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British Columbia (BC) Hydro's announcement that it is
installing wireless smart meters across the Province under a
statutory mandate has given rise to an unusual human rights
complaint, and a novel "class action" procedural
development.
A BC Human Rights Tribunal (BCHRT) member has permitted a
"citizens' group" to advance a complaint on behalf of
a proposed class of all BC persons diagnosed with electromagnetic
hypersensitivity (EHS) who were subsequently advised by a physician
to avoid wireless technology. The complaint alleges discrimination
based on physical disability contrary to the BC Human Rights
Code (Code) and seeks a declaration that BC Hydro improperly
discriminates, by failing to provide individual unconditional
written commitments that it will refrain from installing wireless
smart meters at any particular class member's place of
residence. An order is also requested that BC Hydro "cease and
desist" from the allegedly discriminatory conduct.
According to this decision, where a human rights complaint: (i)
alleges facts which if proven could amount to a Code breach; (ii)
defines a class with an apparent common issue; (iii) appears to be
in in the group interest; and (iv) is pursued by a representative
who proposes a method for keeping class members informed including
notified of the right to opt out, then a BCHRT member has a
discretion to permit the complaint to proceed on a class basis.
The BCHRT held that the complaint alleges: (i) a Code
breach based on disability; (ii) adverse treatment in respect of a
service customarily available to the public; and (iii) a connection
between the alleged disability and adverse treatment. The class is
defined as persons diagnosed with EHS who received some
contra‑indication for exposure to the technology due to its
alleged effect on their medical condition. Physician advice, not
particulars of an individual's medical condition, are said to
define class membership. According to the BCHRT member, it is not
necessary at this point in the proceeding to provide any medical
proof of disability.
Despite authorizing a class complaint, the BCHRT member stated
that there is no present obligation requiring group members to be
advised about their right to participate in or to opt out of the
class complaint.
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