2019, is not reasonably capable of supporting a finding that the Ministry discriminated against X in the area of services, or retaliated against him.

[105] I next move on to consider X’s evidence about events that took place after the August 2019 Protection Hearing Decision, and in particular, the Ministry’s concerns relating to X’s alcohol use and mental health, and his risk to his daughter.

3. X’s Evidence About the Ministry’s Involvement with him Post August-2019, Including the Ministry’s Focus on Alcohol Use and Mental Health as Child-ProtectionConcerns

[106] At the hearing, X provided evidence of the Ministry’s ongoing reliance on concerns about his sexual risk to the children to justify preventing his access to Y’s children after August 2019, and to justify actions they took after 2021 in relation to his daughter. X also provided evidence of the Ministry’s concerns and conduct in relation to his alcohol use and mental health issues after August 2019.

[107] X argues that following the August 2, 2019, order made in the August 2019 Protection Hearing Decision, “no inference can be made that any findings of [X] remained applicable after the term of the order itself – which in this case, was zero days.”. Citing VACFSS , at para. 124, X says that “the situation could have changed[…] as soon as the next day.” He then goes on to make arguments about why, post August 2019, the Ministry had no basis to consider he was a risk to the children. However, although he relies on the finding in VACFSS that after a Provincial Court decision is made, the situation that led to the decision may have changed, much of his evidence and argument is exactly the same as in relation to why he says the Ministry had no basis to consider he was a risk to the children before August 2019. For example, X points to various communications between himself and the Ministry after August 2019 where he says the Ministry indicates it still viewed him as a sexual risk to children based on its earlier assessment of the above listed “concerns” [3] . His evidence and arguments about why the Ministry should never have had those concerns is the same in the post- August 2019 period as it was in the pre-August 2019 period.

[108] In addition to that category of evidence and arguments though (which I have found X is not permitted to relitigate here), X does raise additional arguments. For example, X points to his evidence about four psychological reports that he commissioned, without the participation of the Ministry. He says that the reports should have been considered by the Ministry to conclusively determine that X did not pose a risk of sexual abuse or exploitation to children. He says instead, the Ministry relied on lay opinions of Ministry staff that he had been “grooming” Y’s sons, and was a “known predator”, and therefore still posed a risk. X argues further that when the Ministry asked for a fifth expert psychological report, this demonstrated the Ministry’s discrimination against him because the Ministry “admitted its lay opinions of [X] were subjective; admits it had no valid basis to assert “sexual risk” of him against expert opinion; and thus admits discriminating on the basis of his sexual orientation.”

[109] X also testified about his relationship with Y, and argues that his evidence demonstrates that Y was a liar, and that her concerns about him should never have been accepted by the Ministry as a basis to consider that he was a risk to her sons, or, later, to his daughter. X testified that it was Y, and not X, who was emotionally, physically, and “administratively”, abusive in the relationship. Further, he testified that the Ministry tried to “coerce” Y to accuse X of domestic violence, which Y objected strongly to. It is not clear how X says this alleged conduct is related to his protected characteristics, but it appears X is saying that because of the Ministry social workers’ discriminatory views of him based on his sex and sexual orientation, the Ministry discriminated against him by “inciting violence against him by coercing [Y] to make false [intimate partner violence] allegations about him”.

[110] In his evidence, X also denied that the concerns that Y raised about him being a sexual risk to their daughter were legitimate. He says that Y’s allegation about inappropriate comments he made about a television actor who was playing a teenager were not inappropriate, because in real life the actor was not a minor. He further says that a comment about getting the phone number of one of Y’s son’s friends was made as a joke, and Y was aware of that. Finally, he says that Y’s comments about the “creepy” way he wiped their daughters private parts when he changed her was completely fabricated, and he was just trying to be a competent parent and keep his daughter healthy and clean. Ultimately, X’s evidence was that Y never had any legitimate concerns that he was a sexual risk to their daughter until he threatened to break up with her, and then she threatened to “play the predator card so you won’t have [their daughter].”

[111] In addition to the arguments that relate to X’s sexual risk to children, X says that his evidence demonstrates that after August 2019, the Ministry discriminated against him on the basis of perceived mental disability, when it stated that his alcohol use and repeated suicide attempts and suicidal ideation amounted to child-protection concerns. In his evidence, X adamantly denied having a significant alcohol use disorder, or having significant issues with suicide attempts or suicidal ideation. He further adduced medical records of various hospital admissions in support of his allegation that the Ministry fabricated evidence about his mental health and suicide attempts. X also says that the Ministry wrongfully stated that he had other non-existent mental health conditions, for example, borderline and narcissistic traits, in order to fabricate child-protection concerns. Ultimately, he argues that the Ministry discriminated against him by “purporting he had mental disabilities – while fabricating the purported disabilities”.

