Accommodation
The process of making changes to a workplace or service to reduce barriers. Accommodations help ensure that people have equal access to services and equal opportunities in employment.
Also refers to hotels and bed and breakfasts, which must provide accommodations without discrimination under section 8 of the Human Rights Code.
Adverse Effect Discrimination
When a rule, policy or practice applies to everyone but negatively impacts some people based on their protected characteristic(s).
Adverse Impact
The negative impact the respondent’s conduct had on the complainant.
Affidavit
A sworn written statement containing information about a case. An affidavit should only contain facts that the person swearing it knows to be true. It should not contain opinion or argument.
Allegations
The things the complainant claims the respondent did that were discriminatory.
Application to Dismiss
Section 27 of the BC Human Rights Code sets out reasons a complaint may be dismissed without a hearing. A respondent can apply under this section to dismiss a part or the whole of a complaint. If the Tribunal allows the application to dismiss, then the complaint will not proceed. If the Tribunal denies the application to dismiss, then the complaint can proceed to a hearing.
BC Court of Appeal
The highest court in the province. It hears appeals from decisions of the BC Supreme Court. It is located in Vancouver.
BC Human Rights Code
A law that promotes equality and protects people from discrimination.
The Human Rights Code also creates two bodies: the BC Human Rights Tribunal and the Office of the Human Rights Commissioner for BC.
BC Human Rights Tribunal
The body that receives, hears, and decides human rights complaints under the BC Human Rights Code. It is an administrative tribunal that functions like a court, but with less formality. Its decisions are final and binding.
BC Supreme Court
A trial court in British Columbia. A party who believes the Human Rights Tribunal made an error in their case can seek judicial review of the Tribunal’s decision in BC Supreme Court. There are many BC Supreme Court locations around the province.
Bona fide
A Latin term meaning “in good faith”.
Bona fide Occupational Requirement
An employer’s defence against a discrimination complaint. An employer whose rule, policy, or practice negatively impacts someone due to a protected characteristic may be able to justify the rule, policy, or practice by showing that it is a Bona fideoccupational requirement. They will have to show:
- They acted for a legitimate reason.
- They acted honestly and did not intend to discriminate.
- They took all reasonable steps to avoid harmful or negative effects on the complainant. This is called the duty to accommodate.
Bona Fide Reasonable Justification
A defence against a discrimination complaint. A service provider or landlord whose rule, policy, or practice negatively impacts someone due to a protected characteristic may be able to justify the rule, policy, or practice by showing that they have a Bona fide reasonable justification for the requirement. They will have to show:
- They acted for a legitimate reason.
- They acted honestly and did not intend to discriminate.
- They took all reasonable steps to avoid harmful or negative effects on the complainant. This is called the duty to accommodate.
Burden of proof
A party’s responsibility to prove each part of their case. A complainant has the burden of proving the complainant’s case (also known as prima facie discrimination). If the complainant proves their case, the respondent has the burden of proving the treatment was justified as a Bona fide occupational requirement or they have a Bona fide reasonable justification.
Canadian Human Rights Commission
The body that receives complaints of discrimination involving federally regulated areas, including banks, airlines, and telecommunications, and inter-provincial transportation.
Case Conference
A meeting between the parties to a human rights complaint and a representative of the Human Rights Tribunal. These are often held to set hearing dates and other deadlines.
Class of persons
A group of people who share one or more protected characteristic who claim to have experienced similar discrimination.
Collective Agreement
A written contract that sets out the rights and duties of members of a union and their employer.
Complainant
A person, group, or organization who has made a complaint of discrimination to the BC Human Rights Tribunal.
Complainant’s Case (also known as prima facie discrimination)
To succeed in a human rights complaint, the complainant must prove three things:
- They have a protected characteristic;
- They experienced a negative impact in a protected area; and
- Their protected characteristic was a factor in the negative impact they experienced. This is called the “nexus” between the protected characteristic and the negative impact.
Complaint
The written document explaining the discrimination. It is filed with the Human Rights Tribunal. If the Tribunal accepts the complaint for filing, then it will go through the different stages of the Tribunal process.
Confidential
Private information that must not be shared with anyone else. For instance, information discussed at a settlement meeting is confidential and cannot be brought up at the hearing.
Continuing Contravention
Repeated and similar acts of discrimination. As long as one discriminatory act happened within the Tribunal’s one-year limitation period and the gaps between the acts are not too long, the Tribunal may accept the acts that happened outside the one-year limitation period as part of the complaint because they are part of a continuing contravention of the Human Rights Code.
