2005 BCSC 1421err1.doc HMTQ v. Hutchinson et al

Before: The Honourable Mr. Justice Cullen

Reasons for Judgment

Counsel for the petitioner	L. Greathead D. Roberts
Counsel for the respondents Cheryl Hutchinson and Phillip Hutchinson	F. Kelly J. Doulis
Counsel for the respondent B.C. Human Rights Tribunal	K. Hardie
Date and Place of Hearing:	January 31, February 1-2, 2005
	Vancouver, B.C.

INTRODUCTION

[1] The fundamental question raised by this judicial review is whether proscriptions contained in sections 8 and 13 of the Human Rights Code, R.S.B.C. 1996, c. 210 (the “Code”) against discrimination based on physical disability and family status justify a finding that the effect of a particular governmental policy limiting the scope of public funding for health services is discriminatory and, in the circumstances, justifies an award of compensation against the government.

[2] The petitioner, Her Majesty the Queen in Right of B.C., seeks a judicial review of the decision of a member of the Human Rights Tribunal, rendered June 28, 2004 in connection with the complaints of the respondents, Cheryl Hutchinson and her father Phillip Hutchinson, arising out of Ms. Hutchinson’s participation “in a program created in the mid 1990’s by the Ministry of Health (“the Ministry”) called Choices in Support for Independent Living (“CSIL”).” In her decision, the Tribunal Member found the Ministry’s adherence to a policy limiting the scope of funding through the CSIL program discriminated against both respondents, and in the result she made certain orders under s. 37 of the Code including, among others, an order that the Ministry cease and desist the discrimination against the respondents, an order that it modify its policy to create exceptions to the scope of public funding and an order to pay compensation to both respondents.

[3] It is the position of the petitioner that the Tribunal Member erred in finding discrimination against the respondents and erred or lacked jurisdiction to make the orders of compensation against the Ministry even if she did not err in finding discrimination. It is the position of the respondents Cheryl and Phillip Hutchinson that the Tribunal Member neither erred in finding discrimination nor in awarding compensation and did not lack jurisdiction to award compensation against the Ministry.

[4] It was the position of the Tribunal, which limited its submission to the question of its jurisdiction, in the circumstances, to award compensation against the Ministry, that it did not lack jurisdiction to do so.

BACKGROUND

[5] Ms. Hutchinson is a 35 year old woman with physical disabilities. She was born with cerebral palsy, experiencing significant limitations in her childhood and quadriplegia by the time she was an adult. She is, and at all times material to this review, has been considered by the Ministry to be in the category of those with the most severe physical disabilities. She requires significant personal care including bathing, dressing, toileting, transfers, mobility and meal preparation.

[6] When Ms. Hutchinson was 13 years old, in 1983, her mother left the family home. Since then her father, Mr. Hutchinson, has been her primary caregiver foregoing other forms of employment to be so, leaving social assistance as his only source of income.

[7] Despite her obvious limitations, Ms. Hutchinson has, with the contribution of Mr. Hutchinson’s care and support, graduated from both high school and university and has become a composer.

[8] The petitioner, through the Ministry, provides continuing care services (formerly known as long term care) to physically disabled British Columbians pursuant to the provisions of the Continuing Care Act, R.S.B.C. 1996, c. 70 (“the Act”) and the continuing care programs regulation, B.C. Reg. 146/95 (the “Regulations”). Under the umbrella of the Act and Regulations, the Ministry provides residential care services; home support services; adult day services; meal programs; case management services; respite services; short stay assessment and treatment centers; home care nursing and community rehabilitation services.

[9] Since 1997 the Ministry has delegated its continuing care responsibilities under the Act and Regulations to regional health authorities created pursuant to the Health Authorities Act, R.S.B.C. 1996, c. 180. The relevant local authority for Ms. Hutchinson’s continuing care needs is the Vancouver Richmond Health Board (“VRHB”).

[10] The CSIL program was developed in the mid 1990’s as a method of providing continuing care to selected participants in response to an identified demand. Essentially the CSIL program was designed to give a measure of choice and control to people with severe disabilities over the hiring, training, paying and management of their caregivers. All participants selected for the program were severely disabled, but assessed as having the ability to direct their own care. They are paid directly to be able to hire and pay the caregivers of their choice.

[11] There was evidence before the Tribunal Member that the CSIL had a salutary effect on the well being of its participants.

[12] Because the participants were limited to those with severe disabilities who also possess the ability to administer the responsibilities under the program, there are less than 500 people who have been accepted into CSIL.

[13] Ms. Hutchinson applied to participate in the program and, after an assessment, was accepted in 1998. There was evidence before the Tribunal that an underlying precept of the continuing care programs, expressed in policy and otherwise, was to provide assistance to disabled persons to supplement what they could do for themselves or with the help of family, friends or the community.

[14] The policy in question in this case was issued in 1983. It is contained in the Ministry’s service provider’s handbook: Continuing Care Division Long Term Care Program, in Chapter 8 (Financial Management) Section H (Payment to Families). It reads as follows:

The Continuing Care Program does not provide financial remedies to family members to care for relatives either through direct payment to the individual, payment through a homemaker agency, or payment as an approved service provider (e.g. family care home or licensed facility).

[15] That policy is echoed in the agreements which each CSIL participant including Ms. Hutchinson is required to enter into. It states that the “Ministry of Health does not permit the person hired to be a relative of the client.”

[16] The rationale underlying the policy is expressed by the case manager’s handbook for long term care programs as follows:

The philosophy of the program emphasized the role of the family and the community by involving the family wherever possible and by providing services under the program only to the extent that the individual and family were unable to cope within their own resources.

[17] The handbook also notes:

The underlying principle of the program is the belief that individuals are responsible and wish to care for themselves and their families for as long as they are able to do so. The program is therefore supportive in nature and provides service only to the extent that personal and family resources are unable to meet health care needs.

