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Tel: 604.689.8474
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Dismissal of a Complaint

 

The information below is intended to give a brief overview and to assist in understanding the law as it pertains to dismissal of a Human Rights Complaint. It should not be construed as legal advice, and is intended for educational purposes only.

If you are a Respondent wishing to respond to a complaint you should first visit the FAQ for Respondents page for important background information.

 

If you want to respond to a complaint you can do so by filing a Form 2 – Response to Complaint Form. Generally speaking, when you file that form you can also apply to the Tribunal to have the case against you dismissed. There are other times when the application to dismiss may be made, (See Rule 13) but most often it is filed with the reply. You must make an Application to have the complaint dismissed. You file the application with the Tribunal at the same time you as you file your response. Remember to make sure all the parties (all the Complainants and any other Respondents) also receive a copy of your Response and the Application

 

Section 27 of the BC Human Rights Code allows a Tribunal Member (Judge) to dismiss a complaint for various reasons.  

(a)

the complaint or that part of the complaint is not within the jurisdiction of the tribunal;

(b)

the acts or omissions alleged in the complaint or that part of the complaint do not contravene this Code;

(c)

there is no reasonable prospect that the complaint will succeed;

(d)

proceeding with the complaint or that part of the complaint would not

(i)

benefit the person, group or class alleged to have been discriminated against, or

(ii)

further the purposes of this Code;

(e)

the complaint or that part of the complaint was filed for improper motives or made in bad faith;

(f)

the substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding;

(g)

the contravention alleged in the complaint or that part of the complaint occurred more than 6 months before the complaint was filed unless the complaint or that part of the complaint was accepted under section 22 (3).

What does this mean?   Lets take a closer look section by section.

 


Section 27 (1)(a) - The complaint or that part of the complaint is not within the jurisdiction of the tribunal;

 

Generally speaking 3 factors must be considered when assessing the jurisdiction of the Tribunal.

 

Statutory Jurisdiction – The Constitution Act of 1867 divided powers between the Provinces and the  Government. In Canada, both the Provinces (and Territories) and the Federal Government have jurisdiction to decide on cases alleging discrimination where they oversee that sector. The Federal Government has jurisdiction over matters arising in the context of Banking (not Credit Unions), Communication (TV. Radio, Internet), The Indian Act, International or inter provincial Transportation, the Armed Forces, Federal Government Agencies etc.

 

The Tribunal, created by Provincial legislation, has no jurisdiction over a Respondent who is subject to Federal regulation under the Constitution Act, 1867, (Chan v. Bell Mobility Inc.dba Bell Mobility, 2003 BCHRT 27).

 

If an entity is not subject to Federal jurisdiction it will fall within the Provincial Jurisdiction. This will include areas such as Stores, Public Transportation like regional/local buses, Strata Properties, Schools, Restaurants, and Employment not in one of the Federal areas indicated above

 

See here for help in determining if you are in the Provincial or Federal Jurisdiction.

See:       

Osenjak v. Air Canada Pilots Association, 2006 BCHRT 614

Bergey v. B.C. Corps of Commissionaires and Stephenson, 2006 BCHRT 275

Murray v. BC Aboriginal Childcare Society and others (No. 2), 2006 BCHRT 369

Statutory Jurisdiction under the Code.

The Tribunal can also only deal with issues of discrimination as defined within the BC Human Rights Code. If the alleged discrimination is not covered by the Code then the Tribunal does not have jurisdiction. Not all discriminatory treatment is covered by the Code.

See:       

Steel v. Rahn and another, 2008 BCHRT 220

Andrews v. Chilli House Thai Bistro and Chen (No. 2), 2007 BCHRT 88

Roth v. Beaver Creek Improvement District and Sopow, 2008 BCHRT 133

Subject Matter Jurisdiction – The Tribunal must have jurisdiction to deal with the subject (the complaint) and the Remedy. For instance if the complaint is about entitlement to holiday pay or overtime, that is the jurisdiction of the Employment Standards Branch and the Tribunal does not have subject matter jurisdiction. If the complaint is about the lack of effective representation by a Union, that is the jurisdiction of the Labour Relations Board and the Tribunal does not have jurisdiction. If the complaint is about tenancy/landlord issues then it will likely be under the jurisdiction of the Residential Tenancy Branch and the Tribunal will not have jurisdiction. If the complaint is about entitlement to WorkSafe (WCB) benefits then the Tribunal will not have jurisdiction.

