IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
HMTQ v. Bolster & BC Human Rights Tribunal |
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2005 BCSC 1491 |
Date: 20051027
Docket: L041536
Registry: Vancouver
Between:
Her Majesty the Queen in Right of the Province of British Columbia
Petitioner
And
William Bolster and The British Columbia Human Rights Tribunal
Respondents
Before: The Honourable Mr. Justice Parrett
Reasons for Judgment
| Counsel for the petitioner: |
L.R. Greathead |
| Counsel
for the respondent William Bolster: |
J.T. Doulis
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| Counsel
for the respondent B.C. Human Rights Tribunal: |
K.A. Hardie |
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Date and Place of Trial/Hearing: |
October 28 & 29, 2004 |
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Written Submissions received |
Vancouver, B.C.
January 11, 14 and October 19, 2005 |
INTRODUCTION
[1] In the present case, the petitioner, Her Majesty the Queen in Right of the Province of British Columbia, seeks
a) an order in the nature of certiorari quashing the decision of the British Columbia Human Rights Tribunal dated April 22, 2004 in Bolster v. Her Majesty the Queen in Right of the Province of British Columbia as represented by the Ministry of Public Safety and Solicitor General (Superintendent of Motor Vehicles);
b) in the alternative, an order in the nature of certiorari quashing that part of the decision requiring the petitioner to compensate Mr. Bolster in the amount of $141,939.38 in respect of wages lost as a result of the discriminatory conduct, $5,000.00 in compensation for injury to feelings, dignity and self respect and an amount sufficient to offset any additional income tax liability Mr. Bolster may incur as a result of receiving compensation for loss of salary in a lump sum; and
c) an order staying the order of the Tribunal.
HISTORY OF PROCEEDINGS
[2] On January 18, 2003, the respondent, William Bolster, filed a complaint with the former British Columbia Human Rights Commission. In his complaint Mr. Bolster alleged that the petitioner had discriminated against him regarding a service or facility customarily available to the public on the basis of his physical disability, contrary to s. 8 of the Human Rights Code, R.S.B.C. 1996, c. 210.
[3] As a result of amendments to the Human Rights Code, the Commission was disbanded on March 31, 2003 and the complaint was transferred to the British Columbia Human Rights Tribunal (“the Tribunal”).
[4] The complaint proceeded to a hearing before the Tribunal between October 27, 2003 and October 30, 2003, with final submissions proceeding on January 9, 2004.
[5] The Tribunal’s decision was issued on April 22, 2004 and the present petition seeking judicial review of that decision was filed on June 21, 2004.
ISSUES
[6] The issues arising from the present petition are:
1) What is the appropriate standard of review?
2) Did the Tribunal err in law or exceed its jurisdiction by ordering the petitioner to pay Mr. Bolster financial compensation?
3) Did the Tribunal err in finding discrimination or liability for the discrimination from October 1998?
4) Did the Tribunal err in quantifying the compensation for lost wages?
BACKGROUND
[7] The British Columbia Human Rights Tribunal is a permanent, quasi-judicial tribunal established under s. 31 of the Human Rights Code, R.S.B.C. 1996, c. 210, as amended (“the Code”).
[8] Mr. Bolster suffers from a mild congenital optic atrophy which is a condition resulting from a diminished capacity of the optic nerves. This disability was diagnosed and identified when Mr. Bolster was 12 years old. His visual acuity is approximately 20/70 with both eyes and is not fully correctable with glasses or contact lenses.
[9] In 1980, after turning 16, Mr. Bolster unsuccessfully attempted to obtain a driver’s licence. He failed because he was unable to pass the eye examination.
[10] After obtaining various medical reports and providing them to the B.C. Motor Vehicle Branch and passing a road test he was issued a Class 5 driver’s licence on December 1, 1982.
[11] In 1985, after purchasing a gravel truck, Mr. Bolster began the process of upgrading to a commercial driver’s licence. He obtained a Class 3 learner’s licence, then, on March 2, 1985, he provided the Motor Vehicle Branch with reports from his ophthalmologist and optometrist. On March 30, 1985 he obtained his air brake ticket, and on April 9, 1985 he completed the necessary road test and obtained his Class 3 licence.
[12] Shortly thereafter he sought his Class 1 licence. After providing another Examination of Visual Function report on April 20, 1985 he passed the necessary tests and, on April 23, 1985 he was issued a Class 1 licence.
[13] In recognition of his visual defects, the Motor Vehicle Branch restricted Mr. Bolster’s Class 1 licence to prevent him from driving any vehicles authorized by a Class 2 and Class 4 licence. These included buses, school buses and special activity vehicles in the case of Class 2 and taxis, limousines, ambulances and special buses to transport persons with disabilities in the case of Class 4.
[14] From 1985 until 1998 Mr. Bolster worked as a professional truck driver for various carriers and shippers as well as in a self-employed capacity. Over some 13 years he operated log trucks, Super B train flat decks, low bed heavy equipment configurations, gravel trucks with pup trailers, 45 through 53 foot flat decks, dry van tanker trailers, reefers and Super B tank trailer configurations. This included a six month period in the early 1990’s when he pulled Super B flat deck trailers between Vancouver and Creston as well as through the western United States averaging 10,000 miles per month with no accidents or incidents.
[15] On April 21, 1998 the Ministry of Transportation, Office of the Superintendent of Motor Vehicles (“the Superintendent”) re-issued Mr. Bolster’s Class 1 licence with the same restrictions.
[16] On May 5, 1998 Mr. Bolster entered into a lease with option to purchase agreement with Inland Kenworth for the lease of a Western Star tractor trailer. The option to purchase was for a price of $54,200.00 after 7 months with the lease payments credited against the purchase price.
[17] Mr. Bolster was, throughout this time, seeking employment with Westcan Bulk Transport Ltd. (“Westcan”). During this process he provided Westcan with his driving record, as well as passing a comprehensive road test, and a medical assessment which included a visual function test.
[18] On May 13, 1998 he signed an Independent Contractor Agreement with Westcan and on May 19, 1998 he began driving for them under the agreement. On September 22, 1998 he was involved in a motor vehicle accident. The driver of the other vehicle was charged with failing to yield. Mr. Bolster’s truck was damaged and was taken off the road for repairs.
