BC Human Rights Code (6:III): Difference between revisions

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Section 8 states that any accommodation, service, or facility customarily available to the public may not be denied to an individual for  reasons based on that person’s race, colour, ancestry, place of origin, religion, marital status, physical or mental disability, gender, or sexual orientation.  
Section 8 states that any accommodation, service, or facility customarily available to the public may not be denied to an individual for  reasons based on that person’s race, colour, ancestry, place of origin, religion, marital status, physical or mental disability, gender, or sexual orientation.  
''British Columbia Council of Human Rights v Berg'', [1993] 2 SCR 353 at para 10 provides the definition of “customarily available to the public”.  A service is customarily available to the public if the nature of the relationship is public. Look at the relationship between the facility and  the victim and the nature of the service itself. The court found that a university is its own public and that the relationships between  students and professors, who present the public “face” of the university, are public in this context. Please refer to ''HMTQ v McGrath'', 2009 BCSC 180 at para 89-93 for a more recent case that cites the definition of what is “customarily available to the public” following Berg.
While there is no enumerated list of relationships that count as public, locales such as pubs, night clubs, hotels, theatres, transportation  services, education facilities, insurance, medical treatment in hospitals, management services in condominiums, and participation in sporting events have all been found to entail public relationships. Licensing services and facilities may also involve public relationships; for  example, discrimination prohibited by s. 8 was ultimately found when the BC Motor Vehicle Branch maintained a blanket refusal to issue drivers  licenses to those with certain visual impairments regardless of actual driving ability. Please refer to ''BC (Superintendent of Motor Vehicles) v BC (Council of Human Rights)'', [1999] 3 SCR 868 (“Grismer”).
'''Exceptions:''' There are a number of circumstances where discrimination is permitted, if it can be shown to be supported by “''bona fide'' and reasonable justification” (BFRJ) (as per the wording of s 8(1)). For the most authoritative perspective, see the “Grismer” case (cited above), which applied the three-part “Meiorin” test to services: ''British Columbia (Public Service Employee Relations Commission) v British Columbia  Government Service  Employees' Union'' [1999] 3 S.C.R. 3, a Supreme Court of Canada case that created a unified test to determine if a violation of human rights legislation can be justified as a ''bona fide'' occupational requirement(BFOR).
Additionally, courts have found that services provided to members of a group who come together as a result of a private selection process  based on attributes personal to the members do not qualify as services “customarily available to the public” and are therefore not subject to  s 8 of the HRC. Please refer to ''Marine Drive Golf Club v Buntain et al and BC Human Rights Tribunal'', 2007 BCCA 17 at para 48-56.
Section 8(2) also contains certain built-in exceptions. Discrimination based on sex is permitted insofar as it relates to the maintenance of public decency. Discrimination based on sex, physical or mental disability, or age is permitted insofar as it relates to the determination of premiums or benefits under life or health insurance policies.
=== 3. Discrimination in Purchase and Rental of Property ===
Section 9 provides that a person must not be denied the opportunity to purchase real property due their race, colour, ancestry, place of origin, religion, marital status, physical or mental disability, sexual orientation or sex.
Section 10 states that a person shall not be denied the right to occupy any space that is represented as being available for occupancy or be  discriminated against with respect to a term or condition of the tenancy on the basis of race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, age or lawful source of income. Please refer to ''Hunter v LaViolette (No 2)'', 2007 BCHRT 415.
'''Exceptions:''' This section does not apply if the tenant is to share the use of any sleeping, bathroom, or cooking facilities with the  person making the representation (e.g. as a roommate). Also, it continues to be possible for landlords to discriminate against those under the age of 19 or based on political belief when accepting new tenants or making other decisions related to rental properties.
=== 4. Discrimination in Employment Advertisements and Interviews ===
Section 11 prohibits employment advertisements that express limitations or preferences based on race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sexual orientation, sex or age. Refer to ''Anderson v Thompson Creek Mining Ltd Endako Mines'', 2007 BCHRT 99.
'''Exception:''' Discrimination in employment advertisements may be permitted if such limitations are based on “''bona fide'' occupational requirement(s)” as per the wording of s 11.
For case law on discrimination during the interview process, please refer to ''Khalil v Woori Education Group'', 2012 BCHRT 186 at para 29-45. An employer, under s 13, cannot refuse to employ someone on the ground mental or physical disability unless there is a ''bona fide'' occupational requirement (see subsection 6: Discrimination in Employment and the Duty to Accommodate).
5.Discrimination in WagesSection 12 states that wage parity between sexes is required for similar or substantially similar jobs.  Please  refer  to Jules  v  United  Native  Nations  Society  and  Johnson,  2009  BCHRT  115.Recovery  of  wages  is  limited  to  wages  of  an  employee  during  the  twelve-month  period immediately  before  the  earlier  of  the  date  of  the  employee's  termination  or  the commencement  of  the  action.  Most  of  the  remedies  under  this  section  are  also  available under s.13 which does not have a limitation on the period of time during which wages can be claimed.Limitation Dates: Section 12 of the HRC states: (a)  the  action  must  be  commenced  no  later  than  12 months  from  the  termination  of  the employee's services, and (b) the action applies only to wages of an employee during the 12 month period immediately before  the  earlier  of  the  date  of  the  employee's  termination  or  the  commencement  of  the action. This seems to imply a twelve-month limitation period. It is important to note, however, that s.  22  of  the  HRC  sets  a  six-month  limitation  period  for  all  human  rights  complaints.  This section  does  not  include  an  exception  for  complaints  made  under  s.  12,  therefore,  any complaint  made  under  s.  12  should  be  filed  within  six  months  of  the  incident  of discrimination to ensure that the limitation date is not missed. See Anderson v. Commonwealth Construction  and  others, 2012  BCHRT  34for  an  example  of  a  s.  12  complaint  which  was dismissed for being filed more than six months after the complainant's termination date.It is not  clear  but  it  appears  that  the  wording  in  s.  12  which sets  a  limitation  date  of  twelve months  therefore  applies  only  to  separate  actions  taken  under  that  section,  and  not  to human rights complaints.Exception:  A  difference  in  the  rate  of  pay  between  employees  of  different  sexes based  on  a  factor other than  sex  is  allowed,  provided  that  the  factor  on which the difference is based would reasonably justify the difference.6.Discrimination in Employment and the Duty to A ccommodate Section  13  provides  that  no  person  shall  refuse  to  employ  another  person  or  discriminate against  a  person  with  respect  to  employment  or  any  term  or  condition  of  employment  on the  basis  of  race,  colour,  ancestry,  place  of  origin,  political  belief,  religion,  marital  status, family  status,  physical  or  mental  disability,  sex,  sexual  orientation,  or  age  of  that  person  or


