Chen et al. v. Surrey (City) et al., 2015 BCCA 57

JudgeFrankel, MacKenzie and Savage, JJ.A.
CourtCourt of Appeal (British Columbia)
Case DateFebruary 06, 2015
JurisdictionBritish Columbia
Citations2015 BCCA 57;(2015), 368 B.C.A.C. 50 (CA)

Chen v. Surrey (2015), 368 B.C.A.C. 50 (CA);

    633 W.A.C. 50

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. FE.025

Zhen Hao Chen, Liang Hai Su, Wong Chee Kwai, Carlos Yeung, Marco Fung and Terry Chen (appellants/petitioners) v. City of Surrey, Don Smith, Andrew Singh and British Columbia Human Rights Tribunal (respondents/respondents)

(CA041723; 2015 BCCA 57)

Indexed As: Chen et al. v. Surrey (City) et al.

British Columbia Court of Appeal

Frankel, MacKenzie and Savage, JJ.A.

February 6, 2015.

Summary:

On November 15, 2011, the appellants filed a complaint with the British Columbia Human Rights Tribunal alleging discrimination on the basis of race and place of origin by two City of Surrey bylaw inspectors. The complaint alleged the discrimination commenced in May 2007. Section 22 of the Human Rights Code provided: "(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". The only incident referred to in the complaint that was alleged to have occurred in the six months prior to the filing of the complaint was that of June 21, 2011. The Tribunal refused to accept the complaint for filing. The Tribunal stated that in order to amount to a continuing contravention, the allegations had to first disclose incidents which, if proven, could contravene the Code (an "arguable contravention"). The Tribunal concluded that the only timely allegation would not serve to establish a contravention of the Code and no continuing contravention existed. The appellants sought judicial review, alleging that the Tribunal erred in law by: (i) applying the "arguable contravention" test to the question of whether there was a continuing contravention and thus basing its decision on the merits of the complaint (as opposed to its timeliness); (ii) applying the "arguable contravention" test improperly; and (iii) applying the "continuing contravention" test improperly.

The British Columbia Supreme Court, in a decision reported at [2014] B.C.T.C. Uned. 539, dismissed the petition. As to the standard of review, the chambers judge applied s. 59 of the Administrative Tribunals Act. The chambers judge held that the decision to apply a particular legal test was reviewable on a standard of correctness, but the application of that legal standard was a discretionary decision that could only be set aside if it was patently unreasonable. The judge found: (a) the Tribunal correctly articulated the legal test (i.e., the "arguable contravention" test) in addressing whether the complaint alleged a continuing contravention under s. 22 of the Code; (b) the Tribunal's application of the "arguable contravention" test to the complaint was not patently unreasonable; and (c) the Tribunal's application of the legal test for a continuing contravention was not patently unreasonable and was correct. The appellants appealed.

The British Columbia Court of Appeal dismissed the appeal. The chambers judge did not err in determining that the Tribunal applied the correct legal test. The court agreed with the chambers judge that the Tribunal's application of the legal standard (the arguable contravention test) to the complaint at issue was a discretionary decision, reviewable on a standard of patent unreasonableness pursuant to s. 59(3) of the Administrative Tribunals Act. The chambers judge did not err in determining that the Tribunal's decision was not patently unreasonable.

Civil Rights - Topic 913

Discrimination - General principles - Complaints - Limitation periods (incl. extension of time) - See paragraphs 15 to 34.

Civil Rights - Topic 7046

Federal, provincial or territorial legislation - Commissions or boards - General - Duty of fairness - See paragraph 25.

Civil Rights - Topic 7069.01

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Complaints - Delay - See paragraphs 15 to 34.

Civil Rights - Topic 7070.1

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Complaints - Bars - See paragraphs 15 to 34.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - See paragraphs 26 to 34.

Civil Rights - Topic 7117

Federal, provincial or territorial legislation - Practice - Appeals (incl. standard of review) - See paragraphs 26 to 34.

Civil Rights - Topic 7118

Federal, provincial or territorial legislation - Practice - Limitation period - See paragraphs 15 to 34.

Cases Noticed:

Henthorne v. British Columbia Ferry Services Inc. et al. (2011), 313 B.C.A.C. 124; 533 W.A.C. 124; 2011 BCCA 476, refd to. [para. 16].

Schaper v. Beauchamp et al., [2012] B.C.A.C. Uned. 55; 2012 BCCA 208, refd to. [para. 16].

Edgewater Casino v. Chubb-Kennedy et al. (2015), 367 B.C.A.C. 45; 631 W.A.C. 45; 2015 BCCA 9, refd to. [para. 21].

Goddard et al. v. Dixon et al., [2012] B.C.T.C. Uned. 161; 2012 BCSC 161, refd to. [para. 21].

Lewis v. British Columbia (Minister of Public Safety and Solicitor General), [2013] B.C.T.C. Uned. 1980; 2013 BCSC 1980, refd to. [para. 22].

