A former employee of MacMillan Bloedel Limited who was injured in a car accident in 1979 (“Andrews”) was unsuccessful on his application for judicial review of a decision of the Human Rights Tribunal (the “Tribunal”) refusing to accept his complaint for filing because it did not allege facts which, if proven, could be discrimination under the Human Rights Code, R.S.B.C. 1996, c. 210 (the “Code”)

25. September 2007 0

Administrative law – Human rights complaints – Discrimination – Disability – Charter of Rights and Freedoms – Decisions of administrative tribunals – Human Rights Tribunal – Labour law – Collective agreements – Judicial review – Standard of review – Patent unreasonableness

Andrews v. British Columbia (Human Rights Tribunal), [2007] B.C.J. No. 1608, Supreme Court of British Columbia, July 19, 2007, Cohen J.

Andrews filed a complaint with the Tribunal alleging discrimination in employment and in respect of membership in a trade union on the basis of physical and mental disability (prohibited grounds under ss. 13 and 14 of the Code), and a lawful source of income (not a prohibited ground). Andrews’ complaint laid out particulars of the injuries he sustained in a 1979 car accident while on what he described as a “leave of absence” from his employment with MacMillan Bloedel Limited. Andrews detailed the terms of the collective agreement between his employer and the United Steelworkers of America, Local Number 2171 (the “Union”) regarding a health and welfare benefits plan (the “plan”), but indicated that he had been denied benefits under the plan because he was not an “employee” at the time of his injury. Andrews grieved the decision to his Union and then complained against the Union to the Labour Relations Board. Andrews lost a judicial review application against the decision of the Labour Relations Board to uphold the Union’s decision not to take Andrews’ case to arbitration.

The Tribunal wrote to Andrews indicating that the ground of lawful source of income only applies to the area of tenancy, and does not apply in the areas of employment and membership in a trade union. That portion of the complaint was not accepted by the Tribunal. The Tribunal then requested more information from Andrews, indicating that though his materials disclosed that he was denied benefits due to having no insurance coverage at the time of his injuries, his complaint did not specify why he believed the alleged conduct to be discriminatory based on his physical or mental disabilities.

Andrews filed an amendment to his complaint, and the Tribunal determined that the complaint did not set out facts showing that the Respondents’ conduct could be discrimination in employment based on physical disability, mental disability or lawful source of income.

Andrews filed a request for reconsideration of the Tribunal’s decision not to accept his complaint, but the request was refused.

The Tribunal’s decisions regarding whether to accept a complaint are discretionary. The applicable standard of review is patent unreasonableness pursuant to s.59(3) of the Administrative Tribunals Act, S.B.C. 2004, c.45 (the “ATA”). Under s. 59(4) of the ATA, a discretionary decision is patently unreasonable if the discretion was exercised arbitrarily or in bad faith, for an improper purpose, or was based entirely or predominantly on irrelevant factors or failed to take statutory requirements into account.

The Court held that the Tribunal’s decision was not patently unreasonable, and the application for judicial review was dismissed on this point.

Andrews also raised a constitutional question in his petition for review. He referred to provisions of the Canadian Charter of Rights and Freedoms (the “Charter”).

The Court held that the provisions of the Charter were not applicable, because the ATA provides that that the Tribunal does not have jurisdiction over constitutional questions relating to the Charter.

Further, the Court pointed out that the Charter does not purport to regulate private conduct between individuals and held as follows.

…to the extent that the petitioner’s constitutional question arises out of a challenge regarding the pursuit of his rights or entitlement under the terms of the plan or the collective agreement, I find that the Charter has no application.

The petition was dismissed.

To stay current with the new case law and emerging legal issues in this area, subscribe here.