Britten v. School District No. 37 (Delta) and others (No.2), 2025 BCHRT 127
Date Issued: May 29, 2025
File: CS-002637
Indexed as: Britten v. School District No. 37 (Delta) and others (No.2), 2025 BCHRT 127
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Lianne Britten
COMPLAINANT
AND:
Board of Education of School District No. 37 (Delta), Leslie MacKay, and Georgina Robinson
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO ADJOURN A HEARING
Rule 30
Tribunal Member: Devyn Cousineau
Counsel for the Complainant: Lawrence Smith
Counsel for the Respondents: Derek Frenette and Anja Nel
I INTRODUCTION
[1] Lianne Britten filed this human rights complaint on September 21, 2020, alleging discrimination in her employment between 2018 and 2019. The complaint is scheduled for a five-day hearing beginning on July 14, 2025.
[2] The Respondents apply to adjourn the hearing pending the outcome of a judicial review of the Tribunal’s decision not to dismiss the complaint on a preliminary basis: Britten v. School District No. 37 (Delta), 2023 BCHRT 216 [ Dismissal Decision ]. Dr. Britten opposes the application.
[3] For the reasons that follow, I am not persuaded that the Respondents’ request for an adjournment is reasonable: Tribunal’s Rules of Practice and Procedure, Rule 30. Rather, an adjournment would inject indeterminate delay into an already delayed process, undermining the just and timely resolution of the complaint on its merits. The application is denied.
[4] I begin with a brief procedural history.
II PROCEDURAL HISTORY
[5] Dr. Britten filed this complaint on September 21, 2020, alleging discrimination in her employment based on physical and mental disabilities. Her allegations of discrimination span the period between September 2018 – September 2019. There is no dispute that her complaints against the School District and Leslie MacKay were filed three days late, and her complaint against Georgina Robinson was almost three months late.
[6] The Tribunal notified the Respondents of the complaint on February 4, 2021. On June 22, 2021, the Respondents applied to have the complaint dismissed on the basis that it was late-filed and had no reasonable prospect of success: Human Rights Code, ss. 27(1)(c) and (g).
[7] Due to systemic backlogs at the Human Rights Tribunal, the Tribunal did not issue its Dismissal Decision until November 24, 2023. The Tribunal exercised its discretion to accept the late-filed complaint under s. 22(3) of the Code and denied the dismissal application in its entirety.
[8] On January 18, 2024, the Respondents filed a petition for judicial review of the Dismissal Decision. They argue that the Tribunal’s process underlying the Dismissal Decision was procedurally unfair because they did not have notice that the Tribunal might consider exercising its discretion to accept the late-filed complaint under s. 22(3). They seek orders to set aside the Dismissal Decision and dismiss the complaint or, alternatively, remit the complaint to the Tribunal. They also seek a stay of proceedings pending the outcome of the judicial review.
[9] On March 1, 2024, Dr. Britten filed her response to the petition. She argues, as a preliminary matter, that the petition is premature and that the Tribunal should be permitted to complete its process without Court intervention.
[10] Since August 2024, the Respondents have tried, unsuccessfully, to schedule two days for the Court to hear the judicial review. They still do not have dates for the judicial review.
[11] On December 10, 2024, the Tribunal convened a case management call to schedule hearing dates. The parties agreed to schedule the July hearing dates. From the Respondents’ perspective, this agreement was conditional on the judicial review being completed before then. They understood that, if it was not, the parties would jointly request an adjournment. I infer from Dr. Britten’s opposition to the adjournment that she took a different view. The Tribunal’s letter summarizing this aspect of the call noted:
The parties are engaged in a judicial review of a Tribunal screening decision and do not yet have scheduled dates for it. Should the judicial review process approach the hearing dates the parties may file an application to adjourn the hearing.
[12] On April 4, 2025, the Respondents filed this adjournment application. As I have said, Dr. Britten opposes the adjournment.
III Decision
[13] A party applying to adjourn a hearing must show why the request is reasonable, and why granting the request will not unduly prejudice the other participants: Rule 30. The Tribunal must interpret and apply these considerations in a manner that facilitates the “just and timely resolution of complaints”: Rule 1(1) ; Chilliwack Teachers’ Association v. Neufeld (No. 4), 2024 BCHRT 284 at para. 6.
[14] To assess whether an adjournment request is reasonable, the Tribunal may consider several factors, including the reason for the request, the length of the requested adjournment, and the timing of the application: Dhillon v. London Drugs and Kuttnick, 2005 BCHRT 423.
[15] The Respondents argue that the request is reasonable because their petition for judicial review may render a hearing moot and/or raise the prospect of inconsistent findings between the Court and the Tribunal. Dr. Britten argues that the request is not reasonable, because it would further prolong an already prolonged process. She characterizes the judicial review as unmeritorious and “tangential litigation”. She argues that it is not reasonable to “shift the consequences of [the Respondents] litigation strategy onto the Complainant”.
[16] I acknowledge that this is the Respondents’ first application for an adjournment, and they have brought their application in a timely manner. However, considering all the circumstances, I am not persuaded it is reasonable to adjourn the hearing pending the outcome of the judicial review.
[17] First, Dr. Britten’s complaint was filed nearly five years ago. It concerns allegations of discrimination dating back almost seven years. Dr. Britten says, and I accept, that any further delay would prolong the “emotional, financial, and professional toll” of this process on her. The just and timely resolution of the complaint is not furthered by any further delay in the Tribunal’s process.
[18] Second, and most significantly, there are no dates set for the judicial review to be heard. Although the Respondents propose a six-month adjournment, on the materials before me it is speculative to assume that this is the amount of time that the judicial review process will take. The parties still need to secure dates, the matter needs to proceed on the dates scheduled, and the Court has to render its decision. The length of the time required for the judicial review to be heard and decided is, at the moment, indeterminate.
[19] Third, the determination of the judicial review may not resolve the complaint.
[20] I acknowledge that, in their petition, the Respondents ask the Court to step into the shoes of the Tribunal and dismiss the complaint under s. 27(1) of the Code . It is not for this Tribunal to weigh in on the merits of the relief sought in the petition. However, in considering the argument that a two-day court hearing could fully and finally dispose of the dispute before the Tribunal, I am mindful that the Court of Appeal has described the circumstances calling for such relief as “rare” or “exceptional”: Allman v. Amacon Property Management Services Inc., 2007 BCCA 302 at para. 12. I am also mindful of the related principle that, where a party succeeds on judicial review, the general rule is that the court will order a rehearing or reconsideration before the administrative decision-maker. The Respondents acknowledge this general principle in their petition, citing Morgan-Hung v. British Columbia (Human Rights Tribunal), 2011 BCCA 122 at para. 66.
[21] At the same time, other possible outcomes of the petition would result in the delay or prolongation of the Tribunal’s process, with perhaps little to no gain for the parties. The petition could be dismissed as premature. It could be dismissed on the merits. The petition could be allowed, with the matter remitted to the Tribunal. In that case, the Tribunal would need to issue a new decision and may arrive at the same result (that is, exercise its discretion to accept the late filed complaint under s. 22(3) of the Code ). These are all circumstances where the Tribunal’s process would be substantially delayed only for the parties to return to the same place in the process. In this context, the Tribunal’s comments in Oya v. University of British Columbia and another (No. 3), 2021 BCHRT 31 at paras. 26-27, are persuasive:
It is significant, in my view, that the relief the Respondents are seeking through their JR Petition is to have the [dismissal decision] set aside and remitted for rehearing by a different Tribunal Member. In other words, this is not a situation where a successful JR Petition will resolve the entire matter, rendering the need for a hearing moot. Rather, a successful JR Petition is as likely as not to still result in a hearing. On the other hand, if the Tribunal hearing proceeds and the complaint is dismissed, the JR Petition will be moot and the matter will be done. If the complaint is allowed, it would remain open to the Respondents to seek judicial review of the Tribunal’s final decision.
If the current JR Petition does not succeed, the parties would be subject to significant delay after having gained nothing. If the JR Petition does succeed, the parties would be subject to delay associated with having the [dismissal application] reheard, which may well result in the parties still heading toward a hearing only now delayed, foreseeably by at least one year…it seems to me, proceeding with the hearing would simply present the Respondents with a choice: whether to continue to pursue the possibility of having a second chance at succeeding on a preliminary dismissal application while concurrently having the matter fully considered and dispensed with on the merits in the near-term; or whether to only deal with the outcome of the latter. [at paras. 26-27]
[22] Finally, I am not persuaded that an adjournment is necessary or appropriate to deal with the prospect of inconsistent results. The Court and Tribunal are considering different questions. Specifically, the Tribunal Member hearing the complaint on its merits will not be considering the procedural fairness of the process giving rise to the Dismissal Decision. There is, technically, no prospect here of inconsistent results.
[23] I understand that, by “inconsistent results”, the Respondents are referring to the prospect that a hearing may render the judicial review moot or – if the judicial review is later successful – be a waste of Tribunal and party resources. I accept that these are possibilities. I also acknowledge the Respondents’ interest in seeking relief from the Court before a hearing on the merits of the complaint.
[24] However, the significance of this prospect depends on the outcome of the hearing. If the Respondents succeed in the hearing, then the complaint will be resolved to their satisfaction. If they do not succeed in the hearing then, as I understand it, it would remain open to them to pursue the petition and seek judicial review of the Tribunal’s final decision at the same time. Ultimately, I cannot conclude that it is overly onerous to require the Respondents in this case to complete a five-day hearing on the merits of the complaint (instead of, or before, a two-day judicial review) because there is some prospect that, later, the Court’s process may render the Tribunal’s hearing moot.
[25] Ultimately, I am not persuaded that any of these various possibilities render the adjournment request reasonable. The Respondents filed their petition for judicial review about 15 months ago. They have had time to pursue it. I acknowledge that the Respondents say the scheduling was out of their control, but this leads me back to my primary concern: there is no assurance of a timely resolution of the judicial review and, subsequently, the complaint. There is no information before me suggesting that the circumstances will be any different six months from now.
[26] For all these reasons, I am not persuaded that an adjournment of this hearing is reasonable. Given this conclusion, I do not need to consider the factor of substantial prejudice.
IV CONCLUSION
[27] In my view, it is unreasonable to adjourn a five-day hearing that will finally resolve a human rights complaint pending a process with no reliable timeline, which may not itself resolve the complaint. At a hearing, the Respondents will have a full opportunity to defend the complaint. The Tribunal will decide the complaint on its merits, bringing its process to a close. In all the circumstances, this is the outcome that best facilitates the just and timely resolution of the complaint.
[28] The request for an adjournment is denied. The hearing will proceed as scheduled.
Devyn Cousineau
Vice Chair