Category: Administrative Law and Judicial Review

What are tribunals?

Tribunals are decision-makers set up by the government to make decisions about specific types of disputes. The government creates these specialized bodies to reduce the range and quantity of disputes that courts have to deal with in the first instance, and to deal with specific issues more efficiently and affordably than the courts. Tribunals that members of the public often deal with include the Residential Tenancy Branch, the Civil Resolution Tribunal, the Employment Standards Tribunal, the Workers’ Compensation Appeal Tribunal and the Human Rights Tribunal.

What do tribunals do?

These tribunals make decisions that affect important aspects of people’s lives – whether they are evicted from their apartment; whether their strata council is unfairly applying noise or rental bylaws; or whether an employer has discriminated against them on the basis of race, gender or sexual orientation. When a person affected by one of these tribunals’ decisions believes that the decision was arrived at unfairly, and has exhausted any internal review processes made available by that tribunal, that person can apply for judicial review.

What happens in judicial review?

In a judicial review, a person affected by a tribunal’s decision asks a judge of the BC Supreme Court to review the decision and determine if the tribunal arrived at its conclusion unreasonably, or conducted the hearing in a procedurally unfair manner. However, the judge will not re-hear the whole case, and will not overturn the decision simply because the applicant does not agree with it or wants another chance to present his or her arguments. In a judicial review, the judge is limited to reviewing the tribunal’s decision and the written reasons for it, and determining whether the decision was reasonable and the procedures the tribunal followed were fair.

The courts recognize that the law gives the tribunal the power to make the decision, so judges must defer significantly to the tribunal’s decision-making authority and not interfere with its decisions unless it makes a major error in reasoning or procedure.

What happens if you win a judicial review?

If you succeed in a judicial review, the court will cancel the tribunal’s decision, and order the tribunal to re-hear the case and issue a new decision. The tribunal will hear the case a second time and make a new decision without repeating the mistakes it made the first time. The other side may also have to pay your “costs”, or a portion of your legal expenses, even if you did not hire a lawyer.

What happens if you lose a judicial review?

If you lose a judicial review and the court does not interfere with the tribunal’s decision, then the original decision will remain in effect. You may have to pay the opposing party’s costs.

If a tribunal has made a decision affecting your life and you believe it has made a serious error in reaching that decision, or someone else has applied for judicial review of a tribunal decision made in your favour, we would be happy to review the case and give you the advice and representation you need.

A person who suspects that discrimination was involved in the treatment received in a range of everyday interactions with others may find that the BC Human Rights Code applies to his or her situation. 

The BC Human Rights Tribunal hears human rights complaints from persons who believe they have experienced discrimination by an employer, an organization, a landlord or a service provider.  If discrimination is proven, the Tribunal can award compensation for injury to dignity and self-respect, wage loss, lost opportunity or other lost benefit.  It can order reinstatement of a job.  The Tribunal can make awards of any amount.  Awards for injury to dignity range from $3000 to $50,000.

Persons who experience discrimination in the following areas may make a claim. 

Publications; accommodation, a service or facility; the purchase of property; tenancy premises; employment advertisements; wages; employment; unions and associations.

Claim requirements

There are three requirements for a successful human rights claim.

1. The person must have a characteristic that is protected by the Code. That means one of the following characteristics. Some characteristics do not apply in all cases.

Indigenous identity, 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, conviction for a criminal or summary conviction offence and lawful source of income.

2. The person experienced an adverse impact with respect to a characteristic protected by the Code.
3. The complainant proves that the protected characteristic was a factor in the negative treatment.   

Complainants can provide proof by direct evidence or by inference.  Direct evidence can be oral testimony at a hearing.   There can be valid grounds for dismissal of an employee, but if even a small part of the reason for dismissal is based on discrimination, the application of the BC Human Rights Code can be proven.  Corroboration of oral testimony adds to the weight of evidence. 

Proof by inference is harder to establish.  It is a logical conclusion drawn from the evidence.  Proof cannot be based on mere speculation and belief.  For cases involving indigenous clients, submissions on systematic racism are now widely accepted as relevant on this point.

The employer’s intention not to discriminate does not matter to the Tribunal.  It is the effect of the discrimination that is examined by the Tribunal.

Defences

There are a number of defences.

1. In an employment situation, the employee needs to have notified the employer of the need for accommodation. Failure to do this can result in the employer being excused.  This excuse will not be valid if the employee is missing a lot of work, and the employer fails to enquire.
2. Occupational requirement. Certain occupations require the exclusion of some persons.  For example, a fireman may need to be able to lift a person out of a burning building.  This will exclude some persons with physical disabilities.
3. Undue hardship. For smaller businesses, such as mom-and-pop stores, the Human Rights Tribunal can accept that they do not have the resources to accommodate the individual. It may not be possible for the employer to accommodate a wheelchair.
4. Frustration. A respondent can argue that frustration of contract applies.  This means that neither party caused the lack of accommodation.  For example, the parties may have experienced an unforeseen situation or event for which they made no previous provision.  The situation cannot be self induced or the fault of either party.  It must create a radical change in the nature of the contractual obligations.

There is a one-year limitation period from the date of the discriminatory act to file a claim.  

The complaint process. 

The process starts with the party alleging discrimination filing a complaint and setting out the details of the discrimination.  The Human Rights Tribunal will examine the complaint to see if the alleged discrimination is with respect to one of the protected characteristics.

If the complaint proceeds, the respondent must file a complaint response form.  The parties can choose mediation in advance of a hearing.  Mediation must be approached cautiously.  If successful, mediation could shorten the process.  However, if there is no settlement, the parties will have wasted a lot of time and expense, because the mediation process requires that the mediator listen at length to the witness evidence.  This time-consuming exercise will have to be repeated for the eventual hearing.