Difference between revisions of "BC Human Rights Code (6:III)"

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'''Exception:''' Section 7 does '''not''' apply to communications that are intended to be private and are related to activities otherwise permitted under the ''HRC'', see e.g. ''Li'' at paras 98–104.
'''Exception:''' Section 7 does '''not''' apply to communications that are intended to be private and are related to activities otherwise permitted under the ''HRC'', see e.g. ''Li'' at paras 98–104.


=== 2. Discrimination in Facilities “Customarily Available to the Public” ===
=== 2. Discrimination in Accommodations, Services and 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, family status, physical or mental disability, sex, sexual orientation, gender identity or expression and/or age.  
Section 8 states that a person may not deny or discriminate against any person or class of persons regarding an accommodation, service, or facility customarily available to the public because of that person’s race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression and/or age.  


''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1006/index.do University of British Columbia v Berg]'', [1993] 2 SCR 353 at 384–387 [Berg] 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 complainant, as well as the nature of the service itself. In ''Berg'', the court found that a university has 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 ''[https://www.canlii.org/en/bc/bcsc/doc/2009/2009bcsc180/2009bcsc180.html HMTQ v McGrath]'', 2009 BCSC 180 at paras 89–93 for a more recent case that cites the definition for what is “customarily available to the public”.  
''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1006/index.do University of British Columbia v Berg]'', [1993] 2 SCR 353 at 384–387 [Berg] 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 complainant, as well as the nature of the service itself. In ''Berg'', the court found that a university has 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 ''[https://www.canlii.org/en/bc/bcsc/doc/2009/2009bcsc180/2009bcsc180.html HMTQ v McGrath]'', 2009 BCSC 180 at paras 89–93 for a more recent case that cites the definition for what is “customarily available to the public”.  
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Legislation is not a “service customarily available to the public” and bare challenges to legislation can’t proceed at the HRT, see e.g. ''[https://www.canlii.org/en/bc/bchrt/doc/2019/2019bchrt76/2019bchrt76.html?resultIndex=1 Phillips v BC Ministry of the Attorney General]'', 2019 BCHRT 76 at paras 11–12.
Legislation is not a “service customarily available to the public” and bare challenges to legislation can’t proceed at the HRT, see e.g. ''[https://www.canlii.org/en/bc/bchrt/doc/2019/2019bchrt76/2019bchrt76.html?resultIndex=1 Phillips v BC Ministry of the Attorney General]'', 2019 BCHRT 76 at paras 11–12.


For a recent case setting out the three-part test for prima facie discrimination, see ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/12680/index.do Moore v British Columbia (Education)]'', 2012 SCC 61, a Supreme Court of Canada case about a school district that cancelled a special education program, requiring a dyslexic student to enroll in specialized private school. The Supreme Court of Canada reviewed whether the school district discriminated against the student by failing to provide necessary remediation, and ultimately restored the BC Human Rights Tribunal’s finding of discrimination.
For a recent case setting out the three-part test for prima facie discrimination in a services context, see ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/12680/index.do Moore v British Columbia (Education)]'', 2012 SCC 61, a Supreme Court of Canada case about a school district that cancelled a special education program, requiring a dyslexic student to enroll in specialized private school. The Supreme Court of Canada reviewed whether the school district discriminated against the student by failing to provide necessary accommodation, and ultimately upheld the BC Human Rights Tribunal’s finding of discrimination.


Moore confirmed the test for prima facie discrimination, also known as the “complainant’s case” (on the move away from Latin in human rights cases, see ''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt9/2018bchrt9.html?resultIndex=1 Vik v Finamore (No. 2)]'', 2018 BCHRT 9 at para. 48-50). To succeed in their complaint, a complainant must show:
Moore confirmed the test for prima facie discrimination, also known as the “complainant’s case” (on the move away from Latin in human rights cases, see ''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt9/2018bchrt9.html?resultIndex=1 Vik v Finamore (No. 2)]'', 2018 BCHRT 9 at para. 48-50). To succeed in their complaint, a complainant must show:
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# That their protected characteristic was a factor in the adverse impact they experienced. This is also known as the “nexus”.
# That their protected characteristic was a factor in the adverse impact they experienced. This is also known as the “nexus”.


