The Canadian Abridgment eDigests - Constitutional Law and Human Rights

13 Pages·2017·0.04 MB·English

The Canadian Abridgment eDigests - Constitutional Law and Human Rights
The Canadian Abridgment eDigests -- Constitutional Law and Human Rights
2017-25
June 19, 2017
ABL.II.7.a
Subject Title: Aboriginal law
Classification Number: II.7.a
Reserves and real property -- Leases -- Reserve lands
Plaintiff leaseholders brought action for determination of "fair rent" to be paid annually by lessees of 69 lots in
housing development (M Park) located on Indian reserve, for 20-year period commencing June 8, 2015 --
According to relevant leases, annual "fair rent" for each lot was to be calculated at 6% of "current land value"
immediately before June 8, 2015 -- Supreme Court of Canada had held that nature of interest in land that was to
be valued in accordance with rent review provisions of M Park leases was that of hypothetical fee simple
interest -- Issue to be determined was value of fee simple interest in M Park lands in unimproved and
unserviced state as of June 7, 2015 -- It was determined that "current market value" of unimproved and
unserviced M Park land was $30,938,500 as of June 7, 2015; adjusted land values and "fair rent" calculation for
each lot was set out in table -- Evidence of plaintiffs’ expert, D, was preferred to that of N, who was expert for
defendant Indian Band -- D’s evidence as to value of M Park lands as of June 7, 2015, was generally accepted --
D arrived at hypothetical fee simple value of $26,550,000 for M Park lands in unimproved and unserviced state
-- In determining "current market value" of M Park lands in unimproved and unserviced state as of June 7,
2015, deductions had to be made for 2015 value of services and development costs that were provided by
developer when M Park was developed in 1960s -- It was only by deducting value of these services and
development costs from current value of property that one could notionally "return land to its unserviced
condition" -- No deduction was to be taken for $1,438,500 for "rain gardens", which were part of storm water
management systems, nor was there to be deduction of $2,950,000 in lieu of lands being dedicated for park --
"Current market value" of unimproved and unserviced M Park lands was $26,550,000+$2,950,000+$1,438,500,
or $30,938,500 as of June 7, 2015 -- Plaintiffs’ expert witnesses carried out their tasks in accordance with
instructions they were given, whereas court’s finding as to appropriateness of two deductions was based on
court’s interpretation of relevant agreements and jurisprudence, both being legal questions outside of expertise
of these witnesses.
Hodgson v. Musqueam Indian Band (2017), 2017 CarswellNat 2264, 2017 FC 509, Anne L. Mactavish J. (F.C.)
[Federal]
CNL.VII.8
Subject Title: Constitutional law
Classification Number: VII.8
Distribution of legislative powers -- Miscellaneous
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Defendant entered into series of student loan agreements with plaintiff Crown as represented by Minister of
National Revenue -- Defendant used loans to attend college of traditional Chinese medicine -- It turned out that
college in question had no authority to grant licences to practise traditional Chinese medicine -- College’s
accreditation was revoked by province in response to complaint by defendant and approximately $40,000 in
tuition was refunded to defendant -- Defendant failed to repay student loans and plaintiff brought action against
him -- Defendant took position that there was connection between Canada Student Financial Assistance Act and
British Columbia Private Career Training Institutes Agency (PCTIA) which was provincial regulatory body --
Defendant claimed that in light of revocation of college’s accreditation, Crown was negligent and he was
therefore not required to repay loans -- Plaintiff brought application to strike defendant’s defence -- Application
granted -- Canada Student Financial Assistance Act did not provide for federal government to play some kind
of accreditation role with respect to educational institutions -- Act was restricted to funding of student loans --
Any complaint against provincial body had to be subject of separate claim, perhaps against province, PCTIA, or
college itself -- Defendant’s claim that some form of oversight by federal government should be read into
province’s authority to designate post-secondary institutions as designated educational institutions was counter
to s. 93 of Constitution Act, 1867 which imparted responsibility for education to provinces.
