In 2022, the BC Human Rights Tribunal awarded an indigenous mother $150,000 in injury to dignify damages for having her children wrongfully taken away from her care by the respondent, the Vancouver Aboriginal Child and Family Services Society (the “VACFSS”). The Tribunal held that the respondents conduct was part of a system that perpetuated systemic discrimination against indigenous families, perpetuating the overrepresentation of Indigenous children and parents in the child protection system.
The respondents appealed the decision to the British Columbia Supreme Court, arguing that the decision was undermined by errors of law, including errors in jurisdiction. Primarily, they appealed the respective roles of the Provincial Court and the Human Rights Tribunal in addressing the removal of Indigenous children from Indigenous parents.
The court sided with the respondent in part. Justice Gomery held that the VACFSS was deprived of a fair opportunity to address issues upon which the decision turned, primarily the Provincial Orders which substantiated the removal of the children from the complainant’s care. Regarding jurisdiction, he made it clear that while the legal and jurisdiction issues were not well defined at the outset of the hearing, this was a case of concurrent jurisdiction. In this, both the Tribunal and Provincial Court had jurisdiction to grant different remedies arising from common facts.
“The concept of an error that is jurisdictional, as opposed to simply a legal error, has proved elusive and challenging in administrative law because it is often difficult to distinguish decisions of an administrative tribunal that raise truly jurisdictional questions from those entailing an unremarkable application of an enabling statute.” ~ Justice Gomery
Applying this reasoning to the case at bar, Justice Gomery found that the Tribunal had jurisdiction to consider whether the respondents’ decisions under the Child Family and Community Service Act, RSBC 1996 were discriminatory, but that the Provincial Court, and not the Tribunal, was responsible for determining whether a child must be removed from a parent’s care.
Justice Gomery further held that the Tribunal Member erred in law in concluding that the continual removal of the children was not justified. The Tribunal Member rejected the risk assessment that was undertaken by the social workers because she disapproved of what she termed, “a Eurocentric conception of and focus on, risk.” While Justice Gomery conceded it may be Eurocentric, he held that a focus on risk is what the law required in this context. The matter was ordered to be remitted to the Tribunal chair, and not the Member, for further review.
The complainant appealed the BC Supreme Court ruling, and the matter is currently being re-litigated at the BC Court of Appeal. The outcome of the decision will raise several interesting considerations regarding administrative law. While varying jurisdictions can exist concurrently, they must ensure that they address the correct questions in law to ensure procedural fairness for all parties. For a more in-depth analysis of Justice Gomery’s reasoning, read the complete decision here.