[112] With respect to all of his above arguments about the Ministry’s concerns and conduct after August 2019, I find once again that X is attempting to litigate issues before the Tribunal which have already been litigated extensively before the Provincial Court, or which are properly the subject of an appeal to the Superior Courts.

a. Provincial Court Findings

[113] As set out above, in the June 2022 Protection Order Decision, the Provincial Court, among other things, granted a new protection order which prevented X from having any contact with Y’s sons, declined to set aside the 2021 Protection Order involving X’s daughter due to the “seriousness of the concern of sexual abuse”, but amended the order to allow X supervised access to his daughter. The Court made the following relevant findings:

a) Between July 2018 and April 2020, X was hospitalized numerous times, and attempted suicide several times. Because X drank alcohol to the point of unconsciousness, he was not a “reliable historian about the seriousness of those attempts”.

b) On more than one occasion X physically assaulted Y. On one occasion X struck Y in the face and gave her a bloody nose. On another occasion when Y was eight months pregnant, X either pushed her or used a “karate-like chopping motion” which caused an impact to her which “caused her to move involuntarily backwards” toward a flight of stairs and caused Y alarm.

c) X minimized or excused his drinking during 2021, and X’s recovery was not stable during this time and “through November 2021”.

d) The Court rejected X’s claim that Y’s complaints to the Ministry and to the police were not brought sincerely, but with the purpose of hurting X and “getting the upper hand”. With respect to X’s assertion that Y repeatedly falsely complained to police against him with respect to “sexual impropriety or being assaulted by him” because she was taking revenge for him threatening to break up with her, the Court found Y’s contact with police in relation to X “were inspired by fear, not revenge”.

e) X “misperceived or misstated” comments he told the Court Y had made. In particular, the Court did not accept X’s assertion that Y threatened to falsely accuse him of being a sexual predator by stating to him that she would “play the predator card”. The Court found that statement was not made by her.

f) X failed to establish that Y had engaged in family violence and dismissed his application for a protection order against her.

g) Y had established that X engaged in family violence in the nature of physical abuse and psychological coercion that justified a protection order being put in place initially on November 30, 2021.

h) Due to the seriousness of the concern of sexual abuse, the Court was not prepared to remove the 2021 Protection Order entirely.

[114] As set out above, in the September 2022 Presentation Hearing Decision, the Provincial Court made an order, among other things, placing all three children in Y’s care under the supervision of the Ministry and specifying that Y was not permitted to allow X any contact with her sons, and that she was not permitted to allow X any unsupervised access to their daughter without prior approval of the Ministry. The Court explained that the purpose of the hearing was to decide whether the Ministry had established that it had reasonable grounds to believe that the children (Y’s sons and X and Y’s daughter) were in need of protection, and to decide whether the supervision order would be adequate to protect the children. The Court acknowledged that the presentation hearing was a “summary proceeding” which did not allow for presentation of expert reports or cross examination of experts and that the protection hearing would present the opportunity for fulsome consideration of any reports that were admitted. The Court made the following relevant findings:

a) At the time of the Director’s application, and at the time of the hearing, the Director had reasonable grounds to believe that the three involved children were in need of protection for several reasons including:

i. because X had engaged in acts of physical violence against Y, including when Y was eight months pregnant;

ii. because X has a history of extreme alcohol misuse that resulted in mental health breakdowns including suicidal ideation on some occasions, and that led to a large number of hospitalizations; and

iii. because even up to the time of the hearing X had not satisfied the Court that his recovery was stable.

b) The Ministry did not remove any of the children, it placed the children with Y on supervision terms that affected X’s access to the children, and the terms of the supervision were the least disruptive that they could be. In particular X’s daughter has “not been removed from her family, and she continues to spend time with her father [with] the potential for unsupervised access after the parenting capacity assessment with a sexual risk component is completed”, and that was the least disruptive measure available in the circumstances of the case.

[115] Each of the Court’s above findings is an express finding in relation to the evidence and arguments X now asks the Tribunal to consider. Below, I discuss the application of the finality doctrines to X’s evidence and arguments, and then I explain how application of the finality doctrines impacts the no evidence motion.

b. Issue Estoppel and Abuse of Process

[116] First, I address X’s main argument, that the June and September 2022 decisions are not “final” decisions for the purposes of a finding of issue estoppel. He says the only “final” findings of fact about him arise out of a March 31, 2020, decision of the Crime Victim Assistance Program [ Program ], which he entered into evidence at the hearing. X says that because this decision found that it had insufficient evidence to conclude that a “prescribed offense” occurred, the decision should be seen to have “superseded” the Provincial Court findings that the children were at risk of sexual abuse or exploitation. He characterizes the decision’s findings as follows:

As the CVAP Tribunal held, without any objective sexual act, and without any objective basis from which to assert sexual intent (“grooming”), the Respondent’s premise of “grooming” becomes speculative.

