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

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BC Human Rights Code (6:III) (view source)

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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:  
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:  


1. That they have a characteristic that is protected under the HRC;
# That they have a characteristic that is protected under the HRC;
2. That they experienced an adverse impact with respect to an area protected by the HRC; and
# That they experienced an adverse impact with respect to an area protected by the HRC; and
3. That their protected characteristic was a factor in the adverse impact they experienced.
# That their protected characteristic was a factor in the adverse impact they experienced.


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 have occurred.
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 have occurred.
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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 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):  


1. The employer adopted the standard for a purpose rationally connected to the performance of the job;
# The employer adopted the standard for a purpose rationally connected to the performance of the job;
2. The employer adopted the particular standard with an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
# The employer adopted the particular standard with an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
3. The standard is reasonably necessary to fulfil its purpose. The employer must show that it could not accommodate individual employees with the protected characteristic without experiencing undue hardship.  
# The standard is reasonably necessary to fulfil its purpose. The employer must show that it could not accommodate individual employees with the protected characteristic without experiencing undue hardship.  


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:  
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:  


1. The respondent’s behaviour was for a purpose or goal that is rationally connected to the function being performed;
# The respondent’s behaviour was for a purpose or goal that is rationally connected to the function being performed;
2. The respondent behaved in good faith; and
# The respondent behaved in good faith; and
3. The respondent’s behaviour was reasonably necessary to accomplish the purpose or goal, in the sense that the respondent cannot accommodate the complainant without undue hardship.
# The respondent’s behaviour was reasonably necessary to accomplish the purpose or goal, in the sense that the respondent cannot accommodate the complainant without undue hardship.


Note that most legal disputes arise in regard to the third part of the test – that is, whether the respondent reasonably accommodated the complainant to the point of undue hardship.  
Note that most legal disputes arise in regard to the third part of the test – that is, whether the respondent reasonably accommodated the complainant to the point of undue hardship.  
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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:
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:


1. That they have a characteristic that is protected under the HRC;
# That they have a characteristic that is protected under the HRC;
2. That they experienced an adverse impact with respect to an area protected by the HRC; and
# That they experienced an adverse impact with respect to an area protected by the HRC; and
3. That their protected characteristic was a factor in the adverse impact they experienced. This is also known as the “nexus”.
# That their protected characteristic was a factor in the adverse impact they experienced. This is also known as the “nexus”.


'''Defences:''' If a complainant can prove the three elements of their case set out above, the burden shifts to the respondent to justify their conduct. There are a number of circumstances where adverse treatment on the basis of a protected characteristic is not discrimination, if it can be shown to be supported by a “''bona fide'' and reasonable justification” (BFRJ) (as per the wording of section 8(1)). For the most authoritative perspective, see ''Grismer'', which applied the three-part ''Meiorin'' test from the Supreme Court of Canada in an attempt to justify a discriminatory standard by raising a ''BFRJ''. This attempt was unsuccessful (see also Subsection 6: Discrimination in Employment and the Duty to Accommodate).
'''Defences:''' If a complainant can prove the three elements of their case set out above, the burden shifts to the respondent to justify their conduct. There are a number of circumstances where adverse treatment on the basis of a protected characteristic is not discrimination, if it can be shown to be supported by a “''bona fide'' and reasonable justification” (BFRJ) (as per the wording of section 8(1)). For the most authoritative perspective, see ''Grismer'', which applied the three-part ''Meiorin'' test from the Supreme Court of Canada in an attempt to justify a discriminatory standard by raising a ''BFRJ''. This attempt was unsuccessful (see also Subsection 6: Discrimination in Employment and the Duty to Accommodate).
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The respondent must justify the standard by satisfying three elements:
The respondent must justify the standard by satisfying three elements:


1. The fundamental purpose of the standard must be rationally connected to the performance of the job;
# The fundamental purpose of the standard must be rationally connected to the performance of the job;
2. The standard must have been adopted in good faith and with the legitimate belief that it is necessary in order to satisfactorily and safely perform all job- related tasks; and  
# The standard must have been adopted in good faith and with the legitimate belief that it is necessary in order to satisfactorily and safely perform all job- related tasks; and  
3. 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.
# 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.




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'''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.  
'''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.  
*1. The employer adopted the standard for a purpose rationally connected to the performance of the job;
# The employer adopted the standard for a purpose rationally connected to the performance of the job;
*2. The employer adopted the particular standard with an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
# The employer adopted the particular standard with an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
*3. The standard is reasonably necessary to fulfil its purpose. The employer must show that it could not accommodate individual employees with the protected characteristic without experiencing undue hardship
# The standard is reasonably necessary to fulfil its purpose. The employer must show that it could not accommodate individual employees with the protected characteristic without experiencing 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 [''Kerr''].
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''].
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#Political belief is not unlimited; for example, views about matters such as business or human resources decisions an employer may make do not come within its ambit.
#Political belief is not unlimited; for example, views about matters such as business or human resources decisions an employer may make do not come within its ambit.


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 No 124. See ''Bratzer v Victoria Police Department'', [2016] BCHRT No 50 for a unique example of how political belief can be framed. Albeit unsuccessful, an officer of the Vancouver Police Department attempted to argue 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.  
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.
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.
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=== 4. Religion ===
=== 4. Religion ===


Religious discrimination cases have helped to define several of the fundamental ideas and standards that comprise human rights law in Canada. Matters before the courts have routinely addressed discriminatory incidents concerning religious faith, beliefs, customs, and practices.  In BC, protection from discrimination based on religion is provided in the areas of publication; public services; purchase of property; tenancy; employment advertising; employment; and membership in a trade union, employer’s organization or occupational association. 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 ''Friesen v Fisher Bay Seafood Limited'', 2009 BCHRT 1, at para 57. Atheism is encompassed within the protected ground of religion:  ''Mangel and Yasué obo Child A v. Bowen Island Montessori School and others'', [2018] BCHRT No 281 at para 210: ''Mouvement laïque québécois v Saguenay (City)'', 2015 SCC 16 at para 70; ''SL v Commission scolaire des Chênes'', 2012 SCC 7 at para 32; ''R v Big M Drug Mart Ltd'', [1985] 1 SCR at paras 346-347)
Religious discrimination cases have helped to define several of the fundamental ideas and standards that comprise human rights law in Canada. Matters before the courts have routinely addressed discriminatory incidents concerning religious faith, beliefs, customs, and practices.  In BC, protection from discrimination based on religion is provided in the following areas:
* publication  
* public services  
* purchase of property  
* tenancy
* employment advertising and employment, and  
* membership in a trade union, employer’s organization or occupational association.
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 ''Friesen v Fisher Bay Seafood Limited'', 2009 BCHRT 1, at para 57. Atheism is encompassed within the protected ground of religion:  ''Mangel and Yasué obo Child A v. Bowen Island Montessori School and others'', 2018 BCHRT 281 at para 210: ''Mouvement laïque québécois v Saguenay (City)'', 2015 SCC 16 at para 70; ''SL v Commission scolaire des Chênes'', 2012 SCC 7 at para 32; ''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 ''Renaud v Central Okanagan School District No 23'', [1992] 2 SCR 970 at para 16.  
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 ''Renaud v Central Okanagan School District No 23'', [1992] 2 SCR 970 at para 982.  




