The British Columbia Court of Appeal has upheld a decision by the BC Human Rights Tribunal that dismissed a discrimination complaint filed by a worker against her former employer, Pacific National Exhibition (PNE), various employees, and two union representatives.
The Tribunal had refused to accept the complaint for filing, citing insufficient evidence that would contravene the Human Rights Code. The Court of Appeal agreed with the Tribunal’s assessment, finding no procedural unfairness or patent unreasonableness in its decision.
The case centered on D.S.’s claim that she was discriminated against on several grounds, including political belief, religion, and gender identity. She also alleged sexual harassment, disability discrimination, and adverse treatment linked to her employment termination in 2019.
Tribunal’s decision and judicial review
The Tribunal originally dismissed D.S.’s complaint in 2020 under s. 27(1)(b) of the Human Rights Code, which allows it to screen out complaints that do not present arguable cases of discrimination. According to the Tribunal, D.S. had not provided “concrete facts” that, if proven, could establish a contravention of the Code.
D.S. subsequently sought a judicial review in the Supreme Court of British Columbia, arguing that the Tribunal’s refusal to accept her complaint was both unreasonable and unfair. The chambers judge dismissed her application in 2023, noting that the Tribunal had acted within its discretion and that its screening process met fairness standards.
Court of appeal findings
In her appeal to the Court of Appeal, D.S. argued that her lawyer had failed to advance certain arguments in the lower court, particularly regarding physical disability accommodation, and that the Tribunal’s processes were generally flawed. However, Justice Iyer, writing for a unanimous panel, dismissed these claims, focusing on the issues directly raised in D.S.’s original complaint and judicial review petition.
Justice Iyer emphasized that the Court’s role was to determine whether the Tribunal’s decision was patently unreasonable — a highly deferential standard. The Tribunal, the Court concluded, was reasonable in finding that D.S. had not linked any adverse treatment by her employer to the protected grounds she claimed, including disability and gender identity.
Justice Iyer noted that D.S. had offered “a great deal of information” about her employment and protected characteristics but had not provided enough specifics to demonstrate how these factors led to discrimination. “The complaint only sets out [D.S.]’s beliefs,” Justice Iyer wrote, “not facts that support inferences that her protected characteristics were factors in her adverse treatment.”
New arguments and fresh evidence
The Court also addressed D.S.’s request to introduce new arguments and fresh evidence on appeal, including allegations of broader institutional failings by the Tribunal. Justice Iyer denied these requests, noting that ineffective assistance of counsel is rarely considered in civil cases and that the issues were not “truly new” or relevant to the appeal’s core questions.
Procedural Fairness and Delay
D.S. further claimed that the Tribunal’s process was procedurally unfair, particularly due to delays and other administrative issues. Justice Iyer acknowledged that the process had taken longer than desired, but found no significant prejudice resulting from the delay. Citing Blencoe v. British Columbia (Human Rights Commission), the Court held that delay alone, without demonstrable impact on fairness, does not constitute procedural unfairness.
The Court ultimately upheld the Tribunal’s original decision and the chambers judge’s findings, dismissing the appeal. There was no order for costs.
For more information, see Skerry v. British Columbia (Human Rights Tribunal), 2024 BCCA 345 (CanLII).
