View source for BC Human Rights Code (6:III)

{{REVIEWED LSLAP | date= July 22, 2020}}
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The ''B.C. Human Rights Code'' [“''HRC''”] is the legislation currently applicable in BC and is administered by the B.C. Human Rights Tribunal.  

The ''HRC'' applies to matters within the provincial constitutional heads of power, and covers both public and private bodies and individuals.  For example, the ''HRC'' applies to provincially regulated employers, unions, professional associations, most commercial businesses, Crown  corporations, landlord-tenant relations, as well as the provincial government itself. 

:'''NOTE:''' The Tribunal’s decisions are available online at http://www.bchrt.bc.ca/decisions. They are indexed by year dating back to 1997 and searchable based on a variety of criteria.   They are also available on CanLII BC ([http://www.canlii.org/en/bc www.canlii.org/en/bc]/). 

== A. Framework of a Discrimination Complaint ==
	The following outlines the six-part test that governs human rights complaints. 
=== 1.	Complainant ===

As outlined in ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/12680/index.do Moore v British Columbia (Education)]'', 2012 SCC 61 at para 33, the complainant 			must prove the following three elements on a balance of probabilities to establish their case: 

# That they have a characteristic that is protected under the HRC;
# That they experienced an adverse impact with respect to an area protected by the HRC; and
# That their protected characteristic was a factor in the adverse impact they experienced.

If any one of the three elements are missing, there is no discrimination. If the complainant proves the three elements, then the burden shifts to the respondent to justify its conduct. If the respondent proves its conduct was justified, then there is no discrimination. If the respondent’s conduct is not justified, discrimination will be found to have occurred.
=== 2.	Respondent ===

In the employment context, a respondent can justify its conduct by proving on a balance of probabilities that the rule, standard, or requirement being challenged is a bona fide occupational requirement (BFOR). In ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1724/index.do British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees' Union]'', [1999] 3 SCR 3 at para 54 [Meiorin], the Supreme Court of Canada set out the three-stage analysis for determining whether a standard is a bona fide occupational requirement (BFOR): 

# The employer adopted the standard for a purpose rationally connected to the performance of the job;
# The employer adopted the particular standard with an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
# The standard is reasonably necessary to fulfil its purpose. The employer must show that it could not accommodate individual employees with the protected characteristic without experiencing undue hardship. 

In ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1761/index.do British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights)]'', [1999] 3 SCR 868 [Grismer] at 881, the Supreme Court of Canada considered the application of the ''Meiorin'' test to a public services complaint and set out the three-stage analysis for determining whether the respondent had a ''bona fide'' and reasonable justification for its conduct: 

# The respondent’s behaviour was for a purpose or goal that is rationally connected to the function being performed;
# The respondent behaved in good faith; and
# The respondent’s behaviour was reasonably necessary to accomplish the purpose or goal, in the sense that the respondent cannot accommodate the complainant without undue hardship.

Note that most legal disputes arise in regard to the third part of the test – that is, whether the respondent reasonably accommodated the complainant to the point of undue hardship. 


The Chart below illustrates how the HRC’s protected grounds apply to each area of protection. 

{| class="wikitable"
! style="font-weight: bold;" | Protected Grounds
! colspan="7" style="text-align: center; font-weight: bold;" | Protected Areas
|-
| 
| style="text-align: center;" | Publications
| style="text-align: center;" | Public Services & 
Accommodation
| style="text-align: center;" | Purchase of 
Property
| style="text-align: center;" | Tenancy
| style="text-align: center;" | Employment 
Advertisements
| style="text-align: center;" | Employment
| style="text-align: center;" | Unions & 
Associations
|-
| Race
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
|-
| Colour
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
|-
| Ancestry
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
|-
| Place of Origin
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
|-
| Political Belief
| style="text-align: center;" | x
| style="text-align: center;" | x
| style="text-align: center;" | x
| style="text-align: center;" | x
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
|-
| Religion
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
|-
| Marital Status
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
|-
| Family Status
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | x
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
|-
| Physical or Mental
Disability
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
|-
| Sex
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
|-
| Sexual Orientation
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
|-
| Gender Identity or Expression
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
|-
| Age
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | x
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
|-
| Criminal or 
Summary Conviction
| style="text-align: center;" | x
| style="text-align: center;" | x
| style="text-align: center;" | x
| style="text-align: center;" | x
| style="text-align: center;" | x
| style="text-align: center;" | v
| style="text-align: center;" | v
|-
| Source of Income
| style="text-align: center;" | x
| style="text-align: center;" | x
| style="text-align: center;" | x
| style="text-align: center;" | v
| style="text-align: center;" | x
| style="text-align: center;" | x
| style="text-align: center;" | x
|}

== B. Protections, Exceptions and Exemptions ==

The HRC provides protection against discrimination in several different contexts, which are listed in sections 7–14. These sections will be further detailed in order below. Please refer to '''Section III.A.1-7'''. However, for many of these protected areas, the HRC provides certain exceptions for which discrimination is not prohibited. 

Additionally, section 41, commonly referred to as the group rights exemption, allows non-profit organizations to engage in what might otherwise be deemed prohibited discriminatory conduct. It allows charitable, philanthropic, educational, and other not-for-profit organizations to give a preference to members of the identifiable group or class of persons they serve. For more information, please see ''[https://www.canlii.org/en/bc/bcca/doc/2005/2005bcca601/2005bcca601.html?resultIndex=1 Vancouver Rape Relief Society v Nixon]'', 2005 BCCA 601 at paras 43-59 [''Nixon'']. (Please note that this case involves a sex-binary-focused discussion of transgender identity that may be troubling for some readers).

Furthermore, under section 42, it is not discriminatory to plan, advertise, adopt, or implement an employment equity program that has the objective of ameliorating the conditions of individuals or groups who are disadvantaged because of race, colour, ancestry, place of origin, physical or mental disability, sex, sexual orientation, or gender identity or expression. Such special programs may obtain prior approval by the BC BC Human Rights Commissioner and, if pre-approved, will not be deemed to be in contravention of the HRC. Ultimately, section 42 gives the Commissioner jurisdiction to approve special programs that are aimed at improving the situation of individuals or groups that have suffered historical disadvantage. 

Finally, section 43, often referred to as the “retaliation” section, prohibits discrimination against a person because that person complains, has been named, gives evidence, or otherwise assists in a complaint or related proceeding under the HRC, or because they might in future complain, be named, give evidence, or otherwise assist in a complaint or related proceeding. Please refer to ''[https://www.bccourts.ca/jdb-txt/ca/18/00/2018BCCA0078.htm Gichuru v Pallai]'', 2018 BCCA 78 at paras 50—58, which provides the test for proving retaliation under section 43.


=== 1. Discriminatory Publication ===

Section 7 deals with forms of discrimination against individuals or groups of individuals, which are published, displayed, or made public. This section prohibits hate literature and other such communications that expose or are likely to expose someone in a protected group to hatred or contempt, as well as publications that indicate discrimination or intent to discriminate against a protected group.  Please refer to ''[http://www.bchrt.bc.ca/shareddocs/decisions/2019/mar/58_CORRECTED_Oger_v_Whatcott_No_7_2019_BCHRT_58.pdf Oger v Whatcott]'' (No 7), 2019 BCHRT 58 at paras 93—97 for the former, and ''Li v Mr B'', [https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt228/2018bchrt228.html?resultIndex=1&fbclid=IwAR29aclgXwxQnU6peHALajehkvX-uSD4VK0wIv1zAnArQ-vHynzNXoWIMXI 2018 BCHRT 228] at paras 95—97 [''Li''] for the latter.   

'''Exception:''' Section 7 does '''not''' apply to communications that are intended to be private and are related to activities otherwise permitted under the ''HRC'', see e.g. ''Li'' at paras 98–104.

=== 2. Discrimination in Facilities “Customarily Available to the Public” ===

Section 8 states that any accommodation, service, or facility customarily available to the public may not be denied to an individual for reasons based on that person’s race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression and/or age. 

