BC Human Rights Tribunal

Leading cases: Protected characteristics

---

Page contents

• Age
• Criminal conviction
• Family and marital status
  • Identity of family members
  • Make up of family
  • Caregiving obligations
• Disability
• Gender expression and identity
• Indigenous identity
• Race, colour, ancestry and place of origin
• Political belief
• Religion
• Sex
• Sexual orientation
• Source of income

Age

Age means 19 years or more: Human Rights Code, section 1.

Stewart v. Satorotas Enterprises and others, 2012 BCHRT 442. Age and disability may be inter-related. Ms. Stewart has a clubbed foot and severe osteoarthritis. This disability was progressive with age. Her landlord viewed the disability as age-related. Ms. Stewart found it hard to use the steps at the entrance of her apartment building. The apartment manager said that he didn’t have to provide a ramp because the building was not a seniors’ facility or facility for persons with disabilities. The landlord did not justify its refusal to build a ramp. The Tribunal found discrimination. It ordered the landlord to build a ramp.

Flores v. Duso Enterprises and Duso (No. 2), 2008 BCHRT 368. Firing someone after hiring a younger replacement requires an answer from an employer. Mr. Flores was 59. He had acute gout. His employer fired him shortly after his medical leave for an on-going condition, and after it hired a younger, stronger replacement. This was enough to show that his age and disability were at least factors in his termination. The Tribunal did not accept the employer’s explanation for the termination. It found discrimination.

Criminal conviction

Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Maksteel Québec Inc., 2003 SCC 68 . A complainant must prove that a criminal conviction was a factor in an adverse effect regarding employment. The onus is on a respondent to prove that the criminal conviction is related to the employment.

Woodward Stores (British Columbia) Ltd. v. McCartney, 1983 CanLII 444 (BC Supreme Court). An employer must consider the circumstances of the conviction to decide if it is related to the employment. This includes the details of the offence and whether the behaviour, if repeated, would pose any threat to the employer’s ability to carry on its business safely and efficiently. It also includes the circumstances of the charge and the offence, such as the person’s age and whether there were extenuating circumstances. Finally, it includes the length of time between the conviction and employment decision and what has happened in that time, including the person’s efforts at rehabilitation, their employment history, and whether the person has shown any tendencies to repeat the behaviour.

B.C. Human Rights Commission v. B.C. Human Rights Tribunal, 2000 BCCA 584. The protection does not apply to an adverse impact that flows from the fact of being in jail. In this case, the complainant received a one year sentence. His employer refused to give him an unpaid leave of absence and terminated his employment. The Tribunal found no discrimination. The Court of Appeal agreed with this conclusion.

Clement v. Jackson and Abdulla, 2006 BCHRT 411 . The protection extends to criminal acts for which no charges were laid, and to those for which charges were laid but no conviction was registered.

Family and marital status

Identity of family members

B. v. Ontario (Human Rights Commission), 2002 SCC 66 . Family status and marital status include adverse effects based on the particular identity of the complainant’s spouse or family member. In this case, Mr. A’s employment was terminated because of the conduct of his spouse and daughter. This was discrimination.

Thomson v. Eurocan Pulp & Paper Company, 2002 BCHRT 32. Absent justification, a policy excluding applicants who were not the children of employees is discrimination on the basis of family status.

Make up of family

Micallef v. Glacier Park Lodge, 1998 BCHRT 14. Family status includes the fact of having children. In this case, the complainant was staying at a lodge with this family, including three young children. When the family went to the dining room, they were told to eat in the cafeteria so as not to disturb diners in the dining room. This was discrimination based on family status.

Wickham and Wickham v. Mesa Contemporary Folk Art and others, 2004 BCHRT 134. A decision based on the size of a family, or the number of children in a family, may amount to a breach of the Code on the basis of family status.

Caregiving obligations

British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168. Family status includes substantial family caregiving duties or obligations and significant interests related to family caregiving. In the employment context, a complainant must prove that a term or condition of employment has an adverse impact connected to their family status. A serious interference with their caregiving duty or obligation is an adverse impact.

The Court confirmed that its decision in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 is consistent with the test for a complainant’s case of discrimination set out in Moore v. BC (Education), 2012 SCC 61. In this case, the employee’s son had a major psychiatric disorder. Her attendance to his needs after-school was “an extraordinarily important medical adjunct” to his well-being. When the employer changed her hours, this was a serious interference with her discharge of that obligation. It was discrimination.

Disability

Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27 . Disability includes conditions which do not give rise to any limitation or functional disability. For example, even though they do not result in functional limitations, ailments such as congenital physical malformations, asthma, speech impediments, obesity, acne, or being HIV positive, may be grounds of discrimination. Disability protects against perceptions, myths and stereotypes about disabilities as well as protecting against discrimination based on actual disabilities.

Rogal v. Dalgliesh, 2000 BCHRT 22. The concept of physical disability generally indicates a physiological state that is involuntary, has some degree of permanence, and impairs the person’s ability, in some measure, to carry out the normal functions of life. In this case, the employer did not hire the complainant because of his size, which it perceived was a disability. This was discrimination.

