[1]               PL describes herself as an Indigenous grandmother. She is a primary guardian and caregiver to her grandson AB. On July 10, 2019, the Ministry of Children and Family Development [MCFD] removed AB from PL’s care. MCFD’s reason for removing AB was “safety concerns” about PL’s ability to care for him. On September 24, 2021, AB began staying with his grandmother again while on an extended visit. On February 2, 2022 MCFD closed PL’s file on the basis that they no longer had “safety concerns.”

[2]               On May 11, 2021, PL filed a complaint against MCFD, and 6 of its employees [together, the Respondents]. PL alleges that the Respondents discriminated against her “based on her Indigenous background and health” since the [b]eginning of 2019” up until the day she filed her complaint: Complaint at pp. 11 and 13. More specifically she alleges:

[3]               Since PL’s complaint may have been filed outside the one-year time limit, set out in s. 22(1) of the Code, the Tribunal sought submissions from the parties. Both parties have made submissions on this question.

[4]               The issue before me is whether PL’s complaint was filed late and, if not, whether it can proceed as a late-filed complaint. I have considered the parties’ materials on this issue, though I do not refer to all of it in my decision. For reasons that follow, I find that PL’s complaint alleges a timely continuing contravention of the Code. It is not late-filed. If any parts of PL’s complaint were late-filed, I would exercise my discretion under s. 22(3) of the Code to accept the complaint for filing. I make no findings about the merits of the complaint.

[5]               I note that in a letter decision on April 11, 2023, I made an order anonymizing the identities of PL, her grandson, and the individual Respondents: Rules of Practice and Procedure, rules 2, 5(7); Mr. C. v. Vancouver Coastal Health Authority and another, 2021 BCHRT 22 [Mr. C] at paras. 35-38. The individual parties will be anonymized in any public decision subject to an application by any party to vary this order.

[6]               I apologize to the parties for the significant delay in issuing this decision.

[7]               AB was born in 2006. PL has been a primary caregiver and guardian to AB since he was 13 months old. Together, they have lived in Saskatchewan and BC. In 2008 the Court of Queen’s Bench in Saskatchewan granted PL an order that AB be placed with her indefinitely. By January, 2019, PL and AB were living in BC. At that time MCFD says that it received reports related to AB’s health and behaviour: Respondents’ Timeliness Response at paras. 17-20.

[8]               MCFD is an arm of the BC government with the authority and responsibility to deliver services to families and children in accordance with the BC Child, Family and Community Service Act [CFCSA]. The CFCSA provides that the “safety and well-being of children are the paramount considerations” in MCFD’s provision of services: s. 2. Section 2(b) of the CFCSA prioritizes keeping children with their families as the “preferred environment”; and s. 2(c) states: “if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided”.

[9]               Under s. 30 of the CFCSA, MCFD has the authority to remove a child from their guardian(s) if the child’s health or safety is in immediate danger or no other available, less disruptive measure is adequate to protect the child: Respondents’ Timeliness Response at paras. 13-14. Where circumstances change or new information emerges that a child is no longer in need of protection, or if less disruptive means of protecting the child become available, MCFD may decide to return a child to their parent or guardian: CFCSA, s. 33; RR v. Vancouver Aboriginal Child and Family Services Society (No. 6), 2022 BCHRT 116 [RR No. 6] at para. 43.

[10]           The CFCSA as a whole reinforces that the removal of children from their families is an “extreme intervention” and should be a last resort: RR No. 6 at para. 44. The Court explains:

[11]           Since PL identifies as Indigenous grandmother, I pause here to situate her complaint within the unique historical and ongoing relationship between Indigenous people(s), MCFD and the CFCSA. In human rights complaints involving Indigenous parties, the Tribunal should have “the fullest possible understanding of the social context in which alleged discrimination is said to arise”: Campbell v. Vancouver Police Board, 2019 BCHRT 12 [Campbell No. 1] at para. 18.

[12]           The CFCSA’s impacts on Indigenous people(s) are unique and “cannot be separated from the Canadian colonial project founded on the denial of Indigenous title and laws, and deliberate efforts to assimilate and eradicate Indigenous culture, tradition, language, and people”: RR No. 6 at para. 34. The Canadian colonial project has led to the mass and disproportionate removal of Indigenous children from their families, communities, culture, tradition, and language by the Canadian State: RR No. 6 at paras. 35-36. Recently, the Court confirmed the devastating intergenerational impacts when Indigenous children are removed from their families, communities, and Nations: J.W. v British Columbia (Director of Child, Family and Community Service), 2023 BCSC 512 at paras. 62-66 and 83-86.

