LSLAP's Role in Human Rights Proceedings (6:VII)
A. Federal and Provincial Legislation
The first step when faced with a human rights issue is to determine whether the provincial legislation, the BC Human Rights Code (HRC), applies or whether the problem falls within federal jurisdiction under the Canadian Human Rights Act (CHRA). Section 91 of the Constitution Act, 1867((UK), 30 & 31 Victoria, c 3 reprinted in RSC 1985, App II, No 5) lists out the bodies that fall under federal jurisdiction which include chartered banks, entities engaged in inter-provincial transportation, media broadcasting, or mining and First Nations issues. Section 92 of the Constitution Act, 1867 ((UK), 30 & 31 Victoria, c 3 reprinted in RSC 1985, App II, No 5) on the other hand, lists out the bodies that fall under provincial jurisdiction which includes property and civil rights in the province as well as generally all matters of a merely local or private nature in the province. In either case, because human rights legislation is considered to be “quasi-constitutional” in nature, the legislation must be given a liberal and purposive interpretation to advance the broad policy implications underlying it. The Canadian Human Rights Commission (CHRC) has a useful assessment tool that can assist in determining if an entity falls under federal jurisdiction. It can be found at http://www.chrc-ccdp.gc.ca/eng/content/complaint_assessment_tool. This tool is not always accurate so if an entity is not found there but you have reason to believe that the entity is federal follow up with further inquiries and analysis.
In the case that a complaint is covered by the HRC, the matter will be before the British Columbia Human Rights Tribunal (BC HRT). Conversely, if the complaint is covered by federal legislation, the matter would be handled by the CHRC. Human rights matters taking place in BC will tend to fall under the provincial legislation. However, if the complaint against the respondent is based on an action they undertook in their capacity as an agent or employee of a body that falls under federal jurisdiction, then that complaint would actually be governed by federal legislation. Examples of some industries that are federally regulated and therefore fall within the federal human rights jurisdiction are:
- Banking – but not credit unions.
- Telecommunications (internet, television and radio) – but not call centres.
- Transportation that crosses provincial or international boundaries (airlines, trains, moving companies, couriers).
B. LSLAP’s Role in Provincial and Federal Proceedings
In provincial proceedings clinicians may assist clients in completing the Complaint or Response Forms at the initial stages. Beyond this, LSLAP’s role is usually limited to less complex cases where the scheduled hearing is set for two days or fewer. Where LSLAP cannot help directly, we can refer complainants to the B.C. Human Rights Clinic who may be able to assist low-income, or disabled persons who cannot represent themselves in all aspects of their human rights matter if they qualify for services.
The BC Human Rights Clinic will take applications for assistance made within thirty days after a complaint has been accepted for filing. However, there may be more limited assistance available for those who are applying beyond the thirty days. In the federal system the Canadian Human Rights Commission [CHRC] has been set up to assist individuals to draft complaints and facilitate mediation. Students should therefore refer clients to the CHRC for assistance, though they can remain involved in the process by providing representation at mediation. To read more about the federal Human Rights system see Section IV: The Canadian Human Rights Act.