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Family status generally refers to parent-child relationships, but can and does encompass other family relationships including those between siblings, in-laws, aunts and uncles, nieces and nephews, and cousins. For case law on the definition of family status and the test for discrimination on that basis see ''Miller v British Columbia Teachers’ Federation'', 2009 BCHRT 34 at para 17.
Family status generally refers to parent-child relationships, but can and does encompass other family relationships including those between siblings, in-laws, aunts and uncles, nieces and nephews, and cousins. For case law on the definition of family status and the test for discrimination on that basis see ''Miller v British Columbia Teachers’ Federation'', 2009 BCHRT 34 at para 17.


Marital status normally refers to couples with a ‘spouse-like’ relationship. The HRC extends protection to all individuals regardless of their status (i.e. married, common-law, single, separated, divorced or widowed). Issues involving family and marital status may often overlap and may be cited concurrently to fully illustrate a certain situation.  
Marital status normally refers to couples with a spouse-like relationship. The HRC extends protection to all individuals regardless of their status (i.e. married, common-law, single, separated, divorced or widowed). Issues involving family and marital status may often overlap and may be cited concurrently to fully illustrate a certain situation.


In BC, the grounds of family and marital status are protected in the areas of publication; public services; tenancy; employment advertising; employment; and membership in a trade union, employer’s organization, or occupational association. Only marital status is protected in the area of purchase of property.
Protections from discrimination on the basis of marital and family status also confer protection on the basis of the identity of the complainant’s spouse or family member: ''B v Ontario (Human Rights Commission)'', 2002 SCC 66.  


The law regarding the test that applies in the context of family status discrimination cases involving childcare obligations is unsettled in Canada. In BC, the present test for family status discrimination in employment is set out in ''Health Sciences Assn. of British Columbia v Campbell River and North Island Transition'', 2004 BCCA 260 [''Campbell River''] at para 39. Per that test, in order to establish discrimination on the basis of family status, the complainant must show:
In BC, the grounds of family and marital status are protected in the areas of publication, public services, tenancy, employment advertising, employment, and membership in a trade union, employer’s organization, or occupational association. Family status is not protected in the area of purchase of property, meaning adult-only buildings and stratas are permitted.


#A change in a term or condition of employment imposed by the employer; and
The law regarding the test that applies in the context of family status discrimination cases involving childcare obligations is unsettled in Canada. In BC, the present test for family status discrimination in employment is set out in ''Health Sciences Assn of British Columbia v Campbell River and North Island Transition'', 2004 BCCA 260 [''Campbell River''] at para 39. Per that test, in order to establish discrimination on the basis of family status, the complainant must show:
#That the change results in a serious interference with a substantial parental or other family duty or obligation.


The Federal Court of Appeal rejected the ''Campbell River'' test and set out its own four-part test in ''Canada (Attorney General) v. Johnstone'', 2014 FCA 110, at para. 93. Under ''Johnstone'', a complainant must show that a child is under their care and supervision; the issue engages the individual’s legal responsibility for that child as opposed to a personal choice; they have made reasonable efforts to find alternative solutions and no reasonable alternative solution is available; and the impugned workplace rule interferes with the childcare obligation in a more than trivial or insubstantial way.  
# A change in a term or condition of employment imposed by the employer; and
# That the change results in a serious interference with a substantial parental or other family duty or obligation.
 
The Federal Court of Appeal rejected the ''Campbell River'' test and set out its own four-part test in ''Canada (Attorney General) v Johnstone'', 2014 FCA 110, at para 93 [''Johnstone'']. Under ''Johnstone'', a complainant must show that a child is under their care and supervision, the issue engages the individual’s legal responsibility for that child as opposed to a personal choice, they have made reasonable efforts to find alternative solutions and no reasonable alternative solution is available, and the impugned workplace rule interferes with the childcare obligation in a more than trivial or insubstantial way.  


In Ontario, ''Misetich v. Value Village Stores Inc.'', 2016 HRTO 1229 [''Misetich''] is the leading authority. ''Misetich'' criticized both ''Campbell River'' and ''Johnstone'' as creating too narrow of a test. The ''Misetich'' test requires a complainant to establish a negative impact that results in a real disadvantage to the parent/child relationship, parent/child responsibilities, or to the employees’ work.  
In Ontario, ''Misetich v. Value Village Stores Inc.'', 2016 HRTO 1229 [''Misetich''] is the leading authority. ''Misetich'' criticized both ''Campbell River'' and ''Johnstone'' as creating too narrow of a test. The ''Misetich'' test requires a complainant to establish a negative impact that results in a real disadvantage to the parent/child relationship, parent/child responsibilities, or to the employees’ work.  


In Alberta, in ''SMS Equipment Inc. v. Communications, Energy and Paperworkers Union'', Local 707, 2015 ABQB 162, the Court of Queen’s Bench upheld a labour arbitration decision rejecting the ''Campbell River'' test. The court held that there were problems with both ''Campbell River'' and ''Johnstone'' and ultimately concluded that the correct test for determining discrimination based on family status is the Supreme Court of Canada’s general test for establishing discrimination set out in Moore. The Moore test was recently reaffirmed by the Supreme Court of Canada in ''Stewart v Elk Valley Coal Corp'', 2017 SCC 30.  
In Alberta, in ''SMS Equipment Inc. v. Communications, Energy and Paperworkers Union'', Local 707, 2015 ABQB 162, the Court of Queen’s Bench upheld a labour arbitration decision rejecting the ''Campbell River'' test. The court held that there were problems with both ''Campbell River'' and ''Johnstone'' and ultimately concluded that the correct test for determining discrimination based on family status is the Supreme Court of Canada’s general test for establishing discrimination set out in ''Moore''. The ''Moore'' test was recently reaffirmed by the Supreme Court of Canada in ''Stewart v Elk Valley Coal Corp'', 2017 SCC 30.  