O'Hara v. Human Rights Commission (B.C.), [2002] B.C.T.C. 559; 2002 BCSC 559, affd. (2003), 180 B.C.A.C. 54; 297 W.A.C. 54; 2003 BCCA 139, refd to. [para. 23].

Lynch v. Human Rights Commission (B.C.) et al., [2000] B.C.T.C. 735; 2000 BCSC 1419, refd to. [para. 23].

Manitoba v. Human Rights Commission (Man.), Galbraith and Lylyk (1983), 25 Man.R.(2d) 117; 2 D.L.R.(4th) 759 (C.A.), refd to. [para. 23].

Morgan-Hung v. Human Rights Tribunal (B.C.) et al. (2011), 302 B.C.A.C. 141; 511 W.A.C. 141; 2011 BCCA 122, refd to. [para. 26].

Lee v. British Columbia (Attorney General) et al. (2004), 204 B.C.A.C. 113; 333 W.A.C. 113; 2004 BCCA 457, refd to. [para. 32].

Statutes Noticed:

Administrative Tribunals Act, S.B.C. 2004, c. 45, sect. 59 [para. 1].

Human Rights Code, R.S.B.C. 1996, c. 210, sect. 22 [para. 6].

Counsel:

R. McCleery, for the appellants;

E. Vanderburgh, for the respondents.

This appeal was heard on February 6, 2015, at Vancouver, B.C., before Frankel, MacKenzie and Savage, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered orally by MacKenzie, J.A., on the same date.

To continue reading

Request your trial
13 practice notes
  • Telus Communications Inc. v. Telecommunications Workers Union, 2018 BCCA 331
    • Canada
    • Court of Appeal (British Columbia)
    • August 24, 2018
    ...[35] The judgment of a chambers judge on judicial review is reviewable in this Court on a standard of correctness: Chen v. Surrey (City), 2015 BCCA 57 at para. [36] It is common ground that the standard of review of the arbitrator’s decision is one of reasonableness. Where my colleagues and......
  • Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46
    • Canada
    • Court of Appeal (British Columbia)
    • February 5, 2019
    ...the review must take place on the standard applicable to discretionary decisions. [Emphasis added.] See also: Chen v. Surrey (City), 2015 BCCA 57 at para. 29, 69 B.C.L.R. (5th) 235: the patently unreasonable standard applies on a review of the Tribunal’s application of a legal standard in m......
  • Envirocon Environmental Services, ULC v. Suen, 2018 BCSC 1367
    • Canada
    • Supreme Court of British Columbia (Canada)
    • August 14, 2018
    ...determination whether to dismiss the complaint or to let it proceed. It is in all respects discretionary. See also Chen v. Surrey (City), 2015 BCCA 57. [73] Given that I have found that the manner in which to review the Tribunal’s decision is the standard of patent unreasonableness, I note ......
  • Gichuru v. Vancouver Swing Society, 2021 BCCA 103
    • Canada
    • Court of Appeal (British Columbia)
    • March 9, 2021
    ...function has been recognized in various cases and its importance to the HRT’s process. See for example the Chen v. Surrey (City), 2015 BCCA 57; Shilander (Re), 2005 BCSC 728; and Andrews v. British Columbia (Human Rights Tribunal), 2007 BCSC 1079. Regrettably, Mr. Gichuru’s withdrawal of th......
  • Request a trial to view additional results
13 cases
  • Telus Communications Inc. v. Telecommunications Workers Union, 2018 BCCA 331
    • Canada
    • Court of Appeal (British Columbia)
    • August 24, 2018
    ...[35] The judgment of a chambers judge on judicial review is reviewable in this Court on a standard of correctness: Chen v. Surrey (City), 2015 BCCA 57 at para. [36] It is common ground that the standard of review of the arbitrator’s decision is one of reasonableness. Where my colleagues and......
  • Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46
    • Canada
    • Court of Appeal (British Columbia)
    • February 5, 2019
    ...the review must take place on the standard applicable to discretionary decisions. [Emphasis added.] See also: Chen v. Surrey (City), 2015 BCCA 57 at para. 29, 69 B.C.L.R. (5th) 235: the patently unreasonable standard applies on a review of the Tribunal’s application of a legal standard in m......
  • Envirocon Environmental Services, ULC v. Suen, 2018 BCSC 1367
    • Canada
    • Supreme Court of British Columbia (Canada)
    • August 14, 2018
    ...determination whether to dismiss the complaint or to let it proceed. It is in all respects discretionary. See also Chen v. Surrey (City), 2015 BCCA 57. [73] Given that I have found that the manner in which to review the Tribunal’s decision is the standard of patent unreasonableness, I note ......
  • Gichuru v. Vancouver Swing Society, 2021 BCCA 103
    • Canada
    • Court of Appeal (British Columbia)
    • March 9, 2021
    ...function has been recognized in various cases and its importance to the HRT’s process. See for example the Chen v. Surrey (City), 2015 BCCA 57; Shilander (Re), 2005 BCSC 728; and Andrews v. British Columbia (Human Rights Tribunal), 2007 BCSC 1079. Regrettably, Mr. Gichuru’s withdrawal of th......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT