Parent v. Ministry of Children and Family Development, 2025 BCHRT 10
Date Issued: January 10, 2025
File(s): CS-003842
Indexed as: Parent v. Ministry of Children and Family Development, 2025 BCHRT 10
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:
Parent
COMPLAINANT
AND:
His Majesty the King in Right of the Province of British Columbia as represented by the Ministry of Children and Family Development
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS PART OF A COMPLAINT
APPLICATION TO LIMIT PUBLICATION
Section 27(1)(g) and Rule 5
Tribunal Member: Jonathan Chapnick
Counsel for Complainant: Odette Dempsey-Caputo
Counsel for Respondent: Jaclyn Salter and Zachary Ansley
I INTRODUCTION
[1] On December 17, 2020, the Parent filed a human rights complaint against His Majesty the King in Right of the Province of British Columbia as represented by the Ministry of Children and Family Development [ Ministry ]. The Parent alleges discrimination in services based on gender identity or expression in contravention of s. 8 of the Human Rights Code . This decision is about whether a part of the Parent’s complaint was filed late and should be dismissed without a hearing. My reasons below also address the Ministry’s application to limit publication of personal information under the Tribunal’s Rules of Practice and Procedure [ Rules ].
[2] The Parent is a trans woman with a child [ Child ] and a former spouse [ Ex-Spouse ] who is the Child’s biological mother. For convenience, I will refer to the Parent, Child, and Ex-Spouse, collectively, as the Family .
[3] The Parent alleges that, beginning in December 2017, a social worker employed by the Ministry [ Social Worker ] tried to prevent her from parenting the Child because of her gender identity. In addition, the Parent alleges that she complained about the Social Worker to the Ministry, but the Ministry took no action. The Parent says her complaint alleges a timely continuing contravention of the Code dating back to December 2017. Further, she says that, even if part of her complaint is untimely, it is in the public interest for the Tribunal to accept the entire complaint under s. 22(3) of the Code and no substantial prejudice will result to any person because of the delay.
[4] The Ministry disputes the Parent’s factual allegations, denies discriminating, and applies to dismiss part of the complaint without a hearing. It argues that the part of the complaint alleging discrimination between December 2017 and July 2018 should be dismissed under s. 27(1)(g) of the Code because it was filed late and does not form part of a continuing contravention. The Ministry argues that it is not in the public interest for the Tribunal to accept the Parent’s late-filed allegations under s. 22(3) and substantial prejudice would result because of the delay.
[5] For the reasons that follow, I am satisfied that the Parent’s complaint alleges a timely continuing contravention dating back to December 2017. The part of the complaint alleging discrimination between December 2017 and July 2018 was not filed late. As a result, I need not decide whether to accept late-filed allegations under s. 22(3). The Ministry’s application to dismiss part of the complaint under s. 27(1)(g) is denied.
[6] To make my decision, I have considered all the information filed by the parties. In my reasons, however, I only refer to what is necessary to explain what I decided. I make no findings of fact regarding the merits of the complaint.
II BACKGROUND
[7] The following information is drawn from the materials before me and is set out here as background. It is not meant to be an exhaustive summary of the information filed by the parties.
[8] In early December 2017, there was a domestic incident involving the Parent and the Ex-Spouse, after which the Ministry became involved with the Family. The Parent was not allowed to communicate with the Ex-Spouse except through the Ministry for the purpose of arranging access to the Child. In the days following the incident, the Social Worker contacted the Parent and they met for an intake interview.
[9] The Parent alleges that the Social Worker knew of her prior to the intake interview. The Parent’s evidence is that the Social Worker was friends with the Ex-Spouse’s sibling, was aware of the Parent’s gender identity, and disapproved of her relationship with the Ex-Spouse. The Parent alleges that, during the intake interview, the Social Worker commented that the transgender community is known for raping children and that people from the transgender or queer community should not raise a child [ Alleged Comments ].
