Students (by Parent) v. Daycare Provider (No.3), 2025 BCHRT 84
Date Issued: April 4, 2025
File: CS-000365
Indexed as: Students (by Parent) v. Daycare Provider (No.3), 2025 BCHRT 84
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:
Students (by Parent)
COMPLAINANTS
AND:
Daycare Provider
RESPONDENT
REASONS FOR DECISION
Tribunal Member: Beverly Froese
On their own behalf: Parent
On its own behalf: Daycare Provider
Date of Hearing: November 18-21, 2024
Location of Hearing: By videoconference
Written closing arguments: December 2, 2024
I INTRODUCTION
[1] The Students, by their Parent, allege that the Daycare Provider discriminated against them regarding its services based on family status contrary to s. 8 of the Human Rights Code . Specifically, the Students allege they were discriminated against when the Daycare did not allow them to attend solely because they are the Parent’s children. The Son also alleges the Daycare discriminated against him regarding its service based on disability contrary to s. 8 of the Code . Specifically, the Son alleges he was discriminated against when the Daycare did not allow him to attend because of his health condition.
[2] The Daycare denies discriminating and says its decision to withdraw the Students was justified because the Parents were dissatisfied with the Daycare and the Daycare could not meet their personal standards.
[3] I have considered all the evidence presented by the parties and their closing submissions. This decision does not include a complete recitation of the evidence and submissions, only those necessary to come to my decision. For the reasons set out below, I find the Daycare discriminated against the Students based on family status but did not discriminate against the Son based on disability.
II ORDER LIMITING PUBLICATION
[4] In July 2021, the Tribunal granted the Students’ application to anonymize their names on consent. To avoid using any information that could identify them, I refer to the Students individually as the Son and Daughter, and I refer to their family members as Mother, Father, and Grandmother. I have also avoided including information about the Daycare that might identify the Students.
III ISSUES AND DECISION
[5] The issues I must decide in this case are:
a. At the material time, did the Son have, or was perceived to have, a disability protected under the Code ?
b. If so, did the Son experience any adverse impacts regarding the Daycare’s services?
c. If so, was there a nexus between those adverse impacts and the Son’s disability or perceived disability?
d. Did the Students experience any adverse impacts regarding the Daycare’s services based on their family status?
e. If so, were the Respondents’ actions justified?
[6] After considering the evidence and the parties’ submissions, I find that:
a. The Daycare did not discriminate against the Son based on disability;
b. The Daycare discriminated against the Students based on their family status; and
c. The Daycare’s decision to withdraw the Students was not justified.
[7] Below are my reasons. I begin with the list of witnesses from whom I heard evidence and my general comments regarding their credibility. Next, I set out some of the evidence and my findings where necessary. I then address the merits of the complaint. The final section in these reasons addresses remedy.
IV Witnesses
[8] In addition to himself, the Father called the following witnesses:
a. the Mother;
b. the Grandmother;
c. a former Daycare employee [ Former Employee ]; and
d. a parent whose children attended the Daycare at the material time [ Mr. A ].
[9] The Daycare called its owner [ Owner ] and current manager [ Manager ].
[10] Overall, I find the witnesses were credible and am satisfied they testified truthfully to the best of their ability. The majority of the Daycare’s evidence consisted of contemporaneous documents. The Owner had limited direct knowledge about the events at issue because she was not involved in the Daycare’s day-to-day operations. The Manager had no direct knowledge because she was not working at the Daycare at the material time. The individuals who were in charge of the Daycare’s day-to-day operations at the time, specifically the Daycare’s manager [ Former Manager ] and the Daycare’s director [ Former Director ] were not called to testify.
V Evidence and findings of fact
[11] In this section, I set out evidence presented at the hearing and some of my findings of fact.
[12] In 2016, the Daughter started attending the Daycare. The Son started attending in March 2019.
[13] At the material time, the Daycare had policies in place regarding the health of children. The first is the Daycare’s Parent Manual Policies & Procedures filed in 2013 with the Health Authority in which the Daycare is located [ Policy ], which I accept was in place at the material time. The second is the Parent Handbook, which is given to parents at the time of enrollment. Both the Policy and the Parent Handbook say that parents are required to keep their children at home if they exhibit certain symptoms, including a fever, unknown rash, and persistent cough. The Policy stresses the importance of parents keeping sick children at home so illnesses will not be spread to other children and staff.
[14] On December 10, 2019, the Grandmother dropped the Students off at the Daycare. She had been staying with the Father while the Mother was away on a work trip. When the Father picked up the Students, both of them appeared fine and the teacher did not tell him that anything was out of the ordinary. That evening, both the Grandmother and the Father noticed that the Son had not eaten much for dinner.
[15] The next morning, the Grandmother noticed that the Son had a low-grade fever and occasional cough. The Grandmother dropped the Daughter off at the Daycare and kept the Son at home. The Grandmother told the Son’s teacher that he was not feeling well and would be staying home.
[16] The Grandmother kept the Son at home the next day even though his fever was gone, and he was more active. When the Grandmother dropped the Daughter off at the Daycare, she told the Son’s teacher that he had a mild cough. The Grandmother asked the teacher whether any of the other children had cold symptoms, and the teacher said that a cold was going around.
[17] Sometime that day, the Daughter told a teacher that the Son had “red dots on his body”. As a precaution, the teacher reported what the Daughter said to the Former Manager. Sometime that evening, the Grandmother noticed that the Son had a mild rash on his buttocks and mentioned it to the Father.
