Mother K v. BC Ministry of Children and Family Development, 2025 BCHRT 44
Date Issued: February 26, 2025
File: CS-001733
Indexed as: Mother K v. BC Ministry of Children and Family Development, 2025 BCHRT 44
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:
Mother K
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 A COMPLAINT
Section 27(1)(a) and (g)
Tribunal Member: Devyn Cousineau
Counsel for the Complainant: Debra Febril and Laura Track
Counsel for the Respondent: Rochelle Pauls
I INTRODUCTION
[1] This is a decision about whether to dismiss part of Mother K’s human rights complaint without a hearing.
[2] Mother K is a First Nations mother of ten children. In 2015, the Ministry of Children and Family Development [ MCFD ] apprehended eight of the children. The children remain in the custody of MCFD to this day. In 2020, Mother K filed this human rights complaint, alleging that MCFD was discriminating against her based on her race and ancestry by apprehending her children and treating her badly. In 2021, she amended her complaint to add the grounds of place of origin, family status, and marital status. She alleges that, because she lives in a small community in a relatively remote part of the province, MCFD has failed to ensure sufficient visits with and between her children. Among other things, she alleges this has prevented her from sharing her culture with the children.
[3] During this period, the Director of Child, Family, and Community Service [ Director ] applied to the BC Provincial Court for a continuing custody order over the children. This application was heard over 50 days between 2020 and 2023. Mother K was represented by a lawyer. In July 2023, the Court found that the children were in need of protection at the time of the removal and continued to be in need of protection. The Court placed the children in the continuing custody of the Director.
[4] MCFD denies discriminating against Mother K. In this application, it asks the Tribunal to dismiss parts of the complaint which it argues are outside the Tribunal’s jurisdiction because they relate to issues before the BC Provincial Court: Human Rights Code, s. 27(1)(a). It also asks the Tribunal to dismiss allegations about events more than one year before the complaint, because they are untimely: Code, s. 27(1)(g).
[5] For the reasons that follow, I deny the application under s. 27(1)(a). This Tribunal has jurisdiction to consider Mother K’s allegations of discrimination. The effect of the BC Provincial Court proceedings should be determined by applying finality principles that prevent re-litigation of the same issue in multiple forums. When the parties receive a copy of the Court’s full reasons for granting the continuing custody order, MCFD may file another dismissal application for allegations which it says have been determined in that proceeding.
[6] I grant the application under s. 27(1)(g), in part. I find that Mother K’s allegations related to MCFD’s decision to apprehend the children and retain custody from 2015 onward are part of a timely continuing contravention of the Code and therefore not late-filed. Likewise, I find that her allegations about visits with the children are a timely continuing contravention. However, I have identified other allegations which do not share a common character with a timely allegation and are late. Those allegations are dismissed.
[7] Mother K has asked for an order prohibiting the publication of information which could identify her or her children in connection with this complaint. MCFD did not take a position on this request. Given the subject matter of the complaint, which concerns minors, I agree the order is appropriate: Rule 5(7). The Tribunal will anonymize the names of Mother K and her children in any information it makes available to the public. Further, no person is permitted to publish information that could identify Mother K or the children in connection with the complaint.
[8] I begin with a brief background. This background is based on the material filed by the parties. I make no findings of fact.
II BACKGROUND
[9] The Child, Family and Community Service Act [ CFCSA ] governs the protection of children and the provision of services to children and families in BC. Under this legislation, the safety and well-being of children are paramount: s. 2. The “guiding principles” of the Act include the recognition that children are entitled to be protected from “abuse, neglect and harm or threat of harm”, and – at the same time – that the family is the preferred environment for children. The CFCSA recognizes specific rights of Indigenous children, families, and communities: see e.g. T.L. v. British Columbia (Attorney General), 2021 BCSC 2203 at para. 21; J.W. v British Columbia (Director of Child, Family and Community Service), 2023 BCSC 512.
[10] MCFD provides child protection services under the CFCSA . The Minister designates the Director, who in turn delegates the provision of child protections services across the province to child protection social workers.
[11] Mother K has ten children with Father K. Both Mother K and Father K are First Nations and live in a rural part of northern BC.
[12] MCFD has been involved with Mother K’s family since 2002. Since that time, and during the period of this complaint, it says it has had child protection concerns related to intimate partner violence, physical and sexual abuse by Father K, parental neglect, and lack of parental protection of the children. In 2015, MCFD decided to remove nine of the children under s. 30 of the CFCSA . The two oldest children refused to come into care and remained with Mother K under a supervision order. Mother K’s tenth child was removed on the day she was born in 2016.
