The Members’ Code of Conduct
I Purpose of the Code of Conduct
- The purpose of the Code of Conduct is to promote the highest standards of conduct by members of the BC Human Rights Tribunal [Tribunal], in order to maintain and enhance public confidence in the integrity, independence, impartiality, and effectiveness of the Tribunal.
II Application of the Code of Conduct
- Tribunal members are required to comply with the Code of Conduct.
- The Code of Conduct governs members’ conduct from the commencement to the completion of their term of appointment, and outlines their continuing responsibilities after the completion of their term.
- The Code of Conduct is to be read together with the Tribunal’s Rules of Practice and Procedure, policies, and practice directions.
- In the Code of Conduct, a Tribunal proceeding includes all aspects of a complaint proceeding, including the conduct of case conferences, mediations, and making any decision, order, or direction in respect of a complaint.
- Members must act with honesty, integrity and high ethical standards.
- Members must conduct themselves personally and professionally in a manner consistent with the nature of their responsibilities and the maintenance of public confidence in the administration of justice.
- Members must not engage in conduct that exploits their position as a member of the Tribunal.
- Members must not use information which is not generally available to the public, and which the member has obtained through their Tribunal duties, to obtain a personal benefit or a benefit for a person with whom the member has a relationship or association.
- Members must conduct Tribunal proceedings independently and free of extraneous influence.
- Members must firmly reject any attempt to influence their decisions in any matter before the Tribunal outside of the proper process of the Tribunal.
- Members must make each decision according to the true merits of the case, on the basis of evidence presented and the applicable law. Members must apply the law to the evidence in good faith and to the best of their ability. Members must approach decision-making with a mind that is genuinely open with respect to every issue, and open to persuasion by convincing evidence and argument. Members must avoid doing or saying anything that would cause a reasonable, well-informed individual to think otherwise.
- Members must not be influenced by partisan interest, public opinion, fear of criticism, or the prospect of disapproval from any person, institution, or community.
VI Obectivity and Impartiality
A. Conduct generally
- Members must act, personally and professionally, so as to avoid the appearance of bias.
- Members may engage in remunerative employment with another employer, carry on a business, receive remuneration from public funds for activities outside their position, or engage in volunteer activities [outside work] provided that:
- the member notifies the Tribunal chair of outside work at the time that the opportunity arises and consults with the chair if there is any issue about whether the outside work complies with this provision;
- arranges their outside work so as to minimize the likelihood of conflicts arising that may affect their neutrality or give rise to an allegation of bias;
- the outside work does not:
- interfere with the performance of their duties as a member of the Tribunal;
- bring the Tribunal into disrepute;
- appear to be on behalf of the Tribunal or to represent Tribunal opinion or policy;
- involve the use of work time or government premises, services, equipment, or supplies;
- result in an advantage or the appearance of an advantage to another person as a result of the member’s appointment as a member of the Tribunal; or
- result in payment while the member is in receipt of short-term and/or long-term disability plan payments.
- Members must not offer assistance or provide legal, consulting or other services in relation to a matter before the Tribunal or that could come before the Tribunal, other than the assistance given in the ordinary course of their duties, whether the assistance or services are provided for remuneration or otherwise.
- A member must not accept money, awards, or gifts from persons who may be or who have been affected by a Tribunal decision. A member shall normally be allowed to accept a gift offered as an honorarium for a speaking engagement. If there is any doubt regarding the propriety of accepting a gift, the member should consult with the chair.
- Members are free to engage in political activities so long as they are able to maintain their impartiality and the perception of impartiality in relation to their duties and responsibilities. Members’ political activities must be clearly separated from activities related to their role as members.
- Members using social media must ensure that they do so in a manner that minimizes concerns about their neutrality.
B. Conduct of Tribunal proceedings
- Members must maintain their objectivity and impartiality in the conduct of all Tribunal proceedings, and must refrain from conducting themselves in a manner that might suggest a lack of objectivity or impartiality.
- A member must not participate in any Tribunal proceeding or discussion in which the facts may give rise to a reasonable apprehension of bias or conflict of interest on the part of the member.
- A member must not participate in any Tribunal proceeding where the member has (or has had within the last 12 months) a significant or close personal, professional, or businessrelationship with a party, party’s representative, or witness.
- A member must not participate in any Tribunal proceeding in which the member or close relation or associate of the member has had any prior involvement.
- Except when conducting a mediation, a member must not communicate directly or indirectly with any party, representative, or witness at any stage of a Tribunal proceeding, except in the presence of all parties and/or their representatives, or unless the correspondence is copied to all the parties and/or their representatives.
- Where a member cannot reasonably avoid contact with a party, representative or witness during the course of a proceeding absent all parties and their representatives, the member will restrict their communication to matters unrelated to the proceeding.
C. Bias and conflict of interest
- A reasonable apprehension of bias exists when a reasonable, well-informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude that it is more likely than not that the member, whether consciously or unconsciously, would not decide fairly.
- A member must identify and disclose to the Tribunal chair, at the earliest possible opportunity, circumstances which may give rise to a reasonable apprehension of bias or conflict of interest in respect of any of the member’s responsibilities. If a member has any question as to whether a reasonable apprehension of bias or conflict of interest exists, the member must consult with the chair at the earliest opportunity in order to make that determination.
- Where it has been determined that a reasonable apprehension of bias or conflict of interest may exist, the member must not deal with the complaint and a notation will be made on the front of the paper file and on the electronic file that the member shall have no access to that file.
