The petitioner hospital was unsuccessful on judicial review in setting aside the decision of the Human Rights Tribunal to not summarily dismiss a human rights complaint as having no reasonable prospect of success under section 27(1) of the Human Rights Code. The complaint was for alleged discrimination by the hospital on the grounds of mental and physical disability in relation to the provision of services. The court found that the complaint had some prospect of success and that the Tribunal’s decision was not patently unreasonable. The court rejected the argument that the Tribunal was not in a position to second-guess the exercise of professional medical judgment by the hospital staff in the provision of services, absent discrimination.

19. February 2019 0

Administrative law – Decisions reviewed – Human Rights Tribunal – Discrimination – Disability – Judicial review – Jurisdiction – Standard of review – Patent unreasonableness – Practice and procedure – Summary proceedings

Hospital v. J.R. (Litigation guardian of), [2018] B.C.J. No. 3731, 2018 BCSC 2079, British Columbia Supreme Court, November 26, 2018, L.W. Bernard J.

The petitioner Hospital sought to have X.P.’s human rights complaint (brought on behalf of her adult son, J.R.) dismissed without a hearing before the Human Rights Commission on the basis that it had no reasonable prospect of success, pursuant to section 27(1)(c) of the Human Rights Code, RSBC 1996, c. 2010. The Hospital was unsuccessful before the Tribunal and sought judicial review of the Tribunal’s decision, claiming it was patently unreasonable.

X.P.’s complaint was that her adult son was discriminated against on the grounds of mental and physical disability in relation to the provision of service customarily available to the public – in this case, care at the hospital – contrary to section 8 of the Code. The factual background before the Tribunal was relatively extensive, consisting of hospital records, RCMP records, and community partners.

Between January and February 2015, J.R. attended the Hospital in a psychotic state on a number of occasions. The essence of the complaint was that he was treated as a drug addict and a criminal (it is clear he received treatment), rather than as someone suffering from mental illness. The Hospital, for its part, noted that he received treatment each time he attended at the Hospital and the real issue was the appropriateness of the medical care for patients with psychosis and addiction issues. The Hospital claimed that the Tribunal was not permitted to “second guess” the exercise of professional medical judgment and, therefore, the complaint was flawed and had no reasonable prospect of success. The Hospital position was that the Tribunal was without jurisdiction to interfere with the exercise of professional judgment, so long as it is not tainted with discrimination, which it says there was no evidence to show in this case.

The Tribunal rejected this argument, concluding that there was some information before it “capable of supporting a reasonable inference that the Hospital treated J.R. as being someone else’s problem rather than taking on his complex care in hospital because he was too much trouble to deal with”. The court agreed and found the Tribunal’s decision was not patently unreasonable. Looking at the evidence as a whole, the court concluded that the evidence (coupled with the reasonable concession that J.R. has physical and mental disabilities) “amply supported” the Tribunal’s conclusion and that, if made out, this would also support the inference that this constitutes discrimination on the basis of disability. No doubt driving this decision was the high threshold the Hospital had to meet in order to have the complaint dismissed on this preliminary basis. The court held that the evidence was “capable of supporting” a finding that J.R. was shuffled back and forth between the hospital and the police while he was psychotic, implying this may be sufficient to ground the discrimination complaint. Lastly, the court noted that even if there were some errors in the Tribunal’s reasoning, it had to be approached as an organic whole, without a line-by-line treasure hunt for error.

In light of the foregoing, the court found the Tribunal’s decision was not patently unreasonable and that the complaint should proceed to hearing.

This case was digested by Adam R. Way, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please contact Adam R. Way at

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