'''Defences:''' If a complainant can prove the three elements of their case set out above, the burden shifts to the respondent to justify their conduct. There are a number of circumstances where adverse treatment on the basis of a protected characteristic is not discrimination, if it can be shown to be supported by a “''bona fide'' and reasonable justification” (BFRJ) (as per the wording of section 8(1)). For the most authoritative perspective, see ''Grismer'', which applied the three-part ''Meiorin'' test from the Supreme Court of Canada in an attempt to justify a discriminatory standard by raising a ''BFRJ''. This attempt was unsuccessful (see also Subsection 6: Discrimination in Employment and the Duty to Accommodate).
'''Defences:''' If a complainant can prove the three elements of their case set out above, the burden shifts to the respondent to justify their conduct. There are a number of circumstances where adverse treatment on the basis of a protected characteristic is not discrimination, if it can be shown to be supported by a “''bona fide'' and reasonable justification” (BFRJ) (as per the wording of section 8(1)). For the most authoritative perspective, see ''Grismer'', which applied the three-part ''Meiorin'' test from the Supreme Court of Canada in an attempt to justify a discriminatory standard by raising a BFRJ. This attempt was unsuccessful (see also Subsection 6: Discrimination in Employment and the Duty to Accommodate).
The respondent must justify the standard by satisfying three elements:
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;
# It adopted the standard for a purpose or goal that is rationally connected to the function being performed
# 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; and  
# It adopted the standard in good faith, in the belief that it is necessary for the fulfillment for the purpose or goal; and
# The standard is reasonably necessary to performing the job and it is impossible to accommodate the specific claims of the plaintiff without the employer incurring undue hardship.
# The standard is reasonably necessary to accomplish its purpose or goal, in the sense that the defendant cannot accommodate persons with the characteristics of the claimant without incurring undue hardship




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'''Defences:''' Although the text of sections 9 and 10 do not contain language specifically providing for a defence to a claim of discrimination under these provisions, like all respondents, landlords and property sellers may be able to justify ''prima facie'' discrimination if they can satisfy the three elements of the ''Grismer/Meiorin'' test. This will require that they accommodated the complainant to the point of undue hardship.
'''Defences:''' Although the text of sections 9 and 10 do not contain language specifically providing for a defence to a claim of discrimination under these provisions, like all respondents, landlords and property sellers may be able to justify ''prima facie'' discrimination if they can satisfy the three elements of the ''Grismer/Meiorin'' test. This will require that they accommodated the complainant to the point of undue hardship.


'''Exceptions:''' This section does not apply if the tenant is sharing any sleeping, bathroom, or cooking facilities with the person making the representation (e.g. as a roommate). Furthermore, the reserving of specific residences for individuals aged 55 or older or for people with disabilities does not constitute discrimination (HRC, s 10(2)(b) and (c)).  
'''Exceptions:''' Section 10(2)(a) says the protection from discrimination in tenancy does not apply if the tenant is sharing the use of any sleeping, bathroom, or cooking facilities with the person making the representation (e.g. as a roommate). Furthermore, the reserving of specific residences for individuals aged 55 or older or for people with disabilities does not constitute discrimination (HRC, s 10(2)(b) and (c)).  


=== 4. Discrimination in Employment Advertisements and Interviews ===
=== 4. Discrimination in Employment Advertisements and Interviews ===
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=== 6. Discrimination in Employment and the Duty to Accommodate ===
=== 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, gender identity or expression, age, and/or because that person has a criminal record that is unrelated to the employment. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2010/2010bchrt13/2010bchrt13.html Ratzlaff v Marpaul Construction Ltd]'', 2010 BCHRT 13 for one example of an employment case. This section might extend to volunteers depending on the circumstances (''Nixon''). When determining whether a volunteer is captured under the definition of “employee” in the HRC, the Tribunal will consider the following:  
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, gender identity or expression, age, and/or because that person has a criminal record that is unrelated to the employment. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2010/2010bchrt13/2010bchrt13.html Ratzlaff v Marpaul Construction Ltd]'', 2010 BCHRT 13 for one example of an employment case. This section might extend to volunteers depending on the circumstances (''Nixon''). When determining whether a volunteer is captured by this section of the HRC, the Tribunal will consider the following:  


#If there is a formal process to recruit volunteers;
#If there is a formal process to recruit volunteers;
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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 (HRC, s 1).
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 (HRC, s 1).


