Child L (by Mother L) v. BC Ministry of Education, 2025 BCHRT 27
Date Issued: February 4, 2025
File: CS-003003
Indexed as: Child L (by Mother L) v. BC Ministry of Education, 2025 BCHRT 27
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:
Child L (by Mother L)
COMPLAINANT
AND:
His Majesty the King in Right of the Province of British Columbia as represented by the
Ministry of Education
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(a) and (c)
Tribunal Member: Devyn Cousineau
For the Complainant: Mother L
Counsel for the Respondent: Joanne Kim
I INTRODUCTION
[1] This is a decision about whether eligibility criteria for a government grant, set out in a regulation, could be a service customarily available to the public.
[2] The complaint is about Mother L’s attempt to apply for the BC Training and Education Savings Grant [the Grant ] on behalf of Child L. The Grant gives eligible children $1,200 for their registered education savings plan [ RESP ]. A child is eligible if they are ordinarily resident in BC, have a RESP, and their application is submitted between their 6 th and 9 th birthday.
[3] Mother L says that Child L became “ordinarily resident in BC” on April 1, 2020, after which she only had until April 27 – Child L’s 9 th birthday – to apply for the Grant. This was during the height of the COVID-19 pandemic, and Mother L faced several barriers to file the application. She asked if the time limit could be extended, and was told it could not. Mother L alleges that the refusal to extend the time limit to apply for the Grant discriminates against Child L based on her disabilities and family status (single parent household), in violation of s. 8 of the Human Rights Code.
[4] The Ministry says that the time limit for applying for the Grant is an eligibility criterion prescribed by regulation, over which it has no discretion. It says that Tribunal does not have jurisdiction over the complaint because it is not about a service customarily available to the public. In the alternative, it argues that Child L has no reasonable prospect of proving that the Ministry discriminated against her in circumstances where the barriers Child L faced were not caused by anything the Ministry did or did not do, and she never applied for the Grant. It asks the Tribunal to dismiss the complaint under ss. 27(1)(a) and/or (c) of the Code.
[5] This was a case of very bad timing. There is no dispute that, because of the COVID-19 pandemic, and the unique challenges faced by this family, it was difficult for Mother L to apply for the Grant before Child L’s 9 th birthday. As a result, Child L lost the opportunity for a $1,200 Grant. However, I agree with the Ministry that the time limit at issue was an eligibility criterion set out in the regulation, which it did not have any discretion to extend or amend. The complaint is, effectively, a direct attack on the regulation and does not engage a service customarily available to the public. For this reason, I am satisfied that the complaint has no reasonable prospect of success. It is dismissed under s. 27(1)(c) of the Code.
[6] In this decision, I have anonymized the names of Mother L and her child, in order to protect the privacy interests of a minor: Rule 5(7).
II DECISION
[7] I begin by setting out the background to the complaint. I then consider whether it engages a service customarily available to the public. This issue turns on whether the substance of Child L’s complaint is a bare attack on legislation, or whether it concerns the administration of a service created by legislation.
A. The Grant
[8] The Grant is a one-time provincial education savings incentive designed to help families save for their children’s post-secondary education. Through the Grant, the Province contributes $1,200 to eligible children, which is deposited to the child’s RESP.
[9] The Grant is paid through the BC Training and Education Savings Program “special account”, which is established and governed by s. 9.4 of the Special Accounts Appropriation and Control Act. Under s. 9.5(a), the Ministry may pay amounts out of the special account for the purpose of “providing financial assistance in accordance with the regulations in respect of children born on or after January 1, 2007 who are eligible in accordance with the regulations ” (emphasis added). The Act empowers the Lieutenant Governor in Council to make regulations, including to prescribe eligibility requirements: s. 9.4. The British Columbia Training and Education Savings Program Regulation [ Regulation ] was enacted for this purpose.
