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

{{REVIEWED LSLAP | date= June 18, 2021}}

The ''BC Human Rights Code'' (HRC) is the legislation currently applicable in BC and is administered by the B.C. Human Rights Tribunal.

:'''NOTE:''' The Tribunal’s decisions are available online at http://www.bchrt.bc.ca/law-library/decisions. They are indexed by year dating back to 1997 and searchable based on a variety of criteria. They are also available on CanLII BC ([http://www.canlii.org/en/bc www.canlii.org/en/bc]/).  

As outlined in ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/12680/index.do Moore v British Columbia (Education)]'', 2012 SCC 61 at para 33, the complainant must prove the following three elements on a balance of probabilities to establish their case:  

=== 2. Respondent ===

The HRC provides protection against discrimination in several different contexts, which are listed in sections 7–14. These sections will be further detailed in order below. Please refer to '''Section III.A.1-7'''. However, for many of these protected areas, the HRC provides certain exceptions for which discrimination is not prohibited.  

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 expose or are likely to expose someone in a protected group to hatred or contempt, as well as publications that indicate discrimination or intent to discriminate against a protected group.  Please refer to ''[http://www.bchrt.bc.ca/shareddocs/decisions/2019/mar/58_CORRECTED_Oger_v_Whatcott_No_7_2019_BCHRT_58.pdf Oger v Whatcott]'' (No 7), 2019 BCHRT 58 at paras 93—97 for the former, and ''Li v Mr B'', [https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt228/2018bchrt228.html?resultIndex=1&fbclid=IwAR29aclgXwxQnU6peHALajehkvX-uSD4VK0wIv1zAnArQ-vHynzNXoWIMXI 2018 BCHRT 228] at paras 95—97 [''Li''].   

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”.  

Section 9 provides that a person or class of persons must not be denied the opportunity to purchase real property due to their race, colour, ancestry, place of origin, religion, marital status, physical or mental disability, sex, sexual orientation and/or gender identity or expression.

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, gender identity or expression, age, and/or lawful source of income.   

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, gender identity or expression and/or age.  Refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2007/2007bchrt99/2007bchrt99.html?resultIndex=1 Anderson v Thompson Creek Mining Ltd Endako Mines]'', 2007 BCHRT 99.  

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 may 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:  

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 an employee’s actions will be considered the employer’s actions.

'''Undue Hardship''': What may be considered “undue hardship” varies by employer and depends on the circumstances. In ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/910/index.do Central Okanagan School District No 23 v Renaud]'', [1992] 2 SCR 970 at 985—986, the Supreme Court of Canada noted that it is more than a minor inconvenience, and that actual interference must be established. Factors the court may consider include financial cost, health and safety, and flexibility and size of the workplace. The burden of proving an undue hardship lies on the respondent and will require evidence that all reasonable accommodations, short of undue hardship, have been provided. For more information on the duty to accommodate, please see the BC Human Rights Clinic’s ''Legal Information'' page at [https://bchrc.net/legal-information/do-i-have-a-complaint] and their blog at [https://bchrc.net/tag/duty-to-accomodate/ https://bchrc.net/tag/duty-to-accomodate/].

'''Other Exemptions''': 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 (HRC, s 13(3)).   

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, gender identity or expression, age, and/or unrelated criminal record.  Please refer to ''De Lima v Empire Landmark Hotel and Major'', 2006 BCHRT 440.

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.  

If, after reading the HRC, you are still unsure whether the impugned action lies within the ambit of the HRC, contact the BC Human Rights Clinic  (see [[Governing Legislation and Resources for Human Rights (6:I)#B. Resources | Section I.B:Resources]]).

The grounds of race, colour, ancestry and place of origin are included in the HRC as a means to combat racism and racial discrimination. Each of these 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 ''[https://www.canlii.org/en/bc/bchrt/doc/2009/2009bchrt3/2009bchrt3.html?resultIndex=1 Torres v Langtry Industries Ltd, 2009 BCHRT 3]''.  

In ''[https://www.canlii.org/en/bc/bchrt/doc/2012/2012bchrt389/2012bchrt389.html?resultIndex=1 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.

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 295 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 982.  

For a recent Tribunal decision issued under the new ground of gender identity or expression, please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2019/2019bchrt58/2019bchrt58.html Oger v Whatcott (No 7)]'', 2019 BCHRT 58.  