Section 44(2) also clarifies that an employer is responsible for the actions of their employees, and under the code said employee’s actions will be considered the employer’s actions.
Section 44(2) also clarifies that an employer is responsible for the actions of their employees, and an employee’s actions will be considered the employer’s actions.


'''Bona Fide Occupational Requirement (BFOR) Defence''': If a complainant proves the three elements of their case set out in ''Moore'', the burden shifts to the respondent to justify their conduct. Adverse treatment on the basis of a protected characteristic may be justified when it relates to a “''bona fide'' occupational requirement” (BFOR): see s. 13(4). In ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1724/index.do British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees' Union]'', [1999] 3 SCR 3 at para 54 [''Meiorin''], the Supreme Court of Canada established a three-part test for establishing a BFOR.  
'''''Bona Fide'' Occupational Requirement (BFOR) Defence''': If a complainant proves the three elements of their case set out in ''Moore'', the burden shifts to the respondent to justify their conduct. Adverse treatment on the basis of a protected characteristic may be justified when it relates to a “''bona fide'' occupational requirement” (BFOR): see s. 13(4). In ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1724/index.do British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees' Union]'', [1999] 3 SCR 3 at para 54 [''Meiorin''], the Supreme Court of Canada established a three-part test for establishing a BFOR.  
# The employer adopted the standard for a purpose rationally connected to the performance of the job;
# The employer adopted the standard for a purpose rationally connected to the performance of the job;
# The employer adopted the particular standard with an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
# The employer adopted the particular standard with an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
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Prohibited grounds of discrimination include race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, age (for those 19 and over), 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 sections 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. Please refer to the helpful chart on page 6-3 above.  
Prohibited grounds of discrimination include race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, age (for those 19 and over), 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 sections 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. Please refer to 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 BC Human Rights Tribunal website ([http://www.bchrt.bc.ca/law-library/decisions www.bchrt.bc.ca/law-library/decisions]), indexed by year, and searchable based on a variety of criteria. The decisions are also available on CanLII BC.  
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 BC Human Rights Tribunal website ([http://www.bchrt.bc.ca/law-library/decisions www.bchrt.bc.ca/law-library/decisions]), indexed by year, and is also available on CanLII BC.  


It should be noted that a complainant might file a complaint on a combination of grounds. A prohibited ground does not need to have been the sole or primary motivating factor behind the discrimination; it need only have been one contributing factor.  Please refer to ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15471/index.do Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc (Bombardier Aerospace Training Center)]'', 2015 SCC 39 at paras 45-52.  
It should be noted that a complainant might file a complaint on a combination of grounds. A prohibited ground does not need to have been the sole or primary motivating factor behind the discrimination; it need only have been one contributing factor.  Please refer to ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15471/index.do Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc (Bombardier Aerospace Training Center)]'', 2015 SCC 39 at paras 45-52.  
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* employment advertising and employment, and  
* employment advertising and employment, and  
* membership in a trade union, employer’s organization or occupational association.
* membership in a trade union, employer’s organization or occupational association.
A claimant must show that their religious belief or practice is sincere, but not that it is objectively required or recognized by a particular religious faith. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2009/2009bchrt1/2009bchrt1.html Friesen v Fisher Bay Seafood Limited]'', 2009 BCHRT 1, at para 57. Atheism is encompassed within the protected ground of religion:  ''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt281/2018bchrt281.html?resultIndex=1 Mangel and Yasué obo Child A v. Bowen Island Montessori School and others]'', 2018 BCHRT 281 at para 210: ''[https://www.canlii.org/en/ca/scc/doc/2015/2015scc16/2015scc16.html Mouvement laïque québécois v Saguenay (City)]'', 2015 SCC 16 at para 70; ''[https://www.canlii.org/en/ca/scc/doc/2012/2012scc7/2012scc7.html SL v Commission scolaire des Chênes]'', 2012 SCC 7 at para 32; ''[https://www.canlii.org/en/ca/scc/doc/1985/1985canlii69/1985canlii69.html?resultIndex=1 R v Big M Drug Mart Ltd]'', [1985] 1 SCR at 314)
Section 2a of the ''[https://www.canada.ca/en/canadian-heritage/services/how-rights-protected/guide-canadian-charter-rights-freedoms.html Charter]'' protects the freedom of conscience and religion. A claimant must show that their religious belief or practice is sincere, but not that it is objectively required or recognized by a particular religious faith. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2009/2009bchrt1/2009bchrt1.html Friesen v Fisher Bay Seafood Limited]'', 2009 BCHRT 1, at para 57. Atheism is encompassed within the protected ground of religion:  ''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt281/2018bchrt281.html?resultIndex=1 Mangel and Yasué obo Child A v. Bowen Island Montessori School and others]'', 2018 BCHRT 281 at para 210: ''[https://www.canlii.org/en/ca/scc/doc/2015/2015scc16/2015scc16.html Mouvement laïque québécois v Saguenay (City)]'', 2015 SCC 16 at para 70; ''[https://www.canlii.org/en/ca/scc/doc/2012/2012scc7/2012scc7.html SL v Commission scolaire des Chênes]'', 2012 SCC 7 at para 32; ''[https://www.canlii.org/en/ca/scc/doc/1985/1985canlii69/1985canlii69.html?resultIndex=1 R v Big M Drug Mart Ltd]'', [1985] 1 SCR at 314)