Minister of National Revenue v. Harvey (2017), 2017 CarswellBC 1214, 2017 BCSC 760, Maisonville J., In
Chambers (B.C. S.C.) [British Columbia]
CNL.XI.3.b.ii
Subject Title: Constitutional law
Classification Number: XI.3.b.ii
Charter of Rights and Freedoms -- Nature of rights and freedoms -- Freedom of expression -- Activities
in public or quasi-public areas
Plaintiff health authority was responsible for hospital -- Defendant protesters demonstrated against abortions on
hospital property -- In one incident, protesters were in access road, which obstructed traffic and caused
ambulance to slow down or stop -- Protester invoked freedom of expression, religion and assembly under
Canadian Charter of Rights and Freedoms -- Health authority brought action for permanent injunction
prohibiting protesters from occupying and moving about hospital premises for purposes of protest -- Action
allowed -- Permanent injunction was ordered -- Permanent injunction infringed protester’s freedom of
expression -- Freedoms of expression and religion were not absolute -- Protester’s freedom of expression should
not take precedence over health authority’s safety-related duties to hospital users -- Order was minimal and
reasonable limit on protester’s rights -- Permanent injunction was justified and appropriate.
Régie Régionale de la Santé A c. Godin (2017), 2017 NBQB 93, 2017 NBBR 93, 2017 CarswellNB 219, 2017
CarswellNB 218, J.A. Réginald Léger J. (N.B. Q.B.) [New Brunswick]
HUM.III.2.b.v.E
Subject Title: Human rights
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Classification Number: III.2.b.v.E
What constitutes discrimination -- Sex -- Employment -- Pregnancy, maternity and parental leave --
Termination and layoff
Complainant alleged that Skynet Wireless discriminated against her in employment on basis of sex by
improperly writing her up for employment misconduct and terminating her employment because she was
pregnant and would require maternity leave -- Respondent employer’s application for summary dismissal of
complaint granted as complaint having no reasonable prospect of success -- Employer only became aware of
complainant’s pregnancy after verbal and written warnings had been issued and, therefore, discipline was in
progress when it became aware of complainant’s pregnancy and simply continued due to her employment
failings -- Complainant signed written warnings and did not deny the events contained therein occurred --
Warning letters were related to complainant’s workplace failures respecting some aspect of her employment
relationship which was not insignificant -- There was nothing in the facts, other than the time link, which would
remotely suggest that pregnancy was a factor in the decision to terminate the complainant.
Sankey v. Skynet Wireless (2017), 2017 BCHRT 111, 2017 CarswellBC 1412, Norman Trerise Member (B.C.
Human Rights Trib.) [British Columbia]
HUM.III.3.c
Subject Title: Human rights
Classification Number: III.3.c
What constitutes discrimination -- Race, ancestry or place of origin -- Housing
Complainant filed two complaints with Human Rights Tribunal, one alleging that respondents discriminated
against him in area of tenancy on basis of race through complacency in face of another tenant’s racial abuse and
harassment and one alleging that respondent JB retaliated against him by evicting him in response to his stated
intention to file first complaint -- Both complaints dismissed as having no reasonable prospect of success --
Tribunal could not reasonably find that respondents were in breach of Human Rights Code for failing to
interpret issues between complainant and his neighbor as anything other than an interpersonal dispute between
co-tenants living in close proximity -- Complainant claimed that issues with noise from neighbor arose and
nearing end of noise issues, he learned of neighbour’s racial slur -- While respondents subsequently became
aware of neighbour’s racial slur, they were advised by complainant that dispute had been resolved and not to
take further action -- There was no reasonable prospect complainant would be able to prove that respondents
failed to take adequate steps to address noise issues or that respondents should have understood the conduct was
discriminatory throughout the period of the dispute -- Complainant knew or ought to have known his
obligations and his tenancy agreement -- He acknowledged he paid his rent late intentionally in protest of
ongoing noise issue with his neighbor -- Residential Tenancy Branch held hearing and reconsidered its
decision, both times upholding issue of repeated late payment of rent as validly supporting his eviction --
Evidence demonstrated that late payment of rent had been an ongoing issue for the complainant in his tenancy;
there was no reasonable prospect Tribunal would find otherwise -- Nor was there a reasonable prospect that
Tribunal could draw an inference that eviction constituted retaliation for complainant’s intention to file first
complaint -- His references to pursuing the matter were, at best, vague and not sufficient to demonstrate
retaliation.