[117] In his submissions, X further argues that the March 31 decision “had also made it a legal fact that [X] wasn’t [a sex offender]”.

[118] I have reviewed the Program’s decision and it does not make the findings X says it does. Also, it was a completely separate statutory process, did not make findings of fact, and relied on limited information for the limited purpose of determining whether one of Y’s sons was eligible for benefits. X’s arguments about what this decision held or how it should somehow overrule or “supersede” other Provincial Court decisions has no merit.

[119] Regarding X’s alternative position that neither the June 2022 Protection Order Decision nor the September 2022 Presentation Hearing Decision are final for the purposes of issue estoppel, I disagree. The June 2022 Protection Order under the FLA was made on X’s application to set aside the ex parte 2021 Protection Order, and for a protection order against Y. X was a full party to the proceeding, and had the ability to provide extensive evidence and submissions about the appropriateness of the original protection order. The Court made a final and binding determination of the specific issues before it, including the appropriateness of the original protection order, as well as the appropriateness of a protection order going forward.

[120] Similarly, the September 2022 Presentation Hearing Decision was a final and binding determination of the Provincial Court on the specific issues before it, including that at the time of the Director’s application and at the time of the hearing, the Director had reasonable grounds to believe that the three children were in need of protection. On X’s argument about the “summary” nature of presentation hearings, I note that X was present for the September 2022 presentation hearing, and was permitted to lead evidence and make submissions. Further, in its decision, the Court noted that although at a presentation hearing the Director only needs to establish a “ prima facie ” case and that generally conflicts in evidence “must be resolved in favour of the Director”, the Court specified that it retains discretion to resolve conflicts in the evidence against the Director where “the facts the Director seeks to establish are manifestly wrong or untrue, or unlikely to have occurred”. Thus, the Court was able to consider X’s arguments on those very points: that the Ministry’s evidence and basis for considering him a risk to children was manifestly wrong and untrue. Further, the September 2022 Presentation Hearing Decision appears to be the last word on the issues that were before the Court at the time. The order coming out of that decision was renewed on several occasions, after September 2022, and then appears to have ceased to exist, or at least have become moot, when the Ministry closed its child protection file on X in 2024. In my view, in the specific context of this case, the September 2022 Presentation Hearing Decision was final for the purposes of the consideration of issue estoppel. I pause to note this outcome might not be the same in every case involving presentation hearings under the CFCSA , and the analysis will depend on the specific facts in each case.

[121] With respect to the second precondition of issue estoppel, X does not expressly argue that the issues decided in the above two proceedings are different than the issues he asks the Tribunal to decide in his human rights complaint. However, he does argue that issues pertaining to the requirement that he have supervised access to his daughter should be considered by the Tribunal, because those issues were not decided in the September 2022 Presentation Hearing Decision. X’s basis for this argument is that the supervision order coming out of that proceeding was made against Y, and not himself. I disagree with X’s argument. X was a full party with full participatory rights in the September 2022 proceedings, and the findings in the September 2022 Presentation Hearing Decision are primarily about him, and his level of risk to Y, Y’s sons, and his own daughter. It is clear that in substance, the Court considered the questions of whether, why, and how X should have supervised access to his daughter. That the wording of the order imposed obligations on Y, does not change the substance of the issues that were decided. Ultimately, I find the factual issues decided in the above two Provincial Court decisions are essentially the same as the factual issues X seeks to have the Tribunal decide in this human rights proceeding.

[122] With respect to the mutuality precondition of issue estoppel, again, X does not make arguments about whether the parties in the above two Provincial Court proceedings are the same as the parties in this human rights proceeding. Nevertheless, I must consider whether this precondition is met. With respect to the September 2022 Presentation Hearing Decision, I find that it is. In that proceeding, X was a full party with full participatory rights, and the Ministry was also a full party, opposed in interest to X. As I have indicated above, that Y was also a party to the Provincial Court proceeding does not mean that in substance, the parties are not the same for the purposes of the issue estoppel analysis in this particular case.

[123] However, with respect to the June 2022 Protection Order Decision, I find the analysis of the mutuality precondition of issue estoppel is not met. I was not provided with submissions from the parties about the difference between proceedings under the FLA and CFCSA , but, from my review of the June 2022 Protection Order Decision, including the style of proceeding, I can see that the Court case was between X and Y, and the Ministry does not appear to have been a party to that proceeding. While I note that the Ministry appeared at the hearing, and was represented by counsel, ultimately, it is not clear to me that the parties in the June 2022 Protection Order Decision are the same as the parties now before the Tribunal.

