Section 27(1) of the BC Human Rights Code allows the BC Human Rights Tribunal discretion to dismiss a complaint when it determines that any of the following apply:

(a) the complaint or that part of the complaint is not within the jurisdiction of the tribunal;
(b) the acts or omissions alleged in the complaint or that part of the complaint do not contravene this Code;
(c) there is no reasonable prospect that the complaint will succeed;
(d) proceeding with the complaint or that part of the complaint would not
(i) benefit the person, group or class alleged to have been discriminated against, or
(ii) further the purposes of this Code;
(e) the complaint or that part of the complaint was filed for improper motives or made in bad faith;
(f) the substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding;
(g) the contravention alleged in the complaint or that part of the complaint occurred more than one year before the complaint was filed unless the complaint or that part of the complaint was accepted under section 22 (3).

In these applications, the onus is on the respondent to establish the basis for dismissal.

Section 27(1)(c), regarding no reasonable prospect of success, is one of the most commonly cited reasons for dismissing a complaint. In these applications, the overarching question is whether there is no reasonable prospect that the complainant can establish the facts necessary to prove their case, or whether it is reasonably certain that the respondent could justify their conduct at a hearing.

It is part of the Tribunal’s gatekeeping function, so that it can remove complaints which “do not warrant the time and expense of a hearing”: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27; Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95, leave to appeal ref’d [2006] S.C.C.A.

In these applications, the tribunal does not make findings of fact. However, it assesses the evidence as follows according to the decision of Dolinsky v. NAI Goodard and Smith, 2020 BCHRT 130 at paragraph 47:

It looks for internal and external consistency, places the evidence in context, considers the overall relationship of the parties, and considers all the circumstances in which the alleged acts of discrimination occurred. On this basis, the Tribunal gauges the relative strengths and weaknesses of the case and determines what aspects of the complaint do not rise above conjecture and, in light of all the material, have no reasonable prospect of success: Ritchie v. Central Okanagan Search and Rescue Society and others, 2016 BCHRT 110 at para. 120.

The Tribunal will consider all evidence before it to examines the merits of the complaint. It will determine that a hearing is unwarranted if there is no reasonable prospect that the member hearing the complaint could make findings of fact necessary to support the complaint. It may only consider evidence that is before it in making its decisions. Evidence that might be available at a hearing is not considered.