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Green v. Barry (2017), 2017 BCHRT 112, 2017 CarswellBC 1413, Emily Ohler Member (B.C. Human Rights
Trib.) [British Columbia]
HUM.III.13
Subject Title: Human rights
Classification Number: III.13
What constitutes discrimination -- Retaliation for previous complaint
Complainant filed two complaints with Human Rights Tribunal, one alleging that respondents discriminated
against him in area of tenancy on basis of race through complacency in face of another tenant’s racial abuse and
harassment and one alleging that respondent JB retaliated against him by evicting him in response to his stated
intention to file first complaint -- Both complaints dismissed as having no reasonable prospect of success --
Tribunal could not reasonably find that respondents were in breach of Human Rights Code for failing to
interpret issues between complainant and his neighbor as anything other than an interpersonal dispute between
co-tenants living in close proximity -- Complainant claimed that issues with noise from neighbor arose and
nearing end of noise issues, he learned of neighbour’s racial slur -- While respondents subsequently became
aware of neighbour’s racial slur, they were advised by complainant that dispute had been resolved and not to
take further action -- There was no reasonable prospect complainant would be able to prove that respondents
failed to take adequate steps to address noise issues or that respondents should have understood the conduct was
discriminatory throughout the period of the dispute -- Complainant knew or ought to have known his
obligations and his tenancy agreement -- He acknowledged he paid his rent late intentionally in protest of
ongoing noise issue with his neighbor -- Residential Tenancy Branch held hearing and reconsidered its
decision, both times upholding issue of repeated late payment of rent as validly supporting his eviction --
Evidence demonstrated that late payment of rent had been an ongoing issue for the complainant in his tenancy;
there was no reasonable prospect Tribunal would find otherwise -- Nor was there a reasonable prospect that
Tribunal could draw an inference that eviction constituted retaliation for complainant’s intention to file first
complaint -- His references to pursuing the matter were, at best, vague and not sufficient to demonstrate
retaliation.
Green v. Barry (2017), 2017 BCHRT 112, 2017 CarswellBC 1413, Emily Ohler Member (B.C. Human Rights
Trib.) [British Columbia]
HUM.V.3
Subject Title: Human rights
Classification Number: V.3
Duty to accommodate -- Undue hardship
Complainant alleged that Ministry of Transportation and Infrastructure and Insurance Corporation of British
Columbia (ICBC) discriminated against him in provision of service -- Complainant has problems with mobility
due to progressive illness -- He sought to be able to use SegSaddle, modified Segway that allows driver to sit
while riding, to get around -- Segway and SegSaddle are not allowed on public highways, including sidewalks,
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in British Columbia -- ICBC advised complainant it did not have authority to determine whether SegSaddle
qualified as "assisted mobility device" -- Ministry took position that SegSaddle is motor vehicle pursuant to
Motor Vehicle Act, is not safety compliant and may only be operated in areas where Motor Vehicle Act does
not apply such as private property or on trail or pathway, subject to municipal bylaws -- Ministry’s application
for summary dismissal of complaint denied -- Evidence established that use of SegSaddle would slow
progression of complainant’s condition and allow him to build strength and maintain mobility -- Failure to be
able to use device could be an adverse impact -- Ministry did not engage in accommodation to point of undue
hardship; Ministry did not actually turned its mind to how it might accommodate complainant beyond simply
saying he could use other mobility aids -- It could not be said complaint had no reasonable prospect of success
against Ministry -- ICBC’s application for summary dismissal of complaint granted -- It was up to Ministry
rather than ICBC to administer relevant provisions of MVA -- No reasonable prospect complainant would be
able to prove that act or omission of ICBC resulted in adverse impact he sought to have addressed.