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 ''[https://www.canlii.org/en/ca/scc/doc/1992/1992canlii81/1992canlii81.html Renaud v Central Okanagan School District No 23]'', [1992] 2 SCR 970 at para 982.  
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 ''[https://www.canlii.org/en/ca/scc/doc/1992/1992canlii81/1992canlii81.html Renaud v Central Okanagan School District No 23]'', [1992] 2 SCR 970 at para 982.  
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In BC, the grounds of family and marital status are protected in the areas of publication, public services, tenancy, employment advertising, employment, and membership in a trade union, employer’s organization, or occupational association. Family status is not protected in the area of purchase of property, meaning adult-only buildings and stratas are permitted.
In BC, the grounds of family and marital status are protected in the areas of publication, public services, tenancy, employment advertising, employment, and membership in a trade union, employer’s organization, or occupational association. Family status is not protected in the area of purchase of property, meaning adult-only buildings and stratas are permitted.


The law regarding the test that applies in the context of family status discrimination cases involving childcare obligations is unsettled in Canada. In BC, the present test for family status discrimination in employment is set out in ''[https://www.canlii.org/en/bc/bcca/doc/2004/2004bcca260/2004bcca260.html Health Sciences Assn of British Columbia v Campbell River and North Island Transition]'', 2004 BCCA 260 [''Campbell River''] at para 39. Per that test, in order to establish discrimination on the basis of family status, the complainant must show:
The ground of family status also protects people from discrimination in respect of their childcare, and possibly other family care obligations. The law regarding the test that applies in the context of family status discrimination cases involving childcare obligations is unsettled in Canada. In BC, the present test for family status discrimination in employment is set out in ''[https://www.canlii.org/en/bc/bcca/doc/2004/2004bcca260/2004bcca260.html Health Sciences Assn of British Columbia v Campbell River and North Island Transition]'', 2004 BCCA 260 [''Campbell River''] at para 39. Per that test, in order to establish discrimination on the basis of family status, the complainant must show:


# A change in a term or condition of employment imposed by the employer; and
# A change in a term or condition of employment imposed by the employer; and
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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 the harassment” (''[https://www.canlii.org/en/ca/scc/doc/1989/1989canlii97/1989canlii97.html Janzen v Platy Enterprises Ltd]'', [1989] 1 SCR 1252 at 1284 [''Janzen'']).
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 the harassment” (''[https://www.canlii.org/en/ca/scc/doc/1989/1989canlii97/1989canlii97.html Janzen v Platy Enterprises Ltd]'', [1989] 1 SCR 1252 at 1284 [''Janzen'']).


