The Grandmother v. BC Ministry of Children and Family Development, 2025 BCHRT 67
Date Issued: March 11, 2025
File: CS-000231
Indexed as: The Grandmother v. BC Ministry of Children and Family Development, 2025 BCHRT 67
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:
The Grandmother
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)(c)
Tribunal Member: Andrew Robb
Counsel for the Complainant: Aleem Bharmal, KC
Counsel for the Respondent: Rochelle Pauls
I INTRODUCTION
[1] The complainant is the maternal grandmother of two children, a Brother and a Sister [the Children ]. In this decision I refer to the complainant as the Grandmother, and I refer to the Children’s mother as the Mother.
[2] The Brother was born in 2016 and the Sister in 2017. The Ministry of Child and Family Development [the Ministry ] believed the Mother was unable to care for the Children, and the Grandmother told the Ministry she wanted to be the Children’s permanent guardian. But in June 2017, and again in December 2018, the Ministry refused to support the Grandmother as a permanent guardian for the Children. The Grandmother says the Ministry’s decision not to support her was based, in part, on stereotypes and prejudice related to her mental health history. She says this was discrimination contrary to s. 8 of the Human Rights Code .
[3] The Ministry acknowledges that the Grandmother’s mental health status may have contributed to the factors it considered in assessing whether to support her as the Children’s permanent guardian. But the Ministry says this was not discrimination based on her disability because its decision not to support her was based solely on its assessment of her ability to provide stability and long-term care for the Children. In the alternative, the Ministry says its decision was justified in light of its legal obligations and safety concerns about the Children if they were in the Grandmother’s care.
[4] The Ministry applied to dismiss the complaint on the basis that it has no reasonable prospect of success. The Grandmother filed a response to the application, which included a request to anonymise her identity. The Ministry filed a reply submission. Later, the parties discovered that the Ministry had mistakenly failed to disclose one of the affidavits it relied on in the application to dismiss. To avoid any unfairness arising from this mistake, the Tribunal directed that the Grandmother could file an amended response to the application to dismiss, after reviewing the late-disclosed affidavit. The Ministry had an opportunity to reply to the amended response, but did not do so.
[5] To make this decision, I have considered all the information filed by the parties, including the Ministry’s late-disclosed affidavit and the Grandmother’s amended response and second affidavit. In these reasons, I only refer to what is necessary to explain my decision.
[6] For the following reasons, I allow the Grandmother’s application to anonymise her identity, but I dismiss the complaint because I find it has no reasonable prospect of success. I find the Grandmother has no reasonable prospect of proving that stereotypes or prejudice about her mental disability were factors in the Ministry’s decisions not to support her as a permanent guardian for the Children. Despite this, I am not satisfied she has no reasonable prospect of proving a connection between her disability and the Ministry’s decisions, based on the Ministry’s consideration of issues related to her disability. However, I find the Ministry is reasonably certain to prove its actions were justified, including its decisions not to support the Grandmother as permanent guardian for the Children, based on concerns about the Children’s safety.
II BACKGROUND
[7] The Ministry provides child protection services under the Child, Family and Community Service Act, which mandates that the safety and well-being of children must be the paramount consideration in all the Ministry’s decision-making.
[8] The Grandmother acknowledges she has a history of heavy drinking and mental health disabilities, which had serious effects on her life. The Ministry removed her own children from her care in the 1990s or early 2000s. But she says she later stopped drinking, and began living a more positive life.
[9] The Mother has disabilities. When the Brother was born the Ministry had concerns about the Mother’s ability to care for him, due to her disabilities. The Ministry provided documents showing:
a. Before the Brother left the hospital where he was born, the Mother, the Grandmother, and the Ministry agreed that the Mother and Brother would live at the Grandmother’s home, and the Mother would not leave the home with the Brother, unless the Grandmother was also present.
b. When the Brother was about a month old, the relationship between the Mother and Grandmother broke down, and the Mother moved out of the Grandmother’s home, leaving the Brother with the Grandmother. The Ministry agreed that the Grandmother would continue as the Brother’s caregiver.
c. The Mother and Grandmother went to counseling and worked on their relationship. By the time the Brother was about nine months old, the Mother had moved back in with the Grandmother, and the Ministry considered the Mother to be the Brother’s primary guardian.