The BC Court of Appeal recently affirmed that the ''Campbell River'' test is the law in British Columbia: ''Envirocon Environmental Services, ULC v Suen'', 2019 BCCA 46. Mr. Suen applied for leave to appeal to the Supreme Court of Canada, but this request was dismissed.  
The BC Court of Appeal recently affirmed that the ''Campbell River'' test is the law in British Columbia: ''Envirocon Environmental Services, ULC v Suen'', 2019 BCCA 46. Mr. Suen applied for leave to appeal to the Supreme Court of Canada; the application was dismissed.  




=== 6.Physical or Mental Disability ===
=== 6.Physical or Mental Disability ===


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” (''Boyce v New Westminister (City) (1994)'', 24 CHRR D/441 at para 50 [''Boyce'']). See ''Beckett v Strata Plan NW 2603'', 2016 BCHRT 27 at para 120 for a more recent case that refers to the definition of physical disability from ''Boyce''. In ''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:
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” (''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., ''Li v Aluma Systems and another'', 2014 BCHRT 270 at para 41. In ''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:


#“[T]he individual’s physical or mental impairment, if any;
#“[T]he individual’s physical or mental impairment, if any;
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Furthermore, according to ''Morris'' at para 207, proof of impairment and/or limitation, while relevant, will not be required in all cases. See ''McGowan v Pretty Estates'', 2013 BCHRT 40 at para 26 for more information.
Furthermore, according to ''Morris'' at para 207, proof of impairment and/or limitation, while relevant, will not be required in all cases. See ''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 ''McDonald v Schuster Real Estate'', 2005 BCHRT 177 at para 24 and ''J v London Life Insurance Co'' (1999), [1999] BCHRTD No 35 at para 42 [''London Life Insurance''].  
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 ''McDonald v Schuster Real Estate'', 2005 BCHRT 177 at para 24 and ''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, ''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.
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, ''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.


Where a behaviour or policy adversely affects a protected group or person, either directly or indirectly due to their disability, there is a duty to accommodate, meaning that all reasonable efforts must be taken to accommodate the group or person up until the point of undue hardship. Examples include installing wheelchair access (''Walsh v Pink'', 2018 BCHRT 174 at paras 104-111) and safety handrails (''Ferguson v Kimpton'', 2006 BCHRT 62 at para 68). The duty to accommodate also includes allowing workers to take days off on religious holidays.  
Where a behaviour or policy adversely affects a protected group or person, either directly or indirectly due to their disability (or any other protected characteristic), there is a duty to accommodate, meaning that all reasonable efforts must be taken to accommodate the group or person up to the point of undue hardship. Examples include installing wheelchair access (''Walsh v Pink'', 2018 BCHRT 174 at paras 104-111) and safety handrails (''Ferguson v Kimpton'', 2006 BCHRT 62 at para 68). The duty to accommodate may also include allowing workers to be absent from work on their religious holidays.  


=== 7. Sexual Orientation ===
=== 7. Sexual Orientation ===


The HRC prohibits discrimination based on sexual orientation. Such discrimination does not require a complainant to prove their sexual orientation or that a given respondent believed them to have a particular orientation. In ''School District No 44 (North Vancouver) v Jubran'', 2005 BCCA 201, Mr. Jubran was a high school student, subjected to homophobic insults and harassment from other students. This conduct was found to constitute discrimination, even though Mr. Jubran did not identify as homosexual and his harassers denied believing that they in fact thought he was homosexual. For a case regarding discrimination on this basis against patrons of a restaurant in the context of services customarily available to the public, please see ''Pardy v. Earle'' and others (No. 4), 2011 BCHRT 101.
The HRC prohibits discrimination based on sexual orientation. Such discrimination does not require a complainant to prove their sexual orientation nor that a given respondent believed them to have a particular orientation. In ''School District No 44 (North Vancouver) v Jubran'', 2005 BCCA 201, Mr. Jubran was a high school student, subjected to homophobic insults and harassment from other students. This conduct was found to constitute discrimination, even though Mr. Jubran did not identify as homosexual and his harassers denied believing that they in fact thought he was homosexual. For a case regarding discrimination on this basis against patrons of a restaurant in the context of services customarily available to the public, please see ''Pardy v. Earle'' and others (No. 4), 2011 BCHRT 101.


In BC, protection on the basis of sexual orientation is provided in the areas of publication; public services; purchase of property; tenancy; employment advertising; employment; and membership in a trade union, employer’s organization, or occupational association.
In BC, protection on the basis of sexual orientation is provided in the areas of publication, public services, purchase of property, tenancy, employment advertising, employment, and membership in a trade union, employer’s organization, or occupational association.




=== 8. Sex (includes sexual harassment, pregnancy discrimination) ===
=== 8. Sex (includes sexual harassment, pregnancy discrimination) ===


Discrimination on the basis of sex, which is prohibited under the HRC, includes sexual harassment. Sexual harassment is defined as “unwelcome conduct of a sexual nature that detrimentally affects a work environment or leads to adverse job-related consequences for the victims of the harassment” (''Janzen v Platy Enterprises Ltd'', [1989] 1 SCR 1252 at para 56 [''Janzen'']).
Discrimination on the basis of sex, which is prohibited under the HRC, includes sexual harassment. Sexual harassment is defined as “unwelcome conduct of a sexual nature that detrimentally affects a work environment or leads to adverse job-related consequences for the victims of the harassment” (''Janzen v Platy Enterprises Ltd'', [1989] 1 SCR 1252 at 1284 [''Janzen'']).


In ''PN v FR'' ''and another (No 2)'', 2015 BCHRT 60, the HRT increased the damages available for cases of sexual harassment by awarding $50,000 for injury to dignity to a domestic foreign worker who was sexually harassed and assaulted. This case also involved allegations of discrimination based on family status, race, age, colour, and place of origin.  
In ''PN v FR'' ''and another (No 2)'', 2015 BCHRT 60, the HRT awarded $50,000 for injury to dignity to a domestic foreign worker who was sexually harassed and assaulted. This is the second highest injury to dignity award the Tribunal has ever ordered. This case also involved allegations of discrimination based on family status, race, age, colour, and place of origin.  


