[1] Kimberly Nixon is a post-operative male to female transsexual. She is medically and legally a woman.

[2] The petitioner, Vancouver Rape Relief Society, has denied Ms. Nixon the opportunity to volunteer her services as a rape counsellor. That refusal has given rise to a complaint which the respondent, British Columbia Human Rights Tribunal (the Tribunal), is now scheduled to hear on July 14, 2000.

[3] The petitioner has applied for judicial review seeking an order prohibiting the Tribunal from hearing Ms. Nixon's complaint. It submits that the Tribunal has no jurisdiction over the subject matter of the complaint or, alternatively, has lost jurisdiction due to delay in the processing of the complaint.

[4] From a broad human rights perspective this proceeding raises the question of whether the prohibition against discrimination on the basis of sex under the British Columbia Human Rights Code, R.S.B.C. 1996, c. 210 (the present Code) extends protection from such discrimination to transgendered individuals. From a more narrow perspective it raises administrative law issues concerning:

(a) whether the respondents, British Columbia Human Rights Commission (the Commission) and Tribunal have jurisdiction over the subject matter of Ms. Nixon's complaint in the specific circumstances;

(b) whether the petitioner's application for judicial review based upon the alleged lack of jurisdiction is premature;

(c) what is the appropriate test for judicial review of the Commission's determination to refer Ms. Nixon's complaint to the Tribunal for hearing; and

(d) whether there has been such inordinate delay in the processing of Ms. Nixon's complaint that this court should now prohibit the Tribunal from hearing the complaint.

[5] The petitioner is a non profit women's organization incorporated in 1975. It is dedicated to assisting women in crisis because of male violence.

[6] On April 18, 1977 the petitioner applied under the British Columbia Human Rights Code, S.B.C. 1973, c. 119 (the 1973 Code) for approval of a women only hiring policy. It did so because of the nature of its rape counselling and other services provided to women in crisis.

[7] Section 22 of the 1973 Code provided for "group rights exemptions" and s. 11(5) contained approval provisions for such exemptions. To the extent relative to these proceedings they provided:

22. If a charitable, philanthropic, educational, fraternal, religious or social organization or corporation that is not operated for profit has as a primary purpose the promotion of the interests and welfare of an identifiable group or class of persons characterized by ... sex ... that organization or group must not be considered to be contravening this Code because it is granting a preference to members of the identifiable group or class of persons.

[8] On April 20, 1977 approval of a women only hiring policy was granted to the petitioner.

[9] In 1984 the 1973 Code was replaced by the Human Rights Act, S.B.C. c. 22 (the 1984 Act). The 1984 Act, as well as the present Code which came into force in 1997, each have group rights exemption provisions which are similar to those contained in the 1973 Code. The 1984 Act contained and the present Code now contains approval provisions which are similar but not identical to those contained in the 1973 Code. The group rights exemption granted to the petitioner in 1977 under the 1973 Code has never been withdrawn.

[10] On August 29, 1995 Ms. Nixon responded to a publicly advertised request for volunteers by attending a training session organized by the petitioner. There is some controversy as to the conversations which occurred between Ms. Nixon and one or more of the petitioner's trainers which led to the petitioner's refusal to allow Ms. Nixon to continue with the training program that evening. There is, however, no doubt that the petitioner rejected Ms. Nixon as a counsellor because she had not been a woman since birth.

[11] The petitioner's rationale for that decision is that only a woman who has grown up with experience as a girl and a woman will have "the attendant insights into the relationship between male violence and women's inequality in order to assist women in crisis because of male violence". That rationale is coupled with a concern that some clients of the petitioner requiring counselling may not be comfortable with a counsellor whom they may believe is not or may not be a woman.

[12] The petitioner continues to assert the appropriateness of that rationale as the basis for its continuing policy of refusing to allow any person who is not female by birth to participate as a volunteer counsellor in its organization. The petitioner asserts that the policy was and is a valid one under both the 1984 Act and the present Code because of the still existing exemption status granted for its women only hiring policy in 1977.