[124] The result of the above analysis is that with respect to the September 2022 Presentation Hearing Decision, the preconditions of issue estoppel are met, but for the June 2022 Protection Order Decision, they are not. However, while recognizing that I have not completed the issue estoppel analysis with respect to either decision, I find that regardless of whether or not issue estoppel applies, it would be an abuse of process to allow X to relitigate factual findings of the Provincial Court in this forum.

[125] X’s evidence about the Ministry’s involvement with him post August-2019, focusses on the Ministry’s assessment of him being a sexual risk to children, and its assessment of his alcohol use and mental health as child protection concerns. He argues his evidence demonstrates that the Ministry had no basis for determining he was a risk to either Y’s sons or his daughter at the time. In order to find in X’s favour in relation to his evidence on these issues, the Tribunal would have to allow X to relitigate the same factual issues that were litigated before the Provincial Court in June and September 2022, and come to completely different conclusions about the evidence. Namely, the Tribunal would have to re-evaluate all the evidence that was before the Provincial Court and agree (among other things) with X’s contention that Y engaged in domestic violence against him and lied to the Ministry and to police, that the Ministry purposely fabricated or exaggerated his mental health and addictions issues, and that there was no basis whatsoever to consider he was a sexual risk to any child. Such divergent findings by two adjudicative fora considering the same factual issues would significantly undermine the repute of the justice system. Further, if the Tribunal were to come to the same conclusions as the Court, then significant judicial and party resources would be wasted on relitigation.

[126] To the extent that X says the Provincial Court decisions post- August 2019 have no “justificatory weight” and cannot be relied on because the Ministry lied and fabricated evidence against him, again, the proper forum for review of the Court decisions is the Superior Courts, not this Tribunal. To the extent that X simply wants another opportunity to try to convince an adjudicator that he never was a risk to children, X is precluded from relitigating the Provincial Court’s findings before this Tribunal.

c. Impact of Finding of Abuse of Process on No Evidence Motion

[127] For the above reasons, the Tribunal will not reconsider X’s evidence and arguments about the matters which I have identified above as having already been decided by the Provincial Court. For the purposes of this no evidence motion, the Court’s findings are that between July 2018 and at least September 2022:

a) Y’s two sons and X and Y’s daughter were in need of protection, and the Ministry had a reasonable basis to believe the children were in need of protection;

b) X had a history of extreme substance misuse which resulted in mental health breakdowns, and these issues amounted to child-protection concerns;

c) X engaged in physical violence and psychological coercion against Y;

d) Y did not engage in family violence against X, and did not fabricate her concerns about him in order to “get the upper hand” in the child-protection and custody matters;

e) there remained a “serious concern” about whether X posed a sexual risk to his daughter, and;

f) allowing X only supervised access to his daughter was the “least disruptive measure” available.

[128] Because X cannot relitigate these findings, I will not consider X’s evidence that seeks to do so. What that means for the purposes of this no evidence motion, is that I find that X’s evidence and arguments in relation to these issues is not reasonably capable of supporting a finding that the Ministry discriminated against him or retaliated against him.

[129] Having decided the findings of the Court that the Tribunal will not permit X to revisit in his complaint, I now move on to consider the remainder of X’s evidence about how he says the Ministry discriminated and retaliated against him, and whether his evidence can reasonably support a finding in his favour in either area.

D. Remainder of X’s Evidence Relating to Discrimination and Retaliation

[130] Beyond providing evidence and making arguments about issues already decided by the Provincial Court, X provided evidence and arguments about specific conduct of social workers which he alleges was discriminatory or amounted to retaliation for the purposes of the Code . I understand X to argue that beyond the effects of this discriminatory conduct, which he says tainted and undermined the Provincial Court decisions and orders, the conduct by these social workers was discriminatory and/or retaliatory, and caused him harm in and of itself. The Ministry agrees that the Tribunal can consider “whether the conduct of social workers towards [X] could, by itself, constitute discrimination”.

1. X’s Evidence of Discrimination Based on Sex and Sexual Orientation

[131] X’s key allegation throughout his evidence was that Ministry social workers, on numerous occasions, stereotyped him as being a risk to sexually abuse or exploit children due to his identity as a bisexual man.

[132] The Ministry acknowledges that X has the protected characteristics of being a bisexual man, but it says X has not provided any evidence that demonstrates that his protected characteristics were connected in any way to the adverse impacts he says he experienced.

a. Speculation and Conjecture

[133] In his evidence, X repeatedly accused social workers of taking certain actions, such as contacting police, commencing litigation, or pressuring Y to make allegations about him, all because of his identity as a bisexual man. In many cases, X’s evidence about these events simply consisted of his description of an action Ministry social workers undertook, and then a statement, without anything more, that the reason social workers took that particular action was because he was gay, bisexual or queer.