[19] On August 13, 1998 Mr. Bolster had seen an ophthalmologist at Dr. Playfair’s request. Dr. Playfair was the doctor who had examined Mr. Bolster for Westcan. Dr. Anderson’s report of August 19, 1998 to Dr. Playfair included the following passage:
He has been driving tandem trucks all his life and has not had problems. He is legally below his visual limit to drive either cars or trucks. I have explained this to him, both in 1994 and again today. There is no evidence of any progressive visual decline and there is no evidence of any other neurological disease so this is an isolated congenital mild optic atrophy.
[Emphasis added]
[20] On August 25, 1998 Dr. Playfair reported to the Superintendent. His report included the following:
This gentleman works as a trucker. He saw me for an employment medical and turned out to have 20/70 vision with both eyes. This is a congenital atrophy of visual acuity, he has plainly made very good central compensation and functions very well. I do not consider him a danger BUT think it my duty to inform you. Perhaps a road test would do him justice?
[Emphasis added]
[21] This report was apparently sent by facsimile transmission to the Superintendent on September 9, 1998 and was referred by the Superintendent to Dr. Hosgood, a retired medical doctor, with no speciality in ophthalmology or optometry.
[22] Dr. Hosgood’s notes indicate his view on October 8, 1998 that ‘Mr. Bolster should not have been driving and that he had no alternative but to cancel his licence’.
[23] On October 26, 1998 the Superintendent cancelled Mr. Bolster’s driver’s licence without notice.
[24] The Tribunal found as facts that (a) the Superintendent made no effort to contact Mr. Bolster or his physicians before cancelling his licence; (b) they did not seek further information from Mr. Bolster or his physicians; and that (c) Dr. Hosgood’s recommendation to cancel the licence was based solely on the fact he did not meet the visual acuity standards and was made without consultation with his physicians.
[25] On October 27, 1998 Mr. Bolster contacted the office of the Superintendent and advised them that his vision had remained unchanged for many years and had been the same when he was issued his Class 1 licence in 1985. He was told they did not believe this but would look into it further.
[26] Mr. Bolster remained active, contacting both Dr. Anderson and Dr. Playfair. Dr. Playfair wrote to Dr. Hosgood questioning his assumption that Mr. Bolster posed a safety concern and Dr. Anderson submitted a further report noting his lengthy good driving history.
[27] As a result of these activities, Dr. Hosgood requested the opinions of Dr. Beattie, an eye physician and surgeon. Dr. Beattie was provided with letters from Drs. Playfair and Anderson as well as information concerning Mr. Bolster’s driving record. On November 10, 1998 Dr. Beattie provided the opinion that Mr. Bolster was incapable of operating a motor vehicle safely, and that a driver’s licence would not be appropriate. He based this conclusion on his level of visual acuity and went on to say:
What is missing from these records is an assessment of other visual function abnormalities present in a person with this diagnosis. Regardless of the performance level at which one has been functioning, a person with any form of optic atrophy and visual acuity reduced to this level will also suffer from significantly reduced color vision performance, reduced contrast sensitivity, reduced overall visual field sensitivity and delayed visual pathway conduction (ie, delayed response time in the visual system). Note that all these visual functions will deteriorate further with advancing age.
Regardless of the driving history and sympathetic correspondence on Mr. Bolster’s behalf, I cannot bring myself to believe that a person with this visual acuity and ophthalmic diagnosis is capable of operating a motor vehicle safely.
[28] On January 15, 1999 the Office of the Superintendent wrote to Mr. Bolster confirming the cancellation would remain.
[29] On April 23, 1999 Mr. Bolster, now represented by counsel, sought a reconsideration through the formal review procedure. As part of the review Mr. Bolster’s medical records were submitted to an independent medical review board made up of two ophthalmologists. Dr. Ben Wikinson, in his opinion, concluded “there is no way I would support this man continuing to hold a truck driver’s licence. His acuity is simply not adequate”. However, after considering Mr. Bolster’s good driving record, the stability of his visual condition and the fact that the condition was congenital, he gave the opinion that Mr. Bolster should be allowed a Class 5 licence “if his visual fields and colour vision are adequate”. The second member of the board, Dr. Fredrick Mikelberg wrote:
I believe that given his previous driving record and the fact that he almost meets the criteria for a Class 5 licence, it would be reasonable to allow him to maintain a Class 5 licence. I would not approve a Class 1 licence since he is not close enough to meeting the criteria for this class of licence.
[30] On June 16, 1999 Dr. Hosgood recommended that Mr. Bolster be given a Class 5 licence, restricted to daylight hours only. On June 23, 1999 this decision was communicated to Mr. Bolster and on June 24, 1999 a restricted Class 5 licence was issued. At the same time, the Superintendent required Mr. Bolster to complete a driver’s medical examination in two years.
[31] On June 30, 1999 and July 15, 1999, Mr. Bolster’s counsel advised by letter that an appeal of this decision was being taken seeking the reinstatement of his commercial licence and the removal of the daylight hours restriction.
[32] On July 10, 1999 Dr. Hopp, an ophthalmologist, wrote to the Superintendent requesting a lifting of the daylight hours restriction. In his letter, Dr. Hopp notes that “. . . certainly there appears no reason why he should have night blindness as no peripheral retinal degeneration is present”.
[33] On July 30, 1999, Mr. Kazmiruk, the Superintendent’s adjudicative team leader, confirmed the June 23, 1999 decision.
[34] In August 2000 the Superintendent advised Mr. Bolster that he was required to undergo a medical examination. When he contacted their office and asked why, when their decision said two years, he was told the notice was sent in error.
[35] On June 19, 2001 the Superintendent mailed the notice requiring a two year medical examination and as a result Mr. Bolster attended on an optometrist, Dr. Clark. Dr. Clark’s report of July 8, 2001 noted that by use of a combination of high plus spectacles and contact lenses Mr. Bolster’s corrected vision was 20/40-2 and that Mr. Bolster’s night vision was better than his daylight vision.
[36] This report appears to have drawn little reaction or interest from the office of the Superintendent.