Defence
If a complainant proves the complainant’s case of discrimination, the respondent can defend their actions. There are two defences available to respondents depending on the protected area where the discrimination occurred:
- Bona fide occupational requirement defence (employment)
- Bona fide reasonable justification defence (a protected ground other than employment)
In both cases, the respondent will have to prove they accommodated the complainant to the point of undue hardship.
Disclosure
The process of exchanging documents with the other party. All documents relevant to the case must be disclosed. Examples include doctor’s notes, text messages, or pay stubs.
At the Human Rights Tribunal, disclosure occurs after the respondents have filed their response to the complaint.
Discrimination
When a person is treated or impacted differently than others due to a protected characteristic, in a way that creates a disadvantage.
Duty to Accommodate
Under the Human Rights Code, employers, unions, landlords and service providers have a duty to accommodate people’s protected characteristics, to the point of undue hardship. This may mean making changes to a workplace or service to reduce barriers.
The duty to accommodate most often arises in respect of people’s disabilities. Other protected characteristics, such as sex or family status (e.g., breastfeeding or childcare obligations), may also give rise to a duty to accommodate.
Enforce an order
If the complainant is successful in proving their human rights complaint, the Tribunal will order the respondent to provide a remedy (usually compensation or other measures). If the respondent does not comply with the Tribunal’s order, the complainant can ask the BC Supreme Court to enforce the order.
Evidence
Information a party can use to prove their case. Evidence can include documents and witness testimony. The Tribunal has broad discretion to accept any evidence it considers necessary and appropriate.
Exemption
Section 41 of the BC Human Rights Code says that certain non-profit groups that work to promote the interests and welfare of a particular group of people are not violating the Code when they give a preference to members of that group.
Factor
For the complainant’s case to succeed, the complainant’s protected characteristic must be a factor (at least a part of the reason) for the negative impact they experienced. It does not need to be the only factor.
File/Filing
Filling out and submitting a complaint, response, or application to the Human Rights Tribunal.
Group Complaints
Complaints that are made with two or more people as the complainants.
Hearing
When all parties and their representatives attend the Human Rights Tribunal to present their evidence. The tribunal member who hears the case will make a decision after the hearing. Hearings are generally open to the public. Tribunal decisions are also public.
Injury to Dignity Award
A monetary remedy for discrimination. The amount awarded by the Tribunal is meant to recognize the negative effects the discrimination had on the complainant. The award is not meant as a punishment for the respondent. It is meant to compensate the complainant for the harm they have suffered due to the discrimination.
Interchangeability of the workforce
A factor when deciding whether an employer of an employee who needs accommodation has fulfilled their duty to accommodate to the point of undue hardship. It considers whether an employer can relocate the employee to another position to accommodate their needs.
Interpreter
A person who can translate either oral or written language so a person can understand what is being said and can communicate with others. The Tribunal can provide interpreters in multiple languages, including American Sign Language.
Jurisdiction
Whether a court or tribunal is allowed to make decisions in an area of law. The BC Human Rights Tribunal has jurisdiction over complaints of discrimination occurring in BC and in provincially regulated areas. If the discrimination occurred in an area of federal responsibility (e.g., airlines, banks, inter-provincial transport), the BC Human Rights Tribunal does not have jurisdiction. In those cases, the complaint must be made to the Canadian Human Rights Commission, which has jurisdiction over federally regulated areas.
Judicial Review
If a party believes that the Human Rights Tribunal made a mistake in their decision, they can ask the BC Supreme Court to review the decision and correct it through a judicial review.
Limitation period
The period of time a person has to file a complaint about discrimination. In British Columbia, the limitation period for a human rights complaint is 12 months.
Mediator
A neutral person who will help guide settlement negotiations between the complainant, the respondent, and their representatives at a settlement meeting.
In some cases, the mediator can be a member of the Human Rights Tribunal, but they will not be the member making the final decision at the hearing.
Negotiation
A process where the complainant and respondent try to settle a complaint by reaching an agreement. In the human rights process, parties can negotiate and settle the complaint at any point. The Tribunal can provide a mediator to help the parties reach a resolution.
Nexus
Refers to the connection between the complainant’s protected characteristic and the negative impact they experienced. This is the third part of the complainant’s case. A complainant must show that their protected characteristic was a factor in the negative impact they experienced.
Order
If a complainant is successful at a hearing, the Tribunal will usually make an order that the respondent must provide the complainant with a remedy. The Tribunal can also make other orders to ensure a fair and efficient process.