[10] Between December 2017 and July 2018, the Ministry required the Parent’s visits with the Child to be supervised. The Parent says that, during this period, she was required to interact with the Social Worker on a weekly basis. She alleges that the Social Worker was responsible for arranging and supervising her visits with the Child, and would regularly cancel (and not reschedule) visits without providing notice or a reason. She alleges that she complained about the Alleged Comments and cancellations to the Social Worker’s supervisor [ Supervisor ] in March 2018, but he took no action.
[11] In July 2018, a court hearing took place regarding the December 2017 domestic incident. The Parent alleges that the Social Worker made false representations at the hearing. She alleges that the Social Worker said the Ex-Spouse insisted on full custody of the Child, which was untrue. The Parent suggests that these false statements could have prevented (but ultimately did not prevent) her from sharing custody of the Child. She alleges that she complained to the Supervisor about this after the hearing, but he took no action.
[12] Following the hearing, a court order was put in place to regulate the Parent’s conduct and activities over a 12-month period, during which time the Parent and Social Worker did not interact or communicate.
[13] The Ministry became involved again in December 2019 after receiving a report from police regarding the Ex-Spouse. On December 20, the Ex-Spouse consented to a safety plan, which involved temporarily placing the Child in the care of the Ex-Spouse’s parent and sibling [ Safety Plan ]. The Parent alleges that this happened without her knowledge and on the recommendation of the Social Worker. The Parent alleges that the Social Worker told police that the Ministry could not contact the Parent and she had abandoned her parental role. The Parent says this was untrue.
[14] The Ministry says the Social Worker spoke to the Parent on December 27 about the status of the Safety Plan and next steps.
[15] In January 2020, the Child’s temporary placement with the Ex-Spouse’s parent and sibling came to an end and the Child was placed with a foster parent on an interim basis. The Parent says she had no knowledge of this at the time. She alleges that she had tried to contact the Ministry to get the Child back, but no one returned her calls. She alleges that she went to the Ministry office several times but was repeatedly turned away.
[16] The Parent and the Ex-Spouse met with the Ministry in February 2020 and agreed to a new temporary arrangement under which the Child was placed in the Parent’s care. The Parent alleges that the Child was returned to her in March 2020, at which time she was told by a Ministry employee that the Social Worker had been terminated. The Parent alleges that another Ministry employee subsequently told her that the termination was largely due to the Social Worker’s conduct on the Family’s file.
[17] The Parent alleges that the Ministry’s record of the Family’s file continued to contain the Social Worker’s notes and this resulted in issues with other child services organizations.
III ORDER LIMITING PUBLICATION
[18] The Ministry applies under Rule 5 for orders to limit publication of personal information in this proceeding. Specifically, it seeks what is effectively an anonymization order and publication ban. It requests that identifying information regarding people and places be anonymized, and that no person be permitted to publish any information that could identify the individuals involved in the events giving rise to the complaint. The Parent consents to the Ministry’s application.
[19] The Tribunal has discretion to limit disclosure of personal information where privacy interests outweigh the public interest in access to the Tribunal’s proceedings: Rule 5(6); Stein v. British Columbia (Human Rights Tribunal) , 2020 BCSC 70 at para. 64. The parties’ consent to limiting disclosure in a proceeding is persuasive but not determinative: see RR v. Vancouver Aboriginal Child and Family Services Society (No. 3) , 2019 BCHRT 269 at para. 6.
[20] This complaint involves a minor. In an application to limit publication in a case involving a minor, there is a presumption that the minor’s privacy interests outweigh the public interest in access to the Tribunal’s proceedings: Rule 5(7). For this reason, and for the other reasons set out in RR at para. 6, I am satisfied that the privacy interests of all individuals involved in this case outweigh the public interest in knowing their identities, such that the requested orders to maintain their privacy are warranted : see generally JY v. Various Waxing Salons , 2019 BCHRT 106.
