Questions where the Tribunal must be correct

Complaint process

Questions where the Tribunal must be correct

Last updated: January 16, 2024

The Tribunal must be correct when it sets out the law about discrimination and its powers under the Code (called “jurisdiction”).

Examples of questions where the tribunal must be correct are:

The legal test for discrimination and the duty to accommodate
The legal test for employment (Section 13)
The legal test for services (Section 8)
The legal test for tenancy (Section 10)
The legal test for publications (Section 7)
The legal test for a “continuing contravention” (Section 22)
The legal test for retaliation (Section 43)
The tribunal’s powers (“Jurisdiction”)
Other legal questions

Correctness means that the court can substitute its answer on the question.

The courts have also said that they must be careful about choosing the correctness standard, to make sure that it is not applied to a question of fact or discretion:

University of British Columbia v. Kelly, 2015 BCSC 1731, affirmed 2016 BCCA 271
Providence Health Care v. Dunkley, 2016 BCSC 1383
J.J. v. School District 43 (Coquitlam), 2013 BCCA 67
Ismail v British Columbia (Human Rights Tribunal), 2013 BCSC 1079 at para. 31
Kinexus Bioinformatics Corporation v. Asad, 2010 BCSC 33 at paras. 30-32

The legal test for discrimination and the duty to accommodate

Legal principles about prima facie discrimination:

University of British Columbia v. Kelly, 2016 BCCA 271
Vancouver Area Network of Drug Users v. British Columbia Human Rights Tribunal, 2015 BCSC 534 (judgment on appeal reserved October 6, 2016)
Boehringer Ingelheim (Canada) Ltd./Ltรฉe. v. Kerr, 2011 BCCA 266

Burden of proof for prima facie discrimination: Armstrong v. British Columbia (Ministry of Health), 2010 BCCA 56, leave to appeal denied, [ 2010] SCCA No. 128 (QL)

Legal principles about the duty to accommodate:

University of British Columbia v. Kelly, 2016 BCCA 271
Providence Health Care v. Dunkley, 2016 BCSC 1383
Emergency Health Services Commission v. Cassidy, 2011 BCSC 1003

Discrimination based on agreed statement of facts:

Lavender Co-operative Housing Assn. v. Ford, 2011 BCCA 114
International Forest Products Ltd. v. Sandhu, 2008 BCCA 204

Application of the Code to the Tribunal’s findings of fact: Foglia v. Edwards, 2007 BCSC 861 at paras. 22 and 33

Application of s. 13 of the Code to undisputed facts; failure to apply s. 41:

Lavender Co-operative Housing Assn. v. Ford, 2011 BCCA 114
St. James Community Service Society v. Johnston and the British Columbia Human Rights Tribunal, 2004 BCSC 1807

The legal test for employment (Section 13)

Meaning of “regarding employment”: Schrenk v. British Columbia (Human Rights Tribunal), 2016 BCCA 146, (appeal to the Supreme Court of Canada to be heard in March 2017)

Equity partner: McCormick v. Fasken Martineau DoMoulin LLP, 2014 SCC 39

Union: Goddard v. Dixon, 2012 BCSC 161 at paras. 187-193

Master-of-ceremonies of a comedy show: Ismail v British Columbia (Human Rights Tribunal), 2013 BCSC 1079

Co-employer: HMTQ et al v. Emergency Health Services Commission et al, 2007 BCSC 460

The legal test for services (Section 8)

Master-of-ceremonies of a comedy show: Ismail v British Columbia (Human Rights Tribunal), 2013 BCSC 1079

Private golf club: Marine Drive Golf Club v. Buntain, Charles et al, 2007 BCCA 17, leave to appeal denied [2007] SCCA No. 112 (QL)

The legal test for tenancy (Section 10)

Sexual harassment is sex discrimination under s. 10: Friedmann v. MacGarvie, 2012 BCCA 445

The legal test for publications (Section 7)

Interpretation of s. 7(1)(a) of the Code: Carson v. Knucwentwecw Society, 2006 BCSC 1779

The legal test for a “continuing contravention” (Section 22)

Legal test for continuing contravention: Chen v. Surrey (City), 2015 BCCA 57

The legal test for retaliation (Section 43)

Interpretation of s. 43: Cariboo Chevrolet Pontiac Buick GMC Ltd. v. Becker, 2006 BCSC 43* Note subsequent amendment to s. 43 of the Code

The Tribunal’s powers (“Jurisdiction”)

Jurisdiction to consider Charter challenges to the Code: Ismail v British Columbia (Human Rights Tribunal), 2013 BCSC 1079

Jurisdiction to order mediation and remain seized of remedial issues: Coast Mountain Bus Company Ltd. v. National Automobile, Aerospace, Transportation and General Workers of Canada (CAW – Canada), Local 111, 2010 BCCA 447

Jurisdiction over judges: Gonzalez v. Ministry of Attorney General, 2009 BCSC 639

Jurisdiction to dismiss a complaint for refusal to accept a reasonable settlement offer: Carter v. Travelex Canada Limited, 2009 BCCA 180

Determination that complaint not clearly outside jurisdiction: Barker v. Hayes, 2006 BCSC 1217, aff’d 2008 BCCA 148

Jurisdiction to award compensation against the Crown:

British Columbia v. Bolster, 2007 BCCA 65, leave to appeal denied, [2007] SCCA No. 167
HMTQ v. Hutchinson, 2005 BCSC 1421

Jurisdiction over complaint dismissed by former BCCHR: Solowan v. British Columbia (Attorney General), 2007 BCSC 752

Prosectutorial immunity: British Columbia v. Crockford, 2006 BCCA 360

Provincial jurisdiction: Carson v. Knucwentwecw Society, 2006 BCSC 1779 at para. 20

Death of complainant: British Columbia v. Gregoire, 2005 BCCA 585; leave to appeal denied, [2006] S.C.C.A .No. 23 (QL)

Scope of jurisdiction to reopen a hearing: Karin Willoughby v. Ballendine et al. (19 December 2007) Victoria 07-2265 (S.C.)

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