BC Human Rights Code (6:III)

The B.C. Human Rights Code [“HRC”] is the legislation currently applicable in BC and is administered by the B.C. Human Rights Tribunal.

The HRC applies to matters within the provincial constitutional heads of power, and covers both public and private bodies and individuals. For example, the HRC applies to provincially regulated employers, unions, professional associations, most commercial businesses, Crown corporations, landlord-tenant relations, as well as the provincial government itself.

NOTE: The Tribunal’s decisions are available online at http://www.bchrt.bc.ca/decisions. They are indexed by year dating back to 1997 and searchable based on a variety of criteria.

The Chart below illustrates how the HRC’s protected grounds apply to each area of protection.

INSERT IMAGE HERE

A. Protections, Exceptions and Exemptions

The HRC provides protection against discrimination in several different contexts, which are listed in ss. 7 – 14. However, for many of these protected areas, the HRC provides certain exceptions for which prima facie discrimination is not prohibited.

Additionally, s 41, commonly referred to as the group rights exemption, allows what might otherwise be deemed as prohibited discriminatory acts by charitable, philanthropic, educational and other not-for-profit organizations, if it is done while promoting the interests and welfare of a group of people that share a common identifiable characteristic, such as religion, race, or marital status. Please refer to Vancouver Rape Relief Society v Nixon, 2005 BCCA 601.

Furthermore, under s 42, it is not discrimination to plan, advertise, adopt or implement an employment equity program that has the objective of ameliorating the conditions of individuals or groups who are disadvantaged because of race, colour, ancestry, place of origin, physical or mental disability or sex. Such programs may obtain prior approval by the BC Human Rights Tribunal and, if pre-approved, will not be deemed to be in contravention of the HRC.

Finally, s. 43, often referred to as the “retaliation” section, prohibits discrimination against a person because that person complains, has been named, gives evidence, or otherwise assists in a complaint or other proceeding under the HRC. This section will very soon be amended to include protection of a person who is planning to commence, but has not yet filed, a human rights complaint.

1. Discriminatory Publication

Section 7 deals with forms of discrimination against individuals or groups of individuals, which are published, displayed, or made public. This section prohibits hate literature and other such communications that is or is likely expose someone in a protected group to hatred or contempt. Please refer to Elmasry and Habib v Roger’s Publishing and MacQueen (No 4), 2008 BCHRT 378 at para 21-27.

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

2. Discrimination in Facilities “Customarily Available to the Public”

Section 8 states that any accommodation, service, or facility customarily available to the public may not be denied to an individual for reasons based on that person’s race, colour, ancestry, place of origin, religion, marital status, physical or mental disability, gender, or sexual orientation.

British Columbia Council of Human Rights v Berg, [1993] 2 SCR 353 at para 10 provides the definition of “customarily available to the public”. A service is customarily available to the public if the nature of the relationship is public. Look at the relationship between the facility and the victim and the nature of the service itself. The court found that a university is its own public and that the relationships between students and professors, who present the public “face” of the university, are public in this context. Please refer to HMTQ v McGrath, 2009 BCSC 180 at para 89-93 for a more recent case that cites the definition of what is “customarily available to the public” following Berg.

While there is no enumerated list of relationships that count as public, locales such as pubs, night clubs, hotels, theatres, transportation services, education facilities, insurance, medical treatment in hospitals, management services in condominiums, and participation in sporting events have all been found to entail public relationships. Licensing services and facilities may also involve public relationships; for example, discrimination prohibited by s. 8 was ultimately found when the BC Motor Vehicle Branch maintained a blanket refusal to issue drivers licenses to those with certain visual impairments regardless of actual driving ability. Please refer to BC (Superintendent of Motor Vehicles) v BC (Council of Human Rights), [1999] 3 SCR 868 (“Grismer”).

Exceptions: There are a number of circumstances where discrimination is permitted, if it can be shown to be supported by “bona fide and reasonable justification” (BFRJ) (as per the wording of s 8(1)). For the most authoritative perspective, see the “Grismer” case (cited above), which applied the three-part “Meiorin” test to services: British Columbia (Public Service Employee Relations Commission) v British Columbia Government Service Employees' Union [1999] 3 S.C.R. 3, a Supreme Court of Canada case that created a unified test to determine if a violation of human rights legislation can be justified as a bona fide occupational requirement(BFOR).

