Mother obo Child v. Daycare, 2024 BCHRT 251
Date Issued: August 28, 2024
File: CS-002769
Indexed as: Mother obo Child v. Daycare, 2024 BCHRT 251
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:
Child (by Mother)
COMPLAINANT
AND:
Daycare
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Kylie Buday
On their own behalf: Child (by Mother)
Counsel for the Respondent: Masao Morinaga
I INTRODUCTION
[1] In September 2020, at the age of two, the Child began attending the Daycare. On around October 22, 2020, the Daycare informed the Child’s parents that it would no longer provide childcare services to the Child. Services ended one month later, around November 20, 2020. The Mother brings this complaint on behalf of the Child. The complaint alleges the Daycare discriminated against the Child when it terminated its services because it perceived him to have a mental disability and because he is a Jehovah Witness, contrary to s. 8 of the Human Rights Code [Code] which prohibits discrimination in services.
[2] The Daycare denies discriminating. It states it terminated services to the Child in accordance with its “Childcare Discharge Policy” because the Daycare was unable to provide the Child with the level of care he required, and not for any reasons related to a real or perceived mental disability or to his religion. The Daycare also says that even if the Child’s perceived mental disability was a factor in the termination, it was justified in ending the childcare service it provided to the Child because the Child engaged in harmful and aggressive behaviour that put the safety of other children at risk. It asks the Tribunal for an order dismissing the complaint against it under s. 27(1)(c).
[3] The issues I must decide are:
a. whether there is no reasonable prospect the Child will succeed in proving the Daycare perceived him to have a disability and, if so, whether the perceived disability factored into the termination of services;
b. if so whether the Daycare is reasonably certain to prove it was justified in its decision to terminate services; and
c. whether there is no reasonable prospect the Child will succeed in proving his religion factored into the termination of services.
[4] For the following reasons, I deny the application. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.
II BACKGROUND
[5] The Child started attending the Daycare on September 1, 2020. The Child’s parents [Parents] say that for the first few weeks, the Daycare did not raise any concerns with them about the Child in its daily update reports. They also say that when they met with the Daycare’s primary caregivers, they received positive feedback about the Child.
[6] The Parents and the Daycare met on September 25, 2020. I have the parties’ respective versions of the meeting before me. I also have a copy of the Daycare’s progress report before me. My understanding is that the Daycare owner [Owner] reviewed the progress report with the Parents at the meeting. The progress report includes observations about meals, language, human relations, and behaviour. Among other things, in the human relations section, the Daycare documents “frequent head-butting, leg kicking, hair pulling, pushing with his stomach, and hitting with his hands or fists.” In the behaviour section, the Daycare documents “trying to hit friends around him or hitting them with their hands or fists for no reason as he passes them by.” There is also no dispute that the Owner suggested the Parents consider having their Child assessed for ADHD and autism during the meeting. The Parents say they were shocked by what the Owner shared during the meeting and upset “that very little time was provided for our child to adjust to this new environment.”
[7] After the meeting, the Parents reached out to a friend with “ties to the autism community” to ask for advice. A copy of their correspondence is before me. The Parents also booked an appointment with their general physician and began to explore different options, both public and private, for an assessment.
[8] The record before me shows the Daycare and the Parents continued their conversation in writing afterwards. During that discussion the Parents shared that their “initial research” revealed that waitlists for public assessments were 1-2 years long. The Owner replied, “there must be more ways, I will do my own research as well, and get back to you.” The Parents then informed the Owner that they would “talk to our family doctor” and stated they were “not opposed to private [assessments] either if we have to.” To which the Owner replied:
I got it, thank you so much for the follow up. But again, I am working on the same topic with multiple families in our childcare right now, so I will try to gather all the information for assessment for all the families who needs it, not just a private assessment. Again, have a nice weekend!
[9] Meanwhile, the Child continued to attend the Daycare.