[21] I grant the orders sought. I order that:
a. The names and identifying characteristics (including geographical information and sensitive personal information) of the Parent and third parties, including the Child, the Ex-Spouse, the Social Worker, the Supervisor, and other individuals involved in the events giving rise to the complaint [ Individuals ], be anonymized in this proceeding;
b. No person may publish any information which would tend to identify any of the Individuals; and
c. The Tribunal will anonymize any reference to the Individuals and will redact or otherwise anonymize any confidential information that identifies any other person in its decisions in this proceeding.
[22] These orders do not preclude the Tribunal from making others. The parties may apply for further orders regarding additional protections for privacy interests, including with respect to the hearing of the complaint.
IV DECISION REGARDING APPLICATION TO DISMISS
[23] There is a one-year time limit for filing a human rights complaint: Code , s. 22. In its response to the complaint, the Ministry said some of the Parent’s allegations fell outside the time limit. Through the Tribunal’s review of the complaint and response under the Case Path Pilot Practice Direction , the Tribunal determined that the timeliness issue could potentially be more efficiently resolved before a hearing through an application under s. 27(1)(g). At the same time, in its case path letter to the parties [ Case Path Letter ], the Tribunal stated that “at least part of this complaint will proceed to a hearing.” I agree with the Ministry that this means the Parent’s allegations falling within the time limit “are not subject to the [dismissal application].”
[24] The issue in this dismissal application is whether the earlier part of the Parent’s complaint was filed late and, if so, whether that part of the complaint should be dismissed.
[25] Under the Code , allegations falling outside the one-year time limit are late unless they form part of an alleged continuing contravention with an allegation falling within it: s. 22(2). To allege a continuing contravention is to allege discrimination that is ongoing, successive, or repetitive: Rush v. Fraser Health Authority (No. 2) , 2024 BCHRT 13 at para. 32; see generally School District v. Parent obo the Child , 2018 BCCA 136.
[26] The Ministry argues that the Parent’s allegations between December 2017 and July 2018 [ 2017-2018 Allegations ] should be dismissed because they fall outside the one-year time limit and do not form part of a continuing contravention. The Parent disagrees. She says all of the acts and omissions alleged comprise a continuing contravention dating back to December 2017.
A. Has the Parent put forward an allegation of discrimination within the time limit?
[27] A complaint alleging a continuing contravention must be anchored in a timely allegation of discrimination: Code , s. 22(2); see School District at para. 44. This means that, to determine whether a complaint alleges a continuing contravention, the Tribunal must first assess whether the complaint alleges acts or omissions, falling within the one-year time limit, which pass the “arguable contravention test,” meaning they could, if proven, contravene the Code : see Chen v. Surrey (City) , 2015 BCCA 57 at para. 23. In the Parent’s case, the assessment is whether her complaint puts forward an arguable contravention on or after December 17, 2019.
[28] Implicit in the Case Path Letter is a decision that the Parent has put forward a timely allegation of discrimination. In any event, on my own assessment of the complaint, I am satisfied that the alleged events in December 2019 and January 2020 pass the arguable contravention test. The threshold for passing the arguable contravention test is low: Gichuru v. Vancouver Swing Society , 2021 BCCA 103 at para. 56. The Parent must only allege facts that could establish a gender identity-related adverse impact in the services offered by the Ministry. The alleged events in December 2019 and January 2020 meet this threshold. For example, the Parent alleges that, through her role in making the Safety Plan, the Social Worker deliberately separated her from the Child based on “an animus toward transgender people.” She alleges that this animus was revealed by the Alleged Comments. In my view, given their virulence and egregiousness, the Alleged Comments could support a reasonable inference that the Social Worker’s alleged exclusion of the Parent from the Safety Plan was connected to the Parent’s gender identity. The Parent’s allegations regarding the Safety Plan are therefore timely allegations of discrimination capable of anchoring a continuing contravention.
