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

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.   They are also available on CanLII BC ([http://www.canlii.org/en/bc www.canlii.org/en/bc]/).  

In the employment context, a respondent can justify its conduct by proving on a balance of probabilities that the rule, standard, or requirement being challenged is a bona fide occupational requirement (BFOR). In ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1724/index.do British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees' Union]'', [1999] 3 SCR 3 at para 54 [Meiorin], the Supreme Court of Canada set out the three-stage analysis for determining whether a standard is a bona fide occupational requirement (BFOR):  

| style="text-align: center;" | Publications

| Gender Identity or Expression

Furthermore, under section 42, it is not discriminatory 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, sex, sexual orientation, or gender identity or expression. Such special programs may obtain prior approval by the BC BC Human Rights Commissioner and, if pre-approved, will not be deemed to be in contravention of the HRC. Ultimately, section 42 gives the Commissioner jurisdiction to approve special programs that are aimed at improving the situation of individuals or groups that have suffered historical disadvantage.  

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 expose or are likely to expose someone in a protected group to hatred or contempt, as well as publications that indicate discrimination or intent to discriminate against a protected group.  Please refer to ''[http://www.bchrt.bc.ca/shareddocs/decisions/2019/mar/58_CORRECTED_Oger_v_Whatcott_No_7_2019_BCHRT_58.pdf Oger v Whatcott]'' (No 7), 2019 BCHRT 58 at paras 93—97 for the former, and ''Li v Mr B'', [https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt228/2018bchrt228.html?resultIndex=1&fbclid=IwAR29aclgXwxQnU6peHALajehkvX-uSD4VK0wIv1zAnArQ-vHynzNXoWIMXI 2018 BCHRT 228] at paras 95—97 [''Li''] for the latter.   

# It adopted the standard in good faith, in the belief that it is necessary for the fulfillment for the purpose or goal; and

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 basis of any of the prohibited grounds of discrimination unless there is a ''bona fide'' occupational requirement (see [[{{PAGENAME}}#6. Discrimination in Employment and the Duty to Accommodate | subsection 6: Discrimination in Employment and the Duty to Accommodate]]).

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, gender identity or expression, age, and/or because that person has a criminal record that is unrelated to the employment. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2010/2010bchrt13/2010bchrt13.html Ratzlaff v Marpaul Construction Ltd]'', 2010 BCHRT 13 for one example of an employment case. This section might extend to volunteers depending on the circumstances (''Nixon''). When determining whether a volunteer is captured by this section of the HRC, the Tribunal will consider the following:  

'''Undue Hardship''': What may be considered “undue hardship” varies by employer and depends on the circumstances. In ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/910/index.do Central Okanagan School District No 23 v Renaud]'', [1992] 2 SCR 970 at 985—986, the Supreme Court of Canada noted that it is more than a minor inconvenience, and that actual interference must be established. Factors include the court may consider are financial cost, health and safety, and flexibility and size of the workplace. The burden of proving an undue hardship lies on the respondent and will require evidence that all reasonable accommodations, short of undue hardship, have been provided. For more information on the duty to accommodate, please see the BC Human Rights Clinic’s “FAQ – Duty to Accommodate” at [http://www.bchrc.net/duty_to_accommodate www.bchrc.net/duty_to_accommodate] and their blog at [https://bchrc.net/tag/duty-to-accomodate/ https://bchrc.net/tag/duty-to-accomodate/].

=== 2. Ancestry, Colour, Place of Origin and Race ===

The HRC provides protection from discrimination due to political beliefs and/or affiliations in the areas of employment; employment advertising; and membership in a trade union, employer’s organization or occupational association.  

In BC, few human rights cases have been decided on the ground of political belief and, as such, a comprehensive definition of what constitutes a political belief under the HRC has not been established. The Tribunal has, however, identified two key principles in determining whether a claimant’s belief should be protected under the HRC:

Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2006/2006bchrt462/2006bchrt462.html?resultIndex=1 Prokopetz and Talkkari v Burnaby Firefighters’ Union and City of Burnaby]'', 2006 BCHRT 462 at para 31 and [https://www.canlii.org/en/bc/bchrt/doc/2016/2016bchrt124/2016bchrt124.html?resultIndex=1 Fraser v British Columbia (Ministry of Forests)], 2016 BCHRT 50. See ''[https://www.canlii.org/en/bc/bchrt/doc/2016/2016bchrt50/2016bchrt50.html?resultIndex=1 Bratzer v Victoria Police Department]'', [2016] BCHRT No 50 for a unique example of how political belief can be framed. In this case, an officer of the Vancouver Police Department successfully argued that his stance against the criminalization of illicit drugs and his involvement in a not-for profit that advocates for such views amounted to a political belief.  

