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

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 982.  

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.

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:

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 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; the application was dismissed.  

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:

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), 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.

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.  

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.

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 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.  

  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.  

For a more recent case involving discrimination on the basis of sex, and more specifically sexual harassment in the employment context, see ''Araniva v RSY Contracting and another (No. 3)'', 2019 BCHRT 97.  

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'']. ''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'').

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

BC’s HRC protects individuals with a criminal or summary conviction offence, or a perceived conviction (i.e. arrest or stayed charges), so long as the conviction is unrelated to the employment or the intended employment of the individual. Please refer to ''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:  

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.  

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.  

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.

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.

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.

'''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

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 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; 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).

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.  

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):

The Tribunal may discontinue proceedings where the Tribunal is persuaded that the complaint is made in bad faith, would be of no benefit, would not further the purposes of the HRC, and/or has no reasonable prospect of success. The most recent Annual Report from the BCHRT indicates that applications to dismiss under section 27 of the HRC succeeded in fully dismissing the complaint 49% of the time. Please refer to ''Marquez v Great Canadian Casinos'', 2011 BCHRT 117 at paras 29–38. No reasonable prospect of success is the most common reason for dismissing a complaint.

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 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.

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