Sexual harassment can take a number of forms. One such form may occur when the employer or a supervisory employee requires another employee to submit to sexual advances as a condition of obtaining or keeping employment or employment-related benefits. It may also occur when employees are forced to work in an environment that is hostile, offensive, or intimidating, such as where an employer allows pornography to be posted in the workplace. It is not generally necessary for an employee to expressly object to their harasser before filing a complaint. There is also no requirement of continuing harassment; a single incident may be sufficient if is egregious.  
Sexual harassment can take a number of forms. One such form may occur when the employer or a supervisory employee requires another employee to submit to sexual advances as a condition of obtaining or keeping employment or employment-related benefits. It may also occur when employees are forced to work in an environment that is hostile, offensive, or intimidating, such as where an employer allows pornography to be posted in the workplace. It is not generally necessary for an employee to expressly object to their harasser before filing a complaint. There is also no requirement of continuing harassment; a single incident may be sufficient if it is egregious.  


The test for whether sexual harassment occurred requires the application of an objective standard. It must be shown that the alleged discriminatory conduct is “reasonably perceived to create a negative psychological and emotional environment for work” (''Janzen''). The test must also take into account the customary boundaries of social interaction in the circumstances. There may not be an action if the complaint arises due to the claimant’s innate sensitivity or defensiveness. Factors that are examined to determine the limits of reasonableness in a particular context include the nature of the conduct, the workplace environment, the type of prior personal interaction, and whether a prior objection or complaint was made. It is no defence to harassment, however, to show that harassing behaviour was traditionally tolerated in a workplace.  
Whether the conduct was “unwelcome” is assessed on an objective standard: would a reasonable person have known that the conduct was unwelcome? If the respondent knew or ought to have known that the conduct was unwelcome, this part of the test is made out. A target of harassment is not required to expressly object to the conduct for it to be reasonably understood to be unwelcome.
 
It must also be shown that the alleged discriminatory conduct is “reasonably perceived to create a negative psychological and emotional environment for work” (''Janzen'' at 1263). The test must also take into account the customary boundaries of social interaction in the circumstances. Factors that are examined to determine the limits of reasonableness in a particular context include the nature of the conduct, the workplace environment, the type of prior personal interaction, and whether a prior objection or complaint was made. It is no defence to harassment, however, to show that harassing behaviour was traditionally tolerated in a workplace.  


  Please refer to ''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.  
  Please refer to ''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.  
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For a recent Tribunal decision issued under the new ground of gender identity or expression, please refer to ''Oger v Whatcott (No 7)'', 2019 BCHRT 58.  
For a recent Tribunal decision issued under the new ground of gender identity or expression, please refer to ''Oger v Whatcott (No 7)'', 2019 BCHRT 58.  


Prior to the inclusion of gender identity or expression in 2016, the Tribunal had found that being transgender was a protected characteristic under the ground of sex. Please refer to ''Dawson v Vancouver Police Board (No 2)'', 2015 BCHRT 54. Dawson establishes that transgender discrimination includes misgendering of trans individuals (addressing a trans person using a pronoun, name, or gender marker other than that which the trans person uses to identify themselves). It can also include the denial of trans-specific medical services.
Prior to the inclusion of gender identity or expression in 2016, the Tribunal had found that being transgender was a protected characteristic under the ground of sex. Please refer to ''Dawson v Vancouver Police Board (No 2)'', 2015 BCHRT 54 [''Dawson'']. ''Dawson'' establishes that misgendering trans individuals (addressing a trans person using a pronoun, name, or gender marker other than that which the trans person uses to identify themselves) constitutes discrimination. Discrimination may also include the denial of trans-specific medical services (''Dawson'').




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=== 11. Criminal or Summary Conviction ===
=== 11. Criminal or Summary Conviction ===


BC’s HRC protects individuals convicted of a criminal or summary conviction offence, or a perceived conviction (i.e. arrest or stayed charges) as long as the offence is unrelated to the employment or the intended employment of the individual. Please refer to Purewall v ICBC, 2011 BCHRT 43 at para 21, Clement v Jackson and Abdulla, 2006 BCHRT 411 at para 14 and Korthe v Hillstrom Oil Company Ltd (1997), (BCHRT) at para 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 ''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:  
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 ''Purewall v ICBC'', 2011 BCHRT 43 at para 21, ''Clement v Jackson and Abdulla'', 2006 BCHRT 411 at para 14 and ''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 ''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:  


* Does the behaviour which formed the basis of the charge, if repeated, compromise the employers’ ability to conduct business safely and effectively?  
* Does the behaviour which formed the basis of the charge, if repeated, compromise the employers’ ability to conduct business safely and effectively?  
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=== 12. Source of Income ===
=== 12. Source of Income ===


BC’s HRC protects against discrimination in tenancy on the basis of an individual’s source of income. This safeguards the tenancy rights of individuals on social assistance or disability pensions who might otherwise be denied safe housing. Please refer to ''Tanner v Vlake'', 2003 BCHRT 36 at paras 22–26 for further discussion on this protected ground. For a more recent case, please see ''Day v Kumar  
BC’s HRC protects against discrimination in tenancy on the basis of an individual’s source of income. This safeguards the tenancy rights of individuals on social assistance or disability pensions who might otherwise be denied safe housing. Please refer to ''Tanner v Vlake'', 2003 BCHRT 36 at paras 22–26 for further discussion on this protected ground. For a more recent case, please see ''Day v Kumar and another (No 3)'', 2012 BCHRT 49.  
 
and another (No 3)'', 2012 BCHRT 49.  


== D. Procedural Options for Employees ==
== D. Procedural Options for Employees ==


The HRC is particularly useful for those who have been discriminated against in the employment context. Since the BC Human Rights Clinic may potentially be able to handle much of the legal work free of charge, a complaint under the HRC may provide a valuable alternative to proceeding with a claim at the Employment Standards Branch or Small Claims Court for individuals who cannot afford a lengthy wrongful dismissal suit. Additionally, claimants may choose to pursue a wrongful dismissal suit alongside a human rights complaint. Claimants who pursue dual claims will not be able to benefit from “double recovery.” An employee who believes that they were discriminated against in relation to their employment may have more than one procedural option to choose from. These include:
An employee who is dealing with an employment-related legal issue may have more than one procedural option to choose from. These include:


=== 1. Employer’s Internal Complaint Procedure ===
=== 1. Employer’s Internal Complaint Procedure ===


Assuming one exists, this is the most immediate way to obtain a remedy. However, there is typically a heavy burden on the employee, as witnesses may be reluctant to come forward and legal counsel is usually not retained at this stage.
Assuming one exists, this is the most immediate way to obtain a resolution to a workplace issue. Consult the workplace’s policies to determine whether an internal complaints process exists and, if so, whether it is likely to yield a helpful resolution of the issue.  Note that employees are not required to make use of internal procedures before filing a human rights complaint or other legal proceeding.