[13]           Today, Indigenous children remain overrepresented and underserved in government care: RR No. 6 at para. 1. The CFCSA expressly recognizes and aims to address this unique, ongoing context within, for example, its guiding principles and service delivery principles. More specifically, the CFCSA recognizes specific needs of Indigenous children to remain connected to their communities, traditions, customs, and language: ss. 2(b.1) and (f), 3(b) and (c.1), 4(2); RR No. 6 at para. 40. I situate PL’s complaint within this social context because the Tribunal must account for the past and present effects of colonialism in addressing complaints involving Indigenous people(s): Campbell v. Vancouver Police Board (No. 4), 2019 BCHRT 275 at para. 107.

[14]           I now turn to the events that gave rise to PL’s complaint. In doing so I have focussed on the facts as set out in PL’s complaint, filled in by uncontroverted details in the Respondents’ Timeliness Response. It is not necessary for me to consider, as part of PL’s complaint allegations, any new particulars or allegations set out in PL’s Timeliness Reply and Affidavit, and any consequent unfairness to the Respondents: Larssen v. City of Port Coquitlam and others (No. 2), 2005 BCHRT 548 at paras. 23-28; Kasagoni v. J. Singh Enterprises dba Willingdon Husky and another (No. 2), 2021 BCHRT 82 [Kasagoni] at para. 16.

[15]           While I find it unnecessary to consider new particulars or allegations in PL’s Timeliness Reply and Affidavit, I appreciate that PL’s timeliness materials are responsive to issues and information raised in the Respondents’ Timeliness Response and based on receiving records from MCFD after filing her complaint. However, if PL has new details and /or allegations to include in her May 11, 2021 complaint, they are best addressed by way of a complaint amendment in the usual course: Rule 24; Kasagoni at paras. 14-17. Therefore, I rely on PL’s Timeliness Reply and Affidavit solely to assess the timeliness of her complaint, and not as an amendment to her complaint. I return now to the events that gave rise to PL’s complaint.

[16]           On or about March 9, 2019, PL sought support from MCFD because AB was struggling with health issues. These health issues led to AB being hospitalized in January, March, and July, 2019: Respondents’ Timeliness Response at paras. 20-22.

[17]           On July 10, 2019, MCFD removed AB from PL’s care under s. 30 of the CFCSA. MCFD says that it took this action because PL “was not in agreement with the interventions that the professionals were recommending when the Grandson was in crisis”: Respondents’ Timeliness Response at para. 25. MCFD also says that on September 24, 2021, PL’s grandson began staying with her again on an extended visit, and that PL was able to “establish a consistent routine that worked for the Grandson”: Respondents’ Timeliness Response at para. 26. PL’s file with MCFD was closed on February 2, 2022 as MCFD determined that it “no longer had safety concerns”  about AB in PL’s care: Respondents’ Timeliness Response at para. 37.

[18]           In her complaint, PL sets out allegations about MCFD and specific MCFD staff or agents from the “[b]eginning of 2019”: Complaint at p. 11. She pinpoints specific dates for some of her allegations including July 17, 2019, and September 12, 2019: Complaint at pp. 9-10. Her complaint alleges that MCFD and its staff made assumptions and comments about her as an Indigenous person with disabilities. PL alleges the Respondents made assumptions that she:

[19]           PL alleges that the Respondents made these assumptions about her before fully assessing AB’s health needs and whether those needs could be met in PL’s care, with appropriate MCFD services. Further, PL alleges that the Respondents continued to make these assumptions about her which led the Respondents to: (1) hinder and severely impact her guardianship role and responsibilities to AB; and (2) provide inappropriate services from January 2019 up until she filed her complaint on May 11, 2021: Complaint at pp. 9-14.

[20]           There is a one-year time limit to file a complaint. A complaint is timely if:

[21]           If a complaint does not meet the criteria set in s. 22(1) or s. 22(2), then it is a late-filed complaint. The Tribunal may accept all or part of a late-filed complaint if a member determines that it is in the public interest to accept the complaint, and no substantial prejudice will result to any person because of the delay: Code, s. 22(3).

[22]           The Respondents say that:

[23]           PL says that from 2019 to May 11, 2021, the Respondents made repeated and ongoing discriminatory assumptions about her. These discriminatory assumptions led MCFD to remove AB from her care and refuse to return him: PL Timeliness Reply at paras. 7-10.  PL says that all of her allegations form a continuing contravention, and therefore her complaint is timely.  In the alternative, she says that it is in the public interest to accept her complaint, and there is no substantial prejudice to any party in its acceptance: PL’s Timeliness Reply at paras. 11-36.