[18] In another manual, the Continuing Care Policy Manual, the underlying concept is expressed thus:

Continuing care services are designed to supplement rather than replace the efforts of individuals to care for themselves with the assistance of family and friends. Thus individuals and their families are expected to do as much as they can for a family member without government assistance.

[19] The CSIL program itself is described in the VRHB case manager’s program in the following way:

Although most clients will choose to continue with the traditional method of home support, some clients and their caregivers may wish more choice and control in their lives. The CSIL program, using direct funding for the purchase of home support services, offers eligible clients this greater degree of autonomy.

[20] The CSIL program was regarded by the Ministry as cost neutral in the sense that it cost no more to fund the participant than if the services of home care support agencies were used to provide the same care. There was evidence that the average amount of funding of participants in CSIL was $4,200 per month.

[21] When Ms. Hutchinson was assessed for suitability for CSIL and to determine the level of support she required, it was her plan and expectation to move out of her father’s home and to live independently. She was assessed as requiring sufficient funding to hire caregivers for 248 hours per month, which amounted to $6,000 per month. The assessment established that she required the presence of caregivers 24 hours per day, 8 hours of which was to be paid for.

[22] As it turned out, Ms. Hutchinson was involved in a motor vehicle accident and her condition subsequently deteriorated so that she did not move out from her father’s home.

[23] Ms. Hutchinson hired a number of caregivers under the CSIL program, but for one reason or another they were not suitable, or in the case of one caregiver, who was suitable, became unavailable. As a result, Mr. Hutchinson continued to be Ms. Hutchinson’s primary caregiver throughout her involvement in the CSIL program. Although she remained entitled to the $6,000 per month to pay for her caregivers, she was unable to use the funds to pay her father for his efforts because of the proscription in the policy and in the CSIL agreement to which she was a party.

[24] Ms. Hutchinson sought an exemption from the policy so that she could use the CSIL funding to pay her father as her primary caregiver on the footing that she considered him the most appropriate in the circumstances. The Ministry declined her request, and in the result, she and Mr. Hutchinson each filed Human Rights complaints alleging that the Ministry policy prohibiting the hiring of family members is discriminatory.

[25] Ms. Hutchinson’s and Mr. Hutchinson’s complaints came on for hearing before the Tribunal on 18 days between July 3, 2001 and February 28, 2004. As well as the petitioner and respondents, the Deputy Chief Commissioner (“DCC”) of the Human Rights Commission was involved in the hearing and supported the position of the respondents (complainants). The office of the DCC was eliminated on March 31, 2003 pursuant to the Human Rights Amendment Act, 2002 S.B.C. 2004, c. 62.

[26] The relevant provisions of the Human Rights Code under which the respondents alleged the petitioner’s conduct to be discriminatory are sections 8 and 13. The provision governing remedies is s. 37. Section 8 reads as follows:

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

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

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

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

(2) A person does not contravene this section by discriminating

(a) on the basis of sex, if the discrimination relates to the maintenance of public decency or to the determination of premiums or benefits under contracts of life or health insurance, or

(b) on the basis of physical or mental disability, if the discrimination relates to the determination of premiums or benefits under contracts of life or health insurance.

[27] Section 13 reads as follows:

13 (1) A person must not

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

(b) discriminate against a person regarding employment or any term or condition of employment

because of the 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 or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.

(2) An employment agency must not refuse to refer a person for employment for any reason mentioned in subsection (1).

(3) Subsection (1) does not apply

(a) as it relates to age, to a bona fide scheme based on seniority, or

(b) as it relates to marital status, physical or mental disability, sex or age, to the operation of a bona fide retirement, superannuation or pension plan or to a bona fide group or employee insurance plan.

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

[28] Section 37 reads as follows:

37 (1) If the member or panel designated to hear a complaint determines that the complaint is not justified, the member or panel must dismiss the complaint.

(2) If the member or panel determines that the complaint is justified, the member or panel

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

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

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

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

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

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

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

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

(3) An order made under subsection (2) may require the person against whom the order is made to provide any person designated in the order with information respecting the implementation of the order.

(4) The member or panel may award costs

(a) against a party to a complaint who has engaged in improper conduct during the course of the complaint, and

(b) without limiting paragraph (a), against a party who contravenes a rule under section 27.3 (2) or an order under section 27.3 (3).

(5) A decision or order of a member or panel is a decision or order of the Tribunal for the purposes of this Code.

(6) The member or panel must inform the parties and any intervenor in writing of the decision made under this section and give reasons for the decision.

[29] The Tribunal Member identified the issues before her as follows:

1. Does the blanket prohibition against the hiring of family members under CSIL which prohibited Cheryl Hutchinson from hiring her father as her caregiver discriminate against her on the basis of her family status and/or disability contrary to s. 8 of the Code?

2. Does the blanket prohibition against the hiring of family members under CSIL which prohibits Phillip Hutchinson from being hired as a caregiver for his daughter discriminate against him on the basis of his family status contrary to s. 13 of the Code?

3. If a prima facie case of discrimination is found, is the blanket prohibition against the hiring of family members justified?

4. If discrimination is found, what is the appropriate remedy?

[30] The Tribunal Member noted that under the Code the “initial burden” of proof was on the complainants to establish a prima facie case of discrimination, at which point the onus fell on the respondent Ministry to establish a defence to the prima facie case. The overall burden on the complainants was to establish the case for discrimination on a balance of probabilities.