Jeppesen v. ICBC (2017), 2017 BCHRT 37, 2017 CarswellBC 345, Walter Rilkoff Member (B.C. Human
Rights Trib.) [British Columbia]
HUM.V.5
Subject Title: Human rights
Classification Number: V.5
Duty to accommodate -- Miscellaneous
Employer’s right to request independent medical exam -- Employee was superintendent of schools for employer
school board -- Employee was on extended leave of absence due to depression -- When employee’s psychiatrist
cleared him to return to work, employer required employee to attend independent medical examination (IME)
before resuming duties -- Parties agreed to IME doctor but, after employee learned employer had sent letter to
IME doctor, employee refused to attend IME, claiming letter was prejudicial and gave doctor misleading
information -- Employee resigned and brought unsuccessful complaint to Human Rights Tribunal -- Tribunal
held that employer met duty to accommodate, did not act in bad faith, made reasonable efforts to satisfy duty,
acted reasonably in seeking additional information by way of IME, and did not act unreasonably or in conflict
with parties’ agreement in providing IME doctor with background information -- Tribunal found that
substantive aspect of duty to accommodate was not triggered because employee ultimately failed to participate
in reasonable request for IME -- Employee brought application for judicial review -- Application dismissed --
Tribunal’s decision to not permit post-application evidence was reasonable and required as part of duty of
procedural fairness owed to employer -- Finding that employer was justified in requesting IME without seeking
further information from employee’s psychiatrist was reasonable in light of legitimate concern about adequacy
and reliability of information previously received from psychiatrist -- Although court might have found
differently on potentially prejudicial material employer provided to IME doctor, it was open to tribunal to find
that employer acted reasonably in providing such material -- Tribunal’s finding that accommodation process
broke down as result of employee’s failure to attend IME was within range of acceptable outcomes defensible
in respect of facts and law.
Bottiglia v. Ottawa Catholic School Board (2017), 2017 ONSC 2517, 2017 CarswellOnt 7627, Ellies J., Heeney
R.S.J., Marrocco A.C.J.S.C. (Ont. Div. Ct.); refusing judicial review of (2015), 24 C.C.P.B. (2nd) 245, 2016
C.L.L.C. 230-008, 2015 CarswellOnt 20617, 2015 HRTO 1178, Eric Whist Adjud. (Ont. Human Rights Trib.)
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[Ontario]
HUM.VIII.1.d.iii
Subject Title: Human rights
Classification Number: VIII.1.d.iii
Practice and procedure -- Commissions, tribunals and boards of inquiry -- Limitation periods --
Discretion to extend time or accept late-filed complaint
Complainant alleged discrimination in area of education services customarily available to the public on the
basis of mental disability -- Complainant believed respondent art institute could accommodate his obsessive
compulsive disorder ("OCD") and depression conditions -- Complainant was admitted to 18 month program
with accommodation -- Complainant alleged problems with accommodation arose and, in series of emails
between August 13 to December 16, 2015, complainant sought assistance with roommate issues -- Complainant
got into a dispute and assaulted roommate January 11, 2016 -- He was expelled from art institute January 13,
2016 -- Complainant filed internal appeal to have his tuition refunded on April 6, 2016 which was denied on
April 21, 2016 based on his "dismissal for conduct" -- Complainant filed complaint with Private Training
Institutions Branch in May, 2016 but was told in October 2016 his complaint was more suited for Human
Rights Tribunal -- Complaint, filed December 19, 2016, late-filed and not accepted for filing -- Length of delay
was over five months -- Ignorance of Human Rights Code or time required to become aware of one’s rights,
generally not an acceptable reason, on its own, for delay in filing -- Pursuing another process with Private
Training Institution Branch did not suspend time limit under Code -- There was nothing particularly unique,
novel, or unusual about complaint -- Not in public interest to accept late-filed complaint for filing.
Geister v. Art Institute of Vancouver (2017), 2017 CarswellBC 1414, 2017 BCHRT 113, Steven Adamson Reg.