[13] Between 2015 and 2023, eight of the children remained in the custody of the Director under two interim custody orders made by the BC Provincial Court. In 2016, the court made an interim Protective Intervention Order against Father K, which prevented him from having contact with the children. In June 2023, after 50 days of trial in which Mother K was represented by legal counsel, the Court granted continuing custody of the children to the Director [ 2023 CCO Order ]. In doing so, Judge Keyes concluded that “the children were in need of protection when they were removed and that they continue to be in need of protection”. Judge Keyes reserved full reasons and, as of the date of this decision, those reasons have not been released.
[14] Mother K has always strongly denied the basis for any child protection concerns. She says that MCFD relied on stereotypes about Indigenous people, as well as unsubstantiated rumours and lies, to conclude that her children were not safe with her and Father K. She alleges that, throughout the time when her children were in MCFD’s care, MCFD failed to arrange sufficient visits and support the children’s connections to her, their culture, and their community. She says that this situation reflects well known patterns of systemic racism in the child protection system. She filed this human rights complaint on February 18, 2020, and amended it on December 1, 2020, and September 7, 2021. [1] As amended, the complaint alleges that MCFD discriminated against Mother K in its services based on her race, ancestry, place of origin, family status, and marital status, in violation of s. 8 of the Human Rights Code.
[15] I turn now to MCFD’s dismissal application, which has two aspects. First, MCFD argues that the Tribunal should dismiss certain allegations because it does not have jurisdiction to decide them. Second, it argues that the Tribunal should dismiss allegations about events that happened outside the one-year time limit for filing a complaint. I consider each of these in turn.
III Should part of the complaint be dismissed because the Tribunal does not have jurisdiction to consider it?
[16] Section 27(1)(a) permits the Tribunal to dismiss all or part of a complaint that is not within its jurisdiction. Here, MCFD argues that the Tribunal does not have jurisdiction to decide Mother K’s allegations about: (1) its decisions to remove the children in 2015 and 2016, (2) access that was denied or restricted based on the Protective Intervention Order dated April 28, 2016, and (3) a parental capacity assessment dated November 20, 2017. MCFD argues that all these issues have been heard and decided by the BC Provincial Court, and the Tribunal does not have jurisdiction to review decisions or orders of the Court. In response, Mother K argues that the Tribunal has jurisdiction to decide whether MCFD made its decisions, and delivered its services, in compliance with the Code.
[17] I deny the application to dismiss part of the complaint under s. 27(1)(a). First, the Tribunal did not grant permission to file the application under that ground. Generally, the Tribunal will only consider a ground for dismissal where the respondent has been granted permission to apply under that ground through the Case Path Pilot: Ibrahim v. The Owners, Strata Plan LMS 1222 and another, 2024 BCHRT 183 at para. 5.
[18] Second, and more importantly, this is not a question of jurisdiction. The Tribunal has jurisdiction to decide allegations of discrimination by child protection agencies: Vancouver Aboriginal Child and Family Services Society v R.R, 2024 BCSC 97 [ VACFSS ] at para. 97. The BC Provincial Court has jurisdiction to apply the CFCSA . In some cases, the Tribunal and Court may be called upon to exercise their decision-making authority in the context of the same set of facts: X v. Ministry of Child and Family Services, 2024 BCHRT 333 at para. 57. Where the Court has made findings or orders about the subject matter of a human rights complaint, the Tribunal applies the same principles it does in any situation where another adjudicative body has made relevant legal and factual findings. This includes applying finality doctrines which prevent the re-litigation of issues that have already been decided: X at paras. 52-69. Where the Court has made findings that are determinative of a human rights allegation, the Tribunal may dismiss the allegation on the basis that it has no reasonable prosect of success: Code, s. 27(1)(c); see e.g. Gatica and another obo Temporary Foreign Workers from Guatemala v. Golden Eagle Blueberry Farm and others (No. 2), 2024 BCHRT 82 at para. 53.
[19] In this case, it does appear that the Provincial Court has made findings and orders about the subject of this human rights complaint. However, the Court has yet to release its reasons for the 2023 CCO Order. I have only minimal submissions from MCFD and no submissions from Mother K about how the Court’s decision, and the hearing that preceded it, impacts this human rights proceeding. I do not have the benefit of all the Court’s findings on factual issues that are at issue in both proceedings. In this situation, I cannot fairly assess which factual issues may be common to both proceedings, whether the parties should be prevented from re-litigating those issues in this forum, and/or the extent to which those issues are determinative of Mother K’s allegations of discrimination.
