Due to unprecedented delays at the British Columbia Human Rights Tribunal resulting from a barrage of COVID-19-related complaints, the Tribunal has introduced a new directive placing an emergency pause on new applications to dismiss.
This emergency directive is a significant measure as an application to dismiss is an important part of the human rights process that is frequently utilized by employers where a complaint can be dismissed prior to a hearing.
The directive states that “[t]he Tribunal will not accept applications to dismiss made under s. 27 of the Code for filing in any case unless the Tribunal has already notified the parties by letter of the deadline to file an application to dismiss.”
The directive is effective immediately and will be reviewed by the Tribunal in early 2022 following the Tribunal’s review of its process, which will include seeking public input.
Prior to this directive coming into effect, respondents had 70 days within filing a response (or longer where new relevant information or circumstances came to the respondent’s attention) to file an application to dismiss a complaint on various grounds, including that the complaint has no reasonable prospect of success at a hearing. This process is frequently used by respondents who are able to establish at an early stage that a complaint does not have merit under the BC Human Rights Code, thereby avoiding unnecessary costs and time associated with attending a hearing.
In place of the standard application to dismiss process, following disclosure of documents between the parties, the Tribunal will now schedule a case conference with the parties to discuss next steps. It is not yet clear whether an application to dismiss will be available to respondents as a step immediately following the case conference, and what form such an application would take.
The Tribunal has indicated that the directive is necessary in part due to the large number of outstanding applications to dismiss. As an example of this delay, we are awaiting a determination on an uncontested application to dismiss that was filed in December 2020.
We will provide further updates from the Tribunal with respect to the future of applications to dismiss.