By Sohrab Rezaei, Legal Advocate
Filing a human rights complaint can be daunting, especially when you’re concerned about potential backlash. Whether it’s against an employer, a landlord, or a service provider, many people worry that taking action could lead to losing their job, being evicted, or facing other forms of mistreatment. These concerns are understandable. But it’s important to know that section 43 of the BC Human Rights Code (“Code”) provides protection from retaliation:
A person must not evict, discharge, suspend, expel, intimidate, coerce, impose any pecuniary or other penalty on, deny a right or benefit to or otherwise discriminate against a person because that person complains or is named in a complaint, might complain or be named in a complaint, gives evidence, might give evidence or otherwise assists or might assist in a complaint or other proceeding under this Code.
This section makes it clear that it’s illegal for anyone to punish you for being involved in a human rights complaint. And if they do, it gives you the right to file a retaliation complaint against them.
What Does Retaliation Look Like?
While the term “retaliation” is commonly used, section 43 of the Code actually refers to “Protection.” The BC Human Rights Tribunal uses the term “retaliation” in their Form 1.4, which is the form you’d use to file a retaliation complaint. As the Tribunal explained in a case called Birchall v. BCS 61 Strata Corporation and another, 2018 BCHRT 29, the purpose of section 43 is to protect people in connection with human rights allegations, ensure that people who witness or experience discrimination can speak up without fear of consequence, and ensure people have meaningful access to a means of redress for discrimination.
Protection from retaliation isn’t limited to those who file complaints – it also includes those who might file complaints, as well as witnesses and supporters. If you provide evidence or assist someone with their complaint, you are protected. For instance, an employer cannot refuse to hire you because of your past involvement in a human rights complaint against a former employer. Similarly, a landlord cannot refuse rent to you because you helped someone else to file a complaint.
In a case called The Sales Associate v. Aurora Biomed Inc., 2021 BCHRT 5, the Tribunal explained that the protection applies where the retaliator is aware that a person might pursue some legal recourse for discrimination. It is not necessary to prove that the retaliator was specifically aware of the possibility of a human rights complaint to the Tribunal.
Retaliation can take many forms, some more obvious than others, which can make it difficult to prove. It’s not just about being fired or kicked out of your apartment – retaliation can be subtle but still harmful. Some examples include:
- At work, being passed over for promotions, demoted, or treated poorly because of your involvement in a coworker’s human rights complaint.
- A landlord delaying or denying repairs or negatively impacting your rights as a tenant to peace, quiet, and privacy because you filed a human rights complaint against them.
- Being treated differently or denied access to services you were entitled to because you raised the prospect of filing a human rights complaint.
Legal Test for Retaliation
It’s understandable to wonder, “How can I prove my case?” This is an important question to think about before you file a complaint. To succeed, you’ll need to show that the respondent knew about your involvement or potential involvement in a human rights complaint, they punished you in some way, and there was a connection between your involvement and the punishment. In Gichuru v. Pallai, 2018 BCCA 78, the BC Court of Appeal said that to establish a retaliation complaint, you must prove the following three elements on a balance of probabilities:
- The respondent (the person or entity you’re complaining against) was aware that that the complainant made or might make a complaint; was named or might be named in a complaint; gave evidence or might give evidence in a complaint; or otherwise assisted or might otherwise assist in a complaint;
- The respondent evicted, discharged, suspended, expelled, intimidated, coerced, imposed a penalty on, denied a right or benefit to, or otherwise adversely treated the complainant.
- There is a sufficient connection between the impugned conduct and the complainant’s involvement in a complaint or possible complaint. This connection may be established by proving that the respondent intended to retaliate, or may be inferred where the respondent can reasonably have been perceived to have engaged in that conduct in retaliation, with the element of reasonable perception being assessed from the point of view of a reasonable complainant, apprised of the facts, at the time of the impugned conduct.
Conclusion
Understanding your rights and protections is important for anyone involved in a human rights complaint. Section 43 of the Code provides crucial safeguards. Whether you’re filing a complaint, giving evidence, or assisting someone with their complaint, the law is on your side. You have the right to make a human rights complaint without fear of retribution. And you have the right to seek accountability by filing a retaliation complaint if someone does punish you for your involvement.
For more information on filing a complaint or seeking assistance, visit the BC Human Rights Tribunal’s website or book an appointment with our Short Service Clinic to speak with one of our lawyers or legal advocates who can guide you through the process.