The BCHRT only hears complaints that it has jurisdiction over. Generally, jurisdiction is set according to the division of powers in sections 91 and 92 of the Constitution Act, 1867. This means that the BCHRT has jurisdiction over most things that happen within BC with some notable exceptions (such as federal agencies, banks, telecommunications, and indigenous bands/governance structures). The federal CHRC operates very similarly to the provincial BCHRT for issues within its jurisdiction, though there are some differences. See here for more info.

The Tribunal doesn’t accept all complaints. Rather complainants must apply to the Tribunal (via a form 1.1) to determine whether their complaint will be accepted. When considering whether to accept a complaint, the Tribunal considers whether (on the facts presented) the complaint has a reasonable chance of success of proving discrimination. There are 3 things that the tribunal considers with this: 1) Does the complaint have one of the protected characteristics laid out in the BC Human Rights Code (such as race, age, gender, sex, disability, etc.), or are they perceived to have one of these characteristics? 2) Did the complainant experience an adverse effect? 3) Was the protected characteristic a factor in the action which caused the adverse effect? The characteristic need not have been the primary reason for which the action took place – it need only have been a factor (see Moore v. British Columbia (Education), 2012 SCC 61 at para. 33). Additionally, there doesn’t need to be an intent to discriminate – the concern is the impact on the complainant. Importantly, however, the Tribunal doesn’t carry out investigations itself. It relies on information submitted to it by the parties, though it can call on the parties to provide more information.

A complainant must prove their case on a balance of probabilities. This means that they must show that it is more likely than not that the Code has been violated. This is a more relaxed threshold than criminal allegations, which must be proven beyond a reasonable doubt.

The BC Human Rights Code (BCHRC) sets out a 1-year time limit from the incident(s) in question for complaints to be submitted (s.22 of the Code). If the complaint involves ‘continuing contraventions’ then the 1-year time limit is calculated from the latest/most recent contravention. The Tribunal has discretion to hear complaints submitted more than one year after the discrimination occurred, but is unlikely to do so. When determining whether to make an exception for a late complaint, the Tribunal considers whether it is in the public interest to hear the complaint (i.e. whether the complaint involves a pressing or novel issue) and whether substantial prejudice will result to the respondent because of the delay (i.e. how late the complaint is, whether witness testimony can be reliable after time that has passed, unfairness to the respondent in thinking that the matter has been dealt with, etc.). The tribunal will also consider whether the delay was caused by something like a disability or harm(s) resulting from the discrimination, which could weigh in favour of hearing the complaint despite the time that has passed.

Once the Tribunal accepts a complaint, the respondent (party that the complainant alleges was responsible for the discriminatory behaviour) has an opportunity to respond. The respondent can also apply to dismiss the application, which would then give the complainant a chance to respond. After these opportunities for responses, the tribunal has a few options. They can dismiss the complaint if the complaint has “no reasonable chance of success,” move forward with a hearing, or try other dispute resolution processes such as mediation if the parties consent. The Tribunal encourages parties to reach a settlement before a hearing wherever possible, and facilitates mediation meetings when the parties are willing to participate.

The BCHRT isn’t meant to punish wrong-doers; rather it is meant to remedy discrimination. This remedial purpose shapes the Tribunal’s processes and remedies, and is the reason why the tribunal does not award punitive damages. Compensation can be awarded for things like lost wages or injury to dignity, feelings and self-respect, but even intent to discriminate will not result in punitive damages. The Tribunal rarely awards costs. The Tribunal can decide to award costs when one party engages in improper conduct that has a significant impact on the integrity of the Tribunal’s process or a significant prejudicial impact on the other party (s.37(4) of the Practice Rules and Procedures), but this is very rarely done.

If the complaint goes to a hearing and the Tribunal finds that there was discrimination, the respondent has a chance to justify their actions. In the case of employment this takes the form of the “Bona Fide Occupational Requirement”. Essentially, this means that the discriminatory action/policy/standard is necessary for that workplace. This involves 3 things: 1) The behaviour at issue must have been done for a legitimate reason; 2) It must have been done honestly and without intention to discriminate; 3) All reasonable steps must have been taken to avoid harmful or negative effects upon the claimant. If these 3 things can be shown, then the discriminatory action/policy can be justified.

In the context of service providers, the Bona Fide requirement is known as the “Bona Fide and Reasonable Justification.” It is very similar to the Meiorin 3-step test for employers, and was applied in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), (1999) S.C.R. 868 (commonly known as the Grismer case).

It is likely that various complaints relating to masking requirements during COVID will turn on whether mask requirements are a “Bona Fide and Reasonable Justification.” Given the way in which COVID-19 spreads through airborne particles, it seems likely that it would be. However this is uncertain, as no such cases have yet been decided by the BCHRT or any other HR bodies in Canada (to the best of my knowledge).

The Duty to Accommodate is a duty for respondents to (reasonably) accommodate persons with one or more characteristics protected by the BCHRC so that they do not experience adverse effects. There is no free-standing Duty to Accommodate– the duty only emerges when there is an adverse effect. The scope of this duty also varies, and the Tribunal’s analysis is very contextual. To satisfy the Duty to Accommodate, the respondent must show that it took all reasonable and practical steps to avoid the negative effect on the complainant. For example, if someone is blind, a shop-owner needs to take (reasonable) steps to provide the blind customer with the same opportunity to purchase goods as customers who are not blind.

Complainants are not entitled to perfect accommodation, only reasonable accommodation. Furthermore, complainants must co-operate with the respondent’s attempts to accommodate them (so long as the attempts being made are reasonable). If the complainant refuses reasonable efforts at accommodation, then the duty is considered to be discharged.

The Duty to Accommodate extends to the point of undue hardship. ‘Undue Hardship’ is not precisely defined, but rather involves a contextual analysis – it involves things like cost, the situation/physical layout, other legislation, industry norms/standards, etc. Cost alone, however, is rarely sufficient on its own to constitute undue hardship, especially in relation to disability. Essentially, the respondent must show that they made good faith, reasonable efforts to accommodate the complainant and their needs, and the only reason they were unable to do so is because further accommodations were not feasible.

S.41 of the BCHRC sets out various exemptions to the Code to allow for non-profit organizations to provide targeted supports to people who are marginalized. It is, in effect, protection from claims to the BCHRT on grounds of reverse discrimination. S.42 also allows for ‘special programs’ that aim to address inequities. S.42(1) allows for such programs in relation to employment (effectively affirmative action, though it can also target disability, sex, sexual orientation and/or gender), while s.42(3) allows for these special programs in other areas as well, so long as they have applied to the Commissioner for an exemption. Meanwhile s.41(2) protects legislated age limitations. Examples include things like 55+ living communities (allowed to discriminate and bar people who are under 55 from moving in) and age limits in pension plans.