The judge found that the human rights tribunal does have the jurisdiction to hear child welfare cases. (Darryl Dyck/Canadian Press)
He said the mere existence of a provincial court proceeding didn’t preclude the human rights tribunal from hearing RR’s claim — but faulted Cousineau for failing to consider orders arising from the court process that might have justified the actions of care workers.
He also said she should have viewed the case through the framework of the law that governs child protection — the Child, Family and Community Service Act (CFCSA).
“It was incumbent on the member to consider not whether the social workers were correct in their conclusions as to whether the children were at risk in RR’s care, but whether they had reasonable grounds (under the law) to believe what they did at the time,” Gomery wrote.
“The member had to apply the CFCSAframework just as a judge of the provincial court would apply it.”
‘That is a really concerning finding’
RR’s lawyer, Jonathan Blair, said Gomery’s decision was disappointing. He said neither the society’s petition nor Gomery’s decision challenge the central finding of Cousineau’s decision: that RR was treated badly.
“None of that is disputed,” said Blair, who works with the Community Legal Assistance Society.
“What has happened is that this matter has now been prolonged for her based on legal technicalities and both the society and the attorney general’s attempt to remove the tribunal’s [power] to scrutinize their protection workers.”
Blair said he was troubled by a portion of Gomery’s decision stating that a risk assessment by child protection workers “made in good faith, cannot be discriminatory, even if it engages stereotypical reasoning and escalating assertions of power and control.”
“That is a really concerning finding,” Blair said.
“Discrimination is not based on intention. Intention is not necessary for a finding of discrimination, because many people discriminate based on unconscious biases or stereotypes or systemic discrimination aspects.”
One of the intervenors in the case, the West Coast Legal Education and Action Fund, echoed Blair’s concerns.
“We are concerned that the decision downplays the negative impact that discrimination against parents can have on their children,” the organization said in a statement.
“We are also disappointed about the impact of this decision on RR and her family, who will now have to navigate another tribunal case or appeal (Gomery’s) decision.”
Blair said he believed RR would have grounds to appeal, but that no decision had been made.