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

Jump to navigation Jump to search

BC Human Rights Code (6:III) (view source)

Revision as of 23:39, 21 August 2023

8,178 bytes added ,  23:39, 21 August 2023
no edit summary
Line 1: Line 1:
{{REVIEWED LSLAP | date= July 21, 2022}}
{{REVIEWED LSLAP | date= July 26, 2023}}
{{LSLAP Manual TOC|expanded = rights}}
{{LSLAP Manual TOC|expanded = rights}}


The ''BC Human Rights Code'' (HRC or the ''Code'') protects people from discrimination in certain protected areas and provides a mechanism for filing a complaint regarding discriminatory treatment. It is administered by the BC Human Rights Tribunal. The HRC applies to matters within the provincial constitutional heads of power and covers both public and private bodies, as well as individuals. For example, the HRC applies to provincially regulated employers, unions, professional associations, most commercial businesses, Crown corporations, landlord-tenant relationships, and the provincial government itself.
The ''BC Human Rights Code'' (HRC or the ''Code'') protects people from discrimination in certain protected areas and provides a mechanism for filing a complaint regarding discriminatory treatment. It is administered by the BC Human Rights Tribunal. The HRC applies to matters within the jurisdiction of the province (as established by s. 91 of the Constitution Act, 1867) and covers both public and private bodies, as well as individuals. For example, the HRC applies to provincially regulated employers, unions, professional associations, most commercial businesses, Crown corporations, landlord-tenant relationships, and the provincial government itself.


:'''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 at http://www.canlii.org/en/bc/bchrt.  
:'''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 at http://www.canlii.org/en/bc/bchrt.  
Line 13: Line 13:


# That they have a characteristic that is protected under the HRC;
# That they have a characteristic that is protected under the HRC;
# That they experienced an adverse impact with respect to an area protected by the HRC; and
# That they experienced an adverse impact in an area protected by the HRC; and
# That their protected characteristic was a factor in the adverse impact they experienced.
# That their protected characteristic was a factor in the adverse impact they experienced.


Direct discrimination occurs when a person or group is singled out for differential treatment based on their protected characteristic(s).
Direct discrimination occurs when a person or group is singled out for differential treatment based on their protected characteristic(s) ([https://canlii.ca/t/1fqm4 M. v H.,] 1999 2 SCR 3). Racial slurs, sexual harassment, and homophobic comments are all examples of "direct discrimination."


Indirect or “adverse impact discrimination occurs when laws or policies do not overtly discriminate, but produce a disproportionate negative impact on members of groups sharing a protected characteristic ''([https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/18510/index.do Fraser v. Canada (Attorney General)]'', 2020 SCC 28).  
Indirect or “adverse effect" discrimination occurs when laws or policies do not overtly discriminate, but produce a disproportionate negative impact on members of groups sharing a protected characteristic ''([https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/18510/index.do Fraser v. Canada (Attorney General)]'', 2020 SCC 28). Many complaints of discrimination on the basis of disability involve adverse effect discrimination because they relate to a facially neutral rule, standard, policy or practice that creates a disadvantage for someone in connection with their disability.  


If any one of the three elements are missing, there is no discrimination. If the complainant proves the three elements, then the burden shifts to the respondent to justify its conduct. If the respondent proves its conduct was justified, then there is no discrimination. If the respondent’s conduct is not justified, discrimination will be found to have occurred.
If any one of the three elements of the complainant's case is missing, there is no discrimination. If the complainant proves the three elements of their case, then the burden shifts to the respondent to justify its conduct. If the respondent proves its conduct was justified, then there is no discrimination. If the respondent’s conduct is not justified, discrimination will be found to have occurred.


=== 2. Respondent's Case ===
=== 2. Respondent's Case ===


In the employment context, a respondent can justify its conduct by proving on a balance of probabilities that the rule, standard, practice, or requirement being challenged is a bona fide occupational requirement (BFOR). 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 set out the three-step analysis for determining whether a standard is a BFOR:  
In the employment context, a respondent can justify its conduct by proving on a balance of probabilities that the rule, standard, practice, or requirement being challenged is a bona fide occupational requirement (BFOR). 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 (SCC) set out a three-step analysis for determining whether a standard is 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;
Line 38: Line 38:
Note that most legal disputes arise in regard to the third part of the test – that is, whether the respondent reasonably accommodated the complainant to the point of undue hardship.  
Note that most legal disputes arise in regard to the third part of the test – that is, whether the respondent reasonably accommodated the complainant to the point of undue hardship.  


