Dismissal applications

DA3: Complaint does not allege a contravention of the Human Rights Code

Last updated: January 30, 2024

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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 Leading Cases: Dismissing a complaint for no arguable contravention of the Code.

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:

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

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 DA4: Complaint has no reasonable prospect of success 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.”


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