O’Hara’s application for a judicial review of a decision of the B.C. Human Rights Commission dismissing his complaint was itself dismissed as the Court held that O’Hara could not establish that the Commission’s decision was patently unreasonable or that the investigative process was procedurally unfair

Administrative law – Human rights complaints – Disability – Judicial review application – Boards and Tribunals – Breach of procedural fairness – Patently unreasonable decision – Continuing contravention – Definition

O’Hara v. British Columbia (Human Rights Commission), [2002] B.C.J. No. 887, British Columbia Supreme Court, April 16, 2002, Quijano J.

O’Hara described himself as disabled from a permanent lower back injury and a blind eye with nerve inflammation. Commencing July 1995, O’Hara participated in a public service vocational rehabilitation training programme at the British Columbia Archives. After completing the course, O’Hara applied for a job at the BC Archives. He was not hired. Since then, there were several government job postings which O’Hara maintained he was qualified for but for which he was not hired. O’Hara took the position he was not hired because he was disabled. O’Hara submitted a complaint to the Commission, alleging that the Province had discriminated against him in relation to employment because of a physical disability. The complaint made reference to numerous failures to hire him which took place over the period from 1996 to within several months of the time the complaint was submitted.

By letter of May 1, 2000, the Commission advised O’Hara that the alleged contraventions were not “continuing contraventions” and all but the two most recent complaints occurred more than one year prior to the date of his filing the complaint and were, therefore, out of time. O’Hara indicated he wished to file a revised complaint but failed to return a Revised Complaint Information Form by the February 19, 2001 deadline. On March 5, 2001, his complaint was dismissed on the basis that the complainant was no longer interested. On March 12, 2001, O’Hara requested a reconsideration of this decision.

The court noted that this was a petition for judicial review and not an appeal and therefore O’Hara had to show either a serious error on the face of the record, that the decision was patently unreasonable or that the investigative process was procedurally unfair. The court was satisfied that the Commission had reviewed the particulars of each of the complaints and correctly applied the law in finding that these were not “continuing complaints”. The court cited the Manitoba Court of Appeal decision in Re The Queen in Right of Manitoba and Manitoba Human Rights Commission (1983), 2 D.L.R. (4th) 759, where the court had held that to be a “continuing contravention” there must be a succession or repetition of separate acts of discrimination of the same character. In the case at bar, the court held that the Commission had clearly considered complaints in this manner and its decision was not irrational. With respect to whether the investigative process was procedurally unfair, the court held that the Commission made every reasonable effort to ensure procedural fairness to O’Hara before concluding that the decision should be made without further input from him. In the result, O’Hara’s application was dismissed.

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