== B. Protections and Exemptions ==
The HRC provides protection against discrimination in several different areas, 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.
Additionally, section 41, commonly referred to as the group rights exemption, allows non-profit organizations to engage in what might otherwise be deemed prohibited discriminatory conduct. It allows charitable, philanthropic, educational, and other not-for-profit organizations to give a preference to members of the identifiable group or class of persons they serve. For more information, please see ''[https://www.canlii.org/en/bc/bcca/doc/2005/2005bcca601/2005bcca601.html?resultIndex=1 Vancouver Rape Relief Society v Nixon]'', 2005 BCCA 601 at paras 43-59 [''Nixon'']. (Please note that this case involves a sex-binary-focused discussion of transgender identity that may be troubling for some readers).
Furthermore, under section 42, it is not discriminatory 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 Indigenous identity, race, colour, ancestry, place of origin, physical or mental disability, sex, sexual orientation, or gender identity or expression, and achieves or is likely to achieve that purpose. Section 42 also gives the Human Rights Commissioner jurisdiction to approve special programs that are aimed at improving the situation of individuals or groups that have suffered historical disadvantage. If pre-approved, a special program is deemed not to contravene the Code.
=== 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 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 [https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt228/2018bchrt228.html?resultIndex=1&fbclid=IwAR29aclgXwxQnU6peHALajehkvX-uSD4VK0wIv1zAnArQ-vHynzNXoWIMXI Li v Mr B], 2018 BCHRT 228 at paras 95—97 [''Li''] for the latter. 
'''Exception:''' Section 7 does '''not''' apply to communications that are intended to be private or are related to activities otherwise permitted under the ''HRC'', see s. 7(2) and ''Li'' at paras 98–104.
=== 2. Discrimination in Accommodations, Services and Facilities “Customarily Available to the Public” ===
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 Indigenous Identity, 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] explains the concept of “customarily available to the public”. A service is customarily available to the public if the nature of the relationship is public. Courts and tribunals 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 discusses when a service is “customarily available to the public”.
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 their personal attributes do not qualify as services “customarily available to the public”, and are therefore not subject to section 8 of the HRC.  Please refer to ''[https://www.canlii.org/en/bc/bcca/doc/2007/2007bcca17/2007bcca17.html?resultIndex=1 Marine Drive Golf Club v Buntain et al and BC Human Rights Tribunal]'', 2007 BCCA 17 at paras 48–56.
While there is no enumerated list of relationships that count as "customarily available to the public," locales such as pubs, night clubs, hotels, theatres, transportation services, education facilities, insurance, medical treatment in hospitals and clinics, strata council and property management services in condominiums, services provided by police, access to sidewalks and public space, government services, 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 section 8 was ultimately found when the BC Motor Vehicle Branch maintained a blanket refusal to issue driver's licenses to those with certain visual impairments regardless of actual driving ability: ''[https://www.canlii.org/en/ca/scc/doc/1999/1999canlii646/1999canlii646.html?resultIndex=1 BC (Superintendent of Motor Vehicles) v BC (Council of Human Rights)]'', [1999] 3 SCR 868 [''Grismer''].
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 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:
# That they have a characteristic that is protected under the HRC;
# That they experienced an adverse impact with respect to an area protected by the HRC; and
# 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).<BR>
The respondent must justify the standard by satisfying three elements:
# It adopted the standard for a purpose or goal that is rationally connected to the function being performed
# It adopted the standard in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and
# 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
'''Exceptions:''' 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. For a case on the interpretation of public decency in the context of excluding transgender peoples from public washrooms, see [https://canlii.ca/t/g965p Sheridan v. Sanctuary Investments Ltd. (No. 3), 1999] 33 CHRR 467 in which the Tribunal rejected the argument that it was necessary to exclude a transgender woman from the washroom matching her gender identity in order to maintain "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. Note that statutory exceptions to human rights legislation are to be narrowly construed ([https://canlii.ca/t/1fs94 Zurich Insurance Co. v. Ontario (Human Rights Comm.), [1992]] 2 SCR 321).
=== 3. Discrimination in Purchase and Rental of Property ===
Section 9 provides that a person or class of persons must not be denied the opportunity to purchase real property due to their Indigenous identity, 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 Indigenous Identity, 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. 
'''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:''' 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 ===
Section 11 prohibits employment advertisements that express limitations, specifications or preferences based on Indigenous identity, 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.
'''Exception:''' An employment advertisement that expresses a limitation, specification or preference as to a protected characteristic may be permitted if it is based on “''bona fide'' occupational requirement(s)” as per the wording of section 11. There are also exceptions for non-profit organizations and employment equity programs (see Exemptions on 6-6).
For case law on discrimination during the interview process, please refer to ''Khalil v Woori Education Group'', 2012 BCHRT 186 at paras 29-45. Under section 13, an employer cannot refuse to employ someone on the basis of any of the prohibited grounds of discrimination unless there is a ''bona fide'' occupational requirement (see [[{{PAGENAME}}#6. Discrimination in Employment and the Duty to Accommodate | 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. Most of the remedies under this section are also available under section 13, which does not have a limitation on the period of time during which wages can be claimed.
'''Limitation Dates:''' Section 12(5) 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."
Most of the remedies under this section are also available under section 13, which does not have a limitation on the period of time during which wages can be claimed. 
'''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 regarding employment or any term or condition of employment on the basis of Indigenous identity, 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:
#If there is a formal process to recruit volunteers;
#If there is a training process with defined tasks;
#Whether volunteers have to agree to follow the organizations policies and practises;
#If there are requirements about when or how often a volunteer must be available; and
#The role of volunteers in the organization.
For more information on volunteers, see ''[https://www.canlii.org/en/bc/bchrt/doc/2017/2017bchrt123/2017bchrt123.html Ferri v Society of Saint Vincent de Paul and another]'', 2017 BCHRT 123 at paras 29-33.
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) states that an employer is responsible for the actions of their employees, and an employer will be liable for an employee's actions when the employee is acting within the scope of their authority or job duties.
'''''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 particular standard with an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
# The standard is reasonably necessary to fulfil its purpose. The employer must show that it could not accommodate individual employees with the protected characteristic without experiencing undue hardship.
For a specific example of a BCHRT case that applies the BFOR test in a disability context, please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2009/2009bchrt196/2009bchrt196.html?resultIndex=1 Kerr v Boehringer Ingelheim (Canada) Ltd (No 4)]'', 2009 BCHRT 196 [''Kerr''].
'''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 held that an undue hardship is more than a minor inconvenience and that actual interference with the employer’s business 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.
'''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 are permitted 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)).
=== 7. Discrimination by Unions, Employer Organizations or Occupational Associations ===
Section 14 states that trade unions, employers’ organizations, and occupational associations may not deny membership to any person or discriminate against a person on the basis of Indigenous identity, 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.
Since persons are not covered by section 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 ''[https://www.canlii.org/en/bc/bchrt/doc/2005/2005bchrt53/2005bchrt53.html?resultIndex=1 Ratsoy v BC Teachers’ Federation]'', 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).
There are two limited ways in which unions can be held liable for discrimination. The first is by creating or participating in formulating a discriminatory workplace rule, and the second is by impeding an employer’s efforts to accommodate an employee (''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt44/2018bchrt44.html?resultIndex=1 Chestacow v Mount St Marie Hospital of Marie Esther Society]'', [2018] BCHRT No 44 at para 32 [''Chestacow'']). In respect of the latter, a union may be required to waive seniority rights or other collective agreement obligations in order to facilitate the accommodation of an employee with a protected characteristic, such as a disability.