d. Soon after the Mother moved back in with the Grandmother, there was further conflict between them. The Grandmother reported to the Ministry that she had concerns about the Mother neglecting her own health, even though she was pregnant, and about the Mother neglecting the Brother’s health.
e. When the Brother was about 12 months old, the Grandmother told the Ministry she remained concerned about the Mother neglecting the Brother’s health, and about her own conflicts with the Mother. She said she wanted to be the Brother’s caregiver but she could not continue living with the Mother.
f. Shortly after making this report to the Ministry, the Grandmother had a relapse of heavy drinking. During her relapse she threatened to harm herself and others. She was briefly detained under the Mental Health Act .
[10] The Grandmother acknowledges that she threatened suicide and made threats against others, during her relapse. She says the relapse happened because the Ministry ignored her requests for more support, to help her and the Mother care for the Brother.
[11] Shortly after the Grandmother’s relapse, the Ministry removed the Brother from the Grandmother’s home and placed him in a foster home. The Ministry says this was due to increasing conflict between the Grandmother and the Mother, and concerns about the Brother’s health. The Ministry also says the Grandmother was leaving the Brother alone with the Mother at times, contrary to her agreement with the Ministry. The Grandmother says she only left the Brother with the Mother briefly, on a few occasions: once during her relapse, and on other occasions when she went to the Ministry’s office to ask for more support. The Grandmother also says she took steps to address the Brother’s health issues: she called the provincial nurse hotline when he appeared ill, and she complied with the advice she received on the hotline.
[12] When the Sister was born, the Ministry placed her in the same foster home as the Brother. The Children continued to live in the foster home for several years. The Grandmother had regular time with the Children while they lived in the foster home.
[13] After the Sister was born, the Grandmother told the Ministry she was interested in being a permanent guardian for both Children. In a letter dated June 13, 2017, the Ministry explained why it would not support the Grandmother’s request to be their permanent guardian [the First Decision Letter ]. The First Decision Letter said the reasons included:
a. The Grandmother’s relationship with the Mother was marked by conflict.
b. The Ministry believed the Grandmother had left the Brother alone with the Mother for days at a time, even though the Grandmother knew the mother did not feed him adequately.
c. The Grandmother’s medical records showed her mental health was an ongoing issue. The Ministry referred to her relapse in March 2017, four additional incidents of suicidal thoughts in 2014 and 2015, and the fact that the Public Guardian and Trustee managed her finances, until 2015, due to her mental health history.
d. The Ministry had received reports from people who knew the Grandmother, expressing concern about her becoming the Children’s guardian, based on her previous parenting, her mental health struggles, and her difficult relationship with the Mother.
[14] The First Decision Letter acknowledged that the Ministry previously approved the Grandmother as a temporary caregiver for the Brother, when the Brother was about a month old and the Mother moved out of the Grandmother’s home. But the letter said that in order to support the Grandmother’s request to be the Children’s permanent guardian, the Ministry would need to see “a significant period of emotional/mental stability in addition to a relationship with [the Mother] that does not result in verbal and physical aggression”.
[15] The Grandmother filed this human rights complaint after she received the First Decision Letter. The Ministry’s response to the complaint, and the parties’ submissions in the application to dismiss, describe what happened next.
[16] The Grandmother requested an administrative review by the Ministry of its refusal to support her as the Children’s guardian. In December 2017, the administrative review was completed. It confirmed the Ministry’s decision.
[17] In early 2018, the Grandmother renewed her request to be a permanent guardian for the Children, and the Ministry initiated a home study process, which took several months. In September and October 2018, as part of the home study process, the Grandmother provided reference letters from friends, her therapist, her pastor, a support worker, and the foster mother with whom the Children lived. All the letters said positive things about the Grandmother’s parenting skills. Some of them described positive steps she had taken to address her mental health issues.
[18] In a letter dated December 27, 2018, the Ministry advised the Grandmother that it was still unable to support her request for permanent care of the Children [the Second Decision Letter ]. The Second Decision Letter addressed her mental health issues, among other things. It said Ministry staff had reviewed her medical records, and they showed that she had been diagnosed with borderline personality disorder, with avoidant, dependent, and obsessive-compulsive characteristics. The Second Decision Letter said the Ministry had concerns about “the projected impact of this diagnosis on your ability to place the needs of the children before your own.”