Section 2a of the ''[https://www.canada.ca/en/canadian-heritage/services/how-rights-protected/guide-canadian-charter-rights-freedoms.html Charter]'' protects the freedom of conscience and religion. A claimant must show that their religious belief or practice is sincere, but not that it is objectively required or recognized by a particular religious faith. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2009/2009bchrt1/2009bchrt1.html Friesen v Fisher Bay Seafood Limited]'', 2009 BCHRT 1, at para 57. Atheism is encompassed within the protected ground of religion:  ''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt281/2018bchrt281.html?resultIndex=1 Mangel and Yasué obo Child A v. Bowen Island Montessori School and others]'', 2018 BCHRT 281 at para 210: ''[https://www.canlii.org/en/ca/scc/doc/2015/2015scc16/2015scc16.html Mouvement laïque québécois v Saguenay (City)]'', 2015 SCC 16 at para 70; ''[https://www.canlii.org/en/ca/scc/doc/2012/2012scc7/2012scc7.html SL v Commission scolaire des Chênes]'', 2012 SCC 7 at para 32; ''[https://www.canlii.org/en/ca/scc/doc/1985/1985canlii69/1985canlii69.html?resultIndex=1 R v Big M Drug Mart Ltd]'', [1985] 1 SCR at 314)

The duty to accommodate has been firmly established in case law and obliges employers to accommodate the religious practices of their employees as long as doing so does not cause undue hardship. These practices may be linked to customs involving prayer, dietary restrictions, clothing requirements, and time off on religious holy days. Please refer to ''[https://www.canlii.org/en/ca/scc/doc/1992/1992canlii81/1992canlii81.html Renaud v Central Okanagan School District No 23]'', [1992] 2 SCR 970 at para 982.  

 

Disability is not defined in the HRC. However, the concept of physical disability, for human rights purposes, generally indicates a “physiological state that is involuntary, has some degree of permanence, and impairs the person’s ability, in some measure, to carry out the normal functions of life” (''[https://www.canlii.org/en/bc/bchrt/doc/1994/1994canlii18445/1994canlii18445.html Boyce v New Westminister (City)] (1994)'', 24 CHRR D/441 at para 50 [''Boyce'']). More recent cases have confirmed that a disability must have a certain level of severity, permanence or persistence: see e.g., ''[https://www.canlii.org/en/bc/bchrt/doc/2014/2014bchrt270/2014bchrt270.html Li v Aluma Systems and Another]'', 2014 BCHRT 270 at para 41. In ''[https://www.canlii.org/en/bc/bchrt/doc/2003/2003bchrt14/2003bchrt14.html Morris v BC Rail]'', 2003 BCHRT 14 at para 214 [''Morris''], the Tribunal set out the following three aspects for assessing whether an individual has a physical or mental disability:

Furthermore, according to ''Morris'' at para 207, proof of impairment and/or limitation, while relevant, will not be required in all cases. See ''[https://www.canlii.org/en/bc/bchrt/doc/2013/2013bchrt40/2013bchrt40.html McGowan v Pretty Estates]'', 2013 BCHRT 40 at para 26 for more information.

The protection of the HRC extends to those who are perceived to have a disability or to be at risk of becoming disabled in the future. As such, the Tribunal has rejected the application of strict criteria to determine what constitutes a physical or mental disability. This has led to a somewhat expansive definition. For example, protection has been specifically applied to persons with AIDS, persons who are HIV positive, and persons believed to be HIV positive, all of whom are considered to have a physical disability. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2005/2005bchrt177/2005bchrt177.html McDonald v Schuster Real Estate]'', 2005 BCHRT 177 at para 24 and ''[https://www.canlii.org/en/bc/bchrt/doc/1999/1999canlii35199/1999canlii35199.html J v London Life Insurance Co]'' (1999), 36 CHRR D/43 at para 42 [''London Life Insurance''].  

