[1]         The petitioners, by way of judicial review, ask this court to set aside a portion of the remedy aspect of a decision of the British Columbia Human Rights Tribunal (the “Tribunal”).  Two of the respondents are women who gave birth to children as a result of donor insemination.  The other two respondents are respectively their same gender partners.

[2]         The respondents complained to the Tribunal that the Queen in right of British Columbia, specifically through the actions of the Director of Vital Statistics, declined to permit the female partners of the mothers to be registered on the birth registration form as parents or co-parents.  They alleged discrimination on the basis of sex, sexual orientation and family status.

[3]         In a decision dated August 31, 2001, the Tribunal held that the petitioners had been subject to discrimination contrary to section 8 of the Human Rights Code.  That section reads:

8 (1) A person must not, without a bona fide and reasonable justification,

(a)         deny to a person or class of persons any accommodation, service or facility customarily available to the public, or

(b)         discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public

because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex or sexual orientation of that person or class of persons.

[4]         The basis of this finding was that if a male person sought to be registered as a parent along with the birth mother, there was no investigation by anyone at Vital Statistics to determine whether that male was in fact the biological father.  This called into question the suggestion that this information was being gathered for health, epidemiological, or genetic reasons.

[5]         The evidence was that if it did come to the attention of Vital Statistics that the father was not the biological father, his name would be removed from the birth registry and he would have to go through the adoption process.

[6]         The two respondents in this case who had not given birth to the children were also told that they could go through the adoption procedure.  However, they submitted, and the Tribunal accepted, that that amounted to discrimination regarding a service customary available to the public in that a non-biological male was under no obligation to disclose that fact and could be registered as a parent whereas a non-biological parent female had to go through the adoption process.

[7]         There was evidence that it is important that both parents be registered, as it leads to them being named as parents on the birth certificate of the child.  The birth certificate is an important document for identifying the child for various social, governmental and educational reasons, as well as for cross border travel.

[8]         The petitioner does not challenge the finding that this treatment of same gender co-parents constitutes discrimination. Nor does it quarrel with the first two remedies granted. But the petitioner does submit that the Tribunal exceeded its jurisdiction with respect to the Tribunal's ordering the Director of Vital Statistics to amend the birth application form in a specific way.

[9]         The powers of the Tribunal, once it has determined that a complaint is justified, are set out in s. 37(2) of the Human Rights Code:

If the member or panel determines that the complaint is justified, the member or panel

(a)         must order the person that contravened this Code to cease the contravention and to refrain from committing the same or a similar contravention.

(b)         may make a declaratory order that the conduct complained of, or similar conduct, is discrimination contrary to this Code.

(c)         may order the person that contravened this Code to do one or both of the following:

(i)     take steps, specified in the order to ameliorate the effects of the discriminatory practice;

(ii)    adopt and implement an employment equity program or other special program to ameliorate the conditions of disadvantaged individuals or groups if the evidence at the hearing indicates the person has engaged in a pattern or practice that contravenes this Code, and

(d)         if the person discriminated against is a party to the complaint, or is an identifiable member of a group or class on behalf of which a complaint is filed, may order the person that contravened this Code to do one or more of the following:

(i)       make available to the person discriminated against the right opportunity or privilege that, in the opinion of the member or panel, the person was denied contrary to this Code:

(ii)      compensate the person discriminated against for all, or a part the member or panel determines, of any wages or salary lost, or expenses incurred, by the contravention;

(iii)     pay to the person discriminated against an amount that the member or panel considers appropriate to compensate that person for injury to dignity, feelings and self respect or to any of them.

[10]    In this case, having found that Vital Statistics failed to act in a non-discriminatory manner, the Tribunal pursuant to s. 37(2)(a), ordered that the respondent cease the contravention and refrain from repeating the same or similar contraventions in the future.  The Tribunal also ordered compensation pursuant to section 37(2)(d)(iii).  The petitioners did not challenge these orders.

[11]    However, the Tribunal went on to order, stating it was doing so pursuant to s. 37(2)(c)(ii), that the respondent “amend the birth registration form so that it provides the option of identifying as a parent, a non-biological parent who is the co-parent of a mother or a father”.  The Director of Vital Statistics was also ordered, pursuant to s. 37(3), to provide to the Director within three months a report summarizing the steps that Vital Statistics had taken in order to comply.

[12]    It is the specific order, said to be pursuant to section 37(2)(c)(ii), requiring the Director to amend the form so that it provides the option of identifying a non-biological parent as a co-parent, which the petitioner claims is beyond the jurisdiction of the Tribunal.

[13]    There is agreement that the Tribunal was in error in stating that such an order was pursuant to s. 37(2)(c)(ii).  As seen above, that subsection permits adopting and implementing employment equity or other special programs.  It is the position of the petitioners that to order that a form be changed cannot be said to be a special program.  The respondents concede this.

[14]    The Tribunal is a statutorily created body.  It's powers must be found in the statute.  It has no inherent jurisdiction.  Where the question is whether a Tribunal is acting within its statutory powers, such Tribunals have no particular expertise, and "the standard is correctness or something approaching it": Oak Bay Marine Ltd. v. British Columbia (Human Rights Commission), 2002 BCCA 495 at para. 20.