[18] By Friday, December 13, 2019, the Son was feeling better and in good spirits. The Grandmother decided to again keep the Son at home so he could get more rest. When she dropped the Daughter off, the Grandmother told the teacher that the Son would not be attending that day. The Grandmother did not say anything to the teacher about the Son’s rash because she thought it was minor, and it did not seem to bother him. When the Father picked up the Daughter, the Former Manager asked him about what the Daughter had said to the teacher the day before. The Father told the Former Manager that the Son has sensitive skin and eczema, which presents as red dots.
[19] Later that day, the Mother returned from her work trip. When she got home, the Father told her about the Son’s previous lack of appetite, mild fever, and red dots on his buttocks. Based on the Son’s symptoms and her experience in a medical profession, the Mother suspected he might have hand, foot, and mouth disease [ HFMD ].
[20] Early in the morning of Monday, December 16, 2019, the Mother emailed the Former Director and said:
Just so you know, [Son] was sick all last week with symptoms matching that of Hand Foot Mouth disease. He started with fever, lethargy and lack of appetite and now has distinct rashes on certain parts of the body. It is highly contagious and I know it is something that daycares take seriously so I wanted to inform you to ensure the necessary precautions are taken.
I was away last week on a business trip otherwise I would have told you sooner.
[21] The Mother testified that because she is a responsible parent with a medical background, she felt it was important to share her suspicion that the Son had HFMD with the Former Manager so she could do what she needed to do.
[22] That afternoon, the Former Manager sent an email to all parents with children at the Daycare saying that the Daycare had been notified that children have been diagnosed with HFMD. The email included information about measures that parents and schools can take to prevent an outbreak and attached a link to further information about HFMD. The email advised parents to inform their child’s teacher if they notice their child exhibiting any symptoms and to take their child to a doctor as soon as possible. The email also advised parents that sick children must stay home and could only return after recovering and obtaining a doctor’s note. The Former Manager copied the Owner on her email.
[23] A few minutes after sending the email to parents, the Former Manager responded to the Mother’s email. The Former Manager told the Mother that a contagious illness is a serious matter, and parents have a responsibility to give notice to the Daycare as soon as possible if their child has symptoms. She said that sick children must not attend the Daycare until after their symptoms are gone and they have a doctor’s note. In her email, the Former Manager insinuated that the Grandmother and Father had deliberately downplayed the Son’s symptoms to his teachers. She asked the Parents to follow the Daycare’s policy about keeping sick children at home and to inform the Daycare as soon as possible if their children have any “suspicious symptoms”.
[24] The Mother described the Former Manager’s email to her as “fairly accusatory”. She testified that she was “taken aback” by the suggestion that her family had intentionally downplayed the Son’s symptoms. She testified that she was also confused as to why the Former Manager sent the email to all parents without talking to her first.
[25] Shortly after receiving the Former Manager’s email, the Mother called the Former Manager because she felt that having a phone conversation would be better than exchanging emails or text messages. During their conversation, the Former Manager told the Mother that the Grandmother only told the Daycare that the Son had a cough and cold and the Father said the rash was not bad, yet the Daughter told a teacher that the Son had a rash all over his body. The Mother told the Former Manager that the Grandmother and Father gave the Daycare updates on the Son’s condition based on their knowledge and what they believed at the time. The Mother told the Former Manager that she only suspected the Son had HFMD and he had not been diagnosed. The Former Manager said that based on the Mother’s medical background, she should have told the Daycare sooner about the Son’s condition. The Former Manager told the Mother that the Son could not return to the Daycare unless he had a doctor’s note saying he was no longer contagious. The Mother’s evidence was that she “felt attacked” during this conversation because the Former Manager was accusing her family of deliberately downplaying the Son’s symptoms.
[26] A few hours after their conversation, the Mother emailed the Former Manager and said there was no way to know the source of the HFMD. The Mother also said:
Based on my discussion with [Father] and parents, we kept the daycare informed daily with how [Son] was doing based on their BEST understanding and judgement at that moment in time. You trying to say my family was downplaying [Son’s] condition was rather offensive.
Please keep in mind that we kept [Son] from daycare for full 3 days last week as soon as we saw that he was ill before symptoms of rash appeared. Please keep in mind that we could have dropped [Son] off with rash at the daycare as he had no fever and was feeling fine Thursday or Friday. Please keep in mind that because of my medical background, I was able to tell you what it was as soon as I could versus waiting to see the doctor this week, which may have delayed things some more. I guarantee you that there are parents who don’t see doctors and even if they do, keep diagnosis to themselves and not share infection details.
But instead of asking how [Son] is now to see if he is better today … as I thought and hoped you would since you are one of his caregivers at the facility, you treated him like a frustrating case you had to “deal with”. I’m sorry my information has created more work for you but these things happen. I didn’t want it to happen either.
I truly think we should have been thanked for recognizing what it is and keeping him away. [Father] and I are very disappointed and feel under appreciated, offended and disrespected as parents of the daycare for so many years.
[27] The Mother testified that she sent the email because she felt the Former Manager blamed her for the situation when she was simply doing her due diligence. The Mother’s evidence was that she was upset and offended by the Former Manager’s accusation because her family took care of the Son to the best of their knowledge, his symptoms were not sufficiently severe to see a doctor, and they kept the Daycare informed about his condition.
[28] The next morning, the Mother informed the Daycare that the Daughter would be staying at home as a precaution. She dropped the Son off at the Daycare with a doctor’s note that said he was “well and not contagious to return to daycare”.
[29] Later that day, the Former Manager sent an email to all parents marked “urgent” that said because of a highly contagious HFMD outbreak and the increasing number of sick children, the Son’s classroom would be closed for the rest of the week so it could be disinfected. The email also said that the Son’s classroom would reopen on January 2, 2020. That evening, the Former Manager made an incident report to the Health Authority to report a HFMD outbreak. In the incident report, the Former Manager identified the Son as the “person affected” and three other children as “persons involved”. She also expressly stated in the report that the Students’ family “covered up” the Son’s HFMD and did not tell the Daycare until he had recovered.
