The B.C. Human Rights Tribunal
By Stan Leyenhorst
Human rights complaints related to discrimination as specified in the BC Human Rights Code are appearing more and more in various media and continue to be a source of concern for many. A general overview of the BC Human Rights Tribunal can provide information regarding its history, including recent changes, the establishment of the Tribunal, its role, and the process of complaints resolution.
The BC Human Rights Tribunal (BCHRT) came into existence on March 31, 2003 when the Human Rights Code Amendment Act, 2002 was proclaimed. The BCHRT is an independent, quasi-judicial body created to be responsible for human rights complaints in BC. It accepts, screens, mediates and adjudicates human rights complaints as they relate to the Code.
Before March 31, 2003, human rights services were provided through three agencies and were further splintered within each agency. The first agency, the BC Human Rights Commission, was divided into three separate commissions. The Chief Commissioner provided public education; the Deputy Chief Commissioner held hearings and consultations and conducted research; and the Commissioner of Investigation and Mediation received, investigated and mediated human rights complaints, and also decided which complaints were referred to the BC Human Rights Tribunal.
The Tribunal – the second agency under the Code – was governed by the Rules of Practice and Procedure and processed the cases referred. This process provided for mediation as well as hearings and pre-hearing preparation. Generally, the Tribunal’s role was adjudicative and thus hearings were held to determine if complaints were justified and, if so, appropriate remedies were ordered.
The third agency, the Advisory Council, was responsible for making the Commission aware of public concerns and informing the public about the Commission’s work. The Council provided the Commission and the government minister responsible with relevant advice.
When the BCHRT came into existence in 2003 , it became the sole independent agency for human rights services in BC. The BCHRT accepts complaints directly and can resolve complaints without investigation. The Attorney General (AG) is now responsible for the public education, research, consultation and information regarding human rights in BC. Human rights clinics, funded through the AG, provide services to complainants and respondents engaged in the human rights process.
The BCHRT is made up of a Chair and other members, all of whom are appointed by the Lieutenant Governor in Council, and are also experts in human rights law. The BCHRT deals with human rights complaints arising in British Columbia that are covered by the Code. Discrimination complaints not covered by the Code – such as those relating to the Canadian Charter of Rights and Freedoms or some other matter outside of the BCHRT jurisdiction – are dealt with by other agencies.
The majority of complaints covered by the Code and processed by the BCHRT are related to discrimination. The relevant sections of the Code include ss. 7-14, which state that one cannot discriminate based on criteria including race, colour, ancestry, religion, country of origin, gender, sexual orientation, marital status, or physical or mental disability.
The mechanics of the Code and the BCHRT become clearer when considering the complaint procedure.
Before a complaint is accepted for filing, an inquiry officer provides basic information about human rights protection under the Code, the complaint process, and other organizations providing assistance in human rights matters. If the inquiry is not within the jurisdiction of the BCHRT, the officer may refer the complainant to other agencies. Upon acceptance of a human rights complaint the BCHRT follows the Rules of Practice and Procedure.
The complainant’s first step in the process is to file a complaint. The complaint then goes through a screening process to determine jurisdiction, completeness of forms, and whether the complaint was filed within six months of an alleged incident. If the complaint does not involve a BC matter or human rights covered by the Code, the case manager will recommend to the Chair that the complaint be rejected. If the forms are not complete there may be a limited extension granted to properly complete; or, if the filing is beyond the six-moth limitation, the BCHRT may, at its discretion, allow the complaint anyway.
After the complaint is properly screened, the BCHRT notifies the parties that the complaint has been accepted; they may now choose to meet at a settlement hearing where a BCHRT-appointed mediator assists in resolving the complaint. In its first year, the Tribunal resolved approximately 70% of the more than 120 cases that were mediated at this stage.
If the parties are unable to resolve their dispute at this early stage, the respondent must file a response to the complaint. The respondent may also file an application to dismiss or defer the complaint. Section 27(1) of the Code specifies a variety of reasons for dismissal or deferral: no jurisdiction, no contravention of the Code, no reasonable prospect of success, proceeding would not benefit the person, group or class discriminated against or would not further the purposes of the Code, 27(1)(e) complaint made in bad faith or for improper motives, 27(1)(f) complaint appropriately dealt with in another proceeding, 27(1)(g) alleged contravention outside of time limit.