[13] On August 30, 1995 Ms. Nixon filed a complaint against the petitioner under the 1984 Act alleging discrimination "by refusing me employment, because of my sex contrary to Section 8 [of the 1984 Act]".

[14] To the extent relevant to these proceedings, s. 8 of the 1984 Act provided:

8 (1) No person shall

(a) refuse to employ or refuse to continue to employ a person, or

(b) discriminate against a person with respect to employment or any term or condition of employment,

because of race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person ...

(4) Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.

[15] On March 6, 1996 Ms. Nixon amended her complaint under the 1984 Act. She alleged that the petitioner had discriminated against her "with respect to a service and/or facility customarily available to the public and/or by refusing to employ me because of my sex, contrary to Sections 3 and 8 [of the 1984 Act]".

[16] To the extent relevant to these proceedings, s. 3 of the 1984 Act provided:

[17] On January 1, 1997 the Human Rights Amendment Act, 1995, S.B.C. 1995, c. 42 (the Amendment Act) came into force creating the present Code. Pursuant to the transitional provisions of the Amendment Act, unresolved complaints filed under the 1984 Act were continued under the present Code. There were no significant substantive changes to the relevant portions of either ss. 3 or 8 of the 1984 Act which were, however, renumbered as ss. 8 and 13 respectively in the present Code.

[18] The coming into force of the Amendment Act and the creation of the present Code also resulted in the decommissioning of the Council of Human Rights which had been created by the 1984 Act. That body had itself been created to replace the Human Rights Commission created by the 1973 Code. In place of the Council of Human Rights, the Amendment Act and the present Code created the Tribunal and the Commission. These two entities are separate and serve different functions.

[19] Section 15 of the present Code provides that the Commission is comprised of a chief commissioner, a deputy chief commissioner, and a commissioner of investigation and mediation. The commissioner of investigation and mediation is charged with the responsibility of investigating and processing complaints filed or continued under the present Code, has the authority to appoint delegates to investigate complaints and to determine whether to refer complaints to the Tribunal for adjudication.

[20] The Tribunal is independent of the Commission and has no involvement in the investigation and processing of complaints. The Tribunal's principal mandate under the present Code is to determine whether complaints referred to it by the commissioner of investigation and mediation (or a delegate) are justified and, if so, provide appropriate remedies.

[21] I will not discuss in detail the tortured history of Ms. Nixon's complaint through the investigative process under the 1984 Act and the present Code from August of 1995 until September of 1999. It was, however, not until there had been much delay and involvement of many investigative personnel that on September 10, 1999 Mr. Kevin Gillese, a delegate of the commissioner of investigation and mediation, issued a decision referring Ms. Nixon's complaint to hearing by the Tribunal.

[22] A review of the documentary evidence establishes that neither Ms. Nixon nor the petitioner were well served by the failure of the Human Rights Council under the 1984 Act or the Commission under the present Code to address Ms. Nixon's complaint in an expeditious and timely way. I am satisfied that their failure to do so arose primarily as a consequence of administrative backlogs and lack of resources.

[23] The evidence also establishes that although the petitioner was aggressive in the defence of its position at all times prior to the referral to the Tribunal on September 10, 1999, it was not unreasonably so and at no time acquiesced in either investigative or administrative delay.

[24] The petitioner raises three jurisdictional issues in support of its application for an order prohibiting the Tribunal from hearing Ms. Nixon's complaint.

[25] Two of those issues relate to the question of whether Mr. Gillese, acting as a delegate of the commissioner of investigation and mediation, erred in law by exceeding his jurisdiction. The petitioner says he did so by:

(a) misinterpreting the meaning of discrimination on the basis of sex under the 1984 Act and the present Code to include discrimination based on "gender identity (including transsexualism)"; and

(b) similarly misinterpreting the statutory group exemption provisions and the approval of the petitioner's 1977 women only hiring policy.