[30] The next day, Mr. A attended at the Daycare to drop off one of his children, who was in a classroom that had not been closed. Mr. A met the Former Manager in the hallway and asked her about the email she sent to all parents. The Former Manager told Mr. A that his child would be fine because she only goes to the Daycare twice a week. The Former Manager also told Mr. A that one child was sick, and others were getting sick as well. Near the end of their conversation, the Former Manager told Mr. A that the Son was getting better. Initially Mr. A did not think anything of the Former Manager’s comment, but then wondered if it meant the Son was the source of the HFMD outbreak. When he got home, Mr. A told his wife that the Son might be the source of the outbreak because the Former Manager said he was better.
[31] Mr. A’s wife texted the Mother to find out how the Son was doing. She told the Mother that Mr. A had a conversation at the Daycare and the Son could be the source of the HFMD outbreak because he was recovering. The Mother testified that she felt isolated and targeted by the Daycare because it was sharing health information about the Son and telling parents that he was the source.
[32] Later that day, the Mother messaged the Former Manager and said she heard that the Daycare was telling other families that the Son was the source of the HFMD outbreak. She told the Former Manager that this was unprofessional, and they needed to talk in person. The Mother testified that she was very upset when she sent the message and did not get a response.
[33] The next morning, the Mother went to the Daycare to drop off Christmas gifts for the Students’ teachers. Her evidence was that the Former Manager saw her but avoided her. The Mother waited about half an hour and then asked a teacher when a good time might be for her to meet with the Former Manager. The teacher told the Mother it was not a good time. The Mother decided to leave the Daycare and let things subside until the New Year.
[34] Sometime after the Mother left the Daycare, the Former Manager responded to the Mother’s last email. In her email, the Former Manager apologized that her actions made the Mother feel her service was unprofessional. The Former Manager also apologized that the Daycare’s service caused the Mother an “unpleasant feeling” and offended her. The Former Manager invited the Mother to contact her. She also told the Mother that there was no blame regarding the source of the HFMD outbreak and that no one at the Daycare ever told anyone that the Son was the source. The Former Manager said that because the Mother had concerns about her and was dissatisfied with the Daycare’s service, it would be “better for the higher authority figure [Former Director] in the company to step in to work with your concern”. The Former Manager told the Mother that the Former Director would contact her shortly.
[35] Later that evening, the Former Director emailed a letter to the Parents [ Withdrawal Letter ] that said:
This is the letter to inform you that, unfortunately, we cannot meet your peronal [sic] standard and offering you the desired service.
Therefore, [Daycare] would like to withdraw your two children ([Students]) from the program with full-amount deposit and all post-dated cheques (January 2020 and onward). As per our centre policy and contract, please accept this letter as official 2-week notice immediately (effective December 19 th , 2019). I hope you can find the most suitable daycare for your family.
[36] The Withdrawal Letter concluded by stating that if the Parents had any questions, they could contact the Former Director at a specified email address.
[37] The Father testified that he was confused by the Withdrawal Letter. Both Parents testified that they did not know what the Former Director meant by “personal standards”. About an hour after receiving the Withdrawal Letter, the Father sent the following email to the Former Director:
As the father of both children I find your decision to withdraw both my children very shocking. I also believe the decision was made without all the facts and perhaps premature. You said that if we have any questions to email you directly and that is what I’m doing. I would like to meet with you in person so that we can understand the basis for your decision. Are you free to meet with me tomorrow (Friday)?
The in person meeting would be to minimize any future misunderstanding.
[38] A few days later, the Father sent a further email to the Former Director that said:
I sent you an email last Thursday asking to meet so we can talk about what is happening with my children. As of today (Dec 23 at 2 pm) I still have not heard back from you.
Would it be easier for me to phone you? If you can kindly give me your phone number then we can talk.
[39] The two emails the Father sent to the Former Director were not sent to the email address indicated in the Withdrawal Letter. By mistake, the Father sent them to a different address he had for the Former Director. Based on the evidence before me, however, I find it more likely than not that the Former Director either received the Father’s emails at the email address he sent them, or he was informed about their contents by the Former Manager or Owner. Specifically, both the Former Director and Former Manager accessed emails sent to the email address to which the Father sent a copy of his emails.
[40] The Father testified that things were hectic over the holiday break and he and the Mother were trying to figure out what to do. On December 30, 2019, a family member who is a lawyer emailed the Former Director, the Former Manager, and the Owner and said:
I am a lawyer writing on behalf of [Parents]. Please find attached a letter of introduction addressed to [Daycare]. I am including the three of you on this e-mail thread in your respective roles within the business. If you have legal representation in this matter, kindly forward this e-mail and letter to them so that I may communicate with them directly.
[41] The lawyer’s letter says that the Parents had been trying to reach out to the Daycare to determine the grounds on which the Students were removed. It says the Parents approached him because of their impression that the Daycare did not want to communicate with them directly. The letter says the Parents want to discuss their concerns and listen to the Daycare so the dispute could be resolved amicably. It says that the Parents believe the Students’ removal was an “inappropriate reaction” to the Son’s illness and their sudden removal “will impact their emotional well-being and social development”. The letter concludes by saying that the “dispute seems to have escalated from a lack of clear communication between both sides” and the Parents’ intent is to arrive at a mutually satisfactory outcome.
[42] On January 2, 2020, the Daycare emailed the Father and said its legal representative would contact him by January 13, 2020. The email appears to have been sent by the Owner; however, she testified that it was sent by either the Former Director or Former Manager.
[43] The Parents did not hear anything further from the Daycare or any legal or other representative about the Students’ removal.
