Berezoutskaia v. Human Rights Tribunal (2006), 223 B.C.A.C. 71 (CA);
369 W.A.C. 71
MLB headnote and full text
Temp. Cite: [2006] B.C.A.C. TBEd. MR.021
Irina Berezoutskaia (appellant/petitioner) v. British Columbia Human Rights Tribunal, Sodexho MS Canada Limited, Richard Fieger-Dickson, Scott Phillips and IWA Canada Local 1-3567 (respondents)
(CA033280; 2006 BCCA 95)
Indexed As: Berezoutskaia v. Human Rights Tribunal (B.C.) et al.
British Columbia Court of Appeal
Hall, Levine and Smith, JJ.A.
March 2, 2006.
Summary:
Berezoutskaia filed a discrimination complaint with the Human Rights Tribunal. She alleged that she had been discriminated against in her employment and in her membership in a trade union on the basis of her place of origin and physical disability in violation of ss. 13(1)(a), 13(1)(b) and 14(c) of the Human Rights Code. A member of the Human Rights Tribunal dismissed the complaint. Berezoutskaia applied for judicial review.
The British Columbia Supreme Court, in a decision reported at [2005] B.C.T.C. 1170, dismissed the application. Berezoutskaia appealed.
The British Columbia Court of Appeal dismissed the appeal.
Administrative Law – Topic 9102
Boards and tribunals – Judicial review – Standard of review – [See second
Civil Rights – Topic 7115
].
Civil Rights – Topic 989
Discrimination – Employment – On basis of physical or mental disability – Berezoutskaia was hired by her employer to supervise workers under its contracts to provide cleaning services to care facilities – Approximately six weeks later, she was transferred to work on a cleaning contract at a hospital, demoting her from supervisor to lead hand – She also complained that she was forced to wear a short-sleeve uniform while working with strong chemicals – She delivered three letters to her employer in which she criticized the work of fellow employees and alleged that her supervisors were incompetent – Berezoutskaia was terminated because of her lack of skills and insubordination – Her union representative refused to submit a grievance on her behalf – Berezoutskaia filed a discrimination complaint with the Human Rights Tribunal – She alleged that she had been discriminated against on the basis of her place of origin and physical disability – A member of the Human Rights Tribunal dismissed the complaint – An application for judicial review was dismissed – The British Columbia Court of Appeal dismissed an appeal – The tribunal member fully considered the parties’ submissions and afforded Berezoutskaia a full consideration of her complaint – The tribunal member’s decision was not patently unreasonable – See paragraphs 1 to 27.
Civil Rights – Topic 989.1
Discrimination – Employment – On basis of nationality, race or ethnic origin – [See
Civil Rights – Topic 989
].
Civil Rights – Topic 7115
Federal, provincial or territorial legislation – Practice – Judicial review – Standard of review – [See
Civil Rights – Topic 989
].
Civil Rights – Topic 7115
Federal, provincial or territorial legislation – Practice – Judicial review – Standard of review – Berezoutskaia filed a discrimination complaint with the Human Rights Tribunal – She alleged that she had been discriminated against in her employment and in her membership in a trade union on the basis of her place of origin and physical disability – A member of the Human Rights Tribunal dismissed the complaint – Berezoutskaia applied for judicial review – The judicial review was governed by s. 59 of the Administrative Tribunals Act (ATA) – The chambers judge did not apply the definition of “patently unreasonable” contained in s. 59(4) but chose to apply the definition as found in the case law – The chambers judge found that the tribunal member’s decision was not patently unreasonable – On appeal, the British Columbia Court of Appeal held that the chambers judge erred in failing to apply s. 59(4) – Cases decided prior to the enactment of the ATA were no longer controlling on the question of the appropriate standard of review – There was no need for the chambers judge to invoke the common law definition of “patently unreasonable” – However, applying s. 59(4), the court held that the chambers judge was correct to dismiss the application – See paragraphs 19 to 27.
Cases Noticed:
Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; 150 N.R. 161, refd to. [para. 15].
Lee v. British Columbia (Attorney General) et al. (2004), 204 B.C.A.C. 113; 333 W.A.C. 113; 32 B.C.L.R.(4th) 1; 244 D.L.R.(4th) 404; 2004 BCCA 457, refd to. [para. 23].
Bell v. Sherk et al., 2003 BCHRT 63 (Hum. Rts. Trib.), refd to. [para. 27].
Statutes Noticed:
Administrative Tribunals Act, S.B.C. 2004, c. 45, sect. 59 [para. 14].
Counsel:
Irina Berezoutskaia, on her own behalf;
W.A. Ferguson, for the respondent, British Columbia Human Rights Tribunal.
This appeal was heard on February 10, 2006, at Vancouver, B.C., by Hall, Levine and Smith, JJ.A., of the British Columbia Court of Appeal. The following decision of the Court of Appeal was delivered by Smith, J.A., on March 2, 2006.