[134] After a careful review of all of X’s evidence, I have determined that much of what X characterizes as discriminatory conduct by social workers, is based on speculation, and is either demonstrably inaccurate, mischaracterized, exaggerated, and/or inflammatory.

[135] For example, X testified that at the end of February 2020, during supervised visits with his daughter, social workers prevented him from bringing any toys in for his daughter to play with. He says he asked the social worker why, and she was evasive, explaining it was because of COVID. He then testified about his view that social workers were operating in accordance with stereotype because they felt “anything the queer had touched might have COVID on it”. Such statements in X’s evidence are mere speculation and are not reasonably capable of supporting a finding that social workers discriminated against him on the basis of his sex or sexual orientation.

[136] Further, X points to a June 14, 2019, letter from a Ministry lawyer to Y’s lawyer which identifies a concern that X is not to have “inadvertent contact” with Y’s children during Y’s supervised access visits. X characterizes this letter as evidence that the Ministry “’banned’ [X] from an entire town (a ‘town ban’) by way of making threats about the children’s access if he didn’t comply”. I have reviewed the letter and it clearly does not amount to a ban from an entire town. In the letter the lawyer expressly states:

I am not suggesting that [X] being in [name of the town] is in and of itself a concern however it would be a significant concern to the Director if there were to be any inadvertent contact between [X] and [Y’s children] while [Y] is exercising her access. [emphasis added]

[137] Throughout the hearing, X repeatedly claimed he had been “banned” from the town in which he was living because of the Ministry’s conduct. Neither this letter nor any of the other evidence X presented at the hearing is reasonably capable of supporting the conclusion that the Ministry’s conduct in prohibiting contact (or incidental contact) between him and Y’s children amounted to a “town ban”.

[138] Further, X’s submissions about the “town ban” include allegations that the Ministry’s conduct in “banning” X from the town should lead the Tribunal to infer that the Ministry social workers’ view was that “even the sight of an LGBTQ2S+ man is risky or harmful to children”. X goes even further in his submissions to use the example of the historical persecution of other minority groups (using one very derogatory and offensive term to make his point), as being equal to the Ministry’s alleged persecution of him. These allegations are far removed from any of the evidence in this complaint; they amount to no more than baseless and inflammatory speculation.

[139] Although on a no evidence motion there is only a limited opportunity to weigh and assess the credibility and reliability of evidence, and conflicts in the evidence are generally resolved in favour of a complainant, I am clearly convinced, without deep reflection or analysis, that the above evidence that X asks the Tribunal to accept, and other similar evidence which he proffered in the hearing which was equally speculative, cannot reasonably be relied on to support a finding that the Ministry discriminated against him based on his sex or sexual orientation: Gerin at para. 23.

b. Two discrete events

[140] Beyond his speculation about social worker motives, X did give evidence about two events that he says demonstrate that social workers identified him as a sexual risk to children based on stereotypical views of him as a LGBTQ2S+ person. First, he says that Y told him that a Ministry social worker told her “they would never see that faggot again” [the Homophobic Slur ]. Second, he points to the transcript of the June 3, 2022 CFCSA Presentation Hearing before Judge Janzen [the June 2022 Transcript ], where he says a social worker made two statements that indicate she “connected [X’s] bisexuality to posing a sexual risk to his infant daughter”.

[141] For the following reasons, I find X’s evidence and arguments about what the Tribunal should infer from this evidence lacks an air of reality. X’s evidence does not provide a reasonable basis on which the Tribunal could conclude that the social workers’ conduct which negatively impacted him was connected to his identification as a bisexual man.

Statements in June 2022 Transcript

[142] With respect to the social worker’s statements in the June 2022 Transcript, these statements do not, as X suggests, connect X’s bisexuality to posing a sexual risk to his infant daughter. Both statements arose in the context of X’s cross-examination of a social worker about child protection concerns in relation to his daughter. First, after X asked a social worker about whether the Ministry’s position was that he was “only attracted to boys”, she replied “I don’t know if you’re only attracted to boys. You did make a baby with [Y], so…”. Second, after X stated, “so now you’re going to infer with suspicion, intuition or a hunch that I might be interested in more than boys…”, the social worker replied, “I’m not sure if it’s a hunch if you had sex with [Y] and made a baby with her”.

[143] As is evident from the context of the discussion, as well as the remainder of the transcript that X did not highlight but I have read, X was the one who raised the gender of children in connection to sexual risk. He did so by asking the social worker if the Ministry’s position was that he was “only attracted to boys”. After the social worker identified she did not know whether X was “only attracted to boys”, X pressed the social worker to confirm it was “suspicion, intuition or a hunch” that he was attracted to other genders, and that is when the social worker referenced X’s relationship with Y to demonstrate it was not a “hunch” that he was interested in genders other than male. Then the following exchange between X and the social worker took place:

X – Are you saying because I’m bisexual now, I’m a bisexual pedophile?