[24]           For reasons that follow, I have determined that PL’s complaint is timely because it alleges a continuing contravention. As a result, all of PL’s complaint will proceed.

[25]           PL filed her complaint on May 11, 2021. To comply with the one-year time limit set out in the Code, PL needed to set out in her complaint an allegation of discrimination on or after May 11, 2020. I find that she has.

[26]           PL alleges that the Respondents relied on discriminatory assumptions about her that led to MCFD removing AB from her care on July 10, 2019. There is no question that MCFD did not return AB to her care until September 24, 2021. MCFD says that it did not close PL’s file until February 2, 2022 because it was only at that point that MCFD “no longer had safety concerns” about AB in PL’s care: Respondents’ Timeliness Response at para. 37. This timeline shows that MCFD removed AB from PL’s care from July 10, 2019 to September 24, 2021, and continued to have safety concerns about PL until February 2, 2022: Respondents’ Timeliness Response at para. 37.

[27]           I find that PL makes allegations against the Respondents after May 11, 2020, because AB was still in MCFD’s care at the point.  There is no question that MCFD refused to return AB to PL’s care, citing safety concerns. MCFD’s refusal to return AB to PL’s care was based on MCFD’s ongoing assessment that PL could not safely care for AB. PL alleges that MCFD refused to return AB to her care based on discriminatory assumptions related to her Indigenous background and health. In essence, PL’s complaint alleges that the Respondents:

[28]           The nature of PL’s allegations, if proven, could amount to discrimination. Her allegations share similarities to allegations the Tribunal considered in RR No. 6. In that case, the Tribunal found that the child welfare agency [VACFSS] made decisions to retain custody and restrict RR’s access to her children that were discriminatory. The discrimination stemmed from stereotypes about RR as “an Indigenous mother with mental health issues, including trauma, and her conflict with the child welfare system”: para. 8. The Tribunal also found that:

[29]           In this case, PL also alleges that the Respondents harmed her, in their provision of child protection services, connected to her Indigeneity and her health. I am satisfied that PL’s allegations, if proven, could amount to discrimination under the Code.

[30]           I acknowledge the Respondents’ submission that PL does not set out specific dates for allegations in her complaint beyond September 12, 2019: Respondents’ Timeliness Response at paras. 45-46. PL’s complaint is one that could be described as appearing at the Tribunal’s gate “in ragged form”, as discussed in Lord v. Fraser Health Authority, 2021 BCSC 2176 [Lord]:

[31]           PL was self-represented at the time she filed her complaint. Her complaint is hand-written. She indicates in her complaint that she can provide further documentation “upon request.” She also queries in her complaint whether there is a possibility to have a lawyer appointed to her case: Complaint at p. 12. I take from these aspects of PL’s complaint that she faced some barriers in understanding, with precision, the information she should provide in the first instance. The Tribunal must be alert to these barriers, and cautious in winnowing complaints that, despite their ragged form, may have merit: Lord at para. 38; Chidley v. BC Housing and another, 2020 BCHRT 51 at para. 53.

[32]           While PL’s complaint could have been more specific about dates, I am satisfied that she alleges discrimination against the Respondents after May 20, 2020, and within a year of filing her complaint. Despite any barriers faced by PL, she is clear in her complaint that:

[33]           While PL’s allegations after September 12, 2019, are of a broader nature, I am satisfied that she sets out timely allegations in her complaint, and that the Respondents have sufficient notice of the complaint they must meet. This is especially the case in the context of an institutional respondent in a well-documented setting: Bjorklund v. BC Ministry of Public Safety and Solicitor General, 2018 BCHRT 204 [Bjorklund] at paras. 24-28. MCFD will have records of their interactions with PL and AB, encompassing the timeframe of the complaint allegations.

[34]           I have also considered the Respondents’ submission that PL only alleges untimely discrimination with continuing consequences. In making this submission, the Respondents rely on School District v. Parent obo the Child, 2018 BCCA 136 [School District]. In School District, the Court held that the Tribunal must consider whether a complaint alleges a specific incident of discrimination within the time limit, and not merely an untimely act of discrimination with continuing consequences: para. 55. I agree with the Respondents that in a s. 22(2) analysis, the Tribunal must consider whether a complaint alleges timely discrimination or merely untimely discrimination with continuing consequences, per School District. However, in my view, PL’s complaint is distinguishable from the Parent’s complaint in School District. In School District, the Court found that the Parent’s complaint was about one untimely decision that the School District made about her child. In contrast, PL alleges timely discrimination related to the Respondents’ ongoing assessments and decisions about her. I explain why next.