[37] On September 24, 2002, Dr. Clark completed the next Examination of Visual Function and in forwarding his report attached a copy of his report of July 8, 2001. On the basis of this report the daylight restriction was removed on November 28, 2002.
[38] At about this time Mr. Bolster again contacted the Superintendent’s office and was told he did not meet the current standards. A renewed effort began involving a steady flow of telephone calls and letters from Mr. Bolster and contact from his MLA’s office.
[39] When the B.C. Human Rights Commission contacted the Superintendent’s office and advised he was considering a complaint there seemed to be a shift in the Superintendent’s responses.
[40] On January 10, 2003, Mr. Bolster telephoned Lynette Pineau, a case manger for the Superintendent, who advised that a letter requesting information related to his request was forthcoming. On January 21, 2003, Mr. Bolster’s follow-up inquiry drew the response that the letter “was in the works”.
[41] Within 11 days of that complaint being filed, the Superintendent, on January 29, 2003, forwarded a letter outlining the information it needed to assess his application for a Class 1 licence. The requested information included:
(1) details of his previous Class 1 driving history (including names of employers, length of employment, type of driving, type of Class 1 vehicles operated and estimated number of Class 1 driving hours);
(2) his current need for the Class 1 driver’s licence (type of employment, anticipated hours per week of Class 1 driving);
(3) the anticipated types of driving conditions; and
(4) information concerning his visual history prior to 1994.
[42] On March 4, 2003 after being provided with extensive medical and other information by Mr. Bolster, the Superintendent gave Mr. Bolster approval to have an individualized functional assessment scheduled to take place at Community Therapists Inc. in Vancouver at Mr. Bolster’s expense. The estimated cost was $1,145.00 and Mr. Bolster, who lived in Kamloops, was understandably concerned about the cost and location.
[43] On March 18, 2003 Mr. Bolster was advised he could have it done at Robertson Rehabilitation Inc. in Vernon but his financial circumstances would not allow him to proceed.
[44] On June 12, 2003 Mr. Bolster suffered a work related injury and was off work for an extended period.
[45] On September 18, 2003, approximately 5 weeks before the hearing of his complaint was to begin, the Superintendent offered to pay for the individualized assessment. Mr. Bolster called and advised of his injury and that he would undergo the assessment as soon as he had recovered.
[46] Between October 27 and October 30, 2001 the hearing of Mr. Bolster’s complaint proceeded and on January 9, 2004 final submissions were presented.
[47] After the hearing, Mr. Bolster underwent the individualized driving assessment and on February 12, 2004 the Superintendent issued Mr. Bolster a Class 1 driver’s licence with the same restrictions as that which they had revoked in October 1998.
THE TRIBUNAL’S DECISION
[48] On April 22, 2004 the Tribunal released its decision consisting of 34 pages of written reasons comprising 154 paragraphs.
[49] In the decision the Tribunal found that Mr. Bolster had established a prima facie case of discrimination on the basis of physical disability and that the Superintendent had not established a bona fide and reasonable justification. The Tribunal concluded that:
. . . from the period of October 1998 to January 28, 2003, the Respondent discriminated against Mr. Bolster, without a reasonable and bona fide justification, contrary to the Code. In addition, I find that from the period of March 3, 2003 to September 17, 2003, the Respondent discriminated against Mr. Bolster by refusing to pay the cost of his individualized assessment.
[50] After disposing of a series of preliminary objections raised by the Superintendent as to the remedy, the Tribunal:
(a) ordered the Petitioner pay for Mr. Bolster’s individualized testing if it had not already done so. [para. 128]
(b) awarded $141,939.28 in lost wages. [paras. 129 - 143]
(c) ordered the Petitioner to pay an amount sufficient to offset any additional income tax liability Mr. Bolster may incur as a result of receiving compensation for lost wages for a five year period in a lump sum in one taxation years. [para. 144]
(d) declined to award damages for the lost opportunity to purchase a tractor trailer. [paras. 145 - 148]
(e) awarded $5,000 for compensation for injury to Mr. Bolster’s feelings, dignity, and self-respect. [paras. 149 - 151]
(f) ordered interest payable on all amounts other than the award for injury to feelings, dignity and self-respect. [para. 152]
THE STANDARD OF REVIEW
[51] The history of proceedings set out in the beginning of these reasons is important in this case because on October 15, 2004, nearly six months after the Tribunal’s decision and nearly four months after the present petition was filed, the Administrative Tribunals Act, S.B.C. 2004, c. 45, came into force. This legislation deals specifically with the standard of review to be applied by a court in reviewing a decision of various listed administrative tribunals including the Human Rights Tribunal.
[52] On October 28, 2004 when the present hearing began this legislation had been in force for 13 days.
[53] The Code does not contain a privative clause and, as a result, the section of the Administrative Tribunals Act ( the “ATA”) applicable to the Tribunal in this case is s. 59 which provides:
Standard of review if tribunal’s enabling Act has no privative clause
59(1) In a judicial review proceeding, the standard of review to be applied to a decision of the tribunal is correctness for all questions except those respecting the exercise of discretion, findings of fact and the application of the common law rules of natural justice and procedural fairness.
(2) A court must not set aside a finding of fact by the tribunal unless there is no evidence to support it or if, in light of all the evidence, the finding is otherwise unreasonable.
(3) A court must not set aside a discretionary decision of the tribunal unless it is patently unreasonable.
(4) For the purposes of subsection (3), a discretionary decision is patently unreasonable if the discretion
(a) is exercised arbitrarily or in bad faith,
(b) is exercised for an improper purpose,
(c) is based entirely or predominantly on irrelevant factors, or
(d) fails to take statutory requirements into account.
(5) Questions about the application of common law rules of natural justice and procedural fairness must be decided having regard to whether, in all of the circumstances, the tribunal acted fairly.
[54] The parties are essentially on common ground on the question of whether the Tribunal member erred in law or exceeded her jurisdiction in ordering the Crown to pay a compensatory award, the standard of review under both the pragmatic and functional approach mandated by the common law authorities and that specified under the new ATA legislation is that of correctness.
[55] The parties, however, differ on what they submit is the proper standard of review to be applied to the question of whether the Tribunal member erred in finding discrimination or ordering compensation from October 1998 and with respect to the question of the qualification of the compensatory award.