''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1006/index.do University of British Columbia v Berg]'', [1993] 2 SCR 353 at 384–387 [Berg] provides the definition of “customarily available to the public”. A service is customarily available to the public if the nature of the relationship is public. Courts look at the relationship between the facility and the complainant, as well as the nature of the service itself. In ''Berg'', the court found that a university has its own public and that the relationships between students and professors, who present the public face of the university, are public in this context. Please refer to ''[https://www.canlii.org/en/bc/bcsc/doc/2009/2009bcsc180/2009bcsc180.html HMTQ v McGrath]'', 2009 BCSC 180 at paras 89–93 for a more recent case that cites the definition for what is “customarily available to the public”. 

Additionally, courts have found that services provided to members of a group who come together as a result of a private selection process, based on their personal attributes do not qualify as services “customarily available to the public”, and are therefore not subject to section 8 of the HRC.  Please refer to ''[https://www.canlii.org/en/bc/bcca/doc/2007/2007bcca17/2007bcca17.html?resultIndex=1 Marine Drive Golf Club v Buntain et al and BC Human Rights Tribunal]'', 2007 BCCA 17 at paras 48–56.

While there is no enumerated list of relationships that count as public, locales such as pubs, night clubs, hotels, theatres, transportation services, education facilities, insurance, medical treatment in hospitals and clinics, strata council and property management services in condominiums, services provided by police, access to sidewalks and public space, government services, and participation in sporting events have all been found to entail public relationships. Licensing services and facilities may also involve public relationships. For example, discrimination prohibited by section 8 was ultimately found when the BC Motor Vehicle Branch maintained a blanket refusal to issue driver's licenses to those with certain visual impairments regardless of actual driving ability: ''[https://www.canlii.org/en/ca/scc/doc/1999/1999canlii646/1999canlii646.html?resultIndex=1 BC (Superintendent of Motor Vehicles) v BC (Council of Human Rights)]'', [1999] 3 SCR 868 [''Grismer''].

Legislation is not a “service customarily available to the public” and bare challenges to legislation can’t proceed at the HRT, see e.g. ''[https://www.canlii.org/en/bc/bchrt/doc/2019/2019bchrt76/2019bchrt76.html?resultIndex=1 Phillips v BC Ministry of the Attorney General]'', 2019 BCHRT 76 at paras 11–12.

For a recent case setting out the three-part test for prima facie discrimination, see ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/12680/index.do Moore v British Columbia (Education)]'', 2012 SCC 61, a Supreme Court of Canada case about a school district that cancelled a special education program, requiring a dyslexic student to enroll in specialized private school. The Supreme Court of Canada reviewed whether the school district discriminated against the student by failing to provide necessary remediation, and ultimately restored the BC Human Rights Tribunal’s finding of discrimination.

Moore confirmed the test for prima facie discrimination, also known as the “complainant’s case” (on the move away from Latin in human rights cases, see ''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt9/2018bchrt9.html?resultIndex=1 Vik v Finamore (No. 2)]'', 2018 BCHRT 9 at para. 48-50). To succeed in their complaint, a complainant must show:

# That they have a characteristic that is protected under the HRC;
# That they experienced an adverse impact with respect to an area protected by the HRC; and
# That their protected characteristic was a factor in the adverse impact they experienced. This is also known as the “nexus”.

'''Defences:''' If a complainant can prove the three elements of their case set out above, the burden shifts to the respondent to justify their conduct. There are a number of circumstances where adverse treatment on the basis of a protected characteristic is not discrimination, if it can be shown to be supported by a “''bona fide'' and reasonable justification” (BFRJ) (as per the wording of section 8(1)). For the most authoritative perspective, see ''Grismer'', which applied the three-part ''Meiorin'' test from the Supreme Court of Canada in an attempt to justify a discriminatory standard by raising a ''BFRJ''. This attempt was unsuccessful (see also Subsection 6: Discrimination in Employment and the Duty to Accommodate).
 
The respondent must justify the standard by satisfying three elements:

# The fundamental purpose of the standard must be rationally connected to the performance of the job;
# The standard must have been adopted in good faith and with the legitimate belief that it is necessary in order to satisfactorily and safely perform all job- related tasks; and 
# The standard is reasonably necessary to performing the job and it is impossible to accommodate the specific claims of the plaintiff without the employer incurring undue hardship.


'''Exceptions:''' Section 8(2) also contains certain built-in exceptions. Discrimination based on sex is permitted insofar as it relates to the maintenance of public decency. Discrimination based on sex, physical or mental disability, or age is permitted insofar as it relates to the determination of premiums or benefits under life or health insurance policies.

=== 3. Discrimination in Purchase and Rental of Property ===

Section 9 provides that a person or class of persons must not be denied the opportunity to purchase real property due to their race, colour, ancestry, place of origin, religion, marital status, physical or mental disability, sex, sexual orientation and/or gender identity or expression.

Section 10 states that a person shall not be denied the right to occupy any space that is represented as being available for occupancy or be discriminated against with respect to a term or condition of the tenancy on the basis of race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, age, and/or lawful source of income.  

'''Defences:''' Although the text of sections 9 and 10 do not contain language specifically providing for a defence to a claim of discrimination under these provisions, like all respondents, landlords and property sellers may be able to justify ''prima facie'' discrimination if they can satisfy the three elements of the ''Grismer/Meiorin'' test. This will require that they accommodated the complainant to the point of undue hardship.

'''Exceptions:''' This section does not apply if the tenant is sharing any sleeping, bathroom, or cooking facilities with the person making the representation (e.g. as a roommate). Furthermore, the reserving of specific residences for individuals aged 55 or older or for people with disabilities does not constitute discrimination (HRC, s 10(2)(b) and (c)). 

=== 4. Discrimination in Employment Advertisements and Interviews ===

Section 11 prohibits employment advertisements that express limitations or preferences based on race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sexual orientation, sex, gender identity or expression and/or age.  Refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2007/2007bchrt99/2007bchrt99.html?resultIndex=1 Anderson v Thompson Creek Mining Ltd Endako Mines]'', 2007 BCHRT 99. 

'''Exception:''' Discrimination in employment advertisements may be permitted if such limitations are based on “''bona fide'' occupational requirement(s)” as per the wording of s 11. There are also exceptions for non-profit organizations and employment equity programs see Exemptions on 6-6. 

For case law on discrimination during the interview process, please refer to ''Khalil v Woori Education Group'', 2012 BCHRT 186 at para 29-45. An employer, under s 13, cannot refuse to employ someone on the basis of any of the prohibited grounds of discrimination unless there is a ''bona fide'' occupational requirement (see [[{{PAGENAME}}#6. Discrimination in Employment and the Duty to Accommodate | subsection 6: Discrimination in Employment and the Duty to Accommodate]]).

=== 5. Discrimination in Wages ===

Section 12 states that wage parity between sexes is required for similar or substantially similar jobs. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2012/2012bchrt186/2012bchrt186.html Kraska v Pennock]'', 2011 BCSC 109. Most of the remedies under this section are also available under section 13, which does not have a limitation on the period of time during which wages can be claimed.

'''Limitation Dates:''' Section 12 of the HRC states: 
*(a) the action must be commenced no later than 12 months from the termination of the employee's services, and 
*(b) the action applies only to wages of an employee during the 12 month period immediately before the earlier of the date of the employee's  termination or the commencement of the action. 

This seems to be in keeping with the '''one-year limitation period''' for all human rights complaints. Issues arose when section 12(5) conflicted with the previous general six-month limitation period for bringing human rights complaints, but the extension has eliminated any confusion.  

'''Exception:''' A difference in the rate of pay between employees of different sexes based on a factor '''other''' than sex is allowed, provided  that the factor on which the difference is based would reasonably justify the difference.

=== 6. Discrimination in Employment and the Duty to Accommodate ===

Section 13 provides that no person shall refuse to employ another person or discriminate against a person with respect to employment or any term or condition of employment on the basis of race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, age, and/or because that person has a criminal record that is unrelated to the employment. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2010/2010bchrt13/2010bchrt13.html Ratzlaff v Marpaul Construction Ltd]'', 2010 BCHRT 13 for one example of an employment case. This section might extend to volunteers depending on the circumstances (''Nixon''). When determining whether a volunteer is captured under the definition of “employee” in the HRC, the Tribunal will consider the following: 

#If there is a formal process to recruit volunteers;
#If there is a training process with defined tasks;
#Whether volunteers have to agree to follow the organizations policies and practises;
#If there are requirements about when or how often a volunteer must be available; and
#The role of volunteers in the organization.

