A housing cooperative (“Lavender”) succeeded in quashing a decision of the B.C. Human Rights Tribunal (“BCHRT”) which had held that Lavender’s One Member Rule discriminated against a widow on the basis of her marital and family status

Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human rights complaints – Discrimination – Marital status – Housing co-operative – Membership – Judicial review – Standard of review – Reasonableness simpliciter – Correctness

Lavender Co-Operative Housing Association v. Ford, [2009] B.C.J. No. 2081, British Columbia Supreme Court, October 21, 2009, V. Gray J.

For 23 years, Mr. and Mrs. Ford, a married couple, lived together in a unit at Lavender. Mr. Ford was a member of Lavender throughout. Mr. Ford died on May 4, 2007 and Mrs. Ford was required to apply to Lavender for membership pursuant to the One Member Rule. Lavender rejected her application for membership and demanded that she leave the unit.

Mrs. Ford complained to the BCHRT, alleging that she had been discriminated against on the grounds of marital status and family status contrary to section 10 of the Human Rights Code (the “Code”).

The requirement for Mrs. Ford’s application arose out of Rule 2.2 of Lavender’s Rules, that there could only be one co-op member per residential unit (the “One Member Rule”) and that the person entitled to the shares of a deceased member, if residing full time in a unit at Lavender as his or her principle residence, could apply under Rule 2 for membership.

The BCHRT upheld Mrs. Ford’s complaint, on the basis that her status as a spouse and then widow placed her within the protected grounds of marital and family status and on the analysis that both on a traditional and a comparator group analysis of discrimination, Lavender had discriminated against her on those bases. Lavender petitioned under the Judicial Review Procedure Act seeking an order quashing the finding of the BCHRT.

The first issue was what the appropriate standard of review should be for a question of mixed fact and law on judicial review of a decision of the BCHRT. The Court reviewed the common law and the legislation regarding standards of review. The Administrative Tribunals Act (the “Act”), section 59, reads: “In a judicial review proceeding, the standard of review to be applied to a decision of the Tribunal is correctness for all questions except those respecting the exercise of discretion, findings of fact and the application of the common law rules of natural justice and procedural fairness.”

The Court found that in the absence of legislated standards of review, questions of mixed fact and law within the jurisdiction of the BCHRT would be reviewed on a standard of reasonableness. Although the decision in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, stands for the proposition that the content of legislated standards of review will be determined with reference to the common law, where the legislation permits such an analysis, the issue on this judicial review issue was not the content of the standard of review, but which standard of review ought to apply. The Act mandates the applicable standards. Legislation may oust the common law and specify standards of review. The jurisprudence is clear that standards of review set out in the Act survive common law changes. For example, the patent unreasonableness standard of review survives the common law change occasioned, in particular, by New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (“Dunsmuir”).

The decision in British Columbia v. Bolster, 2007 BCCA 65, was cited for the proposition that a question of mixed fact and law is reviewed on a standard of correctness, according to section 59 of the Act.

While the Court accepted that, following Khosa, judicial review legislation should be read purposefully with regard to the statute’s text, context and objectives, the application of the correctness standard prescribed by the Act to the question of mixed fact and law in this case was consistent with the clear legislative intent of section 59. The Court did not accept the argument that questions of mixed fact and law could be viewed as questions respecting findings of fact which therefore fell outside section 59(1).

The BCHRT argued that Bolster should be distinguished because it addressed a question of mixed fact and law outside the BCHRT’s expertise, whereas this judicial review concerned a question of mixed fact and law involving discrimination, an area within the BCHRT’s expertise. The Court held that under the Act, questions of law and mixed fact and law, regardless of the Tribunal’s decision-making expertise, should be subject to the same standard of review. This was consistent with the goal of the Act to simplify and codify standards of review, reduce court costs and provide consistency to the process of judicial review.

A standard of review of correctness, prescribed by section 59 of the Act, ought to apply to the question of whether the Tribunal had erred in finding that Lavender had discriminated against Mrs. Ford. The Court found that the decision of the BCHRT was incorrect both under the “traditional” analysis and the comparative group analysis of discrimination.

The BCHRT correctly found that Ms. Ford’s status as a married person and a widow placed her in protected grounds under the Code. However, the BCHRT erred in finding that there was evidence that the ground of discrimination, marital status, was a factor in Ms. Ford’s adverse treatment.

In order to find discrimination, the effect of an action complained of must impose on one person or a group of persons obligations, penalties or restrictive conditions not imposed on other members of the community. Ms. Ford did not suffer under any such obligations, penalties or restrictive conditions because of her marital status or any change in her marital status. Rather, the One Member Rule affected her because of her status as a non-member. Her loss of the right to occupy the unit at Lavender was triggered by the death of the only member in the residential unit. The Lavender rules provided that any non-member residing with a member was required to apply for membership on the member’s death, without distinction being made between a surviving spouse and any other type of applicant, e.g. single roommate. As such, a non-member single person living together in a unit with another single person would not experience a change in marital status on death of the unit’s member, but would still be required to apply for membership. Mrs. Ford had not suffered discrimination because of her marital status under the traditional analysis. Since the standard of review was correctness, the BCHRT decision should be quashed.

The comparator group analysis applied by the BCHRT was also incorrect. A comparator group must mirror the characteristics of the claimant relative to the benefit or advantage being sought, except for the personal characteristic related to the ground of alleged discrimination. The comparator group should have been single persons who were non-members of Lavender, rather than “single persons who sought to establish a home in Lavender”.

The effect on Mrs. Ford was like that on any other non-member, her ability to occupy the unit derived from the fact that she lived with a member. Non-members were subject to the same Rules regardless of whether they were single or married. When the member individual passed away, both single and married non-members would be required to apply, and Lavender had the discretion to refuse such applications for non-discriminatory reasons.

The BCHRT’s decision was found to be incorrect and was quashed.

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