B. Do the allegations falling outside the time limit form part of a continuing contravention?
[29] The continuing contravention concept is not meant to arbitrarily sweep any and all untimely allegations into a complaint that is properly before the Tribunal: see Van Baranaigien v. BC Ferry Services Inc. , 2016 BCHRT 33 at para. 44. Rather, the purpose of s. 22(2) of the Code is to allow complainants to seek redress for alleged discrimination falling outside the Code ’s time limits if, and only if, “the complaint that is properly before the Tribunal represents a continuation of the earlier discrimination”: School District at para. 43.
[30] In each case the continuing contravention analysis must be grounded in the individual circumstances of the complaint. The assessment of whether allegations of discrimination form part of a continuing contravention is contextual and fact-specific: Dickson v. Vancouver Island Human Rights Coalition , 2005 BCHRT 209 at para. 17. Various factors may be relevant to this assessment, including the character of the allegations and whether they are separated by gaps in time: see generally School District ; Rai v. Annacis Auto , 2003 BCHRT 31; Callaghan v. University of Victoria , 2005 BCHRT 589; Bjorklund v. BC Ministry of Public Safety and Solicitor General , 2018 BCHRT 204. The burden is on the complainant to establish that their complaint alleges a continuing contravention: Dove v. GVRD and others (No. 3) , 2006 BCHRT 374 at para. 38. For the following reasons, I am persuaded that the Parent has met this burden.
1. Character of allegations
[31] For allegations falling outside the time limit to form part of a continuing contravention with an allegation falling within it, the earlier allegations must be of the same or similar character as the later allegation: Rush at para. 51; see generally Dove at paras. 11-33 and School District at paras. 46-65. The Parent says this is the case in her complaint. The Ministry disagrees.
[32] The Ministry argues that the Alleged Comments are the only clear allegation of discriminatory comments by the Social Worker. It says the rest of the Parent’s claims are about the Social Worker allegedly deeming her unfit to parent because of her gender identity.
[33] The Parent’s characterization of the complaint is different from the Ministry’s. She says the alleged instances of discrimination by the Social Worker “were part of an ongoing pattern of behaviour.” She accuses the Social Worker of repeatedly trying to prevent her from parenting the Child by: regularly cancelling and not rescheduling her visits with the Child between December 2017 and July 2018; making false representations at the court hearing in July 2018, which could have prevented her from sharing custody of the Child; telling police she had abandoned her parental role in December 2019; and excluding her from the Safety Plan, which ultimately led to the Child “being placed in foster care, with [the Parent] unable to regain custody for approximately three months.” In light of the Alleged Comments, she claims that her gender identity was a factor in the Social Worker’s alleged conduct.
[34] Further, the Parent alleges that the Ministry allowed this “continuous discrimination to persist” by permitting the Social Worker to remain on the Family’s file despite the Parent’s complaints to the Supervisor in March and July 2018. The Parent says the Ministry should have intervened and stopped the Social Worker’s “continuous discriminatory behaviour.” She says that, “throughout 2017-2019 [the Ministry] allowed [the Social Worker] to remain on the file despite the discriminatory actions [she and the Ex-Spouse] had informed them of.” The Parent characterizes this as a “continuous action.”
[35] I appreciate that the alleged facts in this case are highly contested. My task here is not to resolve this contest. It is to assess the character of the allegations put forward by the Parent. On the materials before me and considering both parties’ arguments, I am satisfied that the Parent’s allegations falling outside the one-year time limit share a common character with her allegations regarding the events in December 2019 and January 2020. Dating back to December 2017, and including her allegations on or after December 17, 2019, the Parent alleges acts and omissions by the Social Worker aimed at preventing her from parenting the Child. Drawing an inference based on the Alleged Comments, she alleges a discriminatory connection between her gender identity and the Social Worker’s repeated conduct. And she alleges that the Ministry failed to prevent or properly address the alleged discrimination. These allegations could, if proven, contravene the Code .