[35]           PL’s complaint relates to MCFD’s decision to remove AB from her care from July 2019 until September 24, 2021. MCFD’s reason for removing AB from PL’s care was based on “safety concerns” about PL. It was only when MCFD decided that it no longer had safety concerns about PL, that MCFD decided that AB could return to PL’s care. This isn’t a circumstance where MCFD made one, final decision to remove AB in July, 2019. MCFD also:

[36]           In my view, MCFD’s decision to remove AB from PL’s care, under s. 30 of the CFCSA, was not a one-time event or final decision. Rather, MCFD continually assessed and made decisions about whether AB could safely return to PL. Ongoing assessments and decision-making by MCFD is consistent with the recognition in the CFCSA that:

[37]           Again, PL alleges that MCFD made these ongoing assessments and decisions while continuing to apply discriminatory assumptions by the Respondents about her “Indigenous background and health.”

[38]           PL’s complaint is anchored by timely allegations because she alleges that MCFD relied on discriminatory assumptions in its ongoing assessments and decisions about her ability to care for AB from July, 2019 to May 11, 2021. At the time PL filed her complaint, MCFD was continuing to make decisions about PL’s ability to care for AB, which is reflected in the fact that AB was not returned to PL’s care until September 24, 2021. Therefore, PL’s complaint meets the criteria of a continuing contravention, confirmed in School District: paras. 68-70.

[39]           Even if PL’s complaint was late filed, I would find that: (1) there is no material or circumstances before me which raises the issue of substantial prejudice to any person; and (2) it is in the public interest to accept PL’s complaint: Code, s. 22(3).

[40]           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; Bjorklund at para. 33.

[41]           In this case, if PL’s complaint were late, I agree with Respondents that PL’s complaint would be almost 8 months late. The last specific date she sets out in her complaint is September 12, 2019 and she filed her complaint May 11, 2021. On this timeframe, PL’s complaint would have been filed 8 months after the one-year time limit. A length of delay of 8 months is significant and may weigh against a complaint proceeding. Length of delay however is not determinative: Mzite at paras. 55-63; Starr v. Board of Education of School District No. 40 (New Westminster), 2022 BCHRT 8 at para. 45. In this case, other factors weigh in favour of PL’s complaint proceeding in the public interest. I discuss these factors next.

[42]           I have also considered PL’s explanations for any delay. PL says that between July 2019 and May 2021 she made good faith efforts to resolve issues with the Respondents through multiple attempts to arrange meetings, calls and through emails: PL’s Timeliness Reply at para. 26. In her affidavit PL says that from July 2019 and May 2021 she was:

[43]           In PL’s words:

[44]           PL also explains that: “If there are any gaps in time it is because I have not yet been able to fully articulate all the interactions and experiences, I had one by one over the two-year time without assistance”: PL’s Affidavit at para. 64.

[45]           I accept, as a reason for any delay, that PL’s primary focus was on AB’s wellbeing. Towards that end, she reasonably focussed her efforts on resolving any issues with the Respondents directly. As PL submits, the Tribunal may accept a complainant’s efforts to resolve concerns before filing a complaint, as a reasonable explanation for delay: PL’s Timeliness Reply at paras. 25-26; Hoang v. Warnaco and Johns, 2007 BCHRT 24 [Hoang] at paras. 30-31; Mr. C at paras. 98-100. The Tribunal encourages parties to resolve issues between them on their own and offers facilitated mediations for just this purpose. Justice Walkem’s report, Expanding our Vision: Cultural Equality & Indigenous Peoples’ Human Rights (2020) [Expanding Our Vision] adds that the Tribunal must also consider Indigenous perspectives and values that place primacy on efforts to repair relationships and situations prior to filing a complaint: p. 40. I note too that PL’s efforts to resolve her concerns with the Respondents directly means that the Respondents were aware of PL’s concerns, alleviating any concern that they have been taken by surprise when she did file her complaint: Hoang at para. 31.

[46]           I also accept as a reason for delay that PL had fears about filing a complaint while seeking to have MCFD return AB to her care. In Hoang the Tribunal recognized that it may not be reasonable for a person to file a complaint against their current employer, due to fear of negative job-related consequences: para. 28. The Tribunal in Hoang also said that the Tribunal must be sensitive to the realities faced by workers, especially workers rendered vulnerable because of social conditions, for example, and relative to their employer: para. 28. I find this analysis in Hoang relevant in this case. In my view, it was reasonable for PL to have fears about filing a complaint against the Respondents, while, at the same time, seeking to have MCFD return AB to her care. To be clear, I am not saying that the Respondents imposed or would have imposed negative consequences on PL for filing a complaint. Rather, I accept that PL had honest fears about filing a complaint, based on her affidavit evidence and in light of the context.

