An application for judicial review on a preliminary issue is rarely appropriate, and in the circumstances of this case the Government of British Columbia’s application for judicial review of a preliminary ruling rendered by the Human Rights Tribunal was premature

Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human Rights complaints – Discrimination – Services – Customarily available to the public – Charter of Rights and Freedoms – Judicial review application – Premature

British Columbia (Ministry of Attorney General) v. New Denver Survivors Collective, [2010] B.C.J. No. 1754, 2010 BCSC 1252, British Columbia Supreme Court, August 6, 2010, E.J. Adair J.

The respondents, the New Denver Survivors Collective, were a group of people who were apprehended by the RCMP and forcibly confined to a sanatorium in New Denver, B.C. during the 1950’s because their parents were identified as Sons of Freedom Doukhobors. A report from the province of British Columbia’s ombudsperson released in 1999 referred to the systemic and historic abuse of these children resulting from their confinement and recommended specific steps that the petitioners, the government of British Columbia, could take to make reparation for this wrong. The respondents submitted a human rights complaint on the basis that the petitioners had discriminated against them in their failure to reconcile or make reparation for the systemic abuse in the 1950’s. In particular, the respondents say that the petitioners implemented similar recommendations made by the ombudsperson for other groups of institutionalized children, but failed to implement recommendations in relation to the respondents due to their race, ancestry, and religion.

The respondents brought a preliminary application before the Human Rights Tribunal for a ruling on two issues: (a) whether erecting a monument and / or constructing a memorial site constitutes a service that the government customarily makes available to the public under the Human Rights Code and (b) whether addressing the historical wrongdoings by the government against an ethnic minority constitutes a service customarily available to the public under the Human Rights Code. The Tribunal held that it would not be appropriate to answer these questions in a preliminary manner and directed that the matter proceed to a full hearing. The petitioners brought an application for judicial review of this decision.

The court emphasized that, as a general rule, judicial review of preliminary or interlocutory decisions is appropriate only in limited circumstances. This is because judicial intervention may fragment the tribunal’s proceedings, the tribunal may resolve the dispute to the party’s satisfaction, the court’s decision may be rendered moot because of the tribunal’s ruling on some other aspect of the proceedings, it is helpful for the court to have an evidentiary record and the tribunal’s analysis of the dispute, and courts avoid deciding constitutional or Charter issues on hypothetical facts.

The court noted that generally an application for judicial review on a preliminary issue will most often be appropriate where the preliminary issue is one of jurisdiction. In this case, the petitioners had not challenged the Tribunal’s jurisdiction and, given the policy concerns enumerated above, the application for judicial review was premature.

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