This matter concerns an appeal from the dismissal of a petition for judicial review of a decision of the Human Rights Tribunal (“Tribunal”) refusing to accept the appellants’ complaint for filing because it was not filed in time. The appeal was dismissed by the B.C. Court of Appeal.

Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human Rights  complaints – Discrimination – Race – Continuing contravention – Judicial review – Limitations – Compliance with legislation – Standard of review – Correctness – Patent unreasonableness

Chen v. Surrey (City), [2015] B.C.J. No. 257, 2015 BCCA 57, British Columbia Court of Appeal, February 6, 2015, S.D. Frankel, A.W. MacKenzie and J.E.D. Savage JJ.A.

The appellants, directors and employees of a recycling business in Surrey, B.C., filed a complaint with the Tribunal alleging that the respondents, bylaw inspectors employed by the City of Surrey, discriminated against them on the basis of race and place of origin in the area of public services contrary to s. 8 of the Human Rights Code, R.S.B.C. 1996, c. 210 (the “Code”) and the City was vicariously liable for the conduct of its employees. The complaint alleged the discrimination commenced in May 2007 but it only listed details of specific alleged incidents occurring between October 2010 and June 2011.  The alleged incidents included that the respondents: (i) used City vehicles to block the appellants’ scrapyard, (ii) yelled at the appellants, (iii) ticketed the appellants for “every possible bylaw infraction”, (iv) made no effort to explain the bylaws in question or to assist the appellants in complying with them and (v) conducted illegal searches and threatened to close the scrapyard.

In August 2012, the Tribunal issued its decision refusing to accept the complaint for filing. It referred to s. 22 of the Code which read in part:

22(1) A complaint must be filed within 6 months of the alleged contravention.

(2) If a continuing contravention is alleged in a complaint, the complaint must be filed within 6 months of the last alleged instance of the contravention.

The Tribunal noted that, under s. 22 of the Code, any events alleged to have occurred before May 2011 were untimely unless they, together with any timely allegations, constituted a “continuing contravention”. The Tribunal found that the complaint did not contain any timely allegations which, if proven, would contravene the Code and that therefore no continuing contravention existed. Specifically the Tribunal noted that the only timely event alleged (that the respondents stayed outside the appellants’ yard for an hour inviting customers to be witnesses against the business) would not serve to establish a contravention of the Code.

On judicial review, the appellants argued the Tribunal erred in law in: (i) applying the “arguable contravention” test to the question of whether there was a continuing contravention and thus basing its decision on the merits of the complaint (as opposed to its timeliness), (ii) applying the “arguable contravention” test improperly and (iii) applying the “continuing contravention” test improperly. The chamber’s judge noted that the decision to apply a particular legal test was reviewable on a standard of correctness but the application of that legal standard was a discretionary decision that could only be set aside if it was patently unreasonable. The judge dismissed the petition with costs payable to the City and the respondents. More specifically, the judge found the Tribunal correctly articulated and applied the arguable contravention test in addressing whether the complaint alleged a continuing contravention under s. 22 of the Code.

The Appeal Court framed the issues before it as follows:

1. did the chambers judge err in applying the standard of correctness (to the extricable question of law) regarding the correct legal test to determine whether the complaint set out a continuing contravention of the Code; and if so,
2. on finding the Tribunal articulated the correct legal test, was the judge correct to apply the standard of patent unreasonableness to the Tribunals (discretionary) decision as to whether the facts alleged in the complaint established a continuing contravention.

The appellants argued that the chambers judge erred in applying the arguable contravention test where the only issue before the Tribunal was the timeliness of the complaint. Phrased differently, they argued that where a continuing contravention is alleged, all that is required for a complaint to be timely is an allegation of a continuing contravention, the last incidence to have occurred within six months of the complaint, as opposed to engaging in any consideration of the complaint’s prospect for success. The Appeal Court disagreed, reasoning that “for the Tribunal to properly determine whether a continuing contravention is being alleged, it must conduct a preliminary assessment of the complaint to determine whether it sets out acts occurring within six months of the complaint which, if proven, could constitute a separate contravention…In other words, the Tribunal must apply the arguable contravention test to determine whether there has been an allegation of a continuing contravention.”

Alternatively, the appellants argued that even if the Tribunal was correct in applying the arguable contravention test, it erred in its application.

The appellants argued that the Tribunal’s interpretation of the arguable contravention test was an extricable question of law and thus reviewable on a standard of correctness. The respondents disagreed. The Appeal Court agreed with the chambers judge (and respondents) that the Tribunals’ application of the legal standard to the complaint at issue was a discretionary decision, reviewable on a standard of patent unreasonableness. The Appeal Court further held that there was no basis upon which the chambers judge could have concluded that the Tribunal’s decision was patently unreasonable. The Tribunal did not impermissibly weigh the likelihood that the appellants would be able to prove their case. The Appeal Court found that the judge rightly considered whether the facts alleged in the complaint could arguably constitute a contravention if proven.

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