- Where the chair determines that the chair has a potential bias or conflict of interest in respect of a matter before the Tribunal, the chair must instruct Tribunal staff that all communications regarding the matter are to be directed to a designated member of the Tribunal. The file will be marked “No Access to Tribunal Chair” and the chair must not participate in decisions regarding the complaint, including the choice of member designated to make a decision or order in respect of a complaint, the scheduling of the hearing, or the release of the decision.
- Where, after being designated to make a decision or order in respect of a complaint, a member becomes aware of a possible conflict of interest or of facts which may give rise to a reasonable apprehension of bias, and the circumstances are unknown to the parties or their representatives, the member must:
- immediately resign from the proceeding if the member determines that there is a reasonable apprehension of bias; or
- inform the parties of the circumstances and provide an opportunity to make submissions, and then determine if there is a reasonable apprehension of bias, in which case the member must immediately resign from the proceeding.
- Where an allegation of conflict of interest or bias is raised by a party, the member may hear submissions from the parties, and must determine whether they should resign from the matter.
VII Equality and Respect
- Members must treat all persons in the course of a Tribunal proceeding with courtesy and respect and in a manner that builds trust and confidence in the Tribunal and the administration of justice.
- Members should make every effort to ensure that all participants and their representatives treat each other with courtesy and respect.
- Members must carry out their duties with appropriate consideration for all persons without discrimination and in a manner that furthers the purposes of the Human Rights Code.
- Members, in the conduct of a Tribunal proceeding, should disassociate themselves from and disapprove of clearly irrelevant comments or conduct by a party, representative or other person subject to the member’s direction which are sexist, racist, or otherwise demonstrate discrimination.
VIII Accessibility and Self-represented Persons
- Members should strive to be aware of barriers which may restrict access to the Tribunal.
- Members must give effect to the Tribunal’s obligation to ensure access to the Tribunal through reasonable accommodation.
- Members should ensure that procedural and evidentiary rules are applied flexibly to promote fairness.
- While maintaining the required objectivity and impartiality, members must promote access to the Tribunal and it may be appropriate for a member to:
- explain to a self-represented party the procedure to be followed, including procedural options;
- refer a self-represented party to an agency to assist the party;
- outline the relevant evidentiary and procedural rules;
- outline the uncontroverted legal principles which apply to the complaint and the facts that each party bears the burden of proving;
- explain the implications of the relevant law before a self-represented party makes critical choices;
- modify the process including the usual order of taking evidence; or
- question witnesses.
IX Expertise and Competence
- Members should be expert and current with the relevant legislation, rules, policies and case law.
- Members should take reasonable steps to maintain and enhance their knowledge and skills necessary to fulfil their duties as a member, including participating in members’ meetings and Tribunal training and professional development sessions.
- Members must take reasonable steps to ensure that proceedings are concluded in a timely manner, avoiding unnecessary delays.
- Members should strive to release decisions as soon as possible after the completion of a hearing to meet applicable timelines, policies and standards.
- Members should be fully prepared for a proceeding and ensure that proceedings are conducted in an orderly manner, in accordance with applicable rules.
- Members must maintain the integrity of Tribunal proceedings.
- Members should ensure that decisions are prepared in accordance with Tribunal policies and guidelines, including style and writing guidelines.
- When exercising their independent decision-making authority, members must recognize the value of consistency in the Tribunal’s decisions. If a member departs from another Tribunal decision, the member should provide reasons for doing so.
- Members must foster a collegial working environment and conduct themselves in a manner that reinforces the integrity and professionalism of the Tribunal.
- Members must conduct themselves in a manner that demonstrates respect for the views and opinions of colleagues.
XI Confidentiality and Public Comment
- Members must respect the confidentiality of the Tribunal’s decision-making processes. Except as required by law, a member must not divulge confidential information obtained in the course of their duties, other than information which is generally available to the public.
- Members must not comment publicly on any aspect of a matter that is before the Tribunal or is likely to come before the Tribunal, or on another member’s conduct.
- Members must not comment publicly on a decision of the Tribunal. This does not preclude a member from giving a neutral description of a decision for educational purposes.
- Members must refer all inquiries from the media to the chair, registrar, or Tribunal counsel.
- Members may only represent the Tribunal in their activities outside the Tribunal when specifically authorized by the chair to do so.
XII Obligations after ceasing to be a Member
- A member must not appear before the Tribunal as a representative, until the later of six months after:
- the member’s term of appointment to the Tribunal has terminated, or
- the release of any outstanding decisions for which the member was responsible.
- After the conclusion of their term of appointment, a member has a continuing obligation to maintain the confidentiality of confidential information which had been obtained in the course of their duties as a member.
- The chair will make whatever inquiries or investigations that the chair determines necessary to determine if a member has breached the Code of Conduct. The chair may report the results and any steps consequently taken to the person who brought the issue to the chair’s attention, if the chair determines it is appropriate to do so.
- If the chair considers that a member may have breached the Code of Conduct, the chair will notify the member whose conduct is in issue and give the member an opportunity to respond, both to the allegation and to any steps proposed to address a breach.
- If the chair determines that a member has breached the Code of Conduct, the chair will determine what steps are to be taken, taking into account all relevant factors, including whether the breach occurred in good faith or through inadvertence. Steps may range from providing the member with a letter of expectation, to recommending to the appointing authority that the member not be reappointed for another term, or, in the most egregious circumstance, that the appointment be rescinded.
(March 12, 2018)