[15]    Can the power to issue such an order be found in s. 37 set out above?  The respondents say that when one looks at the legislative scheme as a whole, the order can be justified by a liberal interpretation of s. 37(2)(c)(1).  I am not persuaded.

[16]    Counsel have been unable to find any judicial authorities interpreting or explaining this provision.  They have cited a number of Tribunal decisions.  In the main, those decisions leave it to the impugned government body to take specific steps to end a discriminatory practice.

[17]    In Chipperfield v. British Columbia (Ministry of Social Services), [1988] BCHRTD No. 60, the Tribunal found discrimination in the Ministry's scheme of transportation subsidies for certain disabled persons.  The Tribunal, acting expressly pursuant to s. 37(2)(c), ordered the Ministry to take steps to ameliorate the effects of the discriminatory practice.  However, they left it to the Ministry to determine exactly what was to be done.  The Tribunal suggested what such steps "may include", but observed that the Ministry "may elect to adopt a different approach".

[18]    In Hussey v. British Columbia Ministry of Transportation and Highways, [1999] BCHRTD No. 63, after a finding that the Ministry was contravening the Code in its administration of hearing guidelines for certain licences, ordered the Ministry “to explore” various ways of assessing hard of hearing applicants, but left it to the Ministry to determine “which alternative is the most appropriate”.

[19]    Counsel have also referred me to a number of Charter cases which suggest that courts are reluctant to prescribe specific legislative or executive action to implement correctly otherwise constitutionally valid legislation.  In Eldridge v. British Columbia (Attorney General), [1997] 2 S.C.R. 679, the court found a violation of s. 15 Charter rights in the Medical Services Commission’s failure to provide sign language interpretation for the deaf.  The court observed there were “myriad options available to the government” to rectify the situation, but stated it “is not this court’s role to dictate how this is to be accomplished”.

[20]    In Auton v. British Columbia, 2001 BCSC 220, at para. 15, Allan J. cited Eldridge for the proposition that where a government is found wanting and must change legislation “or alter its policy”, the Courts are “inclined to allow governments sufficient flexibility to determine their method of effecting compliance”.

[21]    The respondents submit one must be careful about an analogy to Charter cases, given that human rights legislation is to be given a broad and liberal interpretation consistent with the goal of eliminating, wherever possible, enumerated forms of discrimination.  They cite, for example, C.N.R. v. Canada (Human Rights Commission), [1987] 1 S.C.R. 1114 in which Dickson J., as he then was, wrote at paragraph 24 that:

...in the construction of such legislation the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect.  We should not search for ways and means to minimize those rights and to enfeeble their proper impact.

[22]    I find the history of courts exercising restraint in directions to the executive or legislative branches, despite the broad remedial powers given courts where there are Charter violations, to be significant.  The Charter provides courts with "an unfettered remedial discretion" to provide such remedy as court considers "appropriate and just": Auton at para. 14.  Despite this broad remedial power, courts exercise restraint when granting remedies after finding legislation, or the exercise of executive discretion, to be unconstitutional.

[23]    The respondents also emphasize Halpren v. Canada (Attorney General), [2003] O.J. No. 2268, the case in which the Ontario court using the Charter reformulated the common law rule of marriage, rather than permitting time to Parliament to devise its own definition.  I find it significant that the court in Halpren was reformulating the common law definition of marriage.  The same can be said for the parallel British Columbia Court of Appeal decision in Barbeau v. British Columbia (Attorney General), 2002 BCCA 425 (see paragraphs 1 and 3).

[24]    In the case at bar, we are not dealing with the long recognized power of the courts to amend the common law.  Rather, at issue is the extent of the power granted to a Tribunal in a statute passed by the legislative assembly.  The Tribunal is not exercising common law or inherent power.  Rather, the Tribunal may exercise only powers granted in the legislation.  To speak of actions as consistent with the goal or purpose of the legislation is not to justify the exercise of specific powers not founded upon the statute.

[25]    Here, having found discrimination, and purporting to act pursuant to s. 37(2)(c)(ii), the Tribunal ordered the Director to amend the application for birth registration “so that it provides the option of identifying as a parent, a non-biological parent who is the co-parent of a mother or father”.

[26]    Such a direction does not amount to a step to ameliorate “the effect” of the discrimination (s. 37(2)(c)(i)).  It does nothing for those who have been subject to the discrimination.  Nor, as conceded by the respondents, does the direction come within “an employment equity program or other special program” (s. 37(2)(c)(ii)).

[27]    The proper remedy in these circumstances was to order that the department cease the contravention and refrain from committing the same or a similar contravention.  This the Tribunal did.  It should be left to the Director, acting within his or her authority, to choose between the myriad remedial steps available to correct the discriminatory aspects identified.

[28]    In the result, the  portion of the Tribunal's order directing the petitioner to amend the birth registration form so that it provides the option of "identifying as a parent, a non-biological parent who is the co-parent of a mother or a father" is set aside as in excess of the Tribunal’s jurisdiction.

“L.P. Williamson, J.”
The Honourable Mr. Justice L.P. Williamson

July 23, 2003 – Corrigendum to the Reasons for Judgment issued by Mr. Justice L.P. Williamson advising that on page 10, paragraph 23, second last line should read:

Barbeau v. British Columbia (Attorney General),
2002 BCCA 425.