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[Current to B.C. Regulations Bulletin
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Contents |
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Section |
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Powers to make rules and orders respecting practice and procedure |
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1 In this Code:
"age" means an age of 19 years or more and less than 65 years;
"chair" means the member designated under section 31 (2) as the chair of the tribunal;
"collective agreement" means a collective agreement as defined in the Labour Relations Code;
"complainant" means a person or group of persons that files a complaint under section 21;
"complaint" means a complaint filed under section 21;
"discrimination" includes the conduct described in section 7, 8 (1) (a), 9 (a) or (b), 10 (1) (a), 11, 13 (1) (a) or (2), 14 (a) or (b) or 43;
"employers' organization" means an organization of employers formed for purposes that include the regulation of relations between employers and employees;
"employment" includes the relationship of master and servant, master and apprentice and principal and agent, if a substantial part of the agent's services relate to the affairs of one principal, and "employ" has a corresponding meaning;
"employment agency" includes a person who undertakes, with or without compensation, to procure employees for employers or to procure employment for persons;
"intervenor" means a person allowed under section 22.1 to intervene in a complaint;
"member" means a person appointed under section 31 (1) as a member of the tribunal;
"occupational association" means an organization, other than a trade union or employers' organization, in which membership is a prerequisite to carrying on a trade, occupation or profession;
"panel" means a panel designated under section 27.1 (1) (b);
"party", with respect to a complaint, means the complainant and the person against whom the complaint is made and any person that the tribunal adds as a party;
"person" includes an employer, an employment agency, an employers' organization, an occupational association and a trade union;
"trade union" means an organization of employees formed for purposes that include the regulation of relations between employees and employers;
"tribunal" means the British Columbia Human Rights Tribunal established under section 31.
2 Discrimination in contravention of this Code does not require an intention to contravene this Code.
3 The purposes of this Code are as follows:
(a) to foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia;
(b) to promote a climate of understanding and mutual respect where all are equal in dignity and rights;
(c) to prevent discrimination prohibited by this Code;
(d) to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by this Code;
(e) to provide a means of redress for those persons who are discriminated against contrary to this Code.
(f) and (g) [Repealed 2002-62-2.]
4 If there is a conflict between this Code and any other enactment, this Code prevails.
5 The minister is responsible for developing and conducting a program of public education and information designed to promote an understanding of this Code.
6 The minister may
(a) conduct or encourage research into matters relevant to this Code, and
(b) carry out consultations relevant to this Code.
7 (1) A person must not publish, issue or display, or cause to be published, issued or displayed, any statement, publication, notice, sign, symbol, emblem or other representation that
(a) indicates discrimination or an intention to discriminate against a person or a group or class of persons, or
(b) is likely to expose a person or a group or class of persons to hatred or contempt
because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or that group or class of persons.
(2) Subsection (1) does not apply to a private communication or to a communication intended to be private.
8 (1) A person must not, without a bona fide and reasonable justification,
(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or
(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public
because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex or sexual orientation of that person or class of persons.
(2) A person does not contravene this section by discriminating
(a) on the basis of sex, if the discrimination relates to the maintenance of public decency or to the determination of premiums or benefits under contracts of life or health insurance, or
(b) on the basis of physical or mental disability, if the discrimination relates to the determination of premiums or benefits under contracts of life or health insurance.
9 A person must not
(a) deny to a person or class of persons the opportunity to purchase a commercial unit or dwelling unit that is in any way represented as being available for sale,
(b) deny to a person or class of persons the opportunity to acquire land or an interest in land, or
(c) discriminate against a person or class of persons regarding a term or condition of the purchase or other acquisition of a commercial unit, dwelling unit, land or interest in land
because of the race, colour, ancestry, place of origin, religion, marital status, physical or mental disability, sexual orientation or sex of that person or class of persons.
10 (1) A person must not
(a) deny to a person or class of persons the right to occupy, as a tenant, space that is represented as being available for occupancy by a tenant, or
(b) discriminate against a person or class of persons regarding a term or condition of the tenancy of the space,
because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, age or lawful source of income of that person or class of persons, or of any other person or class of persons.
(2) Subsection (1) does not apply in the following circumstances:
(a) if the space is to be occupied by another person who is to share, with the person making the representation, the use of any sleeping, bathroom or cooking facilities in the space;
(b) as it relates to family status or age,
(i) if the space is a rental unit in residential premises in which every rental unit is reserved for rental to a person who has reached 55 years of age or to 2 or more persons, at least one of whom has reached 55 years of age, or
(ii) a rental unit in a prescribed class of residential premises;
(c) as it relates to physical or mental disability, if
(i) the space is a rental unit in residential premises,
(ii) the rental unit and the residential premises of which the rental unit forms part,
(A) are designed to accommodate persons with disabilities, and
(B) conform to the prescribed standards, and
(iii) the rental unit is offered for rent exclusively to a person with a disability or to 2 or more persons, at least one of whom has a physical or mental disability.