Additionally, courts have found that services provided to members of a group who come together as a result of a private selection process based on attributes personal to the members do not qualify as services “customarily available to the public” and are therefore not subject to s 8 of the HRC. Please refer to Marine Drive Golf Club v Buntain et al and BC Human Rights Tribunal, 2007 BCCA 17 at para 48-56.

Section 8(2) also contains certain built-in exceptions. Discrimination based on sex is permitted insofar as it relates to the maintenance of public decency. Discrimination based on sex, physical or mental disability, or age is permitted insofar as it relates to the determination of premiums or benefits under life or health insurance policies.

3. Discrimination in Purchase and Rental of Property

Section 9 provides that a person must not be denied the opportunity to purchase real property due their race, colour, ancestry, place of origin, religion, marital status, physical or mental disability, sexual orientation or sex.

Section 10 states that a person shall not be denied the right to occupy any space that is represented as being available for occupancy or be discriminated against with respect to a term or condition of the tenancy on the basis of race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, age or lawful source of income. Please refer to Hunter v LaViolette (No 2), 2007 BCHRT 415.

Exceptions: This section does not apply if the tenant is to share the use of any sleeping, bathroom, or cooking facilities with the person making the representation (e.g. as a roommate). Also, it continues to be possible for landlords to discriminate against those under the age of 19 or based on political belief when accepting new tenants or making other decisions related to rental properties.

4. Discrimination in Employment Advertisements and Interviews

Section 11 prohibits employment advertisements that express limitations or preferences based on race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sexual orientation, sex or age. Refer to Anderson v Thompson Creek Mining Ltd Endako Mines, 2007 BCHRT 99.

Exception: Discrimination in employment advertisements may be permitted if such limitations are based on “bona fide occupational requirement(s)” as per the wording of s 11.

For case law on discrimination during the interview process, please refer to Khalil v Woori Education Group, 2012 BCHRT 186 at para 29-45. An employer, under s 13, cannot refuse to employ someone on the ground mental or physical disability unless there is a bona fide occupational requirement (see subsection 6: Discrimination in Employment and the Duty to Accommodate).

5. Discrimination in Wages

Section 12 states that wage parity between sexes is required for similar or substantially similar jobs. Please refer to Jules v United Native Nations Society and Johnson, 2009 BCHRT 115. Recovery of wages is limited to wages of an employee during the twelve-month period immediately before the earlier of the date of the employee's termination or the commencement of the action. Most of the remedies under this section are also available under s.13 which does not have a limitation on the period of time during which wages can be claimed.

Limitation Dates: Section 12 of the HRC states:

• (a) the action must be commenced no later than 12 months from the termination of the employee's services, and
• (b) the action applies only to wages of an employee during the 12 month period immediately before the earlier of the date of the employee's termination or the commencement of the action.

This seems to imply a twelve-month limitation period. It is important to note, however, that s. 22 of the HRC sets a six-month limitation period for all human rights complaints. This section does not include an exception for complaints made under s. 12, therefore, any complaint made under s. 12 should be filed within six months of the incident of discrimination to ensure that the limitation date is not missed. See Anderson v. Commonwealth Construction and others, 2012 BCHRT 34 for an example of a s. 12 complaint which was dismissed for being filed more than six months after the complainant's termination date. It is not clear but it appears that the wording in s. 12 which sets a limitation date of twelve months therefore applies only to separate actions taken under that section, and not to human rights complaints.

Exception: A difference in the rate of pay between employees of different sexes based on a factor other than sex is allowed, provided that the factor on which the difference is based would reasonably justify the difference.

6. Discrimination in Employment and the Duty to Accommodate

Section 13 provides that no person shall refuse to employ another person or discriminate against a person with respect to employment or any term or condition of employment on the basis of race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, or age of that person or because that person has a criminal record that is unrelated to the employment. Please refer to Ratzlaff v Marpaul Construction Limited and Rondeau, 2010 BCHRT 13.

In addition, the Government of B.C. has prohibited mandatory retirement as of January 1st, 2008 by revising the HRC to extend protection from age discrimination to those 65 and over (Bill 31, 3rd Sess, 38th Parl, 2007). Under these new amendments, individuals in both the public and private sector are now able to choose the age at which they wish to retire and the protection from age discrimination applies to anyone who is 19 years or older (s 1, “age”).