[20] The most I can say at this stage is that it is very unlikely the Tribunal would allow the parties to re-litigate issues that have been decided in the Provincial Court proceedings. That includes the issue of whether the children were in need of protection at the time of removal and throughout the period of the complaint. That finding may be determinative of Mother K’s allegation that removing the children, and maintaining custody of them between 2015 and 2021, was discriminatory. The Court’s reasons may also be dispositive of other allegations in the complaint. I note that, in its decision dated January 29, 2020, following a presentation hearing regarding the removal of Mother K’s youngest child, the Court heard and considered evidence about the frequency of Mother K’s visits with the children and how that impacted her ability to breastfeed the baby (para. 42), as well as her ability to maintain relationships with and between the children (para. 40), and MCFD’s efforts to maintain the children’s cultural connections (para. 44). If the parties have litigated those or other issues in the BC Provincial Court, and the Court makes a final decision about them, then the Tribunal may not allow Mother K to re-litigate those issues here in hopes of a different result: X at para. 59.
[21] Before concluding, I must briefly address two of MCFD’s specific arguments.
[22] First, MCFD argues the Tribunal does not have jurisdiction over allegations relating to a parental capacity assessment dated November 20, 2017, because the purpose of the assessment was to assist the Court in making its decision regarding custody and guardianship. It argues that it is up to the judge hearing the matter to decide how much weight, if any, to put on the assessment.
[23] This argument relates to an allegation in Mother K’s amended complaint that “MCFD subjected [Father K] to a biased parental assessment process which had to be redone by a culturally appropriate assessor”. I understand that, although the complaint only refers to Father K, the allegation also relates to Mother K. Mother K argues that, to the extent that MCFD relied on “biased conclusions” in the assessment to make decisions about her, this could support a finding of discrimination: citing KS v. BC Ministry of Children and Family Development, 2023 BCHRT 174 t para. 60.
[24] It is difficult to fully assess this allegation because there are very few particulars about it. However, it is clear to me that this is not an issue of jurisdiction. As I understand it, Mother K alleges that MCFD required her to undergo a parental capacity assessment which was culturally biased and then relied on it to make decisions about her relationship with her children. These are allegations about MCFD’s services, which fall within the Tribunal’s jurisdiction under s. 8. That the assessment may also be considered by the Court does not bear on the Tribunal’s jurisdiction.
[25] Finally, MCFD argues that the Tribunal does not have jurisdiction to decide allegations regarding access between Father K and the children while the Protective Intervention Order was in place. The parties agree that allegations regarding Father K’s access are moot, because Father K has withdrawn his complaint. However, Mother K argues that the Tribunal has jurisdiction to consider whether MCFD discriminated against her in respect of her access to the children, including because of the Protective Intervention Order against Father K.
[26] Again, this allegation is difficult to assess because it is unparticularized and, on its face, hypothetical. I agree, and I do not think it is in dispute, that the Tribunal could not find that the Protective Intervention Order violates the Code. To the extent that the MCFD relies on that Order to justify its decisions regarding Mother K’s access to her children, the Tribunal may consider it as part of the justification analysis: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 [ Grismer ] at para. 20. In other words, it is open to MCFD to argue that its decision about Mother K’s access were justified by the Order. For the purpose of this application, the important point is that this is an issue within the Tribunal’s jurisdiction under s. 8 of the Code.
[27] I deny the application to dismiss parts of the complaint under s. 27(1)(a). However, when the parties receive the Court’s full reasons respecting the 2023 CCO Order, MCFD may file another dismissal application based on finality doctrines, applying the principles the Tribunal set out in X.
IV Should part of the complaint be dismissed because it is filed late?
[28] Allegations of discrimination must be filed within one year of the alleged contravention: Code , s. 22(1). Allegations are timely if they occurred within one year of filing the complaint, or if they form part of a timely continuing contravention of the Code . The purpose of this time limit is “to require allegations of discrimination to be brought forward in a timely way so that remedial steps can be taken if appropriate”: School District v. Parent obo the Child , 2018 BCCA 136 at para. 79. The Tribunal has discretion to accept untimely allegations of discrimination if it is in the public interest to do so and no substantial prejudice will result to any person because of the delay: Code , s. 22(3).