11 A person must not publish or cause to be published an advertisement in connection with employment or prospective employment that expresses a limitation, specification or preference as to race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age unless the limitation, specification or preference is based on a bona fide occupational requirement.
12 (1) An employer must not discriminate between employees by employing an employee of one sex for work at a rate of pay that is less than the rate of pay at which an employee of the other sex is employed by that employer for similar or substantially similar work.
(2) For the purposes of subsection (1), the concept of skill, effort and responsibility must, subject to factors in respect of pay rates such as seniority systems, merit systems and systems that measure earnings by quantity or quality of production, be used to determine what is similar or substantially similar work.
(3) A difference in the rate of pay between employees of different sexes based on a factor other than sex does not constitute a failure to comply with this section if the factor on which the difference is based would reasonably justify the difference.
(4) An employer must not reduce the rate of pay of an employee in order to comply with this section.
(5) If an employee is paid less than the rate of pay to which the employee is entitled under this section, the employee is entitled to recover from the employer, by action, the difference between the amount paid and the amount to which the employee is entitled, together with the costs, but
(a) the action must be commenced no later than 12 months from the termination of the employee's services, and
(b) the action applies only to wages of an employee during the 12 month period immediately before the earlier of the date of the employee's termination or the commencement of the action.
13 (1) A person must not
(a) refuse to employ or refuse to continue to employ a person, or
(b) discriminate against a person regarding employment or any term or condition of employment
because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.
(2) An employment agency must not refuse to refer a person for employment for any reason mentioned in subsection (1).
(3) Subsection (1) does not apply
(a) as it relates to age, to a bona fide scheme based on seniority, or
(b) as it relates to marital status, physical or mental disability, sex or age, to the operation of a bona fide retirement, superannuation or pension plan or to a bona fide group or employee insurance plan.
(4) Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.
14 A trade union, employers' organization or occupational association must not
(a) exclude any person from membership,
(b) expel or suspend any member, or
(c) discriminate against any person or member
because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or member, or because that person or member has been convicted of a criminal or summary conviction offence that is unrelated to the membership or intended membership.
15 to 20 [Repealed 2002-62-5.]
21 (1) Any person or group of persons that alleges that a person has contravened this Code may file a complaint with the tribunal in a form satisfactory to the tribunal.
(2) and (3) [Repealed 2002-62-7.]
(4) Subject to subsection (5), a complaint under subsection (1) may be filed on behalf of
(a) another person, or
(b) a group or class of persons whether or not the person filing the complaint is a member of that group or class.
(5) A member or panel may refuse to accept, for filing under subsection (1), a complaint made on behalf of another person or a group or class of persons if that member or panel is satisfied that
(a) the person alleged to have been discriminated against does not wish to proceed with the complaint, or
(b) proceeding with the complaint is not in the interest of the group or class on behalf of which the complaint is made.
(6) A member or panel may proceed with 2 or more complaints together if a member or panel is satisfied that it is fair and reasonable in the circumstances to do so.
22 (1) A complaint must be filed within 6 months of the alleged contravention.
(2) If a continuing contravention is alleged in a complaint, the complaint must be filed within 6 months of the last alleged instance of the contravention.
(3) If a complaint is filed after the expiration of the time limit referred to in subsection (1) or (2), a member or panel may accept all or part of the complaint if the member or panel determines that
(a) it is in the public interest to accept the complaint, and
(b) no substantial prejudice will result to any person because of the delay.
22.1 A member or panel may, at any time after the complaint is filed and on the terms specified by the member or panel, allow any person or group of persons to intervene in the complaint, whether or not that person or group would be affected by an order made by the member or panel under section 37.
23 and 24 [Repealed 2002-62-10.]
25 (1) In this section and in section 27, "proceeding" includes a proceeding authorized by another Act and a grievance under a collective agreement.
(2) If at any time after a complaint is filed a member or panel determines that another proceeding is capable of appropriately dealing with the substance of a complaint, the member or panel may defer further consideration of the complaint until the outcome of the other proceeding.
(3) [Repealed 2002-62-11.]
26 [Repealed 2002-62-12.]