In ''[https://www.canlii.org/en/bc/bchrt/doc/2015/2015bchrt60/2015bchrt60.html PN v FR]'' ''and another (No 2)'', 2015 BCHRT 60, the HRT awarded $50,000 for injury to dignity to a domestic foreign worker who was sexually harassed and assaulted. This is the second highest injury to dignity award the Tribunal has ever ordered. This case also involved allegations of discrimination based on family status, race, age, colour, and place of origin.  
In ''[https://www.canlii.org/en/bc/bchrt/doc/2015/2015bchrt60/2015bchrt60.html PN v FR]'' ''and another (No 2)'', 2015 BCHRT 60, the HRT awarded $50,000 for injury to dignity to a domestic foreign worker who was sexually harassed and assaulted. This is among the highest injury to dignity award the Tribunal has ever ordered. 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 may be sufficient if it is egregious.  
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 make an internal complaint to their employer before filing a complaint, although this may be relevant to the compensation the employer is ordered to pay if the complaint is successful. There is also no requirement of continuing harassment; a single incident may be sufficient if it is sufficiently egregious.  


Whether the conduct was “unwelcome” is assessed on an objective standard: would a reasonable person have known that the conduct was unwelcome? If the respondent knew or ought to have known that the conduct was unwelcome, this part of the test is made out. A target of harassment is not required to expressly object to the conduct for it to be reasonably understood to be unwelcome.
Whether the conduct was “unwelcome” is assessed on an objective standard: would a reasonable person have known that the conduct was unwelcome? If the respondent knew or ought to have known that the conduct was unwelcome, this part of the test is made out. A target of harassment is not required to expressly object to the conduct for it to be reasonably understood to be unwelcome. The law recognizes that a person's behavior "may be tolerated and yet unwelcome at the same time" (''[https://www.canlii.org/en/bc/bchrt/doc/1999/1999bchrt56/1999bchrt56.html Mahmoodi v. University of British Columbia and Dutton]'', 1999 BCHRT 56 at para 140)


It must also be shown that the alleged discriminatory conduct is “reasonably perceived to create a negative psychological and emotional environment for work” (''Janzen'' at 1263). The test must also take into account the customary boundaries of social interaction in the circumstances. 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.  
It must also be shown that the alleged discriminatory conduct is “reasonably perceived to create a negative psychological and emotional environment for work” (''Janzen'' at 1263). The test must also take into account the customary boundaries of social interaction in the circumstances. 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.  
Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2004/2004bchrt76/2004bchrt76.html 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. In ''Lund v Vernon Women’s Transition House Society'', 2004 BCHRT 26, the Tribunal found that an employer’s refusal to allow a female employee to breastfeed her child at work could also constitute sex discrimination.


For a more recent case involving discrimination on the basis of sex, and more specifically sexual harassment in the employment context, see ''[https://www.canlii.org/en/bc/bchrt/doc/2019/2019bchrt97/2019bchrt97.html Araniva v RSY Contracting and another (No. 3)]'', 2019 BCHRT 97.  
For a more recent case involving discrimination on the basis of sex, and more specifically sexual harassment in the employment context, see ''[https://www.canlii.org/en/bc/bchrt/doc/2019/2019bchrt97/2019bchrt97.html Araniva v RSY Contracting and another (No. 3)]'', 2019 BCHRT 97.  


There are also ecamples of cases involving sex discrimination that did not amount to sexual harassment. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2004/2004bchrt76/2004bchrt76.html 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. In ''Lund v Vernon Women’s Transition House Society'', 2004 BCHRT 26, the Tribunal found that an employer’s refusal to allow a female employee to breastfeed her child at work could also constitute sex discrimination. See also ''[https://www.canlii.org/en/bc/bchrt/doc/2021/2021bchrt5/2021bchrt5.html The Sales Associate v Aurora Biomed Inc. and others (No. 3)]'', 2021 BCHRT 5.


=== 9. Gender Identity or Expression ===
=== 9. Gender Identity or Expression ===
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== E. The Process for Human Rights Complaints ==
== E. The Process for Human Rights Complaints ==


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.
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. It is also possible to file the complaint online on the Tribunal's website. There are helpful self-help guides to filling out complaint and response forms on the Tribunal’s website.