[10] On October 1, 2020, the Parents asked the Daycare to fill out some forms for their general physician so that they could put the Child on a waitlist for a private assessment. The Daycare completed the forms and returned them on October 2, 2020. The Daycare also provided the Parents with some additional information on the “Steps and Resources for Autism Assessment Process.”
[11] On October 7, 2020 the Owner informed the Parents of an incident involving the Child as follows:
Today, [the Child] hits and kicks other friends many times. When we were dancing in our classroom, [the Child] suddenly kicked friend’s head and scratched friend’s cheek and the friend has a nail mark and red. We are telling about that each parents, what happened. Thank you.
[12] In the conversation that followed, the Parents expressed several possible reasons why the Child hit his friends, such as jealousy, a possible “sleep regression,” and developmental changes. The Owner replied:
There are several possible reasons for his aggressive behaviour, but anyway, it is essential to work on stopping his aggressive behaviour both at the childcare and at home. We kindly ask that you consider the behaviour at home and the behaviour in the childcare setting to be mostly different, and you will work on individual guidance efforts for home setting and group efforts in group behaviour at the childcare. We have discussed this with the relevant authorities, and they recommend you, parents to take advantage of any opportunities to participate in home instructional workshops for parents.
As I explained at the meeting, we are keeping an eye out for injuries to other children while we wait for his assessment, but as long as we can’t find a trigger for his behaviour, we can’t prevent every injuries from happening.
[13] The Parents replied by thanking the Owner and asking for a phone call to “make sure we are on the same page on what we can realistically expect from [the Child].” The Owner then explained that she was working to gather more information and asked for time to conduct her research. She also noted that she would make a plan for them to meet later that month.
[14] On October 15, 2020, the Owner wrote to the Parents:
I am researching what we can do for [the Child’s] aggressive action to prevent injuries. Maybe it is better for all of us that you to contact “BC Centre For Ability” first to have intake meeting with counsellor. I know the counsellor who is taking care of our area, but parents has [sic] to have the intake meeting with them first. They have a lot of resources to help [the Child] and us to address the difficulty we have. Nothing improved since we have a meeting, so please report them what we discussed at our meeting.
Normally, it only takes weeks to see the counsellor according to the past experience.
After you start the process with them, they will contact us about [the Child], and observe him at our facility.
[15] In response the Parents noted that for their next meeting, they would like to “clearly establish [the Owner’s] role, the expectations for [the Child] and what [the Owner’s] intentions are as a daycare provider. To say that he is not making any progress seems like a harsh overstatement.” The Parents then explained that they are going to great lengths to seek medical advice and were simultaneously looking at options for private assessments. The evidence before me appears to corroborate this.
[16] The exchange on that day ended with the Owner informing the Parents that she would like to set up an in-person meeting.
[17] There is no dispute that the Owner then met with the Child’s father on October 22, 2020 and that during that meeting, she provided him with a letter terminating the Daycare’s services. The Parents say the Owner informed the Child’s father, that the Child was “just not getting it” and expressed that the Daycare did not have the ability to help a child with behavioural issues. The Parents also say the Daycare again suggested the Child has ADHD or autism and requires an assessment. The Parents also say that during the October 22, 2020 meeting, the Owner informed the Child’s father that accommodating their religion during the upcoming holiday season would be difficult. The Daycare gave the Parents until the end of November to find alternate care.
[18] The Child continued to attend the Daycare for the rest of October and part of November. On November 19, 2020, the Child’s parents informed the Daycare that they had found new childcare and the Child’s last day at the Daycare would be the following day. The Daycare provided the Child’s Parents with a refund for the remainder of November.
III DECISION
[19] The Daycare applies to dismiss the Child’s complaint on the basis that it has no reasonable prospect of success: Code,s. 27(1)(c). In an application to dismiss, the onus is on the Daycare to establish the basis for dismissal.
[20] 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.
[21] 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, leave to appeal ref’d [2006] SCCA No. 171. 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 942at para. 77.
[22] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority, 2021 BCSC 2176at para. 20; SEPQA v. Canadian Human Rights Commission, [1989] 2 SCR 879 at 899. 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 [Hill] at para. 27.