 

See:       

Standeven v. WorkSafeBC, 2007 BCHRT 150

Geographical Jurisdiction – The Tribunal can only deal with complaints where the alleged discrimination took place in British Columbia

 

The Tribunal can dismiss a complaint where it can be shown that it does not have any one or more of these types of jurisdiction.

 

In a complaint of discrimination in employment, the Tribunal decided it did not have jurisdiction as the respondent was an Indian Band as defined by the Federal Indian Act. (Edwards v. Lake Babine Nation and others, 2005 BCHRT 215)

 

The Tribunal dismissed a complaint by a hearing- impaired employee of the Speaker of the Legislature as not within its jurisdiction due to parliamentary privilege. (Scott v. B.C. (Office of the Speaker of the Legislative Assembly) and  Larsen, 2005 BCHRT 550)

 

The Tribunal accepted jurisdiction over a complaint against Pacific Coach Lines in regard to wheelchair accessible bus service because the bus services were provided exclusively within the province of B.C. (Coughlin v. Pacific Coach Lines, 2006 BCHRT 160)


Section 27 (1)(b) - The acts or omissions alleged in the complaint or that part of the complaint do not contravene this Code;

 

Test for dismissal under Section  27(1)(b)

The test applied by the Tribunal in determining whether a complaint should be dismissed under s. 27(1)(b) is set out in Bailey v. B.C. (Min. of Attorney General), 2006 BCHRT 120: Section 27(1)(b) permits the Tribunal to dismiss a complaint if “the acts or omissions alleged in the complaint or that part of the complaint do not contravene the Code”. Determinations under s. 27(1)(b) are made on the basis of the allegations set out on the face of the complaint, without reference to any alternative evidence or explanation which the respondent may put forward: see, for example, Pegura et al. v. School District No. 36, 2003 BCHRT 53 at para. 28 and Simard-Asperin v. VP Credit Union, 2004 BCHRT 178 at para. 7. (at para. 9)

 

Simply put, the Tribunal can dismiss a complaint if the facts as alleged, even if true would not amount to a violation of the Code. For example, Criminal Conviction is not a protected ground in the area of Tenancy. So if someone alleged that they were not rented an apartment due to their Criminal Conviction this would not be a violation of the Code even if true and the Tribunal could dismiss the complaint under Section 27(1)(b).

 

A complainant must allege facts that, if proven, would establish that they have been in some way adversely affected by reason of their disability. It is not enough to say one is, for example, disabled and has been treated unfairly. There must be some connection or nexus between the two.

See:       

Dhillon v. Hudd Distribution, 2007 BCHRT 74

Vaughan v. B.C. (Ministry of Children and Family Development) and others, 2007 BCHRT 17

Prokopetz and Talkkari v. Burnaby Firefighters’ Union and City of Burnaby, 2006 BCHRT 462

Ingram v. Workers’ Compensation Board and others, 2003 BCHRT 57

Chatur v. Coast Mountain Bus Company, 2005 BCHRT 72


Section 27 (1)(c) - There is no reasonable prospect that the complaint will succeed;

 

Under section 27(1)(c), the Tribunal may dismiss a complaint that has no reasonable prospect of success. Here, the Tribunal considers all of the information before it, including the respondent’s version of the facts, explanations, and defences.

 

In considering applications under s. 27(1)(c) of the Code, the Tribunal has said that;

 

[t]he role of the Tribunal, on an application, is not to determine whether the complainant has established a prima facie case of discrimination, nor to determine the bona fides of the response. Rather, it is an assessment, based on all of the material before the Tribunal, of whether there is a reasonable prospect the complaint will succeed: Bell v. Dr. Sherk and others, 2003 BCHRT 63.

