The Court dismissed the Province’s petition for judicial review of a decision of the British Columbia Human Rights Tribunal (the “Tribunal”) that the Province discriminated against the Respondents, Ms. Hutchinson and her father, Mr. Hutchinson, on the basis of physical disability and family status in the manner in which it was applying its Choices in Support for Independent Living (“CSIL”) policy which included a blanket prohibition against hiring family members. The Court upheld the Tribunal’s finding that a prima facie case of discrimination had been established against the Province and upheld the Tribunal’s order of monetary compensation of $105,850 to Mr. Hutchinson for lost opportunity for employment.

27. December 2005 0

Administrative law – Human rights complaints – Discrimination – Disability – Family members as care givers – Decisions of administrative tribunals – Human Rights Tribunal – Judicial review – Standard of review – Correctness – Patent unreasonableness – Jurisdiction of tribunal – Damages

British Columbia v. Hutchinson, [2005] B.C.J. No. 2270, British Columbia Supreme Court, October 12, 2005, Cullen J.

Mr. Hutchinson has been the primary caregiver of his 35-year-old daughter, Ms Hutchinson, since she was 13 years old. Since the mid-1990s, Ms. Hutchinson, who has severe physical disabilities requiring significant personal care, has participated in a program created by the Ministry of Health (the “Ministry”) called Choices in Support for Independent Living (“CSIL”). The program provides a measure of choice and control to people with severe disabilities over the hiring, training, paying and management of their caregivers but includes a blanket prohibition against the hired caregiver being a family member. After unsuccessful attempts at finding a suitable caregiver, Ms. Hutchinson sought an exemption from the CSIL policy, so that she could use CSIL funding to pay her father as her primary caregiver on the grounds that she found him most appropriate to care for her. The Ministry declined her request and, in the result, she and Mr. Hutchinson each filed Human Rights complaints alleging that the Ministry policy prohibiting the hiring of family members is discriminatory, on the basis of physical disability and family status as provided in s.8 and s.13 of the Human Rights Code, R.S.B.C. 1997, c.210 (the “Code”).

The British Columbia Human Rights Tribunal concluded that Mr. and Ms. Hutchinson’s evidence established a prima facie case of discrimination. The Ministry failed to establish justification for its rule against hiring family members as a “bona fide occupational requirement”, and its arguments that policy’s purpose was “cost containment” and accommodating individuals such as the Hutchinsons would amount to undue hardship were rejected. With respect to remedy, the Tribunal awarded $8,500 and $4,000 respectively to Ms. Hutchinson and Mr. Hutchinson to compensate them for injury to dignity, feelings and self-respect, as well as $105,840 plus interest to Mr. Hutchinson to compensate him for his lost wages. The Province sought judicial review of the Tribunal’s decision.

On review, the Court first considered the appropriate standard of review and accepted that the Administrative Tribunals Act, S.B.C. 2005, c.45 applied to the decision of the Tribunal and for questions of law and mixed law and fact, a standard of correctness applies while for a question of fact the standard is one of patent unreasonableness.

The Court considered the Province’s argument that the Tribunal erred by not properly applying public law principles in characterizing the nature of the service customarily available to the public under s.8 and employment under s.13 of the Code. The Province relied on Auton (Guardian ad litem of) et al v. British Columbia (Attorney General), [2004] 3 S.C.R. 657 (S.C.C.), that services not prescribed by law cannot be made the subject of a finding of discrimination. The Court rejected this argument on the basis that Auton concerned a benefit that the government declined to confer (an emerging form of therapy for autistic children), whereas the present case concerned the means by which the benefit or service was provided. The proscription against hiring family members did not limit the nature of the service, only the means by which was conferred. The Court also found that the Tribunal selected the appropriate comparator group as being CSIL clients who are not restricted by the blanket prohibition, either because they do not wish to, or need to hire a family member as a caregiver, in accordance with the principles outlined in Auton.

The Tribunal also appropriately applied the analytical framework set out in Law v. Canada (Minister of Employment and Immigration), [1999], 1 S.C.R. (S.C.C.) in determining that a prima facie case of discrimination had been established: The Law framework considers the following factors in determining whether a complainant’s dignity has been demeaned: (1) the “pre-existing disadvantage” of the complainant; (2) the relationship between the grounds of discrimination and the complainant’s characteristics or circumstances; (3) the ameliorative purpose or effects of the impugned legislation or other state action on a more disadvantaged person or group in society; and (4) the nature and scope of the interest affected. Applying this framework, the Court upheld the Tribunal’s finding of prima facie discrimination.

Finally, the Court upheld the Tribunal’s compensatory award to Mr. Hutchinson for lost opportunity for employment on the basis it was not patently unreasonable for the Tribunal to conclude that “there was little chance Mr. Hutchinson would not be hired as his daughter’s caregiver but for the Ministry’s policy. The Court also held, on a standard of review of correctness, that the Tribunal did not err when it determined it had jurisdiction to order monetary compensation against the government as the conditions in the present case did not invoke the fundamental rules or traditional principles of Crown immunity required to “safeguard the free and effective discharge of the legislative function” because the impugned Ministry policy represented an administrative practice rather than the exercise of a legislative function. The amount of the award was also not patently unreasonable in the circumstances, and the Tribunal calculated Mr. Hutchinson’s remuneration for ongoing care to parallel the average payment made to disabled persons under the CSIL program to fund their care with the voluntary assistance of family and friends.

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