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.

Protected Grounds	Protected Areas
	Publications	Public Services & Accommodation	Purchase of Property	Tenancy	Employment Advertisements	Employment	Unions & Associations
Race	v	v	v	v	v	v	v
Colour	v	v	v	v	v	v	v
Ancestry	v	v	v	v	v	v	v
Place of Origin	v	v	v	v	v	v	v
Political Belief	x	x	x	x	v	v	v
Religion	v	v	v	v	v	v	v
Marital Status	v	v	v	v	v	v	v
Family Status	v	v	x	v	v	v	v
Physical or Mental Disability	v	v	v	v	v	v	v
Sex	v	v	v	v	v	v	v
Sexual Orientation	v	v	v	v	v	v	v
Gender Identity or Expression	v	v	v	v	v	v	v
Age	v	v	x	v	v	v	v
Criminal or Summary Conviction	x	x	x	x	x	v	v
Source of Income	x	x	x	v	x	x	x

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. Courts 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.

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.

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”) which applied the three-part “Meiorin” test.

The “Meiorin” test is:

“Identify the general purpose of the impugned standard and determine whether it is rationally connected to the performance of the job.”
“Demonstrate that the employer adopted the particular standard with an honest and good faith belief that it was necessary to the accomplishment of its purpose, with no intention of discriminating against the claimant.”
“Demonstrate that the impugned standard is reasonably necessary for the employer to accomplish its purpose, which by this point has been demonstrated, to be rationally connected to the performance of the job.”

For a recent case that applied the three-part “Meiorin” test, please see Moore v British Columbia (Education) 2012 SCC 61, a Supreme Court of Canada case about a School district cancelling a special education program requiring a dyslexic student to enroll in specialized private school. The court questioned whether the school district discriminated against the student by failing to provide necessary remediation.

British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3, para 57-68.

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

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

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 Kraska v Pennock, 2011 BCSC 109. 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, because all individuals over 19 are protected by the ground of age, individuals in both the public and private sector are able to choose the age at which they wish to retire and are protected from discrimination based on age (s 1, “age”).

Exemption: In the case of discrimination on the basis of disability, Section 13(4) permits discrimination in employment if the basis for discrimination concerns a “bona fide occupational requirement” (BFOR). In British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees' Union, (1999) 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. Please see McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4.

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

The complainant must establish that they are a member of a protected group.
They must establish that they suffered adverse treatment.
They must establish a nexus or connection between their protected status and the adverse treatment.

It is important to note that a claimant 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:

The fundamental purpose of the standard must be rationally connected to the performance of the job.
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.
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 BFOR 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 Associations

Section 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.

Since “persons” are not covered by s 14, protection against denial of membership has been held to apply only against an implicated union, organization, or association and not against an individual. Please refer to Ratsoy v BC Teachers’ Federation 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. General

Prohibited 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 RightsTribunal website, indexed by year, and searchable based on a variety of criteria.

It should be noted that one might file a complaint on a combination of grounds and that discrimination does not need to have been the sole or primary motivating factor to establish a case on a particular ground, as long as discrimination was a contributing factor to the impugned action. Please refer to Kennedy v. British Columbia (Ministry of Energy & Mines), 2000 BCHRT 60 at para 58.

Discrimination need not be intentional. Any policy or action that has an adverse effect on a protected group might be considered discriminatory. Please refer to Ont Human Rights Comm and O’Malley v Simpsons-Sears, [1985] 2 SCR 536 at para 14. The policy or act does not have to affect every person in the group for it to be considered discriminatory. E.g., if a policy discriminates against only women that are pregnant it would still be considered sex discrimination. As well, it is possible that an act or policy may affect men as well as women, but affect one sex to a disproportionate degree, in which case it could also qualify as sex discrimination.

Discrimination can also be established on an “intersectional” basis. This means that the discriminatory action had an adverse impact on the basis of multiple protected grounds, occurring simultaneously, which cannot easily be separated from one another. It is not always necessary to establish that each individual ground has been met where intersectional discrimination can be established. Please refer to Radek v. Henderson Development (Canada) and Securiguard Services (No. 3), 2005 BCHRT 302 at paras 463-467.

