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KEEPING TRIBUNALS IN CHECK IS SOCIETY’S TASK

I don’t know if the downloading by government of the regulation of our lives to administrative bodies is a uniquely Canadian state of affairs. It certainly has, however, become characteristic of our legal system and it’s something that can be a cause for concern.

In the employment world, for instance, just about every aspect of the working relationship is governed by one administrative body or another. In B.C. we have WorkSafeBC, the Employment Standards Branch, the Labour Relations Board, the Office of the Information and Privacy Commissioner, and the Human Rights Tribunal to name a handful.

These bodies carry out statutory mandates to regulate various aspects of the employment relationship and, in a quasi-judicial fashion, to adjudicate disputes between employers and employees. When they “stay between the lines” of their governing statute, I can’t say they cause me any real concern (aside from a general worry about the over-intrusiveness of government into our private lives, but that’s a topic for another day).

Now and then, these administrative bodies quite plainly act to expand their jurisdiction and that’s when my spidey sense starts tingling. Just such an example occurred recently in Ontario.

In December of 2007 a guest drowned in an unattended pool at the Blue Mountain ski resort. No workers were present in the vicinity of the pool at the time of the drowning (and the guest was not in any way employed by the resort).

A few months later, an occupational health and safety inspector issued an order stating that the resort had failed, as required, to notify an inspector of the fatality. This order would surely have come as quite a surprise to the resort as there were no employees involved in the incident.

The resort appealed that order and an Ontario Labour Relations Board representative dismissed its appeal, finding that the drowning of a guest triggered the resort’s reporting obligation. The resort applied for judicial review of that decision and the Ontario Divisional Court repeated the Board’s finding.

The resort again appealed and, finally, plain old reason and common sense seemed to prevail. The Ontario Court of Appeal determined that the earlier interpretations of the law would “lead to the absurd conclusion that every death or critical injury to anyone, anywhere, whatever the cause, must be reported [to an occupational health and safety inspector].”

The Court repeated the oft-applied legal maxim that, statutes should be interpreted in a way that avoids absurd results. This case, which thankfully ended up with an appropriate outcome, reminds me of one involving B.C.’s Human Rights Tribunal a few years back.

In that case, B.C.’s Court of Appeal eventually upheld the premise that perceiving a person to not have a disability does not constitute discrimination. Seems obvious, doesn’t it?

In 2004 Rex Yuan was involved in a traffic accident when another vehicle struck the rear of his vehicle at a red light. Yuan filed a claim with the Insurance Corporation of British Columbia (ICBC), asserting that, as a result of the accident, he suffered soft tissue injuries to his neck and shoulder.

Because the other vehicle was determined to have been traveling at a very low speed when it struck Yuan’s car, his claim was adjudicated pursuant to ICBC’s low velocity impact (LVI) guidelines. Those guidelines presumed that a low-velocity accident victim is less likely to sustain injuries.

ICBC rejected Yuan’s claim and he responded by filing a complaint against ICBC of discrimination pursuant to the B.C. Human Rights Code. The essence of Yuan’s complaint was that, by slotting him into the expedited LVI claim stream, ICBC was pre-determining that injuries were not likely to have resulted from the collision and, thereby, was discriminating against him.

In the ensuing words of B.C.’s Human Rights Tribunal, ICBC put claims into the LVI stream “not because it perceives them as injured and therefore disabled, but, to the contrary, because it perceives them as not injured, or less likely to be injured, and therefore, not disabled or less likely to be disabled.”

The Tribunal asked itself if that perception of someone as not being disabled, or less likely to be disabled, could be discrimination under the Code. It determined that this could amount to discrimination.

ICBC appealed that decision to Supreme Court of B.C. The Court overturned the Tribunal’s findings, stating emphatically that a perception that a person does not have a disability does not constitute discrimination against that person.

The Court characterized the Tribunal’s decision as “not based on reason and principle, and… therefore, arbitrary”. It stated that the effect of the Tribunal’s decision was to tip human rights analysis “on its head” and to “pound another nail into the coffin of common sense”. B.C.’s Court of Appeal later agreed.

These are two instances in which the decision of an administrative tribunal has plainly had the effect of expanding the scope of its jurisdiction. Thankfully, there were people out there who were willing to spend their own time and money to overturn these inappropriate extensions of statutory authority.

Robert Smithson is a labour and employment lawyer, and operates Smithson Employment Law in Kelowna. For more information about his practice, or to subscribe to You Work Here, visit www.smithsonlaw.ca.