=== 2. Grievance and Arbitration (Union) ===
=== 2. Grievance and Arbitration (Union) ===


Unionized workers are entitled to representation by their union. If the union backs out of its obligation, the worker may wish to file a human rights complaint and may even decide to name the union as a party if the worker has grounds to believe the union is complicit in the alleged discrimination. Generally, alleging that the union has failed to provide adequate representation will not be sufficient to qualify as a breach of the HRC on its own, the union must have engaged in the discrimination. However, initiating the grievance procedure is a good starting point, and can be followed by initiating a human rights complaint. A grievance and a complaint can also be filed in tandem. If the matter is not resolved during the initial stages of the union grievance procedure, an arbitration hearing may be held, and an arbitrator will determine liability and relief.
Unionized workers are entitled to representation by their union. Labour arbitrators have jurisdiction to apply the HRC, and grievances often move more quickly than human rights complaints. However, if the union does not pursue a grievance relating to a human rights issue, the worker may wish to file their own human rights complaint and may even decide to name the union as a party if the worker has grounds to believe the union is complicit in the alleged discrimination. Alleging that the union has failed to provide adequate representation will not be sufficient to qualify as a breach of the HRC on its own; the union must have engaged in the discrimination.  


As previously stated (see '''Section III.B.7''': Discrimination by Unions, Employer Organizations, or Occupational Associations), there are two ways in which a union may be found liable for discrimination. First by creating or participating in formulating a discriminatory workplace rule, and second by impeding an employer’s efforts to accommodate a disabled employee (''Chestacow'' at para 32)
As previously stated (see '''Section III.B.7''': Discrimination by Unions, Employer Organizations, or Occupational Associations), there are two ways in which a union may be found liable for discrimination. First by creating or participating in formulating a discriminatory workplace rule, and second by impeding an employer’s efforts to accommodate a disabled employee (''Chestacow'' at para 32)
Initiating the grievance procedure can be a good starting point, and can be followed by initiating a human rights complaint. A grievance and a human rights complaint can also be filed in tandem. If the matter is not resolved during the initial stages of the union grievance procedure, an arbitration hearing may be held, and an arbitrator will determine liability and relief. The human rights complaint may be placed in deferral while the grievance process proceeds. If the grievance process resolves the worker’s human rights issue, the human rights complaint will be dismissed. See ''Sebastian v Vancouver Coastal Health Authority'', 2019 BCCA 241 for some of the risks of parallel proceedings in this context.


=== 3. Human Rights Complaint ===
=== 3. Human Rights Complaint ===


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 and damages for injury to dignity, feelings and self-respect. However, note that if a claimant is also seeking severance pay and/or punitive damages in a civil suit, they will not be allowed to recover the same damages from both proceedings.  
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.  


=== 4. Employment Standards Branch ===
=== 4. Employment Standards Branch ===


Employees may choose to file a complaint through the Employment Standards Branch (ESB) if their employer has breached the ''Employment Standards Act'' (see '''Chapter 6: Employment Law'''). There is a 6-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.
Employees may choose to file a complaint through the Employment Standards Branch (ESB) if their employer has breached the ''Employment Standards Act'' (see '''Chapter 6: 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.


=== 5. Civil Action ===
=== 5. Civil Action ===


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 ''Keays v Honda Canada Inc'', 2008 SCC 39 at para 67 [Keays].
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 ''Keays v Honda Canada Inc'', 2008 SCC 39 at para 67 [''Keays''].


The court in ''Keays'' held that breaches of the HRC must be remedied within the statutory scheme of the HRC itself. Thus, even if the reason for dismissal was discriminatory, in a civil action, the claimant will generally only be able to recover damages based on their wrongful dismissal and/or inadequate notice (severance pay). See '''Chapter 9: Employment Law''' of the LSLAP Manual. Accordingly, compensation for the discrimination itself must be awarded by the Tribunal.
The court in ''Keays'' held that breaches of the HRC must be remedied within the statutory scheme of the HRC itself. Thus, even if the reason for dismissal was discriminatory, in a civil action, the claimant will generally only be able to recover damages based on their wrongful dismissal and/or inadequate notice (severance pay). See '''Chapter 9: Employment Law''' of the LSLAP Manual. Accordingly, compensation for the discrimination itself must be awarded by the Tribunal.
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The court may further compensate the claimant in a civil action if the employer has acted unfairly or in bad faith when dismissing an employee. The basis for these additional damages is a breach of the implied term of an employment contract that employers will act in good faith in the manner of dismissal (i.e. payment for such damages can be deemed to have been in the contemplation of the parties at the formation of the contract). In Keays the Supreme Court of Canada held that any such additional award must be compensatory and must be based on the actual loss or damage suffered by the employee, which can include expenses related to mental distress stemming from the manner of dismissal. Compensable conduct might include, but is not limited to, attacking the employee's reputation at the time of dismissal, misrepresentations regarding the reason for the dismissal, or dismissal meant to deprive the employee of a pension benefit or other right such as permanent resident status. However, normal distress and hurt feelings arising from the dismissal itself are not grounds for additional damages.
The court may further compensate the claimant in a civil action if the employer has acted unfairly or in bad faith when dismissing an employee. The basis for these additional damages is a breach of the implied term of an employment contract that employers will act in good faith in the manner of dismissal (i.e. payment for such damages can be deemed to have been in the contemplation of the parties at the formation of the contract). In Keays the Supreme Court of Canada held that any such additional award must be compensatory and must be based on the actual loss or damage suffered by the employee, which can include expenses related to mental distress stemming from the manner of dismissal. Compensable conduct might include, but is not limited to, attacking the employee's reputation at the time of dismissal, misrepresentations regarding the reason for the dismissal, or dismissal meant to deprive the employee of a pension benefit or other right such as permanent resident status. However, normal distress and hurt feelings arising from the dismissal itself are not grounds for additional damages.


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 its 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 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.   


Whatever procedural route an employee ultimately chooses to pursue, if said employee is experiencing on-going harassment on a prohibited ground of discrimination, he or she should maintain records or a journal with dates, times, places, witnesses, details of particular incidents, and even a description of the emotional effects of the harassment.
Whatever procedural route an employee ultimately chooses to pursue, if said employee is experiencing on-going harassment on a prohibited ground of discrimination, they should maintain records or a journal with dates, times, places, witnesses, details of particular incidents, and even a description of the emotional effects of the harassment.


