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

If any one of the three elements are missing, there is no discrimination. If the complainant proves the three elements, then the burden shifts to the respondent to justify its conduct. If the respondent proves its conduct was justified, then there is no discrimination. If the respondent’s conduct is not justified, discrimination will be found to occur.

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] 2 SCR 868 [Grismer] at para. 20, 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 what might otherwise be deemed prohibited discriminatory conduct. It allows charitable, philanthropic, educational, and other not-for-profit organizations to act in a discriminatory manner, if action is taken with the aim of promoting the interests and welfare of a group of people that share a common identifiable characteristic, such as religion, race, or marital status. For more information, please see ''Vancouver Rape Relief Society v Nixon'', 2005 BCCA 601 at paras 43-59.

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 Human Rights Tribunal and, if pre-approved, will not be deemed to be in contravention of the HRC. Ultimately, section 42 gives the Tribunal jurisdiction to approve special programs that are aimed at improving the situation of individuals or groups that have suffered historical disadvantage.  

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. This section was recently amended to include protection of a person who is planning to commence, but has not yet filed a human rights complaint. 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.  Please refer to ''Oger v Whatcott'' (No 7), 2019 BCHRT 58 at paras 93-97.   

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

''University of British Columbia v Berg'', [1993] 2 SCR 353 at paras 59-63 [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”.  

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, strata council and property management services in condominiums, 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 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''], which applied the three-part “''Meiorin''” test in the context of a services complaint (see '''Subsection 6: Discrimination in Employment and the Duty to Accommodate''').

For a recent case that applied the three-part “''Meiorin''” test, 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.

Ultimately, in the context of services customarily available to the public, section 8 of the HRC states that it is discriminatory if a person, without a ''bona fide'' and reasonable justification, arbitrarily precludes someone from the benefit of such a service based on an enumerated ground of discrimination. See ''Moore v British Columbia (Education)'', 2012 SCC 61 at para 26.

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: ''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).

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.

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, gender identity or expression, age, and/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 sharing any sleeping, bathroom, or cooking facilities with the person making the representation (e.g. as a roommate). Furthermore, the reserving of specific residences for individuals aged 55 or older does not constitute discrimination (HRC, s 2(b)(i)).  

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 of expression and/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 [[{{PAGENAME}}#6. Discrimination in Employment and the Duty to Accommodate | subsection 6: Discrimination in Employment and the Duty to Accommodate]]).

This seems to be in keeping with the 1-year limitation period for all human rights complaints. Issues arose when section 12(5) conflicted with the previous general 6-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. This section might extend to volunteers depending on the circumstances (''Nixon v Vancouver Rape Relief Society'', 2002 BCHRT 1). When determining whether a volunteer is captured under the definition of “employee” in the HRC, the Tribunal will consider the following:  

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

'''Bona Fide Occupational Requirement (BFOR) Exemption''': In the case of discrimination on the basis of disability, section 13(4) permits discrimination in employment if the basis for discrimination concerns 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 established a three-part test for establishing a BFOR. An initial investigation determines whether the standard, policy, or practice has the direct or indirect effect of excluding or negatively affecting individuals protected by the HRC; the onus of establishing sufficient evidence of the complainant’s case lies with the complainant. Please see ''McGill University Health Centre (Montreal General Hospital) v Syndicat des employés de l’Hôpital général de Montréal'', 2007 SCC 4 at paras 47-53.

 

 

#The fundamental purpose of the standard must be rationally connected to the performance of the job;

#The standard is reasonably necessary to performing the job and it is impossible to accommodate the specific claims of the plaintiff without the employer incurring undue hardship.

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.

The BFOR exception applies to age discrimination as it relates to mandatory retirement. Thus, if the employer can establish one or more BFORs related to age, then mandatory retirement can still be imposed.

'''Undue Hardship''': What may be considered “undue hardship” varies by employer depending on the circumstances. In ''Central Okanagan School District No 23 v Renaud'', [1992] 2 SCR 970 at paras 21–23, the Supreme Court of Canada noted that it is more than a minor inconvenience, and that actual interference must be established. Factors the court may consider are financial cost, health and safety, and flexibility and size of the workplace. For a more exhaustive guide for employers and employees seeking accommodation, 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].

'''Other Exemptions''': Distinctions based on age are not prohibited insofar as they relate to a bona fide seniority scheme. Distinctions based on marital status, physical or mental disability, sex, or age will continue to be allowed under bona fide retirement, superannuation, or pension plans, and under bona fide insurance plans, including those which are self-funded by employers or provided by third parties (HRC, s 13(3)). Mandatory retirement may also not constitute a breach of the HRC when it is part of a bona fide pension plan as long as it is not done in order to circumvent the rights of individuals.

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 a disabled 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 disability.  

It should be noted that one might file a complaint on a combination of grounds. Discrimination does not need to have been the sole or primary motivating factor to establish a case on a particular ground, as long as discrimination was a contributing factor to the impugned action. 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 might be considered discriminatory. Please refer to ''Ontario (Human Rights Commission) v Simpsons-Sears Ltd'', [1985] 2 SCR 536 at para 14. 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 women that are pregnant it would 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 are 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 areas of publication; public services such as schools, government programs, restaurants and stores; purchase of property; tenancy; employment advertising, employment; and membership in a trade union, employer’s organization, or occupational association. 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 51.