[19] The Second Decision Letter went on to note interactions with Ministry staff during the home study period, in which the Grandmother appeared to exhibit symptoms of anxiety and a lack of emotional regulation. It said, “You have identified that you have lost the social supports that you previously had, which is another indicator of people diagnosed with your mental health condition, and is also consistent with your personal history.” The letter noted that the Grandmother said she met with a clinical counselor in 2016 who thought that her symptoms were related to PTSD, but her physician had not provided any information to suggest that her diagnosis of borderline personality disorder was inaccurate.
[20] In response to the application to dismiss, the Grandmother provided a psychologist’s report from 2021, stating that she did not meet the diagnostic criteria for borderline personality disorder at the time of the psychologist’s observations, although she may have previously met those criteria. The Ministry points out that this report is based on observations made by the psychologist several years after the events described in the Grandmother’s complaint.
[21] The Second Decision Letter also referred to medical records showing the Grandmother had been hospitalised due to suicidal ideation on four occasions in 2014 and 2015, and in 2015 she lived in supported care and had her financial independence removed under the Adult Guardianship Act .
[22] With respect to the Grandmother’s reference letters, the Second Decision Letter said they were all from people who had not known her for long. The letter emphasised that none of the Grandmother’s own children were willing to provide references for her.
[23] The Second Decision Letter went on to note that after the Brother was removed from the Grandmother’s home, a medical assessment raised concerns about his physical development and perceived neglect. The letter said these medical issues arose during a time when the Grandmother was responsible for the Brother’s safety and development.
[24] The Second Decision Letter also said a “guardianship consultant” had reviewed the Ministry’s file from a neutral perspective, and the consultant found there was insufficient evidence to conclude that the Grandmother would be able to provide stable care of the Children. The consultant agreed with the Ministry’s position that evidence of several years of stability would be necessary to mitigate the Ministry’s concerns about the Grandmother.
[25] The parties’ submissions provide some information about what happened after the Second Decision Letter. It appears the Ministry continued to have concerns about the Grandmother’s conduct in 2019, although the Grandmother disputes the facts underpinning these concerns.
[26] The parties agree that in 2022, after a hearing, the Provincial Court decided that the Sister should live mainly with her father, and part-time with the Grandmother, and the Brother, whose father is deceased, should live with the Grandmother full-time. But the reasons for the Court’s decision are not before me, and neither party suggests the Court’s decision is relevant to the Grandmother’s human rights complaint.
III DECISION
A. Request for anonymity
[27] In her response to the application to dismiss, the Grandmother requested that her name be anonymised, because the Children could be identified if she is identified as their grandmother. The Ministry did not address this request in its reply submission.
[28] Rule 5(7) of the Tribunal’s Rules of Practice and Procedure presumes that a minor’s privacy interests outweigh the public interest in accessing the Tribunal’s proceedings. The Grandmother shares a last name with the Children, and I accept that if she is not anonymised, the Children could be identified. I have the same concern about identifying the Mother. I find it is appropriate to limit publication of information that could identify the Children in connection with this complaint. I order:
a. In any decisions it publishes, and any documents which it makes available to the public, the Tribunal will anonymise the names of the Grandmother, the Mother, and the Children.
b. No person may publish information which could identify the Grandmother, the Mother, or the Children in connection with this complaint.
B. Scope of the complaint
[29] As a preliminary matter, the Ministry argues that the scope of the complaint should only include events in 2017, before the complaint was filed, including the First Decision Letter. The Ministry made this argument in its reply submission and the Grandmother did not apply to file a further submission in response. The Grandmother’s materials do not explicitly address the scope of the complaint, but I understand her position is that the Second Decision Letter is within the scope of the complaint, since her argument in response to the application to dismiss is based, in part, on the Ministry’s decision-making process that led to the Second Decision Letter.
[30] For the following reasons, I find the Ministry’s decision-making process that led to the Second Decision Letter, and the Second Decision Letter itself, are within the scope of the complaint.
[31] A complainant who wants to amend their complaint during an outstanding application to dismiss must apply to do so: Rule 24(4)(b) of the Tribunal’s Rules of Practice and Procedure . The purpose of this rule is to ensure that a respondent who files an application to dismiss a complaint does not face a moving target: Pausch v. School District No. 34 and others , 2008 BCHRT 154 at paras. 28-29. Respondents are entitled to know the allegations against them to assess whether, or on what basis, to bring their application to dismiss the complaint: Purdy v. Douglas College and others , 2016 BCHRT 117 at paras. 35-37.
