Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Employment law – Termination of employment – Human rights complaints – Discrimination – Race – Judicial review – No reasonable cause of action – Standard of review – Patent unreasonableness
Gichuru v. British Columbia (Workers’ Compensation Appeal Tribunal),  B.C.J. 676, 2010 BCCA 191, British Columbia Court of Appeal, April 20, 2010, K.C. Mackenzie, E.C. Chiasson and E.A. Bennett JJ.A.
Gichuru was employed by the Workers’ Compensation Appeal Tribunal (“WCAT”) as a legal researcher. He was dismissed and contended that the dismissal was racially motivated as he is a person of mixed-race (African and Canadian). Gichuru then filed a complaint under the British Columbia Human Rights Code, RSBC 1996, c.210.
WCAT applied under section 27(1) of the Code for a summary dismissal without a hearing of Gichuru’s complaint. On April 27, 2007, a Member of the Human Rights Tribunal dismissed Gichuru’s complaint pursuant to section 27(1)(c) of the Code on the basis it had no reasonable prospect of success. The Member also indicated that she found certain conduct of Gichuru improper. Gichuru applied for judicial review of the Member’s decision but this judicial review was dismissed by the Chambers judge. Gichuru appealed the dismissal of his judicial review application.
In reviewing the appropriate standard of review, the court found that it was bound by the decision in Berezoutskaia v. British Columbia (Human Rights Tribunal) 2006, BCCA 95, where the court concluded that the standard of review of a decision to dismiss a complaint as having no reasonable prospect of success is patent unreasonableness because the decision is discretionary. In this case, the court found that the Chambers judge did not err in considering the standard of review. The Chambers judge had declined to make an express finding of the applicable standard because he concluded that even on less deferential standards – correctness and reasonableness – the Member had made no error.
The court held that even if a court may apply a different standard of review to the components of the decision-making process of an administrative tribunal, it should do so with caution. In the case at bar, such an unravelling of the decision-making process was unwarranted with respect to the Member’s decision that the complaint had no reasonable prospect of success.
In the case at Bar, the Court of Appeal found that the Chambers judge correctly concluded that the Member’s dismissal of the complaint was reasonable. However, the court found that the finding of improper conduct was not necessary to the exercise of discretion under section 27(1)(c) of the Code and, consequently, the finding of improper conduct was patently unreasonable in the circumstances of the case.
In the result, the appeal was allowed only to the extent of declaring that the finding of improper conduct should not have been made in the circumstances of the case.
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