The Chart below illustrates how the HRC’s protected grounds apply to each area of protection.
===8. Retaliation===
 
Section 43 of the Code protects people from retaliation for filing a human rights complaint, or for indicating that they might file a human rights complaint. It also protects from retaliation anyone who assists, or who might assist, someone to make a complaint.
 
The test for retaliation is set out in [https://canlii.ca/t/hqtpj Gichuru v Pallai, 2018] BCCA 78 at paras 50–58. To prove retaliation, a complaint must show:
 
a.  The respondent was aware that the complainant had made a complaint;
 
b.  The respondent engaged in or threatened to engage in conduct described in s. 43; and
 
c.  There is a sufficient connection between the impugned conduct and the previous complaint. This connection may be established by proving that the respondent intended to retaliate, or may be inferred where the respondent can reasonably have been perceived to have engaged in that conduct in retaliation, with the element of reasonable perception being assessed from the point of view of a reasonable complainant, apprised of the facts, at the time of the impugned conduct.
 
In Sales Associate v. Aurora BioMed, the Tribunal interpreted the meaning of the protection for someone who “might” make a complaint.  The Tribunal concluded that the protection applies where the retaliator is aware that a person might pursue some legal recourse for discrimination. It is not necessary to prove that the retaliator was specifically aware of the possibility of a human rights complaint at the Human Rights Tribunal (see paras. 151-163).
 
== C. Prohibited Grounds of Discrimination ==
 
=== 1. General ===
 
Prohibited grounds of discrimination include Indigenous Identity, 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 related to the employment, union or occupational association), and lawful source of income (in tenancy only). Note that not all of these grounds of discrimination are protected in all of the areas listed in sections 7–14 of the HRC. 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 the following page.
 
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.
 
Discrimination need not be intentional (HRC, s 2). Any policy or action that has an adverse effect on a protected group and which cannot be justified will be considered discriminatory. Please refer to ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/101/index.do Ontario (Human Rights Commission) v Simpsons-Sears Ltd]'', [1985] 2 SCR 536 at 549 for an example of indirect discrimination, also known as adverse effect discrimination. The policy or act does not have to affect every person in the group for it to be considered discriminatory. For example, if a policy discriminates against only people who are pregnant it could still be considered sex discrimination. It is also 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 ''[https://www.canlii.org/en/bc/bchrt/doc/2005/2005bchrt302/2005bchrt302.html?resultIndex=1 Radek v Henderson Development (Canada) Ltd]'', 2005 BCHRT 302 at paras 463–467.
 
The Chart below illustrates how the HRC's protected grounds apply to each area of protection:


{| class="wikitable"
{| class="wikitable"
Line 204: Line 342:
| style="text-align: center;" | v
| style="text-align: center;" | v
|}
|}
== B. Protections and Exemptions ==
The HRC provides protection against discrimination in several different areas, 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.
Additionally, section 41, commonly referred to as the group rights exemption, allows non-profit organizations to engage in what might otherwise be deemed prohibited discriminatory conduct. It allows charitable, philanthropic, educational, and other not-for-profit organizations to give a preference to members of the identifiable group or class of persons they serve. For more information, please see ''[https://www.canlii.org/en/bc/bcca/doc/2005/2005bcca601/2005bcca601.html?resultIndex=1 Vancouver Rape Relief Society v Nixon]'', 2005 BCCA 601 at paras 43-59 [''Nixon'']. (Please note that this case involves a sex-binary-focused discussion of transgender identity that may be troubling for some readers).
Furthermore, under section 42, it is not discriminatory 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, sex, sexual orientation, or gender identity or expression. Such special programs may obtain prior approval by the BC Human Rights Commissioner and, if pre-approved, will not be deemed to be in contravention of the HRC. Ultimately, section 42 gives the Commissioner jurisdiction to approve special programs that are aimed at improving the situation of individuals or groups that have suffered historical disadvantage.
Finally, section 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 related proceeding under the HRC, or because they might in future complain, be named, give evidence, or otherwise assist in a complaint or related proceeding. Please refer to ''[https://www.bccourts.ca/jdb-txt/ca/18/00/2018BCCA0078.htm Gichuru v Pallai]'', 2018 BCCA 78 at paras 50—58, which provides the test for proving retaliation under section 43.
=== 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 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 [https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt228/2018bchrt228.html?resultIndex=1&fbclid=IwAR29aclgXwxQnU6peHALajehkvX-uSD4VK0wIv1zAnArQ-vHynzNXoWIMXI Li v Mr B], 2018 BCHRT 228 at paras 95—97 [''Li''] for the latter. 
'''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 Accommodations, Services and Facilities “Customarily Available to the Public” ===
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 Indigenous Identity, 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] explains the concept of “customarily available to the public”. A service is customarily available to the public if the nature of the relationship is public. Courts and tribunals 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 discusses when a service is “customarily available to the public”.
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 their personal attributes do not qualify as services “customarily available to the public”, and are therefore not subject to section 8 of the HRC.  Please refer to ''[https://www.canlii.org/en/bc/bcca/doc/2007/2007bcca17/2007bcca17.html?resultIndex=1 Marine Drive Golf Club v Buntain et al and BC Human Rights Tribunal]'', 2007 BCCA 17 at paras 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 and clinics, strata council and property management services in condominiums, services provided by police, access to sidewalks and public space, government services, 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 section 8 was ultimately found when the BC Motor Vehicle Branch maintained a blanket refusal to issue driver's licenses to those with certain visual impairments regardless of actual driving ability: ''[https://www.canlii.org/en/ca/scc/doc/1999/1999canlii646/1999canlii646.html?resultIndex=1 BC (Superintendent of Motor Vehicles) v BC (Council of Human Rights)]'', [1999] 3 SCR 868 [''Grismer''].
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 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:
# That they have a characteristic that is protected under the HRC;
# That they experienced an adverse impact with respect to an area protected by the HRC; and
# 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).<BR>
The respondent must justify the standard by satisfying three elements:
# It adopted the standard for a purpose or goal that is rationally connected to the function being performed
# It adopted the standard in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and
# 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
'''Exceptions:''' 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 or class of persons must not be denied the opportunity to purchase real property due to their Indigenous identity, 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 Indigenous Identity, 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. 
'''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:''' 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 ===
Section 11 prohibits employment advertisements that express limitations or preferences based on Indigenous Identity, 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.
'''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. There are also exceptions for non-profit organizations and employment equity programs (see Exemptions on 6-6).
For case law on discrimination during the interview process, please refer to ''Khalil v Woori Education Group'', 2012 BCHRT 186 at paras 29-45. Under s 13, an employer cannot refuse to employ someone on the basis of any of the prohibited grounds of discrimination unless there is a ''bona fide'' occupational requirement (see [[{{PAGENAME}}#6. Discrimination in Employment and the Duty to Accommodate | 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. Most of the remedies under this section are also available under section 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 be in keeping with the '''one-year limitation period''' for all human rights complaints. Issues arose when section 12(5) conflicted with the previous general six-month limitation period for bringing human rights complaints, but the extension has eliminated any confusion. 
'''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 Indigenous identity, 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:
#If there is a formal process to recruit volunteers;
#If there is a training process with defined tasks;
#Whether volunteers have to agree to follow the organizations policies and practises;
#If there are requirements about when or how often a volunteer must be available; and
#The role of volunteers in the organization.
For more information on volunteers, see ''[https://www.canlii.org/en/bc/bchrt/doc/2017/2017bchrt123/2017bchrt123.html Ferri v Society of Saint Vincent de Paul and another]'', 2017 BCHRT 123 at paras 29-33.
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) states 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.
# 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 standard is reasonably necessary to fulfil its purpose. The employer must show that it could not accommodate individual employees with the protected characteristic without experiencing undue hardship
For a specific example of a BCHRT case that applies the BFOR test in a disability context, please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2009/2009bchrt196/2009bchrt196.html?resultIndex=1 Kerr v Boehringer Ingelheim (Canada) Ltd (No 4)]'', 2009 BCHRT 196 [''Kerr''].
'''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 held that an undue hardship is more than a minor inconvenience and that actual interference with the employer’s business 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.
'''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 are permitted 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)).
=== 7. Discrimination by Unions, Employer Organizations or Occupational Associations ===
Section 14 states that trade unions, employers’ organizations, and occupational associations may not deny membership to any person or discriminate against a person on the basis of Indigenous identity, 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.
Since persons are not covered by section 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 ''[https://www.canlii.org/en/bc/bchrt/doc/2005/2005bchrt53/2005bchrt53.html?resultIndex=1 Ratsoy v BC Teachers’ Federation]'', 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).
There are two limited ways in which unions can be held liable for discrimination. The first is by creating or participating in formulating a discriminatory workplace rule, and the second is by impeding an employer’s efforts to accommodate an employee (''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt44/2018bchrt44.html?resultIndex=1 Chestacow v Mount St Marie Hospital of Marie Esther Society]'', [2018] BCHRT No 44 at para 32 [''Chestacow'']). In respect of the latter, a union may be required to waive seniority rights or other collective agreement obligations in order to facilitate the accommodation of an employee with a protected characteristic, such as a disability.
== C. Prohibited Grounds of Discrimination ==
=== 1. General ===
Prohibited grounds of discrimination include Indigenous Identity, 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 these grounds of discrimination are protected in all of the areas listed in sections 7–14 of the HRC. 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 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.
Discrimination need not be intentional (HRC, s 2). Any policy or action that has an adverse effect on a protected group and which cannot be justified will be considered discriminatory. Please refer to ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/101/index.do Ontario (Human Rights Commission) v Simpsons-Sears Ltd]'', [1985] 2 SCR 536 at 549 for an example of indirect discrimination, also known as adverse effect discrimination. The policy or act does not have to affect every person in the group for it to be considered discriminatory. For example, if a policy discriminates against only people who are pregnant it could still be considered sex discrimination. It is also 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 ''[https://www.canlii.org/en/bc/bchrt/doc/2005/2005bchrt302/2005bchrt302.html?resultIndex=1 Radek v Henderson Development (Canada) Ltd]'', 2005 BCHRT 302 at paras 463–467.
If, after reading the HRC and relevant caselaw you are still unsure whether the impugned action may violate the HRC, contact the BC Human Rights Clinic (see [[Governing_Legislation_and_Resources_for_Human_Rights_(6:II)#B._Resources|Section II.B:Resources]]).


