Retaliation and Dismissal of Human Rights Complaints

Posted by Johannes Schenk on October 28th, 2014 — Posted in Employment Law, Human Rights Law, Litigation, Professional Discipline

Chiang v. British Columbia Human Rights Tribunal, deals with dismissal procedures on a human rights complaint under section 27 of the Human Rights Act. The case also deals with complaint driven retaliation.

Of note are the tests outlined in this case:

“[10] There are three leading cases interpreting the above framework: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95, leave to appeal ref’d [2006] SCCA No. 171 [“Berezoutskaia”]; Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 [“Hill”]; and Gichuru v. British Columbia (Workers Compensation Appeal Tribunal), 2010 BCCA 191, leave to appeal ref’d [2010] SCCA. No. 217 [“Gichuru”].

[11] The propositions that can be taken from these cases in respect of preliminary applications to dismiss under s. 27(1) of the Code are:

1) the Tribunal’s role in evaluating complaints under s. 27(1) of the Code is as a gatekeeper so that only complaints with sufficient merit will justify the time and expense of proceeding to a full hearing. These decisions attract the highest degree of curial deference (Berezoutskaia at paras. 23-26; Hill at para. 27); and,

2) the Tribunal’s role in determining s. 27(1) applications is discretionary. The Tribunal does not make findings of fact but assesses the evidence with a view to whether it meets the very low threshold of getting past the conclusion that there is “no reasonable prospect the complaint will succeed”. In order to defeat an application based on the ground there is no reasonable prospect the complaint will succeed, the complainant only has to show that the “evidence takes the case out of the realm of conjecture” (Hill at para. 27; Gichuru at paras. 28-31).

[12] In addition, the Tribunal has interpreted what amounts to retaliatory conduct within the meaning of s. 43 of the Code.

[13] In Talkkari v. Burnaby (City of), 2005 BCHRT 68 at para. 29 [Talkkari], the Tribunal described the purposes of s. 43 of the Code as follows:

The purpose of s. 43 is to ensure that persons who raise human rights complaints, and those who assist them, are not retaliated against as a result. This is a very important purpose, as, in its absence, people with legitimate human rights concerns might be reluctant to bring those concerns forward, for fear of retaliation. Equally, others might, in the absence of such protection, be reluctant to assist or to be seen to assist them in bringing forward their complaints. The Tribunal must be vigilant in ensuring that persons who complain about human rights violations, and those who assist them, are not retaliated against for doing so.

[14] The Tribunal has found there to be four elements in a complaint of retaliation:

1) there must be a prior complaint filed with the Tribunal: Becker v. Cariboo Chevrolet Pontiac Buick GMC Ltd., 2006 BCSC 43 at para. 54 [Becker];

2) the respondent must be aware of the complaint: Becker at para. 52;

3) the respondent must intend to or reasonably be perceived to have intended to engage in that conduct in retaliation for the previous complaint, with the element of reasonable perception being assessed from the point of view of a reasonable complainant: Talkkari at paras. 42-49;

4) the complainant must show there is a link between the earlier complaint and the alleged retaliation: Ahlwat v. Surrey (City of), 2004 BCHRT 50 at paras. 234-235; Gichuru v. Law Society of BC, 2010 BCCA 543 at para. 41 [“Gichuru v. Law Society”]. I note parenthetically that an argument can be made that this fourth element is simply emphasizing an aspect of the third element.”

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