For more information on volunteers, see ''[https://www.canlii.org/en/bc/bchrt/doc/2017/2017bchrt123/2017bchrt123.html Ferri v Society of Saint Vincent de Paul and another]'', 2017 BCHRT 123 at paras 29-33. 

In addition, because all individuals over 19 are protected by the ground of age, individuals in both the public and private sector are able to choose the age at which they wish to retire and are protected from discrimination based on age (HRC, s 1).

Section 44(2) also clarifies that an employer is responsible for the actions of their employees, and under the code said employee’s actions will be considered the employer’s actions.

'''Bona Fide Occupational Requirement (BFOR) Defence''': If a complainant proves the three elements of their case set out in ''Moore'', the burden shifts to the respondent to justify their conduct. Adverse treatment on the basis of a protected characteristic may be justified when it relates to a “''bona fide'' occupational requirement” (BFOR): see s. 13(4). In ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1724/index.do British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees' Union]'', [1999] 3 SCR 3 at para 54 [''Meiorin''], the Supreme Court of Canada established a three-part test for establishing a BFOR. 
# The employer adopted the standard for a purpose rationally connected to the performance of the job;
# The employer adopted the particular standard with an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
# The standard is reasonably necessary to fulfil its purpose. The employer must show that it could not accommodate individual employees with the protected characteristic without experiencing undue hardship

For a specific example of a BCHRT case that applies the BFOR test in a disability context, please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2009/2009bchrt196/2009bchrt196.html?resultIndex=1 Kerr v Boehringer Ingelheim (Canada) Ltd (No 4)]'', 2009 BCHRT 196 [''Kerr''].

'''Undue Hardship''': What may be considered “undue hardship” varies by employer and depends on the circumstances. In ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/910/index.do Central Okanagan School District No 23 v Renaud]'', [1992] 2 SCR 970 at 985—986, the Supreme Court of Canada noted that it is more than a minor inconvenience, and that actual interference must be established. Factors include the court may consider are financial cost, health and safety, and flexibility and size of the workplace. The burden of proving an undue hardship lies on the respondent and will require evidence that all reasonable accommodations, short of undue hardship, have been provided. For more information on the duty to accommodate, please see the BC Human Rights Clinic’s “FAQ – Duty to Accommodate” at [http://www.bchrc.net/duty_to_accommodate www.bchrc.net/duty_to_accommodate] and their blog at [https://bchrc.net/tag/duty-to-accomodate/ https://bchrc.net/tag/duty-to-accomodate/].

'''Other Exemptions''': Distinctions based on age are not prohibited insofar as they relate to a ''bona fide'' seniority scheme. Distinctions based on marital status, physical or mental disability, sex, or age will continue to be allowed under ''bona fide'' retirement, superannuation, or pension plans, and under ''bona fide'' insurance plans, including those which are self-funded by employers or provided by third parties (HRC, s 13(3)).  

=== 7. Discrimination by Unions, Employer Organizations or Occupational Associations ===

Section 14 states that trade unions, employers’ organizations, or occupational associations may not deny membership to any person or discriminate against a person on the basis of race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, age, and/or unrelated criminal record.  Please refer to ''De Lima v Empire Landmark Hotel and Major'', 2006 BCHRT 440.

Since persons are not covered by section 14, protection against denial of membership has been held to apply only against an implicated union, organization, or association, and not against an individual. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2005/2005bchrt53/2005bchrt53.html?resultIndex=1 Ratsoy v BC Teachers’ Federation]'', 2005 BCHRT 53 at para 23. This differs from other protections granted by the HRC, which, in appropriate circumstances, generally do allow an action to be brought against both an organization (e.g. an employer) and its individual members (e.g. a manager).

There are two limited ways in which unions can be held liable for discrimination. The first is by creating or participating in formulating a discriminatory workplace rule, and the second is by impeding an employer’s efforts to accommodate an employee (''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt44/2018bchrt44.html?resultIndex=1 Chestacow v Mount St Marie Hospital of Marie Esther Society]'', [2018] BCHRT No 44 at para 32 [''Chestacow'']). In respect of the latter, a union may be required to waive seniority rights or other collective agreement obligations in order to facilitate the accommodation of an employee with a protected characteristic, such as a disability. 


== C. Prohibited Grounds of Discrimination ==

=== 1. General ===

Prohibited grounds of discrimination include race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, age (for those 19 and over), criminal record (that is not relevant to the employment, union or occupational association), and lawful source of income. Note that not all of the areas listed in sections 7–14 of the HRC are afforded protection against all forms of discrimination. For example, the HRC does not prohibit landlords from discriminating on the basis of a tenant’s political beliefs.  The grounds of discrimination that apply depend on the section of the HRC in question. One must first decide which section is involved and then check to see which grounds are associated with that section. Please refer to the helpful chart on page 6-3 above. 

To determine whether a violation of the HRC has occurred, consult the relevant section of the HRC and review recent case law. Case law can be found on the BC Human Rights Tribunal website ([http://www.bchrt.bc.ca/law-library/decisions www.bchrt.bc.ca/law-library/decisions]), indexed by year, and searchable based on a variety of criteria. The decisions are also available on CanLII BC. 

It should be noted that a complainant might file a complaint on a combination of grounds. A prohibited ground does not need to have been the sole or primary motivating factor behind the discrimination; it need only have been one contributing factor.  Please refer to ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15471/index.do Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc (Bombardier Aerospace Training Center)]'', 2015 SCC 39 at paras 45-52. 

Discrimination need not be intentional (HRC, s 2). Any policy or action that has an adverse effect on a protected group and which cannot be justified will be considered discriminatory. Please refer to ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/101/index.do Ontario (Human Rights Commission) v Simpsons-Sears Ltd]'', [1985] 2 SCR 536 at 549 for an example of indirect discrimination, also known as adverse effect discrimination. The policy or act does not have to affect every person in the group for it to be considered discriminatory. For example, if a policy discriminates against only people who are pregnant it could still be considered sex discrimination. It is also possible that an act or policy may affect men as well as women, but affect one sex to a disproportionate degree, in which case it could also qualify as sex discrimination. 

Discrimination can also be established on an intersectional basis. This means that the discriminatory action had an adverse impact on the basis of multiple protected grounds, occurring simultaneously, which cannot easily be separated from one another. It is not always necessary to establish that each individual ground has been met where intersectional discrimination can be established. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2005/2005bchrt302/2005bchrt302.html?resultIndex=1 Radek v Henderson Development (Canada) Ltd]'', 2005 BCHRT 302 at paras 463–467.

If, after reading the HRC, you are still unsure whether the impugned action lies within the ambit of the HRC, contact the BC Human Rights Clinic  (see [[Governing Legislation and Resources for Human Rights (6:I)#B. Resources | Section I.B:Resources]]).

=== 2. Ancestry, Colour, Place of Origin and Race ===

The grounds of race, colour, ancestry and place of origin are included in the HRC as a means to combat racism and racial discrimination. Each of these grounds is protected in the HRC and may be cited individually in connection with a discriminatory incident or grouped together in order to better illustrate a particular situation. For further information on how the above grounds interact, please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2009/2009bchrt3/2009bchrt3.html?resultIndex=1 Torres v Langtry Industries Ltd, 2009 BCHRT 3]''. 

Discrimination on the basis of race, colour, ancestry and place of origin can also be established where the respondent caused harm to the claimant by taking advantage of a vulnerability caused by the claimant's race, colour, ancestry or place of origin. For more information, see ''[https://www.canlii.org/en/bc/bchrt/doc/2015/2015bchrt60/2015bchrt60.html?resultIndex=1 PN v FR and another (No 2)]'', 2015 BCHRT 60. In BC, the grounds of race, colour, ancestry and place of origin are protected in the following areas:
* publication 
* public services such as schools, government programs, restaurants and stores 
* purchase of property 
* tenancy 
* employment advertising and employment, and 
* membership in a trade union, employer’s organization, or occupational association.
For a recent case concerning discrimination on the basis of race in the employment context, please see ''[https://www.canlii.org/en/bc/bchrt/doc/2019/2019bchrt136/2019bchrt136.html?resultIndex=1 Francis v. BC Ministry of Justice (No. 3)]'', 2019 BCHRT 136.