If, after reading the HRC, you are still unsure whether the impugned action lies within the ambit of the HRC, contact the B.C. Human Rights Clinic (see Section I.B:Resources).

2. Ancestry, Colour, Place of Origin and Race

The grounds of ancestry, colour, place of origin and race are included in the HRC as a means to combat racism and racial discrimination. Each of the above referenced grounds is protected in the HRC and may be cited individually in connection with a discriminatory incident or grouped together in order to better illustrate a particular situation. For further information on how the above grounds interact, please refer to Torres and others v. Langtry Industries (No 5), 2009 BCHRT 3.

Discrimination on the basis of ancestry, colour, place of origin or race can also be established where the respondent caused harm to the complainant by taking advantage of a vulnerability caused by the complainant's ancestry, colour, place of origin or race. For more information, see PN v. FR and another (No. 2), 2015 BCHRT 60 (CanLII). Please note that this decision is under Judicial Review as of June, 2015. In B.C., the grounds of ancestry, colour, place of origin and race are protected in the areas of employment; employment advertising; membership in a trade union, employer’s organization or occupational association; public services such as schools, government programs, restaurants, and stores; publications; tenancy; and purchase of property.

3. Political Belief

The HRC provides protection from discrimination due to political beliefs and/or affiliations in the areas of employment; employment advertising; and membership in a trade union, employer’s organization or occupational association.

In BC, few human rights cases have been decided on the grounds of political belief and, as such, a comprehensive definition of what constitutes a political belief under the HRC has not been established.

The Tribunal has, however, identified two key principles in determining whether a complainant’s belief should be protected under the HRC:

Political belief is to be given a liberal definition; it is not confined to partisan political beliefs. Hence political beliefs are not limited to beliefs about recognized or registered political parties.
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.

In the 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.

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 court have routinely addressed discriminatory incidents concerning religious faith, beliefs, customs and practices. In B.C., protection from discrimination based on religion is provided in the areas of employment; employment advertising; membership in a trade union, employer’s organization, or occupational association; public services; publications; tenancy and purchase of property. 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 S.C.R. 970.

5. Family Status and Marital Status

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 Teacher’s Federation, 2009 BCHRT 34, para 32.

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 employment; employment advertising; membership in a trade union, employer’s organization, or occupational association; public services; tenancy and publications. Only marital status is protected in the area of purchase of property.

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. Please refer to Boyce v New Westminister (City) (1994), 24 CHRR D/441 at para 50. See Beckett v. Strata Plan NW 2603, 2016 BCHRT 27 at para 120 for a more recent case that refers to Boyce v New Westminister (City)’s definition of physical disability. In Morris v BC Rail, 2003 BCHRT 14, at para 214, the Tribunal set out the following three aspects for assessing whether an individual has a physical or mental disability:*the individual’s physical or mental impairment, if any;

the functional limitations, if any, which result from that impairment; and
the social, legislative or other response to that impairment and/or limitations, assessed in light of the concepts of human dignity, respect and the right to equality.

Furthermore, according to Morris v BC Rail 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 (CanLII) 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 (BCHRT) at para 42.

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 J v London Life Insurance Co at para 46, for example, 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.

Where a behaviour or policy adversely affects a protected group or person, either directly or indirectly, there is a duty to accommodate, meaning that all efforts must be taken to accommodate the group or person to the point of undue hardship. Examples include installing wheelchair access and allowing workers days off on religious holidays. Please refer to Ferguson v Kimpton, 2006 BCHRT 62 at para 68.