[47]           The Tribunal must be sensitive to the realities faced by Indigenous families interacting with child welfare systems and related court processes as articulated by PL in her affidavit, and in RR. No. 6. As discussed earlier, those realities are situated within a historical and ongoing social context, in which Indigenous children are disproportionately removed from their families and communities. PL’s evidence that she feared losing AB “in the system” is grounded in a very real social context.

[48]           Last, I accept that PL reasonably feared that no one would believe her complaint of discrimination without first obtaining evidence, such as MCFD’s records about her. PL points to the fact that she did not have assistance to file her complaint. The fear she describes is also consistent with Justice Walkem’s findings in Expanding Our Vision: 45% of the Indigenous people surveyed would not file a complaint because they did not think they would be believed:

[49]           I accept PL’s explanations for any delay in filing her complaint and find that they weigh in favour of the public interest in accepting the complaint.

[50]           There is some novelty to PL’s complaint. I am not aware of any final Tribunal decision against MCFD related to Indigenous-specific discrimination. The Respondents have pointed me to several decisions involving MCFD, but 3 of those are preliminary decisions, and none of them address Indigenous-specific discrimination: K.W. v. BC Ministry of Children and Family Development (No. 2), 2021 BCHRT 43; C. v. BC (Ministry of Children and Family Development), 2012 BCHRT 95; Cooke v. BC (Ministry of Children and Family Development), 2011 BCHRT 142; K.C. v. BC (Ministry of Children and Family Development), 2008 BCHRT 166.

[51]           The Respondents also points me to R.R. v. Vancouver Aboriginal Child and Family Services Society (No. 2), 2019 BCHRT 85, which was a preliminary decision to RR No. 6. RR No. 6 appears to be the only final Tribunal decision which considers Indigenous-specific discrimination in connection with an Indigenous child welfare agency. While RR No. 6 is a comprehensive decision, a complaint about MCFD is contextually different from a complaint about an Indigenous child welfare agency. In any event, 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. This is especially the case given the unique historical and ongoing intersection between Indigenous people(s), MCFD and the CFCSA discussed earlier.

[52]           More generally, the Tribunal has recognized that Indigenous people have been “disproportionately underrepresented in complaints brought to this Tribunal, notwithstanding a long history of colonialization that continues to prejudice Indigenous people based on their race and ancestry”: Campbell No. 1 at para. 18. In line with this recognition, the Tribunal has said that complaints about Indigenous-specific discrimination attract public interest: Smallboy v. Grafton Apparel, 2021 BCHRT 15 at paras. 40-42; Mr. C at para. 90; RR v. Vancouver Aboriginal Child and Family Services Society (No. 3), 2019 BCHRT 269 at para. 16; Spooner v. Dawson Construction and another, 2021 BCHRT 49 at para. 23. That public interest is heightened in the context of a government respondent. There 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 [UNDRIP]: Bjorklund at para. 41; RR No. 6 at paras. 46-48.

[53]           Last, there is a public interest in ensuring that people who face barriers have access to the Tribunal. This is especially the case for people from groups who experience persistent patterns of inequality and discrimination: Mzite at para. 66. The barriers faced by Indigenous people(s) accessing the Tribunal have been documented in Expanding our Vision. As an Indigenous person, PL is a member of a group who experiences persistent patterns of inequality and discrimination. And, as I found earlier, she faced barriers in filing her complaint.

[54]           For these reasons, if portions of PL’s complaint were late-filed, I would exercise my discretion to accept her entire complaint for filing because, on balance, it is in the public interest to do so. Further, there is no material or circumstances before me which raises the issue of substantial prejudice to any person.

[55]           PL’s complaint, as filed on May 11, 2021, will proceed as timely, and relates to events from the beginning of 2019 to May 11, 2021: Code, s. 22(2). In the alternative, I would exercise my discretion to accept the complaint for filing under s. 22(3).

[56]           PL’s complaint relates to Indigenous Identity but was filed before Indigenous Identity was added as a protected characteristic under the Code. Since PL’s complaint is proceeding, the Tribunal will add Indigenous Identity as a protected characteristic in her complaint.

[57]           To confirm, PL’s Timeliness Reply, and Affidavit, do not form part of her May 11, 2021 complaint.

[58]           PL is at liberty to add new details or allegations to her complaint at any time, subject to Rule 24(4) by filing a Form 3 Amendment Form: Rule 24. Since the complaint is proceeding, the parties may wish to confer on possible amendments before the Respondents’ file their response.