[56] The petitioner says that the ATA applies and that s. 59(2) and (3) apply as at the time of a court’s review. This, they submit, does not give the legislation retroactive effect but simply applies the standards at the time of the review.
[57] The Tribunal which appeared on the hearing of this petition made submissions on the issue of the standard of review. They submit that s. 59 is not a procedural provision but rather one that substantively alters the content of the right to seek judicial review.
[58] An immediate application of s. 59 would, they submit, operate to change the substantive content of the applicable standards of review in relation to a decision made prior to its coming into force and in respect of which a judicial review proceeding was already commenced.
[59] The complainant and the personal respondent in this proceeding takes a similar position that s. 59 does not apply in this case as it would operate so as to remove a vested substantive right.
[60] The propositions advanced by both sides are correct. The difficulty inherent in the submission of the petitioner, however, is that it ignores the fact that Mr. Bolster, in this case, has a vested right. I emphasize the fact that prior to this legislation coming into effect he had made a complaint, taken that complaint to a hearing and obtained a decision in his favour. In my view, he is entitled to the benefits of that decision subject to the rights of review that existed at the time these proceedings were commenced.
[61] The distinction between procedural and substantive changes is important to this analysis. In R. Sullivan, Driedger on the Construction of Statutes, 3rd Ed. (Vancouver: Butterworths, 1994), the learned author, at 545, notes that:
To be considered procedural in the circumstances of a case, a provision must be exclusively procedural; that is, its application to the facts in question must not interfere with any substantive rights or liabilities of the parties or produce other unjust results.
He goes on to say that:
In determining whether a provision is “purely” procedural, the courts look to the substance of the provisions and its practical impact on the parties. The important thing is not the label, but the effect.
[62] In the present case if the standard of review was unchanged after the enactment of the ATA perhaps it could be viewed as procedural, but if there is a difference then, in my view, it cannot be viewed as being purely procedural.
[63] In Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590, it was recognized that on rare occasions and in specific circumstances a judge may decline to follow the decision of another judge of the same court where subsequent decisions have affected its validity, where some binding authority was not considered, or where the judgment was unconsidered.
[64] While I would be loathe to describe any decision of Paris J. as unconsidered, it was an oral decision made without citation or analysis of what constitutes a procedural amendment.
[65] Insofar as s. 59 of the ATA has altered the standard of review, in my view, those changes are substantive changes which cannot operate so as to affect existing rights which have accrued as at the time the changes came into effect.
[66] In Fraser (Re), [1986] B.C.J. No. 2376, Gibbs J., in the context of an application brought under the Judicial Review Procedure Act to review a decision of the British Columbia Council of Human Rights under the Human Rights Act, wrote, at p. 2:
The principle of repeal, or destruction, of rights by implication has no application to human rights legislation. To accomplish that end clear legislative pronouncement is required. See Lamer, J. in Insurance Corporation of British Columbia v. Heerspink et al. (1982), 137 D.L.R. (3d) 219 (S.C.C.) at p. 229:
When the subject-matter of a law is said to be the comprehensive statement of the “human rights” of the people living in that jurisdiction, then there is no doubt in my mind that the people of that jurisdiction have through their legislature clearly indicated that they consider that law, and the values it endeavours to buttress and protect, are, save their constitutional laws, more important than all others. Therefore, short of that legislature speaking to the contrary in express and unequivocal language in the Code or in some other enactment, it is intended that the Code supersede all other laws when conflict arises.
As a result, the legal proposition generalia specialibus non derogant cannot be applied to such a Code. Indeed the Human Rights Code of British Columbia, 1973 (B.C.) (2nd Sess.), c. 119 [now the Human Rights Code, R.S.B.C. 1979, c. 186] when in conflict with “particular and specific legislation”, is not to be treated as another ordinary law of general application. It should be recognized for what it is, a fundamental law.
[67] It would have been an easy matter for this legislation to have expressly incorporated a provision which made s. 59 applicable to cases in which reviews of decisions took place after the legislation came into effect. It did not do so.
[68] In my view, s. 59 to the extent that it alters the standard of review effects substantive change and as such cannot be applied to applications brought prior to its coming into force and the standard of review applicable are those that existed at the time the decision was made and the petition filed.
[69] In reaching the conclusion I have I am aware that my brother Paris J. in St. James Community Service Society v. Brent E. Johnston and The British Columbia Human Rights Tribunal, (unreported) December 2, 2004, Vancouver Registry No. L042142, reached a different conclusion and found that the charges were procedural. I observe that in the case before him the facts were undisputed and the issues were issues of law. I also note that despite that ruling he went on to indicate his analysis, under the common law pragmatic and functional approach, would not alter his decision.
[70] In H.M.T.Q. v. Hutchinson et al, 2005 B.C.S.C. 1421 at para. 72, Cullen J., for the purposes of his decision, accepted that the ATA applied and cited the decision of Paris J. in support. With the utmost deference to those decisions I have reached a different conclusion.
[71] In Bartman v. Twohey et al, 2004 B.C.S.C. 1211, Holmes J. canvassed at length the standard of review applicable in the case of a decision of the B.C. Human Rights Tribunal.
[72] At paras. 9 to 12 Holmes J. wrote:
9 There are three standards of review of the Tribunal’s decisions:
(1) “correctness”, which allows the Court to intervene if it disagrees with the decision under review;
(2) “reasonableness simpliciter”, i.e. whether the evidence, viewed reasonably, is capable of supporting the findings or inferences;
(3) “patent unreasonableness”, the most deferential standard of review.
10 Assessing the standard of review applicable to review of an administrative tribunal’s decision involves determination of legislative intent. Whether the legislature intended to leave an issue to the exclusive jurisdiction of the tribunal must be considered. [Pushpanathan v. Canada (Minister of Employment & Immigration), [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193, ¶26]
11 A determination of the appropriate level of deference to be accorded each issue under review involves employment of a pragmatic and functional approach. The appropriate level of deference dictates the standard of review applicable: patent unreasonableness, reasonableness simpliciter, or correctness. [Ryan v. Law Society (New Brunswick), [2003] 1 S.C.R. 247, 223 D.L.R. (4th) 577, ¶1]
12 There are four relevant factors in determining the applicable standard of review:
(a) the presence or absence of a privative clause, or a statutory right of appeal,
(b) the expertise of the tribunal relative to the court,
(c) the purpose of the statute,
(d) the nature of the problem.