[32] At the same time, the Tribunal’s complaint forms are not the equivalent of pleadings in a civil litigation process: White v. Nanaimo Daily News Group Inc. and Klaholz , 2004 BCHRT 350 at para. 23 . Even if the Grandmother’s response to the application to dismiss adds allegations to the complaint, the Tribunal may allow an amendment under Rule 24(4)(b) if it would be procedurally fair to do so, and it would further the purposes of the Code: Hawknes v. Vancouver Public Library (No. 2), 2017 BCHRT 250 at para. 86.
[33] The complaint, filed October 11, 2017, repeatedly stated that the alleged discrimination by the Ministry was ongoing. The Grandmother did not amend the complaint, but the Ministry’s response, filed March 14, 2019, defended its actions after the complaint was filed, including the process that led to the Second Decision Letter. The application to dismiss, and the Grandmother’s response to the application, refer to events from after the complaint was filed, including the Second Decision Letter and the events leading up to it.
[34] I find the Grandmother’s reliance on the Second Decision Letter does not change the scope of her complaint. The materials filed by the parties indicate they both understood that the Grandmother alleged ongoing discrimination based on the Ministry’s refusal to consider her as a permanent guardian for the Children, during 2017 and 2018.
[35] I am satisfied that it would be procedurally fair to consider events up to and including the Second Decision Letter, in this decision. Both the First and Second Decision Letters reach the same conclusion based on similar findings. The Ministry’s application to dismiss includes evidence about its interactions with the Grandmother after the First Decision Letter, including evidence about the process that led to the Second Decision Letter. The Ministry’s submissions in support of the application address both the First and Second Decision Letters. The Ministry’s argument that its conduct was justified relies, in part, on the home study process, which took place after the complaint was filed.
[36] In these circumstances, I find it would be consistent with the purposes of the Code , and not unfair to the Ministry, to include the Second Decision Letter in the scope of the complaint.
[37] I do not understand the Grandmother to suggest, and I do not find, that the scope of the complaint extends beyond the Second Decision Letter. In particular I find that later events leading up to the Court’s decision in 2022 are not within the scope of the complaint.
C. Request to defer decision
[38] In her amended response to the application to dismiss, the Grandmother argues that the Tribunal should defer making a decision about the application because her argument relies, in part, on the Tribunal’s decision in RR v. Vancouver Aboriginal Child and Family Services Society (No. 6) , 2022 BCHRT 116 [ RR No. 6 ], which is currently subject to judicial review and appeal proceedings in the courts.
[39] The Tribunal issued its decision in RR No. 6 after the Ministry applied to dismiss the complaint, but before the Grandmother filed her initial response. The Grandmother’s response cites the parts of RR No. 6 that describe how a complainant can prove a connection between their protected characteristic and the actions of child welfare authorities: RR No. 6 at paras. 298-304. The Ministry did not address RR No. 6 in its reply submission.
[40] After the Grandmother filed her initial response to the Ministry’s application to dismiss, the BC Supreme Court allowed an application for judicial review of the Tribunal’s decision in RR No. 6 : Vancouver Aboriginal Child and Family Services Society v RR , 2024 BCSC 97. The Court’s decision overturned some parts of RR No. 6 that the Grandmother relies on. RR appealed the Court’s decision, but the Court of Appeal has not yet issued its decision on the appeal.
[41] The Grandmother says the Tribunal should wait for the Court of Appeal’s decision before it makes a decision about the Ministry’s application to dismiss her case, and invite further submissions from both parties after the Court of Appeal issues its decision, in order to avoid the possibility of an application for reconsideration. The Ministry did not take a position on this request by the Grandmother.
[42] I am not persuaded that fairness requires deferral of this decision. The Grandmother argues that the Supreme Court’s decision may incorrectly set out the test for discrimination, in cases involving child welfare authorities, but that test is not the basis for my decision. While I refer to RR No. 6 below, in considering whether the Grandmother has no reasonable prospect of proving a connection between her mental disability and the adverse impacts on her caused by the Ministry, the basis for my decision is my finding that the Ministry is reasonably certain to prove it had a bona fide justification for its conduct. To the best of my knowledge the legal principles I rely on in reaching this conclusion are not controversial, and are not at issue in the judicial review proceedings related to RR No. 6 .