[26] The petitioner asserts that neither the Commission nor the Tribunal has the authority to amend its enabling legislation to add what it says is a new ground of discrimination. It submits that for that reason the delegate and Commission had no basis upon which to refer the complaint and the Tribunal has no jurisdiction to hear it.

[27] The third jurisdictional issue is raised in the alternative. It is based upon the proposition that if the Commission and Tribunal did have jurisdiction over the complaint, the Tribunal has now lost jurisdiction due to delay in the processing of the complaint which it says has caused prejudice to the petitioner and its members.

[28] As to the first two issues, counsel for the Commission, Tribunal, and Ms. Nixon submit that without the benefit of all of the evidence which would be relevant and available to the Tribunal concerning Ms. Nixon's complaint, the petitioner's application for prohibition is premature. They also submit that either Mr. Gillese was correct in referring Ms. Nixon's complaint for hearing or, alternatively that the appropriate standard for review of his decision is that of reasonableness. They say that the decision was not unreasonable and that the question of jurisdiction over the subject matter of the complaint should be left to the Tribunal to determine.

[29] As to the delay issue, the Commission and Tribunal both acknowledge that there has been significant delay in the investigation and processing of Ms. Nixon's complaint. They submit, however, that in the circumstances of the complaint and most particularly the petitioner's continuing policy of refusing to allow transgendered women to provide counselling services, such delay does not warrant a prohibition order. They say further that the Tribunal should be left to decide whether the complaint should be stayed by it due to any actual prejudice to the petitioner's ability to defend the complaint because the Tribunal is in the best position to assess the actual effect of delay relating to the evidentiary and legal issues requiring investigation.

[30] Ms. Nixon joins the respondents in their submissions concerning delay but makes the further argument that to prohibit the Tribunal from proceeding with its hearing because of institutional delay which arose entirely outside her control would have a greater adverse effect upon her than upon either the petitioner or its members. She also points to the lack of practicality of a prohibition order in light of the ongoing policy of the petitioner. Her counsel submits that a new complaint could be filed immediately after a stay is entered since it is inevitable that the petitioner would again refuse to allow Ms. Nixon to provide volunteer counselling services to its clients if she applied to do so.

[31] The petitioner submits that since the 1984 Act and the present Code prohibit discrimination only on listed grounds which do not include either "transsexualism" or "gender identity", the Commission had no jurisdiction to refer Ms. Nixon's complaint and the Tribunal has no jurisdiction to adjudicate upon it. It says the issue can readily be decided as a question of statutory interpretation without the need for further evidence.

[32] The respondents and Ms. Nixon submit that this court should not exercise its jurisdiction to determine these issues until the Tribunal has had the opportunity to rule upon its own jurisdiction after having the benefit of the evidence of all of the facts relevant to Ms. Nixon's complaint necessary to decide whether it has jurisdiction.

[33] The respondents and Ms. Nixon rely upon the decision of Lamperson J. in Kelowna (City) v. British Columbia (Human Rights Commission), [1999] B.C.J. No. 1848 (S.C.) (Q.L.) in which he extensively reviewed the applicable authorities concerning prematurity and then stated (at para. 11):

[34] In answer to the argument that its application is premature, the petitioner acknowledges that the Tribunal does have jurisdiction to hear preliminary challenges to its own jurisdiction. It submits, however, that the court should not postpone its own jurisdiction to determine these fundamental jurisdictional issues until the Tribunal has considered and ruled upon the issues. It relies upon Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854 for the proposition that the court has jurisdiction to hear and determine jurisdictional issues and upon University of British Columbia v. Berg, [1993] 2 S.C.R. 353 for the proposition that fundamental questions of jurisdiction involving statutory interpretation should be reviewed by the court rather than an administrative tribunal when the tribunal has no special expertise in statutory interpretation.