Morris v. BC Rail, 2003 BCHRT 14. Normal ailments such as the common cold are not disabilities, because they do not prevent a person from fully participating in society. The Tribunal considers:

• the person’s physical or mental impairment, if any;
• the functional limitations, if any, which result from that impairment; and
• the social, legislative or other response to that impairment and/or limitations.

The focus is on this third aspect, which is to be assessed in light of the concepts of human dignity, respect and the right to equality.

Gender expression and identity

Browne v. Sudbury Integrated Nickel Operations, 2016 HRTO 62. The purpose of adding “gender identity” and “gender expression” to the Ontario Human Rights Code was to ensure beyond any doubt that the rights of transgendered and other gender non-conforming persons were protected under the Code.  This community has experienced severe social, economic, and historical disadvantage, reflected in the policy of the Ontario Human Rights Commission. In this case, the Ontario Tribunal held that “gender expression” does not protect the right of cisgendered (gender conforming) men to wear beards.

The following cases are example of sex discrimination that would now be addressed on the basis of gender identity:

Sheridan v. Sanctuary Investments, 1999 BCHRT 4. The respondent discriminated against Ms. Sheridan, a transsexual, when it told her not to use the women’s washroom.

Waters v. BC Medical Services Plan, 2003 BCHRT 13. The Medical Services Plan discriminated in relation to funding for certain stages of gender reassignment surgery.

Dawson v. Vancouver Police Board (No. 2), 2015 BCHRT 54. The respondent discriminated against Ms. Dawson, a transgender woman,  when it referred to her as male and in relation to medical treatment she required post-surgery while she was in jail.

The following are Tribunal cases since the addition of “gender identity and expression” to the BC Human Rights Code:

Oger v. Whatcott (No. 7), 2019 BCHRT 58. When Ms. Oger ran for public office, Mr. Whatcott sought to stop her from being elected because she is transgender and circulated a flyer that, among other things, calling Ms. Oger a “biological male” and described being transgender as an “impossibility”, which exposes people to harm and constitutes a sin, and telling people not to vote for Ms. Oger or her party. The flyer impugned Ms. Oger’s moral integrity and fitness to hold public office because of her gender identity and demonstrated an intention to discriminate against Ms. Oger in a critical area of public life, contrary to s. 7(1)(a) of the Code. The flyer also exposed Ms. Oger to hatred and contempt contrary to s. 7(1)(b) of the Code by: denying the reality of transgender people in the context of the pernicious myth that transgender people do not exist; associating transgender people with social problems and disease; delegitimizing transgender people by asserting that they, and those who support them, are “liars and sexually immoral”; and advocating overt discrimination against Ms. Oger and transgender people, by calling on people not to vote for Ms. Oger or her party.

Li v. Mr. B, 2018 BCHRT 228. A landlord discriminated when, after a bad end to a tenancy relationship, the landlord took a photo of the tenant wearing a dress to the tenant’s workplace, knowing he was not “out” at work, and said, “I want to warn you about what kind of people you have working here”. This was an attempt to interfere with Mr. Li’s employment. The act indicated an intention to discriminate based on gender identity and expression and violated s. 7(1)(a) of the Code.

Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137. Trans employees are entitled to recognition of, and respect for, their gender identity and expression. This includes using their names and pronouns correctly and is a basic obligation that every person holds towards people in their employment. A co-worker discriminated by persisting in using female pronouns and gendered nicknames for a non-binary, gender fluid, transgender employee who uses the pronouns they/them. The employer also discriminated when it did not reasonably respond to a complaint about the co-worker’s behaviour and when it fired the employee in connection with their efforts to address discrimination at work, saying they were coming on too strong and too fast and being “militant”.

Indigenous identity

Indigenous identity was added as a ground of discrimination on November 25, 2021. The Tribunal has not yet issued a leading case on its meaning.

Race, colour, ancestry and place of origin

Bitonti et al v. The College of Physicians and Surgeons of BC et al, 1999 BCHRT 63. Place of origin includes place of birth and country of birth, and the fact of being born in a particular group of countries. A protected group does not need to be homogenous, but must exhibit a shared protected personal characteristic.

Wild v. Langara College and others, 2009 BCHRT 259. Ancestry means family descent. It is determined through parental lineage.

C.S.W.U. Local 1611 v. SELI Canada and others (No. 8), 2008 BCHRT 436.  The grounds of race, colour, ancestry, and place of origin may be combined to define ethnic identity as a basis of discrimination. These grounds intersect to describe a set of characteristics which may result in discrimination. In this case, the complainant group was from a defined geographic area, Central and South America. They shared a common language. Most had relatively dark skin. It is reasonable to assume they share some degree of common ancestry. The sum of these characteristics, and related cultural characteristics, identified them as a distinct group of “Latin American” workers, exhibiting shared characteristics related to the grounds of race, colour, ancestry, and place of origin.