VI Analysis
A. The legal test to prove discrimination
[44] Section 8 of the Code states:
Discrimination in accommodation, service and facility
8(1) A person must not, without a bona fide and reasonable justification,
(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or
(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public
because of the Indigenous identity, race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or class of persons.
[45] To succeed in the Son’s complaint that the Daycare discriminated against him based on disability, the Father must prove, on a balance of probabilities, that at the material time: (1) the Son had or was perceived to have a disability protected under the Code ; (2) the Daycare treated or impacted the Son adversely regarding its service; and (3) the Son’s disability or perceived disability was a factor. To succeed in the Students’ complaint that the Daycare discriminated against them based on family status, the Father must prove, on a balance of probabilities, that the Students experienced an adverse impact with respect to the Daycare’s service in which their family status was a factor: Moore v. BC (Education) , 2012 SCC 61 at para. 33.
[46] In either case, the Father does not have to prove the Students’ protected characteristics were the only or overriding factors, only that they were a factor: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Centre) , 2015 SCC 39 at para. 52; Stewart v. Elk Valley Coal Corp. , 2017 SCC 30 at para. 46. Nor does the Father need to prove that the Daycare intended to discriminate against the Students: Code , s. 2.
[47] If the Father proves the Students’ case, then the burden shifts to the Daycare to justify its conduct. If its conduct cannot be justified, then the Daycare will have breached the Code : Moore at para. 33.
B. Was the Son discriminated against based on disability?
[48] The term “disability” is not defined in the Code and whether a complainant has established this element is determined on a case-by-case basis. The term “disability” is not to be narrowly defined, and the Tribunal considers “the individual’s physical or mental impairment, if any; the functional limitations, if any, which result from that impairment; and the social, legislative or other response to that impairment and/or limitations”, with the focus being on the third element: Morris v. BC Rail , 2003 BCHRT 14 at para. 214; Wutke v. Mageria Holdings , 2006 BCHRT 340 at para. 83. In Greenwood v. Werner Smith Mechanical Inc. and another , 2024 BCHRT 192, the Tribunal said at para. 20:
… it is not necessary that a disability be permanent for it to constitute a disability for the purpose of the Code . The Code’s protection also extends to persons who suffer from temporarily disabling medical conditions.
[49] The Tribunal has held that “normal ailments” such as a common cold are not disabilities protected by the Code because “they do not constitute an obstacle to full participation in society: Morris at para. 209: Jickling v. Sweet Meadows Market (No. 2) , 2024 BCHRT 325 at para. 21.
[50] The Father submits that HFMD is a disability under the Code . He says HFMD is involuntary and, if a person experiences complications, may have some degree of permanence. The Father argues that HFMD is not similar to a common cold because of actions the Daycare took that are not required when children have a common cold, namely filing an incident report, closing and disinfecting the Son’s classroom, and requiring parents to get a doctor’s note before their children could return. Last, the Father says that unlike with a common cold, the Daycare’s policy is to “report to the parents if a child has been involved in an occurrence of a disease above the incident level that is normally expected”. I was not able to find a reference to that policy in either the Policy or the Parent Handbook.
[51] The Father also argues that even though the Son was never diagnosed with HFMD, he was perceived to have HFMD, a disability to which a stigma is attached. In support of his argument, the Father cites Quebec (Human Rights and Youth Rights Commission) v. Montreal (City); Quebec (Human Rights and Youth Rights Commission) v. Boisbriand (City) , 2000 SCC 27. In that case, the Supreme Court of Canada recognized that in the context of discrimination based on disability, “discriminatory acts may be based as much on perception and myths and stereotypes as on the existence of actual functional limitations”: at para. 39. The Court also recognized that a person may be perceived to have a disability when, in fact, their everyday activities and “opportunities to take part in the life of the community” are limited solely by prejudice and stereotypes: at para. 80.
[52] The Father also relies on Gehman v. Seyffert , 2020 BCHRT 180, where the Tribunal declined to dismiss a complaint allegation discrimination based on disability. In that case, the complainant alleged that her landlord discriminated against her when she was evicted because he was concerned she had been exposed to COVID-19. The Tribunal said the complaint was about “the alleged stigma that attaches to Covid-19”, which “falls squarely within the ambit of perceived physical disability”: at paras. 65-66. The Tribunal also said that COVID-19 might constitute a disability under the Code : at para. 87.
[53] Since Gehman , the Tribunal has considered after a hearing whether COVID-19 is a disability under the Code . In Jickling , the Tribunal found that the complainant’s employer discriminated against her when it terminated her employment after she took two leaves of absence to self-isolate during the first few months of the COVID-19 pandemic. When determining whether COVID-19 is a disability protected under the Code , the Tribunal took into consideration that at the material time, the BC government had declared a state of emergency, the BC Centre for Disease Control had issued self-isolation guidelines if a person developed symptoms of COVID-19, and the Legislature’s response was to amend the Employment Standards Act to give workers the right to take leave when they were self-isolating under the guidelines.
[54] In Jickling , the Tribunal said that even if a person did not have functional limitations from COVID-19, “they would still be unable to fully participate in the workforce because they were required to remain at home”: at para. 31. In other words, the barrier to participating “in the normal functions of life by leaving her home, associating with other people, or going to work” was because of the guidelines that required the complainant to self-isolate and not any physical limitations from COVID-19: at paras. 32 and 38.
[55] The Tribunal distinguished COVID-19 from other transient illnesses such as a common cold or influenza because of the state of emergency and legislative response “to prevent the spread of COVID-19 and limit cases, hospitalisations, and deaths”: at para. 37. The Tribunal took into account that during the early stages of the pandemic, “little was known about the disease, its transmission, and recovery rates”: at para. 37. It took into account that “the two leaves would have totalled close to three weeks in a one-month period”: at para. 38. The Tribunal distinguished the leaves the complainant took from people who choose to take time off when they have a cold, influenza, or gastroenteritis. Last, the Tribunal’s finding was consistent with statements made by the BC Human Rights Commissioner that employers must not discipline or terminate an employee who cannot work because they were required by medical and health officials to self-isolate.
