IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Gichuru v. Vancouver Swing Society, |
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2019 BCSC 402 |
Date: 20190321
Docket: S172060
Registry: Vancouver
Between:
Mokua Gichuru
Petitioner
And:
Vancouver Swing Society, Matthew Lam, Kaitlin Russell, Angelena Weddell and The BC Human Rights Tribunal
Respondents
Before: The Honourable Mr. Justice Masuhara
On judicial review from: An order of the British Columbia Human Rights Tribunal, dated February 1, 2017 (Mokua Gichuru v. Vancouver Swing Society, Tribunal Case No. 15892).
Reasons for Judgment
In Chambers
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Acting on his own behalf, the Petitioner: |
Mokua Gichuru |
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Counsel for the Respondents: |
Devon M.L. Black |
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Counsel for the Respondent British Columbia Human Rights Tribunal: |
Katherine A. Hardie |
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Place and Dates of Hearing: |
Vancouver, B.C. June 26-27, 2018 |
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Written Submissions: |
September 19, 2018 September 21, 2018 October 4, 2018 |
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Place and Date of Judgment: |
Vancouver, B.C. March 21, 2019 |
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Table of Contents |
Paragraph Range |
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[1] - [5] |
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[6] - [39] |
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[16] - [39] |
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[40] - [42] |
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[43] - [43] |
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V. DOES THE TRIBUNAL HAVE JURISDICTION TO “NOT ACCEPT” A COMPLAINT FOR FILING? |
[44] - [60] |
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[55] - [60] |
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[61] - [67] |
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VII. WAS THE TEST THAT THE TRIBUNAL APPLIED IN THE SCREENING DECISION PATENTLY UNREASONABLE? |
[68] - [75] |
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VIII. WAS THE TRIBUNAL’S SCREENING DECISION PATENTLY UNREASONABLE? |
[76] - [83] |
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[84] - [93] |
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X. WAS THE TRIBUNAL’S RECONSIDERATION DECISION PATENTLY UNREASONABLE? |
[94] - [104] |
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[105] - [105] |
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[1] These Reasons deal with Mr. Gichuru’s application for judicial review of a decision by the BC Human Rights Tribunal (the “Tribunal”) dated February 1, 2017, that refused to accept his complaint of discrimination against the Vancouver Swing Society, Mr. Lam, Ms. Russell, and Ms. Weddell. He seeks to have that decision and a subsequent reconsideration application, dated January 26, 2018, which dismissed his application, quashed.
[2] Mr. Gichuru says that the Tribunal lacked the jurisdiction to refuse to accept his complaint. He submits that s. 21 of the Human Rights Code, R.S.B.C. 1996, c. 210 (the “Code”) requires the Tribunal to accept all complaints for filing subject to section 21(5) and 22 of the Code, neither of which he says are applicable.
[3] His alternative arguments are that:
(a) if the Tribunal has jurisdiction under Rule 12(2) which permits the Tribunal to accept a complaint for the filing, the Tribunal applied the wrong legal test; or
(b) that the Tribunal misapplied the legal test.
[4] Though Mr. Gichuru has not specified in his petition and amendments thereto, a breach of natural justice, his submissions do. Thus, I add this to his issues.
[5] I also note that Mr. Gichuru is required to serve notice to the Attorney General of British Columbia of his petition for a judicial review under s. 16(1) if the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241. This is usually indicated on the first page of a petition for judicial review as required by Form 66 of the Supreme Court Civil Rules, B.C. Reg. 168/2009. I am proceeding under the basis that notice to the Attorney General was in fact served.
[6] Mr. Gichuru’s complaint to the Tribunal is dated December 5, 2016, and contained in Form 1.1. There is no issue regarding the form used. He names the parties he complains against and filled in where required and specifies his grounds of discrimination as: age, sex and race. He states on the form where required: under “Age”, “I am perceived by the respondents as an “older person”; under “Race”, “I am black”; and under “Sex”, “I am a man”.
[7] I note that on December 5, 2016, Mr. Gichuru also filed another complaint under s. 43 of the Code against the same parties and on the same facts as the subject complaint. That complaint has been accepted for filing by the Tribunal.
[8] On December 29, 2016, the Registrar and Tribunal Member, Mr. Adamson, wrote to Mr. Gichuru advising him that further information was required in respect to the subject complaint. I note the following from the letter:
… In your case, this means that your complaint has to show facts that could prove:
· The respondents’ conduct was in an area of daily life protected under the Code;
· You have a real or perceived personal characteristic protected under the Code;
· The respondents’ conduct had a negative effect on you; and
· Each of your personal characteristics was a factor in that negative effect.
Before proceeding further with your complaint the Tribunal needs more information.
Area of employment
You identify yourself as a member of the local swing dance community. Your information does not appear to include anything about the Vancouver Swing Society employing you, however.
Grounds of age, sex and race
You state that you reported being harassed by another member of the group and the respondents reacted by banning you from volunteering with them and participating in events for the rest of 2016. You alleged the banning occurred due to your age and sex because the director informed you that the society takes these factors into account in determining how to respond to harassment complaints and referred you to an article that “stereotyped the behaviour of older men and said that it sketched out the contours and context of the VSS’ underlying discomfort with my behaviour and communications that the VSS had observed and experienced.”. Before the Tribunal can accept any age and sex complaint for filing, you need to set out in more detail how your age and sex were factors in the decision to ban you from the society. While you assert the director said that age and sex were factors, you need to state more clearly what the director said and how the article he directed you to supports your allegations.