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Revision as of 03:20, 20 May 2016



The B.C. Human Rights Code [“HRC”] is the legislation currently applicable in BC and is administered by the B.C. Human Rights Tribunal.

The HRC applies to matters within the provincial constitutional heads of power, and covers both public and private bodies and individuals. For example, the HRC applies to provincially regulated employers, unions, professional associations, most commercial businesses, Crown corporations, landlord-tenant relations, as well as the provincial government itself.

NOTE: The Tribunal’s decisions are available online at http://www.bchrt.bc.ca/decisions. They are indexed by year dating back to 1997 and searchable based on a variety of criteria.

The Chart below illustrates how the HRC’s protected grounds apply to each area of protection.

INSERT IMAGE HERE

A. Protections, Exceptions and Exemptions

The HRC provides protection against discrimination in several different contexts, which are listed in ss. 7 – 14. However, for many of these protected areas, the HRC provides certain exceptions for which prima facie discrimination is not prohibited.

Additionally, s 41, commonly referred to as the group rights exemption, allows what might otherwise be deemed as prohibited discriminatory acts by charitable, philanthropic, educational and other not-for-profit organizations, if it is done while promoting the interests and welfare of a group of people that share a common identifiable characteristic, such as religion, race, or marital status. Please refer to Vancouver Rape Relief Society v Nixon, 2005 BCCA 601.

Furthermore, under s 42, it is not discrimination to plan, advertise, adopt or implement an employment equity program that has the objective of ameliorating the conditions of individuals or groups who are disadvantaged because of race, colour, ancestry, place of origin, physical or mental disability or sex. Such programs may obtain prior approval by the BC Human Rights Tribunal and, if pre-approved, will not be deemed to be in contravention of the HRC.

Finally, s. 43, often referred to as the “retaliation” section, prohibits discrimination against a person because that person complains, has been named, gives evidence, or otherwise assists in a complaint or other proceeding under the HRC. This section will very soon be amended to include protection of a person who is planning to commence, but has not yet filed, a human rights complaint.

1. Discriminatory Publication

Section 7 deals with forms of discrimination against individuals or groups of individuals, which are published, displayed, or made public. This section prohibits hate literature and other such communications that is or is likely expose someone in a protected group to hatred or contempt. Please refer to Elmasry and Habib v Roger’s Publishing and MacQueen (No 4), 2008 BCHRT 378 at para 21-27.

Exception: Section 7 does not apply to communications that are intended to be private and are related to activities otherwise permitted under the HRC.

2. Discrimination in Facilities “Customarily Available to the Public”

Section 8 states that any accommodation, service, or facility customarily available to the public may not be denied to an individual for reasons based on that person’s race, colour, ancestry, place of origin, religion, marital status, physical or mental disability, gender, or sexual orientation.

British Columbia Council of Human Rights v Berg, [1993] 2 SCR 353 at para 10 provides the definition of “customarily available to the public”. A service is customarily available to the public if the nature of the relationship is public. Look at the relationship between the facility and the victim and the nature of the service itself. The court found that a university is its own public and that the relationships between students and professors, who present the public “face” of the university, are public in this context. Please refer to HMTQ v McGrath, 2009 BCSC 180 at para 89-93 for a more recent case that cites the definition of what is “customarily available to the public” following Berg.

