The Petitioner sought to have the British Columbia Human Rights Commissioner of Investigation and Mediation’s (the “CIM”) decision to refer a complaint for hearing quashed. The court determined that the CIM’s decision was not patently unreasonable and dismissed the application.

24. September 2002 0

Administrative law – Human rights complaints – Jurisdiction – Procedural fairness – Judicial review – Standard of review – Patent unreasonableness

Maple Grove Apartments Ltd. v. Dixon, [2002] B.C.J. No. 1722, British Columbia Supreme Court, July 22, 2002, Garson J.

This matter involved a review of a decision of the British Columbia Human Rights Commissioner of Mediation and Investigations (the “CIM”) pursuant to the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241. The Petitioner, Maple Grove Apartments Ltd. (“Maple Grove”), owned an apartment building consisting of 10 apartments. The shareholders were the owners and occupants of the 10 apartments. In 1992, the Respondents, Ross and Alison Dixon, purchased shares and were assigned the lease for a suite. In 1999, the Respondents sold their shares in the apartment. Subsequent to the sale of the shares, the Respondents filed a complaint pursuant to section 10 of the Human Rights Code, R.S.B.C. 1996, c. 210 (the “Code”), alleging discrimination with respect to a “term or condition of tenancy” on the basis of “family status”.

A delegate of the CIM advised the Petitioner and the Respondents that the complaint would be referred to the British Columbia Human Rights Tribunal (“Tribunal”) for hearing. The Petitioner applied for reconsideration and the CIM affirmed her decision on August 27, 2001. The Petitioner asked that the orders of the CIM dated June 29 and August 27, 2001 be quashed.

The main issue was whether the CIM made a reviewable error of law or exceeded her jurisdiction in referring the matter to the Tribunal.

The court determined that the appropriate standard of review of the CIM’s decision to send the complaint to hearing was that of patent unreasonableness. Sections 26 and 27 indicate a legislative intent to give the CIM considerable discretion in making the decision whether to refer a matter to the Tribunal. The court determined that a high level of deference is owed to the CIM, particularly when the CIM declines to dismiss a complaint. The same level of deference may not be appropriate in a case where the CIM actually exercises her discretion under section 27 to dismiss a complaint. The CIM may dismiss a complaint on a jurisdictional ground but a decision by the CIM to refer the matter to the Tribunal is not impliedly an affirmative decision that the CIM or the Tribunal has jurisdiction.

The impugned decision was not a pure question of law; rather, it involved the exercise of administrative discretion with respect to an issue that had a measure of polycentricity. Therefore, a high level of deference was indicated. For these reasons, the court determined the appropriate standard of review was patent unreasonableness.

Where there is no conclusive case authority setting out the application of the Code in a particular set of circumstances, it makes sense to refer the matter to the Tribunal for adjudication. Therefore, it was clearly not patently unreasonable for the CIM to do so in this case.

With respect to the question of bias or unfairness, there is nothing intrinsically wrong with a human rights officer stating his or her opinion in a report to the CIM. The inclusion of an opinion and recommendations in the final section of a report to the CIM does not render a process flawed, owing to bias.

As the question before the Tribunal would be a question of mixed fact and law which would require a factual analysis, the court found it inappropriate to determine the issue of the meaning of tenancy at that time.

The petition was dismissed.

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