[31] Before the Tribunal, the parties disagreed on what “the appropriate analysis of a prima facie case” entailed. The complainants and the DCC argued that to meet the initial burden, the complainants need only show adverse treatment based on a prohibited ground of discrimination under the Code relying on Ontario HRC and O’Malley v. Simpson Sears Ltd., [1985] 2 S.C.R. 536. The Ministry argued that the analysis required was that established by jurisprudence flowing from alleged breaches of s. 15 of the Canadian Charter of Rights and Freedoms involving an assessment whether “the different treatment experienced impacted on their dignity” relying on Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 [Law]; Vancouver Rape Relief Society v. Nixon et al, 2003 BCSC 1936 [Nixon] and British Columbia Ministry and Service Employees Union v. H.M.T.Q., 2002 BCCA 476 [Reaney].

[32] After analyzing the separate lines of authority relied on by the parties, the Tribunal Member concluded that establishing a prima facie case of discrimination under the Code is not affected by the Supreme Court of Canada’s decision in Law nor the British Columbia Supreme Court’s decision in Nixon.

[33] Her conclusions are set out in paragraphs 87 and 88 of her Reasons as follows:

I conclude that neither the Supreme Court of Canada’s decision in Law, nor the B.C. Supreme Court’s decision in Nixon, has altered the elements of a prima facie case which a complainant must establish under the Code. In most human rights cases, it will be evident when adverse treatment constitutes discrimination and it will be unnecessary to engage in a full analysis under the Law framework. That is, once the complainant demonstrates that he or she has been adversely treated based on a prohibited ground of discrimination under the Code, the onus will shift to the Respondent to justify its conduct. Where a purposive approach to the discrimination analysis is taken, a more searching dignity analysis like the one encompassed in the Law analytical framework is not necessary, the dignity impact will be implicit, and a finding of discrimination would only be confirmed by such an analysis. In the rare case, where the discriminatory nature of the impugned conduct is in question, the Tribunal may engage in the analysis set out in Law, utilizing the principles and contextual factors set out therein, in considering the impact on the complainant’s dignity.

My conclusion with respect to what constitutes an appropriate prima facie analysis in the human rights context is strengthened by the recent B.C. Court of Appeal decision, Health Sciences Association v. Campbell River and North Island Transition Society, 2004 BCCA 260, which was released on May 10, 2004, in which the Court addressed the issue of family status under the Code and set out the prima facie case analysis with no reference to the Law analytical framework.

[34] The Tribunal Member went on to consider whether the policy discriminated against Ms. Hutchinson on the basis of her family status and/or disability contrary to s. 8, noting that she alleged the severity of her disability compounded the discriminatory effect of being unable to hire her father as the caregiver of her choice and the most appropriate simply because he is her father.

[35] In her analysis, the Tribunal Member concluded that “CSIL provides health care support services that are customarily available to the public” and that conferring benefits in a discriminatory manner would infringe the Code. The Tribunal Member accepted that it was necessary for Ms. Hutchinson to establish a prima facie case of discrimination to “identify a suitable comparator group in relation to which the treatment she received was adverse”.

[36] It was the Ministry’s contention that the appropriate comparator group was either all disabled people or all clients of CSIL and in comparison to the former, Ms. Hutchinson is advantaged because of her acceptance into CSIL; and in comparison to the latter, she is treated the same, as they too are unable to hire relatives as caregivers.

[37] It was the petitioner’s contention that the appropriate comparator group is either able bodied individuals or CSIL members who can hire the caregiver of their own choice, and that she has adversely treated in relation to each of those groups.

[38] In her analysis, the Tribunal Member found the appropriate comparator group to be “CSIL clients who are not restricted by the blanket prohibition either because they do not wish to or need to hire a family member as a caregiver.” The Tribunal Member reasoned that as Ms. Hutchinson is at the highest level of care need, her choice of caregiver would likely be more crucial than those requiring “less care and care of a less intimate nature.”

[39] In turning to the question whether the prohibition against hiring family members had a discriminatory effect on Ms. Hutchinson because of her disability, the Tribunal Member considered the severity of her disability and the degree of care it required to be significant factors. She concluded, given the intimate care required for Ms. Hutchinson a proscription against hiring her father as her choice of caregiver could have an effect on her dignity and privacy greater than on people suffering from less disability. Accordingly, the Tribunal Member found that Ms. Hutchinson established a prima facie case of discrimination based on disability.

[40] On the basis of family status, the Tribunal Member considered the fact that Ms. Hutchinson has only received care from her father since she was 13 years old, made repeated but unsuccessful attempts to find an alternate appropriate care giver and has, accordingly, relied on her father “almost exclusively” for her care although being unable to hire him. In context, the Tribunal Member found Ms. Hutchinson to be left in a “vulnerable and unstable situation” because of the prohibition based on her family status, and accordingly found that she established a prima facie case of discrimination on that ground as well.

[41] In relation to Mr. Hutchinson, the Tribunal Member found that the opportunity to be hired under CSIL constitutes employment within the meaning of the Code and the absence of a direct employer/employee relationship did not preclude its application. She went on to find that Mr. Hutchinson’s ineligibility for employment as his daughter’s caregiver was determined solely on his family status, without regard for his personal attributes and skills and that accordingly, the prima facie case of discrimination was made out.

[42] Both in the case of Ms. Hutchinson and Mr. Hutchinson, the Tribunal Member found that the onus shifted to the Ministry to justify its blanket rule against hiring family members under CSIL; to establish it as a “bona fide occupational requirement”.

[43] Despite her finding that Law did not alter the test for finding discrimination under the Code, the Tribunal Member went on to consider whether the complainants established a prima facie case for discrimination in light of the “Law analytical framework” with emphasis on the issue whether in context Ms. Hutchinson and Mr. Hutchinson’s dignity was demeaned by the differential treatment.

[44] She noted that, relying on Law, the applicable test was a subjective/objective one involving the point of the view of “the reasonable person in circumstances similar to those of the complainant who is informed of and rationally takes into account the various contextual factors relevant to the claim.”