You identify yourself as one of the only black members of the society. While alleging that the way you were treated is consistent with negative prejudicial stereotypes about black people, you do not set out any information, apart from speculation, as to how your race was a factor in the negative effect.
Individual respondents
You name various Vancouver Swing Society directors as individual respondents without providing any information about the individual culpability of the individuals you have named, and why the purposes of the Code would be served by proceeding against them instead of simply the Vancouver Swing Society. Further information satisfying the four criteria listed above and why they should be named apart from the society is necessary for each of the directors named before a complaint can proceed against them.
If you have more information to support your allegations, you may provide it for consideration by January 13, 2017. If nothing is received from you by this date, your complaint will be rejected for filing and closed.
[9] In response to this, Mr. Gichuru emailed the Tribunal on January 10, 2017, asking for clarification on what was required and whether he was required to submit evidence. A Tribunal case manager, Mr. Macdonald, left Mr. Gichuru a voicemail on January 19, 2017, explaining that the Tribunal sought further information.
[10] In response, Mr. Gichuru sent Mr. Madonald an email on January 25, 2017, containing a further explanation of what he considered the primary conduct relevant to the complaint was and attached eight documents to the email. These documents contained the Vancouver Swing Society Code of Conduct, private Facebook messages with Ms. Russell, several correspondences between Mr. Gichuru and Mr. Lam, and a series of articles that Mr. Lam had requested that Mr. Gichuru review in response to his complaint against Ms. Russell.
[11] As expanded on below in the discussion of the subsequent reconsideration decision of the Tribunal, the crux of Mr. Gichuru’s complaint to the Tribunal involved what can be described as a dispute on Facebook over Mr. Gichuru’s conduct related to other female members of the VSS. Mr. Gichuru felt as if he had been harassed on Facebook by female members of the VSS and raised the issue with Ms. Wendell and Mr. Lam. It is clear that Mr. Gichuru expected the VSS executive to take his side on the issue, but they did not. Ultimately, the VSS executive asked other members of the VSS for input on Mr. Gichuru’s behavior and determined that it was his behavior that was problematic, although this was not known to Mr. Gichuru at the time. In response, Mr. Lam agreed to meet with Mr. Gichuru and provided him with three documents: a Facebook post written from the perspective of an older man in the swing community about older men crossing lines with younger women with romantic pursuits; a document on “Emotional Labour”, which included sections discussing “toxic masculinity”; and an article titled “How To Not Be Creepy”, which Mr. Lam recognized as having an inflammatory title in his email.
[12] On February 1, 2017, the Tribunal refused to accept Mr. Gichuru’s complaint (the “Screening Decision”). The reasons written by Mr. Rilkoff stated as follows:
The Tribunal received your information on January 25, 2017. It has been reviewed and considered. I note that your complaint is properly filed in the area of employment and that the area of services also applies.
The Tribunal’s December 29, 2016 decision not to accept your complaint for filing will stand.
After an online altercation with Rebecca Rivera, you filed an incident report with Vancouver Swing Society (VSS). You then corresponded with VSS about the issue and had an in-person meeting with Matthew Lam. Ultimately, Mr. Lam told you that VSS was not the appropriate body to deal with your harassment complaint. You make no allegations of discrimination in this regard.
Your allegations of discrimination are to do with VSS’s handling of your harassment complaint and its decision to ban you, first for November 19 and December 3 only, then indefinitely. You say this amounts to discrimination based on your age, sex and race.
You describe, nothing said or done by anyone having to do with race. You appear to say that because you are the only black member of VSS, their alleged discriminatory conduct must be considered to have been due to your race, in addition to age and sex. Without describing what was said or done that would bring race in as a factor, your allegation is speculation, which is not sufficient to ground a human rights complaint. (Please note that the four criteria referred to in the December 29 letter are listed in bullet form after the second paragraph.)
With respect to age and sex, you make no allegations that suggest discrimination. After you filed your harassment complaint, Mr. Lam advised you that VSS was uncomfortable with your behaviour leading up to and during the filing of your complaint. In an effort to explain VSS’s discomfort with your behaviour, Mr. Lam referred you to an article entitled An Invitation to the Older Men in My Community written by, it appears, an older man in the dance community. The article expresses concern about older men crossing boundaries with younger women and invites them to take on a more fatherly role in the community.
From the information you provide older men are allowed membership with VSS without restriction. It appears that your harassment complaint did not proceed and you were instructed not to attend events on November 19 and December 3, and perhaps indefinitely due to what VSS viewed as inappropriate behaviour. VSS has a right to ban individuals for inappropriate behavior regardless of sex, age or any other characteristic.
For these reasons, your complaint is not accepted for filing and your file is now closed.
[13] Although the Tribunal stated that the December 29, 2016 “decision” not to accept the complaint for filing will stand, I take this mean that Mr. Rilkoff determined on February 1, 2017, that Mr. Gichuru did not meet the requirements set out in the December 29, 2016 request for more information and that this was, in fact, the only final decision made by the Tribunal to not accept the complaint for filing.
[14] On March 6, 2017, Mr. Gichuru filed his petition seeking judicial review of the Screening Decision.
[15] On November 28, 2017, the parties appeared before me for the judicial review hearing. I recommended that Mr. Gichuru seek reconsideration of the Screening Decision before the Tribunal and adjourned the hearing and advised the parties to return to me, if necessary, once a reconsideration decision was received.
[16] On December 5, 2017, Mr. Gichuru applied to the Tribunal seeking reconsideration of the Tribunal’s decision. He raised seven grounds.