[Dr. Q. v. College of Physicians & Surgeons (British Columbia), [2003] 1 S.C.R. 226, 11 B.C.L.R. (4th) 1, ¶26]
DID THE TRIBUNAL ERR IN LAW OR EXCEED ITS JURISDICTION BY ORDERING THE PETITIONER TO PAY MR. BOLSTER FINANCIAL COMPENSATION?
[73] In the decision under review the Tribunal member under s. 37(2)(d)(ii) of the Code ordered the province to pay Mr. Bolster $141,939.38 in respect of wages lost as a result of the discriminatory conduct and, under s. 37(2)(d)(iii) a further $5,000.00 for injury to feelings, dignity and self respect.
[74] The petitioner submits that these awards are in contravention of long standing common law and constitutional principles which protect the Crown and hold it immune from damage awards arising from legislation, quasi-judicial or policy decisions made by government officials.
[75] In approaching this issue it should be noted that in this petition (a) there is no dispute that the provincial Crown is bound by the Code; (b) the petitioner does not challenge the Tribunal’s finding that they discriminated against Mr. Bolster without a bona fide and reasonable justification contrary to s. 8 of the Code. Instead it limits its challenge to the temporal scope of the finding, and (c) it does not challenge the Tribunal’s jurisdiction to order a remedy against it under s. 37(2) of the Code.
[76] The issue as framed by the petitioner narrows this issue to a claim that longstanding principles of Crown immunity precludes the Tribunal from awarding monetary compensation under s. 37(2)(d)(ii) and (iii) despite findings of discriminatory government conduct.
[77] In support of this proposition the petitioner relies on the line of cases beginning with Welbridge Holdings Ltd. v. Winnipeg (Greater), [1991] S.C.R. 957.
[78] The plaintiff’s action in Welbridge was one brought in negligence against a municipal corporation. Underlying the action was a zoning bylaw which was declared to be invalid. The plaintiff was precluded from recovering damages said to arise from the invalidity of the bylaw.
[79] Laskin J., as he then was, speaking for the court drew a distinction between the defendant municipal corporation acting “. . . in a legislative capacity or [performing] a quasi-judicial duty . . . ”.
[80] The distinction, drawn at pp. 968 - 969, he found applied in situations where the municipality was “exercising discretionary statutory authority”. He went on to conclude that:
It would be incredible to say in such circumstances that it owed a duty of care giving rise to liability in damages for its breach “invalidity is not the test of fault and it should not be the test of liability.
[81] The other authorities relied upon include Quebec (Commission des droits de la persona et des droits de la jeunesse) v. Communauté urbaine de Montréal [2004] 1 S.C.R. 789, Guimand v. Quebec (Attorney) [1996] 3 S.C.R. 347, Mackin v. New Brunswick (Minister of Finance) [2002] 1 S.C.R. 405, McCorkell v. Riverview Hospital Review Panel [2004] B.C.J. No. 84.
[82] In each case these decisions involved a consideration of whether legislation (a law or a regulation) was invalid by application of constitutional principles. In Guimand v. Quebec this involved a consideration of s. 52 of the Constitution Act, 1982 and s. 52 of the Quebec Charter of Human Rights and Freedoms. In Mackin it involved an attempt to amend the Provincial Court Act by Bill 7. The court found the legislation violated s. 11(d) of the Canadian Charter of Rights and Freedoms and declared it invalid under s. 52 of the Constitution Act, 1982.
[83] McCorkell involved an unsuccessful challenge of provisions of the Mental Health Act as violating s. 7 and 9 of the Charter.
[84] Returning to the decision in Welbridge the critical reasoning in terms of the present case begins at p. 967:
Accepting that Hedley Byrne has expanded the concept of duty of care, whether in amplification or extension of Donoghue v. Stevenson, it does not, nor, in my view, would any underlying principle which animates it, reach the case of a legislative body, or other statutory tribunal with quasi-judicial functions, which in the good faith exercise of its powers promulgates an enactment or makes a decision which turns out to be invalid because of anterior procedural defects.
. . .
The defendant is a municipal corporation with a variety of functions, some legislative, some with also a quasi-judicial component (as the Wiswell case determined) and some administrative or ministerial, or perhaps better categorized as business powers. In exercising the latter, the defendant may undoubtedly (subject to statutory qualification) incur liabilities in contract and in tort, including liability in negligence. There may, therefore, be an individualization of responsibility for negligence in the exercise of business powers which does not exist when the defendant acts in a legislative capacity or performs a quasi-judicial duty.
[Emphasis added]
[85] There is in the present case no law or regulation under attack and there is no underlying legislative function. At best the petitioner must strive to equate what happened in the present case with the exercise of a “quasi-judicial function” exercised in good faith. There is no decision here subsequently found to be invalid let alone one found to be invalid “because of anterior procedural defects.”
[86] I emphasize the fact that in the present case the decision was to cancel the complainant’s existing driving licences without notice or consultation and to eventually reissue them on identical terms once the present complaint had been filed and the individual assessment had been conducted.
[87] If I assume good faith on the part of the petitioner in light of what they submit is their overriding responsibility to protect the public, I must assume firstly that in issuing the licence originally and renewing it as necessary between 1985 and 1998 they properly fulfilled their duty in good faith and licensed Mr. Bolster. Secondly, I must assume that having finally provided Mr. Bolster with an individualized driving assessment they had that public protection responsibility in mind when they restored the identical licence to him on February 12, 2004 something over 5 years later.
[88] I am left with their decision, on October 26, 1998 to cancel his Class 1 commercial licence without notice or consultation, and without any evidence that his physical or medical conditions had changed in any way.
[89] In my view, the Welbridge decision and the line of authorities derived from it do not support the broad application of the concept of Crown immunity urged on the court in the present case. The Superintendent, in the case at bar, was exercising neither a legislative nor a quasi-judicial function but rather a “business” power. Even if I am wrong in that conclusion this is not a decision that turns out to be invalid as a result of procedural defects, nor on the circumstances present here is it possible to view the decision to cancel Mr. Bolster’s licence as a good faith exercise of the powers entrusted to the Superintendent.
