Written by: 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:
 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.