[17] By letter dated December 19, 2017, Mr. Macdonald, the case manager handling the reconsideration, wrote to Mr. Gichuru and the respondents stating the following:
Mr. Gichuru identifies that the test for reconsideration is whether the interests of fairness and justice require reconsideration. The first issue is whether Mr. Gichuru has identified grounds justifying reconsideration of the decision. If so, the Tribunal then conducts the reconsideration.
Mr. Gichuru identifies the following grounds for reconsideration:
A. Breach of natural justice in the screening process.
B. The Tribunal lacks jurisdiction to refuse to accept a complaint for filing.
C. Rule 12-2 is inapplicable.
D. Rule 12-2 is ultra vires the Tribunal;
E. The Tribunal applied the wrong test under Rule 12-2;
F. The Tribunal misapplied the legal test under Rule 12(2);
G. New Evidence.
a. New evidence not subject to a duty of confidentiality.
b. New evidence subject to a duty of confidentiality.
Tribunal Member Rilkoff directs as follows:
The Tribunal does not require the Respondents to make submission on items A-F.
With respect to item G, the Respondents will be given an opportunity to address whether the Tribunal can consider the new evidence that is subject to a duty of confidentiality. They may also address whether some or all of the new evidence justifies reconsideration. Further, the Respondents will have the opportunity to address the second issue, that is, if the Tribunal decides to reconsider the decision, whether it should accept the complaint for filing based on the material Mr. Gichuru has filed.
[18] Mr. Gichuru queried the case manager about the comment that submissions were not required from the respondents in respect to items A-F; specifically whether the Tribunal Member had decided that said grounds did not justify reconsideration. The case manager wrote Mr. Gichuru advising that he was not able to “tell you the thinking of the Tribunal Member. It is up to you to determine whether you are withdrawing these grounds or whether you seek a decision in respect of them.”
[19] Mr. Gichuru then wrote the case manager stating:
… I understand that no decision has been made on the application as a whole, but is the Tribunal Member yet to decide whether to allow a reconsideration on the basis of items A-F? If so, why did he say the respondents were not required to make submissions?
[20] The case manager responded that no decision had been made:
In the December 19, 2017 letter, the Tribunal Member directed that he did not require submissions from the respondents on items A-F. No decision has been made on the application. Therefore, you are asked to confirm that you are withdrawing your request for reconsideration on items A-F.
[21] Mr. Gichuru then advised the case manager that he was withdrawing reconsideration of grounds A-F.
[22] On January 16, 2018, Mr. Gichuru in his reply submissions in the reconsideration application repeated his withdrawal of grounds A-F:
The only plausible interpretation of this is that Member Rilkoff has decided that a reconsideration on the basis of grounds A-F is not warranted. I am therefore withdrawing my application for reconsideration on grounds A-F.
[23] On January 26, 2018, the Tribunal issued its reconsideration decision. In the decision the withdrawal of grounds A-F was noted. The Tribunal Member, Mr. Rilkoff, identified that the only issues for reconsideration were:
(a) Should the Tribunal consider new evidence that is subject to a duty to confidentiality?
(b) Does some or all of the new evidence justify reconsideration?
(c) If so, should the Tribunal accept the complaint for filing?
[24] The Tribunal Member granted Mr. Gichuru leave to rely on the new evidence which was subject to a duty of confidentiality but denied the application for reconsideration of the Screening Decision and, though it was not necessary to do so, affirmed the decision not to accept his complaint for filing on the basis that the alleged facts, if proven, could not be a violation of the Code.
[25] The Tribunal Member allowed Mr. Gichuru to submit new evidence obtained by Mr. Gichuru in a separate retaliation complaint he had before the Tribunal even though Mr. Gichuru had not obtained an order in advance permitting the admission of such evidence as required under the Tribunal rules.
[26] The new evidence from Mr. Gichuru primarily involved private communications between members of the VSS, including the respondents, in relation to Mr. Gichuru’s behaviour. Importantly, the new evidence brought to light the actions of Mr. Gichuru and two young female members of the VSS that ultimately led to Mr. Lam sending Mr. Gichuru the articles about emotional labour and older men in the swing community. Based on the new evidence, the genesis of the current dispute appears to have started when Mr. Gichuru’s former dance partner, AL, accused Mr. Gichuru of “mansplaining” on a Facebook post Mr. Gichuru had made about American politics and “unfriended” him, or blocked him from further contact. It is admitted that Mr. Gichuru had previously proposed that he and AL not be partners because he had romantic feelings toward her. For clarity, the Oxford English Dictionary 3rd Ed. (December 2018), online: <http://www.oed.com/view/Entry/59997929>, defines “mansplain” as:
Of a man: to explain (something) needlessly, overbearingly, or condescendingly, esp. (typically when addressing a woman) in a manner thought to reveal a patronizing or chauvinistic attitude.
[27] In this context, I take it that AL felt that the article posted by Mr. Gichuru constituted a needless or condescending explanation to other women of an issue in politics that primarily related to women.
[28] Mr. Gichuru then made a post lamenting this fact and, in relation to AL, stated: “Good riddance. I don’t need false friends in my life.” At some point, Ms. Wendell brought this post up to AL. AL explained that she “unfriended” Mr. Gichuru on Facebook due to an accumulation of frustrating treatment by Mr. Gichuru that had strained the relationship and that she had blocked him because she saw his mansplaining as the last straw.
[29] RR, another member of the VSS who was also a friend of AL’s, saw this post. It prompted her to defend AL and call Mr. Gichuru a “creep” and accused Mr. Gichuru of forcing a “much younger woman to perform all sorts of emotional labour on your behalf”. This was followed by a further exchange between Mr. Gichuru and RR on this issue. Ultimately, Mr. Gichuru perceived this exchange as harassment and bullying against him and complained to the VSS about it. The Tribunal found that Mr. Gichuru essentially asked the VSS to seek an apology from and/or sanction RR for expressing a personal opinion online.
