Difference between revisions of "BC Human Rights Code (6:III)"

=== 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.  

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.

'''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 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:''' 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)).  

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:  

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.  

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.  

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 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:

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.

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.

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.  

'''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.  

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.  

'''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

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.

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.