 

The assessment is not whether there is a mere chance that the complaint will succeed, which would be the lowest threshold a complainant would have to meet. Nor is it that there is a certainty that the complaint will succeed, which would be at the highest threshold a complainant would have to meet. Rather, the Tribunal is assessing whether there is a reasonable prospect the complaint will succeed based on all the information available to it. (Wickham and Wickham v. Mesa Contemporary Folk Art and others, 2004 BCHRT 134 at paras. 11 and 12)

 

This evaluation or weighing of the evidence for the purpose of determining whether there is a reasonable prospect the complaint will succeed is not of the same nature as that which occurs at a hearing before a tribunal, where the tribunal would make an assessment of the evidence on the balance of probabilities. The weighing or assessing at the s. 27 stage should relate solely to the question of whether there is a reasonable prospect that the complaint will succeed … (para 29)

The “reasonable prospect of success” standard is a relatively high standard. (Apps v. Workers’ Compensation Board, 2004 BCHRT 137 at para 19)

 

To determine that a complaint has no reasonable prospect of success, it is not enough that

there is a possibility that the complaint will be successful; rather, the prospect of success has to be reasonable. In making this determination, the Tribunal must consider and weigh all of the information before it. (Wickham and Wickham v. Mesa Contemporary Folk Art, 2004 BCHRT 134)

 

For example in one case the Respondents argued that a criminal conviction was related to the complainant’s employment and thus his employment could be terminated. The Tribunal dismissed the complaint as it determined that there was no reasonable prospect that the Respondents would not be able to establish this defence. (Thornton-Cronin v. Big Brothers and others, 2006 BCHRT 412)

 

In another case the Tribunal determined that it would not deal with complaints about the appropriate standard of care a doctor provides to patients. It dismissed a complaint where a doctor was exercising his best medical judgment when he prescribed the medication he did for the complainant. (Gallagher v. Henry, 2006 BCHRT 318)

 


Section 27 (1)(d) - Proceeding with the complaint or that part of the complaint would not (1) benefit the person, group or class alleged to have been discriminated against, or (2) further the purposes of this Code;

 

In Williamson v. Mount Seymour Park Housing Co-operative and others, 2005 BCHRT 334, the Tribunal said:

…complaints have been dismissed on the basis of s. 27(1)(d)(ii) in a number of circumstances. For example, where a complaint has been settled, the Tribunal has stated that proceeding with it would not further the purposes of the Code: see Thompson v. Providence Health Care, 2003 BCHRT 58 and Gareau v. Kersey and others, 2003 BCHRT 87.… In addition, the Tribunal has dismissed complaints under s. 27(1)(d)(ii) where the respondent had responded appropriately to the complaint: Horner v. Concord Security Corporation, 2003 BCHRT 86 at paras. 30-32 and Wilkie v. ICBC, 2005 BCHRT 318 at paras. 4-6.

 

A number of common threads can be discerned underlying these decisions. One has to do with efficiency and avoiding the duplication of resources: it may not further the purposes of the Code to proceed with a complaint where to do so would result in the unnecessary duplication of the Tribunal’s or the parties’ resources…. A third has to do with encouraging parties to comply with their obligations under the Code without recourse to the Tribunal: it may not further the purposes of the Code to proceed with a complaint where the underlying dispute has been settled or the respondent has already taken appropriate action to remedy the problem….

The Tribunal found that the existence of a settlement agreement is a compelling policy reason to dismiss a complaint under section 27(d)(ii). (Schmidt v. Vancouver Public Library (No. 2), 2007 BCHRT 113)

 

The Tribunal can dismiss a complaint as not furthering the purposes of the Code where a complainant has refused to accept a reasonable settlement offer. However, there must be an offer that is not subject to privilege and a sufficient factual basis for assessing the reasonableness of the offer (Dar Santos v. University of British Columbia, 2003 BCHRT 73).