[30] Additional witness statements were also provided to the Tribunal and were included in the new evidence. The Tribunal characterized the new witness statements as follows:
a. Discomfort by a witness about an instance where Mr. Gichuru invited a man but not the witness to comment on his Facebook post about something involving both the man and the witness.
b. In 2015, multiple women accused a well-known international instructor of sexual assault, leading to a movement in the community to combat harassment and sexual assault.
c. A Vancouver swing dancer posted a site directed at young women in the community who might feel unsafe or vulnerable with respect to sexual harassment issues.
d. Mr. Gichuru had commented that he was confused by the connection between a wide age gap between romantic partners and potential consent issues. Community members tried to explain that the power differential, especially between older men and younger women, could result in manipulation and lack of true consent. Mr. Gichuru’s responses indicated that he did not seem to believe he would have power over someone in such a situation. The witness found this troubling.
e. The VSS executive was concerned that the effect of Mr. Gichuru’s complaint (about RR) would be to shame or silence women in the community who had spoken up about sexual harassment issues.
f. The Board decided Mr. Lam would respond to Mr. Gichuru as they thought he might be more receptive to advice about his behaviour if it came from another man.
[31] Mr. Gichuru submitted arguments to the Tribunal to the effect that “the new evidence shows that the Respondents pervasively stereotype men, particularly older men, ‘as being ‘creepy’ and misusing their ‘power’ in the dance community.’” He submitted that the effect of these stereotypes resulted in his complaint of harassment not being taken seriously and that as if he had been guilty of harassment itself, resulting in unfair treatment.
[32] He also reiterated his claim that as he was discriminated on the ground of race, this time relying on the fact that one of the respondents, Ms. Russell, had reacted negatively to a post on American politics which he had wrote from his perspective as an African-Canadian. He also accused the VSS of linking Mr. Gichuru to an African-American dance instructor who had been accused of abuse.
[33] In making its final determination, the Tribunal Member ruled that Mr. Gichuru had not demonstrated that it was “in the interest of justice and fairness” to reconsider the decision. He went on to note:
It is apparent that the Respondents view Mr. Gichuru as older than AL and other women he was interacting with. It is also apparent that the Respondents are alert to issues of sexual harassment in their community and that, in that that [sic] context, they perceive a power differential between men and women and in particular between older men and younger women. However, it is not discriminatory to take into account how power operates in society. In Janzen v. Platy Enterprises, [1989] 1 S.C.R. 1252, the Court noted the increased vulnerability of women to sexual harassment. More recently, in British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, Rowe J. state, “Men can exercise gendered power over women, and white people can exercise racialized power over people of colour” (para. 42)
The way power operates is fact-specific, and power in relation to age is particularly so. However, in the context of sexual harassment, the Tribunal has taken into account the age differential between the parties in assessing conduct and the impact on the complainant: see, for example, Courchaine v. aaah…Balloon Delights Inc. [1994} BCCHRD No. 28, para. 41 [sic]; and Fourgere v. Rallis and Kalamaata Greek Taverna, 2003 BCHRT 23, para. 86
[34] The Tribunal carries on to find that the VSS was alert to issues surrounding social realities of power and was concerned about addressing sexual harassment in its community, especially the experience of women. It found that the evidence shows that the VSS was legitimately concerned about Mr. Gichuru’s conduct toward AL and that it does not support an indication that the VSS stereotyped him as a “creep”, but rather acted based on the actual conduct of Mr. Gichuru himself.
[35] The Tribunal also determined that the new evidence did not support Mr. Gichuru’s allegation of race discrimination. It concluded that when the VSS identified allegations of sexual assault against an African-American dance instructor when addressing their concern about sexual harassment, the VSS did not link Mr. Gichuru with that instructor, nor did this support a conclusion that the respondents “stereotyped Mr. Gichuru as an aggressive predator, or otherwise, in relation to his conduct toward AL.”
[36] The Tribunal went on to consider other factors that have been identified in the jurisprudence when considering the “interests of justice and fairness”, namely the timeliness of the request, the prejudice to the respondents and other relevant factors, and determined that none of these factors justify reconsideration of the screening decision.
[37] Further, the Tribunal Member stated:
[38] Even if I had simply re-opened the screening decision to consider the new evidence that arises out of the events in question together with the material filed earlier, it does not support a reversal of the decision. While Mr. Gichuru alleges that the Respondents acted on discriminatory stereotypes, this is not borne out by the evidence he has provided.
[39] In my Reasons for Judgment delivered on July 18, 2018 (2018 BCSC 1209), I ordered that questions A-F be remitted to the Tribunal for consideration in order to have a more complete record surrounding Mr. Gichuru’s challenge to their screening process.
[40] The provisions relevant to this case include the following sections of the Code:
Complaints
21 (1) Any person or group of persons that alleges that a person has contravened this Code may file a complaint with the tribunal in a form satisfactory to the tribunal.
…
(4) Subject to subsection (5), a complaint under subsection (1) may be filed on behalf of
(a) another person, or
(b) a group or class of persons whether or not the person filing the complaint is a member of that group or class.
(5) A member or panel may refuse to accept, for filing under subsection (1), a complaint made on behalf of another person or a group or class of persons if that member or panel is satisfied that
(a) the person alleged to have been discriminated against does not wish to proceed with the complaint, or
(b) proceeding with the complaint is not in the interest of the group or class on behalf of which the complaint is made.
