October 2, 2011

Human rights and consenting to discrimination: voluntary undertakings and the Code

Administrative Law
Human Rights
Inquiry and Investigations
Professional Regulation

Many regulators seek to resolve complaints and competence concerns through consensual agreements. Such agreements avoid the need for potentially costly and time-consuming disciplinary and competence hearings. Under such agreements, registrants undertake to fulfill conditions, or consent to limits or suspensions. The very act of a regulator asking for limits or conditions may, however, in some circumstances constitute discrimination under British Columbia’s Human Rights Code. While consensual agreements violating the Human Rights Code were illustrated in the well-known decision of Gichuru v. Law Society of British Columbia (2009 BCHRT 360), this possibility arose again in the recent case of Duvall v. College of Dental Surgeons of British Columbia (2011 BCHRT 236).

The Gichuru case, which we summarize elsewhere on our blog (click here) is a well-known case, where a regulator made certain demands on an applicant, Mr. Gichuru, to prove his fitness upon his disclosing previous treatment for clinical depression. The Human Rights tribunal found the process to be onerous to the point of it being discriminatory.

As part of the regulator’s application process, Mr. Gichuru entered into three separate voluntary undertakings by which he agreed to provide psychiatric assessments to the regulator. In particular, when the applicant applied to become an articled student, the Law Society requested and the applicant provided an undertaking to provide an updated psychiatric assessment prior to his being fully admitted. When the applicant was dismissed from his firm during his articles, due to a personality conflict, the regulator requested the applicant undertake an additional psychiatric assessment, resulting in a second undertaking that he provide an updated report prior to his being fully admitted. After the applicant completed his articles, the regulator accepted him for admission, but on the condition that he periodically consult with a physician.

In deciding if the applicant had suffered adverse treatment by the regulator, the Tribunal took into account the fact he had agreed with all the conditions imposed on him through the process, had consented to all three voluntary undertakings, and had complied with them in due course. The Tribunal noted “Mr. Gichuru theoretically had the option of refusing the conditions,” [574], but also noted lack of clarity as to the regulator ever making clear to the applicant he could refuse the conditions and seeking a hearing at his option. Morever, it noted that “[e]ven assuming that Mr. Gichuru was aware of his option to refuse the conditions placed upon him and seek a hearing, the impact of such a decision would have been to throw considerable uncertainty on his future career aspirations. It is in this context that Mr. Gichuru’s evidence that he felt he had no choice but to comply must be understood.” [575] Accordingly the voluntariness of the applicant’s undertakings did not undermine the finding of adverse treatment. [576]

While the regulator also argued the undertaking process was a mutually-agreed accommodation, the tribunal found that this argument ignored “the significant power disparity between it [the regulator] and Mr. Gichuru.” It noted that, “While it is true to say that Mr. Gichuru could have refused the conditions placed on him by the Law Society, and could have insisted that the matter proceed to a Credentials Hearing, it is difficult to accept that any applicant who was hoping to pursue a career in law would do so.” [636] In other words, the tribunal found in Gichuru the “voluntarily” undertakings in that case were not sufficiently voluntary to constitute a waiver of any human rights claim associated with the measures.

The human rights tribunal went further, however, in Duvall (decided August 26, 2011), where a regulator sought to have a human rights claim struck, asserting the impugned restrictions arose from the claimant’s voluntary participation in an undertaking in 2003 permitted by the former Dentists Act. The tribunal declined to strike on the basis of the claimant’s voluntary participation, finding instead that the claimant had a reasonable prospect of success. But what is noteworthy is the tribunal’s comment that parties cannot contract out of the Human Rights Code. [65]

The tribunal referred to Ontario (Human Rights Commission) v. Etobicoke (Borough), [1982] 1 S.C.R. 202, where the court first stated the principle that while any person can, in general, contract to waive the benefits conferred on him by statute, Parliament may impose statutory conditions in such terms that they cannot be waived by agreement. The Supreme Court of Canada found the Ontario Human Rights Code was a type of enactment that could not be waived or varied by private contract.

The tribunal did not, however, go so far as to state that the prohibition against contracting out of the Code means that a registrant’s consent to a process is not relevant. Instead, it appeared to undermine the voluntariness of the applicant’s undertaking based on a mistake of fact:

66         Further, in view of my conclusion above that Dr. Duvall may not contest the voluntariness of the Undertaking when it was signed in 2003 and again in 2005, but may contest the College’s alleged refusal, in light of new information, to remove or change it in 2010, the argument based on voluntariness cannot succeed. The issue is no longer whether the arrangement reflected in the Undertaking was voluntary or otherwise appropriate in 2003 or 2005, but whether it could be maintained in 2010 over Dr. Duvall’s objection, and in light of new information. (emphasis added)

As a result, while the law is unclear as to when the human rights tribunal will decline to address a discriminatory process where a registrant has voluntarily agreed to it, the cases establish that a process will not be insulated from a human rights violation where the voluntary nature of an undertaking can be impugned through a power imbalance, or a mistake of fact.

Gichuru v. Law Society of British Columbia, 2009 BCHRT 360

Duvall v. College of Dental Surgeons of British Columbia, 2011 BCHRT 236