Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human rights complaints – Discrimination – Disability – Motor vehicles – Suspension of driver’s licence – Judicial review – Jurisdiction – Compliance with legislation – Continuing contravention – Damages – Crown immunity – Standard of review – Correctness
British Columbia v. Bolster,  B.C.J. No. 192, British Columbia Court of Appeal, February 2, 2007, Newbury, Levine and Chiasson JJ.A.
Bolster, a truck driver, whose driver’s license had been rescinded by the Superintendent of Motor Vehicles (“Superintendent”) due to a vision-related disability, brought a complaint to the British Columbia Human Rights Tribunal (the “Tribunal”). The Tribunal found that the Superintendent discriminated against Bolster by failing to provide him an individual functional driving assessment, so that Bolster could demonstrate his fitness to hold a commercial driver’s license despite his visual disability. The Tribunal ordered the Province to pay compensation under the Human Rights Code for lost wages, as well as $5,000 for injury to dignity, feelings and self-respect. The Province filed a petition for judicial review in B.C. Supreme Court. The Chambers Judge upheld the Tribunal’s decision and determined that s. 59 of the Administrative Tribunals Act did not apply, and that the standard of review for the Tribunal’s decision at common law was reasonableness simpliciter.
The Province appealed the decision on substantive grounds and on questions regarding the standard of review. The Province argued that the Tribunal does not have jurisdiction to order it to pay compensation for discrimination by the Superintendent, because under common law and constitutional principles, the Crown is immune from damage-type awards with respect to legislative or quasi-judicial decisions made by statutory decision-makers. The Province took issue with the Tribunal’s ability to determine the amount of compensation under the Act.
The Court of Appeal held that the legislature has expressly bound the Province to the provisions of the Human Rights Code and therefore, the Province is subject to all the remedies of the Code, including the requirement to pay compensation where ordered to do so by the Tribunal. The Court held that s. 59 of the Act applies “immediately”; that is, to all ongoing judicial review proceedings at the date s. 59 came into force and therefore applied in the present case. The Court concluded that the standard of review on a question of mixed fact and law is reviewable on the standard of correctness under s. 59 of the Act and that the correctness standard applied in determining whether the de facto doctrine is relevant to the calculation of the amount of compensation payable to Mr. Bolster. The Court found that the ongoing failure of the Superintendent to offer Mr. Bolster an individual functional driving assessment, after repeated appeals and requests, was “a succession or repetition of separate acts of discrimination of the same character”. The Court found that those acts continued, as found by the Tribunal, until the Superintendent began to take steps in January 2003 to offer and arrange an individual functional driving assessment for Mr. Bolster.
In the result, the Province’s appeal was dismissed.
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