[29] Mother K filed her complaint on February 19, 2020. MCFD argues that allegations about events before February 19, 2019, are out of time and should not be allowed to proceed. It asks the Tribunal to dismiss those allegations under s. 27(1)(g) of the Code.
[30] Mother K argues that all her allegations form part of a timely continuing contravention of the Code. In the alternative, she asks that the Tribunal exercise its discretion to accept late-filed allegations in the public interest.
[31] Although this is MCFD’s application, the burden is on Mother K to establish that her allegations are timely, as part of a continuing contravention: Dove v. GVRD and others (No. 3), 2006 BCHRT 374 at para. 21. Mother K also bears the burden of persuading the Tribunal to accept late-filed allegations under s. 22(3): Dove (No. 3) at para. 37.
[32] The first issue I must decide is whether any of Mother K’s allegations are late . This requires me to consider Mother K’s argument that all her allegations are timely, as part of a continuing contravention of the Code: s. 22(2). A continuing contravention requires a “succession of separate acts of discrimination of the same character or kind”: Chen v. City of Surrey , 2014 BCSC 539, aff’d 2015 BCCA 57; School District at para. 50. This is a fact and context specific analysis, which balances the interests of all parties in light of the Code’s purposes: Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para 19; Dove (No. 3) at para. 20.
[33] To anchor a continuing contravention, there must be at least one arguable contravention of the Code within the one-year time limit: School District at para. 73. An arguable contravention must set out facts that could prove: (1) Mother K has characteristics protected by the Code, (2) she was adversely impacted in services provided by MCFD, and (3) her protected characteristics were a factor in that adverse impact: Moore v. BC (Education), 2012 SCC 61 at para. 33.
[34] For allegations that are late, I must go on to consider whether to exercise my discretion to allow them to proceed because it is in the public interest to do so, and there is no substantial prejudice to any person because of the delay: Code, s. 22(3).
[35] In this case, I find it helpful to begin by identifying which of Mother K’s allegations share a common character. In my view, Mother K’s allegations can be grouped into three broad categories:
a. MCFD discriminated against Mother K by removing her children and retaining custody over them from November 2015 onward. This allegation is about MCFD’s assessment that Mother K’s children were not safe in her care, and its ongoing decision making not to return them to her.
b. MCFD discriminated against Mother K in respect of ensuring her access and connection to the children while they were in the Director’s custody from November 2015 until September 2021. These allegations are about MCFD’s role in facilitating visits and connection between Mother K and her children.
c. Allegations in the complaint which are not related to custody or access, and are not addressed in the application. These allegations appear to be about discrete events involving MCFD and Mother K.
[36] For each of these categories of allegations, I begin by identifying whether Mother K has identified an arguable contravention of the Code within the one-year time limit. I then consider the context of the allegations, including gaps in time, to determine whether they set out a continuing contravention. Where I find that the allegation is late, I go on to consider whether to allow the allegation to proceed under s. 22(3) of the Code.
A. Removal and retaining custody of the children (2015-2021)
[37] There is no dispute that the children remained in the custody of the Director when Mother K filed her complaint and amendments. MCFD argues that this fact cannot ground a timely allegation of discrimination; rather, it argues that it is a continuing effect of the decisions to remove the children in 2015 and 2016: Chen at para. 23. I agree with Mother K that the Tribunal’s recent case law is determinative of this issue.
[38] The removal of a child from their parents is a last resort: TL v. British Columbia (Attorney General), 2021 BCSC 2203 at para. 27. Under the CFCSA, MCFD is required to continually assess and make decisions about whether a child can be safely returned: see e.g. JW v. British Columbia (Director of Child, Family and Community Service), 2023 BCSC 512 at para. 72. It is “not a one-time event or final decision”: PL v. BC Ministry of Children and Family Development and others, 2023 BCHRT 58 at para. 36; KS at para. 44. In this context, where children remain in the custody of MCFD over a period of time, this is not a single decision with continuing consequences. Rather, this is the outcome of ongoing assessments and decision making which can connect to form a continuing contravention of the Code : PL at para. 38; KS at para. 44.
