British Columbia Transit v. Council of Human Rights (B.C.) and McCabe, (1991) 1 B.C.A.C. 20 (CA)

• Judge: Taggart, Legg and Wood, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 04, 1991
• Jurisdiction: British Columbia
• Citations: (1991), 1 B.C.A.C. 20 (CA)

B.C. Transit v. HRC (1991), 1 B.C.A.C. 20 (CA);

    1 W.A.C. 20

MLB headnote and full text

British Columbia Transit (appellant) v. The British Columbia Council of Human Rights and John McCabe (respondents)

(CA011439)

Indexed As: British Columbia Transit v. Council of Human Rights (B.C.) and McCabe

British Columbia Court of Appeal

Taggart, Legg and Wood, JJ.A.

June 4, 1991.

Summary:

An employee forced to retire at age 65 complained to the British Columbia Council of Human Rights of discrimination on the basis of age. The Council investigated and decided to proceed to a hearing. The employer applied to prohibit the hearing and to set aside the decision, claiming breach of the rules of natural justice.

The British Columbia Supreme Court dismissed the application. The employer appealed. The Council applied to dismiss the appeal on the ground that a Supreme Court of Canada decision on mandatory retirement rendered the appeal moot.

The British Columbia Court of Appeal exercised its discretion to hear the appeal and allowed the appeal on the procedural ground.

Administrative Law - Topic 221

The hearing and decision - Right to be heard - General - Section 13(1)(d) of the Human Rights Act provided that the Council may decide not to proceed with investigation of a complaint where "the complaint is based on facts that occurred more than 6 months before the complaint was filed, unless the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay" - The British Columbia Court of Appeal stated that Council's decision under s. 13(1)(d) was adjudicative and the rules of natural justice required that the parties have an opportunity to make submissions on the issues of delay, good faith and prejudice before the Council decides to proceed - See paragraphs 13 to 24.

Administrative Law - Topic 1102

Classification of power or function - Judicial function - Defined - [See Administrative Law - Topic 221 ].

Civil Rights - Topic 913

Discrimination - Complaints - Limitation periods - [See Administrative Law - Topic 221 ].

Courts - Topic 2286

Jurisdiction - Bars - Academic or moot issues - An employee forced to retire at age 65 claimed discrimination on the basis of age (Human Rights Act) - The British Columbia Council of Human Rights decided to proceed to hearing - The employer applied to set aside that decision, raising procedural grounds respecting its right to be heard - The trial judge dismissed the application - The employer appealed - The Council applied to dismiss the appeal on the ground that a recent Supreme Court of Canada decision on mandatory retirement rendered the discrimination issue moot - There was a procedural issue on a party's right to make a submission before Council made a decision under s. 13(1)(d) to proceed to hearing notwithstanding a complaint exceeding six months - The British Columbia Court of Appeal decided to exercise its discretion to hear the appeal on the procedural ground - See paragraphs 8 to 12.

Cases Noticed:

Harrison v. University of British Columbia; Connell v. University of British Columbia (1990), 120 N.R. 1 (S.C.C.), refd to. [para. 3].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, consd. [para. 8].

Cowling v. Brown (1990), 48 B.C.L.R.(2d) 63 (C.A.), refd to. [para. 9].

Vic Restaurant Inc. v. City of Montreal, [1959] S.C.R. 58, refd to. [para. 11].

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; 23 N.R. 410; 88 D.L.R.(3d) 671, refd to. [para. 17].

Martineau v. Matsqui Institution Disciplinary Board (No.2), [1980] 1 S.C.R. 602; 30 N.R. 119; 50 C.C.C.(2d) 353; 106 D.L.R.(3d) 385, refd to. [para. 17].

Cardinal and Oswald v. Kent Institution, Director of, [1985] 2 S.C.R. 643; 63 N.R. 353; 24 D.L.R.(4th) 44, refd to. [para. 17].

Radulesco v. Canadian Human Rights Commission (1984), 55 N.R. 384; 84 C.L.L.C. 17,209 (S.C.C.), refd to. [para. 17].

Cashin v. Canadian Broadcasting Corp. and Canadian Human Rights Commission (1984), 55 N.R. 112; 8 D.L.R.(4th) 622 (F.C.A.), refd to. [para. 17].

Syndicat des employés de production du Québec and de l'Acadie v. Commission Canadienne des droits de la personne et al., [1989] 2 S.C.R. 879; 100 N.R. 241, refd to. [para. 17].

Guay v. Lafleur, [1965] S.C.R. 12, refd to. [para. 20].

Restrictive Trade Practices Commission et al. v. Irvine et al., [1987] 1 S.C.R. 181; 74 N.R. 33, refd to. [para. 21].

Statutes Noticed:

Human Rights Act, S.B.C. 1984, c. 22, sect. 11, sect. 13 [para. 14]; sect. 14(1)(d) [para. 15].

Judicial Review Procedure Act, R.S.B.C. 1979, c. 209, generally [para. 1].

Rules of Court (B.C.), Supreme Court Rules, rule 10, rule 57 [para. 1].

Supreme Court Act, R.S.B.C. 1979, c. 397, sect. 63(2) [para. 1].

Supreme Court Rules (B.C.) - See Rules of Court (B.C.).

Counsel:

Donald J. Jordan, Q.C., and Randy J. Kaardal, for the appellant;

   George H. Copley, for the British Columbia Council of Human Rights;

No one appearing for John McCabe.

This appeal was heard on February 12 and 13, 1991, at Vancouver, B.C., before Taggart, Legg and Wood, JJ.A., of the British Columbia Court of Appeal.

On June 4, 1991, Taggart, J.A., delivered the following judgment for the Court of Appeal.