Time limit for filing a complaint
22 (1) A complaint must be filed within 6 months of the alleged contravention.
(2) If a continuing contravention is alleged in a complaint, the complaint must be filed within 6 months of the last alleged instance of the contravention.
(3) If a complaint is filed after the expiration of the time limit referred to in subsection (1) or (2), a member or panel may accept all or part of the complaint if the member or panel determines that
(a) it is in the public interest to accept the complaint, and
(b) no substantial prejudice will result to any person because of the delay.
…
Dismissal of a complaint
27 (1) A member or panel may, at any time after a complaint is filed and with or without a hearing, dismiss all or part of the complaint if that member or panel 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 6 months before the complaint was filed unless the complaint or that part of the complaint was accepted under section 22 (3).
(2) If a member or panel dismisses a complaint or part of a complaint under subsection (1), that member or panel must inform the following persons of the decision in writing and give reasons for the decision:
(a) the complainant;
(b) the person against whom the complaint was made, if that person had been given notice of the complaint;
(c) any other party;
(d) an intervenor.
Assignment of complaints
27.1(1) For the purposes of making a decision or order in respect of a complaint, the chair may assign the complaint to
(a) a single member designated by the chair, or
(b) a panel of 3 members designated by the chair.
(2) If a panel is designated under subsection (1) (b), the chair must designate one of the members of the panel to preside.
(3) [Repealed 2004-45-104.]
…
Powers to make rules and orders respecting practice and procedure
27.3(1) The tribunal may make rules respecting practice and procedure to facilitate just and timely resolution of complaints.
(2) Without limiting subsection (1), the tribunal may make rules as follows:
(a) respecting the holding of prehearing conferences and requiring the parties to attend a prehearing conference in order to discuss issues relating to a complaint and the possibility of simplifying or disposing of issues;
(b) respecting disclosure of evidence, including but not limited to prehearing disclosure and prehearing examination of a party on oath or solemn affirmation or by affidavit;
(c) specifying the form of notice to be given to a party by another party or by the tribunal requiring a party to diligently pursue a complaint and specifying the time within which and the manner in which the party must respond to the notice;
(d) respecting service of notices and orders, including substituted service;
(e) requiring a party or an intervenor to provide an address for service or delivery of notices and orders;
(f) providing that a party's or an intervenor's address of record is to be treated as an address for service;
(g) respecting procedures for matters under sections 22, 25 and 27;
(h) respecting mediation and other dispute resolution processes, including, without limitation, rules that would permit or require mediation of a complaint, whether the mediation is provided by a member or by a person appointed, engaged or retained under section 33;
(i) respecting procedures for formal offers to settle a complaint;
(j) respecting the amendment of a complaint or a response to a complaint;
(k) respecting the addition of parties to a complaint;
(l) respecting applications under section 42(3);
(m) requiring or allowing that a process be conducted electronically, with or without conditions.
(3) In order to facilitate the just and timely resolution of a complaint, a member or panel, on their own initiative or on application of a party or an intervenor, may make any order for which a rule could be made under subsection (1) or (2).
Application of Administrative Tribunals Act to tribunal
32 The following provisions of the Administrative Tribunals Act apply to the tribunal:
…
(q) section 59 [standard of review without privative clause];
…
[41] The Tribunal also has its own set of rules on the procedure for filing a complaint:
Rule 12 – Making a Complaint
Making a complaint
(1) To make a complaint, a person must complete and file:
(a) Form 1.1 – Individual Complaint Form;
(b) Form 1.2 – Complaint for Another Person;
(c) Form 1.3 – Complaint for Group or Class; or
(d) Form 1.4 – Retaliation Complaint.
Complaint must allege possible contravention of Code
(2) A complaint must allege facts that, if proven, could be a contravention of the Code against each person named as a respondent.
[42] The relevant section of the Administrative Tribunal Act, S.B.C. 2005, c. 45 (the “ATA”) is reproduced below:
Standard of review without privative clause
59 (1) In a judicial review proceeding, the standard of review to be applied to a decision of the tribunal is correctness for all questions except those respecting the exercise of discretion, findings of fact and the application of the common law rules of natural justice and procedural fairness.
(2) A court must not set aside a finding of fact by the tribunal unless there is no evidence to support it or if, in light of all the evidence, the finding is otherwise unreasonable.
(3) A court must not set aside a discretionary decision of the tribunal unless it is patently unreasonable.
(4) For the purposes of subsection (3), a discretionary decision is patently unreasonable if the discretion
(a) is exercised arbitrarily or in bad faith,
(b) is exercised for an improper purpose,
(c) is based entirely or predominantly on irrelevant factors, or
(d) fails to take statutory requirements into account.
(5) Questions about the application of common law rules of natural justice and procedural fairness must be decided having regard to whether, in all of the circumstances, the tribunal acted fairly.
[43] Based on the submissions, I have determined the relevant issues in this litigation are:
a) Does the tribunal have jurisdiction to “not accept” a complaint for filing?
b) Was the test that the Tribunal applied in the Screening Decision patently unreasonable?
c) Was the Tribunal’s Screening Decision patently unreasonable?
d) Were the Tribunal’s procedures unfair?
e) Was the Tribunal’s Reconsideration Decision patently unreasonable?
[44] Instead of considering questions A-F as ordered in my July 18 reasons for judgment, the Tribunal asks that I rescind the remittal. Due to the findings below, this order is granted and the Tribunal no longer needs to reconsider the jurisdictional questions.
