B.C. Supreme Court decision delivers mixed results in ensuring human rights protections are enforceable in child custody cases: Commissioner
January 23, 2024
Updated: June 22, 2023
On June 21, 2023, B.C.’s Supreme Court granted B.C.’s Human Rights Commissioner leave to intervene in Vancouver Aboriginal Child and Family Services Society (VACFSS) v. R.R. This case involves whether the BC Human Rights Tribunal may make decisions about discrimination in matters concerning child protection.
The BC Human Rights Tribunal had found that VACFSS discriminated against “R.R.,” a mother whose children were apprehended by VACFSS. VACFSS applied to B.C.’s Supreme Court for judicial review, arguing that the Tribunal made several errors, including overstepping its jurisdiction.
Commissioner Govender’s intervention looked at how to properly interpret the scope of the Tribunal’s jurisdiction relating to child welfare services. The Commissioner described how limiting the Tribunal’s jurisdiction in this area can negatively impact vulnerable people who are subject to involvement with child welfare services.
The judicial review was heard in B.C.’s Supreme Court from Oct. 30 through Nov. 2, 2023 and on Nov. 24, 2023.
The Supreme Court issued its decision on Jan. 22, 2024. On the jurisdictional issue, the Court affirmed that the Tribunal is able to adjudicate human rights complaints arising out of matters relating to child protection. However, the Court also found that “stereotypical reasoning and escalating assertions of power and control” in the determination of whether a child is at risk are not sufficient to ground a successful human rights complaint in child protection cases. Specifically, this applies to situations where such risk assessments are made in good faith and in accordance with the Child, Family and Community Service Act (CFCSA).
The Commissioner will continue to monitor the VACFSS v. R.R. case, which has been sent back to the Tribunal for reconsideration.
This case will be crucial in determining whether people facing discrimination in the child welfare system will be able to enforce their Human Rights Code-protected rights. We argued that the Provincial Court lacks jurisdiction to decide allegations of discrimination, so it is important that people are able to access the Human Rights Tribunal to address discriminatory conduct.
Get all materials related to the case including documents, videos, media releases, plaintiff stories, photos and more.
January 23, 2024
June 22, 2023
The Commissioner can apply to intervene in court and can intervene as a matter of right in B.C. Human Rights Tribunal cases with the potential to make a significant impact on human rights across the province. Interventions can impact how the law evolves, making them an important tool in systemic work to promote and protect human rights.
If the Commissioner’s request to intervene is approved by a court, BCOHRC provides submissions (also called legal arguments) to the judge in the case in question. These submissions are usually about how to interpret a narrow point of the law. Intervenors do not represent either side in a case; their submissions must be different from the arguments being made by the parties to the case, and submissions must not advocate for either side to win or lose.