[90] The petitioner goes on to submit that the decision of Callaghan J. in Harrington (Guardian ad litem) v. Pappachristos [1992] B.C.J. No. 2600 supports its assertion that the Crown enjoys immunity from an award of damages if the individual was acting in a “quasi-judicial” manner. While this decision is indeed given in somewhat broad terms, that decision has been implicitly overruled by our Court of Appeal in British Columbia Council of Licensed Practical Nurses v. Mans, [1993] B.C.J. No. 371 where they specifically found that licensing authorities are subject to human rights proceedings, including liability for compensatory damages. On appeal they specifically upheld the judge’s conclusion that the jurisdiction of the Human Rights Council was not ousted by the fact that the complaint arose out of the exercise of statutory powers exercised by the LPN Council.
[91] In British Columbia (Workers Compensation Board) v. British Columbia (Council of Human Rights) (1990), 47 B.C.L.R. (2d) 119, the court reached a similar conclusion even where there existed a privative clause.
DAMAGES AND HUMAN RIGHTS LEGISLATION
[92] The petitioner, in their written submissions, took the following position:
81. We submit that City of Montreal answers completely any question as to whether the Tribunal can make a compensatory award against government for actions taken of a quasi-judicial nature that may later be found to be “unlawfully (discriminatory) [sic]. While the City of Montreal acted in a discriminatory manner in relying upon hearing standards in deciding not to hire Mr. Laroque it did not follow that it was liable to Mr. Laroque for compensation for lost wages arising out of the discrimination. Likewise here, if the Superintendent discriminated against Mr. Bolster in relying upon sight standards, other medical information and Mr. Bolster’s drivers record, and in not providing a functionally based individualized assessment it does not follow, notwithstanding the unlawfulness of the decision that he, or the province, is liable for any past wage loss Mr. Bolster experienced.
82. The policy rationale for holding government immune from damage awards applies equally to legislative standards, policy standards or quasi-judicial decisions made pursuant to statute. The rationale behind limited immunity is to allow for effective and efficient government action. Government needs to be free from damage awards in order to effectively govern. In light of the law on Crown immunity the Tribunal had no jurisdiction to order the Province to compensate Mr. Bolster.
[93] With respect this submission seeks to expand the decision well beyond its bounds to create a widespread form of Crown immunity that even encompasses specific terms of its own legislation.
[94] The narrow ratio of the City of Montreal decision can be found in paras. 18 and 19 of the reasons:
18 In the case at bar, as I have already mentioned, the dispute arose out of the adoption and application of a regulatory standard authorized by provincial legislation. It stems from the regulatory activities of the CUM authorized under s. 178.1 of its enabling Act.
19 In such cases, well-established principles of public law rule out the possibility of awarding damages when legislation is declared unconstitutional, be it on the grounds of a violation of the separation of legislative powers within the Canadian federation or of non-compliance with the Canadian Charter. The case law of this Court has been consistent in this regard. The Court’s position was recently outlined in the comments of Gonthier J. in Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405, 2002 SCC 13, at paras. 78-79:
According to a general rule of public law, absent conduct that is clearly wrong, in bad faith or an abuse of power, the courts will not award damages for the harm suffered as a result of the mere enactment or application of a law that is subsequently declared to be unconstitutional (Welbridge Holdings Ltd. v. Greater Winnipeg, [1971] S.C.R. 957; Central Canada Potash Co. v. Government of Saskatchewan, [1979] 1 S.C.R. 42) . . . .
In our parliamentary system of government, Parliament or a legislature of a province cannot be held liable for anything it does in exercising its legislative powers. The law is the source of duty, as much for citizens as for the Administration, and while a wrong and damaging failure to respect the law may for anyone raise a liability, it is hard to imagine that either Parliament or a legislature can as the lawmaker be held accountable for harm caused to an individual following the enactment of legislation. (Footnotes omitted.)
. . . The limited immunity given to government is specifically a means of creating a balance between the protection of constitutional rights and the need for effective government. In other words, this doctrine makes it possible to determine whether a remedy is appropriate and just in the circumstances. Consequently, the reasons that inform the general principle of public law are also relevant in a Charter context. Thus, the government and its representatives are required to exercise their powers in good faith and to respect the “established and indisputable” laws that define the constitutional rights of individuals. However, if they act in good faith and without abusing their power under prevailing law and only subsequently are their acts found to be unconstitutional, they will not be liable. Otherwise, the effectiveness and efficiency of government action would be excessively constrained. Laws must be given their full force and effect as long as they are not declared invalid. Thus it is only in the event of conduct that is clearly wrong, in bad faith or an abuse of power that damages may be awarded (Crown Trust Co. v. The Queen in Right of Ontario (1986), 26 D.L.R. (4th) 41 (Ont. Div. Ct.)).
[Emphasis in original]
[95] As I have already indicated in this case the petitioner seeks to expand the principle of Crown immunity well beyond that which is recognized in the authorities.
[96] The purpose of the Code is identified in s. 3 and its application by s. 4.
If there is a conflict between this Code and any other enactment, this Code prevails.
[97] In s. 37(2)(d) a member or panel who has determined that a complaint is justified may:
(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.
[98] Since 1979 the courts have recognized in this country the compensatory nature of human rights legislation determining that this type of legislation codifies the remedies for discrimination (see Bhadauria v. Board of Governors of Seneca College of Applied Art and Technology [1979] 105 D.L.R. (3d) 707).
[99] The courts have recognized and upheld the award of damage claims against government officials found to engage in discriminatory conduct even when these actions involved statutory discretion (see Canada (Attorney General) v. Green (2000) 38 C.H.R.R. D/1 (F.C.T.D.); British Columbia (Superintendent of Motor Vehicles) v. British Columbia Council of Human Rights [1999] 3 S.C.R. 868 (“Grismer”)).
