Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Jurisdiction – Remedies – Declaratory relief – Human rights complaints – Discrimination – Sexual orientation – Gender – Parent – definition – Judicial review – Standard of review – Correctness
British Columbia (Minister of Health Planning) v. British Columbia (Human Rights Tribunal),  B.C.J. No. 17552, British Columbia Supreme Court, July 21, 2003, Williamson J.
The Petitioners sought judicial review of the remedy aspect of a decision of the British Columbia Human Rights Tribunal (the “Tribunal”). Two of the Respondents were women who gave birth to children as a result of donor insemination. The other two Respondents were their same gender partners.
The Respondents complained to the Tribunal that the Queen in right of British Columbia, specifically through the actions of the Director of Vital Statistics, declined to permit the female partners of the mothers to be registered on the birth registration form as parents or co-parents. They alleged discrimination on the basis of sex, sexual orientation, and family status. By decision dated August 31, 2001, the Tribunal held that the Respondents (Petitioners in that hearing) had been subject to discrimination subject to section 8 of the Human Rights Code. The Tribunal ordered that the Director of Vital Statistics cease the contravention and refrain from repeating the same or similar contraventions in the future. The Tribunal also ordered, purportedly pursuant to section 37(2)(c)(ii) of the Human Rights Code, that the Director of Vital Statistics “amend the birth registration form so that it provides the option of identifying as a parent, a non-biological parent who is the co-parent of a mother or a father”. Section 37(2)(c)(ii) of the Human Rights Code provides as follows:
If the member or panel determines that the complaint is justified, the member or panel
(c) may order the person that contravened this Code to do one or both of the following:
(ii) adopt and implement an employment equity program or other special program to ameliorate the conditions of disadvantaged individuals or groups….
The court noted that there was agreement at the hearing that the Tribunal was in error in stating that such an Order was pursuant to section 37(2)(c)(ii) as the Order did not involved “adopting and implementing employment equity or other special programs”.
In looking at the standard of review, the court noted that the Tribunal was a statutorily created body and where the question is whether a Tribunal is acting within its statutory powers, the standard is correctness or something approaching it: Oak Bay Marine Ltd. v. British Columbia (Human Rights Commission), 2002 BCCA 495 at para. 20.
The court then went on to review whether the legislation provided the Tribunal with the power to make the order granted in this case. The court further noted that the Tribunal was not exercising common law or inherent power but rather only the powers granted in the legislation. To speak of a particular action as consistent with the goal or purpose of the legislation was not sufficient to justify the exercise of specific powers not founded upon the statute in question. The court noted that the order of the Tribunal to the Director to amend the application for birth registration “so that it provides the option of identifying as a parent, a non-biological parent who is the co-parent of a mother or father”, did not amount to a step to ameliorate “the effect” of the discrimination. Such an order did nothing for those who had been subject to the discrimination. In the result, the court held that the Tribunal’s order directing the Petitioner to amend the birth registration was in excess of the Tribunal’s jurisdiction.
To stay current with the new case law and emerging legal issues in this area, subscribe here.