D. Section 27(1)(c) – No reasonable prospect of success
[43] The Ministry applies to dismiss the complaint under s. 27(1)(c) of the Code , on the basis that it has no reasonable prospect of success. Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[44] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence ” : Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan , 2013 BCSC 942 at para. 77 .
[45] The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the “realm of conjecture”: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27 .
[46] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia , 2008 BCSC 1026 at para. 34 . However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City) , 2017 BCCA 242 at para. 67.
[47] To prove her complaint at a hearing, the Grandmother would have to prove she has a characteristic protected by the Code , she was adversely impacted in the services she received from the Ministry, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33. If she did that, the burden would shift to the Ministry to show there was a bona fide reasonable justification for the impact on the Grandmother. If it is reasonably certain that the Ministry will establish a justification defence at a hearing of the complaint, then there is no reasonable prospect the complaint will succeed: Purdy at para. 50.
[48] The Grandmother says she has a history of mental health issues, including depression and substance abuse issues. In addition, she says the Ministry perceived her to have borderline personality disorder, although she says this perception was based on a misdiagnosis. As I understand her argument, she says the First and Second Decision Letters, and the Ministry’s conduct towards her in general, show that the Ministry refused to support her as a permanent guardian for the Children due, in part, to stereotypes and prejudice about her mental disabilities.
[49] The Ministry does not deny that the Grandmother had a mental disability at the relevant times. Nor does it deny she was adversely impacted by the Ministry’s decision not to support her request to be a permanent guardian of the Children. But it says she has no reasonable prospect of proving a connection between this decision and her mental disability, real or perceived. In the alternative, the Ministry says it is reasonably certain to prove the decision was justified.
[50] To establish a justification defence at a hearing, the Ministry would have to prove its actions were based on a standard that it adopted in good faith, for a purpose rationally connected to the Ministry’s function, and the standard is reasonably necessary to the accomplishment of that function. This would require the Ministry to show it could not have done anything else reasonable or practical to avoid the negative impact on the Grandmother, and it accommodated her to the point of undue hardship: British Columbia (Public Service Employee Relations Commission) v. BCGSEU , [1999] 3 SCR 3 [ Meiorin ] at para. 38; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 [ Grismer ] at para. 20.
a. Connection
[51] For the following reasons, I am not satisfied that the Grandmother has no reasonable prospect of proving a connection between her disability and the Ministry’s decision not to support her as the Children’s permanent guardian. While I find she has no reasonable prospect of proving that prejudice or stereotypes played a role in the Ministry’s decision-making, I am not satisfied that she has no reasonable prospect of proving a connection between her mental disability and the factors the Ministry considered in deciding not to support her.
i. Discrimination based on stereotypes
[52] The Grandmother says her diagnosis of borderline personality disorder and her past mental health issues led the Ministry to make negative assumptions about her caregiving abilities, and this prevented the Ministry from seeing her for the stable and responsible caregiver she had become.
[53] The Ministry denies this. It says its decision not to support her as the Children’s permanent guardian was based solely on the safety and well-being of the Children, and on its assessment of the Grandmother’s ability to provide stable, long-term care for the Children.
[54] The Grandmother argues that, if she proved at a hearing that prejudice and stereotypes about her mental health played a role in the Ministry’s decisions about her, that would be sufficient to establish a connection between her mental disability and the adverse impact of the Ministry’s refusal to support her. Her argument is based on RR No. 6 at paras. 302-304, where the Tribunal said that mental health issues, in themselves, are not barriers to parenting, and child protection intervention which assumes that a person is unsafe to parent based on stereotypes or prejudice about mental health issues cannot be justified under the Code .
[55] On judicial review, the BC Supreme Court found that even if the Ministry relies on stereotypical reasoning, in its decision-making, that is not necessarily discriminatory: 2024 BCSC 97 at para. 150. The Grandmother suggests the Court may have been incorrect on this point, hence her argument that my decision on the Ministry’s application to dismiss her complaint should be deferred pending the Court of Appeal’s decision about RR No. 6 .