 

The Tribunal dismissed a complaint on the basis that the respondents had made a reasonable settlement offer. (Demasi v. City of Vancouver (No. 2), 2006 BCHRT 220)

 

The Tribunal also dismissed a complaint where the respondent had acted promptly and responsibly to the complainant’s concerns, and attempted to balance the competing interests of all involved. (C. v. Board of Trustees of School District No. 8 and another, 2006 BCHRT 385)

 

The Tribunal has authority to dismiss a complaint where it finds that proceeding with the complaint would not further the purpose of the Code. As stated in Nesdoly v. Okanagan University College Faculty Association and Pugsley, 2005 BCHRT 422;

 

The purposes of the Code are stated in Section 3:

(a) to foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia;

(b) to promote a climate of understanding and mutual respect where all are equal in dignity and rights;

(c) to prevent discrimination prohibited by this Code;

(d) to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by this Code;

(e) to provide a means of redress for those persons who are discriminated against contrary to this Code.

 

Those purposes articulate societal objectives and values which transcend monetary issues. Indeed, only paragraph (e), by its reference to “redress”, directly alludes to compensation for victims of discrimination, although, in fact, the term “redress” may also include non-monetary remedies, such as an apology. That said, I add that the other purposes of the Code, set out in paragraphs (a) – (d) of s. 3, may be advanced and promoted by orders made by the Tribunal involving payment of monetary awards.

 

Furthermore, section. 37 of the Code sets out a wide range of remedies that the Tribunal may order if it determines that a complaint is justified. These include:

 

• a mandatory order that the person that contravened the Code cease the contravention and refrain from committing the same or a similar contravention;

 

• an order that the contravening party:

 

(i) take steps to ameliorate the effects of the discriminatory practice;

(ii) adopt and implement a program to ameliorate the conditions of disadvantaged individuals or groups, if the evidence indicates that the contravening party has engaged in a pattern or practice that contravenes the Code;

(iii) make available to the person discriminated against the right, opportunity or privilege that the person had been denied contrary to the Code;

(iv) compensate that person for wages or salary lost, or expenses incurred, by the contravention;

(v) compensate that person for injury to dignity, feelings and self respect.

 

Thus, in the case of a contravention of the Code, the Tribunal may order a variety of remedies that may or may not have anything to do with monetary loss suffered by a complainant. Clearly, a complainant may therefore benefit from proceeding with his or her complaint, and the purposes of the Code may be furthered, regardless of whether or not the complainant has made a claim for monetary loss.

 

Section 27 (1)(e) - The complaint or that part of the complaint was filed for improper motives or made in bad faith;

 

To establish “bad faith” under section 27(1)(e), a respondent must do more than present a different version of events and say that the complainant is lying or in error. (Hunter v. La

Violette, 2007 BCHRT 95)

 

The Tribunal dismissed a complaint under section 27(1)(e) where the respondent provided a substantial and reliable record and an objective conclusion could be drawn that the complainant had filed it for a purpose not consistent with the purposes of the Code. (Johnson v. Community Futures Development and others (No. 2), 2006 BCHRT 320)

 

In Crosby v. Dairyland Fluid Division Ltd. and others, 2004 BCHRT 1, the Tribunal considered what must be established before a complaint will be dismissed under s. 27(1)(e) of the Code. In Crosby, the Tribunal said:

 

… Individuals often have a negative attitude towards parties against whom they are alleging discrimination. This fact alone does not indicate that a complaint was made for improper motives or in bad faith. Further, in order for a complaint to be dismissed under s. 27(1)(e), a respondent must do more than present a different version of events and say that the complainant is lying or in error. Upon hearing all of the evidence, a Tribunal member may agree with the Respondents. However, the fact that a respondent disagrees with a complainant about what happened does not establish that the complaint was made for improper motives or in bad faith. The determination of what did happen between the parties is better dealt with at a hearing than through a preliminary application. (paras. 34 and 35)

 