Note that the Tribunal has recognized that racism can be subtle and is sensitive to this fact. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2006/2006bchrt60/2006bchrt60.html?resultIndex=1 Mezghrani v Canada Youth Orange Network Inc]'', 2006 BCHRT 60 at para 28.

=== 3. Political Belief ===

The HRC provides protection from discrimination due to political beliefs and/or affiliations in the areas of employment; employment advertising; and membership in a trade union, employer’s organization or occupational association. 

In BC, few human rights cases have been decided on the ground of political belief and, as such, a comprehensive definition of what constitutes a political belief under the HRC has not been established. The Tribunal has, however, identified two key principles in determining whether a claimant’s belief should be protected under the HRC:

#Political belief is to be given a liberal definition; it is not confined to partisan political beliefs. Hence, political beliefs are not limited to beliefs about recognized or registered political parties.
#Political belief is not unlimited; for example, views about matters such as business or human resources decisions an employer may make do not come within its ambit.

Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2006/2006bchrt462/2006bchrt462.html?resultIndex=1 Prokopetz and Talkkari v Burnaby Firefighters’ Union and City of Burnaby]'', 2006 BCHRT 462 at para 31 and [https://www.canlii.org/en/bc/bchrt/doc/2016/2016bchrt124/2016bchrt124.html?resultIndex=1 Fraser v British Columbia (Ministry of Forests)], 2016 BCHRT 50. See ''[https://www.canlii.org/en/bc/bchrt/doc/2016/2016bchrt50/2016bchrt50.html?resultIndex=1 Bratzer v Victoria Police Department]'', [2016] BCHRT No 50 for a unique example of how political belief can be framed. In this case, an officer of the Vancouver Police Department successfully argued that his stance against the criminalization of illicit drugs and his involvement in a not-for profit that advocates for such views amounted to a political belief. 

In ''[https://www.canlii.org/en/bc/bchrt/doc/2012/2012bchrt389/2012bchrt389.html?resultIndex=1 Wali v Jace Holdings]'', 2012 BCHRT 389 at para 117, the Tribunal determined that free speech regarding matters affecting the regulation of a profession could constitute a political belief. This was narrowed to the particular legislative framework and mandate of the College of Pharmacists. The Tribunal member took into account that the issue was a legislative initiative involving public welfare and was being debated in the pharmaceutical community in determining that the belief was a protected political belief.

=== 4. Religion ===

Religious discrimination cases have helped to define several of the fundamental ideas and standards that comprise human rights law in Canada. Matters before the courts have routinely addressed discriminatory incidents concerning religious faith, beliefs, customs, and practices.  In BC, protection from discrimination based on religion is provided in the following areas:
* publication 
* public services 
* purchase of property 
* tenancy
* employment advertising and employment, and 
* membership in a trade union, employer’s organization or occupational association.
A claimant must show that their religious belief or practice is sincere, but not that it is objectively required or recognized by a particular religious faith. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2009/2009bchrt1/2009bchrt1.html Friesen v Fisher Bay Seafood Limited]'', 2009 BCHRT 1, at para 57. Atheism is encompassed within the protected ground of religion:  ''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt281/2018bchrt281.html?resultIndex=1 Mangel and Yasué obo Child A v. Bowen Island Montessori School and others]'', 2018 BCHRT 281 at para 210: ''[https://www.canlii.org/en/ca/scc/doc/2015/2015scc16/2015scc16.html Mouvement laïque québécois v Saguenay (City)]'', 2015 SCC 16 at para 70; ''[https://www.canlii.org/en/ca/scc/doc/2012/2012scc7/2012scc7.html SL v Commission scolaire des Chênes]'', 2012 SCC 7 at para 32; ''[https://www.canlii.org/en/ca/scc/doc/1985/1985canlii69/1985canlii69.html?resultIndex=1 R v Big M Drug Mart Ltd]'', [1985] 1 SCR at 314)

The duty to accommodate has been firmly established in case law and obliges employers to accommodate the religious practices of their employees as long as doing so does not cause undue hardship. These practices may be linked to customs involving prayer, dietary restrictions, clothing requirements, and time off on religious holy days. Please refer to ''[https://www.canlii.org/en/ca/scc/doc/1992/1992canlii81/1992canlii81.html Renaud v Central Okanagan School District No 23]'', [1992] 2 SCR 970 at para 982. 


=== 5. Family Status and Marital Status ===

Family status generally refers to parent-child relationships, but can and does encompass other family relationships including those between siblings, in-laws, aunts and uncles, nieces and nephews, and cousins. For case law on the definition of family status and the test for discrimination on that basis see ''[https://www.canlii.org/en/bc/bchrt/doc/2009/2009bchrt34/2009bchrt34.html Miller v British Columbia Teachers’ Federation]'', 2009 BCHRT 34 at para 17.

Marital status normally refers to couples with a spouse-like relationship. The HRC extends protection to all individuals regardless of their status (i.e. married, common-law, single, separated, divorced or widowed). Issues involving family and marital status may often overlap and may be cited concurrently to fully illustrate a certain situation.

Protections from discrimination on the basis of marital and family status also confer protection on the basis of the identity of the complainant’s spouse or family member: ''[https://www.canlii.org/en/ca/scc/doc/2002/2002scc66/2002scc66.html B v Ontario (Human Rights Commission)]'', 2002 SCC 66. 

In BC, the grounds of family and marital status are protected in the areas of publication, public services, tenancy, employment advertising, employment, and membership in a trade union, employer’s organization, or occupational association. Family status is not protected in the area of purchase of property, meaning adult-only buildings and stratas are permitted.

The law regarding the test that applies in the context of family status discrimination cases involving childcare obligations is unsettled in Canada. In BC, the present test for family status discrimination in employment is set out in ''[https://www.canlii.org/en/bc/bcca/doc/2004/2004bcca260/2004bcca260.html Health Sciences Assn of British Columbia v Campbell River and North Island Transition]'', 2004 BCCA 260 [''Campbell River''] at para 39. Per that test, in order to establish discrimination on the basis of family status, the complainant must show:

# A change in a term or condition of employment imposed by the employer; and
# That the change results in a serious interference with a substantial parental or other family duty or obligation.

The Federal Court of Appeal rejected the ''Campbell River'' test and set out its own four-part test in ''[https://www.canlii.org/en/ca/fca/doc/2014/2014fca110/2014fca110.html Canada (Attorney General) v Johnstone]'', 2014 FCA 110, at para 93 [''Johnstone'']. Under ''Johnstone'', a complainant must show that a child is under their care and supervision, the issue engages the individual’s legal responsibility for that child as opposed to a personal choice, they have made reasonable efforts to find alternative solutions and no reasonable alternative solution is available, and the impugned workplace rule interferes with the childcare obligation in a more than trivial or insubstantial way. 

In Ontario, ''[https://www.canlii.org/en/on/onhrt/doc/2016/2016hrto1229/2016hrto1229.html Misetich v. Value Village Stores Inc.]'', 2016 HRTO 1229 [''Misetich''] is the leading authority. ''Misetich'' criticized both ''Campbell River'' and ''Johnstone'' as creating too narrow of a test. The ''Misetich'' test requires a complainant to establish a negative impact that results in a real disadvantage to the parent/child relationship, parent/child responsibilities, or to the employees’ work. 

