Application to Dismiss Complaint: Complaint Does Not Allege a Contravention of the Human Rights Code

Information Sheet DA3

This information sheet tells you:

• Legal test: section 27(1)(b) of the Human Rights Code
• The legal test for discrimination
• Information the Tribunal will consider
• Sample argument

Legal test: section 27(1)(b) of the Human Rights Code

The respondent must show that the complainant’s facts could not be discrimination.

See section 27(1)(b).

The legal test for discrimination

In most cases, the legal test for discrimination has three parts:

1. Ground of discrimination
   
   The complainant has a characteristic such as race or disability that the Code protects, or
   
   The respondents thinks the complainant has the characteristic.

2. Harm in a protected area
   
   The respondent harmed the complainant in a protected area such as employment.
   
   The legal term for harm is “adverse effect” or “adverse impact”.

3. Connection between harm and ground of discrimination
   
   There is a connection between the harm and the ground of discrimination.

   For more information, see:

   • Employment
   • Services
   • Housing
   • Membership in a Union or Association

   The legal test for discrimination is different in some areas. For more information, see:

   • Employment ad
   • Publication
   • Wages based on sex

Information the Tribunal will consider

The Tribunal will only consider the complainant’s facts.

The complainant does not need to prove discrimination now. They only need to state facts that show there could be discrimination.

The Tribunal does not consider the respondent’s facts under s. 27(1)(b).

The Tribunal does not consider the respondent’s defence.

See Information Sheet D4 if the respondent wants to rely on their own facts or defence.

Sample argument

“The complainant says we disciplined him because of his disability.

I rely on Bailey v. B.C. (Min. of Attorney General) (No. 2), 2006 BCHRT 168 at paragraph 16. It is not enough to say, “I have a disability and the respondent treated me unfairly.”

The complainant says he has bipolar disorder. He says we gave him a written warning for his conduct in February. He does not show any connection between his disability and the warning. He does not say his disability caused his conduct. The facts in the complaint do not suggest his disability was a factor in our decision to discipline him.”