B.C.

British Columbia has an unusual term in its Code which allows the Tribunal to dismiss a complaint should it conclude that proceeding with the hearing would not advance the purposes of the Code.

The section, 27(1)d(ii) reads as follows, bold font, of course being added:

(a) the complaint or that part of the complaint is not within the jurisdiction of the tribunal;

(b) the acts or omissions alleged in the complaint or that part of the complaint do not contravene this Code;

(c) there is no reasonable prospect that the complaint will succeed;

(d) proceeding with the complaint or that part of the complaint would not

(i) benefit the person, group or class alleged to have been discriminated against, or

(ii) further the purposes of this Code;

(e) the complaint or that part of the complaint was filed for improper motives or made in bad faith;

(f) the substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding;

(g) the contravention alleged in the complaint or that part of the complaint occurred more than one year before the complaint was filed unless the complaint or that part of the complaint was accepted under section 22 (3).

This has been interpreted to allow the hearing officer to dismiss the complaint when it has determined that a reasonable settlement offer has been made.

These tests have been applied: [/efn_note] As reviewed in Heitner v BC Provincial Renal Agency par 37 [/efn_note]

1. Is the offer reasonable;

2. If so, would it serve the purposes of the Code to allow the complaint to proceed;

3. The review is to presume that the allegations made would be proven;

4. Consideration is then to be given to what the Tribunal would order, given this presumption;

5. The offer need not be precisely what the Tribunal would order, but rather it must provide "reasonable compensation and other remedies" that the Tribunal would likely order;

6. The offer must be "with prejudice";

7. The offer must address the allegations and available remedies, monetary and non-monetary;

8. The decision maker must determine whether the "remedial actions adequately remedy the alleged violation and are consistent with the types of order" made by the Tribunal;

9. The offer must remain open for acceptance even if rejected and even should the Tribunal decline the application to dismiss the complaint under this section.

In the instant case, it was determined that the offer did not provide reasonable monetary compensation, nor did it address the non-monetary relief sought by the applicant.

The fact that the offer did not admit liability was not counted against the respondent, nor did the absence of a consent declaratory order.

This being said, the respondent increased and amended its offer and applied again for a dismissal. On the second application, following procedural skirmishes, the motion succeeded and the case was dismissed. ¹

Manitoba

This province had a similar process in its Code. This provision has since been repealed and replaced, as noted below. The Human Rights Commission, which has carriage of the proceeding, or the Adjudicator may assess the reasonableness of the offer. ²

The section reads as follows:

Failure to accept reasonable settlement offer
37.1 If a complainant rejects a settlement offer made by the
respondent after an adjudicator is appointed to hear the complaint, the
adjudicator must terminate the adjudication if he or she considers the
offer to be reasonable

The Commission or the Adjudicator must dismiss the complaint, if the offer is found to be reasonable. The decisions of the Commission in this respect are not reported.

To be persuasive, the offer should be proportionate to the alleged wrongdoing. ³. This is not a startling proposition. In this instance the offer of $5,000 was seen as inadequate to compensate a person who was disabled, requiring a service animal, who had been escorted out of a public building by police officers.

The adjudicator may lack sufficient information to determine if the offer is fair. In the referenced case, the issue was whether the adjudicator would have declined to make a remedial non-monetary offer. It was also noted that the decision maker lacked information about the applicant's salary increments and benefits.

The offer did not provide for reinstatement, as had been requested. It did allow for payment of lost wages of $212,000 and the sum of $15,000 as damages for injured feelings. ⁴

The application was dismissed. The reasons given were as follows:

118.         The adjudicator proceeding under s.37.1 must be satisfied that the offer is based on the legal principles which are applicable to human rights law and which further the purposes of the Code from the perspective of both the individual complainant and the general public.

119.         The adjudicator must also be satisfied that the information which supports a determination that the offer is reasonable is in fact contained in what the adjudicator can consider, namely the allegations set out in the complaint or any admissions or agreements as to facts.

120.          A determination under s.37.1 is a summary process which is based on limited information.  Accordingly, it will not be uncommon for an adjudicator to find that he or she cannot determine the reasonableness of an offer not because the parties are not proceeding on the appropriate legal principles but simply because there are gaps in the information the adjudicator can consider in this process.  I have found many examples of such gaps in this case.

The relevant section now reads as follows to allow the decision to end the case due to a reasonable offer to be that of the Executive Director of the Commission:

Executive director to determine reasonableness of offer

24.3(1)

If a respondent makes a settlement offer before an adjudicator is appointed to hear a complaint, the executive director must determine if the offer is reasonable.

Settlement offer not accepted

24.3(2)

If the complainant rejects a settlement offer that the executive director considers reasonable, the executive director must terminate the proceedings in respect of the complaint.