=== 2. Race, Colour, Ancestry, and Place of Origin ===
=== 2. Race, Colour, Ancestry, and Place of Origin ===


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]''.  
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]''.  


Discrimination on the basis of race, colour, ancestry or place of origin can also be established where the respondent caused harm to the claimant by taking advantage of a vulnerability caused by the claimant's race, colour, ancestry or place of origin. For more information, see ''[https://www.canlii.org/en/bc/bchrt/doc/2015/2015bchrt60/2015bchrt60.html?resultIndex=1 PN v FR and another (No 2)]'', 2015 BCHRT 60. In BC, the grounds of race, colour, ancestry and place of origin are protected in the following areas:
Discrimination on the basis of race, colour, ancestry, or place of origin can also be established where the respondent caused harm to the claimant by taking advantage of a vulnerability caused by the claimant's race, colour, ancestry or place of origin. For more information, see ''[https://www.canlii.org/en/bc/bchrt/doc/2015/2015bchrt60/2015bchrt60.html?resultIndex=1 PN v FR and another (No 2)]'', 2015 BCHRT 60. In BC, the grounds of race, colour, ancestry and place of origin are protected in the following areas:
* publication  
* publication  
* public services such as schools, government programs, restaurants and stores  
* public services such as schools, government programs, restaurants and stores  
Line 346: Line 357:


Note that the Tribunal has recognized that racism can be subtle and is sensitive to this fact. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2006/2006bchrt60/2006bchrt60.html?resultIndex=1 Mezghrani v Canada Youth Orange Network Inc]'', 2006 BCHRT 60 at para 28.
Note that the Tribunal has recognized that racism can be subtle and is sensitive to this fact. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2006/2006bchrt60/2006bchrt60.html?resultIndex=1 Mezghrani v Canada Youth Orange Network Inc]'', 2006 BCHRT 60 at para 28.
The Tribunal has acknowledged that while anti-Black racism exists in Canada and continues to create impediments to the full and free participation of Black Canadians in the economic, social, political and cultural life of BC, there is a lack of cases dealing with anti-Black racism at the Tribunal level. Given that anti-Black racism is a "distinct form of racism," the lack of these types of cases has been a factor that supports a complaint being accepted despite being filed late; please refer to [https://canlii.ca/t/jllhh Umolo v. Shoppers Drug Mart and others,] 2021 BCHRT 166 at para 35.


=== 3. Political Belief ===
=== 3. Political Belief ===
Line 371: Line 384:
Section 2(a) 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 is not required to show 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)
Section 2(a) 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 is not required to show 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 obliges employers to accommodate the religious practices of their employees as long as doing so does not cause undue hardship. Practices requiring accommodation 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.
The duty to accommodate obliges employers to accommodate the religious practices of their employees as long as doing so does not cause undue hardship. Practices requiring accommodation may be linked to customs involving prayer, dietary restrictions, clothing requirements, or 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.


=== 5. Family Status and Marital Status ===
=== 5. Family Status and Marital Status ===
Line 383: Line 396:
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 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:
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 was most recently considered in [https://canlii.ca/t/jwss3 British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd.,] 2023 BCCA 168. Per that case, in order to establish discrimination on the basis of family status, the complainant must show that a term or condition of employment results in a serious interference with a substantial parental or other family duty or obligation of an employee, whether as a consequence of a change in the term of employment or a change in the employee's circumstances (see para. 77).  
 
# A change in a term or condition of employment imposed by the employer; and
# That the change results in a serious interference with a substantial parental or other family duty or obligation.


The Federal Court of Appeal rejected the ''Campbell River'' test and set out its own four-part test in ''[https://www.canlii.org/en/ca/fca/doc/2014/2014fca110/2014fca110.html Canada (Attorney General) v Johnstone]'', 2014 FCA 110, at para 93 [''Johnstone'']. Under ''Johnstone'', a complainant must show that a child is under their care and supervision, the issue engages the individual’s legal responsibility for that child as opposed to a personal choice, they have made reasonable efforts to find alternative solutions and no reasonable alternative solution is available, and the impugned workplace rule interferes with the childcare obligation in a more than trivial or insubstantial way.  
The Federal Court of Appeal set out its own four-part test for family status discrimination in ''[https://www.canlii.org/en/ca/fca/doc/2014/2014fca110/2014fca110.html Canada (Attorney General) v Johnstone]'', 2014 FCA 110, at para 93 [''Johnstone'']. Under ''Johnstone'', a complainant must show that a child is under their care and supervision, the issue engages the individual’s legal responsibility for that child as opposed to a personal choice, they have made reasonable efforts to find alternative solutions and no reasonable alternative solution is available, and the impugned workplace rule interferes with the childcare obligation in a more than trivial or insubstantial way.  