[56] The evidence before me is that HFMD is a common illness in children that is caused by viruses. HFMD is highly contagious, most frequently during the first week, and can easily be spread through daycares and schools. Children with HFMD often exhibit cold or flu-like symptoms such as fever and lack of appetite, and a rash on their hands, mouth, or feet. Most people who get HFMD, including children, have mild symptoms that get better on their own within 7-10 days. There is no specific medical treatment for HFMD, and it can usually be treated at home. People with HFMD should only see a healthcare provider if, for instance, their symptoms are severe or their fever lasts more than three days. Complications from HFMD are rare and include dehydration if a child cannot swallow because of painful mouth sores, fingernail and toenail loss, and developing viral meningitis. In extremely rare cases, a person with HFMD can have swelling of the brain or paralysis.
[57] Based on the evidence, I find that HFMD is not a disability protected under the Code . In my view, HFMD is more similar to common ailments such as a common cold or influenza. Unlike the situation at the onset of the COVID-19 pandemic, much is known about HFMD, its transmission, and recovery rates. Unlike the circumstances in Jickling , there are no government-imposed barriers to participating in community life for people who have or are perceived to have HFMD. Further, there is no evidence before me establishing that there is any stigma, prejudice, or negative stereotypes attached to HFMD as there are with respect to other conditions such as HIV/AIDS: D.D. v. The Hotel and others , 2020 BCHRT 109 at para. 28; Radek v. Henderson Development (Canada) and Securiguard Services (No. 3) , 2005 BCHRT 302 at para. 604.
[58] Having found that HFMD is not a disability under the Code, it is not necessary for me to consider whether the Son’s HFMD or perceived HFMD was a factor in the Daycare’s decision to expel him.
C. Were the Students discriminated against based on family status?
1. The Students’ case
[59] There is no question that the Students’ relationship with the Parents is protected under the Code : B. v. Ontario (Human Rights Commission) , 2002 SCC 66 at para. 45; Desjardins obo the Child v. Little Owl Academy and others , 2017 BCHRT 238 at para. 30.
[60] I find that this part of the Students’ case has been established. Not allowing the Students to attend the Daycare constitutes an adverse impact on them with respect to the Daycare’s service: M obo C v. PS and A , 2014 BCHRT 217 at para. 44; Mangel and Yasu é obo Child A v. Bowen Island Montessori School and others , 2018 BCHRT 281 at para. 231.
[61] I also find that the Students’ family status was not only a factor but was the sole reason they were expelled from the Daycare. In other words, the evidence establishes that the Students were expelled only because of the dispute between the Daycare and the Parents.
2. Was the Daycare’s decision to expel the Students justified?
[62] To prove its decision to withdraw the Students was justified, the Daycare needs to show that:
1. It adopted the standard for a purpose or goal rationally connected to the function being performed;
2. It adopted the standard in an honest and good faith belief it was necessary to fulfill the legitimate purpose or goal; and
3. The standard is reasonably necessary to accomplish the purpose or goal, in the sense that the Daycare could not accommodate the Students’ protected characteristic without incurring undue hardship.
British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) , [1999] 3 SCR 868 [ Grismer ] at para. 20.
a. What is the standard at issue?
[63] Neither party expressly referred to the Grismer test in their closing submissions. However, it is possible on the evidence before me to identify the standard at issue and determine if the Daycare met its duty to accommodate the Students.
[64] In its closing argument, the Daycare says its decision to withdraw the Students was justified because it could not meet the Parents’ expectations. Specifically, the Daycare says the Parents often complained about the Daycare’s facilities and raised other concerns, and the Mother used “abusive language” to describe the Daycare and the Former Manager in messages she sent to Mr. A’s wife.
[65] The Daycare also says its decision to remove the Students was made in accordance with the Policy. According to the Policy, the Daycare can withdraw a child in specific circumstances “should it be deemed necessary for the safety and overall well-being of educators/or other children in care”. The Daycare says the specific circumstances in this case were:
- lack of parental cooperation;
- physical or verbal abuse of any person or property; and
- inability to meet the child’s needs.
[66] In his closing argument, the Parent says that throughout the Tribunal’s process, the Daycare has offered different justifications for withdrawing the Students. He notes that in its response to the complaint, the Daycare said the Students were withdrawn because the Parents misrepresented the Son’s condition and put other children at risk. In the materials filed in support of the Daycare’s application to dismiss the complaint, the Daycare said the Students were withdrawn because the Parents did not acknowledge or take any responsibility for not informing the Daycare sooner about the Son’s condition, and the Mother had a history of getting upset because her personal preferences were not being met.
[67] I begin with the Withdrawal Letter, which states that the Students were removed because the Daycare could not meet the Parents’ “personal standards” and offer them their desired service.
[68] None of the witnesses who had direct knowledge of the situation knew what the Former Director meant by “personal standards”. The Owner did not have any direct knowledge because she did not make the decision to remove the Students. Her testimony about the reasons why the Students were removed was confusing and contradictory. Specifically, in her direct examination, the Owner first said the Former Director and Former Manager told her the Daycare withdrew its services because of the Son’s health issues. Then she said she was told that the Former Director expelled the Students because the Parents were dissatisfied with the way the Daycare dealt with the Son’s health condition. Later on, the Owner said the Former Director told her that the Son’s health condition was not suitable for the Daycare. Finally, she said the expulsion of the Students had nothing to do with the Son’s condition and was solely related to the Parents. During her cross-examination, the Owner said she knew that the Former Manager and Former Director were under a lot of stress at the time and could not operate the Daycare properly. She said the Former Manager told her the Parents were making too many demands, and it was impossible to meet their standards. The Owner also said that the language both the Parents and the Former Manager used in their communications caused disharmony that led to the Students’ expulsion.
