Hamilton v. BC Ministry of Attorney General (Court Services Branch), 2026 BCHRT 75
Date Issued: March 26, 2026
File(s): CS-007406
Indexed as: Hamilton v. BC Ministry of Attorney General (Court Services Branch), 2026 BCHRT 75
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:
David Hamilton
COMPLAINANT
AND:
His Majesty the King in Right of the Province of British Columbia as represented by the Ministry of Attorney General (Court Services Branch)
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Devyn Cousineau
On his own behalf: David Hamilton
Counsel for the Respondent: Jaclyn Salter
I INTRODUCTION
[1] David Hamilton has disabilities, which result in low literacy. He went to the Courtenay courthouse to lay a private information. Under the Criminal Code, a private information must be laid in writing before a justice of the peace [JP]. Mr. Hamilton asked a Court Services JP to accept the information orally and they refused. He says that this was disability discrimination in a service customarily available to the public, in violation of s. 8 of the Human Rights Code. Mr. Hamilton also says that he is being discriminated against by a judicial direction that his applications must be vetted by a judge before they can proceed.
[2] The Court Services Branch [CSB] applies to have the Tribunal dismiss the complaint because it has no reasonable prospect of success: Code, s. 27(1)(c). It says, first, that Mr. Hamilton’s complaint is barred by the doctrine of judicial immunity, which applies to orders made by a judge and the conduct of a JP. Second, it argues that the complaint does not engage s. 8 of the Code because it does not relate to any service that it provides to the public. Third, it argues that requiring Court Services JPs to accept an oral information would give rise to undue hardship.
[3] For the following reasons, I am satisfied that the constitutional principle of judicial immunity applies to bar Mr. Hamilton’s complaint. Even if I had found otherwise, Mr. Hamilton has no reasonable prospect of proving that his allegations relate to any service customarily provided by CSB. The complaint has no reasonable prospect of success. It is dismissed.
II DECISION
[4] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing. The onus is on CSB to establish the basis for dismissal.
[5] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan,2013 BCSC 942 at para. 77.
[6] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority,2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission,[1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 [Hill] at para. 27.
[7] Mr. Hamilton brings this complaint under s. 8 of the Code. That section prohibits discrimination in “services customarily available to the public”.
[8] There is no dispute at this stage that Mr. Hamilton is protected from discrimination in services based on his disabilities. CSB argues that he will not be able to prove that he was treated badly in a service customarily available to the public.
[9] There are two parts to Mr. Hamilton’s complaint:
a. The allegation that CSB discriminated against him in connection with a judicial direction to vet his applications before setting a hearing date; and
b. The allegation that a Court Services JP discriminated against him by requiring that he submit an information in writing.
[10] I consider each in turn.
A. Judicial direction
[11] Mr. Hamilton alleges that he was adversely impacted by a judicial direction that any of his applications must be vetted by a judge before they could proceed. He argues that CSB has refused to put this direction in writing because of his disability.
[12] I agree with CSB that this allegation has no reasonable prospect of success because it is barred by the principle of judicial immunity.
[13] Judicial immunity is rooted in the Constitution Act, 1867. It exists to insulate the judiciary from interference by other branches of government and ensure they can make their decisions free from fear of civil consequences: Steele v. Aishwarya Investments and another, 2014 BHCRT 192 at para. 286; Madadi v. BC (Ministry of Education), 2012 BCHRT 380 at para. 32. Judicial immunity “includes both deliberative immunity, which prevents a judge from being compelled to testify about their deliberations or to justify their judgment (outside of reasons for judgment), and judicial administrative immunity, which protects the administrative or institutional aspect of judicial independence”: R. v. Swaine, 2025 ONCA 614 [Swaine] at para. 9. It applies to complaints under the Code: Steele at para. 286.
[14] A judicial direction, and judicial vetting of proposed applications, fall squarely within the type of legal action that is barred by the principle of judicial immunity. To the extent that Mr. Hamilton’s complaint is about these judicial actions, it has no reasonable prospect of success.
[15] To the extent that Mr. Hamilton’s complaint is that CSB ought to have written out the judicial direction so he could understand it, I also find it has no reasonable prospect of success. CSB is independent from the judiciary. There is no evidence to support that its services include writing down judicial directions.
[16] This part of the complaint is dismissed.
B. The information
[17] Laying a private information initiates the process of a private prosecution of an accused person under the Criminal Code. Section 504 of the Criminal Code sets out the requirements for a private information. It provides, in relevant part:
504 Any one who, on reasonable grounds, believes that a person has committed an indictable offence may lay an information in writing and under oath before a justice, and the justice shall receive the information…
[18] The Criminal Code sets out the form for a private information: Form 2. It requires that the information be sworn before a JP. Once a private information is laid, and if it is allowed to proceed, a judge can decide whether to compel the accused to attend court and respond to the allegations.