[35] The petitioner argues that the court should rule upon the jurisdictional issues at this stage because:

(a) the issues raise narrow questions of statutory interpretation in which the Tribunal has no particular expertise;

(b) determination by the Tribunal will be futile and will likely result in further applications for review because the Tribunal has determined in three recent decisions (Sheridan v. Sanctuary Investments Ltd. (No. 2) (1998), 33 C.H.R.R. D/464, [1998] B.C.H.R.T.D. No. 18 (Q.L.); Mamela v. Vancouver Lesbian Connection, [1999] B.C.H.R.T.D. No. 51 (Q.L.), and Ferris v. O.T.E.U., Local 15, [1999] B.C.H.R.T.D. No. 55 (Q.L.) that discrimination based upon sex does include transsexualism; and

(c) at issue in this proceeding is not only the Tribunal's jurisdiction to hear the complaint but also that of the Commission to refer the complaint to the Tribunal for hearing in circumstances where the Tribunal has acknowledged in Hunter v. British Columbia (Ministry of Health), [1999] B.C.H.R.T.D. No. 65 (Q.L.) that it has no supervisory role over the actions of the Commission so that the court must fulfill that role.

[36] I acknowledge the general wisdom of awaiting the availability of a full evidentiary record prior to determining an issue of jurisdiction in most administrative law matters. I have, however, determined that in this case it is appropriate to decide the preliminary jurisdictional issues raised by the petitioner without further evidence. I do so because:

(a) I am in general agreement with the petitioner's submissions concerning the appropriateness of the court rather than an administrative tribunal determining fundamental issues of jurisdiction based upon statutory interpretation;

(b) I am concerned about the expense of further applications for review which seem almost inevitable given the status of the Tribunal's own jurisprudence; and

(c) the petitioner has agreed that its preliminary jurisdictional issue can and should be determined upon the adjudicative facts most favourable to Ms. Nixon.

[37] The facts most favourable to Ms. Nixon's complaint are that on August 29, 1995 as a post operative transsexual woman, Ms. Nixon was both medically and legally a woman. Given those admissions by the petitioner, I see no need for a further factual matrix in order to determine the issue of the respondents' jurisdiction over her complaint on the basis of statutory interpretation.

[38] The petitioner submits that by referring Ms. Nixon's complaint to the Tribunal Mr. Gillese purported to alter the ground "sex" to encompass transsexualism or "gender identity" thus giving it a meaning never intended by the legislature. It submits that similar errors were made by the Tribunal in the cases of Sheridan (supra), Mamela (supra), and Ferris (supra), upon which Mr. Gillese relied and which errors it anticipates the Tribunal will perpetuate if it hears Ms. Nixon's complaint.

[39] These issues of legislative intent and statutory interpretation are of obvious importance to the broad question of whether the 1984 Act and the present Code encompass protection against discrimination arising from gender identity or transsexualism on the enumerated ground of sex. In my opinion, however, the more narrow issues of whether the Commission had jurisdiction to refer Ms. Nixon's particular complaint to the Tribunal and whether the Tribunal has jurisdiction to hear the complaint can be determined by reference to section 27(1) of the Vital Statistics Act, R.S.B.C. 1996, c. 479.

[40] That section provides:

27(1) If a person in respect of whom trans-sexual surgery has been performed is unmarried on the date the person applies under this section, the director must, on application made to the director in accordance with subsection (2), change the sex designation on the registration of birth of the person in such a manner that the sex designation is consistent with the intended results of the trans-sexual surgery.

[41] The provisions of s. 27 of the Vital Statistics Act were initially enacted in 1973 at the same time that the 1973 Code was enacted. Section 27 of the Vital Statistics Act establishes that the legislature intended that post operative transsexuals such as Ms. Nixon would be entitled to the same legal status as other members of their post operative sex.

[42] It is therefore my opinion that in Ms. Nixon's case the discriminatory conduct which she now alleges against the petitioner may fairly be characterized as an allegation of discrimination against her as a woman, a complaint over which the Commission and the Tribunal both have jurisdiction just as they have jurisdiction over any complaint of discrimination by any woman based upon appearance.