[69] The Manager’s evidence about the reasons why the Daycare expelled the Students was based on her review of the incident report and the Former Manager’s affidavit in support of the application to dismiss.
[70] Based on the contemporaneous documents and the Former Director’s affidavit filed in support of the application to dismiss, I find that the reasons why the Daycare removed the Students were that:
· the Daycare believed that the Father and Grandmother deliberately covered up the Son’s condition;
· the Daycare believed the Mother refused to take any responsibility for not reporting the Son’s condition sooner; and
· the Mother accused the Former Manager of being unprofessional for sharing personal health information about the Son and suggesting to other parents that he was the source of the HFMD outbreak.
[71] I do not accept the Daycare’s assertion that one of the reasons the Students were expelled was because the Former Manager was aware of negative comments the Mother made about her and the Daycare in text messages the Mother exchanged with Mr. A’s wife between December 18 and 20, 2019. The Daycare’s position was that these text messages constitute “verbal abuse” under the Policy.
[72] At the hearing, the Manager did not dispute that the Daycare never received copies of the text messages until they were disclosed during the Tribunal’s disclosure process. In her testimony, the Manager acknowledged that the text messages were a private conversation between the Mother and Mr. A’s wife, but said it was possible that the Former Manager somehow became aware of them before the decision was made to remove the Students.
[73] There is no evidence to support the Manager’s assertion. Other than the Father, Mr. A and his wife, there is no evidence that anyone else saw or received copies of the text messages. There is no evidence that anyone shared the text messages or the substance of the messages with the Former Director or anyone else at the Daycare.
[74] I also do not accept the Daycare’s assertion that one of the reasons why the Students were removed was because the Parents had a history of making complaints about the Daycare’s services and it was impossible to meet the Parents’ demands. Based on the contemporaneous documentary evidence and the Parents’ credible testimony, I find that during the time the Students attended the Daycare, the Parents made, at most, what could be described as “complaints” or “suggestions” well before the events at issue. Specifically, the Parents expressed concerns that children were being given unhealthy snacks, that the plastic utensils the Daycare used were frayed and could be a safety hazard for the children, and that parents frequently had to wait when picking up their children. There is no evidence before me indicating that when the Parents raised those issues, the Daycare considered them to be “demands” that could not be addressed or that the Daycare contemplated removing the Students because of them. To the contrary, the evidence before me, specifically that of the Former Employee who knew the family for almost three years, was that the Parents did not have a history of being “difficult” or not complying with the Daycare’s policies. The evidence before me establishes that prior to December 2019, the Parents and the Daycare had a good relationship.
[75] Given my finding about the reasons why the Daycare removed the Students, I find the standard at issue in this case is that parents must cooperate with the Daycare, including its policy on keeping sick children at home.
4. Was the standard adopted for a purpose or goal rationally connected to the function being performed?
[76] There was little evidence before me that expressly addressed the question of what the standard at issue was designed to achieve. However, I find that the evidence that was presented was sufficient to meet this part of the test. Specifically, I accept the Manager’s evidence that for the Daycare to operate properly and provide its services, there should be cooperation and mutual respect between the Daycare and parents. I also accept that the Daycare adopted the standard to ensure the “safety and overall well-being of educators/or other children in care”.
5. Were the standards adopted in an honest and good faith belief they were necessary to fulfill the legitimate purpose or goal?
[77] The parties did not address this in their evidence or closing submissions. However, in the absence of any evidence to the contrary, I accept that this part of the test has been met.
6. Were the standards reasonably necessary to accomplish the purpose or goal, in the sense that the Daycare could not accommodate the Students’ protected characteristic without incurring undue hardship?
[78] I find that the Daycare failed to establish that it could not have taken steps to accommodate the Students’ family status without incurring undue hardship. Put another way, I find the Daycare has not established that the Parents failed to cooperate to the point that withdrawing the Students was “necessary for the safety and overall well-being of educators/or other children in care”.
[79] To the contrary, the evidence establishes that the Parents complied with the Daycare’s policy regarding keeping sick children at home. The Grandmother kept the Son at home as soon as she noticed he had a fever and cough, and he did not return to the Daycare until he had a doctor’s note confirming he was not contagious. The Grandmother and Father kept the Daycare informed about the Son’s condition based on what they knew at the time. Contemporaneous notes made by the Daycare’s staff that week refer to other children exhibiting symptoms such lack of appetite and diarrhea. They also indicate that staff believed the Grandmother was being “overprotective” by keeping the Son at home because he had “just cold symptoms”. After she returned from her work trip, the Mother informed the Daycare about her suspicions that the Son might have HFMD. The Son was never diagnosed with HFMD and there is no evidence that he was the source of the suspected HFMD outbreak.
[80] In this case, the Daycare did not try to resolve its dispute with the Parents before withdrawing the Students. Even if the Former Manager and Former Director genuinely believed that the Parents should have reported the Son’s symptoms sooner and the Former Manager was upset by the Mother saying her conduct was unprofessional, the Daycare could have taken reasonable steps to try to resolve the dispute before removing the Students. Instead, the Daycare withdrew the Students before informing the Parents it was contemplating taking that step and giving the Parents an opportunity to respond. The Daycare never specified the exact reasons for removing the Students and only gave a vague explanation in the Withdrawal Letter. The Daycare never responded to the Father’s emails requesting an in-person meeting or phone call to discuss resolving the matter. Despite telling the Parents’ lawyer that it would respond to his email, the Daycare never did.