27 (1) A member or panel may, at any time after a complaint is filed and with or without a hearing, dismiss all or part of the complaint if that member or panel determines that any of the following apply:
(a) the complaint or that part of the complaint is not within the jurisdiction of the tribunal;
(b) the acts or omissions alleged in the complaint or that part of the complaint do not contravene this Code;
(c) there is no reasonable prospect that the complaint will succeed;
(d) proceeding with the complaint or that part of the complaint would not
(i) benefit the person, group or class alleged to have been discriminated against, or
(ii) further the purposes of this Code;
(e) the complaint or that part of the complaint was filed for improper motives or made in bad faith;
(f) the substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding;
(g) the contravention alleged in the complaint or that part of the complaint occurred more than 6 months before the complaint was filed unless the complaint or that part of the complaint was accepted under section 22 (3).
(2) If a member or panel dismisses a complaint or part of a complaint under subsection (1), that member or panel must inform the following persons of the decision in writing and give reasons for the decision:
(a) the complainant;
(b) the person against whom the complaint was made, if that person had been given notice of the complaint;
(c) any other party;
(d) an intervenor.
27.1 (1) For the purposes of making a decision or order in respect of a complaint, the chair may assign the complaint to
(a) a single member designated by the chair, or
(b) a panel of 3 members designated by the chair.
(2) If a panel is designated under subsection (1) (b), the chair must designate one of the members of the panel to preside.
(3) A member who resigns or whose appointment to the tribunal terminates may continue to act as a member in a hearing that has begun until an order is made under section 37 regarding the complaint.
27.2 (1) A member or panel may receive and accept on oath, by affidavit or otherwise, evidence and information that the member or panel considers necessary and appropriate, whether or not the evidence or information would be admissible in a court of law.
(2) Nothing is admissible in evidence before a member or panel that is inadmissible in a court because of a privilege under the law of evidence.
(3) Despite section 4, subsection (1) of this section does not override an Act expressly limiting the extent to which or purposes for which evidence may be admitted or used in any proceeding.
(4) A member or panel may direct that all or part of the evidence of a witness be heard in private.
27.3 (1) The tribunal may make rules respecting practice and procedure to facilitate just and timely resolution of complaints.
(2) Without limiting subsection (1), the tribunal may make rules as follows:
(a) respecting the holding of prehearing conferences and requiring the parties to attend a prehearing conference in order to discuss issues relating to a complaint and the possibility of simplifying or disposing of issues;
(b) respecting disclosure of evidence, including but not limited to prehearing disclosure and prehearing examination of a party on oath or solemn affirmation or by affidavit;
(c) specifying the form of notice to be given to a party by another party or by the tribunal requiring a party to diligently pursue a complaint and specifying the time within which and the manner in which the party must respond to the notice;
(d) respecting service of notices and orders, including substituted service;
(e) requiring a party or an intervenor to provide an address for service or delivery of notices and orders;
(f) providing that a party’s or an intervenor’s address of record is to be treated as an address for service;
(g) respecting procedures for matters under sections 22, 25 and 27;
(h) respecting mediation and other dispute resolution processes, including, without limitation, rules that would permit or require mediation of a complaint, whether the mediation is provided by a member or by a person appointed, engaged or retained under section 33;
(i) respecting procedures for formal offers to settle a complaint;
(j) respecting the amendment of a complaint or a response to a complaint;
(k) respecting the addition of parties to a complaint;
(l) respecting applications under section 42 (3).
(3) In order to facilitate the just and timely resolution of a complaint, a member or panel, on their own initiative or on application of a party or an intervenor, may make any order for which a rule could be made under subsection (1) or (2).
27.4 If a complainant withdraws their complaint or a member or panel is informed by the parties that they have settled a complaint, the member or panel must order that the complaint is discontinued.
27.5 If, under the rules, a party has been given notice requiring the party to diligently pursue a complaint and the party fails to act on the notice within the time allowed, then on the request of another party or on its own initiative, a member or panel may dismiss the complaint.
27.6 A member or a person appointed, engaged or retained under section 33 may assist the parties to a complaint, through mediation or any other dispute resolution process, to achieve a settlement.
28 and 29 [Repealed 2002-62-12.]
30 (1) If there has been a breach of the terms of a settlement agreement, a party to the settlement agreement may apply to the Supreme Court to enforce the settlement agreement to the extent that the terms of the settlement agreement could have been ordered by the tribunal.
(2) The right to enforce a settlement agreement under subsection (1) cannot be waived.
(3) A provision of a settlement agreement that purports to waive the right to enforce the agreement under subsection (1) is void.
