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Administrative Law – Human Rights –
Tribunal Jurisdiction
This decision addressed the jurisdiction of the British Columbia
Human Rights Tribunal ("BCHRT") to
consider an application regarding a Workers Compensation Board
("WCB") policy, when the substance of
the application had already been heard by a WCB Review Officer, who
had considered the policy and determined that it adhered to the
B.C. Human Rights Code. The respondents could have applied
for judicial review of the decision but instead decided to
re-litigate the matter at the BCHRT.
The WCB sought to dismiss the application pursuant to s.
27(1)(f) of the Code, which allows the BCHRT to dismiss an
application if it had been appropriately dealt with in another
proceeding. The BCHRT dismissed the motion, applying the issue
estoppel analysis set out in Danyluk v Ainsworth Technologies
Inc. The BCHRT decision was overturned on judicial review, but
restored by the Court of Appeal.
The Supreme Court split five to four, but both decisions allowed
the appeal and held that the BCHRT's decision to permit the
application was patently unreasonable.
Justice Abella, writing for the majority, emphasized that the
principles underlying s. 27(1)(f) are respect for the finality and
integrity of other administrative processes, the importance of
respecting available appeal and review mechanisms, avoiding
needless re-litigation, and preventing forum shopping. She
emphasized that in applying s. 27(1)(f) the BCHRT should consider
the existence of concurrent jurisdiction to consider the
Code if the matters at issue are the same, and if there
was an opportunity to address these issues in some form. The
majority concluded that s. 27(1)(f) did not permit the BCHRT to
engage in a form of judicial review and that the provision was
meant to create "territorial respect" towards other
tribunals.
The majority noted that this narrow reading was supported by the
placement of s. 27(1)(f) among types of proceedings that ought to
be dismissed and by its legislative history.
The majority found that the BCHRT's consideration of a
number of irrelevant or inappropriate factors, such as the merits
of the Officer's decision, the procedure used, and the
expertise of the Officer, meant that its decision was patently
unreasonable. The majority also noted that a strict application of
Danyluk in this context undermined the concurrent
jurisdiction of the WCB over the Code.
The majority dismissed the BCHRT application.
Justice Cromwell's concurring decision took a broad view of
the discretion provided to the BCHRT under s. 27(1)(f). He noted
that the WCB's jurisdiction over the Code had evolved
over time and the Officer's jurisdiction to consider the
Code was uncertain, indicating the difficulty in simply
applying finality principles to parallel administrative
proceedings. He disagreed with the majority's assessment of the
statutory context as a factor that favoured a narrow reading of the
provision. Instead he held that legislative history and other
factors indicated that the s. 27(1)(f) discretion ought to be
broad, and it permits the BCHRT to consider a broad range of
factors in deciding whether or not to dismiss an application,
including the merits of the decision and if the proceedings were
conducted fairly.
Justice Cromwell found, however, that the BCHRT decision turned
on an improper consideration of whether the Officer was
sufficiently independent, failed to consider the availability of
Judicial Review, and failed to consider if the Officer had
addressed the substance of the application. Justice Cromwell
concluded, therefore, that the BCHRT's assessment of s.
27(1)(f) was patently unreasonable as it failed to give weight to
the principles of finality and instead improperly engaged in a
strict application of Danyluk. Due to these errors he
would have remitted the matter back to the BCHRT for
reconsideration.
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