On judicial review of a decision of the British Columbia Human Rights Tribunal, the court held that the Tribunal was within its statutory jurisdiction in making the damage awards it did and it did not err in finding liability for discrimination on the facts before it

27. December 2005 0

Administrative law – Human rights complaints – Discrimination – Disability – Remedies – Certiorari – Damages – Decisions of administrative tribunals – Human Rights Tribunal – Judicial review – Jurisdiction – Crown immunity – Standard of review – Patent unreasonableness

British Columbia v. Bolster, [2005] B.C.J. No. 2365, British Columbia Supreme Court, October 27, 2005, Parrett J.

The Province of British Columbia petitioned for an Order in the nature of certiorari quashing the decision of the British Columbia Human Rights Tribunal or in the alternative, an Order in the nature of certiorari quashing that part of the decision requiring the Petitioner to compensate the Complainant for lost wages and injury to feelings, dignity and self-respect.

In January 2003, the Complainant filed a complaint alleging that the Petitioner had discriminated against him regarding a service or a facility customarily available to the public on the basis of his physical disability contrary to section 8 of the Human Rights Code.

The Complainant suffers from a mild congenital optic atrophy which is a condition resulting from a diminished capacity of the optic nerves. While the Complainant had some initial difficulties obtaining a driver’s licence due to his disability, he eventually was issued a class 1 licence with various restrictions and he thereafter worked as a professional truck driver from 1985 until 1998. On October 26, 1998, the Superintendent cancelled the Complainant’s driver’s licence without notice. The Tribunal found as fact that a) the Superintendent made no effort to contact the Complainant or his physicians before cancelling his licence, b) they did not seek further information from the Complainant or his physicians, and c) the recommendation to cancel the licence was based solely on the fact that he did not meet the visual acuity standards and that this decision was made without consultation with the Complainant’s physicians.

After the hearing, the Complainant underwent an individualized driving assessment and on February 12, 2004, the Superintendent issued the Complainant a class 1 driver’s licence with the same restrictions as the licence which had been revoked in October 1998.

The Tribunal found that the Complainant had established a prima facie case of discrimination on the basis of physical disability and that the Superintendent had not established a bona fide and reasonable justification for the discrimination. The Tribunal ordered that the Petitioner pay the Complainant $141,000 in lost wages and $5,000 for compensation to his feelings, dignity and self-respect.

The court held that the Tribunal did not err in law or exceed its jurisdiction by ordering the Petitioner to pay the Complainant financial compensation. The application of the concept of Crown immunity did not apply. The Superintendent, in the case at bar, was exercising neither a legislative nor a quasi judicial function but rather a “business” power. It was not possible to view the decision to cancel the Complainant’s licence as a good faith exercise of the powers entrusted to the Superintendent. A plain reading of the Human Rights Code provided the Tribunal hearing a complaint and finding the Complaint justified the statutory jurisdiction to order that the person discriminated against be compensated. The provisions in section 37 of the Code specifically contemplated an award of compensation for lost wages or salary.

The Tribunal also did not err in determining the quantity of compensation to be paid to the Complainant. The Tribunal’s findings in determining the appropriate remedy under section 37 were either factual or discretionary in nature and the applicable standard of review in either case was that of patent unreasonableness. The court held that the approach taken by the Tribunal was reasonable in the circumstances.

The court also held that the Tribunal did not err in finding liability for discrimination. The court noted that the Tribunal rejected the submission that the Petitioner had accommodated the Complainant or that there was a bona fide and reasonable justification for its conduct. In making these findings, the Tribunal specifically found that the Petitioner had not fairly assessed the risk posed by a Complainant based on all of the evidence before it, but rather relied solely on the Complainant’s failure to meet its visual acuity standards. A finding of discrimination such as this is a question of mixed fact and law and as such the standard of review was reasonableness simpliciter. The court held that the Tribunal’s finding of discrimination and liability for that discrimination was reasonable and therefore met the requisite standard.

The petition for judicial review was therefore dismissed.

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