[36] I acknowledge the Ministry’s argument that the Social Worker’s alleged ongoing prejudice against transgender people and assignment on the Parent’s file could not constitute a continuing contravention. The Ministry suggests that these are allegations of a single discriminatory act or omission with continuing effects or ongoing consequences, which does not amount to a continuing contravention: Chen at para. 23. I disagree with this characterization of the complaint. The complaint is not about the Social Worker’s alleged attitudes and work role, per se . It is about what the Social Worker allegedly did in that work role, based on those alleged attitudes. It is about a series of allegedly discriminatory acts and omissions by the Social Worker, in her Ministry position, between December 2017 and July 2018, and in or after December 2019. In addition, it is about the Parent’s alleged complaints to the Ministry about the Social Worker, and the Ministry’s alleged failure to adequately or appropriately respond to her claims of discrimination.
2. Gap between allegations
[37] A significant gap in time between allegations of discrimination weighs against a finding of a continuing contravention: Reynolds v. Overwaitea Food Group , 2013 BCHRT 67 at para. 26. The significance of a gap is assessed contextually, considering facts such as the length of the gap and the explanation for it: Reynolds at para. 28.
[38] In the present case, there is a roughly 18-month gap between the 2017-2018 Allegations and the allegations beginning in December 2019 [ 2019-2020 Allegations ]. I agree with the Ministry that this is a very long gap. If unexplained, such a long gap could be fatal to the Parent’s continuing contravention claim.
[39] There is no dispute that, after the court order was put in place in July 2018, the Parent and the Social Worker did not interact or communicate until December 2019. The Parent says that, with the court order in place, there was no need for the Ministry’s services during that period and she was not required to deal with the Social Worker. The Ministry’s evidence is that it required the Parent’s visits with the Child to be supervised up until July 2018. It agrees that its district office had no interactions or communications with the Parent from September 2018 to December 2019.
[40] I am satisfied that the long gap between the 2017-2018 Allegations and the 2019-2020 Allegations is explained by the parties’ submissions. The information before me is that the Ministry was not involved during the gap period; as such, the Parent would not have been subject to the Social Worker’s alleged discrimination. The Parent’s complaint is that, when the Ministry was involved – between December 2017 and July 2018 and again beginning in December 2019 – the Social Worker repeatedly tried to prevent her from parenting the Child because of her gender identity, and the Ministry allowed this discrimination to happen.
[41] Given this explanation for the long gap between the 2017-2018 Allegations and the 2019-2020 Allegations, on the information before me, I do not find that the gap is “significant” in the sense of being so weighty as to defeat the Parent’s continuing contravention claim.
[42] In sum, then, I am satisfied that the Parent’s complaint alleges a timely continuing contravention within the meaning of s. 22(2) of the Code , and that the alleged continuing contravention goes back to December 2017. The part of the complaint involving the 2017-2018 Allegations was not filed late. The Ministry’s application to dismiss that part of the complaint under s. 27(1)(g) is denied.
[43] I note that, even if I had decided to grant the Ministry’s application, the Alleged Comments – and possibly other 2017-2018 Allegations – would likely still come up at the hearing of the Parent’s complaint. This is because, in the complaint, the Parent relies on the Alleged Comments to support a connection between her gender identity and the Social Worker’s alleged conduct. As a result, even at a hearing about only the 2019-2020 Allegations, the Parent will need to prove the Alleged Comments to make her case. In addition, she may attempt to prove some of other 2017-2018 Allegations, for the purpose of trying to establish a broader context of discrimination, which could support an inference that her gender identity was a factor in, for example, her exclusion from the Safety Plan in 2019-2020.
V CONCLUSION
[44] The Ministry’s application under Rule 5 for orders to limit publication in this proceeding is granted.
[45] The Ministry’s application to dismiss part of the complaint under s. 27(1)(g) is denied. The entire complaint will proceed to a hearing.
Jonathan Chapnick
Tribunal Member