Recent BC Cases Cast Light on Tribunals’ Growing Power in Canada

News Analysis

Human rights tribunals began emerging across Canada in the 1960s and 1970s with the stated goal of providing a quicker, more accessible way to resolve discrimination complaints outside the regular court system.

Since then, these quasi-judicial bodies have grown markedly, both in the scope and types of complaints they handle. At the same time, the penalties imposed in some cases have increased significantly.

Recent cases have drawn attention in B.C., including tribunal rulings against a former school trustee over comments criticizing gender ideology, and a family doctor who refused on religious grounds to administer a puberty-blocking drug to a transgender teen.

Most complaints before the B.C. tribunal involve disability. Civil liberties activists say the cases involving expression and religion raise broader concerns about the scope of tribunal powers and their interaction with Charter protections. Supporters of the tribunal system say it provides more accessibility outside of standard litigation procedures.

Recent Judgments

In February, the B.C. Human Rights Tribunal ordered former Chilliwack school trustee Barry Neufeld to pay $750,000 to LGBT members of the Chilliwack Teachers’ Association.

The case stemmed from comments Neufeld made criticizing the teaching of gender identity topics in the province’s public schools, which the tribunal said had exposed LGBT members of the teachers’ union to “hatred or contempt.”

More recently, the tribunal ordered Delta, B.C., family doctor Henry Ajaero to pay $28,100 in legal costs and fines after he refused in 2021 to inject a 14-year-old transgender patient with the puberty-blocking drug Lupron, citing his religious beliefs and medical experience.

The tribunal found that Ajaero’s refusal and failure to help the patient and the patient’s mother find another way to obtain the injection caused injury to the patient’s “dignity, feelings and self-respect.”

The tribunal ruled it was “not relevant to liability” that the patient was still able to receive the drug later the same day at a walk-in clinic and continued to receive injections at walk-in clinics until acquiring a new family doctor.

‘Belief System’

Hamilton-based constitutional lawyer Hatim Kheir of Charter Advocates Canada said he believes certain tribunal decisions, particularly in B.C., reflect an ideological stance rather than a neutral application of the law.

“There’s been this stance of the tribunal basically adopting one particular belief system, and then interpreting the actions of other people through that lens,” Kheir told The Epoch Times.

The Epoch Times reached out to the B.C. Human Rights Tribunal but did not receive a response by publication time.

The B.C. Human Rights Tribunal says on its website that it offers parties to a complaint the opportunity to resolve the issue through mediation, and that it’s committed to “accessibility, fairness and equality.”

Tribunals and Charter Rights

Courts generally defer human rights and other matters to administrative decision-makers, and the Supreme Court of Canada has held that decision-makers must balance Charter rights against provincial human rights legislation.

Kheir said tribunals often prioritize provincial human rights codes over Charter protections.

“It’s in their [tribunal members’] hands to favour, let’s say, the human rights law over the constitutional Charter protections, which should take precedence,” Kheir told The Epoch Times.

“There’s just sort of a case that human rights can—it doesn’t necessarily—but can often end up being pit against certain Charter rights, particularly the fundamental freedoms. Freedom of expression and freedom of religion come to mind,” he said.

Former Alberta Human Rights Commission chief Collin May said challenging a tribunal decision in court can take significant time and money when a respondent believes the decision conflicts with Charter protections.

Both said May and Kheir said those costs make the tribunals’ ability to impose significant financial penalties more concerning.

“The costs have increased so much if you’ve got to get a lawyer,” May told The Epoch Times. “The process is much more onerous. It’s longer, and the potential fines are much higher, especially in B.C.”

Kheir and May said part of the issue is financial: filing and pursuing a human rights complaint does not itself carry tribunal fees, while complainants may qualify for free legal assistance.

By contrast, respondents who hire lawyers generally pay their own legal costs, even if they prevail, as well as any additional costs of seeking judicial review of a tribunal ruling.

“If a respondent does win a case, unlike in a court hearing, the losing party, the plaintiff or the complainant generally does not have to pay any cost to the respondent who might have won,” May said.

B.C. Premier David Eby has praised the province’s Human Rights Tribunal for helping to fight racism and discrimination.

“I’m glad that more people than ever before are standing up against discrimination and hate, including through the BC Human Rights Tribunal,” Eby said in past comments.

