Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human rights complaints – Discrimination – Gender – Equality rights – Judicial review – Legislative compliance – Disclosure – Relevance of information disclosed – Standard of review – Patent unreasonableness – Correctness
Cariboo Chevrolet Pontiac Buick GMC Ltd. v. Becker,  B.C.J. No. 119, British Columbia Supreme Court, January 10, 2006, Goepel J.
The Respondent had been employed by the Petitioner car dealership. During the course of her employment, the Respondent considered that the Petitioner had been discriminating against her by paying her less than males who performed substantially the same job. She approached two of her superiors at the dealership and advised them that she had contacted the Tribunal and that she had a strong case. There was some discussion that suggested that if she brought a complaint to the Tribunal, the Respondent’s job might be in jeopardy. A few months later, following receipt of several complaints regarding the Respondent, the Petitioner terminated her employment.
The Respondent filed a complaint with the Tribunal, alleging that the Petitioner had discriminated against her by (a) paying her a rate of pay less than the rate of pay at which an employee of the other sex was employed for similar or for substantially similar work, in breach of section 12(1) of the Code; (b) threatening to fire her if she continued to pursue the human rights complaint, in breach of section 43 of the Code; and (c) terminating her employment in breach of section 13 of the Code.
The Petitioner had brought an application to dismiss the complaint which was denied. The Respondent had also brought an application for disclosure of certain documents which she alleged were relevant to the complaint proceedings. The Tribunal granted the application for disclosure.
The Court first considered whether the Administrative Tribunals Act, S.B.C. 2004, c.45 (the “ATA”), which came into force after the two Tribunal decisions were delivered, but before the petition for judicial review was filed, applied. Because the petition for judicial review took place after the statute’s commencement, applying the ATA in this case did not give the statute a retrospective effect. The ATA applies and the decisions are to be reviewed pursuant to its provisions.
Different standards of review apply to different portions of the Tribunal’s decision regarding the Petitioner’s application for dismissal of the complaint. Under section 27(1)(b), the Tribunal can dismiss the complaint if the acts or omissions alleged, if true, do not contravene the Code. That decision does not require an exercise of discretion, findings of fact, or the application of common law rules of natural justice and procedural fairness. Section 59(1) of the ATA mandates that the decision of section 27(1)(b) be reviewed on a standard of correctness.
Section 27(1)(c) gives the Tribunal the power to summarily dismiss a complaint with or without a hearing, or if the Tribunal is satisfied that there is no reasonable prospect, the complaint will succeed. The decision involves an assessment of evidence in a specialized area. It is discretionary in nature and therefore should only be set aside if it is patently unreasonable.
Similarly, decisions made under section 27(1)(d) (which provide for dismissal where proceeding with the complaint would not benefit the person, group or class alleged to have been discriminated against or further the purposes of the Code) should be reviewed under the patently unreasonable standard, as such decisions are clearly discretionary and grounded in the Tribunal’s expertise.
The foundation of the section 12 complaint was that the Respondent was paid less than her predecessors for similar work. The complaint falls clearly under section 12 of the Code and, in the result, the Tribunal’s decision not to dismiss the section 12 complaint under section 27(1)(b) was correct. The Tribunal’s decision not to dismiss it under section 27(1)(c) or section 27(1)(d)(ii) was also not patently unreasonable, or even incorrect.
The foundation of the Respondent’s section 13 complaint was that she was fired on account of her sex. If she can establish she was fired for the reasons she alleges, there would be a contravention of the Code, and therefore the Tribunal was correct in declining to dismiss the section 13 complaint under section 27(1)(b). It was also not patently unreasonable for the Tribunal member to refuse to dismiss this complaint under section 27(1)(c).
With regard to the complaint under section 43, the Court found that the section had a limited meaning and is referenced to a person who “complains under the Code”, thus limiting it to persons who have filed a complaint pursuant to section 21 of the Code. The Respondent had made no complaint under the Code before she was terminated. In the circumstances, her complaint under section 43 could not succeed and should have been dismissed under section 27(1)(b). The Tribunal was prohibited from proceeding with that complaint.
Regarding the Tribunal’s order for disclosure of documents, the decision involved the application of a legal test: arguable relevance of documents. The standard of review pursuant to section 59(1) of the ATA is correctness. The Court held that the Tribunal had been incorrect in ordering production of a customer satisfaction survey, the Petitioner’s financial statements, and the records and benefits of other managers, on the basis that they were not arguably relevant.
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