[45] The Tribunal Member noted that in Law, the court contemplated claims both where the discrimination would be obvious and where a more refined analysis was necessary to determine whether distinct treatment constituted discrimination by infringing an individual dignity.

[46] In the case of Ms. Hutchinson, the Tribunal Member, after applying the objective/subjective test established in Law, concluded that Ms. Hutchinson’s evidence established a prima facie case of discrimination. Her conclusions are set out in her reasons at paragraph 139 – 141 as follows:

In the circumstances of this case, I take notice of Ms. Hutchinson’s pre-existing disadvantage. She is severely disabled and a member of a group that has historically experienced disadvantage in society (Eldridge, Auton, and Eaton). I have found that her choice and autonomy is limited by the Ministry’s policy which prohibits her from hiring her father as her caregiver. I have found that this limitation is crucial to Ms. Hutchinson and is not merely an inconsequential preference. I find that the Ministry’s policy which provides for a blanket prohibition against the hiring of all family members by a disabled person in Ms. Hutchinson’s situation clearly impacts her dignity viewed from the appropriate subjective-objective perspective.

My conclusion is strengthened when the other contextual factors outlined in Law are examined. Ms. Hutchinson belongs to a group, the disabled, who have been subject to pre-existing disadvantage, stereotyping and prejudice. Although CSIL has gone some considerable way to afford more choice and autonomy to this group, the blanket prohibition on the hiring of family members does not appear to take into consideration the vulnerability of a subset of this group, being those with the highest care needs. Therefore, although it is the intent of CSIL to have an ameliorative effect for the disabled community, the prohibition fails to take into account the particular needs and circumstances of those like Ms. Hutchinson whose most appropriate caregiver may in fact be a family member. In this case, the nature and scope of the interest affected is one that is paramount to Ms. Hutchinson’s physical, emotional, and psychological well being. The blanket prohibition restricts choice and autonomy, without consideration of the individuals’ circumstances.

In my view, it is clear that the reasonable person in circumstances similar to those of Ms. Hutchinson, who is informed of, and rationally takes into account, the various contextual factors, including that one of the purposes of CSIL is to facilitate greater autonomy and choice for its clients while adhering to the Ministry’s philosophy that family members have the primary responsibility to care for one another, and cognisant of the Ministry’s concern with costs, would experience a violation of her dignity when the blanket prohibition against the hiring of family members is applied to her without consideration of her particular circumstances.

[47] The Tribunal Member following Mr. Hutchinson’s evidence similarly established a prima facie case of discrimination applying the test established in Law despite the fact he was not a member of a group with a pre-existing disadvantage.

[48] The Tribunal Member’s reasoning leading to that finding is set out in paragraphs 143 – 147 of her decision as follows:

It is clear from the reasoning in B that it is sufficient for Mr. Hutchinson to make out a prima facie discrimination if he establishes that he was denied an employment opportunity solely on the basis that he is Ms. Hutchinson’s father.

When the contextual factors set out in Law are examined, in the context of Mr. Hutchinson’s case, it only strengthens the conclusion that his dignity has been impacted. There is no evidence before me which suggests that Mr. Hutchinson’s family status in relation to Ms. Hutchinson compromises his ability to be an effective caregiver to his daughter. In fact, the reverse is suggested. Although it may be that a significant cost concern would arise if all family members were to be paid for all the services they currently provide for their disabled family members, that is not the issue before me. In Mr. Hutchinson’s case, the cost to the Ministry would be the same if Ms. Hutchinson uses the funds she receives from CSIL to pay her father, or if she uses it to pay a non-family member to care for her.

In this case, Mr. Hutchinson is being denied an employment opportunity simply on the basis of this family status. His ability to do the job, and the fact that he has performed the job in question for many years are not even considered. He is being prohibited from being hired by his daughter under CSIL simply because he is her father. Further, when it is considered that the ameliorative purposes of CSIL include the assisting of families to care for each other, and the increase of choice for the disabled, it is clear that the blanket prohibition against the hiring of family members does not further these purposes.

Finally, the nature of the interest affected by this prohibition in Mr. Hutchinson’s case is significant. Mr. Hutchinson is being denied an employment opportunity that is of great personal significance to him. It is the one position that he wishes to perform and that he is uniquely qualified for. He was forced to leave the work force many years ago because he is a single parent who had the primary responsibility of looking after his disabled daughter since she was 13 years old. His skills, experience and ability to do the job are never considered. He is excluded by the Ministry’s policy from obtaining the position as his daughter’s caregiver under CSIL simply because he is a family member.

In my view, it is clear that the reasonable person, in circumstances similar to those of Mr. Hutchinson, who is informed of and rationally takes into account the various contextual factors relevant to the complaint, including that the purposes of the CSIL program include the assistance of families to care for each other, and to facilitate greater autonomy and choice for its clients while adhering to the Ministry’s philosophy that family members have the primary responsibility to care for one another, and cognisant of the Ministry’s concern with costs, would experience a violation of his dignity when the blanket prohibition against the hiring of family members is applied to his situation without consideration of his particular circumstances.

[49] Before the Tribunal Member, the Ministry argued justification for the discrimination on the basis that:

1. the CSIL program and it’s underlying policy do not allow for exceptions; and

2. the cost of accommodating persons with the characteristics of the Hutchinsons would amount to undue hardship.

[50] The Tribunal Member rejected the justifications advanced by the Ministry finding that the purpose of the policy is “cost containment” and that it would not create undue hardship to tailor exceptions in appropriate cases. The Tribunal Member noted that the Ministry had in fact made exceptions to its policy in certain cases and that other jurisdictions have successfully designed assessments for individual cases allowing for accommodation. The Tribunal Member considered there were options open to the Ministry short of a blanket prohibition which would reasonably allow exceptions and that although the Ministry has made some exceptions, it has made no attempt to “formalize criteria for such exceptions”. She found that the Ministry could tailor a rule on a case by case basis for allowing exceptions.