[10] The Regulation sets out the eligibility requirements and conditions for payment of the Grant. Under s. 3, the child and a guardian must be “ordinarily resident in British Columbia” at the date the application is submitted. Section 4 establishes conditions for payment of the Grant, including that – for children born after 2010 – the application must be submitted within three years of the child’s 6 th birthday. The Regulation provides no authority to extend, amend, or otherwise change the eligibility requirements or conditions for the Grant, including the requirement to apply before the child’s 9 th birthday.
B. Child L
[11] Mother L and Child L moved to BC in January 2020. Mother L is a single mother. Child L has various disabilities and complex needs. There is some dispute about when Mother L and Child L became “ordinarily resident” in British Columbia. The Ministry says that applicants can rely on a BC Services Card, which Mother L and Child L had by February 21. Mother L says that they were not “ordinarily resident” until April 1. I cannot resolve this dispute in this application, and I do not need to.
[12] Child L’s 9 th birthday – and her deadline to apply for the Grant – was April 27, 2020. This was during the height of restrictions related to the COVID-19 pandemic. Mother L says it was effectively impossible for her to open a RESP and complete the application for the Grant during this time, particularly given Child L’s disabilities and the fact she was a single parent. She tried for hours to open a RESP online or by the phone, but says “it was impossible to reach anyone”. She tried to contact the Ministry, but did not receive a response until months after the deadline had passed. At that point, she was told that there was no way they could extend the deadline for her application. It appears that, ultimately, Child L did not apply for the Grant.
[13] Within this context, I turn to the issue I must decide: whether there is no reasonable prospect Child L will prove that the eligibility criteria for the Grant are a service customarily available to the public.
C. Services customarily available to the public
[14] Section 8 of the Code prohibits discrimination in accommodations, services, and facilities customarily available to the public. To fall within s. 8 , the activity alleged to be discriminatory must “be a service, customarily available, and customarily available to the public”: British Columbia v. Crockford, 2006 BCCA 360 at para. 78.
[15] Legislation is not a service customarily available to the public: Andrews/Matson at paras. 96-98; Phillips v. BC (Ministry of the Attorney General), 2019 BCHRT 76 at para. 14. For that reason, complaints cannot succeed where they are effectively a direct attack on legislation: Startek v. Ministry of Finance and another, 2022 BCHRT 117 at para. 30; Khazbazian-Isfahani v. BC Ministry of Finance (No. 2), 2023 BCHRT 94.
[16] Here I pause to acknowledge that the Ministry brought its dismissal application under s. 27(1)(a), arguing that the issue of whether the complaint engages a service is a jurisdictional one. There is support for this characterization in the Tribunal’s case law, including recent cases addressing complaints about legislation: e.g. Phillips ; Startek ; Bethinger and others (by McMillan and another) v. British Columbia Housing Management Commission and others, 2024 BCHRT 231 . However, in Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31 [ Andrews/Matson ], the Court found that the definition of a service under human rights legislation is not a jurisdictional issue: at para. 33. Rather, it is part of the human rights analysis the Tribunal must undertake in any case. For that reason, I now think it is more appropriate to address this type of argument under s. 27(1)(b) or (c). In this case, I proceed under s. 27(1)(c) , which considers whether the complaint has no reasonable prospect of success.
[17] I agree with the Ministry that there is no reasonable prospect the Tribunal will find Child L’s complaint identifies a service customarily provided by the Ministry. Rather, it is a direct attack on an eligibility criterion set out in the Regulation: specifically the requirement that an application be submitted between a child’s 6 th and 9 th birthday. The situation is analogous to Startek and Khazbazian-Isfahani, where the Tribunal concluded there was no service customarily available to the public.