(B.C. Human Rights Trib.) [British Columbia]
HUM.VIII.1.e.iii.C
Subject Title: Human rights
Classification Number: VIII.1.e.iii.C
Practice and procedure -- Commissions, tribunals and boards of inquiry -- Complaints and pleadings --
Summary dismissal of complaint -- No reasonable prospect of success
Complainant filed two complaints with Human Rights Tribunal, one alleging that respondents discriminated
against him in area of tenancy on basis of race through complacency in face of another tenant’s racial abuse and
harassment and one alleging that respondent JB retaliated against him by evicting him in response to his stated
intention to file first complaint -- Both complaints dismissed as having no reasonable prospect of success --
Tribunal could not reasonably find that respondents were in breach of Human Rights Code for failing to
interpret issues between complainant and his neighbor as anything other than an interpersonal dispute between
co-tenants living in close proximity -- Complainant claimed that issues with noise from neighbor arose and
nearing end of noise issues, he learned of neighbour’s racial slur -- While respondents subsequently became
aware of neighbour’s racial slur, they were advised by complainant that dispute had been resolved and not to
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take further action -- There was no reasonable prospect complainant would be able to prove that respondents
failed to take adequate steps to address noise issues or that respondents should have understood the conduct was
discriminatory throughout the period of the dispute -- Complainant knew or ought to have known his
obligations and his tenancy agreement -- He acknowledged he paid his rent late intentionally in protest of
ongoing noise issue with his neighbor -- Residential Tenancy Branch held hearing and reconsidered its
decision, both times upholding issue of repeated late payment of rent as validly supporting his eviction --
Evidence demonstrated that late payment of rent had been an ongoing issue for the complainant in his tenancy;
there was no reasonable prospect Tribunal would find otherwise -- Nor was there a reasonable prospect that
Tribunal could draw an inference that eviction constituted retaliation for complainant’s intention to file first
complaint -- His references to pursuing the matter were, at best, vague and not sufficient to demonstrate
retaliation.
Green v. Barry (2017), 2017 BCHRT 112, 2017 CarswellBC 1413, Emily Ohler Member (B.C. Human Rights
Trib.) [British Columbia]
HUM.VIII.1.e.iii.C
Subject Title: Human rights
Classification Number: VIII.1.e.iii.C
Practice and procedure -- Commissions, tribunals and boards of inquiry -- Complaints and pleadings --
Summary dismissal of complaint -- No reasonable prospect of success
Complainant alleged that Skynet Wireless discriminated against her in employment on basis of sex by
improperly writing her up for employment misconduct and terminating her employment because she was
pregnant and would require maternity leave -- Respondent employer’s application for summary dismissal of
complaint granted as complaint having no reasonable prospect of success -- Employer only became aware of
complainant’s pregnancy after verbal and written warnings had been issued and, therefore, discipline was in
progress when it became aware of complainant’s pregnancy and simply continued due to her employment
failings -- Complainant signed written warnings and did not deny the events contained therein occurred --
Warning letters were related to complainant’s workplace failures respecting some aspect of her employment
relationship which was not insignificant -- There was nothing in the facts, other than the time link, which would
remotely suggest that pregnancy was a factor in the decision to terminate the complainant.
Sankey v. Skynet Wireless (2017), 2017 BCHRT 111, 2017 CarswellBC 1412, Norman Trerise Member (B.C.
Human Rights Trib.) [British Columbia]
HUM.VIII.1.e.iii.C
Subject Title: Human rights
Classification Number: VIII.1.e.iii.C
Practice and procedure -- Commissions, tribunals and boards of inquiry -- Complaints and pleadings --
Summary dismissal of complaint -- No reasonable prospect of success
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Complainant alleged that respondents discriminated in area of employment on grounds of physical disability by
terminating her employment while she was on medical leave due to a disability -- Respondents claimed
complainant was accommodated with medical leave and, upon her return to work, was dismissed solely based
on performance -- Respondents said they did not claim cause and when complainant declined severance
payment in lieu of notice in exchange for release, they paid her two weeks in lieu of notice under Employment
Standards Act -- Respondents’ application for summary dismissal of complaint granted -- Respondents
provided ample evidence of measures they took to accommodate complainant’s physical disability and to
support concerns regarding complainant’s performance issues -- Complainant’s assertions respecting her work
performance were unsupported by any documentation or disinterested third-party evidence -- Complainant’s
assertion that her disability was a factor in her dismissal did not rise above level of speculation or conjecture --
Only evidence supporting complainant’s assertion as timing of her dismissal but in the circumstances, timing
alone was insufficient to raise complaint above conjecture and speculation -- Respondents’ case on evidence
was overwhelming with respect to asserted performance issues -- Complaint had no reasonable prospect of
success.