[51] Insofar as costs were concerned, the Tribunal Member did not find on the evidence before her that the Ministry would incur costs resulting in undue hardship by accommodating individuals such as the Hutchinsons.

[52] Accordingly, the Tribunal Member found that Ms. Hutchinson and Mr. Hutchinson each made out their case of discrimination to the extent required to justify a remedy.

REMEDY

[53] Cheryl Hutchinson sought a remedy incorporating two orders:

1. An order that the Ministry’s policy expressly allow for exceptions on a case-by-case basis; and

2. An award of $10,000 for injury to her dignity, feelings and self-respect.

[54] Phillip Hutchinson sought a remedy incorporating four orders:

1. A wage loss award of $167,864;

2. An award of $6,000 for injury to his dignity, feelings and self respect;

3. An order that the Ministry’s policy expressly allow for exceptions on a case-by-case basis; and

4. The remedy claimed by the DCC.

[55] The DCC sought a remedy incorporating five orders:

1. A cease and desist order under s. 37(1)(a) of the Code;

2. The remedy requested by the Complainants, including an order that the Ministry’s policy expressly allow for exceptions on a case-by-case basis;

3. With respect to the long term, an order that:

a. Within three months of the issuance of the Tribunal’s decision, the Ministry, in consultation with the DCC, revise its policy to make provision for care to be provided by relatives;

b. In revising the policy, the Ministry will have regard to any operational and implementation concerns raised by regional and local health service providers and shall ensure that funds and training necessary to implement the new policy are available to those service providers; and

c. Within six months of the issuance of the Tribunal’s decision, the Ministry will implement the policy and ensure that all necessary training and funding to regional and local health service providers has been put in place.

4. Pursuant to s. 37(3), the Tribunal require the Ministry to provide, on or before the end of the fourth month following the Order of the Tribunal, and at three month intervals thereafter, a report summarizing the steps that the Ministry has taken in order to comply with the Tribunal’s Order, until such time as the discrimination identified in the Tribunal’s decision has been eliminated; and

5. That the Tribunal retain jurisdiction to hear argument and, if necessary, evidence on the issue of remedy in the event that no agreement has been reached by a date four months from the date of the decision. Further, if agreement is not reached, either the DCC or the Ministry be at liberty to apply to the Tribunal, or on before that date, to seek an appropriate order under s. 37(2)(c).

[56] The Ministry took the position before the Tribunal Member that the Tribunal’s jurisdiction to grant the remedy sought was limited. The Ministry relied on the general proposition that the role of tribunals and courts is limited in relation to the role of government. The Ministry argued that the Tribunal did not have “free reign to set standards in health policy, nor to decide which policies might be the most desirable in ameliorating the condition of those with disabilities, as the Tribunal does not have the particular expertise in health policy.” The position of the Ministry was, in effect, that in dealing with remedies, the Tribunal should leave it to government to choose between various policy options to rectify the effect of any policy found to be discriminatory in relation to the Hutchinsons.

[57] In her decision, the Tribunal Member concluded that it was not the role of the Tribunal to establish public policy and accordingly, after ordering the Ministry to refrain from discriminating against the petitioners under s.37(2)(a), she ordered under s. 37(2)(c) that the Ministry “allow for exceptions to its policy 8.H as it applies to CSIL and to develop a set of criteria within nine months of the date of the decision to allow for the hire of family members on a case-by-case basis under CSIL. Such criteria must be made known to the users and potential users of CSIL.”

[58] The Tribunal Member further ordered that the Ministry “allow Mr. Hutchinson the opportunity to be hired as his daughter’s caregiver as of the date of (the) decision … and … (when) the Ministry develops criteria in relation to exceptions to policy 8.H as it applies to CSIL, and those criteria (become) generally applicable, those criteria may be applied at that time to the continued employment of Mr. Hutchinson under CSIL.”

[59] Before the Tribunal, the Ministry also took the position that the Tribunal had no jurisdiction to award monetary compensation for what was characterized as past wage loss for Mr. Hutchinson. Following submissions, counsel for the Ministry provided a copy of Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Communaute urbaine de Montreal, 2004 SCC 30 [Communaute urbaine de Montreal] in support of its position.

[60] The Tribunal Member found the Communaute urbaine de Montreal decision to be “fact specific” and “restricted to the Human Rights process that exists in Quebec.” In particular, the Tribunal Member distinguished that decision on the basis that, firstly, it involved the striking down of legislation as constitutionally invalid. The Tribunal Member referred to the court’s statement in Communaute urbaine de Montreal at paragraph 19 as follows:

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.

[61] Secondly, the Tribunal Member distinguished Communaute urbaine de Montreal on the basis that in Quebec a determination of “the appropriate remedy pursuant to the Quebec Charter involved an examination of the interplay between the Quebec civil law, common law, and public law principles”, not applicable under the Code in British Columbia.

[62] Thirdly, the Tribunal Member noted that in British Columbia the Code provides the only redress for human rights complaints and it “contains a clear remedial provision which does not make a distinction between government and non-government respondents” and indeed in the past “the Tribunal has awarded damages for monetary compensation and in respect of injury to dignity against government respondents in many cases”.

[63] The Tribunal Member referenced with agreement, a decision of the Tribunal in Bolster v. B.C. (Minister of Public Safety and Solicitor General) 2004 BCHRT 32 in which it was said:

It would require clear language in the statute to support the conclusion that the Tribunal was prohibited from awarding monetary damages against government respondents.

[64] She noted that there was no such language in the Code. In the result, the Tribunal Member awarded $8,500 to Ms. Hutchinson to compensate her for injury to her dignity, feelings and self-respect; $4,000 to Mr. Hutchinson for injury to his dignity, feelings and self respect; $105,840 to Mr. Hutchinson to compensate him for his lost wages and interest at the prime rate as set out in the Court Order Interest Act on that $105,840.