[39] In this case, Mother K alleges that MCFD relied on stereotypes about Indigenous people “as ‘drunks’ and ‘abusers’” to justify taking and retaining custody of the children from 2015 until she filed her amendment in 2021. She alleges that MCFD disregarded the input of the children’s First Nations Band, “twisted the facts to find fault with [her], and used lies to justify keeping the children away”, and that MCFD has wrongly accused her of abandoning or neglecting her children. When her baby was born in 2016, [2] Mother K alleges that she was subjected to heightened monitoring by MCFD and surveillance by the RCMP. She alleges that an MCFD social worker told the police that this was necessary to prevent Mother K from “stealing the baby” or “pushing her out the window”. Mother K alleges that MCFD prevented her from breastfeeding the baby, and rejected a plan that would allow the baby to stay with her in supportive housing in the community. Mother K alleges that these allegations reflect well-known patterns of discrimination against Indigenous people in child protection, and that her case is similar to the circumstances which the Tribunal found were discriminatory in RR : RR v. Vancouver Aboriginal Child and Family Services Society (No. 6), 2022 BCHRT 116, at paras 34-38 , overturned on other grounds in VACFSS; KS at para. 56.
[40] MCFD does not argue that these allegations fail to disclose an arguable contravention of the Code. Because these allegations are about ongoing decision making about whether Mother K’s children were safe in her care, there are no gaps in time. In this circumstance, I am satisfied that the allegations regarding removal and custody of the children constitute a timely continuing contravention of the Code. I deny the application to dismiss any part of this allegation under s. 27(1)(g) of the Code.
B. Access and connection to the children
[41] During the period of the complaint, Mother K lived on Father K’s First Nation reserve in a relatively remote part of the province. Her children were placed in different foster homes, including with foster parents who were not Indigenous. Mother K alleges that, throughout the time that her children were in MCFD’s care, MCFD failed to facilitate sufficient visits and maintain the children’s connection to their family, community, and culture. She alleges that, if she lived in a “larger, more central and better resourced location,” she would have greater access to her children. She alleges that this is discrimination based on her race, ancestry, family and marital status, and place of origin.
[42] Mother K points to several communications about her visits during the one year before she filed her complaint, which she says set out arguable contraventions of the Code. Respectfully, while these communications may be evidence to support an alleged contravention of the Code, they are not themselves arguable contraventions. For example, communications where Mother K is complaining to MCFD about their rules do not necessarily identify facts which could prove a Code- related adverse impact: see e.g. communications dated December 3, 2019, January 14, 2020, January 21, 2020. In addition, some of the communications appear to relate to the older kids’ access to their siblings: e.g. December 3, 2019; January 2020; February 11, 2020. The older children are not parties in this complaint. I can appreciate that Mother K has an interest in fostering connection between her children, and that decisions about visits between the children may affect her. However, in this legal process where she is represented by lawyers, she has not set out facts which explain or could prove that decisions about the older children’s access to their siblings adversely impacted her in MCFD’s services, based on her protected characteristics.
[43] That said, the communications do identify some specific timely events where Mother K’s visits with her children were cancelled or reduced:
a. April 10, 2019: MCFD put visits on hold until further notice because of a shortage of transport workers;
b. February 2 and 13, 2020: two visits were cancelled by the transporters, at least one of which because a transporter was not available;
c. March 4, 2020: MCFD reduced Mother K’s visits with the children from four visits per month to three, or four if resources were available; and
d. March 16, 2020: Mother K’s visit with the children was cancelled due to a shortage of transport workers.
These facts, if proven, could establish that Mother K was adversely impacted in MCFD’s services.
[44] Next, Mother K alleges, and there are facts to support, that her protected characteristics were a factor in these impacts as follows:
a. Family status : MCFD identified the size of Mother K’s family as a complicating factor in arranging the visits.
b. Place of origin: Mother K’s location on a reserve in a relatively remote community was a primary barrier in facilitating her visits. I acknowledge MCFD’s position, set out in its response, that “place of origin” is not the same as “place of residence”, and that a person’s place of residence is not protected under the Code: see eg. Gardezi v. Insurance Corporation of British Columbia, 2010 BCHRT 262 at para. 40 . However, applying the low bar of an ‘arguable contravention’, and in the absence of any submissions from the parties, I am not prepared to dismiss this ground at this stage. First, I am not aware of decisions where this Tribunal has interpreted “place of origin” in the context of an Indigenous person living on reserve. In my view, this is a novel issue that warrants consideration: R v. Imperial Tobacco Canada Ltd ., 2011 SCC 42 at para. 21; BC/Yukon Association of Drug War Survivors v. City of Abbotsford and another, 2020 BCHRT 86 at paras. 100-105. Second, there is no efficiency gained by dismissing a single ground at this stage: Byelkova v. Fraser Health Authority, 2021 BCSC 1312 at para. 115. In fact, doing so may later prove embarrassing, given the complex ways in which a person’s characteristics intersect, “compounding to form an individual or group’s experience”: R v. Sharma, 2022 SCC 39 at para. 196.
