An application for judicial review of a decision by the Human Rights Commission declining to grant summary dismissal of a complaint regarding publications about a First Nations home for adolescent males alleged to be discriminatory on the basis of race and other factors was dismissed

23. January 2007 0

Administrative law – Human rights complaints – Discrimination – Race – Decisions of administrative tribunals – Human Rights Commission – Aboriginal issues – Jurisdiction – Parties – Standing – Judicial review – Appeals – Standard of review – Patent unreasonableness

Carson v. Knucwentwecw Society, [2006] B.C.J. No 3102, British Columbia Supreme Court, December 1, 2006, Ehrcke J.

A First Nations Child and Family Services Agency providing services to four Caribou Tribal Council Member Bands (the “Society”) purchased two private lots to develop a care home for adolescent boys. Some residents (the “Respondents”) of the nearby area launched protests objecting to the proposed location of the home. Some of the protests, including signs, letters and statements, gave rise to a Human Rights complaint being filed by the Society and the youth who would reside at the facility, alleging discrimination based on race, colour, ancestry, family status, and physical and mental disability. The complaint specified allegations that the youth were inferior, dangerous and a threat to the community.

The Respondents brought an application to dismiss the complaint on the basis of non-contravention of the Human Rights Code, lack of jurisdiction or no reasonable prospect of success. The Tribunal dismissed the application and the Respondents (“Petitioners”) petitioned for judicial review.

The Court referred to s.59 of the Administrative Tribunals Act for the applicable standard of judicial review. The parties agree that corrections should apply to the review of the Tribunal’s decisions concerning jurisdiction, and that for discretionary decisions the standard of patent unreasonableness ought to apply. Finally, they agreed that if there was a question of statutory interpretation, the standard of review would be correctness.

The Petitioners argued that the complainants lacked standing to bring a complaint because the Human Rights Code deals with personal rights, whereas the Society is not a person. The Court dismissed this argument, specifying that the complaint had been brought by an individual on behalf of the Society and others, and that in any event the objection based on standing should have been raised by an application to review the initial decision of the Tribunal that the individual could be named as a representative complainant.

The Petitioners next argued that the complaint regarding a care home for First Nations adolescents fell within exclusive federal jurisdiction, incorporated in “Indians and lands reserved for Indians” as specified in s. 91(24) of the Constitution Act, 1867, and that therefore the Tribunal had erred in failing to dismiss the complaint.

The Court dismissed this argument, finding that the real issue was the activities and publications of the non-Native Petitioners.

The Tribunal’s decision that it had jurisdiction was upheld as being correct.

The Petitioners argued that the Tribunal was incorrect in deciding that it was not essential under the Code for a complaint to allege that a publication was discriminatory in respect to an area otherwise protected by the Code. The Tribunal’s finding from para. 50 of the Reasons was upheld:

Therefore, to determine whether a complaint is justified under s.7(1)(a) of the Code, the Tribunal is required to determine whether a person has published, issued or displayed, any statement, publication, notice, sign, symbol, emblem or other representation that indicates discrimination or an intention to discriminate against a person or a group or class of persons because of one or more of the grounds protected under this provision. Section 7(2) indicates that subsection (1) does not apply to a private communication or to a communication intended to be private.

The Court also considered whether the Tribunal had been patently unreasonable in the exercise of its discretion in finding that the complaint should not be dismissed for having no reasonable prospect of success. The decision was upheld.

The petition for judicial review was dismissed with costs to the complainants.

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