An employer’s duty to accommodate involves a substantive aspect as well as a procedural aspect. For instance, an employer who has exhausted all reasonable means of accommodation short of incurring undue hardship would have met their substantive duty to accommodate. What constitutes reasonable measures is a question of fact and will differ from case to case. However, the employer’s conduct may still be found to have failed to comply with the procedural aspect of the duty to accommodate if they treat the complainant unfairly while fulfilling their substantive duty. Please refer to British Columbia (Public Service Employees Relations Commission) v British Columbia Government and Service Employees Union (BCGSEU), [1999] 3 SCR 3 (“Meiorin”), at para 65-66.

7. Sexual Orientation

The HRC prohibits discrimination based on sexual orientation, affording protection for gay men, lesbians, bisexuals, and heterosexuals. The issue of whether or not BDSM is covered under the HRC is an issue raised in one complaint that was dismissed on other grounds. Please see Hayes v. Vancouver Police Department and Barker, 2008 BCCA 148. The same claimant further requested a decision specifically asking whether BDSM is considered a sexual orientation and covered by the HRC. The court did not conclusively decide, rather the court assumed BDSM could be considered under sexual orientation for the purposes of their decision. Please see Hayes v Vancouver Police Board, 2010 BCHRT 324.

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

8. Sex (includes sexual harassment, pregnancy discrimination and transgender 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 harassment”. Please refer to Janzen v Platy Enterprises Ltd, [1989] 1 SCR 1252 at 1284.

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.

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 is sufficient if serious.

The test for whether sexual harassment occurred is 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.” 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. 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.

The Tribunal has also found that transgender discrimination is protected under the ground of sex. Please refer to Nixon v Vancouver Rape Relief Society, 2002 BCHRT 1, para 3 and 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.

9. Age (19 or over)

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.

In each of these areas, age protection is restricted to those 19 years of age and over. However, those under 19 years are still able to bring complaints to the BCHRT based on grounds other than age.

10. 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:

Does the behaviour which formed the basis of the charge, if repeated, compromise the employers’ ability to conduct business safely and effectively?
What were the circumstances and details of the offence, e.g., what was the person’s age at the time of the offence and were there any extenuating factors?
How much time has passed since the charge? What has the individual done since that time and has there been any indication of recidivism? Has there been evidence of the individual’s desire for rehabilitation?

In BC, the HRC extends protection on the basis of a criminal or summary conviction only in the area of employment.

11. Source of Income

In a 1994 amendment to the Residential Tenancy Act, source of income was established as a protected ground of discrimination with regards to rental housing. This amendment safeguards the tenancy rights of individuals on social assistance or disability pensions, who might otherwise be denied safe housing. Enforced by the BCHRT, source of income is a protected ground only in the area of tenancy. Please refer to Tanner and Vlake, 2003 BCHRT 36 at para 22-26 for further discussion.

C. The Complaint Process

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

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

2. How to File a Complaint

The Complaint Form must be filed with the Tribunal via mail, fax or e-mail. Claimants may access the Complaint Form and other valuable resources at the BC Human Rights Tribunal website (see Section II.B: Resources). If filed by e-mail, one must also send in a signed and dated copy within 21 days. The party who is filing the complaint should be aware of the time limits. There is a general six month limitation period, which may be extended under certain circumstances.

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 six-month limitation period. If the Tribunal believes that it may not have the power to deal with the complaint in substance or it is 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 prima facie case of discrimination under the HRC on their initial complaint form. If a prima facie case is not set out then the complaint might not be accepted by the Tribunal. Even if accepted, it could still be vulnerable to an application to dismiss under s 27 of the HRC at a later stage. In order to set out a prima facie case the complainant must allege facts that, on its face, satisfy the following three elements:

They are a member of a protected group;
They suffered adverse treatment;
There is a nexus or connection between their protected status and the adverse treatment.

For greater analysis of this topic please refer to Stone v BC (Ministry of Health) (No. 7), 2007 BCHRT 55 at para 99-111.

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 web site. Additionally, the BC Human Rights Clinic may be able to assist a complainant at a settlement meeting or with settlement negotiations in general.

At a settlement meeting, the Tribunal can make recommendations and provide opinions as to the merits of the case, but cannot force parties to settle. Parties to the dispute may agree to voluntarily settle, in which case the complainant will file a Complaint Withdrawal Form as part of the terms of settlement.