31 (1) The British Columbia Human Rights Tribunal is established consisting of the members appointed by the Lieutenant Governor in Council.
(2) The Lieutenant Governor in Council must designate one of the members as chair of the tribunal.
(3) Subject to subsection (4), members appointed under subsection (1) hold office for a term of up to 5 years.
(4) If a member is absent or incapacitated the Lieutenant Governor in Council may appoint a temporary substitute member to act during the absence or incapacity.
(5) [Repealed 2002-62-14.]
31.1 The chair is responsible for the management of the tribunal and the direction of its work, including the allocation of work among the members.
32 (1) A member who is not an employee under the Public Service Act may be paid the remuneration set by the Lieutenant Governor in Council.
(2) A member is to be reimbursed for reasonable travelling and out of pocket expenses necessarily incurred in discharging the member's duties.
33 (1) Employees necessary to carry out the powers and duties of the tribunal may be appointed under the Public Service Act.
(2) The tribunal may engage or retain consultants or specialists that the tribunal considers necessary to carry out the powers and duties of the tribunal and may determine their remuneration.
(3) The Public Service Act does not apply to the retention, remuneration or engagement of consultants or specialists under subsection (2).
34 [Repealed 2002-62-17.]
34.1 A member or panel has, for the purposes of this Code,
(a) the protection and privileges of a commissioner under section 12 of the Inquiry Act, and
(b) the powers of a commissioner under sections 15 and 16 of that Act.
35 and 36 [Repealed 2002-62-17.]
37 (1) If the member or panel designated to hear a complaint determines that the complaint is not justified, the member or panel must dismiss the complaint.
(2) If the member or panel determines that the complaint is justified, the member or panel
(a) must order the person that contravened this Code to cease the contravention and to refrain from committing the same or a similar contravention,
(b) may make a declaratory order that the conduct complained of, or similar conduct, is discrimination contrary to this Code,
(c) may order the person that contravened this Code to do one or both of the following:
(i) take steps, specified in the order, to ameliorate the effects of the discriminatory practice;
(ii) adopt and implement an employment equity program or other special program to ameliorate the conditions of disadvantaged individuals or groups if the evidence at the hearing indicates the person has engaged in a pattern or practice that contravenes this Code, and
(d) if the person discriminated against is a party to the complaint, or is an identifiable member of a group or class on behalf of which a complaint is filed, may order the person that contravened this Code to do one or more of the following:
(i) make available to the person discriminated against the right, opportunity or privilege that, in the opinion of the member or panel, the person was denied contrary to this Code;
(ii) compensate the person discriminated against for all, or a part the member or panel determines, of any wages or salary lost, or expenses incurred, by the contravention;
(iii) pay to the person discriminated against an amount that the member or panel considers appropriate to compensate that person for injury to dignity, feelings and self respect or to any of them.
(3) An order made under subsection (2) may require the person against whom the order is made to provide any person designated in the order with information respecting the implementation of the order.
(4) The member or panel may award costs
(a) against a party to a complaint who has engaged in improper conduct during the course of the complaint, and
(b) without limiting paragraph (a), against a party who contravenes a rule under section 27.3 (2) or an order under section 27.3 (3).
(5) A decision or order of a member or panel is a decision or order of the tribunal for the purposes of this Code.
(6) The member or panel must inform the parties and any intervenor in writing of the decision made under this section and give reasons for the decision.
38 (1) Until an order made under section 37 (2) (c) or (d) (i) has been fully implemented, any party or a person designated in the order may apply to the member or panel that made the order, or to a member or panel designated by the chair, for a modification of that order on the grounds that the order is no longer appropriate because of unforeseen circumstances.
(2) The member or panel may vary or rescind the order after determining that the order
(a) has not been fully implemented, and
(b) is no longer appropriate because of unforeseen circumstances.
(3) In varying an order under subsection (2), the member or panel may exercise any of the powers under section 37 (2) (a), (c) or (d).
38.1 [Repealed 2002-62-20.]
39 (1) If an order is made under section 37 (2) (a), (c) or (d) or (4) or 38 (2), the party in whose favour the order is made or a person designated in the order may file a certified copy of the order with the Supreme Court.
(2) An order filed under subsection (1) has the same force and effect, and all proceedings may be taken on it, as if it were a judgment of the Supreme Court.
39.1 (1) As soon as practicable after the end of the fiscal year of the government, the tribunal must submit to the minister an annual report on the activities of the tribunal.