BC’s HRC protects individuals with a criminal or summary conviction in the area of employment, trade unions, employers’ associations and occupational associations, so long as the conviction is unrelated to the employment or the intended employment of the individual. This protection includes a perceived conviction (i.e. relating to arrests, stayed charges or acquittals). Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2011/2011bchrt43/2011bchrt43.html Purewall v ICBC]'', 2011 BCHRT 43 at para 21, ''[https://www.canlii.org/en/bc/bchrt/doc/2006/2006bchrt411/2006bchrt411.html Clement v Jackson and Abdulla]'', 2006 BCHRT 411 at para 14; and ''[https://www.canlii.org/en/bc/bchrt/doc/1997/1997canlii24841/1997canlii24841.html Korthe v Hillstrom Oil Company Ltd]'' (1997), 31 CHRRD/82 at paras 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 ''[https://www.canlii.org/en/bc/bcsc/doc/1983/1983canlii444/1983canlii444.html Woodward Stores (British Columbia) v McCartney]'' (1983) 43 BCLR 314 at paras 7-9, Justice MacDonald laid out a list of criteria to be considered in making this determination. These criteria are as follows:  

BC’s HRC protects against discrimination in tenancy on the basis of an individual’s source of income. This safeguards the tenancy rights of individuals on social assistance or disability pensions who might otherwise be denied safe housing. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2003/2003bchrt36/2003bchrt36.html Tanner v Vlake]'', 2003 BCHRT 36 at paras 22–26 for further discussion on this protected ground. For a more recent case, please see '[https://www.canlii.org/en/bc/bchrt/doc/2012/2012bchrt49/2012bchrt49.html 'Day v Kumar and another (No 3)]'', 2012 BCHRT 49.  

Employees may choose to file a complaint through the Employment Standards Branch (ESB) if their employer has breached the ''Employment Standards Act'' (see '''Chapter 6: Employment Law'''). There is a '''six-month limitation period''' from the date of the breach. A complainant can claim from both the ESB and Small Claims for employment-related issues, including wrongful dismissal. These actions do not bar the complainant from also bringing a human rights complaint relating to 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. It is important to note that the ESB does not deal with alleged discrimination. If the employee recovers unpaid wages through the ESB, they cannot “double-recover” and seek these same damages in another forum.

A final option is to bring a civil action for wrongful dismissal either in Small Claims Court (see '''Chapter 22: Small Claims''' of the LSLAP Manual) or the BC Supreme Court, depending on the amounts claimed. However, a recent Supreme Court of Canada decision clarified that the common law will not provide a remedy for discrimination per se in the employment context.  Please refer to ''[https://www.canlii.org/en/ca/scc/doc/2008/2008scc39/2008scc39.html Keays v Honda Canada Inc]'', 2008 SCC 39 at para 67 [''Keays''].

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

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 ===

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 one-year limitation period. If the Tribunal believes that it may not have the power to deal with the complaint in substance or believes that the complaint has been filed 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.  

=== 4. Settlement Meeting ===

'''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 ===

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 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 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.  

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 section 37(2) of the HRC.

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).  Historically, 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 consider 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  [https://bchrc.net/the-trend-is-upwards-recent-injury-to-dignity-awards/].

Remember, to claim any type of damage, the claimant must lead evidence. If the claimant fails to lead 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.

The general rule is that costs will not normally be awarded in a human rights case. Pursuant to [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/00_96210_01#section37 section 37(4) of the HRC], the purpose of awarding costs is to penalize a party who acts improperly during a hearing, thereby interfering with the objectives of the Tribunal.  In these cases, costs are awarded punitively and do not necessarily reflect the actual expenses suffered by the other party due to the improper conduct.  

The 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.

As mentioned above, there is a one-year limitation period. The one-year period begins from the last instance of any continuing discrimination. If at least one alleged incident of discrimination in a complaint falls within the one-year limitation period, other alleged incidents of discrimination dating back farther than one year may be accepted as a continuing contravention of the ''Code''. The issue of whether, or how many, multiple instances of discrimination will be considered to constitute a “continuing contravention” (thus effectively extending the one-year limitation period) is often disputed. See ''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt204/2018bchrt204.html Bjorklund v BC Ministry of Public Safety and Solicitor General]'', 2018 BCHRT 204 at paras 13-14 for a recent discussion of how to define a “continuing contravention”; see also ''[https://www.canlii.org/en/bc/bcca/doc/2018/2018bcca136/2018bcca136.html District v Parent obo the Child]'', 2018 BCCA 136 at paras 46–65.

Additionally, under [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/00_96210_01#section22 section 22(3)] of the HRC, the Tribunal has discretion to accept late-filed complaints regardless of whether there is a “continuing contravention”, if it is in the public interest to accept the late complaint, and no substantial prejudice will be caused to any party because of the delay in filing: ''[https://www.canlii.org/en/bc/bchrt/doc/2003/2003bchrt39/2003bchrt39.html Chartier v Sooke School District No 62]'', 2003 BCHRT 39 at para 12. Whether it is in the public interest to accept a complaint filed outside the one-year time limit is a multi-faceted consideration, which is governed by the purposes of the HRC, and done on a case-by-case basis. Factors that may be important considerations in determining whether it is in the public interest to accept a late-filed complaint include the reasons for the delay, the length of the delay, the significance of the issue raised in the complaint and fairness in all the circumstances. The list of factors that the Tribunal may consider is non-exhaustive:. ''[https://www.canlii.org/en/bc/bcca/doc/2014/2014bcca220/2014bcca220.html British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite]'', 2014 BCCA 220; ''[https://www.canlii.org/en/bc/bchrt/doc/2007/2007bchrt24/2007bchrt24.html Hoang v. Warnaco and Johns]'', 2007 BCHRT 24.

== I. Judicial Review ==