BC Human Rights Tribunal

A complaint must set out facts that, if proved, could be discrimination under the Human Rights Code against each person named as a respondent.

This means that a complaint must include information showing:

1. Grounds of Discrimination / Personal characteristics
2. Negative effect
3. Connection between negative effect and personal characteristics

1. Ground of Discrimination / Personal characteristics

The complainant must have a personal characteristic protected under the Human Rights Code. This is called the “ground of discrimination”.

The complainant is protected if they have the personal characteristic or if they are seen to have one. For example, the ground of disability applies if the complainant has a disability, or the respondent thinks that the complainant has a disability.

The personal characteristics protected in services, facilities, and accommodations are:

• Indigenous Identity
• Race
• Colour
• Ancestry
• Place of Origin
• Religion
• Marital Status
• Family Status
• Physical Disability
• Mental Disability
• Sex
• Sexual Orientation
• Gender Identity or Expression
• Age

2. Negative effect

The respondent’s conduct must have a negative effect on the complainant’s access to or use of the service, facility, or accommodation. This is also called an “adverse impact”.

For example: Refusing to serve someone or removing someone from a program.

The Code prohibits harassment based on a personal characteristic that negatively affects the complainant’s access to or use of the service, facility or accommodation.

A negative effect can arise where a person is treated the same as others, but this has a negative effect on them.

For example: A child with a disability does not receive meaningful access to educational services.

Note: You should tell the service provider if you need them to take action to avoid the negative effect. There is a duty to accommodate to avoid a negative effect based on a personal characteristic.

If the service provider does not know you need accommodation, they may have a defence to a complaint of discrimination.

3. Connection between negative effect and personal characteristic

A negative effect is discrimination only if it is connected to a personal characteristic. This means that a personal characteristic must be at least a factor in the negative effect. It does not need to be the only factor or the most important factor.

A complaint may show a connection in different ways. For example:

• Information showing the respondent considered the personal characteristic. However, a complainant does not need to show that the respondent meant to discriminate or was motivated by discrimination.
• Information showing a rule or standard affected the complainant based on their personal characteristic.
• Information showing a rule or standard affects a group of service users more than others based on their personal characteristic.

A person may believe that a personal characteristic was a factor, but a complaint must set out facts supporting the belief. Examples:

• A service provider uses insults based on a personal characteristic, or gives the characteristic as a reason for the poor treatment.
• A person who uses a wheelchair due to a disability cannot access a service because the only access is by stairs.
• An innkeeper denies someone accommodation after learning they are gay.
• A recreation program places conditions on someone’s participation that are not placed on others who do not share the same characteristic.

Who can be named as a respondent in a services complaint?

The service provider. The service provider is responsible for the service and is usually the respondent in a services complaint.

For example, a School District is the respondent in a complaint about discrimination in a school.

A person who is responsible for the discrimination.

For example, a complaint may name a person who made the decision to deny the complainant a service based on a personal characteristic, or who influenced a decision.

A complaint would not name a person who applied a discriminatory policy as part of their job, or who delivered a letter denying the service.

How can a service provider or other person justify their conduct regarding services? (Defences)

There is one main defence to discrimination in services, where the respondent proves their conduct was justified. There are also some specific defences. Learn more:

• Justification defence (bona fide and reasonable justification)
• Public decency defence
• Defence regarding life or health insurance contracts
• Age distinction in legislation

There is also an exemption for non-profit organizations.

Justification defence: bona fide and reasonable justification

If a complainant proves that the respondent’s conduct had a negative effect on them regarding services, and that a personal characteristic was a factor in the negative effect, they have proved their case. This is called a prima facie case of discrimination.

Even if a complainant proves their case, a respondent may argue that there is no discrimination because their conduct was justified (i.e., based on a bona fide and reasonable justification or BFRJ). To succeed with this argument, a respondent must prove three things:

1. There is a legitimate business-related purpose for the respondent’s conduct

The respondent must identify the (non-discriminatory) purpose underlying its standard or conduct. In some cases, a respondent applies a defined standard or requirement that affects the complainant, such as passing a test to get a service.

For example, the purpose of a test might be to ensure reasonable safety.

In other cases, there is no defined standard.

For example, access to a respondent’s place of business is by stairs, and the complainant uses a wheelchair due to a disability. Stair-only access may be based on construction before building codes required accessibility.

The respondent must also show how the purpose relates to the service or facility it provides.

For example, a public agency’s goal of reasonable highway safety relates to its function of deciding who may have a driver’s license.

In many cases, the complainant may not dispute that the respondent’s conduct is based on a legitimate, business-related purpose.

2. The respondent adopted the standard or acted in good faith, believing the standard or conduct is necessary to achieving its purpose

This means that the respondent adopted the standard or acted to accomplish its purpose and did not mean to discriminate. In many cases, the complainant may not dispute that the respondent acted in good faith with no intent to discriminate.

3. The respondent’s standard or conduct is reasonably necessary to its service-related purpose, such that the respondent could not accommodate the complainant (or others sharing their characteristics) without undue hardship

This means that the respondent fulfilled its duty to accommodate. To do so, the respondent must prove that it took all reasonable and practical steps to avoid the negative effect. This includes proving:

• What the respondent did to explore options to find a reasonable result
• Why further steps were not reasonable or practical (would result in undue hardship)
• The respondent’s basis for concluding that it could not accommodate the complainant without giving up the legitimate service-related purpose or incurring undue hardship

Proof that a respondent reasonably accommodated a complainant’s disability may also require the respondent to show that it took any necessary steps to inform itself of the nature of the complainant’s medical condition, prognosis, and capabilities (including limitations or restrictions) for work.

It is not enough to point to some hardship and say no more could be done. A respondent must prove undue hardship by giving evidence about the effect that the accommodation would have on the respondent.

For example, if a respondent relies on excessive cost, it must prove both the costs of the requested accommodation, and how this cost would result in undue hardship to it given its financial situation. It is not enough to rely on the high cost of accommodation without showing the respondent cannot reasonably afford it.

Factors a respondent may rely on to establish undue hardship include financial cost and the size of the respondent’s operation.

A complainant must participate in the search for accommodation.

The respondent may succeed if it proves that the complainant did not request accommodation and it did not reasonably know that the complainant may need accommodation.

Note: When a service provider is aware, or reasonably ought to be aware, that there may be a relationship between a negative effect and a personal characteristic, they have a duty to inquire about whether the person needs accommodation.

The respondent may also succeed if it proves that it was taking all reasonable and practical steps, but the process failed because the complainant did not reasonably participate or rejected a reasonable offer of accommodation.

Public decency defence

It is a defence to a case of sex discrimination if the discrimination relates to the maintenance of “public decency”.

Defence regarding life or health insurance contracts

It is not discrimination if premiums or benefits in health or life insurance contracts are determined based on sex, physical or mental disability, or age.

The Code recognizes that insurance providers rely on statistical data in writing their contracts. For example, they may consider the different life expectancies of men and women without contravening the Code.

Age distinction in legislation

It is a defence to a case of discrimination based on age if the distinction based on age is permitted or required by any legislation (Act or regulation).