Whitmore v. Dr. J.T. Kelsall Inc. (2017), 2017 CarswellBC 1415, 2017 BCHRT 114, V.A. Pylypchuk Member
(B.C. Human Rights Trib.) [British Columbia]
HUM.VIII.1.j.i
Subject Title: Human rights
Classification Number: VIII.1.j.i
Practice and procedure -- Commissions, tribunals and boards of inquiry -- Evidence -- General principles
Complainant brought motion for right to call reply evidence with respect to newly presented evidence after his
testimony was completed and with respect to evidence that was called by respondent that he could not have
anticipated when he gave direct evidence -- Motion granted -- Complainant will be allowed to give reply
evidence with respect to matters raised in complainant’s Notice of Motion -- It was being so allowed because
notes were produced late in proceedings and were documents which ought to have been produced to
complainant prior to his evidence -- Issues presently before tribunal were difficult and were compounded by
fact that matters commenced in June, 2015 and all transcripts of proceedings were not available -- However,
any further delay would be unacceptable -- In considering law respecting reply evidence as submitted, authority
under Canadian Human Rights Act were not be bound by strict rules of evidence and applying doctrine of
fairness of parties.
Hughes v. Canada Border Services Agency (2017), 2017 CarswellNat 2380, 2017 CarswellNat 2379, 2017
TCDP 10, 2017 CHRT 10, George E. Ulyatt Member (Can. Human Rights Trib.) [Federal]
HUM.VIII.1.j.i
Subject Title: Human rights
Classification Number: VIII.1.j.i
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Practice and procedure -- Commissions, tribunals and boards of inquiry -- Evidence -- General principles
Canadian Human Rights Commission ("Commission") brought motion seeking full disclosure of potentially
relevant information by respondent, V and, more specifically, disclosure of contact information of five
candidates who received job offers for positions in 2014 -- Complainant filed similar motion -- Motion granted
-- Testimony of these five candidates could potentially be relevant -- Burden would be heavy one, for
complainants, if they had to show direct evidence of discrimination in every case -- Subtle scent of
discrimination may rise from the circumstances, taken as a whole -- Complainant must still have chance to
present evidence regarding these circumstances.
Jean-Marc Malenfant v. Videotron S.E.N.C. (2017), 2017 CarswellNat 2515, 2017 CarswellNat 2514, 2017
TCDP 11, 2017 CHRT 11, Gabriel Gaudreault Member (Can. Human Rights Trib.) [Federal]
HUM.VIII.1.n
Subject Title: Human rights
Classification Number: VIII.1.n
Practice and procedure -- Commissions, tribunals and boards of inquiry -- Conduct of investigation
Complainant, member of Canadian Forces (CF), alleged he was discriminated against by CF because he was
homosexual -- Complainant made human rights complaint against CF on grounds he was discriminated against
by CF on basis of his sexual orientation -- Investigator issued investigation report -- Canadian Human Rights
Commission, relying on report, concluded inquiry was not warranted and dismissed complaint -- Complainant’s
application for judicial review, alleging report contained factual errors, was dismissed -- Complainant appealed
-- Appeal dismissed -- Complainant’s attempt to introduce fresh evidence through chain of emails exchanged
with Commission’s counsel in attempt to demonstrate counsel committed perjury by stating he was represented
by counsel was rejected -- Evidence complainant sought to introduce had no bearing on outcome of case,
neither as for issue of reasonableness of decision nor as for procedural fairness -- Complainant did not meet
onus to introduce new evidence -- Commission’s decision was reasonable; investigator was required to conduct
thorough and neutral investigation, absolute perfection was not standard -- Although investigation report
contained factual mistakes, these were not material and they did not lead to fundamentally flawed conclusions
-- Given that complainant sought to leave CF on his own initiative year prior to end of his mandatory service
period, it could reasonably be asserted that CF’s decision to release him at expiration of his mandatory service
period related not to discrimination, but to complainant’s earlier request to terminate his service --
Commission’s reliance on investigator’s report was reasonable -- Judge did not err in finding Commission did
not violate procedural rights of complainant.
