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Unusual “no evidence motion” succeeds in human rights complaint
April 21, 2006

The BC Human Rights Tribunal recently took the unusual step of dismissing a complaint at the conclusion of the complainant’s case and before the respondent called any evidence at the hearing. The Tribunal made this decision on the basis that the complainant’s evidence could not reasonably have lead to a finding of discrimination under the Human Rights Code.

The complainant in McLash v. School District #63 (No. 2) argued that he was discriminated against on the basis of sex because he was falsely accused of bullying a female colleague, and his employer failed to deal with the matter as quickly as it would have if he had been a woman.

The School Board made a no evidence motion after the complainant had put in his case at the hearing. The Tribunal ruled that the complainant must present evidence at a hearing which, if believed to be true, would justify a finding in his favour unless there was an answer or justification from the respondent. In deciding a no evidence motion, the Tribunal will consider all the complainant’s evidence at face value, and where the evidence is inconsistent it will proceed on the basis most favourable to the complainant.

The Tribunal determined that there was no reasonable basis on which the complainant’s complainant could succeed as he had failed to establish a nexus between his gender and the alleged adverse treatment. As a result, the Tribunal dismissed the complaint without requiring any evidence to be adduced by the respondent School Board.

(Click here for full copy of Decision)