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    Application to Dismiss Complaint: Dismiss complaint against individual

    Information Sheet DA9

    This information sheet tells you:

    When to apply

    A respondent can apply either:

    • Before the respondent files a response to the complaint or discloses documents, or
    • At the same time that they apply to dismiss the complaint.

    Note: There is a time limit to apply to dismiss the complaint.

    Legal test: section 27(1)(d)(ii) of the Human Rights Code

    Section 27(1)(d)(ii) of the Human Rights Code says the Tribunal can dismiss a complaint if:

    “proceeding with the complaint … would not further the purposes of this Code”.

    The purposes of the Human Rights Code

    Section 3 of the Human Rights Code sets out the purposes. The purposes include:

    • preventing discrimination
    • providing remedies for discrimination
    • promoting a society where everyone can fully take part.

    Legal test: dismiss against individual

    The respondent must show three things:

    1. The complaint names the person’s employer who is responsible for the conduct

    Employers are responsible for their employees' conduct when they are acting as employees. The legal term is "liable".

    The employer should say it agrees that it is liable for the person's conduct.

    1. The employer can fulfil any remedies that the Tribunal might order

    The Tribunal will consider:

    • Does the employer say it will fulfil any remedies that the Tribunal might order?
    • Can the employer fulfil any remedy?
      For example, does it have the resources to pay any compensation?
    1. Proceeding against the individual would not further the purposes of the Code

    The Tribunal will consider the conduct that the complaint alleges about the individual. How responsible is the individual? Is a remedy against them important?

    Examples

    • The individual made the discriminatory decision.
    • The individual harassed the complainant.

    In these examples, a remedy against the individual may be important.

    • The individual followed the organization’s policy about accommodation.
    • The individual had little influence on the decision.

    In these examples, a remedy against the individual may not be as important.

    Sample argument

    “The Tribunal should dismiss the complaint against the manager.

    We rely on Daley v. B.C. (Ministry of Health) and others, 2006 BCHRT 341 at paragraphs 60-62.

    • The employer accepts liability for the manager’s conduct.
    • The employer will fulfil the remedies it the complainant wins.
    • The complaint is about accommodating a disability. The complainant says the manager did not cooperate. The manager followed company policy. There is no need for a remedy against the manager.”