On March 24, 2022, the British Columbia Human Rights Tribunal (the “Tribunal”) issued four practice directions and one notice which impact various aspects of the Tribunal complaint process, including complaints based on mask-wearing in services, the deadline for complaint responses, and the Tribunal mediation process.
Notice: Complaints About Mask-wearing in Services Paused for One Year
Effective March 31, 2022 and until further notice, the Tribunal is pausing the processing of complaints regarding mask-wearing in services for one year. This emergency interim measure will enable the Tribunal to focus its limited resources on other complaint types.
After one year, for complaints filed before March 31, 2022, the Tribunal may offer the complainant the opportunity to provide further information to support their complaint. For complaints filed after March 31, 2022, the Tribunal will dismiss any complaint that does not follow the criteria set out in the Practice Direction – Requirements for complaints about mask requirements in services (discussed further below). While the emergency pause is in effect, the Tribunal will not provide any response to communications regarding complaints about mask-wearing in services.
Practice Direction: New Requirements for Complaints About Mask-Wearing in Services
Under this practice direction, the Tribunal clarifies the requirements for a complaint alleging discrimination in services based upon mask-wearing.
In particular, the Tribunal clarifies that complaints about mask-wearing in services must include, among other things, the protected personal characteristic and if the characteristic is disability, the complainant must identify a specific disability related to mask wearing, state its permanence and limitations. For example, it will not be sufficient to refer to “breathing issues” or “medical exemption”.
The practice directive also clarifies that the complaint must not be based on Orders of the Provincial Health Officer or Provincial Government or the Canadian Charter of Rights and Freedoms.
Practice Direction: Complaint Response Deadline
Effective immediately, as an interim measure to address delays in scheduling mediation, respondents will now be required to file a response to a complaint within eight weeks, regardless of whether or not the parties agree to participate in mediation. Previously, when parties participated in the Tribunal’s mediation process, no response was required to be filed until 35 days after the conclusion of an unsuccessful mediation with the Tribunal. However, document disclosure requirements under Rule 20 of the Tribunal’s Rules of Practice and Procedure will be paused until after conclusion of the mediation.
Practice Direction: Mediation Services Where All Parties Have Legal Representation
This practice direction is another interim measure which impacts the mediation process at the Tribunal. The Tribunal’s usual practice has been to offer to schedule a mediation as the first step in the complaint process upon consent of all parties. However, in cases where all parties have legal counsel or a legal advocate (“Legal Representative”), the Tribunal now expects Legal Representatives to make reasonable efforts to resolve the complaint on their own if the parties wish to participate in mediation.
At least four weeks before the scheduled mediation, Legal Representatives must advise the Tribunal either to cancel the scheduled mediation date or to confirm that they have made reasonable efforts to resolve the complaint; Tribunal-assisted mediation may be beneficial to resolve the complaint; and both parties are motivated to resolve the complaint at the scheduled mediation. If the Legal Representative fails to notify the Tribunal within the time frame above, the Tribunal will cancel the mediation.
This requirement to notify the Tribunal only applies to complaints where mediation is scheduled after March 24, 2022. For mediations that have already been scheduled, the requirement to notify within the time frame above does not apply. However, effective immediately, the Tribunal expects that Legal Representatives will make reasonable efforts to resolve the complaint on their own.
Practice Direction: Terms of Participation in Mediation
Effective March 24, 2022, the Tribunal has discontinued use of the Agreement to Participate in Mediation. All parties participating in mediation must now adhere to the conditions in the Tribunal’s Mediation Policy, including with respect to:
- Willingness to participate
- Standards of conduct
- Good faith participation
- Authority to settle
- Confidentiality of information exchanged in mediation
- Mediator’s authority