As stated in Stopps v. Just Ladies Fitness (Metrotown) and D. (No. 2), 2005 BCHRT 359:

 

A complainant may be found to have filed a complaint for improper motives or in bad faith where, for example, the complainant is motivated by a purpose not consistent with that of the Code, or the complaint was not prompted by an honest belief that a contravention of the Code has occurred, but by some ulterior, deceitful, vindictive, or improper motive. The question of bad faith or improper motive must be judged by an objective standard, since it will seldom be possible to know the mind of the complainant. Further, given that the Tribunal does not investigate complaints, the Tribunal must have sufficient information before it to make such a finding. (at para. 13)

 

It is difficult to establish on a preliminary basis that a complaint was filed in bad faith. As discussed in Stopps:

 

In Nieuwkerk v. Cimex Industries Ltd., 2003 BCHRT 126, at para. 13, the Tribunal found that, in order to succeed in an application under s. 27(1)(e), a respondent must show that the complainant’s allegations have no foundation in fact or reality, and are made for spurious reasons. Similarly, in Hartley v. Glenlyon Norfolk School, 2004 BCHRT 384, at para. 13, the Tribunal held that “[i]n order to dismiss a complaint on the basis of s. 27(1)(e), the Tribunal would need to be satisfied that the complaint was filed on the basis of something other than an honest belief that the allegations in it occurred and amounted to a breach of the Code”. (at para.19) [See also Crosby v. Dairyland Fluid Division Ltd. and others, 2004 BCHRT 1, at paras. 34 – 35.]

 

In a complaint of discrimination in tenancy by a single mother, the Respondents claimed that the complaint was filed in response to a notice to vacate, and therefore filed for an improper purpose or in bad faith. The Tribunal could not find improper purpose or bad faith based on the information before it. (Foye and Foye v. Desroches and S & D Maintenance, 2005BCHRT 268)

Section 27 (1)(f) - The substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding;

 

Section 25 of the Code provides,

(1)

In this section and in section 27, "proceeding" includes a proceeding authorized by another Act and a grievance under a collective agreement.

(2)

If at any time after a complaint is filed a member or panel determines that another proceeding is capable of appropriately dealing with the substance of a complaint, the member or panel may defer further consideration of the complaint until the outcome of the other proceeding.

As noted in Reed and Reed v. The Owners, Strata Plan NW 2056, 2003 BCHRT 149  para 10)

 I find that the term “proceeding” refers to a formally established system of dispute resolution: for example, redress mechanisms established by other laws, actions taken in the judicial system, and privately contracted dispute resolution systems such as grievances, commercial arbitration, or the application of formal redress mechanisms. In addition, as provided by in s. 25, the “proceeding” must be capable of appropriately dealing with the substances of the complaint: i.e. of considering and addressing the allegedly discriminatory impact of the policy.

In Thompson v. Providence Health Care [2003] BCHRT 58 (QL), the Tribunal noted that;

 

While the list of proceedings referred to in s. 25(1) is not exhaustive, it is indicative of the kinds of processes which may qualify as “proceedings” for the purposes of s. 27(1)(f). Those are processes in which some sort of legal action is taken, such as a grievance, a proceeding under some other Act, or a lawsuit.

In Villella v. City of Vancouver and others (No. 3), 2005 BCHRT 405 (QL), the Tribunal defined the terms "substance", and "appropriately", holding that:

These definitions suggest that in considering whether the substance of a complaint has been appropriately dealt with, the Tribunal should consider whether the complaint, in its essence or pith, was dealt with in a manner suitable or proper to that essence or pith. This, in turn, suggests that the appropriate manner of dealing with a complaint may differ depending on the essential nature of the complaint in issue. Further, the Tribunal should be concerned with the substance as opposed to the form of the manner in which the complaint was dealt with, focusing on the substance as opposed to the details of the matter ...

