The British Columbia Human Rights Code creates “personal” rights and such rights abate on the death of the person whose human rights have allegedly been breached. The Tribunal therefore did not have statutory jurisdiction to hear matters in such circumstances.

22. March 2005 0

Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Death of complainant – Judicial review – Jurisdiction of tribunal – Standard of review – Correctness

British Columbia v. Goodwin, [2005] B.C.J. No. 193, British Columbia Supreme Court, February 4, 2005, Cohen J.

The Petitioner, the Province of British Columbia (the “Province”), sought an order in the nature of certiorari quashing the decision of the British Columbia Human Rights Tribunal (the “Tribunal”) which held that it had jurisdiction to continue with a human rights complaint, even though the Complainant had died before the hearing.

The Complainant suffered from organic brain damage and had a mild to moderate degree of mental retardation. The Complainant alleged that by denying him medication and “a rehabilitation program specifically designed to address his unique circumstances”, the Province discriminated against him contrary to the Human Rights Code, R.S.B.C. 1996, c.210 (the “Code”). The Complaint was referred to the Tribunal for a hearing. However, before the Complaint was heard by the Tribunal, the Complainant died. Upon learning of the Complainant’s death, the Province brought a preliminary application before the Tribunal seeking an order that the Complaint be dismissed on the basis that the Tribunal had either lost jurisdiction or that proceeding with the Complaint would not benefit the Complainant.

The Tribunal Member held that there were strong public policy reasons in support of the Complaint being heard regardless of the Complainant’s death, including the fact that the Complaint raised serious issues which may have a systemic impact. The Member therefore dismissed the Province’s application.

The court held that the standard of review to be applied to the Member’s decision with respect to the Tribunal’s jurisdiction was that of correctness.

The court held that the human rights protected under the Code and the remedies to be granted were available to a “person”. Section 8 of the Code makes it clear that the Code creates “personal” rights. If there is no person, then there is no one on whose behalf a Complaint has been filed, and there is no one who is being discriminated against. In short, there would be no basis for a complaint. In this case, even if it could be said that the complaint raised issues of systemic discrimination, and that the decision of the Tribunal would be important to other persons, this did not grant the Tribunal the jurisdiction to proceed with the Complaint after the Complainant’s death. The Tribunal did not have statutory jurisdiction to hear the equivalent of a “constitutional reference”. The Code simply created a framework within which a complaint may be filed by or on behalf of a person, or by or on behalf of a group or class of persons. In each instance, there must be an allegation of discrimination against a person. As such, the court concluded that the Tribunal lost its jurisdiction to continue with the Complaint following the Complainant’s death.

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