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ENFORCEMENT AND PROCEDURE - Application - Limitation periods

Wednesday, January 06, 2021 @ 7:45 AM  


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Appeal by the School District from a decision allowing the respondent’s judicial review application of the dismissal of his discrimination complaint. The respondent parent filed a complaint with the Human Rights Tribunal, alleging that the District failed to provide adequate accommodation for his child, who suffered from mental disabilities. The Tribunal dismissed the complaint because it was filed outside the six-month time limit in the Human Rights Code. Among the reasons for the delay, the respondent claimed erroneous legal advice. The Tribunal held that the public interest in hearing the complaint outside the limitation period would only be engaged on grounds of legal advice error where certain mandatory conditions were met by a complainant. According to the Tribunal, the complainant had to identify the lawyer, confirm the erroneous nature of the advice provided, and explain how the error came about. The chambers judge found that the decision of the Tribunal turned on an extricable legal error regarding the evidence required to assert erroneous legal advice as a reason for filing delay. She reviewed the authorities referred to by the parties and concluded that there was no requirement for such mandatory prerequisites. The judge concluded that the Tribunal’s decision was arbitrary because it was grounded on an erroneous conclusion with respect to a material consideration. The appellant argued that the judge erred in finding an extricable legal error and that she failed to afford sufficient deference to the Tribunal’s decision. The appellant argued the Tribunal should be given the benefit of the doubt and that, when read and in context, the decision was reasonable.

HELD: Appeal dismissed. The judge correctly identified the legal test applied by the Tribunal member to determine whether the parent could rely on lawyer advice error to allow the late-filed complaint to proceed in the public interest. The judge was also correct to conclude that the Tribunal’s decision introduced a set of mandatory prerequisites for the consideration of lawyer error that was not established in the jurisprudence and was inconsistent with the generally accepted analytical approach under s. 22(3) of the Human Rights Code. It was not possible to uphold the decision by reading it contextually and with a high degree of deference because, in assessing a material consideration, the Tribunal applied a test that was unsupported by the statutory scheme and the jurisprudence. It was not the court’s role in reviewing a decision to ignore the reasons provided by the Tribunal and substitute its own.

Child v. School District, [2020] B.C.J. No. 1936, British Columbia Court of Appeal, D.C. Harris, G.J. Fitch and G.B. Butler JJ.A., November 27, 2020. Digest No. TLD-January42021006