[43] Ms. Nixon's complaint also engages the issue of the extent to which the approval of the petitioner's women only hiring policy under the 1973 Code's group rights exemption provisions may validate the petitioner's refusal to allow Ms. Nixon to provide counselling services to the petitioner's clients.

[44] In my view, based upon my analysis of the issues of the respondents' jurisdiction over Ms. Nixon's complaint generally but also upon the nature of the inquiry into the women only hiring policy and its rationale, the determination of this secondary jurisdictional question is one which is well within the jurisdiction of the Tribunal. At issue is the ongoing validity of the 1977 approval made by a predecessor human rights board. At issue also is the relationship of that approval and the general group rights exemption to the complaint of a person who is legally a woman. The extent to which such approval may apply to a transgendered woman is an issue which should be determined by the Tribunal on the basis of a full evidentiary record which can explore the rationale for and the continued validity of the approval in light of the group rights exemption provision under the present Code. I see no reason to warrant the court's interference in that process.

[45] I have already determined that the respondents do have jurisdiction over the subject matter of Ms. Nixon's specific complaint on the relatively narrow basis of the applicability of s. 27 of the Vital Statistics Act to her particular circumstances.

[46] The further issue arises as to whether I should also consider the broader question of whether the prohibition in the 1984 Act and the present Code against discrimination on the basis of sex also includes discrimination on the basis of gender identity or transsexualism.

[47] I recognize that in so doing my determinations constitute obiter dicta but I have decided to address this larger issue because:

(a) if I am wrong in my interpretation of section 27 of the Vital Statistics Act to the facts of Ms. Nixon's case, the issue would then be a live one;

(b) the matter was thoroughly argued before me;

(c) the issue raises a question of statutory interpretation based upon legislative intent and as such the evidentiary foundation related to the circumstances of any particular allegation of discriminatory behaviour are of less significance than would be the case if the issue raised was not one of legislative intent and statutory interpretation; and

(d) my opinion on the issue may be of assistance to the Commission, Tribunal, and other interested groups.

[48] In making the argument that the legislature did not intend to extend human rights protection to transsexuals or to prohibit discrimination on the basis of "gender identity" within the prohibition against discrimination on the basis of the enumerated ground "sex" under the 1984 Act or the present Code the petitioner relies upon "legislative intent" submissions that:

(a) both the 1984 Act and the present Code contain a "closed" list of grounds upon which discrimination must be based before it will be prohibited;

(b) amendments to the 1984 Act passed by the legislature in 1992 added the grounds "family status" and "sexual orientation" to ss. 3 and 8 of the 1984 Act and broadened the ground "age" to include younger people but did not add "transsexualism" or "gender identity" as enumerated grounds;

(c) the legislature did not adopt an "open-ended" list of grounds notwithstanding such recommendations made by Professor Bill Black after his comprehensive review of British Columbia's human rights legislation in 1994; and

(d) the legislature did not act upon a recommendation made by the Commission on January 19, 1998 to add the ground "gender identity" as a new ground of discrimination under the present Code. That recommendation stated:

In the few cases where transgendered people have filed human rights complaints in various provinces, including B.C., their claims have been processed on the grounds of sex/gender, disability or sexual orientation. The Transgendered Law Reform Project, sponsored by the B.C. Law Foundation, showed the inadequacies in dealing with this type of discrimination under the existing categories. Adding 'gender identity' as a ground for protection would ensure that adequate protection is accorded to all those who fall under the category.

[49] The petitioner also relies upon decided cases which have held that the ground "sex" in the human rights legislation under consideration in those cases could not be interpreted to include discrimination based upon sexual orientation. (See: Board of Governors of the University of Saskatchewan v. Saskatchewan Human Rights Commission, [1976] 3 W.W.R. 385 (Sask. Q.B.); Vogel v. Government of Manitoba (1983), 4 C.H.R.R. D/1654 (Man. Bd. Adj.); Vogel v. Manitoba (No. 2) (1991), 16 C.H.R.R. D/233 (Man. Bd. Adj.); aff'd (1992) 16 C.H.R.R. D/233 (Man. Q.B.); Knodel v. British Columbia (Medical Services Commission) (1991), 58 B.C.L.R. (2d) 356 (S.C.); Egan v. Canada (1991), 87 D.L.R. (4^th) 320 (F.C. T.D.); and Nielsen v. Canada (Human Rights Commission), [1992] 2 F.C. 561 (T.D.).)