[45] Not withstanding this, there is discretion to consider the jurisdictional question raised by Mr. Gichuru, an area which I queried in the hearing. This discretion will generally not be exercised in favour of an applicant on judicial review where the issue could have been but was not raised before the tribunal (Alberta (Information and Privacy Commission) v. Alberta Teachers’ Association, 2011 SCC 61 at paras. 22-26).
[46] After careful consideration however, I have decided to consider the jurisdictional question as the Tribunal’s own procedures are unclear in relation to whether it has statutory authorization to end consideration of a complaint by “not accepting for filing”. This is also necessary as the screening process constitutes an important part of the Tribunal’s procedure in dealing with its caseload in an effective manner. This issue has also not been directly addressed in case law after the elimination of the Human Rights Commission in 2003 as a result of the sweeping changes implemented by the Human Rights Code Amendment Act, S.B.C. 2002, c. 62 (the “2002 Act”).
[47] Although this specific issue was not argued before me, I note that issues of jurisdiction are questions of law and subject to s. 59(1) of the ATA. The standard of review on questions related to jurisdiction of the Tribunal is correctness. Ultimately, I find that the Tribunal was correct in its determination that it had jurisdiction to “not accept” Mr. Gichuru’s complaint for filing, although the language used by the Tribunal is not reflective of the statutory scheme.
[48] Before the 2002 Act came into force, there existed two separate bodies that dealt with human rights complaints in BC: the Human Rights Commission, whose job it was to administer the intake of, screen and investigate complaints; and the Tribunal, which existed in a modified form where it could adjudicate complaints after an investigation if no settlement could be reached through a referral under s. 26(1)(c) or review a dismissal of a complaint under s. 28.1(3)(a) (see the un-amended version of the Human Rights Code, R.S.B.C. 1996, c. 210).
[49] Under the former structure, the Tribunal had no power to dismiss a complaint of its own accord. That power lay within the jurisdiction of the Human Rights Commission under s. 27. However, after the 2002 Act came into force, the Human Rights Commission was eliminated and the power to dismiss complaints was transferred to the Tribunal by amending s. 27. Cases were no longer referred to the Tribunal for filing under s. 26(1)(c) as the Tribunal was to take cases on directly. Likewise, s. 28.1 was eliminated as it would not make sense for the Tribunal to review its own decision to dismiss a complaint under s. 27.
[50] As such, under s. 27(1) of the Code, the Tribunal may dismiss a complaint without a hearing if a member determines that the complaint falls into one of the reasons under this section. Section 27(1)(b) allows for dismissal when “the acts or omissions alleged in the complaint or that part of the complaint do not contravene this Code.”
[51] If this power is exercised under s. 27(1), s. 27(2) requires that the member give notice in writing and give reasons of the decision to the complainant, the person against whom the complaint was made, if that person had been given notice of the complaint, any other party and an intervenor.
[52] I find that this is what happened here. A member of the Tribunal dismissed Mr. Gichuru’s complaint without a hearing because the complaint did not allege an act or omission that contravened the Code and gave him written reasons. At this point, the Vancouver Swing Society had not been notified of the complaint yet and was not required to be informed.
[53] The uncertainty arises because there is a separate section of the Code that sets out the filing requirements for a complaint. Section 21(1) states that a person may file a complaint with the Tribunal “in a form satisfactory to the Tribunal”. It does not give authority to the Tribunal to not accept a complaint “for filing” if it meets the formal requirements set out by the Tribunal when filed by an individual. However, s. 21(5) does allow the Tribunal to not accept for filing a complaint on behalf of a group or class that does not meet certain requirements. Ultimately, the terminology used by the Tribunal in its internal procedure is ambiguous as to what authority it is exercising to end the complaint process as accepting for filing is different from dismissing a complaint under the statute.
[54] Under the pre-2002 model, the Tribunal may well have been able to reject a complaint for filing if it had already been dismissed by the Human Right Commission. However, this artifact in the language appears to have been carried over from the previous regime and is no longer applicable to the current one. Mr. Gichuru is able to argue this jurisdictional issue because the pre-screening process has adopted confusing language, but it is clear upon close evaluation of the statutory regime that the Tribunal had the authority to dismiss his complaint for the reasons given. Respectfully, it would be helpful if the Tribunal states that it is dismissing a complaint under one of the grounds enumerated in s. 27(1).
[55] Mr. Gichuru also submits that Tribunal Rule 12(2) is outside the authority of the Tribunal. He argues that Rule 12-2 improperly modifies the right to file a complaint in the proper form under s. 27(1)(a).
[56] As I have found that the Tribunal actually applied the powers under s. 27(1) and, in fact, dismissed Mr. Gichuru’s complaint, I also find that Rule 12(2) is within the Tribunal’s authority. The ability under Rule 12(2) to dismiss a complaint because it does not “allege facts that, if proven, could be a contravention of the Code against each person named as a respondent” is clearly grounded in s. 27(1)(b) of the Code.
[57] I also take this opportunity to reject the Tribunal’s argument that s. 21(1) grounds their ability to “not accept” a complaint for filing under Rule 12(2). The plain and ordinary meaning of s 21(1) only grants the authority for the Tribunal determine the form that a complaint is filed in and does not give the Tribunal the ability to end the complaint process. This can be contrasted with s. 21(5), which clearly gives authority for the Tribunal to refuse to accept a complaint for filing under certain circumstances. Section 21(1) does not give the authority to the Tribunal to refuse a filing but merely allows it to dictate the form that a person or group of person alleging a Code violation must form their complaint it.