Social Worker – No.

X – Well, what are you saying?

Social Worker – I’m saying because of the history of you being potentially a sexual risk to [Y’s children]…

X – Okay.

Social Worker – …you may also be a sexual risk to [your daughter].

[144] It is evident from the social worker’s answer to X’s question about her consideration of his bisexuality, that the risk she said she was assessing was based on X’s history of sexual risk to children, and not any protected characteristics. X submits that the two statements in the June 2022 Transcript demonstrate that the Ministry “claimed [X] was sexually attracted to boys”, and that the Ministry also “claimed [X] was ‘likely’ to rape baby girls simply because he ‘had sex with a woman’”. The interpretation X asks the Tribunal to draw from the two statements in the June 2022 Transcript is not only inflammatory, but it cannot reasonably be said to arise from the evidence. X’s evidence on this point lacks any air of reality, and cannot reasonably be relied on to support any connection between X’s protected characteristics and the Ministry’s assessment of his risk to children.

Homophobic Slur

[145] With respect to the Homophobic Slur, X’s evidence is hearsay. X is recounting what he says Y told him that a social worker said to her, and he asks the Tribunal to accept Y’s statement for the truth of its contents; that is, that the social worker made the Homophobic Slur. X says the Tribunal has the authority to accept hearsay pursuant to s. 27.2(1) of the Code , which allows the Tribunal to accept evidence it considers “necessary and appropriate” even if such evidence would not be admissible in a court. The admissibility of X’s evidence is not what is at issue on this no evidence motion. Assuming I accept that X’s evidence about the Homophobic Slur is admissible, there would still be a question of what weight, if any, to give the evidence, and the reasons for hearsay evidence generally being inadmissible matter with respect to weight. Further, X’s own evidence on other matters in relation to his complaint directly and strongly undermine this hearsay evidence.

[146] For example, X’s evidence throughout the hearing was that Y was a pathological liar, and that she regularly made numerous, serious, allegations about him to the Ministry that were not true. He also testified that she regularly lied to him and others (for example, police and the Court) about various issues and events. X spent a large portion of his testimony arguing about how inherently untrustworthy Y was, yet now he asks the Tribunal to accept on its face that her communication to X about what the social worker said was true.

[147] Further, X had the opportunity, both before the hearing started, and after the Ministry indicated it intended to bring this no evidence motion, to call either Y or the social worker to provide direct evidence on this point. The existence of the Homophobic Slur is one of only two specific pieces of evidence that purport to directly connect X’s identity as a bisexual man to the adverse treatment he says he experienced at the hands of the Ministry. It is therefore an important issue for X’s complaint, and X did not provide a reason for failing to call a witness who could provide direct evidence about the Homophobic Slur.

[148] Finally, in the hearing, X provided evidence about a June 18, 2018, letter from the Ministry to him in which the Ministry advised him that his complaint about a Ministry social worker was “not accepted for the [Ministry’s] complaint process”. In the letter, the Ministry said it was not accepting X’s complaint that the social worker had refused to communicate with him and had made “prejudicial comments” about him, because he was not receiving Ministry services. The Ministry advised X to file a complaint with the Tribunal to have his concerns about prejudicial comments addressed. Importantly, in the letter, the Ministry paraphrases X’s complaint about the social worker’s prejudicial comments and appears to have quoted the actual statement that X advised he was bringing his complaint on the basis of. The Ministry letter states:

[The Social Worker] saying in the initial stages of the investigation that there was “ no way the kids will see him again ” with the meaning that even if you were cleared on all counts, you would be excluded as a bisexual man. [emphasis added]

[149] Nowhere in this statement does the Ministry reference the Homophobic slur, and in fact, the Ministry’s letter seems to suggest that X was the one who made the connection between the statement attributed to the social worker that there was “no way the kids will see him again”, and X’s bisexuality. On the face of the statement quoted in the letter, there is no connection between the social worker saying Y’s children would not see X again and X’s sex or sexual orientation. In this regard, again, X’s own evidence about the Homophobic slur is inconsistent.

[150] Again, I am cognizant that the purpose of a no evidence motion is not to engage in a deep assessment of the credibility and reliability of evidence. However, in this case, I am clearly convinced, without deep reflection or analysis, that the hearsay evidence that X asks the Tribunal to accept cannot reasonably be relied on to support a finding that the Ministry discriminated against him based on his sex or sexual orientation: Gerin at para. 23.

[151] I next move on to consider X’s evidence about how Ministry social workers discriminated against him based on his mental disabilities.