== E. The Process for Human Rights Complaints ==
== E. The Process for Human Rights Complaints ==
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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. There are helpful self-help guides to filling out complaint and response forms on the Tribunal’s website.
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. There are helpful self-help guides to filling out complaint and response forms on the Tribunal’s website.


=== 1. Who Can Lodge a Complaint ===
=== 1. Who Can Lodge a Complaint? ===


A complaint may be made by an individual, on behalf of a group or class, or by someone acting as a representative of named person(s). If the Complaint Form is being filled out on behalf of another person, group, or class of persons, then a secondary form called the Representative Complaint Form must also be filled out and must accompany the Complaint Form when sent to the Tribunal. The person filling out the Complaint Form is the complainant. The person or organization who has been filed against is called the respondent.  
A complaint may be made by an individual, on behalf of a group or class, or by someone acting as a representative of named person(s). If the Complaint Form is being filled out on behalf of another person, group, or class of persons, then a secondary form called the Representative Complaint Form must also be filled out and must accompany the Complaint Form when sent to the Tribunal. The person filling out the Complaint Form is the complainant. The person or organization who has been filed against is called the respondent.  
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=== 2. How to File a Complaint ===
=== 2. How to File a Complaint ===


The Complaint Form must be filed with the Tribunal via mail, fax, or e-mail. Complainants may access the Complaint Form and other valuable resources at the BC Human Rights Tribunal website (see '''Section II.B: Resources'''). The party filing the complaint should be aware of the time limits. There is a general 1-year limitation period, which may be extended under certain very limited circumstances.  
The Complaint Form must be filed with the Tribunal via mail, fax, or e-mail. As of July 2020, online filing is also an option. Complainants may access the Complaint Form and other valuable resources at the BC Human Rights Tribunal website (see '''Section II.B: Resources'''). The party filing the complaint should be aware of the time limits. There is a general one-year limitation period, which may be extended under certain very limited circumstances.  


=== 3. Review Process ===
=== 3. Review Process ===


Once the Complaint Form is filed, the Tribunal will review the form to determine if it fits under the HRC and if it appears to meet the 1-year limitation period. If the Tribunal believes that it may not have the power to deal with the complaint in substance or believes that the complaint has been filed out of time, the complainant will be given a chance to respond before the Tribunal decides whether or not to proceed with the complaint. If the Tribunal believes it can proceed, it will send the Complaint Form to the respondent for a response to the complaint.  
Once the Complaint Form is filed, the Tribunal will review the form to determine if it fits under the HRC and if it appears to meet the one-year limitation period. If the Tribunal believes that it may not have the power to deal with the complaint in substance or believes that the complaint has been filed out of time, the complainant will be given a chance to respond before the Tribunal decides whether or not to proceed with the complaint. If the Tribunal believes it can proceed, it will send the Complaint Form to the respondent for a response to the complaint.  


A complainant must set out a case of discrimination under the HRC on their initial complaint form. If the elements are not set out, then the Tribunal might not accept the complaint. Even if accepted, it could still be vulnerable to an application to dismiss under section 27 of the HRC at a later stage. In order to set out the complainant’s case, the complainant must allege facts that, on their face (that is to say, assuming they are all true), satisfy the following three elements:
A complainant '''must''' set out a case of discrimination under the HRC on their initial complaint form. If the elements are not set out, then the Tribunal might not accept the complaint. Even if accepted, it could still be vulnerable to an application to dismiss under section 27 of the HRC at a later stage. In order to set out the complainant’s case, the complainant must allege facts that, on their face (that is to say, assuming they are all true), satisfy the following three elements:


#That they have a characteristic that is protected under the HRC;
#That they have a characteristic that is protected under the HRC;
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#That their protected characteristic was a factor in the adverse impact they experienced.
#That their protected characteristic was a factor in the adverse impact they experienced.


It is important to note that a complainant need not establish that their protected characteristic was the sole or primary reason for their adverse treatment. It is sufficient to establish that it was a reason for their adverse treatment.
It is important to note that a complainant need not establish that their protected characteristic was the sole or primary reason for their adverse treatment. It is sufficient to establish that it was one reason for their adverse treatment.


For greater analysis of this topic 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; and ''Moore v British Columbia (Education)'', 2012 SCC 61.
For greater analysis of this topic 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; and ''Moore v British Columbia (Education)'', 2012 SCC 61.
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=== 4. Settlement Meeting ===
=== 4. Settlement Meeting ===


'''Parties may agree to a settlement meeting at any time after the complaint has been filed.''' Guides for settlement meetings and hearings are available from the Tribunal at its office address or on its website. At the settlement meeting, a neutral and impartial mediator who is knowledgeable in human rights law will work with the parties in order to help them try to reach an agreement. This process allows for quicker resolution of the issue in a more informal setting, where information is kept confidential. The process is voluntary, and the Tribunal cannot force the parties to enter into a settlement agreement. If the parties do voluntarily agree to settle their dispute, as part of the terms of settlement, the complainant will file a Complaint Withdrawal Form.  
'''Parties may agree to a settlement meeting at any time after the complaint has been filed.''' Guides for settlement meetings and hearings are available from the Tribunal at its office address or on its website. At the settlement meeting, a neutral and impartial mediator who is knowledgeable in human rights law will work with the parties in order to help them try to reach an agreement. This process allows for quicker resolution of the issue in a more informal setting, where information is kept confidential. The process is voluntary and the Tribunal cannot force the parties to enter into a settlement agreement. If the parties do voluntarily agree to settle their dispute, as part of the terms of settlement, the complainant will file a Complaint Withdrawal Form.  


== F. Remedies ==
== F. Remedies ==
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Remedies should be considered first when deciding whether or not to pursue a claim in any administrative tribunal. Available remedies for a justified complaint are listed in section 37(2) of the HRC.
Remedies should be considered first when deciding whether or not to pursue a claim in any administrative tribunal. Available remedies for a justified complaint are listed in section 37(2) of the HRC.


'''Non-pecuniary (not financial) remedies includ'''e: an order that the respondent cease the discriminatory conduct; a declaratory order that the conduct complained of is, in fact, discriminatory; and an order that the respondent take steps to ameliorate the effects of the discrimination, such as the implementation of human rights policy and training. People seeking advice on drafting should be directed to the BC Human Rights Tribunal website, which provides detailed information on the availability and applicability of specific remedies (see '''Section II.B: Resources''').  
'''Non-pecuniary (not financial) remedies include''': an order that the respondent cease the discriminatory conduct, a declaratory order that the conduct complained of is, in fact, discriminatory, and an order that the respondent take steps to ameliorate the effects of the discrimination, such as the implementation of human rights policy and training. People seeking advice on drafting should be directed to the BC Human Rights Tribunal website, which provides detailed information on the availability and applicability of specific remedies (see '''Section II.B: Resources''').  


