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Difference between revisions of "BC Human Rights Code (6:III)"
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The general rule is that costs will not normally be awarded in a human rights case. However, pursuant to s 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 objective 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. However, pursuant to s 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 objective 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. | ||
== F. Judicial Review == | |||
If an individual disagrees with a decision by a Tribunal, he or she may appeal to 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 B.C. 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: | |||
*Made an “error of law”, e.g., an incorrect interpretation of the HRC | |||
*Made a finding of fact that is unreasonable or based on lack of evidence | |||
*Acted unfairly with regards to the rules of procedure and natural justice | |||
*Disregarded legislative requirements; used its discretion arbitrarily, in bad faith, or for an improper purpose; and/or based its decisions on irrelevant factors | |||
If the Tribunal has made any of these errors, the Court may set aside the decision and will usually direct the Tribunal to re-hear the case. 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 decision was issued; however, the Court may extend the time in limited circumstances. In order to seek a judicial review, an individual is required to prepare a petition and affidavit, file the petition and affidavit at the B.C. 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. | |||
== G. Reasons Why the Complaint May Not Proceed == | |||
As mentioned above, the Tribunal may refuse to accept a complaint for filing because 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 hearing on application from the respondent for a variety of reasons (s 27). Among the reasons the Tribunal may dismiss a filed complaint are (check the HRC for a complete list): | |||
=== 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 the federal jurisdiction. In addition, 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 === | |||
Where another proceeding, such as a abour arbitration, has adequately resolved the substance of a complaint, it will usually be dismissed. A complaint may also be deferred if such an alternative proceeding is pending. The number or other proceedings capable of adequately dealing with a human rights complaint are quite limited. | |||
=== 3. No Reasonable Basis for Holding a Hearing === | |||
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 Reports from the BCHRT indicate that 55% of cases were dismissed on preliminary application under s 27 of the HRC. Please refer to ''Marquez v Great Canadian Casinos and another (No 2)'', 2011 BCHRT 117 at para 29-38. | |||
=== 4. Complaint Brought Outside Limitation Period === | |||
As mentioned above, there is a general six-month limitation period. The six-month period begins from the last instance of any continuing discrimination. It is not always clear which date will be used to determine the limitation date. The issue of whether, or how many, multiple instances of discrimination should be considered a “continuing contravention” (thus effectively extending when the six-month period) is often disputed. See ''Mercer v Loga'', 2008 BCHRT 217 at para 7-11 for the most recent discussion of how to define a “continuing contravention”; see also ''O’Hara v BC (Human Rights Commission)'', 2003 BCCA 139 at para 8-25. | |||
Additionally, under s 22(3) of the HRC, the six month time limit may be extended, regardless of whether there is a “continuing contravention”, if it is in the public interest to accept the late complaint and no substantial prejudice is caused to any party. When seeking an extension of the time limit, the complainant bears the burden of establishing both of the requirements of s 22(3). Refer to ''Chartier v School District No 62'', 2003 BCHRT 39 at para 10-14. Both the reason for the delay and its length are factors, among others, that may be important considerations in determining whether it is in the public interest to accept a late-filed complaint. Please refer to ''Earnshaw v Lilydale Cooperative and UFCW'', Local 1518, 2005 BCHRT 146 at para 19-27. | |||
