What Can BC Learn from Ontario's Human Rights Commission?

Reakash Walters, Summer Articled Student

For the first time in 17 years, BC will have a Human Rights Commissioner.1 On November 27, 2018 the BC Human Rights Code was amended to establish the position. Former West Coast LEAF Executive Director Kasari Govender was appointed as BC’s next Human Rights Commissioner on May 302 after the unanimous recommendation of a special committee to the Legislature.3 Ms. Govender’s term begins September 3, 2019 and she will hold the position for five years. As the regime to protect human rights in the province shifts, equality seekers may look to Ontario, whose human rights commissions has a similar mandate, to anticipate what to expect in BC.

This year’s Canadians Association of Labour Lawyers’ conference provided some helpful insight into Ontario’s Commission, which may offer some clues about what to expect when BC’s Commission gets up and running this fall.

Every year, the Canadian Association of Labour Lawyers (CALL) hosts a conference for its members to connect and discuss emerging issues in labour law and develop strategies to build a stronger labour movement in North America. I was fortunate to be one of three law students chosen to attend CALL through their student sponsorship program. Every year, law students currently attending a Canadian law school with a demonstrated interest in union-side labour law are invited to apply for full funding to attend the annual conference. This year’s conference took place May 30 to June 2 in Toronto, Ontario, where leading labour lawyers, academics, and arbitrators presented on topics like Truth and Reconciliation in Labour Law, How to Ensure Clients Disclose, Civility in the Shadow of Groia, and #MeToo--just to name a few of my favourites.

1 British Columbia, Legislature, Special Committee to Appoint a Human Rights Commissioner, (May 2019) at 1.

2 Ministry of Attorney General, Media Release, "New commissioner to promote and protect human rights" (30 May 2019).

3 Supra note 1 at 4.

In “A Fireside Chat with Renu Mandhane”, Ontario’s Human Rights Commissioner spoke candidly about the work of the Commission and how labour law can help advance human rights across the country. Similar to BC’s new Commission, the Ontario Human Rights Commission’s mandate is to prevent discrimination and advance human rights in the province through public education and advocacy. Ms. Mandhane shared that the Ontario Commission takes a multidisciplinary approach to its role. Although the Commission has the ability to intervene in applications if one of the parties consents, the Ontario Commission does not play a gatekeeping role for complaints submitted to the Tribunal. Instead, the Commission reserves much of its resources to focus on systemic issues of discrimination with the intention to reduce every day discrimination more broadly. In contrast, BC’s Commission will have the ability to intervene in complaints at any time after the complaint is filed according to terms established by tribunal members adjudicating the case.4

The Ontario Human Rights Commission works to prevent instances of discrimination by developing policies that both explain the law and attempt to move human rights law in a progressive direction. They educate organizations with obligations under the Human Rights Code (housing, contracts, employment, goods and services, unions and professional associations) to ensure organizations know what is required of them. Ms. Mandhane pointed out that one important power of the Commission is its power of inquiry. The Ontario Human Rights Commission has pursued an important inquiry under Ms. Mandhane’s direction into racial profiling and racial discrimination of Black persons by the Toronto Police Service. The goal of the inquiry was to help build trust between the police and Black communities in Toronto by identifying issues and offering recommendations to address them.5

BC’s new Human Rights Commissioner is tasked with promoting and protecting human rights, but how she decides to execute that mandate is largely up to her and her team. According to the Code, the Commissioner has the power to develop policies, resources and guidelines, publish reports, make recommendations, disseminate public information, examine legislation, consult community groups and organizations, establish working groups, intervene in complaints and promote compliance with international human rights obligations, and any “other means the commissioner considers appropriate to prevent or eliminate discriminatory practices, policies and programs..”6 The Commissioner can employ each of these powers to fulfill her mandate of promoting and protecting human rights. 7

Having had no commission for the last 17 years, BC residents will welcome the effective human rights advocacy Ms. Govender and the Commission will provide. Considering Ms. Govender’s impressive tenure with West Coast LEAF she will bring her experience as a powerful advocate and effective educator to her new role.

As the new Human Rights Commission is established over the coming months, Moore Edgar Lyster will be watching closely to see what opportunities emerge -- both for our clients and for the future of human rights in the province.

4 Human Rights Code, RSBC 1996, c 201 s 22.1 (1)
5 Ontario Human Rights Commission, "A Collective Impact: Interim report on the inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service"
6Supra note 4 s 47 (12)(1).
7Ibid s 47.12(1)(c).

Extricable Questions of Law Really Exist!