c. Race and ancestry: Mother K’s location on reserve in a relatively remote part of the province was connected to her First Nations ancestry. In addition, Mother K alleges that the impacts of not being sufficiently connected to her children included that she was not able to transmit her First Nations culture and teachings. As a First Nations person, she has the right to transmit her culture, including cultural practices, to future generations: UN Declaration on the Rights of Indigenous People, Article 13.
d. Marital status: I understand that Mother K alleges that her relationship with Father K was a barrier to access with her children, because of MCFD’s concerns about him and the Protective Intervention Order.
At a hearing, the Tribunal would not necessarily analyse these grounds individually and would undertake an intersectional analysis to assess discrimination: see e.g. Hale v University of British Columbia Okanagan (No. 5), 2023 BCHRT 121 at para. 216.
[45] Based on the above, I am satisfied that Mother K has set out timely arguable contraventions of the Code respecting MCFD’s service of arranging visits and communications with her children.
[46] Mother K alleges that, throughout the period where MCFD had custody of her children, her visits were cancelled, reduced, or restricted. She points to an internal email dated January 8, 2019, noting that the local MCFD office only had “53 hours per week of transport/visit hours”, and Mother K’s visits with her children “take up a substantial piece of these hours”. MCFD was then strategizing about ways to reduce the amount of time that children were being “driven around”, including by not making up missed visits. Mother K does not detail all of these alleged incidents, but gives the following examples:
a. Undated: MCFD stopped Mother K’s calls with the children after white foster parents falsely alleged that she and Father K were fighting on a call;
b. August – November 2017: MCFD had trouble setting up visits between Mother K and one of her children because the child’s foster parent was not returning calls;
c. August 29, 2017: MCFD temporarily suspended Mother K’s visits because she did not have her phone and was using Father K’s phone to communicate;
d. February 23, 2018: a visit was postponed, and Mother K was no longer allowed to visit her younger children with the older children;
e. February 2018 – April 2018: There were no visits at all in this period. Mother K was begging for visits to be reinstated, and complaining that this was emotional abuse; and
f. Summer 2018: There were no visits during this period.
[47] Mother K alleges that these types of issues were ongoing “from the moment MCFD apprehended the children and took them into care”. She argues that they were similar in character, with no significant gaps in time, and – as such – form a timely continuing contravention of the Code. MCFD has not made any specific submissions about this group of allegations.
[48] I agree with Mother K that allegations relating to her visits and communications with the children while they were in MCFD’s care share a common character. They share the theme of Mother K allegedly being denied meaningful or regular connections with her children, including to transmit her culture, for reasons including her physical location, the size of her family, her spouse, and allegedly negative assumptions about her based on her race and ancestry. She has pointed to some specific examples, but says the problem was ongoing. It appears the issues were well-documented in MCFD’s records, which have now been disclosed. Given the nature of the allegations and the challenges that MCFD was facing in facilitating regular visits between Mother K and her children, I am satisfied that there are no significant gaps to weigh against a continuing contravention. Even if there were, I would not find the gaps to be determinative in a context where Mother K alleges that this was a pervasive and ongoing challenge throughout the period when the children were in MCFD’s custody.
[49] On balance, I am satisfied that Mother K’s allegations regarding her access to the children between 2015 and 2021 form part of a timely continuing contravention of the Code. They are not late, and I decline to dismiss them under s. 27(1)(g).
C. Other allegations
[50] Mother K also makes the following allegations in her amended complaint, some of which are undated:
a. An MCFD social worker asked Mother K and Father K, “don’t you believe in birth control?” (undated),
b. MCFD did not tell Mother K when her children were in a car accident (undated),
c. MCFD refused to meet with Mother K and Father K together, referred to them as “single parents”, and told them they were not considered a “couple” or a “family” (undated),
d. MCFD refused to accept a cultural package that Mother K created for the children, outlining their specific cultural needs and information (undated),
e. MCFD agreed to supply a phone for one of the children, but did not do so (undated),
f. MCFD ignored Mother K’s concerns about one of the children being seriously harmed by a foster parent (undated),
g. MCFD failed to consider appropriate family placements that Mother K proposed (undated),
h. MCFD refused to allow the children to attend funerals, birthdays, and other important family and cultural gatherings with Mother K in her community, including the baby’s naming ceremony (undated), and
i. MCFD subjected Mother K to a biased parental assessment process (November 20, 2017).