In Alberta, in ''[https://www.canlii.org/en/ab/abqb/doc/2015/2015abqb162/2015abqb162.html SMS Equipment Inc. v. Communications, Energy and Paperworkers Union]'', Local 707, 2015 ABQB 162, the Court of Queen’s Bench upheld a labour arbitration decision rejecting the ''Campbell River'' test. The court held that there were problems with both ''Campbell River'' and ''Johnstone'' and ultimately concluded that the correct test for determining discrimination based on family status is the Supreme Court of Canada’s general test for establishing discrimination set out in ''Moore''. The ''Moore'' test was recently reaffirmed by the Supreme Court of Canada in ''[https://www.canlii.org/en/ca/scc/doc/2017/2017scc30/2017scc30.html Stewart v Elk Valley Coal Corp]'', 2017 SCC 30. 

The BC Court of Appeal recently affirmed that the ''Campbell River'' test is the law in British Columbia: ''[https://www.canlii.org/en/bc/bcca/doc/2019/2019bcca46/2019bcca46.html Envirocon Environmental Services, ULC v Suen]'', 2019 BCCA 46. Mr. Suen applied for leave to appeal to the Supreme Court of Canada; the application was dismissed. 


=== 6.Physical or Mental Disability ===

Disability is not defined in the HRC. However, the concept of physical disability, for human rights purposes, generally indicates a “physiological state that is involuntary, has some degree of permanence, and impairs the person’s ability, in some measure, to carry out the normal functions of life” (''[https://www.canlii.org/en/bc/bchrt/doc/1994/1994canlii18445/1994canlii18445.html Boyce v New Westminister (City)] (1994)'', 24 CHRR D/441 at para 50 [''Boyce'']). More recent cases have confirmed that a disability must have a certain level of severity, permanence or persistence: see e.g., ''[https://www.canlii.org/en/bc/bchrt/doc/2014/2014bchrt270/2014bchrt270.html Li v Aluma Systems and Another]'', 2014 BCHRT 270 at para 41. In ''[https://www.canlii.org/en/bc/bchrt/doc/2003/2003bchrt14/2003bchrt14.html Morris v BC Rail]'', 2003 BCHRT 14 at para 214 [''Morris''], the Tribunal set out the following three aspects for assessing whether an individual has a physical or mental disability:

#“[T]he individual’s physical or mental impairment, if any;
#“[T]he functional limitations, if any, which result from that impairment; and
#“[T]he social, legislative or other response to that impairment and/or limitations… assessed in light of the concepts of human dignity, respect and the right to equality.”

Furthermore, according to ''Morris'' at para 207, proof of impairment and/or limitation, while relevant, will not be required in all cases. See ''[https://www.canlii.org/en/bc/bchrt/doc/2013/2013bchrt40/2013bchrt40.html McGowan v Pretty Estates]'', 2013 BCHRT 40 at para 26 for more information.

The protection of the HRC extends to those who are perceived to have a disability or to be at risk of becoming disabled in the future. As such, the Tribunal has rejected the application of strict criteria to determine what constitutes a physical or mental disability. This has led to a somewhat expansive definition. For example, protection has been specifically applied to persons with AIDS, persons who are HIV positive, and persons believed to be HIV positive, all of whom are considered to have a physical disability. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2005/2005bchrt177/2005bchrt177.html McDonald v Schuster Real Estate]'', 2005 BCHRT 177 at para 24 and ''[https://www.canlii.org/en/bc/bchrt/doc/1999/1999canlii35199/1999canlii35199.html J v London Life Insurance Co]'' (1999), 36 CHRR D/43 at para 42 [''London Life Insurance'']. 

As noted above, protection from discrimination due to physical disability extends to discrimination on the basis of a perceived propensity to become disabled in the future. In ''London Life Insurance'' at para 46, the Tribunal found that the HRC prohibited discrimination against a person based on the fact that his spouse was HIV positive. Protection under this ground has also been extended to those who are suffering from addictions issues. For example, ''[https://www.canlii.org/en/bc/bchrt/doc/1995/1995canlii18183/1995canlii18183.html Handfield v North Thompson School District No 26]'', [1995] BCCHRD No 4 at paras 139–143 recognized alcoholism as both a physical and mental disability.

Where a behaviour or policy adversely affects a protected group or person, either directly or indirectly due to their disability (or any other protected characteristic), there is a duty to accommodate, meaning that all reasonable efforts must be taken to accommodate the group or person up to the point of undue hardship. Examples include installing wheelchair access (''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt174/2018bchrt174.html Walsh v Pink]'', 2018 BCHRT 174 at paras 104-111) and safety handrails (''[https://www.canlii.org/en/bc/bchrt/doc/2006/2006bchrt62/2006bchrt62.html Ferguson v Kimpton]'', 2006 BCHRT 62 at para 68). The duty to accommodate may also include allowing workers to return gradually to the workplace after an injury or serious illness. 

=== 7. Sexual Orientation ===

The HRC prohibits discrimination based on sexual orientation. Such discrimination does not require a complainant to prove their sexual orientation nor that a given respondent believed them to have a particular orientation. In ''[https://www.canlii.org/en/bc/bcca/doc/2005/2005bcca201/2005bcca201.html?resultIndex=1 School District No 44 (North Vancouver) v Jubran]'', 2005 BCCA 201, Mr. Jubran was a high school student, subjected to homophobic insults and harassment from other students. This conduct was found to constitute discrimination, even though Mr. Jubran did not identify as homosexual and his harassers denied believing that they in fact thought he was homosexual. For a case regarding discrimination on this basis against patrons of a restaurant in the context of services customarily available to the public, please see ''[https://www.canlii.org/en/bc/bchrt/doc/2011/2011bchrt101/2011bchrt101.html?resultIndex=1 Pardy v. Earle]'' and others (No. 4), 2011 BCHRT 101.

In BC, protection on the basis of sexual orientation is provided in the areas of publication, public services, purchase of property, tenancy, employment advertising, employment, and membership in a trade union, employer’s organization, or occupational association.


=== 8. Sex (includes sexual harassment, pregnancy discrimination) ===

Discrimination on the basis of sex, which is prohibited under the HRC, includes sexual harassment. Sexual harassment is defined as “unwelcome conduct of a sexual nature that detrimentally affects a work environment or leads to adverse job-related consequences for the victims of the harassment” (''[https://www.canlii.org/en/ca/scc/doc/1989/1989canlii97/1989canlii97.html Janzen v Platy Enterprises Ltd]'', [1989] 1 SCR 1252 at 1284 [''Janzen'']).

In ''[https://www.canlii.org/en/bc/bchrt/doc/2015/2015bchrt60/2015bchrt60.html PN v FR]'' ''and another (No 2)'', 2015 BCHRT 60, the HRT awarded $50,000 for injury to dignity to a domestic foreign worker who was sexually harassed and assaulted. This is the second highest injury to dignity award the Tribunal has ever ordered. This case also involved allegations of discrimination based on family status, race, age, colour, and place of origin. 

Sexual harassment can take a number of forms. One such form may occur when the employer or a supervisory employee requires another employee to submit to sexual advances as a condition of obtaining or keeping employment or employment-related benefits. It may also occur when employees are forced to work in an environment that is hostile, offensive, or intimidating, such as where an employer allows pornography to be posted in the workplace. It is not generally necessary for an employee to expressly object to their harasser before filing a complaint. There is also no requirement of continuing harassment; a single incident may be sufficient if it is egregious. 

Whether the conduct was “unwelcome” is assessed on an objective standard: would a reasonable person have known that the conduct was unwelcome? If the respondent knew or ought to have known that the conduct was unwelcome, this part of the test is made out. A target of harassment is not required to expressly object to the conduct for it to be reasonably understood to be unwelcome.

It must also be shown that the alleged discriminatory conduct is “reasonably perceived to create a negative psychological and emotional environment for work” (''Janzen'' at 1263). The test must also take into account the customary boundaries of social interaction in the circumstances. Factors that are examined to determine the limits of reasonableness in a particular context include the nature of the conduct, the workplace environment, the type of prior personal interaction, and whether a prior objection or complaint was made. It is no defence to harassment, however, to show that harassing behaviour was traditionally tolerated in a workplace. 

 Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2004/2004bchrt76/2004bchrt76.html Mottu v MacLeod]'', 2004 BCHRT 76 at para 41, where the Tribunal found that dress code requirements based on sex could constitute discrimination on the basis of sex. In ''Lund v Vernon Women’s Transition House Society'', 2004 BCHRT 26, the Tribunal found that an employer’s refusal to allow a female employee to breastfeed her child at work could also constitute sex discrimination. 