[56] However, for the following reasons, I find the Grandmother has no reasonable prospect of proving that prejudice and stereotypes about her mental health history were a factor in the Ministry’s actions or decisions about her. While there is evidence the Ministry considered her mental health issues, in deciding not to support her as a permanent guardian for the Children, in my view that evidence is not sufficient to bring her claim about prejudice and stereotypes out of the realm of conjecture.
[57] The First Decision Letter refers to the Grandmother’s borderline personality diagnosis in the context of the removal of her own children, in the 1990s. But the reasons it gives for refusing to support her request to be the Children’s permanent guardian are related to what happened while the Brother was living with her in 2017, and to medical records showing she had incidents of suicidal thoughts that led to hospitalisations in 2014 and 2015.
[58] The Second Decision Letter’s reference to “the projected impact” of the Grandmother’s borderline personality diagnosis, and its finding that her recent loss of social supports “is another indicator of people diagnosed with your mental health condition” could suggest a problematic fixation on her diagnoses, rather than her abilities as a caregiver. The letter expresses doubt about the Grandmother’s argument that her symptoms were connected to PTSD, rather than borderline personality disorder, in a way that suggests the nature of her disability was the problem, rather than her abilities as a caregiver.
[59] Viewed on their own, the references to the Grandmother’s mental health conditions, in the First and Second Decision Letters, could suggest that prejudice or stereotypes played a role in the Ministry’s decisions about her. But these references must be seen in the context of the medical records the Ministry considered, which documented the impact of the Grandmother’s mental disabilities. The Ministry provided evidence that those records included:
a. October 2011 hospital records referring to the interplay of the Grandmother’s depression and borderline personality disorder, and her “continuous” thoughts of suicide. These records also refer to an overdose incident in 2010, and related hospitalisation for about a month.
b. April 2014 hospital records referring to her borderline personality disorder and an associated struggle with chronic and sometimes extreme suicidal ideation. The same records refer to her long history of suicidal crises and attempts, with hospitalisations for extended periods of time.
c. Records showing she was admitted to a hospital mental health ward, on a voluntary basis, from October to December 2014. Hospital records from November 2014 refer to “depression in the context of a borderline personality” and a “longstanding history of affective instability, chronic suicidal thoughts, low self-esteem, interpersonal difficulties and impulsive behavior.”
d. Records showing she was brought to hospital in February 2015 and again in March 2015, due to suicidal ideation. A psychiatrist’s report from March 2015 found she is “chronically at risk to herself”.
[60] Considering that the incidents described in these records were still relatively recent, during the time period of the complaint, and considering the undisputed facts about what happened during the Grandmother’s relapse in 2017, I find there is no reasonable prospect that the Ministry’s references to the Grandmother’s mental health issues, in the First and Second Decision Letters, could support an inference that Ministry staff relied on stereotypes and prejudice about the Grandmother’s mental disability. I find the Ministry is reasonably certain to prove its concerns about the “projected impact” of her borderline personality diagnosis were based on the Ministry’s findings about the actual, documented impact of her mental health issues, between 2011 and 2017.
[61] The Grandmother says the Ministry’s failure to give more weight to the positive references she provided during the home study in 2018 is evidence of the Ministry’s reliance on stereotypes and prejudice. The reference letters say the Grandmother was a devoted and loving caregiver to the Children, and that she had taken steps to ensure the incidents that caused the Ministry’s concerns about her would not happen again. The Second Decision Letter said the Ministry did not put more weight on these references because they came from people who had not known the Grandmother for long.
[62] Considering all the evidence before me, I find there is no reasonable prospect that the Ministry’s failure to give more weight to the reference letters could support an inference that Ministry staff relied on stereotypes and prejudice about the Grandmother’s mental disability. The Ministry says that since the people who provided the references had not known the Grandmother for long, their knowledge about her potential for long-term stability was limited. The Ministry’s explanation for its failure to give the letters more weight, in the Second Decision Letter, is consistent with the evidence of the Grandmother’s recent history of suicidal ideation and emotional instability.
[63] The Grandmother says Ministry staff were condescending or mistrustful of her in general, throughout their interactions with her. But she does not explain how this attitude was connected to stereotypes or prejudice about her mental health issues.