As noted above, protection from discrimination due to physical disability extends to discrimination on the basis of a perceived propensity to become disabled in the future. In ''London Life Insurance'' at para 46, the Tribunal found that the HRC prohibited discrimination against a person based on the fact that his spouse was HIV positive. Protection under this ground has also been extended to those who are suffering from addictions issues. For example, ''[https://www.canlii.org/en/bc/bchrt/doc/1995/1995canlii18183/1995canlii18183.html Handfield v North Thompson School District No 26]'', [1995] BCCHRD No 4 at paras 139–143 recognized alcoholism as both a physical and mental disability.

There are also ecamples of cases involving sex discrimination that did not amount to sexual harassment. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2004/2004bchrt76/2004bchrt76.html Mottu v MacLeod]'', 2004 BCHRT 76 at para 41, where the Tribunal found that dress code requirements based on sex could constitute discrimination on the basis of sex. In ''Lund v Vernon Women’s Transition House Society'', 2004 BCHRT 26, the Tribunal found that an employer’s refusal to allow a female employee to breastfeed her child at work could also constitute sex discrimination. See also ''[https://www.canlii.org/en/bc/bchrt/doc/2021/2021bchrt5/2021bchrt5.html The Sales Associate v Aurora Biomed Inc. and others (No. 3)]'', 2021 BCHRT 5.  

Age can refer to an individual’s legal age, membership in a specific age-category, or a generalized characterization of a specific age. In BC, age is a protected ground of discrimination in the areas of employment; employment advertising; membership in a trade union, employer’s organization, or occupational association; public services; tenancy and publications. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2006/2006bchrt219/2006bchrt219.html Miu v Vanart Aluminum and Tam]'', 2006 BCHRT 219 at para 18.  

BC’s HRC protects individuals with a criminal or summary conviction offence, or a perceived conviction (i.e. arrest or stayed charges), so long as the conviction is unrelated to the employment or the intended employment of the individual. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2011/2011bchrt43/2011bchrt43.html Purewall v ICBC]'', 2011 BCHRT 43 at para 21, ''[https://www.canlii.org/en/bc/bchrt/doc/2006/2006bchrt411/2006bchrt411.html Clement v Jackson and Abdulla]'', 2006 BCHRT 411 at para 14 and ''[https://www.canlii.org/en/bc/bchrt/doc/1997/1997canlii24841/1997canlii24841.html Korthe v Hillstrom Oil Company Ltd]'' (1997), 31 CHRRD/82 at paras 23-28. In an effort to establish whether or not a conviction may affect an employment decision, courts require an assessment of the relationship between the conviction and the job description. As such, employers must take into account the circumstances of the conviction in order to determine whether or not the charge relates to the employment. In ''[https://www.canlii.org/en/bc/bcsc/doc/1983/1983canlii444/1983canlii444.html Woodward Stores (British Columbia) v McCartney]'' (1983) 43 BCLR 314 at para 7-9, Justice MacDonald laid out a list of criteria to be considered in making this determination. These criteria are as follows:  

Another option is, of course, to file a human rights complaint with the BC Human Rights Tribunal (see above for the grounds, areas, exemptions, complaint process, etc.) or, under federal jurisdiction with the Canadian Human Rights Commission (see below for the grounds, areas, exemptions, process, etc). The Tribunal can award lost wages, expenses, and damages for injury to dignity, feelings and self-respect. However, note that if a claimant is also seeking severance pay, lost wages, or expenses in a civil suit, they will not be allowed to recover the same damages from both proceedings.  

Employees may choose to file a complaint through the Employment Standards Branch (ESB) if their employer has breached the ''Employment Standards Act'' (see '''Chapter 9: Employment Law'''). There is a '''six-month limitation period''' from the date of the breach. A complainant can claim from both the ESB and Small Claims for employment-related issues, including wrongful dismissal. These actions do not bar the complainant from also bringing a human rights complaint relating to the same matter. Remedies awarded by the Employment Standards Tribunal are intended to make the employee “whole” financially by way of compensation rather than reinstatement. It is important to note that the ESB does not deal with alleged discrimination. If the employee recovers unpaid wages through the ESB, they cannot “double-recover” and seek these same damages in another forum.