[58] It is also clear from Lee v. British Columbia Hydro and Power Authority, 2004 BCCA 457 at para. 17 and Edgewater Casino v. Chubb-Kennedy, 2015 BCCA 9 at paras. 10-13 that the gatekeeping function of the Tribunal is grounded in s. 27 of the Code.
[59] It would be redundant for legislature to give the Tribunal the power to end the complaint process if a person has not alleged a contravention of the Code under both ss. 21(1) and 27(1)(b). As stated by Justice Lebel in Placer Dome Canada Ltd. v. Ontario (Minister of Finance), 2006 SCC 20 at para. 45: “to the extent that it is possible to do so, courts should avoid adopting interpretations that render any portion of a statute meaningless or redundant”. The correct interpretation must be that Rule 12(2) is enabled by s. 27(1)(b) of the Code.
[60] I also note that Mr. Gichuru, in a separate proceeding, has challenged the constitutionality of s. 27(1) as a violation of s. 15(1) of the Canadian Charter of Rights and Freedoms. In Gichuru v. Pallai, 2018 BCSC 2220, Justice Macintosh ruled that s. 27(1) did not create a distinction based on enumerated or analogous grounds and, therefore, did not constitute a prima facie violation of s. 15(1) of the Charter. Mr. Gichuru’s complaint in that proceeding was dismissed on that basis.
[61] Having established that the Tribunal had the authority to dismiss Mr. Gichuru’s complaint, I move to the next question. Both parties agree that s. 59 of the Administration Tribunal’s Act, SBC 2004, c. 45 [ATA] applies to decisions of the Tribunal, but disagree on the correct categorization.
[62] Mr. Gichuru submits that the Tribunal’s decision to dismiss his complaint is a question of mixed fact and law. The Tribunal submits that this decision is a discretionary one.
[63] I find that decision of Tribunal is a discretionary one. Decisions at the screening stage involve fact finding and adjudication within the Tribunal’s expertise and engage the discretion of the Tribunal member in assessing whether the complaint alleges sufficient facts to support a complaint of discrimination (see Shilande v. B.C. Human Rights Tribunal, 2005 BCSC 728 [Shilander] at paras. 10-11; Goddard v. Dixon, 2012 BCSC 161 at paras. 65-83). Although the statutory scheme may have moved the power to dismiss a complaint from the Commission to the Tribunal when the Commission was eliminated, the wording of s. 27 was not altered in such a way to suggest that legislature intended to take the discretion of the Tribunal away in this regard.
[64] The parties agree that the applicable standard of review of a discretionary decision is patent unreasonableness pursuant to s. 59(3) of the Administration Tribunal’s Act, SBC 2004, c. 45 [ATA].
[65] Section 59(4) of the ATA provides that a discretionary decision is patently unreasonable if the discretion:
(a) Is exercised arbitrarily or in bad faith;
(b) Is exercised for an improper purpose;
(c) Is based entirely or predominantly on irrelevant factors; or
(d) Fails to take statutory requirements into account.
[66] In more general terms, a patently unreasonable decision is described as one that “is so flawed that no amount of curial defences can justify letting it stand”: Law Society of New Brunswick v. Ryan, 2003 SCC 20 at para. 52.
[67] With regard to an asserted breach of natural justice and procedural fairness, s. 59(5) of the ATA set the applicable test as “whether in all the circumstances the Tribunal acted fairly”. Groberman J.A. in Seaspan Ferries Corporation v. British Columbia Ferry Services Inc., 2013 BCCA 55 states:
[52] I agree with the submissions of Seaspan (with which BCFS is in substantial agreement) that the standard of review applicable to issues of procedural fairness is best described as simply a standard of “fairness”. A tribunal is entitled to choose its own procedures, as long as those procedures are consistent with statutory requirements. On review, the courts will determine whether the procedures that the tribunal adopted conformed with the requirements of procedural fairness. In making that assessment, the courts do not owe deference to the tribunal’s own assessment that its procedures were fair. On the other hand, where a court concludes that the procedures met the requirements of procedural fairness, it will not interfere with the tribunal’s choice of procedures.
[68] Having established the standard of review, I turn to Mr. Gichuru’s contention that the Tribunal applied the wrong legal test or, in the alternative, misapplied the legal test. Starting with the first question, I find that the legal test applied was not patently unreasonable.
[69] Mr. Gichuru’s submission on the patent unreasonableness of the Screening Decision is that Rule 12(2) requires complainants to allege facts that, if proven, could be a contravention of the Code. All that is required under Rule 12(2) is that a complainant allege facts that could possibly be a contravention of the Code. He says in other words, the only circumstances which Rule 12(2) may be violated is a complaint alleges facts that could not possibly be a contravention of the Code.
[70] Mr. Gichuru submits that the Tribunal did not follow that approach. He says that the Screening Decision required that his complaint was more than “speculation” and to allege facts that “suggested” discrimination. Mr. Gichuru submits that the test the Tribunal Member applied was more akin to the approach taken by the Tribunal on application to dismiss complaints under s. 27(1)(c) of the Code.
[71] In response the VSS and individual respondents submit that the Tribunal’s role at the screening stage is limited to determining whether the complainant has alleged facts that would be sufficient to move the complaint out of the realm of conjecture, or from speculation to inference, as per Shilander at para. 11.
[72] In response, counsel for the Tribunal, relying upon Chen v. Surrey (City), 2015 BCCA 57 at paras. 22-23, submits that at the screening stage “the Tribunal must apply the arguable contravention test to determine whether there has been an allegation….” and that the court affirmed the gatekeeping power of the Tribunal. Counsel for the Tribunal also referred to the following passages from Chen at paras. 31-32:
[31] … A bare assertion that the respondents’ behaviour was racially motivated is not sufficient without the allegation of some facts that could support such a conclusion, i.e., there is some nexus between the acts and the appellants’ race or place of origin: Goddard at paras. 106-111….
