Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human rights complaints – Discrimination – Gender – Government funding for screening tests – Judicial review – Standard of review – Correctness – Reasonableness simpliciter – Compliance with legislation
Armstrong v. British Columbia (Ministry of Health),  B.C.J. No. 1279, British Columbia Supreme Court, June 29, 2009, R. Johnston J.
The Petitioner was a man who had laid a complaint with the BC Human Rights Tribunal, alleging that the Respondent, Her Majesty the Queen in Right of the Province of British Columbia represented by the Ministry of Health, breached section 8(1)(a) of the Human Rights Code, by failing to fund prostate cancer screening tests. The Ministry does fund breast and cervical cancer screening tests for women. Section 8(1)(a) of the Code prohibits a person from denying to a personal class of persons any service because of, inter alia, sex.
The Tribunal heard the Petitioner’s complaint and, after an extensive review of the evidence and argument, approached the complaint from two directions. First, the Tribunal member employed the prima facie analysis from the Supreme Court of Canada’s decisions in Ontario Human Rights Commission v. Etobicoke,  1 S.C.R. 202 (known as “O’Malley“), and Ontario (Human Rights Commission) v. Simpson-Sears Ltd.,  2 S.C.R. 536. Next, the Tribunal member applied the analytical framework set out in Law v. Canada (Minister of Employment and Immigration),  1 S.C.R. 497. In applying the first analytical approach, the Tribunal member found that the Petitioner failed to establish that there was prima facie discrimination, and did not engage the second part of the test, which would have shifted the onus to the Respondent to prove that there was a bona fide and reasonable justification for the policy not to fund the screening tests. Following this analysis, the member employed the reasoning used for claims initiated under section 15(1) of the Canadian Charter of Rights and Freedoms as set out in Law. The member found that the Petitioner did not meet any of the thresholds outlined under the Law analysis to establish that the Ministry had discriminated against him.
The Petitioner applied to the Court for judicial review of the Tribunal’s decision. The Court first considered the appropriate standard of review. The parties and the Tribunal agreed that for questions of law, the standard of review is correctness, in accordance with s. 59(1) and (2) of the Administrative Tribunal Act, S.B.C. 2004, c. 45. There was disagreement amongst the parties with respect to questions of mixed fact and law. The Court held that on plain reading of s. 59(1) of the Administrative Tribunals Act, the default standard is correctness for all but those questions the section says are decided on a different standard. Finally, the standard of review for questions of fact is reasonableness, pursuant to the Administrative Tribunals Act.
The Court first considered whether the member had erred in his application of the prima facie discrimination test. The Court held that the member had conflated the question of the Respondent’s bona fide and reasonable justification into his consideration as to whether the Petitioner had established a prima facie case of discrimination. This was an error because it could affect the placement of the burden of proof. Having found that the Petitioner had established that his sex made him a member of a protected group, and that he had suffered adverse treatment when he had to pay for a screening PSA test, the member was then required to consider whether the Petitioner had made out a prima facie case that his sex was a factor, or, as phrased by the member, “played some role” in the adverse treatment. The Petitioner is not required, at this stage of the analysis, to show on a balance of probabilities that his sex was the primary factor that led to the decision not to fund. That question should be considered and answered at the end of the process. Although this was a preliminary stage of the overall analysis that the member was required to conduct, it was nonetheless important because of the burden of proof. At this stage, the burden was on the Petitioner. If the Petitioner met the burden, a prima facie case would exist, and the Respondent would inherit the burden of proving, on a balance of probabilities, that there was in actuality a bona fide and a reasonable justification for its policy that seemed, on its surface, discriminatory.
The Court held that this error was an error of law because the member misapprehended the principles of O’Malley, with the result that it is not possible to say whether he required the Petitioner to prove more by way of a prima facie case than should have been required at that stage. It was also not possible to know if the Respondent would have satisfied the burden of proving a bona fide and reasonable justification, a burden it should have borne, if, on a proper approach, the member had concluded that the Petitioner had established his prima facie case.
The Court moved on to consider whether the Tribunal member had erred by applying the Law test. The Court noted that the Courts have not been clear on the application of the reasoning in Law to human rights legislation. The Law approach was developed in the context of a claimed breach of s. 15(1) of the Charter. The establishment of a prima facie case by a complainant under the Human Rights Code requires less than the establishment of a breach under s. 15(1) of the Charter. The Court held that where a complainant makes it clear that a complaint is brought under one of the subsections where discrimination is defined by s. 1 of the Code, it is an error of law to engage in the Law analysis of the complaint under that subsection. In this case, the member blended the two approaches, at least insofar as he adopted his finding on whether the prima facie test had been made out. The Court rejected the Respondent’s argument that the Law analysis should be used in cases where the types of complex policy issues that can arise from complaints against government are present. Governments should have no special status when it comes to human rights complaints.
The Court held that the proper remedy in this case was to remit the matter to the Tribunal for reconsideration.
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