[64] There is evidence that Ministry staff viewed the Grandmother’s conduct as consistent with a diagnosis of borderline personality disorder, and they believed that the “projected impact” of that condition could only be rebutted by a period of long-term stability. But I find there is no reasonable prospect the Grandmother will establish that prejudice or stereotypes contributed to the Ministry’s view. Based on the hospital records from 2011 to 2015, the undisputed evidence about the Grandmother’s 2017 relapse, and the observations by Ministry staff described in the Second Decision Letter, I find the Ministry is reasonably certain to prove the decision not to support the Grandmother as a permanent guardian for the Children was based on her conduct as observed by the Ministry and as documented in the records the Ministry reviewed, which gave rise to concerns about her ability to provide long-term safety and stability to the Children.
[65] In these circumstances, I am persuaded that the Grandmother has no reasonable prospect of proving that stereotypes or prejudice related to her mental health issues were a factor in the Ministry’s decision not to support her as a permanent guardian for the Children, in 2017 and 2018.
ii. Discrimination based on effect
[66] Even if the Ministry did not rely on prejudice and stereotypes about the Grandmother’s mental health issues, she can still establish a connection between her mental disability and the Ministry’s decisions about her if her mental health issues were a factor in the Ministry’s concern about her ability to care for the Children: KW v. BC Ministry of Children and Family Development (No. 2) , 2021 BCHRT 43 at paras. 96-97; RR No. 6 at paras. 302-303, overturned but not on this point in 2024 BCSC 97. For the following reasons, I am not persuaded that she has no reasonable prospect of proving a connection on this basis.
[67] In its application to dismiss, the Ministry acknowledges that the Grandmother’s mental health status likely contributed to the factors that it considered, in the First and Second Decision Letters. The Ministry says this does not establish a connection between the Grandmother’s mental disability and the Ministry’s decision-making, because its sole consideration, in deciding not to support her as a permanent guardian for the Children, was her ability to provide stable, long-term care for the Children.
[68] The Ministry’s position—that the Grandmother’s mental health status contributed to the factors that led to its decisions, but this does not establish that her mental disability was a factor in the impact of those decisions—is not consistent with the Tribunal’s post- Moore case law, including the decisions in KW and RR No. 6 . A complainant may establish the connection required by the third step of the Moore test where their mental health issues are a factor in the Ministry’s concerns about their ability to parent: KW at para. 96. In that situation, the Ministry, acting in good faith to protect a child, may justify adverse impacts on the complainant so long as it takes all reasonable and practical steps to accommodate their Code -related needs: RR No 6 at para. 302; KW at para. 98.
[69] The Ministry’s argument that its decision was based on the Grandmother’s ability to provide stability for the Children may be relevant to whether its conduct was justified, under the Code . But the Ministry appears to admit the Grandmother’s mental disability contributed to the factors that the Ministry considered in making decisions about her ability to parent. In these circumstances I cannot say the Grandmother has no reasonable prospect of proving a connection between her mental disability and the adverse impact alleged in her complaint.
[70] Even if the Ministry did not make this admission, there is evidence to support a connection between the Grandmother’s mental health issues and the Ministry’s decisions about her. As described above, the First and Second Decision Letters cite medical records related to the Grandmother’s mental health history, and rely on her diagnosis of borderline personality disorder and the “projected impact” of the diagnosis. In light of this evidence, I am not persuaded that the Grandmother has no reasonable prospect of proving that her mental disability was a factor in the adverse impact caused by the Ministry’s decision not to support her as a permanent guardian for the Children. This means the burden shifts to the Ministry to establish it is reasonably certain to prove the decision was justified.
b. Justification
[71] The Ministry says it is reasonably certain to prove its conduct was justified based on a combination of safety concerns about the Children, if they were in the Grandmother’s care. The Ministry says it had a legal obligation to resolve any doubts about the Children’s safety in favour of protecting them: J.P. v. British Columbia (Children and Family Development) , 2017 BCCA 308 at paras. 276 and 348. The Ministry says the risks identified in the home study process, in 2018, raised doubts about the Grandmother’s ability to be the Children’s permanent guardian, which precluded the Ministry from supporting her.
[72] The Grandmother says the Ministry has failed to demonstrate that it would have been impossible to accommodate her in a more reasonable way without undue hardship, but she does not say what accommodation she required, or what the Ministry ought to have done to accommodate her.
