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

As outlined in ''Moore v British Columbia (Education)'', 2012 SCC 61 at para 33, the complainant must prove the following three elements on a balance of probabilities to establish their case:  

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 ''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):  

In ''British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights)'', [1999] 3 SCR 868 [Grismer] at 881, the Supreme Court of Canada considered the application of the ''Meiorin'' test to a public services complaint and set out the three-stage analysis for determining whether the respondent had a ''bona fide'' and reasonable justification for its conduct:  

Additionally, section 41, commonly referred to as the group rights exemption, allows non-profit organizations to engage in what might otherwise be deemed prohibited discriminatory conduct. It allows charitable, philanthropic, educational, and other not-for-profit organizations to give a preference to members of the identifiable group or class of persons they serve. For more information, please see ''Vancouver Rape Relief Society v Nixon'', 2005 BCCA 601 at paras 43-59 [''Nixon'']. (Please note that this case involves a sex-binary-focused discussion of transgender identity that may be troubling for some readers).

Finally, section 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 related proceeding under the HRC, or because they might in future complain, be named, give evidence, or otherwise assist in a complaint or related proceeding. Please refer to ''Gichuru v Pallai'', 2018 BCCA 78 at paras 50—58, which provides the test for proving retaliation under section 43.

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 ''Oger v Whatcott'' (No 7), 2019 BCHRT 58 at paras 93—97 for the former, and ''Li v Mr B'', 2018 BCHRT 228 at paras 95—97 [''Li''] for the latter.   

''University of British Columbia v Berg'', [1993] 2 SCR 353 at 384–387 [Berg] 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. Courts look at the relationship between the facility and the complainant, as well as the nature of the service itself. In ''Berg'', the court found that a university has 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 paras 89–93 for a more recent case that cites the definition for what is “customarily available to the public”.  

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 their personal attributes do not qualify as services “customarily available to the public”, and are therefore not subject to section 8 of the HRC.  Please refer to ''Marine Drive Golf Club v Buntain et al and BC Human Rights Tribunal'', 2007 BCCA 17 at paras 48–56.

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 and clinics, strata council and property management services in condominiums, services provided by police, access to sidewalks and public space, government services, 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 section 8 was ultimately found when the BC Motor Vehicle Branch maintained a blanket refusal to issue driver's licenses to those with certain visual impairments regardless of actual driving ability: ''BC (Superintendent of Motor Vehicles) v BC (Council of Human Rights)'', [1999] 3 SCR 868 [''Grismer''].

Legislation is not a “service customarily available to the public” and bare challenges to legislation can’t proceed at the HRT, see e.g. ''Phillips v BC Ministry of the Attorney General'', 2019 BCHRT 76 at paras 11–12.

For a recent case setting out the three-part test for prima facie discrimination, see ''Moore v British Columbia (Education)'', 2012 SCC 61, a Supreme Court of Canada case about a school district that cancelled a special education program, requiring a dyslexic student to enroll in specialized private school. The Supreme Court of Canada reviewed whether the school district discriminated against the student by failing to provide necessary remediation, and ultimately restored the BC Human Rights Tribunal’s finding of discrimination.

Moore confirmed the test for prima facie discrimination, also known as the “complainant’s case” (on the move away from Latin in human rights cases, see ''Vik v Finamore (No. 2)'', 2018 BCHRT 9 at para. 48-50). To succeed in their complaint, a complainant must show:

'''Defences:''' Although the text of sections 9 and 10 do not contain language specifically providing for a defence to a claim of discrimination under these provisions, like all respondents, landlords and property sellers may be able to justify prima facie discrimination if they can satisfy the three elements of the Grismer/Meiorin test. This will require that they accommodated the complainant to the point of undue hardship.

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, gender identity or expression and/or age.  Refer to ''Anderson v Thompson Creek Mining Ltd Endako Mines'', 2007 BCHRT 99.  

Section 12 states that wage parity between sexes is required for similar or substantially similar jobs. Please refer to ''Kraska v Pennock'', 2011 BCSC 109. Most of the remedies under this section are also available under section 13, which does not have a limitation on the period of time during which wages can be claimed.

This seems to be in keeping with the one-year limitation period for all human rights complaints. Issues arose when section 12(5) conflicted with the previous general six-month limitation period for bringing human rights complaints, but the extension has eliminated any confusion.   

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 ''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 under the definition of “employee” in the HRC, the Tribunal will consider the following:  

For more information on volunteers, see ''Ferri v Society of Saint Vincent de Paul and another'', 2017 BCHRT 123 at paras 29-33.  

