A recent decision of the BCHRT serves as a reminder to regulators that human rights tribunals have jurisdiction to consider whether the acts and policies of professional regulatory bodies may be discriminatory in their effects: Johar and others v. College of Veterinarians of British Columbia (No. 3), 2024 BCHRT 342 (CanLII)
This complaint matter followed a previous BCHRT decision, Brar and others v. B.C. Veterinary Medical Association and Osborne, 2015 BCHRT 151, which found the College of Veterinarians of BC’s predecessor liable for discriminating against a group of Indo-Canadian veterinarians based on their race, colour, and place of origin, in matters of registration, investigation, and discipline. In 2015, we summarized that 485-page decision in our blog (here).
The College brought an application seeking the BCHRT to dismiss all or part of a human rights complaint brought by four Indo-Canadian veterinarians (the “Complainants”) against the College of Veterinarians of BC (the “College”) without a hearing, under several provisions of the Human Rights Code (the “Code”).
The allegations set out in the complaint are expansive, spanning six years, four veterinarians, and numerous complaint and disciplinary processes. The complaint centres on the College’s exercise of its disciplinary authority. The Complainants allege continued discriminatory practices since the BCHRT’s findings in Brar, and argue that the evidence at a hearing will show that the College has treated the Complainants adversely based on their race, colour, and place of origin, in violation of ss. 8 and 14 of the Code. The College denies discriminating against the Complainants. It says it has accepted the Brar decision and taken all reasonable steps to comply with BCHRT’s orders and ensure that its practices, processes, and procedures are free from discrimination.
This BCHRT decision addresses several important issues, including the impact of the Brar decision on the present complaint, and matters relating to the tribunal’s jurisdiction.
1. The previous decision is relevant to alleged continuing practices: The Complainants argued that the Brar decision records a “grave history of discrimination” which is continuing, with the findings in that case supporting an inference of discrimination in the present complaint. The College argued it is prejudicial and improper for the Complainants to continue to rely on Brar. In doing so, the Complainants are attempting to bolster an argument about the College’s “propensity” to discriminate. The BCHRT agreed with the College that this complaint must be determined based on its own merits. However, this does not mean that the tribunal must disregard the findings and outcome in Brar. In order for the BCHRT to consider the Complainants’ allegation that the systemic issues raised in Brar have continued in the College’s patterns and practices in the present matter, it is necessary for the BCHRT to consider Brar, while at the same time requiring evidence specific to the present complaint.
2. A failure to comply with tribunal orders is not itself discrimination: With respect to the Complainants’ allegation that the College failed to comply with the orders in Brar, the BCHRT agreed with the College that such an allegation does not constitute an arguable contravention of the Code. The BCHRT does not have the authority to enforce its own orders; that authority rests with the court. The BCHRT held that it is insufficient for the Complainants to simply allege that the College has not complied with the BCHRT’s orders; the Complainants must allege facts capable of proving that the College did or omitted to do something that discriminated against them in contravention of the Code. Accordingly, the BCHRT dismissed those allegations which did not allege facts that could contravene ss. 8 and 14 of the Code.
3. The HRT has jurisdiction to assess decision-making and process for discrimination: The College also argued that the BCHRT does not have jurisdiction to review the merits of its decision making or consider allegations of procedural unfairness. Specifically, the College argued that its handling of certain disciplinary files were based on a difference in medical opinions that is outside the scope of the BCHRT’s jurisdiction, and that the Complainants’ arguments about procedural issues, like the failure to disclose certain documents on time, are not properly before this tribunal. The BCHRT disagreed with the College’s arguments, citing earlier cases including, Brar v. BC Veterinary Medical Association, 2007 BCHRT 363, for the proposition that the BCHRT is the appropriate forum to determine allegations of discrimination in the College’s proceedings.
Outcome: The BCHRT determined to dismiss some allegations of discrimination for being late, not setting out an arguable contravention of the Code, or having no prospect of success. The remainder will proceed to hearing, including allegations against the College of over-zealous pursuit of complaints, application of unreasonable standards, and protracted, harsh, and procedurally unfair complaint proceedings.
Johar and others v. College of Veterinarians of British Columbia (No. 3), 2024 BCHRT 342 (CanLII)
Rachel Noble