While there is no enumerated list of relationships that count as public, locales such as pubs, night clubs, hotels, theatres, transportation services, education facilities, insurance, medical treatment in hospitals, management services in condominiums, and participation in sporting events have all been found to entail public relationships. Licensing services and facilities may also involve public relationships; for example, discrimination prohibited by s. 8 was ultimately found when the BC Motor Vehicle Branch maintained a blanket refusal to issue drivers licenses to those with certain visual impairments regardless of actual driving ability. Please refer to BC (Superintendent of Motor Vehicles) v BC (Council of Human Rights), [1999] 3 SCR 868 (“Grismer”).

Exceptions: There are a number of circumstances where discrimination is permitted, if it can be shown to be supported by “bona fide and reasonable justification” (BFRJ) (as per the wording of s 8(1)). For the most authoritative perspective, see the “Grismer” case (cited above), which applied the three-part “Meiorin” test to services: British Columbia (Public Service Employee Relations Commission) v British Columbia Government Service Employees' Union [1999] 3 S.C.R. 3, a Supreme Court of Canada case that created a unified test to determine if a violation of human rights legislation can be justified as a bona fide occupational requirement(BFOR).

Additionally, courts have found that services provided to members of a group who come together as a result of a private selection process based on attributes personal to the members do not qualify as services “customarily available to the public” and are therefore not subject to s 8 of the HRC. Please refer to Marine Drive Golf Club v Buntain et al and BC Human Rights Tribunal, 2007 BCCA 17 at para 48-56.

Section 8(2) also contains certain built-in exceptions. Discrimination based on sex is permitted insofar as it relates to the maintenance of public decency. Discrimination based on sex, physical or mental disability, or age is permitted insofar as it relates to the determination of premiums or benefits under life or health insurance policies.

3. Discrimination in Purchase and Rental of Property

Section 9 provides that a person must not be denied the opportunity to purchase real property due their race, colour, ancestry, place of origin, religion, marital status, physical or mental disability, sexual orientation or sex.

Section 10 states that a person shall not be denied the right to occupy any space that is represented as being available for occupancy or be discriminated against with respect to a term or condition of the tenancy on the basis of race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, age or lawful source of income. Please refer to Hunter v LaViolette (No 2), 2007 BCHRT 415.

Exceptions: This section does not apply if the tenant is to share the use of any sleeping, bathroom, or cooking facilities with the person making the representation (e.g. as a roommate). Also, it continues to be possible for landlords to discriminate against those under the age of 19 or based on political belief when accepting new tenants or making other decisions related to rental properties.

4. Discrimination in Employment Advertisements and Interviews

Section 11 prohibits employment advertisements that express limitations or preferences based on race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sexual orientation, sex or age. Refer to Anderson v Thompson Creek Mining Ltd Endako Mines, 2007 BCHRT 99.

Exception: Discrimination in employment advertisements may be permitted if such limitations are based on “bona fide occupational requirement(s)” as per the wording of s 11.

For case law on discrimination during the interview process, please refer to Khalil v Woori Education Group, 2012 BCHRT 186 at para 29-45. An employer, under s 13, cannot refuse to employ someone on the ground mental or physical disability unless there is a bona fide occupational requirement (see subsection 6: Discrimination in Employment and the Duty to Accommodate).

5.Discrimination in WagesSection 12 states that wage parity between sexes is required for similar or substantially similar jobs. Please refer to Jules v United Native Nations Society and Johnson, 2009 BCHRT 115.Recovery of wages is limited to wages of an employee during the twelve-month period immediately before the earlier of the date of the employee's termination or the commencement of the action. Most of the remedies under this section are also available under s.13 which does not have a limitation on the period of time during which wages can be claimed.Limitation Dates: Section 12 of the HRC states: (a) the action must be commenced no later than 12 months from the termination of the employee's services, and (b) the action applies only to wages of an employee during the 12 month period immediately before the earlier of the date of the employee's termination or the commencement of the action. This seems to imply a twelve-month limitation period. It is important to note, however, that s. 22 of the HRC sets a six-month limitation period for all human rights complaints. This section does not include an exception for complaints made under s. 12, therefore, any complaint made under s. 12 should be filed within six months of the incident of discrimination to ensure that the limitation date is not missed. See Anderson v. Commonwealth Construction and others, 2012 BCHRT 34for an example of a s. 12 complaint which was dismissed for being filed more than six months after the complainant's termination date.It is not clear but it appears that the wording in s. 12 which sets a limitation date of twelve months therefore applies only to separate actions taken under that section, and not to human rights complaints.Exception: A difference in the rate of pay between employees of different sexes based on a factor other than sex is allowed, provided that the factor on which the difference is based would reasonably justify the difference.6.Discrimination in Employment and the Duty to A ccommodate Section 13 provides that no person shall refuse to employ another person or discriminate against a person with respect to employment or any term or condition of employment on the basis of race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, or age of that person or

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