[50] The petitioner submits that in considering the meaning of the ground "sex", regard must be had to the specific legislative and jurisprudential context in which the term "sex" is used. It submits that the issue is not what the term "sex" might mean in the abstract or in some other legislative or semantic context, but rather what it means in the context of the legal concept of sex discrimination. The petitioner asserts that sex discrimination means an unjustified refusal of a benefit or the imposition of a burden because one is a man or a woman, or because of social, economic or political disadvantage primarily associated with maleness or femaleness. It relies upon Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219 and Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252.

[51] In essence it is the petitioner's submission that the legislature intended to limit discrimination based upon "sex" to social and economic issues of discrimination arising between men and women which were the product of a male dominated society. While acknowledging that transgendered individuals could also be oppressed and subjected to discrimination, the petitioner submits that the legislature has deliberately refrained from extending protection to them and that it is not now open to the Commission or Tribunal to do so by interpreting "sex" in a manner the petitioner says was never intended by the legislature. The petitioner says that to do so would be to allow the Commission and Tribunal to usurp a legislative function. See: Cooper v. Canada (Human Rights Commission) (supra).

[52] I do not accept the petitioner's premise that by prohibiting discrimination on the basis of sex, the legislature intended to redress only male/female social, economic and political issues. I also do not accept that its failure to amend the 1984 Act or the present Code to specifically include gender identity or transsexualism as enumerated grounds of discrimination should be taken to mean that the legislature did not intend that human rights protection on the ground of sex did not extend to transsexuals.

[53] It is well settled law that human rights legislation is to be approached purposively giving it a fair, large and liberal interpretation with a view to advancing its objects. See: Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571.

[54] In Gould, Iacobucci J. stated (at p. 586):

[55] Careful review of Professor Black's recommendations and the 1998 recommendations of the Commission leads to the conclusion that the recommendations were intended to ensure human rights protection was available for transsexuals, not to create protection which did not already exist. In those circumstances, legislative inaction cannot be read as an intention to deny that protection exists.

[56] In my opinion to limit discrimination on the basis of sex to male/female issues places a far too narrow limit upon the purpose and intent of the 1984 Act and the present Code. While Canadian courts have indeed looked to issues which concerned the social, economic and political disadvantage of women in assessing what conduct may amount to discrimination on the basis of sex, many cases also reflect the less specific principle that human rights legislation is intended to preclude and rectify the wrongful oppression of the weak by the strong and the disadvantaged by the advantaged in society.

[57] In my view, unless compelled to do so by specific legislative direction or clear evidence to the contrary, it would be wrong to interpret the prohibition against discrimination on the basis of sex in either the 1984 Act or the present Code as not also prohibiting discrimination against an individual merely because that person or group is not readily identifiable as being either male or female.

[58] I see no compelling direction by the legislature to reach such a conclusion and I reach the opposite conclusion for the following reasons:

(a) I refer once again to the provisions of s. 27 of the Vital Statistics Act which were enacted in 1973 at the same time as this province's first human rights legislation. It cannot be said that the legislature was not alive to the issue of transsexualism;

(b) I can discern no pattern in the statutes or regulations of this province which leads me to the inevitable conclusion that the words "sex" and "gender" are used with any specific intent. They appear to me to be used either randomly or interchangeably;

(c) I have been referred to no sufficiently common definitions of "sex" in either common usage dictionaries or legal dictionaries which leads me to the inevitable conclusion that "sex" is limited to male/female issues or does not include gender related questions;

(d) there is compelling medical evidence that determinations of sex and gender characteristics and issues often involve multifactoral considerations which go well beyond simple maleness or femaleness; and

(e) since sex or gender issues may factually include more than purely male or female possibilities and characteristics it would in my view be wrong to approach the question of discrimination based upon sex from a solely male or female perspective.

