Too Soon to Say Too Late? Reviewing a Tribunal's decision to hear a late-filed complaint
This month the British Columbia Court of Appeal provided guidance on two administrative law questions, one procedural and one substantive. The Court weighed in on when it is appropriate to review a preliminary decision of a tribunal before the hearing on the merits, and confirmed that where the tribunal decides to hear a late-filed complaint, it is not open to the reviewing judge to reweigh the evidence. In Mzite v. British Columbia (Ministry of Public Safety and Solicitor General), the Court of Appeal upheld the decision of the lower court judge to review the Human Rights Tribunal’s decision to accept a late-filed complaint in the public interest, but overturned his order to set the Tribunal’s decision aside.
Background Facts and Tribunal Decision
Charles Mzite made a complaint to the Human Rights Tribunal of British Columbia alleging that the Ministry of Public Safety (the “Ministry”) discriminated against him on the basis of physical disability by denying him consistent access to antiretroviral medication while he was a prisoner at the Vancouver Island Regional Correction Center (“VIRCC”).
The Ministry opposed the hearing of the complaint on the basis that almost 4 years had passed since the events in question, well beyond the six month limitation period. Mr. Mzite requested that the Tribunal exercise its discretion pursuant to section 22(3) of the Human Rights Code (the “Code”) to accept the late-filed claim in the public interest. He argued that there was ongoing systemic discrimination taking place which constituted a threat to other prisoners and he alleged that the reason he did not bring his complaint earlier was because, among other reasons, he believed that he did not have access to legal services for civil matters.
The Tribunal allowed the complaint to proceed despite the delay. In its decision, the Tribunal accepted the complainant’s explanation for part of the delay and found that the complaint raised “a novel issue by a uniquely positioned and very vulnerable individual”. On that basis, the Tribunal found that it was in the public interest for the claim to be heard.
Judicial Review - The Decision Under Appeal
The Ministry filed a petition for an order setting aside the Tribunal’s decision to accept the late-filed claim. Mr. Mzite objected to the petition on the basis that the decision of the Tribunal was preliminary and therefore judicial review was premature. The judge dismissed this argument holding that since the decision to disallow a late complaint would be reviewable, a decision to allow the late complaint to proceed should also be reviewable.
The judge granted the Ministry’s request to set aside the Tribunal’s decision to accept the late-filed claim for two reasons:
(1) The decision of the Tribunal with respect to the issue of delay was arbitrary because there was no evidence to support Mr. Mzite’s explanations; and
(2) The weight that the Tribunal afforded the “spectre” of systemic discrimination suggested an improper purpose, namely, an investigation into the practices involving the provision of medication to prisoners at VIRCC after the time of the complaint.
Mr. Mzite raised two issues before the British Columbia Court of Appeal:
(1) Whether the judge erred in engaging in judicial review prematurely; and
(2) Whether the judge erred in failing to apply a deferential standard to the Tribunal’s reasons.
The Court of Appeal held that the judge’s decision to hear the petition was a reasonable exercise of his discretion, although the Court disagreed with his reasons. While the Court confirmed that as a general rule the review of a preliminary decision of a Tribunal should be rare, it determined that the reasons for restraint, as set out by the Supreme Court of Canada in Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission) can be used as a guide for determining the exceptions to the rule.
In this case, the Court of Appeal identified several factors as weighing in favour of judicial review. Most importantly:
- The decision arose out of a distinct preliminary process before the hearing had commenced. The review would take place during an interval in the proceedings and therefore would not interfere with the Tribunal’s process.
- The Tribunal would not receive further evidence regarding the timeliness of the complaint so there was no reason to expect a different or better evidentiary record if judicial review took place after the final determination. The Court cited in contrast the situation in Abbotsford School District No. 34 v. Corren where the Tribunal’s decision to hear a case involved a preliminary decision on the merits and the Tribunal would have a chance to decide the merits on a more complete evidentiary record at the hearing.
On the substantive issue, the Court of Appeal set aside the judge’s decision and remitted Mr. Mzite’s complaint to the Tribunal for consideration. The Court of Appeal held that the judge erred in two respects.
First, the Court held that it is not open to a reviewing judge to give primacy to the delay or to set aside the decision of the Tribunal on the basis that insufficient weight had been afforded the delay. The Court found that there was some evidence in support of Mr. Mzite’s explanation and so there was no basis to say that the Tribunal’s decision was arbitrary or based on conjecture.
Second, it was an error for the judge to substitute his own view on the appropriate weight to be given the allegation of systemic discrimination. There was some evidence before the Tribunal that the medication policy had affected others in the prison system. There was also no evidence that the situation had been rectified after Mr. Mzite left such that the issue was moot.
Importantly, the Court of Appeal affirmed that the Tribunal is deemed to have expertise in the public’s interest in hearing complaints. The Tribunal has special knowledge of what issues have been fully addressed and where there are gaps in its jurisprudence. The Court confirmed that the Tribunal must be given “significant latitude” in deciding whether to accept a late-filed claim.
This decision affirms that prematurity is not an absolute bar to judicial review. The reviewing judge retains the discretion to hear the application, based on the factors that can be derived from Halifax.
The decision is also the latest comment on the deference that must be shown to a Tribunal exercising discretion within its own knowledge and expertise. In holding that the Human Rights Tribunal has expertise in determining whether there is a public interest in hearing a particular late-filed complaint, this decision will likely make it more difficult to interfere with those decisions in the future.
Date of Decision: June 9, 2014
Court of Appeal of British Columbia Human Rights Tribunal physical ability discrimination preliminary decision