2. X’s Evidence of Discrimination Based on Mental Disability

[152] X says the Ministry discriminated against him based on his mental disability because it perceived (or outright fabricated) him to have disabilities which he did not have, and used those disabilities as a reason not to allow him contact with Y’s sons and his daughter. This is an allegation of discrimination on the basis of perceived disability. However, despite adamantly denying that he has the mental disabilities that the Ministry relied on to prevent him from accessing the children, X argues that he does have a disability for the purposes of the Code , and that is “complex trauma”. He says that the Ministry’s conduct starting in June 2018 is what caused his complex trauma.

[153] X blends his arguments about the perceived disabilities with arguments about his actual disability, and it is important to separate the two in order to understand whether X’s evidence is reasonably capable of supporting a finding that the Ministry discriminated against him based on mental disability.

a. Actual Disability

[154] First, X gave substantial evidence at the hearing about how the Ministry’s conduct negatively impacted him and caused him to develop “complex trauma”. In his submissions, X argues that there is a clear causal connection between the Ministry’s conduct, and his “trauma behaviours”. Insofar as X is arguing that the Ministry causing his mental disability is reasonably capable of supporting a finding of discrimination, I disagree. The Tribunal has held that an allegation that a respondent caused a complainant to develop a mental disability, on its own, cannot support a finding of discrimination based on mental disability: Tsai and Tsai v. B.C. (Ministry of Education) and another , 2004 BCHRT 386 at para 10. Something more than the Ministry having caused X to develop trauma would be required in order to ground a finding of discrimination.

b. Perceived disability

[155] Throughout the hearing, X’s main contention was that the Ministry falsely fabricated various mental disabilities for the purpose of justifying denying him access to Y’s sons and his daughter. X provided substantial evidence by way of oral testimony, medical reports, hospital admission reports, and expert reports, which he argued demonstrated he did not have any of the mental conditions that the Ministry relied on in seeking various orders under the CFCSA , or in pressuring Y to seek protection orders under the FLA . He testified about the specific context of multiple hospital records and police reports that documented substance misuse and suicidality, and explained that they were all exaggerated, or mistaken, or initiated by Y’s deceitful reporting of him to the Ministry and to police. X also alleged that the police were lying when they documented the circumstances of various encounters with him.

[156] I have already held that the Tribunal will not reconsider X’s evidence and arguments about the matters which have previously been decided by the Provincial Court. In order for X’s claim of discrimination based on perceived disability to succeed, the Tribunal would have to consider whether X had the mental health conditions the Ministry raised as child-protection concerns, including history of substance misuse and mental health breakdowns, including suicidal ideation. The Tribunal would also have to consider whether the Ministry was justified in relying on X’s mental health conditions as a basis for determining Y’s sons and/or his daughter were at risk. The Provincial Court has already decided these issues, and the Tribunal will not reconsider them in this forum.

[157] Beyond evidence and arguments relating to issues which the Court has already decided, X did not produce any evidence or raise any arguments about the specific conduct of social workers or other Ministry actors that could amount to discrimination based on mental disability. He does not allege that social workers, in their interactions with him, made discriminatory comments based on his perceived disabilities, or that they acted on the basis of stereotype regarding people with disabilities.

[158] For the above reasons, I find that X has not provided any evidence which is reasonably capable of supporting a finding that the Ministry discriminated against him based on mental disability.

3. X’s Evidence of Retaliation

[159] Section 43 of the Code protects people from retaliatory conduct for participating, or possibly participating, in a human rights complaint process:

43 A person must not evict, discharge, suspend, expel, intimidate, coerce, impose any pecuniary or other penalty on, deny a right or benefit to or otherwise discriminate against a person because that person complains or is named in a complaint, might complain or be named in a complaint, gives evidence, might give evidence or otherwise assists or might assist in a complaint or other proceeding under this Code.

[160] Section 43 is an important part of the Code . It protects the integrity of the complaint process, and is aimed at ensuring that people can exercise their rights under the Code without fear of prejudicial consequences: JW v. LS , 2023 BCHRT 30, at para 55.

[161] During the hearing, X used the word “retaliation” a number of times. In my review of the evidence, X’s use of the word appeared to be in the context of suggesting that either Y or Ministry social workers were trying to “get back” at him for specific actions he took. However, for the most part, X did not testify that the “retaliation” he was referring to was specifically in relation to his filing a complaint under the Code .

[162] Retaliation has a specific meaning within the Code , and it does not simply reference retaliatory conduct by someone against another person. In order to violate s. 43 of the Code , the retaliation has to be sufficiently connected to the filing of a human rights complaint.

[163] In terms of the first element of the test for retaliation, X has led evidence (and I do not understand the Ministry to dispute) that demonstrates that the Ministry was aware he was going to file a complaint, and then after he filed his complaint, was aware he had filed a complaint.

