Complaint Process
Questions Where the Tribunal Must be Correct
The Tribunal must be correct when it sets out the law about discrimination and its powers under the Code (called “jurisdiction”).
Correctness means that the court can substitute its answer on the question.
The courts have also said that they must be careful about choosing the correctness standard, to make sure that it is not applied to a question of fact or discretion:
University of British Columbia v. Kelly, 2015 BCSC 1731, affirmed 2016 BCCA 271
Providence Health Care v. Dunkley, 2016 BCSC 1383
J.J. v. School District 43 (Coquitlam), 2013 BCCA 67
Ismail v British Columbia (Human Rights Tribunal), 2013 BCSC 1079 at para. 31
Kinexus Bioinformatics Corporation v. Asad, 2010 BCSC 33 at paras. 30-32
Legal principles about prima facie discrimination
University of British Columbia v. Kelly, 2016 BCCA 271
Vancouver Area Network of Drug Users v. British Columbia Human Rights Tribunal, 2015 BCSC 534 (judgment on appeal reserved October 6, 2016)
Boehringer Ingelheim (Canada) Ltd./Ltรฉe. v. Kerr, 2011 BCCA 266
Burden of proof for prima facie discrimination
Armstrong v. British Columbia (Ministry of Health), 2010 BCCA 56, leave to appeal denied, [ 2010] SCCA No. 128 (QL)
Legal principles about the duty to accommodate
University of British Columbia v. Kelly, 2016 BCCA 271
Providence Health Care v. Dunkley, 2016 BCSC 1383
Emergency Health Services Commission v. Cassidy, 2011 BCSC 1003
Discrimination based on agreed statement of facts
Lavender Co-operative Housing Assn. v. Ford, 2011 BCCA 114
International Forest Products Ltd. v. Sandhu, 2008 BCCA 204
Application of the Code to the Tribunal’s findings of fact
Foglia v. Edwards, 2007 BCSC 861 at paras. 22 and 33
Application of s. 13 of the Code to undisputed facts; failure to apply s. 41
Lavender Co-operative Housing Assn. v. Ford, 2011 BCCA 114
St. James Community Service Society v. Johnston and the British Columbia Human Rights Tribunal, 2004 BCSC
Meaning of “regarding employment”
Schrenk v. British Columbia (Human Rights Tribunal), 2016 BCCA 146, (appeal to the Supreme Court of Canada to be heard in March 2017)
Equity partner
McCormick v. Fasken Martineau DoMoulin LLP, 2014 SCC 39
Union
Goddard v. Dixon, 2012 BCSC 161 at paras. 187-193
Master-of-ceremonies of a comedy show
Ismail v British Columbia (Human Rights Tribunal), 2013 BCSC 1079
Co-employer
HMTQ et al v. Emergency Health Services Commission et al, 2007 BCSC 460
Master-of-ceremonies of a comedy show
Ismail v British Columbia (Human Rights Tribunal), 2013 BCSC 1079
Private golf club
Marine Drive Golf Club v. Buntain, Charles et al, 2007 BCCA 17, leave to appeal denied [2007] SCCA No. 112 (QL)
Interpretation of s. 43
Cariboo Chevrolet Pontiac Buick GMC Ltd. v. Becker, 2006 BCSC 43* Note subsequent amendment to s. 43 of the Code
Jurisdiction to consider Charter challenges to the Code
Ismail v British Columbia (Human Rights Tribunal), 2013 BCSC 1079
Jurisdiction to order mediation and remain seized of remedial issues
Coast Mountain Bus Company Ltd. v. National Automobile, Aerospace, Transportation and General Workers of Canada (CAW – Canada), Local 111, 2010 BCCA 447
Jurisdiction over judges
Gonzalez v. Ministry of Attorney General, 2009 BCSC 639
Jurisdiction to dismiss a complaint for refusal to accept a reasonable settlement offer
Carter v. Travelex Canada Limited, 2009 BCCA 180
Determination that complaint not clearly outside jurisdiction
Barker v. Hayes, 2006 BCSC 1217, aff’d 2008 BCCA 148
Jurisdiction to award compensation against the Crown
British Columbia v. Bolster, 2007 BCCA 65, leave to appeal denied, [2007] SCCA No. 167
HMTQ v. Hutchinson, 2005 BCSC 1421
Jurisdiction over complaint dismissed by former BCCHR
Solowan v. British Columbia (Attorney General), 2007 BCSC 752
Prosectutorial immunity
British Columbia v. Crockford, 2006 BCCA 360
Provincial jurisdiction
Carson v. Knucwentwecw Society, 2006 BCSC 1779 at para. 20
Death of complainant
British Columbia v. Gregoire, 2005 BCCA 585; leave to appeal denied, [2006] S.C.C.A .No. 23 (QL)
Scope of jurisdiction to reopen a hearing
Karin Willoughby v. Ballendine et al. (19 December 2007) Victoria 07-2265 (S.C.)
Application of the de facto doctrine
British Columbia v. Bolster, 2007 BCCA 65, paras. 115-124, leave to appeal denied, [2007] S.C.C.A .No. 167
Determination of “arguable relevance” in a disclosure application
C.S. v. British Columbia (Human Rights Tribunal), 2017 BCSC 1268, paras. 174-175