[59] I am accordingly of the opinion that the prohibition against discrimination on the basis of "sex" in the 1984 Act and the present Code includes a prohibition against discrimination on the basis of transsexualism.

[60] Since I have determined that Mr. Gillese was correct in his determination that the Commission had jurisdiction to refer Ms. Nixon's complaint to the Tribunal, it is not necessary to answer this question.

[61] The issue was also, however, argued at some length and in the event I am wrong in my determination that Mr. Gillese was correct, an answer to the question may prove to be necessary.

[62] I have determined that the standard of review is that of reasonableness. I have done so because:

(a) the obligation of the commissioner of investigation and mediation (or a duly appointed delegate such as Mr. Gillese) to decide whether complaints referred to the Commission should be dismissed in whole or in part or referred to the Tribunal for adjudication is found in s. 27 of the present Code;

(b) Section 27 provides:

(emphasis added)

(c) in Kelowna (City) v. British Columbia (Human Rights Commission) (supra) Lamperson J. implicitly determined the issue of the appropriate standard of review for a referral at paragraph 16 as being the "reasonableness" standard when he stated:

[63] I have considered the argument that a determination by an administrative body that it has jurisdiction under its enabling statute is one that should be assessed on a standard of correctness due to the principle that a statutory body cannot confer jurisdiction upon itself. See: Cooper v. Canada (Human Rights Commission) (supra).

[64] Notwithstanding that proposition, in view of the implicit determination of this issue by Lamperson J. in Kelowna (City), I am not prepared to say that a correctness standard should be imposed upon the non-adjudicative fact finding role of the Commission especially when it is not required by s. 27(3) of the present Code to give reasons for assumption as opposed to refusal of jurisdiction.

[65] It seems to me that as a practical matter to impose a standard of correctness at the gatekeeper level could require judicial review at a time when the court would not have sufficient evidence to determine whether the investigative as opposed to adjudicative facts necessary were available to it allow an informed decision on jurisdiction.

[66] The petitioner submits that a delay of sixty-one months from the date which Ms. Nixon filed her complaint under the 1984 Act until Mr. Gillese referred the complaint to the Tribunal is inexcusable and that I should stay the hearing of the complaint because of severe prejudice allegedly suffered by the petitioner and its members due to that delay. The petitioner relies upon Blencoe v. British Columbia (Human Rights Commission), [1998] B.C.J. No. 1092 (B.C.C.A.) (Q.L.); NLK Consultants Inc. v. British Columbia (Human Rights Commission), [1999] B.C.J. No. 380 (B.C.S.C.) (Q.L.); and Nulla Bona Holdings Ltd. v. British Columbia (Human Rights Commission), unreported B.C.S.C. Kelowna Registry Docket No. 46411, February 10, 2000.

[67] Blencoe was a split decision of the British Columbia Court of Appeal in which Lambert J.A. dissented. McEachern C.J.B.C. and Prowse J.A. for the majority held that a delay of 30 months in the bringing of several sexual harassment complaints to a hearing before the Tribunal constituted a breach of Mr. Blencoe's rights under s. 7 of the Canadian Charter of Rights and Freedoms (the Charter). Chief Justice McEachern said (at paragraph 105):

[68] In NLK Consultants, J.T. Edwards J. held that a delay of approximately four and one-half years in the processing and investigation of a complaint of sexual discrimination was unreasonable compared to other cases and that NLK Consultants Inc. was prejudiced and denied its right to natural justice. Edwards J. applied Blencoe notwithstanding that no Charter rights were involved since the respondent NLK Consultants Inc. was a corporation.