=== 1. Who Can Lodge a Complaint? ===
=== 1. Who Can Lodge a Complaint? ===
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=== 2. How to File a Complaint ===
=== 2. How to File a Complaint ===


The Complaint Form must be filed with the Tribunal via mail, fax, or e-mail. As of July 2020, online filing is also an option. Complainants may access the Complaint Form and other valuable resources at the BC Human Rights Tribunal website (see '''Section II.B: Resources'''). The party filing the complaint should be aware of the time limits. There is a general one-year limitation period, which may be extended under certain very limited circumstances.  
The Complaint Form must be filed with the Tribunal via mail, fax, or e-mail. As of July 2020, online filing is also an option. Complainants may access the Complaint Form and other valuable resources at the BC Human Rights Tribunal website (see '''Section II.B: Resources'''). The party filing the complaint should be aware of the time limits. There is a '''one-year''' limitation period. Late-filed complaints may be accepted under certain very limited circumstances.  


=== 3. Review Process ===
=== 3. Review Process ===
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For greater analysis of this topic please refer to ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15471/index.do Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc (Bombardier Aerospace Training Center)]'', 2015 SCC 39; and ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/12680/index.do Moore v British Columbia (Education)]'', 2012 SCC 61.
For greater analysis of this topic please refer to ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15471/index.do Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc (Bombardier Aerospace Training Center)]'', 2015 SCC 39; and ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/12680/index.do Moore v British Columbia (Education)]'', 2012 SCC 61.


A complainant is not required to provide evidence at the time they file their complaint. The complaint form simply needs to tell the story, identify all the allegations of discriminatory treatment, and satisfy the three criteria set above.


=== 4. Settlement Meeting ===
=== 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 website. At the settlement meeting, a neutral and impartial mediator who is knowledgeable in human rights law will work with the parties in order to help them try to reach an agreement. This process allows for quicker resolution of the issue in a more informal setting, where information is kept confidential. The process is voluntary and the Tribunal cannot force the parties to enter into a settlement agreement. If the parties do voluntarily agree to settle their dispute, as part of the terms of settlement, the complainant will file a Complaint Withdrawal Form.  
'''Parties may agree to a settlement meeting at any time after the complaint has been filed.''' The Tribunal schedules an Early Settlement Meeting after accepting the complaint for filing, which the parties can opt out of if they choose. Most human rights complaints settle, either through a settlement meeting or direct negotiations between the parties or their counsel. Guides for settlement meetings and hearings are available from the Tribunal at its office address or on its website. At the settlement meeting, a neutral and impartial mediator who is knowledgeable in human rights law will work with the parties in order to help them try to reach an agreement. This process allows for quicker resolution of the issue in a more informal setting, where information is kept confidential. The process is voluntary and the Tribunal cannot force the parties to enter into a settlement agreement. If the parties do voluntarily agree to settle their dispute, as part of the terms of settlement, the complainant will file a Complaint Withdrawal Form.  


=== 5. Exceptions ===
=== 5. Exceptions ===


Due to the COVID-19 Pandemic, there is now a new process for processing mask wearing complaints in the BC HRT. BC declared a state of emergency on March 18th 2020 due to the pandemic, and therefore the 1 year time limit to file a complaint may be extended but you must ecplain this on the complaint form. If the complaint is urgent, the tribunal may be notified by email or letter, or by application for a fast track process.  
Due to the COVID-19 Pandemic, there is now a new process for processing mask wearing complaints in the BC HRT. BC declared a state of emergency on March 18th 2020 due to the pandemic. This did not extend the 1 year time limit to file a complaint but someone who misses the time limit may explain that their delay was caused by the pandemic on the complaint form and the tribunal will consider it. If the complaint is urgent, a complainant may request a fast track process.  


To be eligible for fast track, you must show that fast tracking or changing the process will help get to a “just and timely resolution” of the complaint.  
To be eligible for a fast track, you must show that fast tracking or changing the process will help get to a “just and timely resolution” of the complaint.  


The tribunal encourages people to solve any mask wearing complaints by talking to the service provider by sending them information about the public order requiring masks, and guidance from the Office of the Human Rights Commissioner and WorkSafe BC.  
The tribunal encourages people to solve any mask wearing complaints by talking to the service provider or by sending them information about the public order requiring masks, and guidance from the Office of the Human Rights Commissioner and WorkSafe BC.  


