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BC Court of Appeal: Mere Speculation Insufficient to Justify Human Rights Hearing
September 16, 2004

The BC. Court of Appeal recently held that complaints of discrimination must be based on more than mere speculation to justify a hearing before the B.C. Human Rights Tribunal.

The decision concerned an employee’s allegation that his race played a role in his employer’s decision not to appoint him to a new position. After investigating the complaint, the former BC Human Rights Commission dismissed the complaint rather than referring it to the Tribunal for a hearing. The BC Supreme Court reversed the Commission’s decision and the employer appealed to the Court of Appeal.

The Court held that while there will almost always be some evidence of the possibility of discrimination when a member of a minority group is passed over for a position in favour of a member of the majority group, a “mere possibility” is not enough to require a hearing. Rather, the evidence must move the allegation from “speculation to inference.” The Court restored the Commission’s decision to dismiss the complaint.

While the Human Rights Commission has now been disbanded, the “gate-keeping” function with respect to complaints is now the responsibility of the Tribunal. The Court’s decision will provide guidance to the Tribunal in deciding whether human rights complaints should proceed to a hearing on the merits.

Lee v. British Columbia Hydro and Power Authority, 2004 BCCA 457, September 10, 2004