[65] The Tribunal Member’s reasoning in awarding Mr. Hutchinson $105,840 as compensation for lost wages was set out in paragraphs 260 – 265 of her decision as follows:

Mr. Hutchinson is seeking approximately $167,864 in lost wages as compensation for the moneys he would have been paid if he were allowed to be hired as his daughter’s caregiver under CSIL from May 1998 to June 30, 2001.

Mr. Hutchinson was prohibited by the Ministry’s policy from being hired as his daughter’s caregiver under CSIL, but he did provide her with the care necessary during the relevant period. The CSIL funds received by Ms. Hutchinson for this period were returned, except for a few hours of respite care.

A complainant in a human rights complaint has the duty to mitigate his losses. The evidence presented by Mr. Hutchinson is, in effect, that he could not seek outside employment as his daughter required his full-time attention. Accordingly, he did not seek other employment but survived on social assistance. It is also noteworthy that at the time of the hearing Mr. Hutchinson was 71 years old with some history of back problems. From 1998 to 2001, the period during which he is required to mitigate the loss claimed, he would have been over 65 years old and suffering from some medical problems. These factors, although not attributable to the Ministry’s policy, would have limited Mr. Hutchinson’s ability to mitigate the losses being claimed. Given his situation, it is likely, had he engaged in a job search during the relevant period that he would not have been successful. I am satisfied that it was reasonable for Mr. Hutchinson, in the circumstances, not to pursue outside work during the relevant period.

There are other factors which may reduce the losses which Mr. Hutchinson can be awarded. First, as he was never actually employed as his daughter’s caregiver, he did not lose his employment but lost the opportunity to be employed in this capacity. In cases where there has been a lost opportunity as opposed to actual lost employment, the Tribunal has examined the circumstances of each case to determine what, if any, discount should be afforded in the situation: Hussey and Bolster. In the case of the Hutchinsons, the evidence supports that but for the Ministry’s blanket policy, Ms. Hutchinson would have hired her father. Further, Mr. Hutchinson was in fact his daughter’s primary, and often, sole caregiver, for the period for which he is claiming compensation. Accordingly, I find that there should be a relatively small discount in these circumstances as there was little chance that Mr. Hutchinson would not have been hired as his daughter’s caregiver under CSIL, but for the Ministry’s policy.

Second, if Mr. Hutchinson were hired under CSIL as his daughter’s caregiver, I must consider what portion of the care he provided to her would be compensated. That is, what portion of care would it be reasonable for him to provide without compensation in these circumstances. It is unlikely that he would have been paid for all the care he provided, as care that can reasonably be provided by a family member is taken into consideration during the assessment phase. Accordingly, Mr. Hutchinson would be required to provide some amount of care to his daughter free of charge. Although it would be unreasonable for Mr. Hutchinson to be expected to provide 24 hour care to his daughter for free, it would be equally unreasonable for him to expect to be paid for all the care he provided.

In all the circumstances, I find that Mr. Hutchinson is entitled to be compensated for part of the wages he lost as a result of the lost opportunity to be hired as his daughter’s caregiver under CSIL. I find that $105,840 is an appropriate award for lost wages in this case. I arrived at this award after the following calculation. From the approximately $168,000 claimed, I have discounted the amount claimed by 10% to reflect the fact that this was in fact a lost opportunity, not the loss of an actual position, and, a further 30% for the care that he would have provided for free.

[66] The petitioner’s position on this application for review was that the Tribunal Member erred in finding discrimination, and, in the alternative, erred or acted without jurisdiction in granting the remedy for monetary compensation or in the further alternative erred in determining the amount. The petitioner did not take any issue with the Tribunal’s determination that no justification was established for the discrimination, but limited its attack to the finding of prima facie discrimination.

[67] A preliminary issue joined by the parties was what standard of review governs my consideration of this petition. The petitioner contended that the Administrative Tribunals Act, S.B.C. 2004, c. 45 (“ATA”) which came into force on October 15, 2004 applies. It was the petitioner’s position that s. 59 of the Act applied with respect to decisions of the Tribunal. Section 59 reads as follows:

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,

(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.

[68] It is the petitioner’s submission that as to the principle questions on this review:

1. whether the Tribunal member erred in law in finding discrimination; and

2. whether the Tribunal member erred in law or exceeded her jurisdiction in not finding the principles of Crown immunity prevented her from ordering a compensatory award against government where issues of law or at most some sub-issues of mixed law and fact and therefore the standard to be applied is correctness.

[69] In its argument, counsel for the Tribunal argued that s. 59 of the ATA does not apply to all Tribunal decisions rendered before October 15, 2004.

[70] It was the Tribunal’s position that s. 59 “may be applied to such decisions to the extent that it merely reflects the common law standard of review when the decision was made and the right to judicial review arose”, but that otherwise the common law applied. In the Tribunal’s submission, questions of law involving a correctness standard of review are the same at common law or under the ATA as are questions of fact involving a standard review of patent unreasonableness, but that questions of mixed law and fact may be different as at common law the standard of reasonableness simplicitor applies whereas under the ATA no mention is made of reasonableness simplicitor. The Tribunal submits that in the present case, reasonableness simplicitor applies and should in any event be applicable under the ATA to questions of mixed law and fact.

[71] Counsel for the Hutchinsons supported the position of the Tribunal with respect to the application of the ATA and the applicable standards of review but submitted in the alternative regardless of the standard of review the petitioner’s application for judicial review should be dismissed.

