RE: New Human Rights Case linked to daycare and termination of daycare services due to a perceived disability.
Since we all have most likely struggled with daycare issues at some point, I am posting this case.
It is a very interesting case. A situation that parents find themselves trapped in way too often.
The child hasn’t been diagnosed yet.
They suspect he might have ADHD/Autism. Their daycare terminated services.
The mother is self-representing.
This is a dismissal application.
She won.
Her case is continuing to a hearing/mediation meeting.
[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.
**** This makes me wonder about education settings. Can the school just perceive them to have a disability?
Can they be protected under the Code without a diagnosis yet?
We also have another case where the teenager was bullied due to sexual orientation and he won his case, even though he is heterosexual. It didn’t matter. He was treated and bullied as if he belonged to the protected group.
Jubran v. Board of Trustees, 2002 BCHRT 10 (CanLII)
For summary and key highlights https://www.speakingupbc.com/bullying/
These two cases are examples of a perceived disability/protected ground. There is room here for these to be used in an argument in an educational setting. Whether the tribunal will accept it or not is another question.
Here is the full decision with all of the details.
https://www.bchrt.bc.ca/…/decisions/recent/2024-bchrt-251/