For a more recent case involving discrimination on the basis of sex, and more specifically sexual harassment in the employment context, see ''[https://www.canlii.org/en/bc/bchrt/doc/2019/2019bchrt97/2019bchrt97.html Araniva v RSY Contracting and another (No. 3)]'', 2019 BCHRT 97. 


=== 9. Gender Identity or Expression ===

This protected ground has been in force since 2016, and therefore few decisions relating to this ground are currently available. 

For a recent Tribunal decision issued under the new ground of gender identity or expression, please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2019/2019bchrt58/2019bchrt58.html Oger v Whatcott (No 7)]'', 2019 BCHRT 58. 

Prior to the inclusion of gender identity or expression in 2016, the Tribunal had found that being transgender was a protected characteristic under the ground of sex. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2015/2015bchrt54/2015bchrt54.html Dawson v Vancouver Police Board (No 2)]'', 2015 BCHRT 54 [''Dawson'']. ''Dawson'' establishes that misgendering trans individuals (addressing a trans person using a pronoun, name, or gender marker other than that which the trans person uses to identify themselves) constitutes discrimination. Discrimination may also include the denial of trans-specific medical services (''Dawson'').


=== 10. Age (19 or over) ===

Age can refer to an individual’s legal age, membership in a specific age-category, or a generalized characterization of a specific age. In BC, age is a protected ground of discrimination in the areas of employment; employment advertising; membership in a trade union, employer’s organization, or occupational association; public services; tenancy and publications. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2006/2006bchrt219/2006bchrt219.html Miu v Vanart Aluminum and Tam]'', 2006 BCHRT 219 at para 18. 

In each of these areas, age protection is restricted to those 19 years of age and over. However, those under 19 years are still able to bring complaints to the BCHRT based on grounds other than age. 

=== 11. Criminal or Summary Conviction ===

BC’s HRC protects individuals with a criminal or summary conviction offence, or a perceived conviction (i.e. arrest or stayed charges), so long as the conviction is unrelated to the employment or the intended employment of the individual. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2011/2011bchrt43/2011bchrt43.html Purewall v ICBC]'', 2011 BCHRT 43 at para 21, ''[https://www.canlii.org/en/bc/bchrt/doc/2006/2006bchrt411/2006bchrt411.html Clement v Jackson and Abdulla]'', 2006 BCHRT 411 at para 14 and ''[https://www.canlii.org/en/bc/bchrt/doc/1997/1997canlii24841/1997canlii24841.html Korthe v Hillstrom Oil Company Ltd]'' (1997), 31 CHRRD/82 at paras 23-28. In an effort to establish whether or not a conviction may affect an employment decision, courts require an assessment of the relationship between the conviction and the job description. As such, employers must take into account the circumstances of the conviction in order to determine whether or not the charge relates to the employment. In ''[https://www.canlii.org/en/bc/bcsc/doc/1983/1983canlii444/1983canlii444.html Woodward Stores (British Columbia) v McCartney]'' (1983) 43 BCLR 314 at para 7-9, Justice MacDonald laid out a list of criteria to be considered in making this determination. These criteria are as follows: 

* Does the behaviour which formed the basis of the charge, if repeated, compromise the employers’ ability to conduct business safely and effectively? 
* What were the circumstances and details of the offence, e.g., what was the person’s age at the time of the offence and were there any extenuating factors?
* How much time has passed since the charge? What has the individual done since that time and has there been any indication of recidivism? Has there been evidence of the individual’s desire for rehabilitation?


=== 12. Source of Income ===

BC’s HRC protects against discrimination in tenancy on the basis of an individual’s source of income. This safeguards the tenancy rights of individuals on social assistance or disability pensions who might otherwise be denied safe housing. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2003/2003bchrt36/2003bchrt36.html Tanner v Vlake]'', 2003 BCHRT 36 at paras 22–26 for further discussion on this protected ground. For a more recent case, please see '[https://www.canlii.org/en/bc/bchrt/doc/2012/2012bchrt49/2012bchrt49.html 'Day v Kumar and another (No 3)]'', 2012 BCHRT 49. 

== D. Procedural Options for Employees ==

An employee who is dealing with an employment-related legal issue may have more than one procedural option to choose from. These include:

=== 1. Employer’s Internal Complaint Procedure ===

Assuming one exists, this is the most immediate way to obtain a resolution to a workplace issue. Consult the workplace’s policies to determine whether an internal complaints process exists and, if so, whether it is likely to yield a helpful resolution of the issue.  Note that employees are not required to make use of internal procedures before filing a human rights complaint or other legal proceeding.

=== 2. Grievance and Arbitration (Union) ===

Unionized workers are entitled to representation by their union. Labour arbitrators have jurisdiction to apply the HRC, and grievances often move more quickly than human rights complaints. However, if the union does not pursue a grievance relating to a human rights issue, the worker may wish to file their own human rights complaint and may even decide to name the union as a party if the worker has grounds to believe the union is complicit in the alleged discrimination. Alleging that the union has failed to provide adequate representation will not be sufficient to qualify as a breach of the HRC on its own; the union must have engaged in the discrimination. 

As previously stated (see '''Section III.B.7''': Discrimination by Unions, Employer Organizations, or Occupational Associations), there are two ways in which a union may be found liable for discrimination. First by creating or participating in formulating a discriminatory workplace rule, and second by impeding an employer’s efforts to accommodate a disabled employee (''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt44/2018bchrt44.html Chestacow]'' at para 32)

Initiating the grievance procedure can be a good starting point, and can be followed by initiating a human rights complaint. A grievance and a human rights complaint can also be filed in tandem. If the matter is not resolved during the initial stages of the union grievance procedure, an arbitration hearing may be held, and an arbitrator will determine liability and relief. The human rights complaint may be placed in deferral while the grievance process proceeds. If the grievance process resolves the worker’s human rights issue, the human rights complaint will be dismissed. See ''[https://www.canlii.org/en/bc/bcca/doc/2019/2019bcca241/2019bcca241.html Sebastian v Vancouver Coastal Health Authority]'', 2019 BCCA 241 for some of the risks of parallel proceedings in this context. 

=== 3. Human Rights Complaint ===

Another option is, of course, to file a human rights complaint with the BC Human Rights Tribunal (see above for the grounds, areas, exemptions, complaint process, etc.) or, under federal jurisdiction with the Canadian Human Rights Commission (see below for the grounds, areas, exemptions, process, etc). The Tribunal can award lost wages, expenses, and damages for injury to dignity, feelings and self-respect. However, note that if a claimant is also seeking severance pay, lost wages, or expenses in a civil suit, they will not be allowed to recover the same damages from both proceedings. 

=== 4. Employment Standards Branch ===

Employees may choose to file a complaint through the Employment Standards Branch (ESB) if their employer has breached the ''Employment Standards Act'' (see '''Chapter 9: Employment Law'''). There is a '''six-month limitation period''' from the date of the breach. A complainant can claim from both the ESB and Small Claims for employment-related issues, including wrongful dismissal. These actions do not bar the complainant from also bringing a human rights complaint relating to the same matter. Remedies awarded by the Employment Standards Tribunal are intended to make the employee “whole” financially by way of compensation rather than reinstatement. It is important to note that the ESB does not deal with alleged discrimination. If the employee recovers unpaid wages through the ESB, they cannot “double-recover” and seek these same damages in another forum.

=== 5. Civil Action ===

A final option is to bring a civil action for wrongful dismissal either in Small Claims Court (see '''Chapter 20: Small Claims''' of the LSLAP Manual) or the BC Supreme Court, depending on the amounts claimed. However, a recent Supreme Court of Canada decision clarified that the common law will not provide a remedy for discrimination per se in the employment context.  Please refer to ''[https://www.canlii.org/en/ca/scc/doc/2008/2008scc39/2008scc39.html Keays v Honda Canada Inc]'', 2008 SCC 39 at para 67 [''Keays''].