'''Pecuniary (financial) remedies include''': compensation for lost wages/salary or expenses, re-instatement of a lost benefit, and compensation for injury to dignity. Unlike severance pay, compensation for lost wages is not based on the concept of reasonable notice. A successful claimant may recover lost wages for the entire period between their dismissal and the hearing date if they can show that they have been making reasonable efforts to find new employment. Damages awarded for injuries to dignity have increased over the last decade. Currently the highest award in BC is $75,000 (''University of British Columbia v Kelly'', 2016 BCCA 271).  However, most damages in this category are under $10,000. 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. Importantly, while injury to dignity awards commonly follow in cases where discrimination is established, this is not guaranteed, as seen in ''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
'''Pecuniary (financial) remedies include''': compensation for lost wages/salary or expenses, re-instatement of a lost benefit, and compensation for injury to dignity. Unlike severance pay, compensation for lost wages is not based on the concept of reasonable notice. A successful claimant may recover lost wages for the entire period between their dismissal and the hearing date if they can show that they have been making reasonable efforts to find new employment. 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 ''Biggings obo Walsh v Pink and others'', 2018 BCHRT 174 [''Walsh'']). Currently the highest award in BC is $75,000 (''University of British Columbia v Kelly'', 2016 BCCA 271).  However, most damages in this category are under $10,000. 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''). Importantly, while injury to dignity awards commonly follow in cases where discrimination is established, this is not guaranteed, as seen in ''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. Provided that the respondent is able to prove that the claimant has failed to mitigate his or her losses, the failure to mitigate one’s losses can lead to the loss of a claimant’s entitlement to wage loss compensation.
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.


There is no maximum limit on damage awards. Note, however that if a claimant seeks a remedy at both the Human Rights Tribunal (e.g. for lost wages) and in civil court (e.g. for severance pay), and is successful with both proceedings, he or she must forfeit one of the awards, as they are not entitled to double recovery. There are several cases where the award for loss of wages was in the range of $300,000. See ''Kelly'' and ''Kerr, supra''.  
There is no maximum limit on damage awards. Note, however that if a claimant seeks a remedy at both the Human Rights Tribunal (e.g. for lost wages) and in civil court (e.g. for severance pay), and is successful with both proceedings, they must forfeit one of the awards, as they are not entitled to double recovery. There are several cases where the award for loss of wages was in the range of $300,000. See ''Kelly'' and ''Kerr''.  


The pecuniary remedies available under the HRC are meant to be compensatory in nature, not punitive. Section 37(4) of the HRC gives the Tribunal authority to order costs against either party as condemnation of improper conduct during the Tribunal processes. This order is independent of a finding that the complaint is justified. Additionally, section 37(2) gives the Tribunal the right to award compensation for expenses that are directly caused by the discrimination found, which may include expenses such as wage loss due to the need to attend a hearing.  
The pecuniary remedies available under the HRC are meant to be compensatory in nature, not punitive. Section 37(4) of the HRC gives the Tribunal authority to order costs against either party as condemnation of improper conduct during the Tribunal processes. This order is independent of a finding that the complaint is justified. Additionally, section 37(2) gives the Tribunal the right to award compensation for expenses that are directly caused by the discrimination found, which may include expenses such as wage loss due to the need to attend a hearing.  
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The Tribunal will 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 ''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.
The Tribunal will 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 ''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.


A final order of the Tribunal may be registered in the BC Supreme Court so that it is enforceable as though it were an order of the court. No appeal procedure is provided for in the HRC, but the Judicial Review Procedure Act, RSBC 1996, c 241 may be of some assistance if an individual is dissatisfied with the Tribunal’s decision (see '''Chapter 5: Public Complaint Procedures''' of the LSLAP Manual).
A final order of the Tribunal may be registered in the BC Supreme Court so that it is enforceable as though it were an order of the court. No appeal procedure is provided for in the HRC; individuals dissatisfied with the Tribunal’s decision must seek judicial review in BC Supreme Court pursuant to the Judicial Review Procedure Act, RSBC 1996, c 241 (see '''Chapter 5: Public Complaint Procedures''' of the LSLAP Manual).




== G. Costs ==  
== G. Costs ==  


The general rule is that costs will not normally be awarded in a human rights case. However, pursuant to section 37(4) of the HRC, the purpose of awarding costs has been to penalize a party who acts improperly during a hearing, thereby interfering with the objectives of the Tribunal.  In these cases, costs are awarded punitively and do not necessarily reflect the actual expenses suffered by the other party due to the improper conduct.  
The general rule is that costs will not normally be awarded in a human rights case. Pursuant to section 37(4) of the HRC, the purpose of awarding costs is to penalize a party who acts improperly during a hearing, thereby interfering with the objectives of the Tribunal.  In these cases, costs are awarded punitively and do not necessarily reflect the actual expenses suffered by the other party due to the improper conduct.  


== H. Dismissal of a Complaint Without a Hearing ==
== H. Dismissal of a Complaint Without a Hearing ==


As mentioned above, the Tribunal may refuse to accept a complaint for filing if it does not have jurisdiction due to the nature of the complaint or when it was brought. Once a complaint has been filed, however, the Tribunal may nevertheless dismiss it prior to a hearing, on application from the respondent or on its own motion, for a variety of reasons (HRC, s 27). The following outlines some of the reasons why the Tribunal may dismiss a filed complaint (check the HRC for a complete list):
As mentioned above, the Tribunal may refuse to accept a complaint for filing if it does not have jurisdiction due to the nature of the complaint or if it is late filed. Once a complaint has been filed, however, the Tribunal may nevertheless dismiss it prior to a hearing, on application from the respondent or on its own motion, for a variety of reasons (HRC, s 27). The following outlines some of the reasons why the Tribunal may dismiss a filed complaint (check the HRC for a complete list):


=== 1. Complaint Outside the Tribunal’s Jurisdiction ===
=== 1. Complaint Outside the Tribunal’s Jurisdiction ===
The Tribunal will not proceed with a complaint where it is persuaded that the complaint is not, in fact, based on a form of discrimination enumerated by the HRC, or that the complaint falls within federal jurisdiction. In addition, even if the Tribunal accepts a complaint for filing, the respondent may still have the option to dispute jurisdiction.
The Tribunal will not proceed with a complaint where it is persuaded that the complaint is not, in fact, based on a form of discrimination enumerated by the HRC, or that the complaint falls within federal jurisdiction. Even if the Tribunal accepts a complaint for filing, the respondent may still have the option to dispute jurisdiction.


