A court upheld the Human Rights Tribunal’s decision to dismiss portions of the petitioner’s complaint on the basis that it was late filed and the alleged facts in relation to those portions could not form part of a continuing contravention. 

Hanlon v. North Vancouver (City), [2017] B.C.J. No. 1799, 2017 BCSC 1607, British Columbia Supreme Court, September 11, 2017, N.H. Smith J.

The petitioner alleged discrimination on the basis of mental disability in a complaint to the Human Rights Tribunal (the “Tribunal”) against the City of North Vancouver (the “City”). He was a firefighter for the City who was notified that he was suspended from work for three weeks, demoted from the rank of Captain for 12 months and was required to attend an anger management course and coaching program.

The Tribunal summarily dismissed portions of the complaint because the alleged conduct fell outside the six month limitation period in the Human Rights Code, RSBC 1996, c.210 (the “Code”). The Tribunal held that only the portions of the complaint that had occurred within the six months before filing could be accepted for filing, and the merits of the complaint were not addressed.

The Tribunal held that the first three complaints were late and not sufficiently connected to the later alleged events to be considered part of a continuing alleged contravention, noting that a continuing contravention requires a succession or repetition of separate acts of discrimination of the same character. The Tribunal found that the first three complaints did not disclose incidents that could, if proven, contravene the Code because the City was not made aware that the petitioner had a disability that required accommodation.

The Court confirmed that a decision of the Tribunal under s. 22 of the Code on the timeliness of the complaint, and whether it discloses a continuing contravention, is a discretionary one that is part of the Tribunal’s “gatekeeping function”, which attracts “the highest degree of curial deference” (at para. 17). The Court noted that before the Tribunal can exercise its discretion, it must identify the appropriate legal test to be applied, and this decision is reviewable on a standard of correctness.

The petitioner argued that the Tribunal improperly conflated the arguable contravention test in s.27(1)(b) (the acts or omissions alleged in the complaint or that parts of the complaint do not contravene this Code) with the test in s.27(1)(c) (there is no reasonable prospect that the complaint will succeed). However, the Court held that the petitioner invited the Tribunal to do this by the manner in which he completed his complaint, as he had appended to his complaint a 27 page narrative which was later expanded to a 43 page amended complaint that set out the alleged facts in such detail that it could only be interpreted as including a summary of the evidence in support of those allegations. From the information provided by the petitioner with his complaint, the court found that the Tribunal’s decision could be characterized as a finding that facts had not been alleged to establish that the City should have known about a disability, or a finding that the complaint had no prospect of success. In either case, the result would be the same: there could be no conduct by the City forming part of continuing contravention. The Court held that the decision fell squarely within the Tribunal’s discretionary power and upheld the Tribunal’s decision.