Policy
Rules or processes put in place by a government, business, union, or employer that people are expected to follow.
For instance, many workplaces have anti-harassment policies. These policies explain what employees should do if they are being harassed, and how management should respond if a report is made.
prima facie Discrimination
SEE Complainant’s Case
Protected Areas
The Human Rights Code protects people from discrimination in six areas:
- Employment
- Tenancy
- Services, facilities, and accommodations
- Unions, employers’ organizations, and occupational associations
- Purchase of property
- Publications
For the BC Human Rights Tribunal to have jurisdiction over a complaint, it must have occurred in a protected area.
Protected Characteristics/Prohibited Grounds of Discrimination
The Human Rights Code sets out specific traits that cannot be a reason to discriminate against someone. They include:
- Indigenous Identity
- Race
- Colour
- Ancestry
- Place of Origin
- Age
- Religion
- Marital Status
- Family Status
- Physical or Mental Disability
- Sex
- Sexual Orientation
- Gender Identity or Expression
- Lawful source of income (tenancy only)
- Political belief (employment, unions and professional associations only)
- Unrelated criminal conviction (employment, unions and professional associations only)
To succeed in their case, the complainant must prove that they have one or more protected characteristic(s). This is the first part of the complainant’s case.
Publication
Publicly shared written content such as a newspaper, poster or pamphlet. Section 7 of the BC Human Rights Code prohibits discriminatory publications and publications likely to expose a person or group of people to hatred or contempt.
Reasonable Accommodation
Employers, landlords and service providers are expected to provide reasonable accommodation to people with disabilities and other protected characteristics. A reasonable accommodation is one that meets the person’s Code-protected needs but does not cause the employer, landlord, or service provider an undue hardship. Whether an accommodation is reasonable will depend on the facts of the situation.
Remedy
An order the tribunal makes after a hearing to address the discrimination.
Remedies can include an order to stop the discriminatory conduct, a declaration that the conduct was discriminatory, an award (money) to compensate the complainant for any injury to dignity, loss of financial income, repayment for costs that resulted because of the discrimination, or other measures to prevent the discrimination from happening again.
Respondent
The person or organization (e.g., a business) alleged in a complaint to have discriminated.
Response
The form filed by the respondent explaining their perspective on the allegations in the complaint.
Retaliation
Section 43 of the Human Rights Code protects people from punishment for filing a complaint or helping someone with a complaint. A person who is treated badly because they were involved in a human rights complaint can file a retaliation complaint with the Tribunal and seek a remedy.
Screening
The Tribunal process for making sure a complaint is within their jurisdiction and is something they can address. The Tribunal may accept a complaint for filing, reject the complaint, or ask the complainant to provide more information.
Settlement Agreement
A contract both parties agree to that sets out how they agree to resolve the complaint.
Settlement Meeting
An attempt by the parties to negotiate and come to an agreement about the complaint. Settlement meetings are voluntary and allow the parties to reach a resolution without a hearing. The Tribunal can provide a mediator to help the parties negotiate and find a resolution.
Services and Facilities
A broad protected area under section 8 of the Human Rights Code that includes businesses, stores, restaurants, schools, community centres, police services, government programs, and services provided by a strata. It refers to areas where services are generally provided to the public.
Submissions
Oral or written arguments that the parties give to the Tribunal to help the Tribunal decide the case. They usually contain a summary of the facts, the issues in the case, legal argument, and what remedy the party is asking for.
Supreme Court of Canada
The highest court and final court of appeal in Canada. It reviews legal issues of public importance. It hears appeals of cases after they are heard by provincial appeal courts such as the BC Court of Appeal. The Supreme Court of Canada is located in Ottawa, Ontario.
Systemic Discrimination
Patterns of behaviour, policies, or practices in an organization that create disadvantage for people based on their protected characteristic(s). Discrimination can be systemic to an organization, a business, or even a whole country.
Undue Hardship
The standard to measure how far the respondent must go to meet their duty to accommodate. An employer, landlord or service provider must accommodate to the point of undue hardship. Where the point of undue hardship lies depends on the circumstances. The cost of the accommodations, safety issues, and the nature of the employer’s business and operations can all help determine the point of undue hardship.
Without prejudice
Communications that are “without prejudice” generally must be kept confidential and cannot be used by either party later on. Most settlement discussions are “without prejudice” to allow the parties to negotiate freely without fear that their statements or positions will be used against them at a hearing if the negotiations do not result in settlement.
Witnesses
Someone who can provide evidence to support a party’s case because they were there when something happened, or heard or saw something that could support the party’s argument.