[100] It is equally clear that human rights legislation has been recognized as having a special character and nature. In Winnipeg School Division No. 1 v. Craton the Supreme Court of Canada observed at para. 8, that:
Human rights legislation is of a special nature and declares public policy regarding matters of general concern. It is not constitutional in nature in the sense that it may not be altered, amended, or repealed by the Legislature. It is, however, of such nature that it may not be altered, amended, or repealed, nor may exceptions be created to its provisions, save by clear legislative pronouncement. To adopt and apply any theory of implied repeal by later statutory enactment to legislation of this kind would be to rob it of its special nature and give scant protection to the rights it proclaims.
[101] I am satisfied that a plain reading of the Code provides the Tribunal hearing a complaint and finding that the complaint is justified, by s. 37 the statutory jurisdiction to order that the person discriminated against be compensated. The provisions of s. 37(2)(d)(ii) specifically contemplate an award of compensation for lost wages or salary.
[102] There is, in my view, no principle of law emerging from the authorities relied upon by the petitioner which limit the Tribunal’s statutory jurisdiction to make such an award in the circumstances of this case.
[103] The petitioner relies heavily on the City of Montreal decision as imposing such limits. With respect, there are, in my view, two important distinguishing features. Firstly, the facts in that case arose from a discriminatory regulation passed under specific regulatory authority and, as such, specifically engaged the legislative authority aspect of Crown immunity. Secondly, there was, in that case, two specific legislated limits on the jurisdiction of the Quebec Human Rights Tribunal to award damages against the government. Those limits are found in s. 80 of the Charter of Rights and Freedoms, R.S.Q., c. 12 and in s. 1376 of the Civil Code of Quebec, S.Q. 1991, c. 64.
[104] No such legislative limits exist in the present case, despite the fact it was within the power of the legislature to include such limits within the language when it enacted the Code.
[105] It is also significant, in my view, that since its enactment the Code has been significantly reviewed on two occasions. In 2002 it was substantially reworked with the dismantling of the Commission and the restructuring of the Code’s application (B.C. Human Rights Code Amendment Act, 2002 (Bill 64) S.B.C. 2002, c. 62). In 2004 the subject was again considered by the legislature with the enactment of the Administrative Tribunals Act, S.B.C. 2004, c. 45 and with the enactment of the Attorney General Statutes Amendment Act, S.B.C. 2004, c. 57.
[106] Despite these express and recent considerations no express limitation exists within the Code which would limit the Tribunal from exercising its express statutory power in s. 37. In my view, in such circumstances it is inappropriate for the court to effectively write such limits into the Code (Canada (Attorney General) v. Mossop [1993] 1 S.C.R. 554 at 581 and Berg v. University of British Columbia [1993] 2 S.C.R. 353 at 371).
DID THE TRIBUNAL ERR IN FINDING LIABILITY FOR DISCRIMINATION FROM OCTOBER 1998?
[107] The petitioner submits that the Tribunal’s finding of discrimination from October 1998 cannot be supported because until the Supreme Court of Canada released its decision in Grismer on December 16, 1999, there was no obligation on the Superintendent to offer individualized assessments. This result, they submit, flows from the decision of our Court of Appeal that, until it was overturned by the Supreme Court of Canada, held that requiring individual assessment was patently unreasonable.
[108] The petitioner also submits that between December 1999 and November 2002 there is little evidence that Mr. Bolster was pressing for the reinstatement of his commercial Class 1 licence on an individualized assessment.
THE TRIBUNAL’S DECISION
[109] On this aspect of the matter the Tribunal determined that the prima facie discriminatory conduct was the cancellation of Mr. Bolster’s Class 1 licence in October 1998 and not reinstating it (paras. 76 - 81). They found this was a continuing discrimination.
[110] The Tribunal went on to reject the submission that the petitioner had accommodated Mr. Bolster or that there was a bona fide and reasonable justification for its conduct. In making these findings the Tribunal specifically found that the petitioner had not fairly assessed the risk posed by Mr. Bolster based on all the evidence before it, but rather relied solely on Mr. Bolster’s failure to meet its visual acuity standards (paras. 88 - 91).
[111] I cannot summarize the evidence on this aspect of the matter better than it was in para. 90 of the decision under review:
[90] I recognize and appreciate that it is part of the OSMV’s responsibility to protect the travelling public from individuals who might pose a risk. However, there is no indication that the OSMV took into account any factors other than Mr. Bolster’s visual acuity that may have assisted them in making a risk assessment: for example, the opinions of his treating physicians, the congenital nature of his condition (which made it more likely that Mr. Bolster had learned to compensate for his low visual acuity), the fact that his condition was not deteriorating, his 13 years of commercial driving experience, or his driving record. This does not constitute an individual assessment. In cancelling Mr. Bolster’s licence in this manner, the OSMV discriminated against him contrary to the Code.
[Emphasis added]
[112] The Tribunal went on to conclude that the initial reconsideration by Dr. Beattie did not meet the requirements of the Code, and, in fact, applied the very kind of stereotyping by assumption and generalization it was designed to avoid (paras. 92 - 93).
[113] The Medical Review Panel subsequently convened equally, in the Tribunal’s view, failed to meet the standard required by focusing on Mr. Bolster’s disability rather than his proven abilities (paras. 94 - 98).
[114] In January 2003, the Tribunal found that the petitioner began a good faith process of providing Mr. Bolster with an individualized assessment. Even then, however, they required Mr. Bolster to pay for the assessment which they found constituted further discrimination. The petitioner finally agreed to pay for the assessment eight months later on September 18, 2003 (paras. 99 - 102).
[115] The Tribunal concluded that the petitioner discriminated against Mr. Bolster without a reasonable and bona fide justification from October 1998 to January 28, 2003, and from March 3, 2003 to September 17, 2003 by refusing to pay the cost of his individualized assessment.
[116] A finding of discrimination such as this is a question of mixed fact and law and as such the standard of review is reasonableness simpliciter.
[117] The petitioner essentially submits that it was not obliged to provide an individualized assessment because of the decision of our Court of Appeal in Grismer. With respect that submission ignores the other components of the Tribunal’s finding. Central to those findings was the conclusion that the petitioner cancelled Mr. Bolster’s licence without ever fairly assessing the risk he may have posed on the basis of the evidence they had before them and readily at hand.