D. Procedural Options for Employees

The HRC is a particularly useful tool for seeking redress for a client who has been discriminated against in employment situations. Since the B.C. 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 a client who cannot afford a lengthy wrongful dismissal suit. Additionally, claimants may choose to pursue a wrongful dismissal suit alongside a human rights complaint. Complainants 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:

a) Employer’s Internal Complaint Procedure

Assuming one exists, this is the most immediate way to obtain a remedy. There is typically a heavy burden on the employee however; as witnesses may be reluctant to come forward and legal counsel is usually not retained at this stage.

b) 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 speaking, it will not be enough for a breach of the Code where the allegation is that the union has not adequately represented the employee, the union must have engaged in the discrimination. However, initiating the grievance procedure is a best first option, followed by 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.

c) Human Rights Complaint

Another option is, of course, to file a human rights complaint with the B.C. Human Rights Tribunal (see above for the grounds, areas, exemptions, and complaint process, etc.) or, under federal jurisdiction, with the Canadian Human Rights Commission (see below for the grounds, areas, exemptions, and process, etc). The Tribunal can also award lost wages and damages for injury to dignity. However, note that if a complainant is also seeking severance pay and/or punitive damages in a civil suit, they will not be allowed to recover from both proceedings.

d) Employment Standards Branch

Employees may choose to file a complaint through the Employment Standards Branch (ESB) self-help kit if their employer has breached the Employment Standards Act (see Chapter 9: Employment Law). There is a six-month limitation period from the date of the breach and once a complaint has been filed with the ESB, the complainant is barred from initiating a court action on 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. If the complainant is seeking reinstatement they should consider pursuing the issue through the Human Rights Tribunal. It is important to note though, that the ESB does not deal with alleged discrimination.

e) Civil Action

A final option is to bring a civil action for wrongful dismissal either in Small Claims Court (see Chapter 20: Small Claims) or BC Supreme Court, depending on the amounts claimed. However, a recent Supreme Court 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, 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 Code itself. So even if the reason for dismissal was discriminatory, in a civil action, the complainant will generally only be able to recover damages based on an unjustified dismissal and/or inadequate notice (severance pay). See Chapter 9: Employment Law. Accordingly, compensation for the discrimination itself must proceed before the Tribunal.

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 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 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 complainant 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, if an 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.

E. Remedies

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 s 37(2) of the HRC.

Non-pecuniary 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. Clients seeking advice on crafting should be directed to The B.C. Human Rights Tribunal website, which provides detailed information on the availability and applicability of specific remedies (see Section I.B:Resources).

Pecuniary 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 complainant 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, but that case is being judicially reviewed. Most damages in this category are under $10,000. It is difficult to predict what level of damages the tribunal will award as it depends on many factors on a case by case basis.

Remember, to claim any type of damage you must be sure to lead evidence. If you fail to lead strong evidence as to the effect discrimination had on your emotional state and dignity, the Tribunal may not find any damage. Failure to mitigate one’s losses can lead to the loss of a complainant’s entitlement to wage loss compensation provided that the respondent is able to prove that the complainant has failed to mitigate his or her losses. Refer to Cassidy v Emergency and Health Services Commission and another (No3), 2009 BCHRT 110 at para 34.

There is no maximum limit on damage awards. Note however that if a complainant seeks a remedy in both the Human Rights Tribunal (e.g. for lost wages) and in civil court (e.g. for severance pay) and are successful in both proceedings they must forfeit one award or the other 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.

The pecuniary remedies available under the HRC are meant to be compensatory in nature, not punitive, s 37(4) does give 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, s 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 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 but during a period for which the complainant 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 complainant would not have been able to earn wages or a salary.

A final order of the Tribunal may be registered in the B.C. 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 a client is dissatisfied with the Tribunal’s decision (see Chapter 5: Public Complaint Procedures).

F. Costs

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.

G. 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.

H. 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.