Fletcher Challenge Canada Ltd. v. British Columbia (Council of Human Rights), 1992 CanLII 1119 (BC Supreme Court). The Human Rights Code does not prohibit discrimination based on language, so a rule requiring proficiency in the English language is not necessarily discriminatory. Language has two aspects. First, language is the conveyor of culture. In this aspect, it is directly related to race, colour, ancestry, and/or place of origin. Exclusions based on language may effectively be based on those grounds. Such exclusions may be discriminatory. However, language is not always related to culture. Language is also a communication skill that anyone can learn, regardless of their culture. In a work environment, language may be a means of communicating to accomplish a task.

Political belief

Jamieson v. Victoria Native Friendship Centre (1994), 22 C.H.R.R. D/250 (B.C.C.H.R.). Political beliefs are not limited to beliefs about, or involvement in, recognized or registered political parties. Mr. Jamieson was a member of the Mohawk First Nation and part of the Mohawk Warrior Society. His beliefs were political in nature because they concerned the way First Nations communities are organized and governed, and how these communities relate to each other and to other levels of government.

Wali v. Jace Holdings, 2012 BCHRT 389 . Mr. Wali was a pharmacist who opposed a bylaw proposed by the College of Pharmacists to expand the role of pharmacy technicians. His position was political as it related to a matter affecting the regulation of his profession. The College operated under a legislative framework with an express regulatory mandate in relation to the issue. This was a new legislated initiative, that involved the public welfare, and that was being debated within the pharmacy community. The expression of Mr. Wali’s belief was in respect of a system of “social cooperation”, that being the social contract between the government, the College, and the public regarding the safe distribution of pharmaceutical medication.

Potter and Benson v. College of Physicians and Surgeons of BC, 1998 BCHRT 4. Dr. Potter believed that gays and lesbians should not arbitrarily be refused medical care by physicians. She thought the most effective way to achieve this end was to publicly discuss a doctor’s refusal to provide artificial insemination to lesbians. The College of Physicians and Surgeons criticized her for engaging with MLAs and publically discussing the doctor’s refusal. Dr. Potter’s belief about how to effect change was not a political belief.

Manning v. Sooke Teachers’ Association and others, 2004 BCHRT 281. Views and beliefs about trade unions, and the appropriate scope of their power, authority and actions, are inherently ‘political’ in the broad sense of the word. However, the decision not to participate in collective action based on disagreement with the union’s “politics”, which resulted in a Code of Ethics complaint, is not a protected political belief.

Beliefs about human resources and labour relations policies are not political. The Tribunal has held that to confer human rights protections on individuals who disagree with their employer’s decisions would be an overly expansive and untenable interpretation of the ground. 

Williams v. City of North Vancouver, 2004 BCHRT 441. Disagreement with a human resources decision of an employer does not engage political belief. In this case, the complainant’s opinion that the City should rely on internal staff rather than contracting out services related to the City’s business decisions and was not political.

Bratzer v. Victoria Police Department (No. 3), 2016 BCHRT 50. Mr. Bratzer was a police constable who, in his personal time, advocated for the legalization and regulation of all illicit drugs. Mr. Bratzer’s beliefs about drug laws were political as they involved public discourse on matters of public issue which involve or would require action at a governmental level.

For more information, see The Protection of Political Belief under BC’s Human Rights Code.

Religion

Syndicat Northcrest v. Amselem, 2004 SCC 47. Religion typically involves a particular and comprehensive system of faith and worship. It tends to involve the belief in a divine, superhuman, or controlling power. It is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment. The practices of religion allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith. Freedom of religion consists of the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual sincerely believes or which they are sincerely undertaking to connect with the divine or as a function of their spiritual faith. It is not necessary that a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials. Both obligatory and voluntary expressions of faith are protected.

R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295. The essence of freedom of religion is the right to entertain such religious beliefs as a person chooses. Expressions and manifestations of non-belief, and refusals to participate in religious practice, are equally protected.

Sex

Brooks v. Canada Safeway Ltd., [1989] 1 SCR 1219. Sex discrimination includes discrimination based on pregnancy.

Janzen v. Platy Enterprises Ltd., [1989] 1 SCR 1252. Sexual harassment is sex discrimination. Sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment.

Lund v. Vernon Women’s Transition House Society and others, 2004 BCHRT 26. Sex discrimination includes discrimination based on breastfeeding.

Sexual orientation

School District No. 44 (North Vancouver) v. Jubran, 2005 BCCA 201. Discrimination based on sexual orientation does not require a complainant to prove what their sexual orientation is or that a respondent perceived them to have a particular sexual orientation. In this case, Mr. Jubran was a high school student, subjected to homophobic insults and harassment from other students. This was discrimination even though Mr. Jubran did not identify as gay and his harassers denied that they though he was gay.

Source of income

Birchall v. Guardian Properties Ltd., 2000 BCHRT 36. Rent-to-income ratios and minimum income criteria for prospective tenants may discriminate based on source of income. In this case, the landlord discriminated based on its view that disability benefits were not adequate to cover rent and utilities.