=== 2. Substance of Complaint Dealt with by Another Proceeding ===
=== 2. Substance of Complaint Dealt with by Another Proceeding ===
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=== 4. Complaint Brought Outside Limitation Period ===
=== 4. Complaint Brought Outside Limitation Period ===
As mentioned above, there is a 1-year limitation period. The 1-year period begins from the last instance of any continuing discrimination. If at least one alleged incident of discrimination in a complaint falls within the one-year limitation period, other alleged incidents of discrimination dating back farther than one year may be accepted as a “continuing contravention” of the Code. The issue of whether, or how many, multiple instances of discrimination will be considered to constitute a “continuing contravention” (thus effectively extending the 1-year limitation period) is often disputed. See ''Bjorklund v BC Ministry of Public Safety and Solicitor General'', 2018 BCHRT 204 at paras 13-14 for a recent discussion of how to define a “continuing contravention”; see also ''District v Parent obo the Child'', 2018 BCCA 136 at paras 46 – 65.
As mentioned above, there is a one-year limitation period. The one-year period begins from the last instance of any continuing discrimination. If at least one alleged incident of discrimination in a complaint falls within the one-year limitation period, other alleged incidents of discrimination dating back farther than one year may be accepted as a continuing contravention of the ''Code''. The issue of whether, or how many, multiple instances of discrimination will be considered to constitute a “continuing contravention” (thus effectively extending the one-year limitation period) is often disputed. See ''Bjorklund v BC Ministry of Public Safety and Solicitor General'', 2018 BCHRT 204 at paras 13-14 for a recent discussion of how to define a “continuing contravention”; see also ''District v Parent obo the Child'', 2018 BCCA 136 at paras 46–65.


Additionally, under section 22(3) of the HRC, the Tribunal has discretion to accept late-filed complaints regardless of whether there is a “continuing contravention”, if it is in the public interest to accept the late complaint, and no substantial prejudice will be caused to any party because of the delay in filing: ''Chartier v Sooke School District No 62'', 2003 BCHRT 39 at para. 12 Whether it is in the public interest to accept a complaint filed outside the 1-year time limit is a multi-faceted consideration, which is governed by the purposes of the HRC, and done on a case-by-case basis. Factors that may be important considerations in determining whether it is in the public interest to accept a late-filed complaint include the reasons for the delay, the length of the delay, the significance of the issue raised in the complaint and fairness in all the circumstances. The list of factors that the Tribunal may consider is non-exhaustive:. ''British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite'', 2014 BCCA 220; ''Hoang v. Warnaco and Johns'', 2007 BCHRT 24.
Additionally, under section 22(3) of the HRC, the Tribunal has discretion to accept late-filed complaints regardless of whether there is a “continuing contravention”, if it is in the public interest to accept the late complaint, and no substantial prejudice will be caused to any party because of the delay in filing: ''Chartier v Sooke School District No 62'', 2003 BCHRT 39 at para 12. Whether it is in the public interest to accept a complaint filed outside the one-year time limit is a multi-faceted consideration, which is governed by the purposes of the HRC, and done on a case-by-case basis. Factors that may be important considerations in determining whether it is in the public interest to accept a late-filed complaint include the reasons for the delay, the length of the delay, the significance of the issue raised in the complaint and fairness in all the circumstances. The list of factors that the Tribunal may consider is non-exhaustive:. ''British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite'', 2014 BCCA 220; ''Hoang v. Warnaco and Johns'', 2007 BCHRT 24.


== I. Judicial Review ==
== I. Judicial Review ==


If an individual disagrees with a decision of the Tribunal, he or she may ask the Supreme Court of British Columbia for a “judicial review”. A judicial review differs from an appeal to a higher court. In an appeal, the court has the authority to decide whether or not it agrees with a decision. In a judicial review, the BC Supreme Court simply decides whether or not there is a “ground” for review and may only disturb the Tribunal’s decision if it can demonstrate that the Tribunal:  
If an individual disagrees with a decision of the Tribunal, they may ask the Supreme Court of British Columbia for a “judicial review”. A judicial review differs from an appeal to a higher court. In an appeal, the court has the authority to decide whether or not it agrees with a decision. In a judicial review, the BC Supreme Court simply decides whether or not there is a “ground” for review and may only disturb the Tribunal’s decision if the applicant can demonstrate that the Tribunal:  


*Made an “error of law”, e.g., an incorrect interpretation of the HRC;
*Made an “error of law”, e.g., an incorrect interpretation of the HRC;
*Made a finding of fact that is unreasonable or based on a lack of evidence;
*Made a finding of fact that is unreasonable or unsupported by the evidence;
*Acted unfairly with regards to the rules of procedure and natural justice; or
*Acted unfairly with regards to the rules of procedure and natural justice; or
*Disregarded legislative requirements; used its discretion arbitrarily, in bad faith, or for an improper purpose; and/or based its decisions on irrelevant factors.
*Disregarded legislative requirements; used its discretion arbitrarily, in bad faith, or for an improper purpose; and/or based its decisions on irrelevant factors.


The applicable “standards of review” applicable to the Tribunal’s decisions is set out in s. 59 of the Administrative Tribunals Act.
The standards of review applicable to the Tribunal’s decisions are set out in s. 59 of the ''Administrative Tribunals Act''.


If the Tribunal has made any of these errors, the Court may set aside the decision and will usually direct the Tribunal to reconsider the matter. Section 57 of the ''Administrative Tribunals Act'' mandates that an application for a judicial review must be submitted within '''60 days''' of the date the Tribunal’s decision was issued. In order to seek a judicial review, an individual is required to prepare a petition and affidavit, file the petition and affidavit at the BC Supreme Court, and serve a copy of the filed petition and affidavit on the Tribunal, the Attorney General of British Columbia, and any person whose interests may be affected by the order you desire the Court to make.  
If the Tribunal has made any of these errors, the Court may set aside the decision and will usually direct the Tribunal to reconsider the matter. Section 57 of the ''Administrative Tribunals Act'' mandates that an application for a judicial review must be submitted within '''60 days''' of the date the Tribunal’s decision was issued. In order to seek a judicial review, an individual is required to prepare a petition and affidavit, file the petition and affidavit at the BC Supreme Court, and serve a copy of the filed petition and affidavit on the Tribunal, the Attorney General of British Columbia, and any person whose interests may be affected by the order you desire the Court to make.  
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