Such an approach is consistent both with the structure of the Code, and the Tribunal's decisions under s. 27(1)(f). Section 27(1)(f), together with the deferral provision, s. 25, evince a clear legislative intention that the proceedings before the Tribunal are not the sole means through which human rights issues can be appropriately resolved. Other proceedings, and in particular grievance arbitration proceedings, may be capable of appropriately dealing with the substance of a complaint. Where they have succeeded in doing so, it furthers the purposes of the Code for the Tribunal to dismiss the complaint, thereby bringing an end to the litigation between the parties, avoiding the spectre of duplicative and potentially inconsistent results, and saving the parties and the Tribunal from the needless expenditure of resources ...

At the same time, s. 27(1)(f) clearly requires the Tribunal to satisfy itself that the substance of the complaint was appropriately dealt with in the other proceeding, as a condition precedent to the exercise of its discretion to dismiss the complaint. This requires the Tribunal to examine the decision arising out of the other proceeding; for the Tribunal simply to "rubber stamp" another adjudicator's decision without doing so would be for the Tribunal to fail to exercise its statutory obligation.

In a previous decision of the Tribunal, Migliorini v. Greater Victoria Public Library, 2005 BCHRT 47, the Tribunal said:

The determination I must make under s. 27(1)(f)is not whether the grievance process dealt with the substance of the complaint in precisely the same way as this Tribunal would have done; it is to determine if it was appropriately dealt with. (at para. 14)

To this I would add that the Tribunal should be sensitive to the real substance or essential nature of the complaint. Depending on that substance or nature, what is necessary to appropriately deal with it may differ. (paras. 17-21)

Considering the meaning of “proceeding” under section 27(1)(f), the Tribunal decided that an investigation by the employer and its response to its investigative report recommendations was not a proceeding.(Stathis v. Salvation Army and others, 2006 BCHRT 415)

 

Similarly, an independent report commissioned by a school board was not a proceeding.

(Sultani and Sultani obo Sultani v. Purhar and Bailey and Ward (No. 2), 2007 BCHRT 138)

 

The Tribunal found that a residential tenancy arbitration did not address the substance of the complaint. (Ettya v. Au and Lim, 2006 BCHRT 453). The Tribunal has displayed a reluctance to dismiss complaints on the basis that their substance has been dealt with in proceedings under the Employment Standards Act. As stated in Stackhouse v. Craft and Stack Trucking, 2006 BCHRT 214. The Tribunal confirmed that a proceeding under the Employment Standards Act cannot appropriately deal with a human rights complaint. (Janie v. Erakovic and another, 2006 BCHRT 337).

 


Section 27 (1)(g) - The contravention alleged in the complaint or that part of the complaint occurred more than 6 months before the complaint was filed unless the complaint or that part of the complaint was accepted under section 22 (3).

 

A complaint may be dismissed if it is filed outside of the time limit, subject to the Tribunal's discretion to accept the late complaint in the public interest under s. 22(3) (Blank v. Lapointe and Cultus Lake Park Board, 2003 BCHRT 54).

 

As noted by the Tribunal in Riceman v. BC Hydro and others, 2005 BCHRT 475, the analysis of whether it is in the public interest to accept a late-filed complaint is a multifaceted one, which involves a consideration of the purposes of the Code and the circumstances of the particular case. In Riceman, the Tribunal provided a summary of other factors which may be relevant in any particular case:

Although the following is by no means an exhaustive list, the various factors that this Tribunal has found to be significant with respect to this analysis, in addition to the reason for the delay, include: the length of the delay …, the history of the negotiations between the parties prior to the filing of the complaint …, whether the complainant is represented …, whether there is an element of surprise with respect to the substance of the complaint or whether the essence of the complaint was known to the respondent prior to its filing …, whether the conduct as alleged could amount to a violation of the Code …, whether an issue is raised by the complaint which the Tribunal should consider …, the principle of fair access to the Tribunal to have allegations of discrimination heard and determined …, and whether there is another avenue of redress available to the complainant …. (at para. 24)

 


The above information is intended to give a brief overview, and to assist in understanding the law as it pertains to dismissal. The above should not be construed as legal advice, and is intended for information and educational purposes only.


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