'''Bona Fide Occupational Requirement (BFOR) Defence''': If a complainant proves the three elements of their case set out in ''Moore'', the burden shifts to the respondent to justify their conduct. Adverse treatment on the basis of a protected characteristic may be justified when it relates to a “''bona fide'' occupational requirement” (BFOR): see s. 13(4). In ''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 established a three-part test for establishing a BFOR.  

For a specific example of a BCHRT case that applies the BFOR test in a disability context, please refer to ''Kerr v Boehringer Ingelheim (Canada) Ltd (No 4)'', 2009 BCHRT 196 [''Kerr''].

'''Undue Hardship''': What may be considered “undue hardship” varies by employer and depends on the circumstances. In ''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/].

Since persons are not covered by section 14, protection against denial of membership has been held to apply only against an implicated union, organization, or association, and not against an individual. Please refer to ''Ratsoy v BC Teachers’ Federation'', 2005 BCHRT 53 at para 23. This differs from other protections granted by the HRC, which, in appropriate circumstances, generally do allow an action to be brought against both an organization (e.g. an employer) and its individual members (e.g. a manager).

There are two limited ways in which unions can be held liable for discrimination. The first is by creating or participating in formulating a discriminatory workplace rule, and the second is by impeding an employer’s efforts to accommodate an employee (''Chestacow v Mount St Marie Hospital of Marie Esther Society'', [2018] BCHRT No 44 at para 32 [''Chestacow'']). In respect of the latter, a union may be required to waive seniority rights or other collective agreement obligations in order to facilitate the accommodation of an employee with a protected characteristic, such as a disability.  

It should be noted that a complainant might file a complaint on a combination of grounds. A prohibited ground does not need to have been the sole or primary motivating factor behind the discrimination; it need only have been one contributing factor.  Please refer to ''Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc (Bombardier Aerospace Training Center)'', 2015 SCC 39 at paras 45-52.  

Discrimination need not be intentional (HRC, s 2). Any policy or action that has an adverse effect on a protected group and which cannot be justified will be considered discriminatory. Please refer to ''Ontario (Human Rights Commission) v Simpsons-Sears Ltd'', [1985] 2 SCR 536 at 549 for an example of indirect discrimination, also known as adverse effect discrimination. The policy or act does not have to affect every person in the group for it to be considered discriminatory. For example, if a policy discriminates against only people who are pregnant it could still be considered sex discrimination. It is also possible that an act or policy may affect men as well as women, but affect one sex to a disproportionate degree, in which case it could also qualify as sex discrimination.  

Discrimination can also be established on an intersectional basis. This means that the discriminatory action had an adverse impact on the basis of multiple protected grounds, occurring simultaneously, which cannot easily be separated from one another. It is not always necessary to establish that each individual ground has been met where intersectional discrimination can be established. Please refer to ''Radek v Henderson Development (Canada) Ltd'', 2005 BCHRT 302 at paras 463–467.

The grounds of race, colour, ancestry and place of origin are included in the HRC as a means to combat racism and racial discrimination. Each of these grounds is protected in the HRC and may be cited individually in connection with a discriminatory incident or grouped together in order to better illustrate a particular situation. For further information on how the above grounds interact, please refer to ''Torres v Langtry Industries Ltd, 2009 BCHRT 3''.  

Discrimination on the basis of race, colour, ancestry and place of origin can also be established where the respondent caused harm to the claimant by taking advantage of a vulnerability caused by the claimant's race, colour, ancestry or place of origin. For more information, see ''PN v FR and another (No 2)'', 2015 BCHRT 60. In BC, the grounds of race, colour, ancestry and place of origin are protected in the following areas:

For a recent case concerning discrimination on the basis of race in the employment context, please see ''Francis v. BC Ministry of Justice (No. 3)'', 2019 BCHRT 136.

Note that the Tribunal has recognized that racism can be subtle and is sensitive to this fact. Please refer to ''Mezghrani v Canada Youth Orange Network Inc'', 2006 BCHRT 60 at para 28.

Please refer to ''Prokopetz and Talkkari v Burnaby Firefighters’ Union and City of Burnaby'', 2006 BCHRT 462 at para 31 and Fraser v British Columbia (Ministry of Forests), 2016 BCHRT 50. See ''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.  

In ''Wali v Jace Holdings'', 2012 BCHRT 389 at para 117, the Tribunal determined that free speech regarding matters affecting the regulation of a profession could constitute a political belief. This was narrowed to the particular legislative framework and mandate of the College of Pharmacists. The Tribunal member took into account that the issue was a legislative initiative involving public welfare and was being debated in the pharmaceutical community in determining that the belief was a protected political belief.