[72] For the purposes of these reasons, I accept that the ATA applies to the decision of the Tribunal and that for questions of law and mixed law and fact, a standard of correctness applies while for a question of fact the standard is one of patent unreasonableness. See St. James Community Service Society v. Brent E. Johnston and the British Columbia Rights Tribunal December 2, 2004 (unreported) Van Reg. L042142 (B.C.S.C.).

ISSUES

[73] The specific substantive issues for resolution raised by this petition are set out in the written argument of the Tribunal thus:

B. Did the Tribunal err in finding discrimination?

i. Did the Tribunal err in its characterization and application of the service customarily available to the public?

ii. Did the Tribunal err in its selection of the appropriate comparator group?

iii. Did the Tribunal err in not directly applying the Law analysis?

iv. Did the Tribunal err in its application of the Law analysis?

C. Did the Tribunal err in ordering a compensatory award against the Government in the circumstances?

i. Did the Tribunal make a patently unreasonable finding when it determined that there was little chance that Mr. Hutchinson would not have been hired as his daughter’s caregiver under CSIL but for the Ministry’s policy?

ii. Did the Tribunal err when it determined that it has jurisdiction to order monetary compensation against the government?

D. If the Tribunal did have the jurisdiction to make a monetary remedy against the Government, did it err in determining the amount?

i. Did the Tribunal member err in her characterization and application of the service customarily available to the public?

[74] The petitioner contends that the Tribunal Member fell into error by not properly applying public law principles in characterizing the nature of the service customarily available to the public in s. 8 of the Code and employment in s. 13.

[75] The petitioner rests its submissions in this regard on the principles established by the Supreme Court of Canada in Auton (Guardian ad litem of) et al v. British Columbia (Attorney General), 2004 SCC 78 [Auton]. The petitioner submits that there is an analogy to be drawn between the reasoning in Auton: that services not prescribed by law cannot be made the subject of a finding of discrimination; and, the reasoning that should prevail in the present case: that the service that is actually provided under CSIL (i.e. services to supplement existing care provided by family members) is the context in which the complaint of discrimination must be judged. The petitioner submits that to base a finding of discrimination on services not provided under CSIL is tantamount to dictating the types of health care programs that the Ministry should provide and infringes the reasoning in Auton.

[76] It is the Hutchinson’s contention in response that the petitioner’s reasoning is tautological; that it attempts to shield the impugned policy from scrutiny by using the limits it imposes on the service provided through the CSIL program as the definition of the service itself. Hence the service, however limited by policy, could never be subject to analysis for discrimination, because it could only be assessed by reference to those whom it does accommodate and not by reference to those it does not. The respondents rely on Hodge v. Canada (Minister of Human Resources and Development), 2004 SCC 65 in support of its position where the court says at para. 25:

In either case, the universe of people potentially entitled to equal treatment in relation to the subject matter of the claim must be identified. I use the phrase “potentially entitled” because the legislative definition, being the subject matter of the equality rights challenged, is not the last word. Otherwise a survivor’s pension restricted to white protestant males could be defended on the grounds that all surviving white protestant males were being treated equally. The objective of s. 15(1) is not just formal equality but substantive equality.

[77] In the present case, of course, at issue is not a legislative definition limiting the scope of the service provided under CSIL; rather it is a policy by which the petitioner seeks to justify the limitation on access it imposes.

[78] The respondents submit that “the legal consideration of what constitutes the public service must be shared liberally and … further the purpose of the Code. Moreover, the eligibility criteria which define access to the service must be subject to scrutiny under the Code for discriminatory content.”

[79] The respondents rely on University of British Columba v. Berg, [1993] 2 S.C.R. 353 at p. 11 and p. 16 in support of their argument.

[80] The respondents submit Auton is distinguishable in that what was at issue in that case was a legislative scheme (the health care system) which did not offer a particular benefit (an emerging form of therapy for autistic children) leading to a claim under s. 15(1) of the Charter that the parents were denied equal benefit of the law in relation to treatment service for their children.

[81] In the present case it was not the provision of a benefit (the choice of caregiver) that was at issue, but rather whether, and on what basis, the policy limiting it to non-family members failed to account for underlying differences between individuals it applied to.

[82] As I see it, Auton was a case in which the court was asked to interpret the provisions of s. 15(1) of the Charter in a way that compelled government to provide a service not otherwise available. The court rejected this interpretation of s. 15(1) noting that its role was “to ensure that when governments choose to enact benefits or burdens, they do so on a non-discriminatory basis.” In the present case, the question raised before the Tribunal was whether the petitioners (respondents at bar) were seeking non-discriminatory application of an existing benefit or service or, as in Auton, the creation of a benefit not otherwise provided for.

[83] In my opinion, on that point, the present case is distinguishable from Auton. Here, what is being sought is a determination whether a program explicitly funded to provide qualified disabled individuals with the freedom to hire and direct their own caregivers can be said to be discriminatory by excluding all family members from the potential hiring pool. Thus what is at issue is whether the limitation of the means by which the service and the employment contemplated in sections 8 and 13 respectively may be accessed creates a discriminatory effect by failing to account for underlying differences between individuals affected. To suggest the limitation on access to the service and employment said to be discriminatory provides the definition of the service and employment available so as to prevent any scrutiny for discrimination or discriminatory effect is a mischaracterization of the reasoning on that point in Auton.

[84] In Auton, the critical finding by the court was that the particular therapy for autism for which funding was sought was not a benefit provided by law because it was a non-core service left to the provincial government’s discretion and not mandated by the Canada Health Act, R.S.C. 1985, C-6. The court noted that if the provincial government had exercised its discretion in favour of providing the therapy (service), it would have to be conferred in a non-discriminatory manner.

[85] The means by which the benefit or service is provided or accessed is distinct from the service which is being provided. In the case at bar, the service and employment provided for is funding for particular disabled individuals to enhance their quality of care by being able to hire and direct their own caregivers. That is the nature of the service and corresponding employment provided. The proscription against hiring family members does not limit the nature of the service. It limits the means by which it is conferred.

