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DISCRIMINATION - Context - Access to public places or transportation

Tuesday, May 22, 2018 @ 8:55 AM  


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Appeal by the Business Improvement Association from a decision setting aside a decision of a Human Rights Tribunal dismissing a discrimination complaint. The appellant had sponsored a Program to prevent people from loitering or sleeping in front of businesses and in a Vancouver park. The Program workers were trained to press people to move on from those places. Most of the people adversely affected by this effort were homeless people. The respondent Network of Drug Users, an organization aimed at assisting active and former drug users, brought a complaint before the Tribunal on behalf of the street homeless, alleging that impugned aspects of the Program violated s. 8(1) of the Human Rights Code. The Network argued that the over-representation of persons with mental and physical disabilities and of Aboriginal persons among the street homeless population meant that a program that negatively affects homeless persons discriminated on the basis of race and physical and mental disability. The Tribunal acknowledged that protected groups were disproportionately represented among the street homeless population but found that the evidence did not establish a “connection or link” between the adverse treatment complained of and membership in a group protected under the Code. The Tribunal found that many of the allegations made by the complainant were not established on the evidence. It did find that certain features of the Program improperly interfered with the rights of street homeless people to loiter or sleep in public areas and that these interferences amounted to discrimination regarding facilities customarily available to the public. It was not convinced, however, that the discrimination was connected to prohibited grounds under the statute. On judicial review, the application judge held that the Tribunal erred in looking for a “connection or link”. She considered that the Tribunal ought to have adopted a more contextual and nuanced approach in which discrimination could be proven simply by showing that the group adversely affected by the Program included members of protected groups in numbers that were disproportional to their percentage of the general population. She found that the Tribunal erred by requiring the complainant to provide something beyond the statistical evidence that it adduced. She held that, if the proper test had been applied, the Tribunal would have found that prima facie discrimination had been established.

HELD: Appeal allowed. The chambers judge erred in finding that the Tribunal misapprehended the legal standards that had to be met in order to establish a prima facie case of discrimination. The Tribunal did not err in requiring a “connection or link” between the adverse treatment and the protected grounds. The Tribunal specifically used the word “factor” in explaining what it meant by a “connection or link”. There was no basis for the application judge to conclude that the Tribunal improperly imported a requirement of strict “but for” causation into its analysis. The Tribunal followed well-established case law in requiring a “connection or link” between the adverse treatment and a prohibited ground of discrimination. It neither misstated nor misapprehended the nature of the association required. The Tribunal did not consider that discrimination was required to be the sole basis or cause for the adverse treatment. The Tribunal was entitled to deference in respect of its assessment of the connection between prohibited grounds of discrimination and the impugned acts. The Tribunal did not err in failing to find a connection between prohibited grounds of discrimination and the adverse treatment experienced by members of the class represented by the complainant. The complainant did not seek to provide an explanation of the connection between street homelessness and Aboriginal background or between physical and mental disabilities and homelessness but simply relied on statistical evidence to show that Aboriginal people and those with disabilities were more prevalent among the street homeless than in the general population. In light of the complex mixture of social issues surrounding homelessness, it was not demonstrated that the Tribunal acted unreasonably in its assessment of the evidence and in finding the link to be unproven, especially given the limitations of the statistical evidence.

Vancouver Area Network of Drug Users v. British Columbia (Human Rights Tribunal), [2018] B.C.J. No. 644, British Columbia Court of Appeal, H. Groberman, D.C. Harris and L. Fenlon JJ.A., April 11, 2018. Digest No. TLD-May212018003