[19] In the BC Provincial Court, Court Services JPs are responsible for all matters relating to receiving informations: Notice 14: Court Services Justices of the Peace: Assignment of Duties Pursuant to s. 11 of the Provincial Court Act (May 17, 2021). CSB staff who have not been appointed as JPs cannot accept informations.
[20] There appears to be no dispute in this case that Mr. Hamilton attended the Courtenay courthouse in 2022 seeking to lay a private information. He advised CSB staff that he could not write out the information because of his disabilities. He asked the Court Services JP to accommodate him by accepting a verbal information. The Court Services JP declined the request.
[21] Mr. Hamilton argues that the requirement that he submit an information in writing creates a disability-related barrier for his ability to access the courts. He argues that CSB should accommodate him by helping him to prepare written documents. One way to do this, he suggests, is for the Attorney General to fund Legal Aid BC to provide a designated lawyer or advocate to help with drafting documents in court.
[22] There are two main problems with Mr. Hamilton’s arguments.
[23] First, I agree with CSB that the conduct of a JP in accepting a private information is of a judicial nature. Liability under the Code is barred by judicial immunity.
[24] Judicial immunity applies to JPs in BC. Like judges, this immunity is rooted in the Constitution. In Ell v. Alberta, 2003 SCC 35, the Supreme Court of Canada recognized the important role of JPs in Canada’s administration of justice: para. 4. In light of their judicial functions, which include being the “point of entry into the criminal justice system” and making decisions that affect Charter rights, they are subject to the same principles of judicial independence as apply to judges: para. 24. Judicial independence is the foundation for judicial immunity: Swaine at para. 8.
[25] CSB has also cited the statutory immunities afforded to JPs under s. 42 of the Provincial Court Act and s. 3(2)(a) of the Crown Proceeding Act. In my view, it is not necessary in this decision to interpret those provisions and determine whether they are clearly intended to exempt JPs from the application of human rights legislation: Uber Canada Inc v. Bauer, 2025 BCSC 1790at paras. 47-52. This is because my understanding of the constitutional immunity is determinative.
[26] When a JP is receiving an information, they are conducting a judicial function. In exercising that function, they are not subject to the Code.
[27] Mr. Hamilton cites Canada (Attorney General) v. Power, 2024 SCC 26, for the proposition that “the state is not immune from damages”. In Power, the majority concluded that “[t]he state is not entitled to an absolute immunity from liability for damages when it enacts unconstitutional legislation that infringes Charter rights”: para. 4. I accept that principle, but it does not apply here. This complaint is not about the Charter, or the state enacting legislation. It is about the immunity that applies to JPs in the exercise of their judicial functions, in order to ensure their independence and the proper administration of justice.
[28] Second, even if I had not found that Mr. Hamilton’s complaint was barred by the principle of judicial immunity, I would have found he had no reasonable prospect of proving that it engages a service customarily provided by CSB. To the contrary, CSB is reasonably certain to prove that Court Services JPs and/or Court Registry staff do not draft legal documents or help people complete forms. Rather, they review and accept forms for filing and process applications. This is made clear in the publicly available information about Court Registry services, which explains:
The registry is the official keeper of all documents and records that are filed for cases.
…
While court registry staff will try to answer your questions about court process, they cannot help complete your forms or give advice about legal problems – it’s best to check with a lawyer or legal professional for this kind of help.
CSB explains, and I accept, that one reason that JPs do not help with completing forms or drafting documents is that this would compromise their obligation to “both be and appear to be independent, impartial, and unbiased” and to “avoid all conflicts of interest, whether real or perceived”: Justice of the Peace Code of Ethics, Rules 1 and 1.01.
[29] This is not a situation like Eldridge v. British Columbia (Attorney General), 1997 CanLII 327, a case cited by Mr. Hamilton. In Eldridge, the Court found that “[e]ffective communication is quite obviously an integral part of the provision of medical services”: para. 69. As such, hospitals were obliged to offer Deaf patients ASL interpretation to ensure their equitable access to medical services. In contrast here, filling out a court form is not an integral part of the services of a JP or Court Registry. Rather, this is a separate service that may be provided by other agencies. Because there is no evidence that filling out forms is part of the services of the Court Registry, and/or Court Services JPs, Mr. Hamilton has no reasonable prospect of proving that s. 8 of the Code is engaged.
[30] Mr. Hamilton proposes that assistance with forms is a service that could be funded and provided through Legal Aid BC. That may be true. However, this complaint is about Mr. Hamilton’s allegation that CSB discriminated against him in its services. The fact that the Attorney General may have opted to provide a different service is, respectfully, not relevant.
[31] Finally, I acknowledge that I have not addressed all of Mr. Hamilton’s arguments based on the application of the Charter of Rights and Freedoms. That is because this Tribunal does not have jurisdiction over constitutional questions relating to the Charter: Administrative Tribunals Act, s. 45(1); Code, s. 32(i).
III CONCLUSION
[32] Mr. Hamilton’s complaint has no reasonable prospect of success. It is dismissed under s. 27(1)(c) of the Code.
Devyn Cousineau
Vice Chair