In Ontario, ''[https://www.canlii.org/en/on/onhrt/doc/2016/2016hrto1229/2016hrto1229.html Misetich v. Value Village Stores Inc.]'', 2016 HRTO 1229 [''Misetich''] is the leading authority. ''Misetich'' criticized both ''Campbell River'' and ''Johnstone'' as creating too narrow of a test. The ''Misetich'' test requires a complainant to establish a negative impact that results in a real disadvantage to the parent/child relationship, parent/child responsibilities, or to the employees’ work.  
In Ontario, ''[https://www.canlii.org/en/on/onhrt/doc/2016/2016hrto1229/2016hrto1229.html Misetich v. Value Village Stores Inc.]'', 2016 HRTO 1229 [''Misetich''] is the leading authority. ''Misetich'' criticized both ''Campbell River'' and ''Johnstone'' as creating too narrow of a test. The ''Misetich'' test requires a complainant to establish a negative impact that results in a real disadvantage to the parent/child relationship, parent/child responsibilities, or to the employees’ work.  
Line 418: Line 428:
In BC, protection on the basis of sexual orientation is provided in the areas of publication, public services, purchase of property, tenancy, employment advertising, employment, and membership in a trade union, employer’s organization, or occupational association.
In BC, protection on the basis of sexual orientation is provided in the areas of publication, public services, purchase of property, tenancy, employment advertising, employment, and membership in a trade union, employer’s organization, or occupational association.


=== 8. Sex (Including Sexual Harassment and Pregnancy) ===
=== 8. Sex (Including Sexual Harassment, Pregnancy) ===


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'']).
Line 438: Line 448:
This protected ground has been in force since 2016, and therefore few decisions relating to this ground are currently available.  
This protected ground has been in force since 2016, and therefore few decisions relating to this ground are currently available.  


For a recent Tribunal decision issued under the 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. For a case involving a nonbinary person, please see ''[https://www.canlii.org/en/bc/bchrt/doc/2021/2021bchrt137/2021bchrt137.html Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others]'', 2021 BCHRT 137.   
For a recent Tribunal decision issued under the 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. Please also see [https://canlii.ca/t/hvlwz Li v. Mr. B,] 2018 BCHRT 228, where the respondent, the complainant's landlord, showed a photograph of the complainant (who was male-identifying) in a dress to the complainant's supervisor in an attempt to cause an adverse effect on the complainant's employment. The HRT found that this constituted discrimination based on gender identity and expression. For a case involving a nonbinary person, whose coworker refused to use they/them pronouns to refer to them, please see ''[https://www.canlii.org/en/bc/bchrt/doc/2021/2021bchrt137/2021bchrt137.html Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others]'', 2021 BCHRT 137.   


Prior to the inclusion of gender identity or expression in 2016, the Tribunal had found that being transgender was a protected characteristic under the ground of sex. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2015/2015bchrt54/2015bchrt54.html Dawson v Vancouver Police Board (No 2)]'', 2015 BCHRT 54 [''Dawson'']. ''Dawson'' establishes that misgendering trans individuals (addressing a trans person using a pronoun, name, or gender marker other than that which the trans person uses to identify themselves) constitutes discrimination. Discrimination may also include the denial of trans-specific medical services (''Dawson'').
Prior to the inclusion of gender identity or expression in 2016, the Tribunal had found that being transgender was a protected characteristic under the ground of sex. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2015/2015bchrt54/2015bchrt54.html Dawson v Vancouver Police Board (No 2)]'', 2015 BCHRT 54 [''Dawson'']. ''Dawson'' establishes that misgendering trans individuals (addressing a trans person using a pronoun, name, or gender marker other than that which the trans person uses to identify themselves) constitutes discrimination. Discrimination may also include the denial of trans-specific medical services (''Dawson'').
Line 456: Line 466:
* 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?
* 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?


=== 12. Source of Income ===
=== 12. Lawful Source of Income ===


BC’s HRC protects against discrimination in tenancy on the basis of an individual’s source of income. It only applies in the area of tenancy. This protects 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.
BC’s HRC protects against discrimination in tenancy on the basis of an individual’s lawful source of income. It applies only in the area of tenancy. This protects the tenancy rights of individuals on social assistance or disability pensions, for example, 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.


=== 13. Indigenous Identity ===
=== 13. Indigenous Identity ===


On Nov. 17, 2021, the BC government introduced, and later passed, Bill 18 which added Indigenous identity as a protected ground under the B.C. Human Rights Code. Bill 18 was intended to better reflect forms of discrimination experienced by Indigenous Peoples. Indigenous identity refers to being First Nations, Métis, or Inuit.
On Nov. 17, 2021, the BC government introduced, and later passed, Bill 18 which added Indigenous identity as a protected ground under the B.C. Human Rights Code. Bill 18 was intended to better reflect forms of discrimination experienced by Indigenous Peoples. Indigenous identity refers to being First Nations, Métis, or Inuit. While there are few cases that feature the Tribunal considering Indigenous identity as its own distinct protected ground, there are many more that look at Indigenous identity as being a protected ground through race, ancestry, or place of origin. One such case is [https://canlii.ca/t/j5wnn Smith v Mohan (No. 2),] 2020 BCHRT 52, where the complainant, an Indigenous woman and member of the Tsimshian and Haisla Nations, was discriminated against by her landlord, who continually tried to evict the complainant because she was smudging in her apartment unit. See also [https://canlii.ca/t/j4824 Campbell v. Vancouver Police Board (No. 4),] 2019 BCHRT 275, which involved a finding of discrimination by the Vancouver Police against an Indigenous woman and mother.  