[118] This cancellation was of a commercial Class 1 licence that had been held by Mr. Bolster to the petitioner’s knowledge for 13 years. The petitioner had not only issued the licence originally (presumably and in fact after full and detailed assessments were required of him) it had also presumably renewed it from time to time.
[119] Whether or not they were required to provide an individualized assessment by the reasoning of the Court of Appeal, the conclusion is inescapable that on the basis of their own records in issuing the licence they had done so.
[120] The fact that eventually after providing an individualized assessment they reissued the licence they had cancelled only serves to highlight the extent to which the decision to cancel stands alone.
[121] The respondent Bolster submits that the petitioner’s argument is unsound because s. 2 of the Code provides:
2. Discrimination in contravention of this Code does not require an intention to contravene this Code.
[122] He submits that if intention is not an element then knowledge of the Court of Appeal’s decision cannot change the existence of an act of discrimination.
[123] In British Columbia (Public Service Relations Commission) v. BCGSEU [1999] 3 S.C.R. 3 (“Meiorin”) and in Grismer the Supreme Court of Canada determined that once a prima facie case of discrimination has been established the onus shifts to the party accused of discrimination to justify its conduct.
[124] The three step process established requires the party accused of discrimination to demonstrate a bona fide and reasonable justification by proving:
(a) it adopted the standard for a purpose or goal that is rationally connected to the function being performed;
(b) it adopted the standard in good faith, in the belief that it is necessary to the fulfillment of the purpose or goal; and
(c) the standard is reasonably necessary to accomplish its purposes or goals, in the sense that the respondent cannot accommodate the complainant and others adversely affected by the standard without incurring undue hardship.
[125] The petitioner had direct involvement at all stages in the Grismer litigation and had knowledge of the issues in that litigation as well as those in Hussey v. British Columbia (Ministry of Transportation and Highways) (1999) 36 C.H.R.R. D/429 (B.C.H.R.T.). Despite that there is no evidence that the petitioner changed its practices to comply with those mandated by Grismer or Meiorin. It was only after Mr. Bolster had taken initial steps towards initiating these proceedings that the petitioner took any steps towards conducting an individualized assessment. That was in January 2003 over three years after the decision in Grismer was rendered.
[126] The petitioner’s submission that Mr. Bolster did not actively pursue the matter between December 1999 and November 2002 must be given the weight it deserves in the context of the evidence as a whole. The cancellation of his licence had created pressure both financially and emotionally. He had limited income and funds and his efforts were met with repeated rejections. On May 4, 2001, he became a bankrupt. The Tribunal made a specific finding that he did pursue the matter of his Class 1 licence and, on the evidence that conclusion was reasonable.
[127] I find the Tribunal’s finding of discrimination and liability for that discrimination was reasonable and meets the requisite standard.
DID THE TRIBUNAL ERR IN DETERMINING THE QUANTITY OF COMPENSATION TO BE PAID TO MR. BOLSTER?
[128] The petitioner submits that the Tribunal erred in assessing the quantum of compensation in awarding some $5,000 per month when his income tax returns from 1992 to 1997 showed income of some $5,000 per year.
THE TRIBUNAL’S DECISION
[129] The Tribunal in this case made the following factual findings on the issue of compensation:
(a) Mr. Bolster as a result of the cancellation of his licence was unable to continue his work for Westcan (para. 130);
(b) At the time his licence was cancelled he was earning net monthly income in excess of $5,000 from his position at Westcan;
(c) The period of loss extended some 51 months;
(d) Mr. Bolster’s total income loss over that period would have totalled $255,000 but his efforts to mitigate his losses reduced that amount to $166,987.51 (paras. 131 - 139);
(e) Various negative contingencies would reduce that loss by 15% bringing the loss to $141,939.38 (paras. 140 - 143).
[130] The Tribunal’s findings in determining the appropriate remedy under s. 37 are either factual or discretionary in nature and the applicable standard of review in either case is that of patent unreasonableness.
[131] The authorities recognize that common law principles governing compensating damages should be applied in the human rights context (Vanton v. B.C. (Council of Human Rights) (1994) 21 C.H.R.R. D/492 (B.C.S.C.)). Those principles are usefully set out in Andrews v. Grand & Toy Alberta Ltd. [1978] 2 S.C.R. 229 and Wallace v. United Grain Growers Ltd. [1997] 3 S.C.R. 701.
[132] When Mr. Bolster’s licence was cancelled he was working for Westcan earning a fixed wage. Prior to that he had run his own business with his former wife. When they divorced he sold that business and went to work for Westcan.
[133] In September 1998 Mr. Bolster was injured in a motor vehicle accident. I.C.B.C. concluded his wage loss for a 16 day period was $4,454.56.
[134] In my view, there is no rational basis on the facts of this case to give overriding weight to Mr. Bolster’s income tax returns prior to his beginning fulltime employment with Westcan. This is particularly so when the tax returns and financial statements of that business were not before the Tribunal.
[135] The commencement of his employment with Westcan was an event that to a significant extent fixed his income and his loss. The approach taken by the Tribunal was reasonable in the circumstances and, in my view, cannot be found to be patently unreasonable.
SUMMARY
[136] In summary
1. The standards of review applicable to a decision rendered prior to the coming into force of the Administrative Tribunals Act on which an application to review had been filed is that in effect at the time of the decision under review.
The applicable standards are:
(a) The question of interpretation of the bona fide and reasonable justification under s. 8(1) of the Code is a question of law on which the Tribunal must be correct.
(b) To the extent that the Tribunal’s factual findings are challenged, the standard is patent unreasonableness.
(c) A finding of discrimination is a mixed finding of fact and law and the standard of review is reasonableness simpliciter.
(d) An allegation that the Tribunal erred in awarding compensation is a finding of fact or an exercise of discretion and the standard of review is that of patent unreasonableness.
2. The Tribunal neither erred in law nor exceeded its jurisdiction by ordering the petitioner to pay compensation to Mr. Bolster.
3. The Tribunal did not err in finding discrimination or in determining that it began in October 1998.
4. The Tribunal did not err in quantifying compensation.
[137] I dismiss the petition for judicial review. Costs may be spoken to if counsel are unable to agree.
“W.G. Parrett, J.”
The Honourable Mr. Justice W.G. Parrett