British Columbia (BC) Hydro's announcement that it is installing wireless smart meters across the Province under a statutory mandate has given rise to an unusual human rights complaint, and a novel "class action" procedural development.
A BC Human Rights Tribunal (BCHRT) member has permitted a "citizens' group" to advance a complaint on behalf of a proposed class of all BC persons diagnosed with electromagnetic hypersensitivity (EHS) who were subsequently advised by a physician to avoid wireless technology. The complaint alleges discrimination based on physical disability contrary to the BC Human Rights Code (Code) and seeks a declaration that BC Hydro improperly discriminates, by failing to provide individual unconditional written commitments that it will refrain from installing wireless smart meters at any particular class member's place of residence. An order is also requested that BC Hydro "cease and desist" from the allegedly discriminatory conduct.
According to this decision, where a human rights complaint: (i) alleges facts which if proven could amount to a Code breach; (ii) defines a class with an apparent common issue; (iii) appears to be in in the group interest; and (iv) is pursued by a representative who proposes a method for keeping class members informed including notified of the right to opt out, then a BCHRT member has a discretion to permit the complaint to proceed on a class basis.
The BCHRT held that the complaint alleges: (i) a Code breach based on disability; (ii) adverse treatment in respect of a service customarily available to the public; and (iii) a connection between the alleged disability and adverse treatment. The class is defined as persons diagnosed with EHS who received some contra‑indication for exposure to the technology due to its alleged effect on their medical condition. Physician advice, not particulars of an individual's medical condition, are said to define class membership. According to the BCHRT member, it is not necessary at this point in the proceeding to provide any medical proof of disability.
Despite authorizing a class complaint, the BCHRT member stated that there is no present obligation requiring group members to be advised about their right to participate in or to opt out of the class complaint.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