[81] The Owner testified that when there is a dispute between the Daycare and a parent, the Daycare first tries to communicate with the parent. She testified that only if a parent makes a request that is beyond the Daycare’s curriculum would its services be withdrawn. During cross-examination, the Manager testified that she would have handled the situation differently, for instance by asking for assistance from the Health Authority to find a solution. She also testified that resolving an issue with a parent directly is preferred and that parents and the Daycare should work together to create a harmonious environment.
[82] There is no evidence before me indicating that the Daycare considered whether it could work with the Parents to avoid withdrawing the Students. Nor is there any evidence before me to support a conclusion that trying to resolve the dispute before deciding to withdraw the Students was not feasible. Based on the evidence as a whole, I find that the Parents made all reasonable efforts to participate in an accommodation process by reaching out to the Daycare after the Students were withdrawn, but the Daycare ignored them.
VII Remedy
[83] Having found the complaint based on family status to be justified, I declare that the Daycare’s decision to remove the Students constitutes discrimination contrary to s. 8 of the Code . I order the Daycare to cease the contravention and refrain from committing the same or a similar contravention: Code , ss. 37(2)(a) and (b).
[84] I now consider the other remedies sought in turn.
A. Compensation for lost wages
[85] The Father seeks $4,000 in compensation for income lost when he took time off to care for the Students after they were removed from the Daycare.
[86] Section 37(2)(d)(ii) of the Code gives the Tribunal discretion to award compensation to a successful complainant for wages lost by the contravention. The intent of a wage loss award “is to restore a complainant, to the extent possible, to the position he or she would have been in had the discrimination not occurred”: Gichuru v. The Law Society of British Columbia (No. 9) , 2011 BCHRT 185 [ Gichuru No. 9 ] at para. 300, petition dismissed 2013 BCSC 1325; appeal dismissed 2014 BCCA 396. A complainant bears the burden of proving a causal connection between the discrimination and the wage loss claimed: Gichuru No. 9 at paras. 301-302. If the complainant does that, “the amount of compensation is a matter of discretion, to be exercised on a principled basis, in light of the purposes of the remedial provisions of the Code , and the purpose of the award”: Gichuru No. 9 at para. 303.
[87] In February 2024, the Father obtained a judgment against the Daycare from the Small Claims Court. The Father had made a claim against the Daycare for breach of contract related to the same events that gave rise to this complaint. As the Small Claims Court ordered the Daycare to pay the Father $4,000 for the same amount of lost wages during the same period of time, I decline to make this order.
B. Compensation for wages lost to attend hearing
[88] The Father seeks $2,000 for wages lost to attend the hearing, which took place over four days. The Tribunal has authority under s. 37(2)(d)(ii) of the Code to make such an award in favour of a person discriminated against: Cassidy v. Emergency and Health Services Commission and another (No. 3) , 2009 BCHRT 110 at para. 164. As the Students’ representative, the Father’s attendance was required throughout the hearing. For that reason, I order the Daycare to pay him $2,000 for compensation for wages lost to attend the hearing.
[89] The Father also seeks $1,900 for wages the Mother lost for the Mother to attend the hearing. As the Mother was not the Students’ representative and was only required to attend the hearing as a witness, I decline to make this order.
C. Compensation for other expenses
[90] Section 37(2)(d)(ii) allows the Tribunal to order a respondent to compensate a successful complainant for expenses incurred by the Code contravention.
1. Compensation for time spent searching and securing a new daycare for the Students
[91] The Father seeks $1,600 for reimbursement of expenses incurred to find a new daycare for the Students. The Father’s evidence was that the Students started attending a new daycare in February or March 2020.
[92] In support of his claim, the Father submitted a breakdown of the time spent searching for a new daycare, including contacting daycares online and visiting daycares in person. The breakdown also includes time spent contacting nanny services and other resources. A few of entries in the breakdown are dated, for example a visit to a daycare and ads posted in January 2020. The majority of the entries are not dated.
[93] The Father’s evidence is not sufficient to support his claim. He did not prove that the wages he lost because he missed work to search for and secure a new daycare were over and above those he lost when he took time off to take care of the Students. Without sufficient proof that he searched for and secured new daycare on missed workdays not already included in the Small Claims Court’s judgment, I decline to make this order.
2. Compensation for extra tuition costs
[94] The Father seeks $2,000 for compensation for the difference between the tuition the Daycare charged and the tuition the daycare the Students started to attend in February or March 2020 charged.
[95] The Father did not submit any evidence about the actual tuition costs for the Daycare or the new daycare. He also did not recall the exact date the Students started attending the new daycare, only that they started sometime in February or March 2020. For those reasons, I decline to make this order.
3. Compensation to the Grandparents
[96] The Father seeks $3,500 for compensation to the Grandparents for rent they had to pay so they could help the Parents care for the children before they found a new daycare in February or March 2020. The Father’s evidence was that at the time the Students were removed from the Daycare, the Grandparents had sold their home and were renting accommodations before they moved into a new home. The Father testified that when the Students were removed, the Grandparents decided to stay in their rented accommodations for another month so they could help care for the Students.
[97] The Father did not submit any documentary evidence to support this claim, nor did the Grandmother give evidence about this claim during her testimony. For these reasons, I decline to make this order.
D. Compensation for injury to dignity
[98] Under s. 37(2)(d)(iii) of the Code , the Tribunal has discretion to award compensation to a complainant for injury to their dignity, feelings, and self-respect. Such an award is intended to compensate a complainant who has been discriminated against, not to punish the respondent: Silver Campsites Ltd. v. James , 2013 BCCA 292 at para. 41. The amount of compensation depends on the facts of the particular case and relevant factors, namely the nature of the discrimination, the complainant’s vulnerability, and the effect of the discrimination on the complainant: Oger v. Whatcott (No. 7) , 2019 BCHRT 58 at para. 225.