[23] 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.
[24] To prove their complaint at a hearing, the Child will have to prove that he has a characteristic protected by the Code, he was adversely impacted in services, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If he does this, the burden would shift to the Daycare to justify the impact as a bona fidereasonable justification. If the impact is justified, there is no discrimination.
[25] On the allegation of discrimination based on mental disability the Daycare says the Child has no reasonable prospect of proving a real or perceived mental disability factored into its decision to terminate childcare services. The Daycare further submits that in the event the Child proves the three elements of the test for discrimination, it is reasonably certain to establish at a hearing that it was justified in ending its services for health and safety reasons. On the allegation based on religion, the Daycare says the Child has no reasonable prospect of proving religion was a factor in its decision terminate the childcare services. I will consider each of these arguments in turn.
1. Is there no reasonable prospect the Child will prove the Daycare discriminated against them on the basis of a perceived disability?
[26] To succeed with this part of their complaint at a hearing, the Child would have to prove:
a. the Daycare perceived them to have a disability;
b. they were adversely impacted in the area of services; and
c. the perceived disability factored into the adverse impacts.
[27] I am not persuaded by the Daycare that there is no reasonable prospect the Child would prove the above three elements of their case at a hearing.
[28] First, I am not persuaded by the Daycare’s submission that because the Mother did not agree with their observation that the Child might be autistic or have ADHD, the Child has no reasonable prospect of proving this element of their case. The focus of the inquiry is not on what the Mother did or did not perceive. Rather, the Child only needs to prove that the Daycare perceived them to have a disability when it provided the childcare services. There is evidence before me that is capable of taking this allegation out of the realm of conjecture. First, the Daycare has not denied that during the September 25 meeting the Owner suggested the Parents have the Child assessed for ADHD and autism. Second, the Daycare has also not denied that it engaged in conversations with the Parents about options for obtaining assessments. Third, the Daycare has not disputed that in the meeting on October 22, the Owner again expressed her views that the Child might have ADHD or be autistic. In my view the evidence the takes this part of the Child’s case out of the realm of speculation and the Daycare has not persuaded me otherwise.
[29] I note that contrary to the Daycare’s submissions, whether assessments later revealed that the Child did not have ADHD or autism is not relevant to the analysis. Similarly, whether the Parents disagreed with the Owner about the reasons for the Child’s behaviour is also not relevant to the analysis. I now turn to adverse impact.
[30] The Daycare submits the Parents found childcare services at the end of November and appear to suggest that the Child was not adversely impacted by the termination as a result. I am not persuaded by this argument. The undisputed evidence before me is that the Daycare terminated the Child’s childcare services. This is sufficient to take this part of the complaint out of the realm of conjecture, which is all that is required at this point. I am not satisfied there is no reasonable prospect the Child would provide he was adversely impacted when the Daycare terminated its services.
[31] On nexus, the Daycare submits that the decision to terminate was based on the child’s “maladaptive behaviour” and that because the Mother did not agree that the Child might have a disability, there was no link between the decision to end the service and a real or perceived disability. In my view, the Daycare has misunderstood the test for discrimination. The evidence suggests the Daycare viewed one possible explanation for the Child’s behaviour to be an undiagnosed disability. Indeed, there is no dispute that the Daycare suggested to the parents that they consider having the Child assessed. This is sufficient to take nexus out of the realm of conjecture. The Daycare has not persuaded me there is no reasonable prospect the Child would prove a connection between the perceived disability the adverse impacts of the Daycare’s decision to terminate the childcare services they were providing.
2. Is the Daycare reasonably certain to prove its justification defence?
[32] To succeed with its application for dismissal, the Daycare must show it is reasonably certain to prove a defence at the hearing: Purdy v. Douglas College and others , 2016 BCHRT 117 at para. 50.