[86] This is not a case, as Auton was, where the complaint concerned a benefit the government declined to confer. Rather, it is a case where a service was made “customarily available to the public” within the meaning of s. 8 of the Code, and corresponding employment as contemplated in s. 13 was available.

[87] The issue, therefore, is not whether the service under s. 8 or the employment under s. 13 should be conferred at all; it is, given it is conferred, does the policy at issue restrict it in a way that is discriminatory or has a discriminatory effect? It follows that I conclude that the Tribunal member did not err in her characterization and application of the service customarily available to the public.

ii. Did the Tribunal err in its selection of the appropriate comparator group?

[88] Central to the question of whether the service or employment was conferred in a way that was discriminatory, is the selection of a comparator group. As mentioned, the tribunal member determined the appropriate comparator group to be CSIL clients who are not restricted by the blanket prohibition, either because they do not wish to, or need to hire a family member as a caregiver.

[89] It is the petitioner’s contention that in selecting the comparator group the Tribunal Member lost sight of the purpose and effect of the CSIL program which is “To provide persons with disabilities who are living in the community with services to supplement the care provided by their families and others.”

[90] The petitioner relied on the Supreme Court’s summary of the principles applicable in selecting an appropriate comparator group in Auton, supra, at paras. 51 – 54 which reads as follows:

First, the choice of the correct comparator is crucial, since the comparison between the claimants and this group permeates every stage of the analysis. “[M]isidentification of the proper comparator group at the outset can doom the outcome of the whole s. 15(1) analysis”: Hodge, supra, at para. 18.

Second, while the starting point is the comparator chosen by the claimants, the Court must ensure that the comparator is appropriate and should substitute an appropriate comparator if the one chosen by the claimants is not appropriate: Hodge, supra, at para. 20.

Third, the comparator group should mirror the characteristics of the claimant or claimant group relevant to the benefit or advantage sought, except for the personal characteristic related to the enumerated or analogous ground raised as the basis for the discrimination: Hodge, at para. 23. The comparator must align with both the benefit and the “universe of people potentially entitled” to it and the alleged ground of discrimination: Hodge, at paras. 25-31.

Fourth, a claimant relying on a personal characteristic related to the enumerated ground of disability may invite comparison with the treatment of those suffering a different type of disability, or a disability of greater severity: …

[91] The plaintiff submits the effect of the Tribunal Member’s selection of a comparator group is to re-define the service being conferred rather than assessing the evenness of its application. The petitioner says the Tribunal Member’s analysis shifts the purpose and function of CSIL from a program that supplements the care provided by an individual’s family to one “that is obliged to accommodate a preference to hire family members.”

[92] The petitioner relies on the court’s articulation of the principle preventing judicial interference with governmental policy in Auton, at para. 41:

It is not open to parliament or a legislature to enact the law whose policy objectives and provisions single out a disadvantaged group for inferior treatment … On the other hand, a legislative choice not to accord a particular benefit absent demonstration of discriminatory purpose, policy or effect, does not offend the principle and does not give rise to s. 15(1) review. This court has repeatedly held that the legislature is under no obligation to create a particular benefit. It is free to target the social programs it wishes to fund as a matter of public policy, provided the benefit itself is not conferred in a discriminatory manner.

[93] It is the petitioner’s position that giving effect to the principles set out above invalidates the Tribunal Member’s determination of the comparator group because it ignores the freedom of the legislature “to target the social programs it wishes” and instead imposes the Tribunal’s view of what benefits should be conferred based on the preferences of CSIL recipients rather than governmental policy.

[94] The petitioner submits that giving effect to the principles elaborated upon in Auton requires the comparator group to be either “all CSIL recipients or all people with disabilities living in the community.” The petitioner contends if the comparator group is all CSIL recipients, Ms. Hutchinson cannot show she is disadvantaged through a greater impact by the prohibition in hiring family members. Her preference to hire her father falls short of establishing that her disability or family status necessitates hiring her father. The petitioner submits Ms. Hutchinson is in an advantageous position with regard to people with disabilities living in the community because she receives CSIL funds while others do not.

[95] The position of the respondents is that the comparator group of all disabled persons living in the community is inappropriate because they have no relationship to the benefit in question as they have no entitlement to the service or benefit at issue and hence do not share relevant circumstances with Ms. Hutchinson. The respondents say this comparator group is simply too broad to permit any meaningful assessment as to whether the prohibition has a discriminatory effect.

[96] The respondents contend that the comparator group of all CSIL recipients is in fact the comparator which the Tribunal Member applied and hence no error occurred. The respondents say the distinction drawn by the petitioners between its position and the determination of the Tribunal Member is essentially the distinction between formal equality and substantive equality: that the fact that all CSIL recipients are governed by the same prohibition against hiring family members may constitute formal equality but it doesn’t amount to substantive equality. The respondents rely on the decision of the court in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 43 which rejected the “similarly situated” test, which according to the respondents, the petitioner is implicitly relying on in advancing its position.

[97] The respondents further submit that the petitioner’s argument that the respondent’s failure to establish a necessity is fatal to their case, is a flawed argument. The respondents contend that there is no requirement to prove necessity to establish prima facie discrimination. All that need be shown is “a distinction based on a personal characteristic [resulting in] the denial of a benefit or the imposition of a burden”. The respondents say that the primary consideration is the impact of the prohibition on the Hutchinsons and submit that in the case of each of them, the impact is profound. In the case of Ms. Hutchinson, it is on the scope of her choice as to who she can hire to provide her daily intimate care. With respect to Mr. Hutchinson, it is the denial of employment resulting in “poverty, sacrifice and financial distress”.

Citation:	*HMTQ v. Hutchinson et al,*
	2005 BCSC 1421