Sara Hanson

The Parent obo the Child v The School District, 2019 BCSC 659

A link to the decision can be found here.

Moore Edgar Lyster recently represented the successful parent in The Parent obo the Child v The School District, 2019 BCSC 659, in which the BC Supreme Court set aside a decision of the BC Human Rights Tribunal dismissing the parent’s human rights complaint after finding that it was filed outside the then six-month timeline under s. 22 of the BC Human Rights Code.

This case has a long procedural history predating our involvement. In June 2015, the parent filed a representative human rights complaint on behalf of his child alleging that the School District had discriminated against the child on the basis of mental disability in the provision of educational services, contrary to s. 8 of the Code.

In February 2016, the School District filed an Application to Dismiss the Complaint pursuant to s. 27(1)(g) of the Code on the basis that the allegations in the Complaint fell outside the then six-month time limit. (While the timeline to file a complaint used to be six months, the Code was recently amended so that complainants now have one year to file a complaint.)

In response to the Application to Dismiss, the parent argued that the District had engaged in a continuing contravention of the Code, and therefore, the complaint was not filed out of time. If the complaint was filed out of time, the parent argued that it was in the public interest to accept the complaint for a number of reasons, including that prior to filing the complaint, he had consulted experienced legal counsel, and received and relied upon erroneous advice about when to file the complaint. The parent also swore an affidavit to support this statement.

On July 14, 2016, the Tribunal denied the District’s Application to Dismiss after finding that the complaint constituted a continuing contravention under s. 22(2) of the Code. While the BC Supreme Court upheld this decision on judicial review, the BC Court of Appeal quashed the decision after finding that the Tribunal and the Chambers Judge erred in interpreting the test for a continuing contravention. As a result, the matter was remitted back to the Tribunal for a determination on whether it should be accepted for filing under s. 22(3) of the Code.

On April 17, 2018, the Tribunal declined to exercise its discretion to accept the Complaint for filing under s. 22(3), and dismissed the Complaint in its entirety. Amongst other reasons, the Tribunal rejected the parent’s reliance on lawyer advice error as a reason for delay that justified accepting a late-filed complaint:

[14] The Parent relies on Ashrafinia v. Koolhaus Design (BC) Ltd., 2007 BCHRT 241 (CanLII), at para. 11, for the proposition that it is in the public interest to accept a complaint where a delay in filing is the result of an error by a complainant’s counsel. As pointed out by the School District; however, in Adolphs v. Boucher Institute of Naturopathic Medicine, 2014 BCSC 298 (CanLII), at para. 43, the court stated that attracting the public interest requires evidence to the effect that counsel for the complainant had erred and the error had been explained. In my view, in order for the Parent to rely on lawyer advice error as a reason for the delay, it would be necessary for him to identify the lawyer in question and have that lawyer confirm the advice he gave was made in error and explain how the error occurred. Without more evidence, I am unable to conclude counsel made an error in advising the Parent such that the public interest in allowing the late-filed complaint to proceed is engaged. [Emphasis added]

On the recent judicial review, we argued that in its April 17, 2018 decision, the Tribunal wrongly interpreted the BC Supreme Court’s decision in Adolphs v. Boucher Institute of Naturopathic Medicine, 2014 BCSC 298, as requiring a complainant to identify the lawyer in question and have that lawyer confirm the advice he gave was made in error and explain how the error occurred before a complainant can rely on lawyer advice error as a reason for delay that justifies accepting a late filed complaint.

While decisions under s. 22(3) of the Code are discretionary, and therefore typically reviewed under the patent unreasonableness standard set out in s. 59(4) of the Administrative Tribunals Act, we argued that the Tribunal’s error was an extricable question of law that should be reviewed on the standard of correctness. The Court agreed with this argument, finding that “the question of law is readily discernible from the impugned passages” (at para. 36). Applying the standard of correctness, the Court also agreed with our argument that the Tribunal had incorrectly interpreted the decision in Adolphs.

However, even where an administrative tribunal commits an error of law, the Court must still determine whether the legal error renders the decision patently unreasonable. The Court agreed with our submission that the Tribunal’s legal error was fatal to the Tribunal’s decision as a whole. As a result, the Court remitted the matter back to the Tribunal for reconsideration of whether the complaint should be accepted for filing outside the six-month time limit.

While the School District has appealed the Supreme Court’s decision, we are hopeful that the Supreme Court’s decision will stand so that the parent has another opportunity for the Tribunal to reconsider whether this important complaint, involving the accommodation of a child with multiple disabilities, should be accepted for filing.