The petitioner, the Vancouver Area Network of Drug Users, filed a complaint with the tribunal on behalf of “individuals who are or appear to be street homeless and/or drug addicted […]” against the Downtown Vancouver Business Improvement Association and the City of Vancouver in relation to the Downtown Ambassador Program ran by the association. The petitioner alleged that the ambassadors hired as part of this program were actively dissuading homeless people from occupying public space. It argued that this constituted discrimination prohibited under British Columbia’s Human Rights Code (the “Code”) because people with Aboriginal ancestry and/or mental or physical disabilities were disproportionately subjected to this adverse treatment.
The tribunal dismissed the complaint on the basis that there was insufficient evidence to prove a prima facie case of discrimination because there was no nexus between any adverse impact the program had on homeless people and anyone’s race, colour, ancestry, mental or physical condition. The petitioner sought a judicial review of this decision, arguing that the tribunal erred in its application of the prima facie test for discrimination. In the alternative, the petitioner argued that the absence of “homelessness” as a prohibited ground of discrimination in the Code violated the guarantee of equality under s. 15 of the Canadian Charter of Rights and Freedoms.
The Court noted that the “social context” for this litigation was “the persistent reality of the vulnerability and marginalization of Vancouver’s homeless population”, which all parties to the dispute agreed was “one of the most pressing social challenges facing governments and the public”.
The Court first addressed the Charter arguments raised by the petitioner. It affirmed that the British Columbia Supreme Court’s inherent jurisdiction as a superior court authorized it to hear the Charter arguments raised by the petitioner in the context of determining this judicial review application. However, the Court held that it would be premature to do so as no new evidence had been adduced by either party that could help the Court address the full breadth of the Charter arguments—particularly with respect to the issue of justification under s. 1 of the Charter. In any event, the Court did not need to address the Charter arguments in this case since it found that the tribunal had erred in its application of human rights law.
Prior to resolving the disagreement between the parties as to what evidence is necessary to establish a prima facie case of discrimination under the Code, the Court first addressed the general legal principles of equality. It noted that the Supreme Court of Canada’s current approach to the guarantee of equality under s. 15 of the Charter is to require claimants to prove on a balance of probabilities that a law or action: “(a) creates a distinction based on enumerated or analogous grounds; and (b) that distinction creates a disadvantage by perpetuating prejudice or stereotyping”.
The Court went on to state that there is a “symbiotic relationship” between the concepts of equality under the Charter and discrimination under the Code. However, the test is somewhat different. In order to prove discrimination under the Code a claimant must establish a prima facie case of discrimination, after which the burden of proof shifts to the respondent to establish a bona fide and reasonable justification for the discrimination. Proving a prima facie case of discrimination requires a claimant to prove that: (a) they have one or more characteristics that are protected under the Code; (b) they experienced an adverse impact with respect to the service identified in the complaint; and (c) the protected characteristic was a factor in the adverse impact.
Contrary to what was stated by the tribunal in the decision under review, the Court held that a claimant does not need to prove any causal link between their protected characteristic(s) and the adverse treatment alleged. The Court held that elevating the legal burden on the claimant to this level would be both contrary to how this test had been recently articulated by the Supreme Court of Canada and inconsistent with the Charter jurisprudence on s. 15. The focus of the legal test must be on the adverse impact of a law or activity and not on the cause of that adverse impact, as this will typically be a “constellation of factors” of which the protected ground represents just one.
The Court held that the tribunal had misapplied the law in terms of the strict standard of evidence it set for the third stage of the prima facie test for discrimination. The Court cited past decisions of the Supreme Court of Canada where prima facie discrimination was proven on the basis of a statistical relationship between the protected characteristic and the adverse impact without more. The Court also analysed a past decision of the tribunal itself with very similar facts where prima facie discrimination was demonstrated through other sources of evidence and methods of proof such as inferences drawn from facts, judicial notice and common sense. It also noted that this position had been later affirmed by the British Columbia Court of Appeal.
The Court further held that the tribunal had failed to appreciate the probity of the evidence of an expert witness called in support of the petitioner’s case, finding that while the tribunal did not reject this witness’s evidence it failed to incorporate this evidence into its analysis. This expert evidence demonstrated that the behaviours on which the program focussed, such as sleeping on public property or aggressive panhandling, were “behaviours associated with people that we assume are street homeless”. When the tribunal concluded that there was no evidence proving that individuals were subjected to adverse treatment because of their race or physical or mental disability, the Court held that this conclusion was reached “without sufficiently taking into account the nature of the adverse treatment and the social environment in which it was taking place”.
The Court further held that if the correct legal test had been applied to the facts it would have led to “the inevitable conclusion that individuals of Aboriginal ancestry and individuals with mental or physical disabilities are differently and disproportionately impacted by the [p]rogram”. This conclusion could be reached by employing common sense or drawing a reasonable inference. The findings of fact made by the tribunal about the activities that constituted adverse treatment, combined with the demographics of the street homeless population and in context to other evidence demonstrated that the protected personal characteristics of this population was a factor in the adverse treatment they experienced. Nothing more was needed in terms of evidence.
The Court also held that the tribunal had erred in holding that the complaint failed because the petitioners had not been able to demonstrate that within the street homeless population impacted by the program, individuals with protected characteristics, such as Aboriginal ancestry or mental or physical disabilities, were disproportionately impacted in comparison to those without such personal characteristics. The Court held that the proper comparison for the tribunal to conduct was between the street homeless population who experience the adverse treatment at issue and the general population that has unrestricted access to downtown Vancouver. There was no need to analyze comparisons of groups within the street homeless population to demonstrate prima facie discrimination.
The Court also found that the tribunal’s analysis of whether discrimination had been proven fell into error by focussing on the intent, design or goals of the program rather than its impact. The Court noted that there was no need to prove any element of intention to demonstrate a case of prima facie discrimination.
The Court held that it had sufficient evidence before it to find that prima facie discrimination had been proven in this case. However, the issue of whether there was a bona fide justification for this discrimination was remitted to the tribunal for determination.