The Court dismissed the Province’s application for an order to stay part of the British Columbia Human Rights Tribunal’s order requiring payment to the Respondents, pending a decision of the Court on judicial review

Administrative law – Human rights complaints – Discrimination – Disability – Family members as care givers – Decisions of administrative tribunals – Human Rights Tribunal – Judicial review application – Stay of proceedings – Test

British Columbia v. Hutchinson, [2004] B.C.J. No. 2434, British Columbia Supreme Court, November 24, 2004, Ralph J.

The British Columbia Human Rights Tribunal had made a finding that the Province was discriminating against the Complainants, a father and daughter. Ms. Hutchinson, the 34-year-old daughter, suffered from cerebral palsy. She was bound to a wheelchair and required assistance in all aspects of daily life. Mr. Hutchinson, her father, had been her primary caregiver since she was 13.

The Ministry of Health and Ministry Responsible for Seniors had developed a program called Choices in Supports for Independent Living (“CSIL”) under the provisions of the Continuing Care Act, R.S.B.C. 1996, c. 70, which provided funds for persons with disabilities to self-manage the hiring of service providers to assist them with daily living needs such as bathing and dressing. In 1998, Ms. Hutchinson had been accepted as a client of the CSIL program but had encountered difficulties in finding suitable caregivers and, as a result, did not move away from her father who continued on as her primary caregiver without being paid. One of the CSIL program’s policies prevented the hiring of family members to provide services.

Ms. Hutchinson filed a human rights complaint, alleging that the policy prohibiting the hiring of family members under the CSIL was discriminatory on the grounds of disability and family status and contrary to section 8 of the British Columbia Human Rights Code, R.S.B.C. 1996, c. 210. The Tribunal made a finding that the Province was discriminating against the Complainants and ordered the Ministry to develop a set of criteria to allow for the hiring of family members on a case-by-case basis. The Tribunal also made an order requiring the Province to pay the Respondents, the Hutchinsons, a total of $118,340 including amounts in compensation for lost wages and for injury to dignity, and feelings and self-respect.

The Province applied to stay the order for payment of the monetary award pending a judicial review of the Tribunal’s decision.

The Court held that the law relating to applications for stays is the same as the law applying to interlocutory injunctions which was set out in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. The Province would be entitled to the stay if it could show that there was a serious question to be tried, that it would suffer irreparable harm if the stay was not granted, and that the balance of convenience favoured a stay.

On the first test, the Court held that the test regarding a serious question to be tried was not a high one and that the Province could satisfy it if “the claim is not frivolous or vexatious”. The Court held that the Province had at least met that test.

As to the second test regarding irreparable harm, the Court noted that there were two concerns. The first was whether the Province would be able to recover the funds paid to the Respondents if it were to succeed in its application for judicial review. The Court noted that the RJR-MacDonald case indicated that one party’s impecuniosity was not determinative of the matter. In the circumstances of this case though, there was a reasonable chance that Mr. Hutchinson would not be able to repay the award of damages should the Province ultimately be successful in its judicial review application. The second concern was whether there was a risk of harm to the public interest. The court held that the public interest in the issues raised in this case primarily related to the broad question of whether the present CSIL policy was discriminatory and whether the Province could be compelled to alter it. The opportunity for the Province to advance its position on that issue was not limited or impeded by the absence of the stay order that it sought in this application.

As to the third test relating to the balance of convenience, the Court quoted from Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110 which described the test as “a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits”. The RJR-MacDonald decision had recognized that it was at this stage that harm to the respondent and to the public interest are more appropriately dealt with. The Court concluded that the Respondents would suffer the greater harm if the stay order was granted and that the balance of convenience favoured declining to make a stay order.

In the result, the Province’s application for a stay was dismissed.

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