[99] The Father seeks $10,000 to each Student for compensation for injury to their dignity, feelings, and self-respect. In support of his claim, the Father cites two cases from the Human Rights Tribunal of Ontario [ HRTO ]. In Espinoza v. The Napanee Beaver Limited , 2021 HRTO 68, the HRTO found that the respondent failed to discharge its duty to accommodate the complainant’s family status after she requested accommodation from her employer because she did not have fulltime daycare for her children. The HRTO awarded the complainant $10,000 for compensation for injury to dignity, feelings, and self-respect. In Watters v. Creative Minds Childrens Services LTO Daycare , 2015 HRTO 475, the HRTO awarded the complainant $15,000 after finding that the respondent discriminated against her based on sex when it failed to accommodate physical limitations associated with her pregnancy.
[100] I find these cases of limited assistance, both because they are from another jurisdiction and are easily distinguishable on their facts.
[101] In my view, the cases where the Tribunal has found a daycare or preschool discriminated against a child based on their family status are most helpful to my analysis. In M obo C v PS and A , 2014 BCHRT 217, the Tribunal found that the respondent daycare discriminated against C, a 3-year old child, when it failed to accommodate his medical condition and refused to enroll him. In Mangel , the Tribunal found that the respondent discriminated against Child A, also a young child, when it would not register her unless her parents agreed to certain conditions.
[102] In M obo C , the Tribunal awarded C $2,500 for compensation for injury to dignity, feelings, and self-respect. In arriving at that amount, the Tribunal took into consideration that although C wanted to attend preschool, he “was not depressed or otherwise affected by the actions of the respondent”: at para. 68. The Tribunal also took into consideration evidence establishing that because of his autism spectrum disorder, C would benefit from attending preschool and the respondent’s refusal to enroll him was a “development opportunity that was lost”: at para. 69. In Mangel , the Tribunal awarded Child A $2,000 because the impact of the respondent’s actions was “far less egregious” than in M obo C . At para. 289, the Tribunal stated:
The evidence in this case was that Child A was enrolled in another preschool where she did remarkably well and thrived. Child A has not missed a beat and save for questioning why she could not go back to BIMS and when she would see Teacher Helen and Theresa again has suffered no ill effects.
[103] The evidence before me about the impact of the Daycare’s withdrawal of the Students on the Daughter was like that in Mangel . The Father’s evidence was that after she was told that she would not return to the Daycare, the Daughter was upset because she would not see her friends. The Father’s evidence was that the Daughter still saw some of the friends she made at the Daycare because they were still in touch with their parents. The Father testified that the Daughter had some difficulty making friends at the new daycare, but she only attended that daycare for a brief time before all daycares closed in March 2020 due to COVID-19. The Father’s evidence was that the Daughter started school in September 2020, so she no longer attended daycare.
[104] The Father’s evidence was that the Daycare’s decision to withdraw the Students did not really impact the Son because he was too young to understand what had happened. The Father testified that the Son started attending a new daycare in September 2020.
[105] After weighing the relevant factors and case law, I find that an order of $2,000 as compensation to injury to the Daughter’s dignity, feelings, and self-respect and $500 as compensation for the injury to the Son’s dignity, feelings, and self-respect is appropriate.
4. Conflict management and sensitivity training
[106] The Father seeks an order requiring the Daycare to implement conflict management and sensitivity training for its staff. The Father testified that he seeks this remedy because this matter could easily have been resolved without the need to take legal action.
[107] The evidence before me established that at the material time, the Daycare was going through a time of transition. The Former Manager had recently taken on a management role and told the Owner she could not focus on completing the curriculum because she was feeling pressured and stressed. The Owner testified that the Former Manager was having difficulty dealing with parents, including the Parents, and she subsequently resigned from her position.
[108] I accept the evidence of the Owner and Manager that if there is a dispute with a parent or a parent raises a concern, their preference is to deal directly with the parent to resolve the matter and restore harmony. I accept the Manager’s evidence that she would have other ways of handling the situation and would have talked to the Parents directly. I accept her evidence that she believes parents and the Daycare should work together to create a harmonious environment.
[109] Based on that evidence, I am not persuaded that this remedy is warranted. For that reason, I decline to make this order.
VIII CONCLUSION AND ORDERS
[110] For the reasons set out above, the complaint that the Daycare discriminated against the Son based on physical disability contrary to s. 8 of the Code is dismissed.
[111] For the reasons set out above, I find that the Daycare discriminated against the Students based on family status contrary to s. 8 of the Code when it withdrew them in December 2019. I make the following orders:
a. Pursuant to ss. 37(2)(a) and (b) of the Code , I declare that Daycare’s withdrawal of the Students in December 2019 is discrimination contrary to s. 8 of the Code and I order the Daycare to cease the contravention and refrain from committing the same or a similar contravention;
b. Pursuant to s. 37(2)(d)(ii), I order the Daycare to pay the Father the amount of $2,000 as compensation for wages lost to attend the hearing;
c. Pursuant to s. 37(2)(d)(iii), I order the Daycare to pay the Daughter the amount of $2,000 as compensation for injury to her dignity, feelings, and self-respect;
d. Pursuant to s. 37(2)(d)(iii), I order the Daycare to pay the Son the amount of $500 as compensation for injury to his dignity, feelings, and self-respect; and
e. I order the Daycare to pay post-judgment interest on all amounts awarded until paid in full, based on the rates set out in the Court Order Interest Act , RSBC 1996, c. 79, as amended.
Beverly Froese
Tribunal Member