“By supporting faster access to justice at the tribunal, we’re helping people get the justice they deserve in every community of the province.”

Evolving Power of Tribunals

Canadian provinces enacted human rights legislation beginning in the 1960s, including Ontario’s Human Rights Code in 1962, Alberta’s Human Rights Act in 1966 and Human Rights Commission in 1973, and B.C.’s Human Rights Act in 1969.

Various commissions and other bodies were established across Canada to handle discrimination complaints and have since evolved into tribunals and commissions with greater power and scope.

May said tribunals were regarded as a more efficient way for people whose rights had been infringed to seek redress, but that the process has since become “much more like a trial.”

The first codes focused on discrimination in lodging, employment, and services, but over time, provincial human rights legislation has expanded to include additional protected grounds, such as gender expression and identity, as well as broader contexts in which discrimination complaints can be brought.

Kheir said the growing power of tribunals in provinces such as B.C., where they can adjudicate complaints involving publications and expression outside more traditional discrimination contexts, is his “number one concern.”

He contrasted this with Ontario, where the tribunal has jurisdiction over specific areas such as discrimination in employment, accommodation, and services.

“Things that people say outside of those contexts are not subject to the human rights tribunal,” he said of Ontario. “That’s not the case in a lot of other provinces.”

B.C.’s tribunal, established in 1997, says its process includes determining whether complaints fall within its jurisdiction, offering mediation, and holding hearings in a small fraction of cases. The tribunal says it currently receives more than 1,100 complaints per year, rejects more than 300, and resolves approximately 40 per year after a full hearing.

Those annual figures differ from the tribunal’s overall caseload. A 2025 estimate by the B.C. Attorney General put the tribunal’s active caseload at approximately 6,000 and noted major delays in resolving cases, particularly following a surge in complaints filed in 2022–2023.

Since 2003, the tribunal has operated under a direct-access framework in which complaints are filed directly with the tribunal rather than first being investigated by a human rights commission. Ontario established a direct-access framework in 2008.

May said there are advantages to a pre-screening model.

“The idea of having this screening process, sort of a gatekeeping process, was to try to flush out the ones that could be dealt with quickly, or that can go through a conciliation process,” he said.

Alberta constitutional lawyer James Kitchen, however, said the province’s pre-screening process has been used to exclude discrimination complaints from groups he says are not ideologically favoured, such as Christians.

“In Alberta, the pre-screening kicks out all the Christians—the complaints that the commission doesn’t like. That’s the problem I have with all mine,” Kitchen said in an interview.

“I’ve had a dozen complaints from Christians who lost their jobs for not taking the [COVID-19] shot for religious reasons,” he said. “The commissioners booted them all out … I can’t even get to a hearing.”

B.C.’s Human Rights Commissioner Kasari Govender says the tribunal system is important for acting where the courts may not be able to.

Writing about litigation pertaining to the tribunal’s power in deciding a child welfare case that involved alleged discrimination in 2023, Govinder stated that the tribunal’s role iiss irreplaceable and “crucial in determining whether people facing discrimination in the child welfare system will be able to enforce their Human Rights Code-protected rights.”

University of Windsor associate professor of law Noel Semple said that tribunals are more specialized forums that offer increased ability to resolve rights disputes than the regular court system.

“Tribunals have great potential to improve access to justice in Canada,” Semple wrote in a 2024 paper, adding that tribunals can also offer victims “authoritative legal vindication of rights that would otherwise be abandoned, or resolved in a completely privatized way.”

Recommendations

While tribunal rulings can be subject to judicial review, the experts who spoke with The Epoch Times said the cost and time required to pursue such a challenge warrant several reforms.

Kheir said he would like to see human rights codes narrowed to apply only to specific areas of discrimination in employment, services, and accommodations. He said provincial legislatures have the responsibility to make those changes.

“The buck stops at the legislature. They’re the ones who pass the code,” he said.

Kitchen recommended that provincial governments pay more attention to appointments to human rights commissions and tribunals.

May called for several other changes, including writing Charter protections into human rights codes with clearer recognition of free speech protections, capping financial penalties, increasing scrutiny of appointments, and doing more to discourage frivolous complaints.

“There should be a disincentive to frivolous complaints,” May said, adding that if tribunals are going to act like courts, they should offer respondents similar protections.