[164] Assuming, for the purposes of this decision, that X’s evidence has demonstrated that the Ministry engaged or threatened to engage in the conduct described in s. 43 of the Code [4] , I find X has not provided any evidence that is reasonably capable of meeting the third element of the test; namely, demonstrating a sufficient connection between the Ministry’s conduct and his filing of the complaint.

[165] During the hearing, X testified that the Ministry was purposely working with either Y, or Y’s ex-partner, to get them to seek various court orders as “retaliation” for X having filed a judicial review of an earlier court decision. X also accused the Ministry of “retaliating” against him for being in a particular community, when he attended the town in which Y was living to serve her court papers. These allegations of “retaliation” are not protected by the Code .

[166] During the hearing, X did reference his human rights complaint in the context of retaliation when he alleged that the Ministry only became concerned about his mental health issues after he filed his human rights complaint. He testified that “so we’re seeing mental health now being used, essentially after I filed my human rights complaint, we’re seeing that a lot”. Beyond making this statement, X did not explain why or how he believed the Ministry was retaliating against him. Impliedly, he seems to be suggesting that because the Ministry’s interest in his mental health was temporally connected to his filing of the human rights complaint, the Tribunal should infer it was retaliatory and not based on any legitimate concerns. Like much of X’s evidence at the hearing, this argument is speculative and finds no basis in the evidence. X’s own evidence at the hearing demonstrated that he had been hospitalized numerous times in relation to alcohol misuse and suicidality before he filed his complaint, and that the Ministry had sought information from the police and other sources about his mental health issues prior to him filing his complaint. It is a significant mischaracterization of the evidence to suggest that the Ministry only became interested in his mental health as a child-protection concern after he filed his complaint.

[167] In addition to X’s testimony at the hearing, X’s submissions allege that Ministry social workers were acting in concert to purposely punish him for filing a human rights complaint, and to subvert his human rights complaint. Specifically, X states that all of the Ministry’s “decisions and acts” after June 15, 2018, when they learned he “might” file a human rights complaint, “were retaliatory against this case”. X says the Ministry’s conduct towards him was specifically directed at “subverting” the Tribunal’s jurisdiction, and “dissuade[ing] [X] from proceeding” with his complaint, and that “all of the [Ministry’s] actions were aimed at manufacturing findings of ‘risk’ to oust the Tribunal”. He lists a number of ways he says the Ministry retaliated, including, for example, that the Ministry:

  • Systematically attempted to harass; attack; defame; and persecute him…to dissuade him from starting and continuing his human rights complaints against it;
  • Systematically attempted to fabricate, misrepresent, or and/or support evidence to obtain ‘findings’, evidence, allegations and/or situations to oust this Tribunal’s jurisdiction or render it otherwise moot; and
  • Systematically attempted and/or succeed to otherwise influence, threaten, and/or coerce others (including [X]) into making false ‘confessions’ about [X] … to obtain Court findings so as to oust the Tribunal or negate his claims therein.

[168] I have not found it necessary to specifically repeat all of X’s assertions here. Not only is X’s evidence, once again, trying to get this Tribunal to make legal and factual findings about issues that have already been decided by the Provincial Court (which I will not do), without exception, I find all of X’s assertions are just that, assertions that have no basis in any of the evidence.

[169] The evidence before me is consistent with the fact that the social workers’ “acts and decisions” that he characterizes as retaliatory were in response to concerns about the safety of the children in X’s life, within the framework of the CFCSA , and that their actions and conduct was overseen by the Provincial Court and found by the Court to be justified. X has not adduced any evidence that could reasonably be relied on to support a finding that the Ministry retaliated against him for filing (or indicating he was going to file) a human rights complaint.

IV CONCLUSION

[170] For the above reasons, I dismiss X’s complaint in its entirety.

Shannon Beckett

Tribunal Member

Human Rights Tribunal


[1] On November 2, 2021, the Tribunal issued an order limiting publication of case information, and prohibiting disclosure of documents to the public under Rule 5(10) of the Tribunal’s Rules of Practice and Procedure. On March 15, 2023, the Tribunal issued a further anonymization order and ordered a publication ban as follows: 1) No person shall publish in any documents, or broadcast or transmit in any way, the names and identifying characteristics of any individuals named in the complaint and those called as witnesses during the hearing except for any expert witnesses; and 2) In any reasons for decision issued after the hearing, the Tribunal will anonymize the names and identifying characteristics of all individuals named in the complaint and those called as witnesses, except expert witnesses.

[2] Accepted amendments were filed on the following dates: January 28, 2019; July 22, 2019; February 16, 2021; May 17, 2021, July 20, 2021; and March 31, 2023. Amended complaint responses were filed: January 22, 2019, August 13, 2021, and April 21, 2023.

[3] E.g. Y’s stated concerns, the child pornography charges in New York, the website that listed him as a pedophile, etc.

[4] The second element of the test for retaliation under the Code .