Ritchie v. Canada (Attorney General) (2017), 2017 CarswellNat 2424, 2017 FCA 114, A.F. Scott J.A., J.
Woods J.A., Yves de Montigny J.A. (F.C.A.); affirming (2016), 34 C.C.E.L. (4th) 321, 2016 CarswellNat 2858,
2016 CarswellNat 1866, 2016 FC 527, 2016 CF 527, Ann Marie McDonald J. (F.C.) [Federal]
HUM.VIII.4
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Subject Title: Human rights
Classification Number: VIII.4
Practice and procedure -- Stay of proceedings
Complainant alleged that Ministry of Transportation and Infrastructure and Insurance Corporation of British
Columbia (ICBC) discriminated against him in provision of service -- Complainant has problems with mobility
due to progressive illness -- He sought to be able to use SegSaddle, modified Segway that allows driver to sit
while riding, to get around -- Segway and SegSaddle are not allowed on public highways, including sidewalks,
in British Columbia -- ICBC advised complainant it did not have authority to determine whether SegSaddle
qualified as "assisted mobility device" -- Ministry took position that SegSaddle is motor vehicle pursuant to
Motor Vehicle Act, is not safety compliant and may only be operated in areas where Motor Vehicle Act does
not apply such as private property or on trail or pathway, subject to municipal bylaws -- Ministry’s application
for summary dismissal of complaint denied -- Evidence established that use of SegSaddle would slow
progression of complainant’s condition and allow him to build strength and maintain mobility -- Failure to be
able to use device could be an adverse impact -- Ministry did not engage in accommodation to point of undue
hardship; Ministry did not actually turn its mind to how it might accommodate complainant beyond simply
saying he could use other mobility aids -- It could not be said complaint had no reasonable prospect of success
against Ministry -- ICBC’s application for summary dismissal of complaint granted -- It was up to Ministry
rather than ICBC to administer relevant provisions of MVA -- No reasonable prospect complainant would be
able to prove that act or omission of ICBC resulted in adverse impact he sought to have addressed.
Jeppesen v. ICBC (2017), 2017 BCHRT 37, 2017 CarswellBC 345, Walter Rilkoff Member (B.C. Human
Rights Trib.) [British Columbia]
HUM.VIII.5.c.iii
Subject Title: Human rights
Classification Number: VIII.5.c.iii
Practice and procedure -- Judicial review -- Grounds -- Requirements of natural justice
Complainant, member of Canadian Forces (CF), alleged he was discriminated against by CF because he was
homosexual -- Complainant made human rights complaint against CF on grounds he was discriminated against
by CF on basis of his sexual orientation -- Investigator issued investigation report -- Canadian Human Rights
Commission, relying on report, concluded inquiry was not warranted and dismissed complaint -- Complainant’s
application for judicial review, alleging report contained factual errors, was dismissed -- Complainant appealed
-- Appeal dismissed -- Complainant’s attempt to introduce fresh evidence through chain of emails exchanged
with Commission’s counsel in attempt to demonstrate counsel committed perjury was rejected -- Evidence
complainant sought to introduce had no bearing on outcome of case, neither as for issue of reasonableness of
decision nor as for procedural fairness -- Commission’s decision was reasonable; investigator was required to
conduct thorough and neutral investigation, absolute perfection was not standard -- Although investigation
report contained factual mistakes, these were not material and they did not lead to fundamentally flawed
conclusions -- Given that complainant sought to leave CF on his own initiative year prior to end of his
mandatory service period, it could reasonably be asserted that CF’s decision to release him at expiration of his
mandatory service period related not to discrimination, but to complainant’s earlier request to terminate his
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