[51] Neither of the parties have specifically addressed these allegations in their submissions. In my view, they are of a different character than the allegations regarding custody and access which I have set out above. They do not set out any timely arguable contraventions of the Code. As such, they cannot be part of a timely continuing contravention and are late. I will refer to them together as the Late Allegations.
[52] I have discretion to accept the Late Allegations if it is in the public interest to do so and there is no substantial prejudice to any party. The public interest is assessed in light of the purposes of the Code , which include identifying and eliminating persistent patterns of inequality, and providing a means of redress for persons who are discriminated against: s. 3. The Tribunal may consider factors such as the complainant’s interest in accessing the Tribunal, the length and reason for the delay in filing, whether the complainant had access to legal advice, and the novelty or importance of the human rights issues raised: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite , 2014 BCCA 220 [ Mzite ] at paras. 53-81. This list of factors is not exhaustive. The Tribunal then considers whether any substantial prejudice will result to a party having to defend against a stale claim because of the delay.
[53] As I have said, the parties did not specifically address the Late Allegations in their submissions but rather made general arguments about public interest and prejudice. I begin with the public interest.
[54] First, I consider Mother K’s explanation for the delay in filing: Andres v. Hiway Refrigeration Ltd. and Grehan, 2009 BCHRT 135 at para. 7. In her complaint form, Mother K explained that she filed the complaint late because Father K had been “trying to do everything himself, he tried talking to many different people but no one wants to listen or help. We just thought there was no one else”. MCFD argues that this explanation does not support the public interest in hearing the complaint. It cites cases where the Tribunal has held that ignorance of the Code is not, on its own, an acceptable reason for a delay in filing: Britz v. First West Credit Union, 2022 BCHRT 92 at para. 20
[55] I am satisfied that Mother K has provided a sufficient explanation for her delay in filing. Although the Tribunal generally does not accept ignorance of the Code as an explanation favouring the public interest, the systemic barriers faced by Indigenous people in the human rights system require the Tribunal to consider this factor with more nuance. Indigenous people have been disproportionately underrepresented in complaints to this Tribunal: Campbell v. Vancouver Police Board, 2019 BCHRT 12 at para. 18. In Expanding Our Vision: Cultural Equality & Indigenous Peoples’ Human Rights (2020) , Justice Ardith Walpetko We’dalx Walkem explored the reasons why. She found that many Indigenous people do not know how to file a complaint, do not think filing a complaint would make a difference, do not think they would be believed: p. 13. Given the Tribunal’s commitment to reducing these barriers to make the Code’s protections meaningful to Indigenous people, I accept there is a public interest in accepting complaints from Indigenous people who file their complaints late for reasons identified in the Expanding Our Vision report.
[56] Next, I consider whether there is anything about the allegations that favours the public interest, including whether it raises a novel issue: Mzite at para. 66. Again, the parties’ arguments are made at a very high level, relating to the public interest in hearing allegations of anti-Indigenous discrimination in child protection.
[57] Mother K says that there is a public interest in hearing a complaint from an “impoverished and highly marginalized Indigenous woman” raising allegations of discrimination within a system that this Tribunal has recognized is “stacked against Indigenous families”: RR at para. 6. She cites the broader context of colonialism, including the mass and disproportionate removal of Indigenous children from their families, communities, culture, tradition, and language by the Canadian state: RR at paras. 35-36. In response, MCFD argues that the Tribunal frequently addresses complaints of discrimination with respect to child protection, including involving an Indigenous mother in RR, and this complaint does not raise unique or novel issues.
[58] The Tribunal has recognized there is a strong public interest in complaints brought by Indigenous people about anti-Indigenous discrimination: RR v. Vancouver Aboriginal Child and Family Services Society (No. 3), 2019 BCHRT 269 at para. 16; Smallboy v. Grafton Apparel, 2021 BCHRT 15 at paras. 40-42; Mr. C v Vancouver Coastal Health Authority and another, 2021 BCHRT 22 at para. 90; and Spooner v. Dawson Construction and another, 2021 BCHRT 49 at para. 23. That public interest is heightened in the context of a government respondent: PL at para. 52. In PL, the Tribunal explained that “[t]here is a strong public interest in ensuring that state power is exercised in compliance with the human rights protections under the Code , and, in this context, the UN Declaration on the Rights of Indigenous People”: para. 52. In PL, the Tribunal also found that there was some novelty to the complaint, alleging anti-Indigenous discrimination by MCFD. After considering the same cases cited by MCFD here, the Tribunal concluded that “one final decision about Indigenous-specific discrimination in the delivery of child protection services is not, in my view, an exhaustive treatment of the issue”: para. 51. I agree.
