The appellant appealed a Chambers Judge’s decision denying her application for judicial review, on the ground that the Chambers Judge refused to adjourn the judicial review application in order for her to obtain a transcript of the hearing before the Human Rights Tribunal. The appeal was dismissed. In fact, no application to adjourn was made to the judge. The judge made a finding of fact that the appellant was advised that she could order a transcript and was told how, but she had not done so. Because a transcript of the Tribunal hearing could be obtained, filing an affidavit setting out the alleged procedural fairness issues was unnecessary and inadmissible. In any event, the judge was satisfied based on the Tribunal’s written reasons that the allegations that the hearing had been unfair were unsustainable and having a transcript would not alter the result of the proceedings before him. There was no error of principle.

Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human rights complaints – Discrimination – Hearings – Fairness – Appeals – Practice and procedure – Adjournment – Judicial review – Procedural requirements and fairness – Evidence

Caster v. Walter F. Evans (1973) Ltd., [2013] B.C.J. No. 2741, 2013 BCCA 529, British Columbia Court of Appeal, December 4, 2013, R.E. Levine, E.C. Chiasson and N.J. Garson JJ.A.

The appellant was expelled by the respondent’s photography school. She filed a complaint to the British Columbia Human Rights Tribunal that her expulsion was discriminatory. The Tribunal dismissed her complaint following a 5-day hearing, where 13 witnesses were called, including 5 by the appellant. None of the witnesses supported the appellant’s contentions about discrimination. The appellant applied for judicial review, alleging error in the tribunal’s findings of credibility and on procedural fairness grounds. The Chambers Judge dismissed the judicial review application on both grounds. He refused to interfere with the Tribunal’s credibility findings, noting that the Tribunal member was entitled to make significantly adverse findings of credibility against the appellant. With respect to the procedural fairness argument, the judge noted that the only basis for these claims were in an affidavit filed by the appellant and no transcript had been ordered or prepared, even though the proceedings before the tribunal were recorded. The judge found the affidavit evidence inadmissible, and noted that the comments in the affidavit were “arguably relevant” but not necessary because of the availability of a recording and a transcript of the various Tribunal rulings relating to procedural unfairness which were alleged in the affidavit. The judge also considered whether to adjourn the hearing so that a transcript could be obtained, but decided not to do so because “it would not be appropriate or reasonable in the circumstances of the case”. The appellant appealed.

The sole ground of appeal was the judge’s refusal to adjourn the judicial review hearing in order for the appellant to obtain a transcript of the hearing before the Tribunal. The Court of Appeal noted that, in fact, no application to adjourn was made to the judge. The judge found as a fact that the appellant was advised she could order a transcript and was told how, but she had not done so. Nevertheless, the judge considered whether he should adjourn the hearing so that a transcript could be provided. He decided not to because having a transcript would not alter the result of the proceedings before him. The Appeal Court agreed that, based on the written reasons of the Tribunal, the judge was entitled to find that the appellant’s allegations that the hearing had been unfair were unsustainable. The Appeal Court also agreed with the Chamber Judge’s decision that there was no basis to interfere with the Tribunal’s findings of credibility. The appeal was dismissed.

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