[69] In Nulla Bona Holdings Ltd., Cole J. held that a delay of 39 months in the processing and investigation of a complaint that the complainant's employment was terminated due to her pregnancy was unreasonable in the circumstances of that case.

[70] The petitioner submits that since the delay in this case is longer than that considered in Blencoe, NLK Consultants, and Nulla Bona Holdings the same result should follow. It also submits that in addition to inferred prejudice arising from the institutional delay, it has suffered actual prejudice arising from the death of an important witness and inability to locate another witness. It says further that its members are prejudiced in that their reputations as persons who support human rights have been tarnished by Ms. Nixon's unresolved complaint.

[71] As I have previously noted, the delay in the processing and investigation of Ms. Nixon's complaint is attributable to institutional delay arising from a backlog of cases before the Commission, its failure to process those cases expeditiously and lack of resources. I am not, however, satisfied that in all of the circumstances of this case it is appropriate to direct a judicial stay of further proceedings before the Tribunal.

[72] In my opinion the reasoning in Blencoe is not directly applicable in this case because it was specifically decided on the basis of Charter principles which do not arise in this case. In addition, Blencoe involved allegations against an individual, which were quasi-criminal in nature (characterized as "tantamount to sexual assault") which had resulted in enormous publicity and the destruction of Mr. Blencoe's political career.

[73] I am also satisfied that both NLK Consultants and Nulla Bona Holdings are factually very different from the circumstances in this case. Although both cases did involve findings of inferred prejudice arising from delay, the applicants in each case had also both suffered demonstrable and substantial actual prejudice arising from the loss of crucial evidence due to delay. In my view, neither NLK Consultants nor Nulla Bona Holdings intended to establish that any particular length of delay constitutes inferred prejudice requiring that a judicial stay must be entered.

[74] I am satisfied that the factual circumstances of this case are sufficiently different from those in Blencoe, NLK Consultants, and Nulla Bona Holdings that it would not be appropriate to prohibit the Tribunal from adjudicating upon Ms. Nixon's complaint. I say that because:

(a) the petitioner has not established actual prejudice arising from lost evidence either in relation to a deceased witness, the inability to locate a witness or the effluxion of time;

(b) unlike in NLK Consultants and Nulla Bona Holdings, the evidentiary issues raised by the petitioner in this case are peripheral to the primary evidentiary concerns, i.e. what was said to Ms. Nixon by the petitioner's trainer (who is available to give evidence and who has not alleged she has suffered any failed memory) on August 29, 1995;

(c) in the event that what now appear to be peripheral evidentiary issues do become significant issues when the Tribunal hears the complaint the Tribunal will be better able to assess the extent to which the petitioner may in fact be prejudiced in its defence and retains the jurisdiction to enter a stay if it is necessary and appropriate to do so because of actual prejudice;

(d) the petitioner acknowledges that its policy of refusing to allow women who were not born women continues to exist so that the same issue could immediately again arise for consideration by the Commission and Tribunal even if a stay of Ms. Nixon's existing complaint was entered;

(e) unlike the circumstances considered in Blencoe, NLK Consultants, and Nulla Bona Holdings in which the respondents deny the factual basis for the allegations of discrimination, the petitioner in this case relies upon a defence of justification arising from the group rights exemption approval granted for its women only hiring policy in 1977; and

(f) I fail to see how an argument concerning alleged prejudice to the petitioner or its members as an organization and individuals supportive of human rights can arise in the circumstances of an ongoing policy which they say is justified by the nature of the petitioner's objectives.

[75] In all of the circumstances of this case and most particularly because of the existence of its ongoing policy which it justifies on human rights principles, I am satisfied that the petitioner has not established that it has been so prejudiced by the institutional delay in this case that it has been deprived of natural justice.

[76] The petitioner's application for an order prohibiting the Tribunal from proceeding to hear Ms. Nixon's complaint either for lack of jurisdiction over the subject matter of the complaint or for loss of jurisdiction due to delay is dismissed.

"B.M. Davies, J."
The Honourable Mr. Justice B.M. Davies