Leading Cases – Dismissing a complaint for no reasonable prospect of success

Section 27(1)(c)

Section 27(1)(c) of the Human Rights Code allows the Human Rights Tribunal to dismiss a complaint if it has no reasonable prospect of success:

Dismissal of a complaint

27  (1) A member or panel may, at any time after a complaint is filed and with or without a hearing, dismiss all or part of the complaint if that member or panel determines that any of the following apply:

  1. (c) there is no reasonable prospect that the complaint will succeed;

General principles

Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95. Section 27(1)(c) allows the Tribunal to dismiss complaints that do not warrant the time and expense of a hearing. The mere chance a complaint will succeed is not enough to hold a hearing. The Tribunal considers the likelihood that facts supporting the complaint will be proved at a hearing. The complaint must be based on more than speculation.

Wickham and Wickham v. Mesa Contemporary Folk Art, 2004 BCHRT 134. Under s. 27(1)(c), the Tribunal does not assess whether there is a mere chance that the complaint will succeed, which would be the lowest threshold a complainant would have to meet.  Nor does it assess whether there is a certainty that the complaint will succeed, which would be at the highest threshold a complainant would have to meet.  Rather, the Tribunal assesses whether there is a reasonable prospect the complaint will succeed based on all the information available to it: para. 12.

Evidence in a section 27(1)(c) application

University of British Columbia v. Chan, 2013 BCSC 942. The Tribunal can only consider the information that the parties put before it: para. 77. It cannot consider what evidence might be given if there is a hearing.

Bell v. Dr. Sherk and others, 2003 BCHRT 63. The Tribunal can only make a decision based on the information which it has. It is the responsibility of the parties to put before the Tribunal the information which they believe is necessary, and in a form they consider appropriate: para. 25.

Becker v. Cariboo Chevrolet Oldsmobile Pontiac Buick GMC Ltd. (No. 2), 2004 BCHRT 80. An affidavit is the best way for evidence to come before the Tribunal: para. 17. However, not all issues can be resolved by affidavit, and affidavits are only as useful as the value of the evidence they contain. Affidavits should not include arguments or opinions about whether a person has ever discriminated. If a person does not have a lawyer, the Tribunal will be less concerned about whether they provide an affidavit. It will look past differences in presentation to assess the real merits of the application: para. 57.

Credibility

Bell v. Dr. Sherk and others, 2003 BCHRT 63. The fact that a complaint raises issues of credibility is not, in and of itself, sufficient reason to deny an application to dismiss. Credibility is a factor in virtually every human rights complaint. In an application to dismiss, the Tribunal will evaluate the evidence to determine if there is no reasonable prospect that the complaint will succeed: paras. 28-29.

Evans v. University of British Columbia, 2008 BCSC 1026. Where a credibility issue is central to a complaint, the Tribunal can still consider whether it can resolve the issue on the basis of corroborative affidavit or documentary evidence: para. 37.

Ritchie v. Central Okanagan Search and Rescue Society and others, 2016 BCHRT 110. The Tribunal does not make findings of fact in a s. 27(1)(c) application. However, it does assess the evidence. It looks for internal and external consistency, places the evidence in context, considers the overall relationship of the parties, and considers all of the circumstances in which the alleged acts of discrimination occurred. On this basis, the Tribunal gauges the relative strengths and weaknesses of the case and determines what aspects of the complaint do not rise above conjecture and, in light of all of the material, have no reasonable prospect of success: para. 120.

Defences

Purdy v. Douglas College and others, 2016 BCHRT 117.  The Tribunal may consider a defence in an application under s. 27(1)(c). If it is reasonably certain that a respondent would establish a defence at a hearing of the complaint, then there is no reasonable prospect that the complaint will succeed: para. 50.

Whether a respondent has met the duty to accommodate is a question of fact. It will depend on the specific circumstances and relevant considerations appropriate to each case. In an application under s. 27(1)(c), the Tribunal’s role is not to determine, as a matter of fact, whether the respondent met its duty. Rather, the Tribunal considers the likelihood that the respondent will be able to establish that defence. The respondent must persuade the Tribunal that it is reasonably certain it will be able to do so. This requires the respondent to provide the Tribunal with evidence showing that it took all reasonable and practical steps, including effort to look at alternative approaches. The Tribunal will be alert to shortfalls in the evidence regarding relevant considerations and situations where the evidence requires testing by way of cross-examination: para. 63.