The court in ''[https://www.canlii.org/en/ca/scc/doc/2008/2008scc39/2008scc39.html Keays]'' held that breaches of the HRC must be remedied within the statutory scheme of the HRC itself. Thus, even if the reason for dismissal was discriminatory, in a civil action, the claimant will generally only be able to recover damages based on their wrongful dismissal and/or inadequate notice (severance pay). See '''Chapter 9: Employment Law''' of the LSLAP Manual. Accordingly, compensation for the discrimination itself must be awarded by the Tribunal.

The court may further compensate the claimant in a civil action if the employer has acted unfairly or in bad faith when dismissing an employee. The basis for these additional damages is a breach of the implied term of an employment contract that employers will act in good faith in the manner of dismissal (i.e. payment for such damages can be deemed to have been in the contemplation of the parties at the formation of the contract). In Keays the Supreme Court of Canada held that any such additional award must be compensatory and must be based on the actual loss or damage suffered by the employee, which can include expenses related to mental distress stemming from the manner of dismissal. Compensable conduct might include, but is not limited to, attacking the employee's reputation at the time of dismissal, misrepresentations regarding the reason for the dismissal, or dismissal meant to deprive the employee of a pension benefit or other right such as permanent resident status. However, normal distress and hurt feelings arising from the dismissal itself are not grounds for additional damages.

The courts are even more conservative in their approach to awarding punitive damages meant to punish the employer for their conduct in dismissal. Punitive damages will only be awarded if the employer’s conduct was harsh, vindictive, reprehensible, malicious, and extreme in nature. Thus, if the claimant is primarily concerned with being compensated for injuries to their dignity and/or denouncing their employer’s discriminatory behaviour, then they should file a complaint with the Human Rights Tribunal alongside a civil action for wrongful dismissal.   

Whatever procedural route an employee ultimately chooses to pursue, if said employee is experiencing on-going harassment on a prohibited ground of discrimination, they should maintain records or a journal with dates, times, places, witnesses, details of particular incidents, and even a description of the emotional effects of the harassment.

== E. The Process for Human Rights Complaints ==

The BC Human Rights Tribunal handles complaints made under the HRC. The first step in filing a complaint with the Tribunal is to fill out a Complaint Form, which are available from the Tribunal at its office address, on its website (http://www.bchrt.bc.ca) or from other local Government Agent offices. There are helpful self-help guides to filling out complaint and response forms on the Tribunal’s website.

=== 1. Who Can Lodge a Complaint? ===

A complaint may be made by an individual, on behalf of a group or class, or by someone acting as a representative of named person(s). If the Complaint Form is being filled out on behalf of another person, group, or class of persons, then a secondary form called the Representative Complaint Form must also be filled out and must accompany the Complaint Form when sent to the Tribunal. The person filling out the Complaint Form is the complainant. The person or organization who has been filed against is called the respondent. 

=== 2. How to File a Complaint ===

The Complaint Form must be filed with the Tribunal via mail, fax, or e-mail. As of July 2020, online filing is also an option. Complainants may access the Complaint Form and other valuable resources at the BC Human Rights Tribunal website (see '''Section II.B: Resources'''). The party filing the complaint should be aware of the time limits. There is a general one-year limitation period, which may be extended under certain very limited circumstances. 

=== 3. Review Process ===

Once the Complaint Form is filed, the Tribunal will review the form to determine if it fits under the HRC and if it appears to meet the one-year limitation period. If the Tribunal believes that it may not have the power to deal with the complaint in substance or believes that the complaint has been filed out of time, the complainant will be given a chance to respond before the Tribunal decides whether or not to proceed with the complaint. If the Tribunal believes it can proceed, it will send the Complaint Form to the respondent for a response to the complaint. 

A complainant '''must''' set out a case of discrimination under the HRC on their initial complaint form. If the elements are not set out, then the Tribunal might not accept the complaint. Even if accepted, it could still be vulnerable to an application to dismiss under section 27 of the HRC at a later stage. In order to set out the complainant’s case, the complainant must allege facts that, on their face (that is to say, assuming they are all true), satisfy the following three elements:

#That they have a characteristic that is protected under the HRC;
#That they experienced an adverse impact with respect to an area protected by the HRC; and
#That their protected characteristic was a factor in the adverse impact they experienced.

It is important to note that a complainant need not establish that their protected characteristic was the sole or primary reason for their adverse treatment. It is sufficient to establish that it was one reason for their adverse treatment.

For greater analysis of this topic please refer to ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15471/index.do Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc (Bombardier Aerospace Training Center)]'', 2015 SCC 39; and ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/12680/index.do Moore v British Columbia (Education)]'', 2012 SCC 61.


=== 4. Settlement Meeting ===

'''Parties may agree to a settlement meeting at any time after the complaint has been filed.''' Guides for settlement meetings and hearings are available from the Tribunal at its office address or on its website. At the settlement meeting, a neutral and impartial mediator who is knowledgeable in human rights law will work with the parties in order to help them try to reach an agreement. This process allows for quicker resolution of the issue in a more informal setting, where information is kept confidential. The process is voluntary and the Tribunal cannot force the parties to enter into a settlement agreement. If the parties do voluntarily agree to settle their dispute, as part of the terms of settlement, the complainant will file a Complaint Withdrawal Form. 

=== 5. Exceptions ===

Due to the COVID-19 Pandemic, there is now a new process for processing mask wearing complaints in the BC HRT. BC declared a state of emergency on March 18th 2020 due to the pandemic, and therefore the 1 year time limit to file a complaint may be extended but you must ecplain this on the complaint form. If the complaint is urgent, the tribunal may be notified by email or letter, or by application for a fast track process. 

To be eligible for fast track, you must show that fast tracking or changing the process will help get to a “just and timely resolution” of the complaint. 

The tribunal encourages people to solve any mask wearing complaints by talking to the service provider by sending them information about the public order requiring masks, and guidance from the Office of the Human Rights Commissioner and WorkSafe BC. 

A case manager will ask the parties if they want to try to resolve the complaint quickly and informally. If so, the case manager will help the parties do this. If not, the Tribunal will put the complaint through the regular process. 

== F. Remedies ==

Remedies should be considered first when deciding whether or not to pursue a claim in any administrative tribunal. Available remedies for a justified complaint are listed in section 37(2) of the HRC.

'''Non-pecuniary (not financial) remedies include''': an order that the respondent cease the discriminatory conduct, a declaratory order that the conduct complained of is, in fact, discriminatory, and an order that the respondent take steps to ameliorate the effects of the discrimination, such as the implementation of human rights policy and training. People seeking advice on drafting should be directed to the BC Human Rights Tribunal website, which provides detailed information on the availability and applicability of specific remedies (see '''Section II.B: Resources'''). 

'''Pecuniary (financial) remedies include''': compensation for lost wages/salary or expenses, re-instatement of a lost benefit, and compensation for injury to dignity. Unlike severance pay, compensation for lost wages is not based on the concept of reasonable notice. A successful claimant may recover lost wages for the entire period between their dismissal and the hearing date if they can show that they have been making reasonable efforts to find new employment. Damages awarded for injuries to dignity have increased over the last decade, and the tribunal has made it clear that the trend for such damages is upwards (see ''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt174/2018bchrt174.html Biggings obo Walsh v Pink and others]'', 2018 BCHRT 174 [''Walsh'']). Currently the highest award in BC is $75,000 (''[https://www.canlii.org/en/bc/bcca/doc/2016/2016bcca271/2016bcca271.html University of British Columbia v Kelly]'', 2016 BCCA 271).  However, most damages in this category are under $10,000. It is difficult to predict what level of damages the tribunal will award, as this determination depends on many factors, which are assessed on a case by case basis (see e.g. ''Walsh''). Importantly, while injury to dignity awards commonly follow in cases where discrimination is established, this is not guaranteed, as seen in ''[https://www.canlii.org/en/bc/bchrt/doc/2012/2012bchrt28/2012bchrt28.html Holt v Coast Mountain Bus Company]'', 2012 BCHRT 28 at para 233. For further information regarding compensation for injury to dignity, feelings, and self-respect, please visit  http://www.bchrt.gov.bc.ca/human-rights-duties/remedies/compensation/index.htm

Remember, to claim any type of damage, the claimant must lead evidence. If the claimant fails to lead strong evidence as to the effect the discrimination had on their emotional state and dignity, the Tribunal may not find any damage. If the respondent is able to prove that the claimant has failed to mitigate their losses, the failure to mitigate one’s losses can lead to the loss of a claimant’s entitlement to wage loss compensation.