[59] That said, this is not a case where I am considering whether any of Mother K’s allegations can proceed. I have already found that the primary allegations in Mother K’s complaint – regarding custody and access – are timely. They will proceed. Subject to any other decisions about the impact of the BC Provincial Court proceedings, the public interest in hearing complaints of anti-Indigenous discrimination will be addressed when the Tribunal hears those issues. The issue here is whether it is in the public interest to accept the Late Allegations, which was not the focus of Mother K’s submissions. In the circumstances of this case, I am not persuaded that it is in the public interest to allow these specific allegations to proceed.
[60] First, the Late Allegations are mostly undated and un-particularized. While this is not, on its own, a bar to proceeding, it means that I cannot assess how late the complaint is or the public interest in the specific allegation. Where a complainant is self-represented, the Tribunal accounts for the barriers they may face in particularizing their complaints and accepts that complaints may arrive “in ragged form”: Lord v. Fraser Health Authority , 2021 BCSC 2176 at para. 36; PL at paras. 30-31. Here, however, Mother K is represented by legal counsel and has had the benefit of disclosure. It is not apparent to me why the allegations could not be dated (even roughly) and particularized to explain how they each amount to discrimination. For example, Mother K alleges that she was subjected to a “biased” parental capacity assessment but does not set out any facts about why she says it was biased, how it impacted her in MCFD’s services, or how it was connected to her protected characteristics. I acknowledge systemic issues with parental capacity assessments, but social context alone is not enough to ground a complaint of discrimination: Québec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para. 88.
[61] Second, I have considered whether allowing these allegations to proceed would further the just and timely resolution of the complaint. The Tribunal sometimes declines to parse and partially complaints and dismiss some allegations where the complaint must be understood contextually as a whole, and where there is no efficiency to be gained: e.g. Fraser v. Tolko Industries Ltd. and others, 2021 BCHRT 118 at para. 214; Byelkova at para. 115. In this case, however, I consider that the allegations regarding custody and access span a six-year period and will require significant resources to address. It is not apparent to me that all the Late Allegations are directly connected to the custody and access allegations, such that the Tribunal will be required to hear evidence and make findings about them anyway. It is possible that they would expand the scope of the hearing, requiring different witnesses and documents. In my view, this is a circumstance where it may not be efficient to proceed with the Late Allegations, notwithstanding some of Mother K’s allegations will be heard.
[62] I acknowledge the possibility that some of the Late Allegations may intersect with the custody and access issues, such that the Tribunal may be called on to hear evidence and making findings about them regardless of my decision here. However, in my view their relevance should focus on the primary issues in Mother K’s complaint: MCFD’s assessment that the children were not safe in her care, and its role in facilitating sufficient visits and connection between Mother K and her children.
[63] In sum, I am not persuaded that it furthers the public interest to accept the Late Allegations. It is not necessary to consider whether MCFD would be substantially prejudiced. I decline to exercise my discretion to accept the Late Allegations under s. 22(3) of the Code, and they are dismissed under s. 27(1)(g).
V CONCLUSION
[64] The application to dismiss part of Mother K’s complaint under s. 27(1)(a) of the Code is denied.
[65] The application to dismiss part of Mother K’s complaint under s. 27(1)(g) is granted in part. I dismiss the Late Allegations, which are set out above in my decision.
[66] The next step in this process is to schedule the complaint for a hearing. When the Provincial Court releases its full reasons regarding the 2023 CCO Order, MCFD may file another dismissal application relating to allegations that it says have been determined in that proceeding.
[67] Finally, I note that there are various references in this file to the complaint being brought on the ground of Indigenous identity. Indigenous identity was added to the Code on November 25, 2021 – after Mother K’s complaint and amendments were filed. It does not appear that the complaint has been since amended to add the ground of Indigenous identity. I have therefore not assumed that the complaint may proceed on this ground.
Devyn Cousineau
Tribunal Member