[18] In Startek, the complainant was not eligible for a tax exemption because less than 50% of her family’s income was reported on Canadian income tax returns. She argued that her exclusion from this exemption was discriminatory. The Tribunal found the substance of the complaint was an attack on provisions of the Speculation and Vacancy Tax Act, which was not a service customarily available to the public. The Tribunal identified circumstances which I also find applicable here:
… Ms. Startek is not eligible for the refunds and exemptions that she seeks. The government has not created or extended a service to her. No government agency has applied a policy or exercised a discretion to deny her a service. To accept Ms. Startek’s complaint would require the Tribunal to re-write the legislation, which is the very essence of what the cases above have held it cannot do… In this situation, “the challenge is not to the provision of services, but to the legislation itself”: Andrews/Matson at para. 98 (per Côté and Rowe JJ). [at para. 36]
[19] Similarly, in Khazbazian-Isfahani, the complainant alleged that he had disability-related barriers which meant he could not comply with time limits in the Motor Fuel Tax Act. He alleged the strict application of those time limits was discriminatory. The Tribunal found that the time limits at issue were established in the legislation and were not part of a service customarily available to the public:
.. .No person is eligible under s. 23 for a refund of tax paid more than four years before the date of a claim: s. 26(1)(b). These are criteria that apply to refunds under the Act, and the criteria are not a service or part of a service: Startek at para. 38.
… while the Program is a service, it is a service limited to administering refunds for which persons with disabilities are eligible under the Act . Mr. Khabazian-Isfahani applied for a refund for which he was not eligible under the Act . [paras. 65, 72]
[20] Likewise here, Child L was not eligible for the Grant after her 9 th birthday. There was no service extended to her after that date. Her challenge is to the eligibility criteria itself, which is set out in the Regulation. It is not to the provision of any services under that Regulation. To allow her complaint would require the Tribunal to re-write the Regulation, which it cannot do.
[21] Mother L argues that her complaint is not an attack on the Regulation, but rather focuses on the service created by the Act and Regulation. She argues the circumstances are analogous to those where the Legislature has created a public service through legislation, “which is subject to scrutiny for compliance with the Human Rights Code”: Startek at para. 22. She argues that “the way in which the Respondent confers the benefits at issue posed a particular barrier for the Complainant because of her protected characteristics” and that “[n]ot making allowances for time for vulnerable and marginalised groups during the beginning of the pandemic, denied my disabled daughter and her single parent family, the same rights and enjoyment that other children and families might access and thereby benefit from”.
[22] I agree that the Ministry delivers some services to the public in its administration of the Grant, and in doing so is required to comply with the Code . However, the difficulty with this argument is that Mother L has not identified anything the Ministry could have done to make Child L eligible for the Grant after her 9 th birthday. The undisputed evidence before me is that the Ministry has no discretion regarding the eligibility criteria, which is found exclusively in the Regulation and which the Ministry is bound to apply. The eligibility criteria are not part of any service that the Ministry provides.
[23] Mother L cites Harmer v. BC (Ministry of Human Resources), 2005 BCHRT 279, where the Tribunal said that “the fact that the differential treatment complained of is authorized by regulation does not mean that that differential treatment may not be contrary to the Code ”: para. 9 . That case was about disability benefits under the Employment and Assistance for Persons with Disabilities Act. Because of a regulation, the complainant’s disability benefits were reduced by the amount of CPP he received. In contrast, the regulation allowed people to earn a certain amount of income without affecting disability benefits. The complainant alleged that this reduction to his benefits was based on his disability and violated s. 8 of the Code. The Tribunal declined to dismiss the complaint. I acknowledge that there is some tension between the outcome in Harmer and the analysis in subsequent cases holding that eligibility requirements set out in legislation and regulations are not services customarily available to the public.
[24] In Phillips, the Tribunal reconciled this tension by noting that the focus in Harmer and other cases about benefits was “not on the legislation as the service but rather a particular benefit held out to a group of people”: Phillips at para. 17. To the extent this is not a complete explanation, I note that Harmer was decided before significant further developments in the law, addressed in Andrews/Matson, Phillips, Startek, and Khazbazian-Isfahani. I prefer the analysis in these later cases, which I find determinative of this complaint.
[25] The Regulation establishes who is eligible for the Grant. After her 9 th birthday, Child L was not eligible. At that point, she was not denied a service customarily available to the public. For that reason, the complaint has no reasonable prospect of success.
III CONCLUSION
[26] This complaint is dismissed under s. 27(1)(c) of the Code.
Devyn Cousineau
Tribunal Member