[73] For the following reasons, I find the Ministry is reasonably certain to prove its conduct, including its decisions not to support the Grandmother as a permanent guardian for the Children, was justified.
[74] The parties’ submissions did not explicitly address the justification analysis under Me iorin and Grismer , and neither party made submissions about what standard the Ministry relied on to justify its decisions not to support the Grandmother. Based on the evidence before me, including the First and Second Decision Letters, it appears the standard relied on by the Ministry was a requirement for evidence of a significant period of stability in the Grandmother’s life, in order to mitigate its concerns about her mental health.
[75] The Grandmother appears to deny that the Ministry adopted this standard in good faith: she says the Ministry wrote her off as someone who had mental health issues and was therefore unsuitable as a guardian for the Children. But the Ministry consistently told her its concerns could be mitigated by evidence of long-term stability. In my view, none of the evidence before me suggests this was not the case. I am satisfied the Ministry is reasonably certain to prove the requirement for evidence of long-term stability was adopted in good faith, for the purpose of keeping the Children safe, and that this purpose is rationally connected to the Ministry’s function.
[76] The First and Second Decision Letters provide context for the Ministry’s decision to require evidence of long-term stability. They show that the Ministry considered the Grandmother’s history of mental health issues which led to her own children being removed from her care, and the more recent incidents in 2014, 2015, and 2017, when she was, at least temporarily, unable to care for herself. Other factors listed in the Second Decision Letter include the Grandmother’s loss of social supports during the home study process, her interactions with Ministry staff during the home study, and the Ministry’s belief that the Brother may have been neglected while the Grandmother was responsible for his safety.
[77] The Grandmother disputes many of the facts asserted by the Ministry, to justify its decisions about her, but not all of them. She does not deny that she was in conflict with the Mother and she lost some of her social supports, during the home study process in 2018. She acknowledges that she left the Brother alone with the Mother multiple times, despite her agreement with the Ministry and her own concerns about the Mother’s ability to care for the Brother. She also acknowledges the incident in March 2017 when she had a relapse of heavy drinking, and threatened to harm herself and others, at a time when she was responsible for keeping the Brother safe. Regarding the Ministry’s allegation of neglect and its concerns about the Brother’s physical development, she says she complied with medical advice while he was in her care, and his health did not improve significantly after he moved to foster care. But she does not deny the symptoms that led the Ministry to have concerns about neglect, namely that he was very thin and had a flat spot at the back of his head, while he was in her care.
[78] These undisputed facts support the Ministry’s position that there were legitimate safety concerns that prevented it from supporting the Grandmother as the Children’s permanent guardian, in 2017 and 2018. If she became their permanent guardian, the Grandmother would be responsible for their safety for many years to come. Considering the evidence that she was unable to care for her own children, the incidents of suicidal ideation in 2014, 2015, and 2017, and the Ministry’s finding that the Brother may have been neglected while she was responsible for his safety, I find the Ministry is reasonably certain to prove there was a reasonable basis for concern about her ability to provide long-term safety and stability for the Children.
[79] The Grandmother says the Ministry should have done more to accommodate her but she does not say, and it is not clear to me, what the Ministry could have done. I do not understand her to argue that the Ministry failed to accommodate her disability-related needs, or that she faced disability-related barriers in her interactions with the Ministry.
[80] Based on the evidence before me supporting the Ministry’s concerns about the Grandmother’s ability to provide long-term stability for the Children, and the Ministry’s obligation to resolve any doubts in favour of the Children’s safety, I am satisfied the Ministry is reasonably certain to prove it could not have done anything else reasonable or practical to avoid the negative impact on the Grandmother. In these circumstances, I find the Ministry is reasonably certain to prove its conduct was justified.
IV CONCLUSION
[81] I dismiss the complaint under s. 27(1)(c) of the Code .
[82] This decision should not be taken as a reflection on the Grandmother’s current ability to care for the Children. As noted above, in 2022 the Provincial Court found that both Children should live with the Grandmother, one of them part-time and the other full-time. Although the reasons for the Court’s decision are not before me, it is clear that the Court found this was in the Children’s best interest. I acknowledge the perseverance and dedication by the Grandmother that must have been required to get to this outcome.
Andrew Robb
Tribunal Member