A woman who had alleged discrimination in her employment at British Columbia Court Services (“Solowan”) was unsuccessful in her Application for judicial review of a decision by the Human Rights Tribunal (the “Tribunal”) wherein the Tribunal concluded that it lacked jurisdiction to reopen her complaint, which had been dismissed in 1996 by the B.C. Council of Human Rights (the “Council”), a statutory predecessor of the Tribunal

24. July 2007 0

Administrative law – Human rights complaints – Discrimination – Decisions of administrative tribunals – Human Rights Tribunal – Jurisdiction – Judicial review – Delay – Compliance with legislation – Standard of review – Correctness

Solowan v. British Columbia (Attorney General), [2007] B.C.J. No 1167, British Columbia Supreme Court, May 31, 2007, C.L. Smith J.

In 1995, Solowan filed a complaint with the Council alleging sexual harassment by her supervisor while she was working as a Chambers Judgment Transcriber. Solowan named the Province of British Columbia, the Supreme Court of British Columbia and her supervisor as Respondents. There was also a complaint of retaliation against Solowan for bringing the original harassment complaint. Susan O’Donnell, Executive Director of the BC Human Rights Coalition, (“O’Donnell”) represented Solowan in bringing her complaint.

On December 3, 1996, Solowan accepted $10,000 from the Respondents in exchange for signing a full and final release of all claims, and the Council dismissed Solowan’s complaints pursuant to s.14(1)(d)(i) of the Human Rights Act.

On January 1, 1997, the Human Rights Code replaced the Human Rights Act and the Council was abolished. A new statutory body, the Human Rights Commission (the “Commission”) was made responsible for the disposition of human rights complaints.

In November 2000, O’Donnell wrote to the Human Rights Commission (the “Commission”) stating that Solowan’s employer had offered her a transfer out of the work unit where the harassment had allegedly occurred, but that the transfer had never materialised. O’Donnell reviewed the history of the matter, including Solowan’s letter to her employer stating that she was “quitting under stress”. O’Donnell argued that Solowan had accepted the $10,000 settlement because she was “poverty stricken and extremely emotionally ill”. Solowan had been on short term disability for five years at that point “in the hope that her employer would simply put an end to her poisoned work environment.” Under the circumstances, O’Donnell submitted that Solowan’s transfer out of the work unit ought to still be forthcoming, and requested that the Commission consider ordering compensation for Solowan’s lost wages or opportunity.

In December 2000, O’Donnell withdrew from representing Solowan.

Solowan subsequently wrote to the Commission complaining that the 1996 agreement and dismissal or her complaint ought to be set aside because she had not ever received a copy of the Release, and that she did not understand the terms of the settlement agreement. She contended that O’Donnell had misled her into believing that the Council had refused to set the matter down for hearing, and stated that she only found out after settlement was effected that the matter had been set to proceed via hearing in January 1997.

On March 31, 2003, the Commission was eliminated and human rights complaints were to be filed, from that point forward, directly with the Tribunal. The transitional provision of the Human Rights Code in relation to this change provided that a decision of the Commission would be deemed to be a decision of the Tribunal under the Code.

In September 2003, Solowan filed an Application with the Tribunal seeking to have the settlement agreement of 1996 set aside and her 1995 complaint re-opened, and asking that her complaint be re-set for hearing. Solowan also asked the Tribunal to appoint a lawyer to act on her behalf. The Tribunal declined to appoint counsel for Solowan, but considered the other issues.

The Tribunal issued reasons finding that the Tribunal did not have jurisdiction to reopen complaints dismissed by the Council, on the basis that the legislative structure under which the dismissal was made was no longer in existence, and there was no connection between that legislative scheme and the one in place by September 2003. The Tribunal also held that even if there was continuing jurisdiction to consider a complaint dismissed by the Council, that jurisdiction should not be exercised due to the substantial time delay in bringing the Application, the evidence that Solowan did understand the terms of the original settlement agreement, and the prejudice to the Respondents if the complaint from 10 years earlier was permitted to be reopened.

On judicial review, the standard of review applicable to the decision of the Tribunal regarding whether it had jurisdiction was correctness, while for the discretionary decision (whether the Tribunal ought to exercise jurisdiction to reopen a complaint), it was patent unreasonableness.

The Court held that because the complaint was dismissed by the Council under the provisions of the Human Rights Act (1984), unless the Council or (possibly) the Commission had reopened the complaint, their jurisdiction was exhausted when they ceased to exist. There was no complaint on file when the Tribunal came into existence, and so there was no jurisdiction vested in the Tribunal over the dismissed complaint. There was no indication in the Human Rights Code Amendment Act, 2002 that the Tribunal should be able to reopen decisions made by previous statutory bodies.

The Court did not find it necessary to consider whether, if there was jurisdiction, it was exercised in a patently unreasonable matter in the dismissal of the Application to the Tribunal, but the Court stated that the Tribunal Member had considered the proper factors in an appropriate manner in covering off that alternate possibility.

Solowan’s petition was dismissed.

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