Administrative law – Human rights complaints – Discrimination – Disability – Decisions of administrative tribunals – Human Rights Tribunal – Judicial review – Natural justice – Damages – Remedies
Foglia v. Edwards,  B.C.J. No. 1301, British Columbia Supreme Court, June 14, 2007, McEwan J.
The Respondent had filed a complaint alleging discrimination against the Petitioners on the basis that they had refused to provide a service or facility customarily available to the public, based on physical disability, contrary to s. 8 of the Human Rights Code. The Respondent was unable to use his legs and mobilized himself by using wrist-held crutches. The Petitioners had expressed concern that the Respondent’s method of entry into their taxis created a risk of unexpected airbag release.
The Human Rights Tribunal found that the Respondent had established a prima facie case of discrimination and that the Petitioners had failed to establish a bone fide reasonable justification for refusing to transport the Respondent. The Tribunal ordered that the Petitioners cease their contravention of the Code and refrain from committing the same or a similar contravention and that they pay the Respondent $2,500 for compensation for injury to the Complainant’s feelings, dignity and self respect.
The Court held that there was no debate that a prima facie case of discrimination had been made out on the facts. The hearing turned on whether the Petitioner was justified in refusing to transport the Respondent on the basis of his safety and damage concerns over the Respondent’s use of the steering wheel in gaining entry to a taxi. The Court held that the view taken of the evidence by the Tribunal was not the only one possible, but it was certainly within the range of views that could have been taken and was therefore not unreasonable.
The Court rejected the Petitioner’s submission that the Tribunal should have done its own research on the subject. This misunderstands the role of a Tribunal, which is to consider the case on the evidence before it, not to investigate and draw inferences on the basis of material that neither party could test or debate. The Tribunal’s finding that the Petitioners had discriminated against the Respondent in contravention of s. 8(1) of the Code was supportable and could not be said to be wrong within the appropriate test.
In awarding damages, the Tribunal had gone further than the Respondent himself, who sought no monetary damages. It was not clear that the Petitioner had adequate notice of his jeopardy or was given any opportunity to address damages. There was no representation of his views on the judgment and the only comment is the Respondent’s suggestion that he has not been seeking a monetary award. The Court held that the Petitioner was entitled to rely on what the Respondent had represented in the circumstances and that the rule of natural justice that the Petitioner had a right to be heard on the subject of remedy was breached. In the circumstances, the Court did not disturb the order under s. 37(2)(a) to cease and refrain from the discrimination, but set aside the order under s. 37(2)(d)(iii) in order that there would be no monetary penalty.
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