[33] To justify the termination at a hearing, the Respondent would have to prove that: (1) they adopted the standard for a purpose rationally connected to the function being performed, (2) they adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and (3) the standard is reasonably necessary to the accomplishment of that legitimate purpose. This third element encompasses their duty to accommodate the Child to the point of undue hardship: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights),[1999] 3 SCR 868 [Grismer] at para. 20.
[34] The Daycare’s submission on this issue is brief and consists of one paragraph. It argues as follows:
Where there is harm to other children involved, the parents’ ongoing denial of behavioural problems of the Child, and this all happening during the height of Covid-19 (with its strain on staff and children’s safety), the Respondent will have a high probability of succeeding in its defence.
[35] This paragraph, without more, has not persuaded me the Daycare is reasonably certain to prove its justification defence at a hearing. For example, I have no evidence before me to support the Daycare’s assertion that the Child’s behaviour presented a risk to other children such that it would have been an undue hardship for the Daycare to continue to provide them childcare. In fact, the evidence before me shows the Daycare continued to care for the Child for several weeks after providing the Parents with the termination notice. The Daycare may well lead evidence at a hearing to support its justification defence. However, on the information before me, I am not persuaded they are reasonably certain to prove the termination was justified and that there was nothing more they could reasonably or practically do to accommodate the Child short of terminating their services.
3. Is there no reasonable prospect the Child will prove the Daycare discriminated against them on the basis of his religion?
[36] There is no dispute that the Child is protected from discrimination in services based on religion under the Code. There also does not appear to be any dispute that the Child was adversely impacted when the Daycare terminated its childcare services. This allegation therefore turns on whether there is no reasonable prospect the Child will succeed in proving his religion was at least a factor in the termination.
[37] In his complaint, the Child alleges the Daycare terminated its services partly because it was unwilling to accommodate his religious beliefs. The Daycare disputes the Child’s religion factored into the termination and submits the Child has not pointed to any evidence to support this allegation. I am not so persuaded. The complaint alleges that during the October 22, 2020 meeting, the Owner:
Mentioned that since we were heading into December, they would be doing a lot of holiday/Christmas themed activities and that it would be difficult and too complicated for the educators to remove our son from the activities or have him work on something different.
[38] This alleged comment takes the Child’s assertion that his religion also factored into the termination out of the realm of speculation, which is all that is required at this stage.
[39] The Daycare says it accommodated the Child’s religion while he attended and submits it terminated childcare services solely because of the Child’s “harmful behaviour.” The Daycare points to the Daycare’s “Notice of Termination of Child Care Service” in support of its position, and notes that the Notice does not mention the Child’s religion. The Daycare also explains that it accommodated the Child’s religion by agreeing to inform the Child’s parents of any birthday or holiday celebrations in advance so that they could opt out of participating in those activities and by assuring the Child’s parents that he would only receive approved medical services, if required.
[40] The evidence supports the Daycare’s assertion that it did not refer to the Child’s religion in the Notice of Termination of Child Care Services letter. The evidence before me also appears to show the Daycare accommodated the Child’s religion while he was in care. Nevertheless, the issue before me is not whether the Daycare accommodated the Child up to the point of undue hardship while he received daycare services (which is not alleged in the complaint). The issue is whether the Child’s religion factored into the termination of daycare services.
[41] On the materials before me, the Daycare does not appear to dispute the Owner made the above-quoted comment about the Child’s religious accommodations and the upcoming holiday season in the meeting on October 22, 2020. The Child says the alleged comment made by the Owner shows religion factored into the termination. Without any non-discriminatory explanation as to why the Owner would bring the Child’s religious accommodations up during the termination of childcare services meeting before me, it is more than mere speculation to allege the Child’s religion was a factor in the termination. Given this, I am not persuaded there is no reasonable prospect the Child would prove his religion factored into the termination of childcare services at a hearing.
[42] Ultimately, I find that the Daycare has failed to meet their burden in an application to dismiss.
IV CONCLUSION
[43] I deny the application under s. 27(1)(c) to dismiss the Child’s complaint of discrimination in services based on a real or perceived disability and religion.
Kylie Buday
Tribunal Member