== D. Procedural Options for Employees ==
== D. Procedural Options for Employees ==
Line 490: Line 500:
=== 5. Civil Action ===
=== 5. Civil Action ===


A final option is to bring a civil action for wrongful dismissal either in Small Claims Court (see [[Introduction_to_Small_Claims_(20:I)|Chapter 20: Small Claims]] of the LSLAP Manual) or the BC Supreme Court, depending on the amounts claimed. However, the Supreme Court of Canada has held 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 final option is to bring a civil action for wrongful dismissal either in Small Claims Court (see [[Introduction_to_Small_Claims_(20:I)|Chapter 22: Small Claims]] of the LSLAP Manual) or the BC Supreme Court, depending on the amounts claimed. However, the Supreme Court of Canada has held 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''].


The court in ''[https://www.canlii.org/en/ca/scc/doc/2008/2008scc39/2008scc39.html Keays]'' held that breaches of the HRC must be remedied within the statutory scheme of the HRC itself. Thus, even if the reason for dismissal was discriminatory, in a civil action, the claimant will generally only be able to recover damages based on their wrongful dismissal and/or inadequate notice (severance pay). See [[Introduction_to_Employment_Law_(9:I)|Chapter 9: Employment Law]] of the LSLAP Manual. Accordingly, compensation for the discrimination itself must be awarded by the Tribunal.
The court in ''[https://www.canlii.org/en/ca/scc/doc/2008/2008scc39/2008scc39.html Keays]'' held that breaches of the HRC must be remedied within the statutory scheme of the HRC itself. Thus, even if the reason for dismissal was discriminatory, in a civil action, the claimant will generally only be able to recover damages based on their wrongful dismissal and/or inadequate notice (severance pay). See [[Introduction_to_Employment_Law_(9:I)|Chapter 9: Employment Law]] of the LSLAP Manual. Accordingly, compensation for the discrimination itself must be awarded by the Tribunal.
Line 502: Line 512:
== 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 is available at the Tribunal's head office, 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.
The BC Human Rights Tribunal handles complaints made under the HRC. The following chart depicts the process of a complaint at the Tribunal and the time in between the various stages of the process (prepared by the BC Human Rights Clinic,  program of the Community Legal Assistance Society):
 
The first step in filing a complaint with the Tribunal is to fill out a Complaint Form, which is available at the Tribunal's head office, 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. You should also consult the [http://www.bchrt.bc.ca/law-library/rules/index.htm Tribunal’s Rules of Practice] and [http://www.bchrt.bc.ca/law-library/practice-directions/index.htm Procedure and Practice Directions] for guidance on the various steps in the process.  


=== 1. Who Can Lodge a Complaint? ===
=== 1. Who Can File a Complaint? ===


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. You should also consult the [http://www.bchrt.bc.ca/law-library/rules/index.htm Tribunal’s Rules of Practice] and [http://www.bchrt.bc.ca/law-library/practice-directions/index.htm Procedure and Practice Directions] for guidance on the various steps in the process.  
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. You should also consult the [http://www.bchrt.bc.ca/law-library/rules/index.htm Tribunal’s Rules of Practice] and [http://www.bchrt.bc.ca/law-library/practice-directions/index.htm Procedure and Practice Directions] for guidance on the various steps in the process.  
Line 510: Line 522:
=== 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 [[Governing_Legislation_and_Resources_for_Human_Rights_(6:II)|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. The BC Human Rights Tribunal has also been severely backlogged over the last couple of years. Potential complainants should be aware that it may take up to a year for a case to be screened and accepted for filing.
The Complaint Form can be filed with the Tribunal via mail or fax. The Complaint Form can also be filled out and submitted online from a computer or a smart phone. Alternatively, the Complaint Form can be submitted to the Tribunal through email. Complainants may access the Complaint Form and other valuable resources at the BC Human Rights Tribunal website (see Section II.B: Resources). There are different Complaint Forms depending on whether the complaint is being made by an individual ([https://intake.bchrt.bc.ca/hrt/hrt Form 1.1]), or a group ([https://intake.bchrt.bc.ca/hrt/hrt-group Form 1.3]). If you are filling out a Complaint Form on behalf of someone else, then the appropriate form is [http://www.bchrt.bc.ca/shareddocs/forms/form_1_2_print.pdf Form 1.2].
 
The party filing the complaint should be aware of the time limits. There is a one-year limitation period. Complaints alleging continuing contraventions of the Code may be accepted as long as at least one incident of alleged discrimination occurred within the one-year limitation period: see Code s. 22(2). Late-filed complaints may be accepted if it is in the public interest to do so, under certain very limited circumstances, as per s. 22(3) of the Code In order for a member of the Tribunal to accept all or part of the complaint under s. 22(3), the Tribunal must determine that a) it is in the public interest to accept the complaint, and b) no substantial prejudice will result to any person because of the delay. The Tribunal’s assessment of what the public interest means in this context depends on a consideration of a number of factors including: the complainant’s interest in accessing the Tribunal, the length and reason for the delay in filing, whether the complainant had access to legal advice, and the novelty or importance of the human rights issues raised: [https://canlii.ca/t/g7c2b British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite,] 2014 BCCA 220 at paras. 53-81. It also considers “the respondent’s interest in going about its activities without the worry of stale complaints”: [https://canlii.ca/t/h03rl Hoang v. Warnaco and Johns,] 2007 BCHRT 24 at para. 26. This list of factors is not exhaustive.
 
