A former employee of British Columbia Hydro (“Lee”), successfully applied for a judicial review of the decision of the British Columbia Human Rights Commission (the “Commission”) which declined to refer his complaint for a hearing before the British Columbia Human Rights Tribunal

25. November 2003 0

Administrative law – Human rights complaints – Discrimination – Race – Judicial review – Decisions of administrative tribunals – Human Rights Tribunal – Investigative bodies – Evidenciary issues

Lee v. British Columbia (Attorney General), [2003] B.C.J. No. 2200, British Columbia Supreme Court, September 22, 2003, Ross J.

Lee had been employed as an engineer with BC Hydro in 1981. Although he was eventually promoted to Manager of Generation Operations, he was later transferred into another division of BC Hydro, Powerex, and a replacement acting manager was appointed in his absence. Lee was not given any choice in this transfer and he objected to it. Later that year, Lee accepted a permanent position with Powerex and eventually filed a complaint with the Commission to the effect that BC Hydro had denied him advancement opportunities and had removed him from his management position on the basis of his race, ethnicity or place of origin.

The Commission appointed an investigator who investigated the complaint but failed to interview any of the witnesses suggested by Lee. The investigation report did not make any recommendation on the matter. The parties provided response submissions to the investigation report which were reviewed by the Commission. The Commission issued its decision that the complaint would not be referred to a hearing by letter dated June 27, 2002. The letter indicated that the review of the investigation report and subsequent submissions led the Commission to decide to dismiss the complaint pursuant to section 27(1)(c) of the Human Rights Code, R.S.B.C.1996, c. 210. The letter further stated that Lee had not provided any evidence that the advancement opportunities had been denied on the basis of his race, ethnicity or place of origin.

The court held that under section 27(1)(c) of the Human Rights Code, the Commission had discretion to dismiss a complaint at the investigation stage and decline to refer the matter for hearing if it had determined that there was no reasonable basis to justify referring the complaint or that part of the complaint to the Tribunal.

Although the Commission should not weigh the evidence in the same manner as in a hearing or a judicial proceeding, they would be entitled to conduct a limited evaluation of the evidence, including in some circumstances a consideration of credibility, in reaching their determination.

The court framed the question for the Commission as whether there was on the evidence, a reasonable basis to take the complaint to a hearing.

Although the court held that the Commission should be entitled to considerable deference with respect to its discretionary decisions, following O’Hara v. British Columbia (Human Rights Commission), 2003 BCCA 139, [2003] B.C.J. No. 709 (C.A.), the court held that the issue before the Commission had been misstated, and that the test should not be whether the complainant had provided any evidence that the decision to deny him advancement opportunities was based on his race, ethnicity or place of origin, but rather that a Human Rights complainant should not be required to establish that a decision was based on a prohibited ground, but only that a prohibited ground was a factor in the decision.

The court reviewed the evidence and noted that while employers are permitted to use subjective criteria in the evaluation of applicants, where subjective criteria are used, careful scrutiny must be exercised in order to ensure that subjective assessments are not masking discrimination.

The court held that there was evidence in the record that called into question the explanation offered by BC Hydro for its decisions, and that in light of the misstatements of both the issue and the appropriate test, and the problem with the evidence, the decision to dismiss the complaint was patently unreasonable. The court set aside the decision and referred Lee’s complaint back to the Human Rights Tribunal.

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