BC Human Rights Code (6:III): Difference between revisions
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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. | 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 WagesSection 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 34for 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 A ccommodate 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 | |||
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