There is no maximum limit on damage awards. Note, however that if a claimant seeks a remedy at both the Human Rights Tribunal (e.g. for lost wages) and in civil court (e.g. for severance pay), and is successful with both proceedings, they must forfeit one of the awards, as they are not entitled to double recovery. There are several cases where the award for loss of wages was in the range of $300,000. See ''[https://www.canlii.org/en/bc/bcca/doc/2016/2016bcca271/2016bcca271.html Kelly]'' and ''[https://www.canlii.org/en/bc/bchrt/doc/2009/2009bchrt196/2009bchrt196.html Kerr]''. 

The pecuniary remedies available under the HRC are meant to be compensatory in nature, not punitive. Section 37(4) of the HRC gives the Tribunal authority to order costs against either party as condemnation of improper conduct during the Tribunal processes. This order is independent of a finding that the complaint is justified. Additionally, section 37(2) gives the Tribunal the right to award compensation for expenses that are directly caused by the discrimination found, which may include expenses such as wage loss due to the need to attend a hearing. 

The Tribunal will not provide remedies in every situation where there has been real or perceived discrimination. For example, the Tribunal will not award damages for lost wages/salary following a discriminatory dismissal during a period for which the claimant was medically incapable of working. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2008/2008bchrt376/2008bchrt376.html Senyk v WFG Agency Network (No 2)]'', 2008 BCHRT 376 at para 434. This is because, even absent the discrimination, the claimant would not have been able to earn wages or a salary.

A final order of the Tribunal may be registered in the BC Supreme Court so that it is enforceable as though it were an order of the court. No appeal procedure is provided for in the HRC; individuals dissatisfied with the Tribunal’s decision must seek judicial review in BC Supreme Court pursuant to the [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96241_01 Judicial Review Procedure Act, RSBC 1996, c 241] (see '''Chapter 5: Public Complaint Procedures''' of the LSLAP Manual).

== G. Costs == 

The general rule is that costs will not normally be awarded in a human rights case. Pursuant to [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/00_96210_01#section37 section 37(4) of the HRC], the purpose of awarding costs is to penalize a party who acts improperly during a hearing, thereby interfering with the objectives of the Tribunal.  In these cases, costs are awarded punitively and do not necessarily reflect the actual expenses suffered by the other party due to the improper conduct. 

== H. Dismissal of a Complaint Without a Hearing ==

As mentioned above, the Tribunal may refuse to accept a complaint for filing if it does not have jurisdiction due to the nature of the complaint or if it is late filed. Once a complaint has been filed, however, the Tribunal may nevertheless dismiss it prior to a hearing, on application from the respondent or on its own motion, for a variety of reasons ([https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/00_96210_01#section27 HRC, s 27]). The following outlines some of the reasons why the Tribunal may dismiss a filed complaint (check the HRC for a complete list):

=== 1. Complaint Outside the Tribunal’s Jurisdiction ===
The Tribunal will not proceed with a complaint where it is persuaded that the complaint is not, in fact, based on a form of discrimination enumerated by the HRC, or that the complaint falls within federal jurisdiction. Even if the Tribunal accepts a complaint for filing, the respondent may still have the option to dispute jurisdiction.

=== 2. Substance of Complaint Dealt with by Another Proceeding ===
Where another proceeding, such as a labour arbitration, has adequately resolved the substance of a complaint, it will usually be dismissed. A complaint may also be deferred if such an alternative proceeding is pending. The number of other proceedings capable of adequately dealing with a human rights complaint is however, quite limited. 
 
=== 3. No Reasonable Basis for Holding a Hearing ===
The Tribunal may discontinue proceedings where the Tribunal is persuaded that the complaint is made in bad faith, would be of no benefit, would not further the purposes of the HRC, and/or has no reasonable prospect of success. The most recent Annual Report from the BCHRT indicates that applications to dismiss under section 27 of the HRC succeeded in fully dismissing the complaint 49% of the time. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2011/2011bchrt117/2011bchrt117.html Marquez v Great Canadian Casinos]'', 2011 BCHRT 117 at paras 29–38. No reasonable prospect of success is the most common reason for dismissing a complaint.

=== 4. Complaint Brought Outside Limitation Period ===
As mentioned above, there is a one-year limitation period. The one-year period begins from the last instance of any continuing discrimination. If at least one alleged incident of discrimination in a complaint falls within the one-year limitation period, other alleged incidents of discrimination dating back farther than one year may be accepted as a continuing contravention of the ''Code''. The issue of whether, or how many, multiple instances of discrimination will be considered to constitute a “continuing contravention” (thus effectively extending the one-year limitation period) is often disputed. See ''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt204/2018bchrt204.html Bjorklund v BC Ministry of Public Safety and Solicitor General]'', 2018 BCHRT 204 at paras 13-14 for a recent discussion of how to define a “continuing contravention”; see also ''[https://www.canlii.org/en/bc/bcca/doc/2018/2018bcca136/2018bcca136.html District v Parent obo the Child]'', 2018 BCCA 136 at paras 46–65.

Additionally, under [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/00_96210_01#section22 section 22(3)] of the HRC, the Tribunal has discretion to accept late-filed complaints regardless of whether there is a “continuing contravention”, if it is in the public interest to accept the late complaint, and no substantial prejudice will be caused to any party because of the delay in filing: ''[https://www.canlii.org/en/bc/bchrt/doc/2003/2003bchrt39/2003bchrt39.html Chartier v Sooke School District No 62]'', 2003 BCHRT 39 at para 12. Whether it is in the public interest to accept a complaint filed outside the one-year time limit is a multi-faceted consideration, which is governed by the purposes of the HRC, and done on a case-by-case basis. Factors that may be important considerations in determining whether it is in the public interest to accept a late-filed complaint include the reasons for the delay, the length of the delay, the significance of the issue raised in the complaint and fairness in all the circumstances. The list of factors that the Tribunal may consider is non-exhaustive:. ''[https://www.canlii.org/en/bc/bcca/doc/2014/2014bcca220/2014bcca220.html British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite]'', 2014 BCCA 220; ''[https://www.canlii.org/en/bc/bchrt/doc/2007/2007bchrt24/2007bchrt24.html Hoang v. Warnaco and Johns]'', 2007 BCHRT 24.

== I. Judicial Review ==

If an individual disagrees with a decision of the Tribunal, they may ask the Supreme Court of British Columbia for a “judicial review”. A judicial review differs from an appeal to a higher court. In an appeal, the court has the authority to decide whether or not it agrees with a decision. In a judicial review, the BC Supreme Court simply decides whether or not there is a “ground” for review and may only disturb the Tribunal’s decision if the applicant can demonstrate that the Tribunal: 

*Made an “error of law”, e.g., an incorrect interpretation of the HRC;
*Made a finding of fact that is unreasonable or unsupported by the evidence;
*Acted unfairly with regards to the rules of procedure and natural justice; or
*Disregarded legislative requirements; used its discretion arbitrarily, in bad faith, or for an improper purpose; and/or based its decisions on irrelevant factors.

The standards of review applicable to the Tribunal’s decisions are set out in s. 59 of the ''[https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/04045_01 Administrative Tribunals Act]''.

If the Tribunal has made any of these errors, the Court may set aside the decision and will usually direct the Tribunal to reconsider the matter. Section 57 of the ''Administrative Tribunals Act'' mandates that an application for a judicial review must be submitted within '''60 days''' of the date the Tribunal’s decision was issued. In order to seek a judicial review, an individual is required to prepare a petition and affidavit, file the petition and affidavit at the BC Supreme Court, and serve a copy of the filed petition and affidavit on the Tribunal, the Attorney General of British Columbia, and any person whose interests may be affected by the order you desire the Court to make. 

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