A case manager will ask the parties if they want to try to resolve the complaint quickly and informally. If so, the case manager will help the parties do this. If not, the Tribunal will put the complaint through the regular process.  
A case manager will ask the parties if they want to try to resolve the complaint quickly and informally. If so, the case manager will help the parties do this. If not, the Tribunal will put the complaint through the regular process.  
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'''Non-pecuniary (not financial) 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. People seeking advice on drafting should be directed to the BC Human Rights Tribunal website, which provides detailed information on the availability and applicability of specific remedies (see '''Section II.B: Resources''').  
'''Non-pecuniary (not financial) 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. People seeking advice on drafting should be directed to the BC Human Rights Tribunal website, which provides detailed information on the availability and applicability of specific remedies (see '''Section II.B: Resources''').  


'''Pecuniary (financial) 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 claimant 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, and the tribunal has made it clear that the trend for such damages is upwards (see ''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt174/2018bchrt174.html Biggings obo Walsh v Pink and others]'', 2018 BCHRT 174 [''Walsh'']). Currently the highest award in BC is $75,000 (''[https://www.canlii.org/en/bc/bcca/doc/2016/2016bcca271/2016bcca271.html University of British Columbia v Kelly]'', 2016 BCCA 271).  However, most damages in this category are under $10,000. It is difficult to predict what level of damages the tribunal will award, as this determination depends on many factors, which are assessed on a case by case basis (see e.g. ''Walsh''). Importantly, while injury to dignity awards commonly follow in cases where discrimination is established, this is not guaranteed, as seen in ''[https://www.canlii.org/en/bc/bchrt/doc/2012/2012bchrt28/2012bchrt28.html Holt v Coast Mountain Bus Company]'', 2012 BCHRT 28 at para 233. For further information regarding compensation for injury to dignity, feelings, and self-respect, please visit  http://www.bchrt.gov.bc.ca/human-rights-duties/remedies/compensation/index.htm
'''Pecuniary (financial) remedies include''': compensation for lost wages/salary, expenses incurred due to the discrimination, 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 claimant 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.
 
The purpose of an award for injury to dignity is to compensate a person whose rights under the ''Code'' have been violated. It is not to punish a respondent. Damages awarded for injuries to dignity have increased over the last decade, and the tribunal has made it clear that the trend for such damages is upwards (see ''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt174/2018bchrt174.html Biggings obo Walsh v Pink and others]'', 2018 BCHRT 174 [''Walsh'']). Currently the highest award in BC is $176,000 (''[https://www.canlii.org/en/bc/bchrt/doc/2021/2021bchrt16/2021bchrt16.html Francis v BC Ministry of Justice (No.5)]'', 2021 BCHRT 16).  However, most damages in this category are under $10,000. The BC Human Rights Clinic has a compiled list of awards given by the HRT, sorted by ground, updated quarterly and available [https://bchrc.net/legal-information/remedies/ here]. It is difficult to predict what level of damages the tribunal will award, as this determination depends on many factors, which are assessed on a case by case basis (see e.g. ''Walsh''). The Tribunal generally considered three broad factors: The nature of the violation, the complainant's vulnerability, and the effect on the complainant: ''[https://www.canlii.org/en/bc/bchrt/doc/2011/2011bchrt185/2011bchrt185.html Gichuru v The Law Society of British Columbia (No. 9)]'', 2011 BCHRT 185 at para. 260, upheld in 2014 BCCA 396). Importantly, while injury to dignity awards commonly follow in cases where discrimination is established, this is not guaranteed, as seen in ''[https://www.canlii.org/en/bc/bchrt/doc/2012/2012bchrt28/2012bchrt28.html Holt v Coast Mountain Bus Company]'', 2012 BCHRT 28 at para 233. For further information regarding compensation for injury to dignity, feelings, and self-respect, please visit  http://www.bchrt.gov.bc.ca/human-rights-duties/remedies/compensation/index.htm