A final option is to bring a civil action for wrongful dismissal either in Small Claims Court (see '''Chapter 20: Small Claims''' of the LSLAP Manual) or the BC Supreme Court, depending on the amounts claimed. However, a recent Supreme Court of Canada decision clarified that the common law will not provide a remedy for discrimination per se in the employment context.  Please refer to ''[https://www.canlii.org/en/ca/scc/doc/2008/2008scc39/2008scc39.html Keays v Honda Canada Inc]'', 2008 SCC 39 at para 67 [''Keays''].

The courts are even more conservative in their approach to awarding punitive damages meant to punish the employer for their conduct in dismissal. Punitive damages will only be awarded if the employer’s conduct was harsh, vindictive, reprehensible, malicious, and extreme in nature. Thus, if the claimant is primarily concerned with being compensated for injuries to their dignity and/or denouncing their employer’s discriminatory behaviour, then they should file a complaint with the Human Rights Tribunal alongside a civil action for wrongful dismissal.   

The BC Human Rights Tribunal handles complaints made under the HRC. The first step in filing a complaint with the Tribunal is to fill out a Complaint Form, which are available from the Tribunal at its office address, on its website (http://www.bchrt.bc.ca) or from other local Government Agent offices. It is also possible to file the complaint online on the Tribunal's website. There are helpful self-help guides to filling out complaint and response forms on the Tribunal’s website.

A complainant is not required to provide evidence at the time they file their complaint. The complaint form simply needs to tell the story, identify all the allegations of discriminatory treatment, and satisfy the three criteria set above.  

The purpose of an award for injury to dignity is to compensate a person whose rights under the ''Code'' have been violated. It is not to punish a respondent. Damages awarded for injuries to dignity have increased over the last decade, and the tribunal has made it clear that the trend for such damages is upwards (see ''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt174/2018bchrt174.html Biggings obo Walsh v Pink and others]'', 2018 BCHRT 174 [''Walsh'']). Currently the highest award in BC is $176,000 (''[https://www.canlii.org/en/bc/bchrt/doc/2021/2021bchrt16/2021bchrt16.html Francis v BC Ministry of Justice (No.5)]'', 2021 BCHRT 16).  However, most damages in this category are under $10,000. The BC Human Rights Clinic has a compiled list of awards given by the HRT, sorted by ground, updated quarterly and available [https://bchrc.net/legal-information/remedies/ here]. It is difficult to predict what level of damages the tribunal will award, as this determination depends on many factors, which are assessed on a case by case basis (see e.g. ''Walsh''). The Tribunal generally considered three broad factors: The nature of the violation, the complainant's vulnerability, and the effect on the complainant: ''[https://www.canlii.org/en/bc/bchrt/doc/2011/2011bchrt185/2011bchrt185.html Gichuru v The Law Society of British Columbia (No. 9)]'', 2011 BCHRT 185 at para. 260, upheld in 2014 BCCA 396). Importantly, while injury to dignity awards commonly follow in cases where discrimination is established, this is not guaranteed, as seen in ''[https://www.canlii.org/en/bc/bchrt/doc/2012/2012bchrt28/2012bchrt28.html Holt v Coast Mountain Bus Company]'', 2012 BCHRT 28 at para 233. For further information regarding compensation for injury to dignity, feelings, and self-respect, please visit  http://www.bchrt.gov.bc.ca/human-rights-duties/remedies/compensation/index.htm

Remember, to claim any type of damage, the claimant must lead evidence. If the claimant fails to lead strong evidence as to the effect the discrimination had on their emotional state and dignity, the Tribunal may not find any damage. If the respondent is able to prove that the claimant has failed to mitigate their losses, the failure to mitigate one’s losses can lead to the loss of a claimant’s entitlement to wage loss compensation.

The Tribunal may not provide remedies in every situation where there has been real or perceived discrimination. For example, the Tribunal will not award damages for lost wages/salary following a discriminatory dismissal during a period for which the claimant was medically incapable of working. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2008/2008bchrt376/2008bchrt376.html Senyk v WFG Agency Network (No 2)]'', 2008 BCHRT 376 at para 434. This is because, even absent the discrimination, the claimant would not have been able to earn wages or a salary. But see ''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt238/2018bchrt238.html Eva obo others v Spruce Hill Resort and another]'', 2018 BCHRT 238 at para 214.  

*Disregarded legislative requirements; used its discretion arbitrarily, in bad faith, or for an improper purpose; and/or based its decisions on irrelevant factors.