With respect to physical disability, the B.C. Court of Appeal has recently ruled that an employer is not guilty of discrimination if he or she dismisses an employee for misconduct (e.g. theft in the workplace) that would independently justify dismissal, even if that employee’s drug or alcohol dependency was a contributing factor to the misconduct; see British Columbia (Public Service Agency) v British Columbia Government and Service Employees Union, 2008 BCCA 357 at para 11-18. The critical question is whether the employer’s decision was influenced by the employee’s protected characteristic, or whether instead, the employer would have reached the same decision respecting any other employee guilty of the same misconduct.

Bona Fide Occupational Requirement: In the case of discrimination on the basis of disability, Section 13(4) permits discrimination in employment if the basis for discrimination concerns a “bona fide occupational requirement” (BFOR). In British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees' Union, (1999) 35 CHRR d/257 at para 54 (“Meiorin”), the Supreme Court of Canada established a three-part test for BFOR. An initial investigation determines whether the standard, policy or practice has the direct or indirect effect of excluding or negatively affecting individuals protected by the HRC. The onus of establishing sufficient evidence of a prima facie case lies with the complainant.

In order to establish a prima facie case the complainant must introduce evidence which, on its face, satisfies the following three elements:

1. The complainant must establish that they are a member of a protected group.
2. They must establish that they suffered adverse treatment.
3. They must establish a nexus or connection between their protected status and the adverse treatment. It is important to note that a complainant need not establish that their membership in a protected group was the sole or primary reason for their adverse treatment. It is sufficient to establish that it was a reason for their adverse treatment.

Once this evidence is established, the onus of proving a BFOR defence is transferred to the respondent. 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.
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.
3. The standard is reasonably necessary to performing the job and it is impossible to accommodate the specific claims of the plaintiff without incurring undue hardship to the employer.

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) (No 4), 2009 BCHRT 196.

What may be considered as “undue hardship” varies by employer depending on the circumstances. In Central Okanagan School District No 23 v Renaud, [1992] 2 SCR 970 at para 21-23, the Supreme Court of Canada noted that it is more than a minor inconvenience, but that actual interference must be established. Factors the court may consider financial cost; health and safety; and flexibility and size of the workplace. For a more exhaustive guide for employers and employees seeking accommodation, please see the B.C. Human Rights Clinic’s “FAQ – Duty to Accommodate”.

The “bona fide occupational requirement” exception was unaffected by the 2008 amendments, and continues to apply to age discrimination as it relates to mandatory retirement. Thus, if the employer can establish one or more BFORs related to age, then mandatory retirement can still be imposed on those grounds at any age.

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

7. Discrimination by Unions, Employer Organizations or Occupational A ssociationsSection 14 states that trade unions, employers’ organizations or occupational associations may not deny membership to any person or discriminate against a person on the basis of race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, age, or unrelated criminal record. Please refer to De Lima v. The Empire Landmark and Hotel Conference Centre and Major, 2006 BCHRT 440.Protection against denial of membership has been held to apply only against an implicated union, organization, or association and not against an individual, since “persons” are not covered by s 14. Please refer to Ratsoy v BC Teachers’ Federation and others, 2005 BCHRT 53 at para 23. This differs from other protections granted by the HRC, which, in appropriate circumstances, generally do allow an action to be brought against both an organization (e.g. an employer) and its individual members (e.g. a manager).B.Prohibited Grounds of Discrimination 1.GeneralProhibited grounds of discrimination include gender, age (for those 19 and over), race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sexual orientation, criminal record (that is not relevant to the employment, union or occupational association), and lawful source of income. Note that not all of the areas listed in ss 7 -14 of the HRC are afforded protection against all forms of discrimination. For example, the HRC does not prohibit landlords from discriminating on the basis of a tenant’ s political beliefs. The grounds of discrimination that apply depend on the section of the HRC in question. One must first decide which section is involved and then check to see which grounds are associated with that section (see the helpful chart on page 6-3 above) . To determine whether a violation of the HRC has occurred, consult the relevant section of the HRC and review recent case law. Case law can be found on the B.C. Human Rights Tribunal website (www.bchrt.bc.ca\decisions), indexed by year, and searchable based on a variety of criteria.

p6-8