(2) The minister must promptly lay the report before the Legislative Assembly if it is in session or, if it is not in session when the report is submitted, within 15 days after the beginning of the next session.
40 (1) A member or any person appointed, engaged or retained under section 33 must not be required in any proceedings or otherwise, except in a judicial review concerning a complaint,
(a) to give evidence, or
(b) to produce records
relating to information obtained or a communication received concerning a complaint.
(2) Any information received by any person in the course of attempting to reach a settlement of a complaint is confidential and may not be disclosed or admitted in evidence except with the consent of the person who gave the information.
(3) The Freedom of Information and Protection of Privacy Act, other than section 44 (2) and (3), does not apply to information referred to in subsection (2).
(4) Subsection (3) does not apply to personal information, as defined in the Freedom of Information and Protection of Privacy Act, that has been in existence for 100 or more years or to other information that has been in existence for 50 or more years.
41 If a charitable, philanthropic, educational, fraternal, religious or social organization or corporation that is not operated for profit has as a primary purpose the promotion of the interests and welfare of an identifiable group or class of persons characterized by a physical or mental disability or by a common race, religion, age, sex, marital status, political belief, colour, ancestry or place of origin, that organization or corporation must not be considered to be contravening this Code because it is granting a preference to members of the identifiable group or class of persons.
42 (1) It is not discrimination or a contravention of this Code to plan, advertise, adopt or implement an employment equity program that
(a) has as its objective the amelioration of conditions of disadvantaged individuals or groups who are disadvantaged because of race, colour, ancestry, place of origin, physical or mental disability, or sex, and
(b) achieves or is reasonably likely to achieve that objective.
(2) [Repealed 2002-62-23.]
(3) On application by any person, with or without notice to any other person, the chair, or a member or panel designated by the chair, may approve any program or activity that has as its objective the amelioration of conditions of disadvantaged individuals or groups.
(4) Any program or activity approved under subsection (3) is deemed not to be in contravention of this Code.
43 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, gives evidence or otherwise assists in a complaint or other proceeding under this Code.
44 (1) A proceeding under this Code in respect of a trade union, employers' organization or occupational association may be taken in its name.
(2) An act or thing done or omitted by an employee, officer, director, official or agent of any person within the scope of his or her authority is deemed to be an act or thing done or omitted by that person.
45 A proceeding under this Code is not invalid because of any defect in form or any technical irregularity.
46 (1) to (3) [Repealed 2002-62-24.]
(4) The chair may, in writing, delegate to one or more of the members any of the chair's powers or duties under this Code, except the power to delegate under this section.
(5) A delegation made under this section may be revoked, and does not prevent the person who delegated the power from exercising that power.
(6) A delegation may be made subject to any terms the person delegating considers appropriate.
(7) If the person who delegated the power ceases to hold office, the delegation continues in effect so long as the delegate continues in office or until the delegation is revoked by the person who succeeds the person who delegated the power.
(8) A person purporting to exercise a power because of a delegation made under this section must, when requested to do so, produce evidence of the person's authority to exercise the power.
47 Despite the fact that a period prescribed under section 49 (2) (b) has expired and the period has not been extended in accordance with the regulations, this Code continues to apply to the complaint to which the period relates, and
(a) all proceedings taken under this Code with respect to the complaint may continue, and
(b) all proceedings available under this Code with respect to the complaint may be taken.
48 Section 5 of the Offence Act does not apply to this Code or the regulations.
49 (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.
(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:
(a) prescribing the standards for the purposes of section 10;
(b) prescribing a period
(i) to (iv) [Repealed 2002-62-25.]
(v) within which a hearing must be begun, and
(vi) within which a decision and reasons must be provided under section 37 (6);
(c) authorizing a person to extend a period referred to in paragraph (b) and prescribing the circumstances in which the period may be extended;
(d) respecting the procedures to be followed before a period prescribed under paragraph (b) may be extended;
(e) providing for the suspension of a period prescribed under paragraph (b) where consideration of a complaint is deferred under section 25 (2);
(f) [Repealed 2002-62-25.]
(g) respecting the practice and procedure in hearings before the tribunal.
(h) [Repealed 2002-62-25.]
(3) A regulation made under subsection (2) (c) may permit a period to be extended despite the fact that the period has already expired.
(4) Without limiting subsection (2) (g), a regulation made under that subsection may include provisions respecting
(a) the disclosure and inspection of documents by parties to a complaint,
(b) the oral examination of parties and witnesses on oath or affirmation,
(c) the holding of prehearing conferences, and
(d) procedures for formal offers to settle a complaint.
50 [Repealed 2002-62-26.]
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