Referral or dismissal may only occur after both parties provide submissions to a BCHRT member, designated by the chair. The power to defer the hearing of a complaint is new to the BCHRT and was used nine times in its first year. The power to dismiss a hearing of a complaint is also recent and was used 39 times in the first year.
Once a response is filed, the parties have another opportunity to take part in a settlement meeting mediated by a BCHRT member or appointee. In the first year, of the more than 125 complaints that made it to this stage, approximately 70% were settled. If there is still no settlement of the complaint, the parties prepare for the hearing by exchanging relevant documents, witness lists and remedy positions.
Hearings are held before a panel of one or three members of the BCHRT, are open to the public and are attended by both parties. Parties may appear self-represented or may choose to be represented by a lawyer or agent. Evidence is provided through witnesses, documents and other items that the parties think relevant.
The BHCRT-appointed panel adjudicates based on the evidence, the arguments and relevant law. If the panel decides that the complaint is not justified, it dismisses the complaint. If the complaint is found to be justified the panel makes orders to remedy the discrimination. The BCHRT can order a wide range of remedies, including ordering the discriminating party to implement policies to prevent such discrimination in the future, and ordering the payment of compensation for lost wages and/or injury to dignity, feelings and self-respect.
In 2003/2004, 23 decisions were rendered. Of these, 15 cases were determined to be justified and remedies were ordered, and the remaining eight cases were dismissed. The decisions were made in cases related to discrimination based on gender, disability, age, race, ancestry and place of origin, and lawful source of income. No final decisions were rendered with respect to discrimination based on sexual orientation, religion, political belief, marital status, family status, or prior criminal convictions. Nine final decisions concerned complaints of gender discrimination, and the BCHRT held that eight of the nine were justified. In one case the remedy included an award of $10,000 for extensive and prolonged injury to dignity, feelings and self-respect (Gill v. Grammy’s Place Restaurant and Bakery Ltd., 2003 BCHRT 88).
Nine final decisions concerned complaints of discrimination based on disability – five cases related to physical disability, two to mental disability and two to physical and/or mental disability. Six of the nine complaints were held to be justified. In one case, the Tribunal held that a deaf person was discriminated against because he had to pay for a special test before receiving a Class 4 Driver’s License (Hussey v. B.C. Min. of Public Safety and Solicitor General 2003 BCHRT 76).
Although a BCHRT decision cannot be appealed, the BCHRT is subject to the supervision of the courts with respect to its decision-making. If a party believes that the BCHRT erred in the exercise of its decision-making powers a judicial review may be sought in the Supreme Court of British Columbia.
Discrimination within the context of the Code and the process of complaints has only been briefly explained here. There is, of course, much more information available. To understand the issue of discrimination and to protect oneself against complaints, the full text of the BC Human Rights Code and all relevant information related to the BCHRT are readily available. The BCHRT has also published a number of guides and information sheets to explain the details of the process. Finally, all decisions rendered are available and can be accessed on the “internet.”
 The first Annual Report (2003/2004) has been published by the BCHRT Chair with details regarding the progress of implementation of the changes to human rights services as provided through the BCHRT. This report is available on the website (http://www.bchrt.bc.ca) in its entirety for the interested reader.
Human Rights Tribunal – All Bad?
Many accuse the BC Human Rights Tribunal (and its counterparts across the country) for promoting the homosexual agenda and for assisting those with a general anti-Christian agenda. They do so in the same way as they criticize the courts and the judges at all levels of the judiciary. Is this justified? We leave you with these reflections:
1) While adjudicators at the BCHRT and in the courts do not always arrive at decisions that we would agree with, should our primary concern not be those who use the BCHRT and the courts as tools to promote an ungodly worldview and lifestyle, and ultimately to promote rebellion against God?
2) The BCHRT may well perform good and useful functions, as it ultimately upholds the rule of law and applies the laws and Codes established by government. Indeed, there may be a day when we will find the BCHRT a useful place to reinforce our ability to continue to freely hold and express our views in this country.
3) The BCHRT is only as good as the Code that it applies. Is there room for revision of the Code?
4) The BCHRT is only as good and useful as the adjudicators appointed to it. What is the appointment process, who is being appointed and on what grounds? Is there room or opportunity for a Christian to be appointed to the BCHRT and should that be pursued further?
Do these issues intrigue you? ARPA welcomes your comments, insight and, if you feel so inclined, your involvement on a proposed BCHRT Committee.