Remember, to claim any type of damage, the claimant must lead evidence. If the claimant fails to lead strong evidence as to the effect the discrimination had on their emotional state and dignity, the Tribunal may not find any damage. If the respondent is able to prove that the claimant has failed to mitigate their losses, the failure to mitigate one’s losses can lead to the loss of a claimant’s entitlement to wage loss compensation.
Remember, to claim any type of damage, the claimant must lead evidence. If the claimant fails to lead strong evidence as to the effect the discrimination had on their emotional state and dignity, the Tribunal may not find any damage. If the respondent is able to prove that the claimant has failed to mitigate their losses, the failure to mitigate one’s losses can lead to the loss of a claimant’s entitlement to wage loss compensation.
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There is no maximum limit on damage awards. Note, however that if a claimant seeks a remedy at both the Human Rights Tribunal (e.g. for lost wages) and in civil court (e.g. for severance pay), and is successful with both proceedings, they must forfeit one of the awards, 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 ''[https://www.canlii.org/en/bc/bcca/doc/2016/2016bcca271/2016bcca271.html Kelly]'' and ''[https://www.canlii.org/en/bc/bchrt/doc/2009/2009bchrt196/2009bchrt196.html Kerr]''.  
There is no maximum limit on damage awards. Note, however that if a claimant seeks a remedy at both the Human Rights Tribunal (e.g. for lost wages) and in civil court (e.g. for severance pay), and is successful with both proceedings, they must forfeit one of the awards, 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 ''[https://www.canlii.org/en/bc/bcca/doc/2016/2016bcca271/2016bcca271.html Kelly]'' and ''[https://www.canlii.org/en/bc/bchrt/doc/2009/2009bchrt196/2009bchrt196.html Kerr]''.  


The pecuniary remedies available under the HRC are meant to be compensatory in nature, not punitive. Section 37(4) of the HRC gives 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, section 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.  
Section 37(4) of the HRC gives the Tribunal authority to order costs against either party as condemnation of improper conduct during the Tribunal processes. Additionally, section 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 during a period for which the claimant was medically incapable of working. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2008/2008bchrt376/2008bchrt376.html Senyk v WFG Agency Network (No 2)]'', 2008 BCHRT 376 at para 434. This is because, even absent the discrimination, the claimant would not have been able to earn wages or a salary.
The Tribunal may 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 during a period for which the claimant was medically incapable of working. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2008/2008bchrt376/2008bchrt376.html Senyk v WFG Agency Network (No 2)]'', 2008 BCHRT 376 at para 434. This is because, even absent the discrimination, the claimant would not have been able to earn wages or a salary. But see ''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt238/2018bchrt238.html Eva obo others v Spruce Hill Resort and another]'', 2018 BCHRT 238 at para 214.  


A final order of the Tribunal may be registered in the BC 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; individuals dissatisfied with the Tribunal’s decision must seek judicial review in BC Supreme Court pursuant to the [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96241_01 Judicial Review Procedure Act, RSBC 1996, c 241] (see '''Chapter 5: Public Complaint Procedures''' of the LSLAP Manual).
A final order of the Tribunal may be registered in the BC 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; individuals dissatisfied with the Tribunal’s decision must seek judicial review in BC Supreme Court pursuant to the [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96241_01 Judicial Review Procedure Act, RSBC 1996, c 241] (see '''Chapter 5: Public Complaint Procedures''' of the LSLAP Manual).
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=== 3. No Reasonable Basis for Holding a Hearing ===
=== 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 Report from the BCHRT indicates that applications to dismiss under section 27 of the HRC succeeded in fully dismissing the complaint 49% of the time. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2011/2011bchrt117/2011bchrt117.html Marquez v Great Canadian Casinos]'', 2011 BCHRT 117 at paras 29–38. No reasonable prospect of success is the most common reason for dismissing a complaint.
The Tribunal may discontinue proceedings where the Tribunal is persuaded that the complaint is made in bad faith, would be of no benefit to the complainant, would not further the purposes of the HRC, and/or has no reasonable prospect of success. The most recent Annual Report from the BCHRT indicates that applications to dismiss under section 27 of the HRC succeeded in fully dismissing the complaint 49% of the time. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2011/2011bchrt117/2011bchrt117.html Marquez v Great Canadian Casinos]'', 2011 BCHRT 117 at paras 29–38. No reasonable prospect of success is the most common reason for dismissing a complaint.


=== 4. Complaint Brought Outside Limitation Period ===
=== 4. Complaint Brought Outside Limitation Period ===
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