The BC Court of Appeal has found it to be within the public interest to accept a complaint that was filed late if the complainant was operating off erroneous legal advice regarding the one-year limitation date: [https://canlii.ca/t/jbtjn The Parent obo the Child v. The School District,] 2020 BCCA 333. The Tribunal has found that it can be in the public interest to accept late complaints where the delay is due to a disabling condition: [https://canlii.ca/t/g8blz Naziel-Wilson v. Providence Health Care and another,] 2014 BCHRT 170 at para. 21. See also [https://www.canlii.org/en/bc/bchrt/doc/2023/2023bchrt40/2023bchrt40.html Sheriff v. Fairleigh Dickenson University,] 2023 BCHRT 40 at para. 38, where the Tribunal discussed the impact of trauma on a person’s ability to file a complaint within the one-year time limit.
 
The BC Human Rights Tribunal has been severely backlogged over the last couple of years. Potential complainants should be aware that it may take up to a year for a case to be screened and accepted for filing.  
 


=== 3. Screening ===
=== 3. Screening ===
Line 537: Line 556:
#Any expert evidence or opinion. All expert evidence must be presented to the other party within 90 days of the hearing.  
#Any expert evidence or opinion. All expert evidence must be presented to the other party within 90 days of the hearing.  


Evidence that has not been disclosed cannot be presented at a hearing, while also can be inferred to negatively affect your case by the Tribunal. A failure to disclose can also simply prevent a complaint from going forward, or prevent a respondent from filing an application to dismiss.
Evidence that has not been disclosed cannot be presented at a hearing. An attempt to do so may negatively affect a party's case and may even lead to an order for costs by the Tribunal. A failure to disclose can also simply prevent a complaint from going forward, or prevent a respondent from filing an application to dismiss.


=== 5. Settlement Meeting ===
=== 5. Settlement Meeting ===
Line 547: Line 566:
Additionally, settlements can allow for creativity in determining a resolution. While the Tribunal may be limited in its ability to address the damages, mediation can result in constructive results such as public apologies or a practical solution to the issue at hand.  
Additionally, settlements can allow for creativity in determining a resolution. While the Tribunal may be limited in its ability to address the damages, mediation can result in constructive results such as public apologies or a practical solution to the issue at hand.  


This process also allows for a quicker resolution of the issue in a more informal setting, where information is kept confidential. Negotiations are without prejudice, meaning they cannot be used in future hearings, and the mediator involved will not be a part of the final hearing. 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. A settlement agreement is a legally binding agreement, and if one side does not comply with its terms, the other party can take to steps to enforce it.  
This process also allows for a quicker resolution of the issue in a more informal setting, where information is kept confidential. Negotiations are without prejudice, meaning they cannot be used in future hearings, and the mediator involved will not be a part of the final hearing. The process is voluntary and the Tribunal cannot force the parties to participate in mediation or 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 ([https://canlii.ca/t/jwxkg Form 6]). A settlement agreement is a legally binding agreement, and if one side does not comply with its terms, the other party can take to steps to enforce it.  


If both parties cannot agree on a resolution, the mediation will end with no settlement agreement.
If both parties cannot agree on a resolution, the mediation will end with no settlement agreement.


=== 6. Exceptions ===
=== 6. Miscellaneous ===


Due to the COVID-19 Pandemic, there is now a new process for processing complaints about mask wearing in the BC HRT. See the Tribunal’s March 24, 2022 Practice Direction if your client wishes to file a complaint related to masking.
Due to the COVID-19 Pandemic, the Tribunal developed a new process for processing complaints about mask wearing in the BC HRT. On April 20, 2022 the Tribunal paused processing complaints about mask requirements in services for one year, partly because of the sheer number of complaints about mask-wearing under s. 8 that the Tribunal was receiving.  For complaints filed after March 31, 2022, the HRT will dismiss any complaint that does not include the criteria set out in the [http://www.bchrt.bc.ca/law-library/practice-directions/mask-wearing-complaints.htm Practice Direction]. This criteria requires complainants to demonstrate that their protected personal characteristic, if that is a physical disability, actually inhibits the wearing of a mask. If the complainant does not provide this information in their Complaint Form then their complaint will be dismissed without an opportunity to provide more information.  


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


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.
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 complainant may want to fast-track the process if the complainant is at risk of losing the appropriate remedy if urgent action is not taken by the HRT (for example, the complaint is about an eviction notice and the complainant will have to move out in 30 days, without a fast-tracked solution). A party  may also wish to fast-track the process if they are at risk of losing the chance to prove their case (for example, the respondent’s main witness is moving out of Canada soon). For more information on the fast track process, please refer to the BC HRT website: http://www.bchrt.bc.ca/law-library/guides-info-sheets/general-apps/16.htm


== F. Remedies ==
== F. Remedies ==
LSLAP
5,109

edits

Retrieved from "https://wiki.clicklaw.bc.ca/index.php?title=Special:MobileDiff/56249"

Navigation menu