[32] The Tribunal’s approach does not set an “impossibly high standard”, as the appellants submit, but rather requires the mere allegation of some facts that could, if proven, establish a nexus between the alleged harassment and the complainants’ race or place of origin….
[73] The Tribunal submits that the test under s. 27(1)(b) of the Code is the same as the arguable contravention test under Rule 12(2) (see Goddard v. Dixon, 2012 BCSC 161 at para. 100). Given my findings above, this harmonizes with the fact that the Tribunal is actually applying s. 27(1)(b) in the screening process. There is no statutory requirement that s. 27(1)(b) dismissals be brought by respondents to the complaint.
[74] I do not accept that the test applied by the Tribunal is patently unreasonable nor that Mr. Gichuru’s “could not possibly be a contravention” test should be applied. The test is as stated in Shilander, whether the complaint has alleged facts that would be sufficient to move the complaint out of the realm of conjecture.
[75] Given the amount of deference owed to the Tribunal in an exercise of discretion, I find that the test applied by the Tribunal was not exercised arbitrarily or in bad faith, for an improper purpose, nor did the Tribunal base its decision on irrelevant factors or fail to take statutory requirements into account. The test used by the Tribunal reasonably takes into account relevant factors to assessing whether resources of the Tribunal and the party which the complaint is against should be spent. It also reasonably meets the statutory duty to assess whether the facts alleged contravene the Code or not. It is not unreasonable that the Tribunal’s test requires that the facts alleged have some nexus with a contravention of the Code. Ultimately, the Tribunal has a wide latitude to decide which test it chooses to apply at the screening stage based on their expertise on human rights matters.
[76] Mr. Gichuru further submits that the Tribunal misapplied the legal test. He argues that if the test to have a complaint accepted for filing requires the complainant to show that it is more than “mere speculation” as outlined above, the Tribunal erred in applying the test.
[77] Mr. Gichuru submits, with respect to the complaint of racial discrimination, that he was treated unfairly and in a manner consistent with negative stereotypes of black people. He argues this is sufficient to take his complaint beyond the realm of speculation. He cites various cases in support: Poon v. Downes and ACL Services, 2006 BCHRT 353; Knoll v. North America Corp. v. Adanac, 2010 ONSC 3005 (I note in that case, the standard of review as reasonableness); and Peel Law Assocation v. Pieters, 2013 ONCA 396.
[78] Mr. Gichuru reiterates an observation made in the cases that it is rare to find direct evidence of discrimination in human rights cases. Most complaints must be decided based on circumstantial evidence and inference.
[79] The VSS and personal respondents rely upon the requirement on a complainant at the screening stage to allege sufficient particulars to support the existence of some nexus between the alleged adverse impact experienced and the ground of discrimination asserted.
[80] These respondents cite as an example where the court discussed a petition for judicial review of a decision by the Tribunal that declined to accept a complaint: Dela Merced v. Aluminum Curtainwall Systems Ltd. (17 July 2012), Cranbrook 21618 (S.C.). They quote para. 13:
To fire an employee is not sexual discrimination in every case where the person fired is a woman. There is nothing in the record to indicate that Ms. Dela Merced was targeted because she is a woman […] She is correct in noting that Canadian society takes allegations of civil wrongs seriously through the various institutions that are established to address them. However, the Human Rights Tribunal has a responsibility to address wrongs of a very particular character.
[81] In my view, Mr. Gichuru has not made out the factors to establish the decision was patently unreasonable. The Tribunal clearly turned its mind to the issue and found that there was not enough of a causal nexus when Mr. Rilkoff wrote:
Without describing what was said or done that would bring race in as a factor, your allegation is speculation not sufficient to ground a human rights complaint.
[82] Although Mr. Gichuru alleges that negative inferences were drawn because of his race, the Tribunal’s decision that this was too speculative and the facts too removed to form a nexus with a Code violation was not patently unreasonable.
[83] Likewise, the Tribunal’s decision that although the VSS took into account his age and sex in determining how it responded to Mr. Gichuru, the Tribunal’s finding that this did not have a sufficient nexus to why he was banned from the VSS events was not patently unreasonable. In this case, the Tribunal decided that the negative effect (i.e. being asked not to attend events) was not because of Mr. Gichuru’s age or sex, but rather his behaviour. It is not patently unreasonable for the Tribunal to decide that although age and sex may have been brought up in relation to Mr. Gichuru’s behaviour toward other members of the VSS, his age and sex did not directly impact the decision to ask him to no longer participate in events.
[84] Mr. Gichuru’s submission as to natural justice and procedural fairness is that the Tribunal failed to inform him of the nature of the process being undertaken and to which the Tribunal was purportedly asking him to participate in.
[85] Mr. Gichuru submits that:
Based on what eventually happened, the Tribunal should have, at the outset, informed the petitioner that the Tribunal had, on its own motion, initiated a process under Rule 12(2) of the Rules of Practice and Procedure that would result in the petitioner’s complaint being dismissed if the petitioner did not meet the “legal test” under Rule 12(2) However, this did not happen despite the petitioner explicitly requesting clarification about the process.
[86] Mr. Gichuru also argues that “the manner” in which the Tribunal dismissed his complaint violated the principles of natural justice by denying him the opportunity to obtain evidence crucial to his complaint.
[87] The VSS and personal respondents submit that with respect to Mr. Gichuru’s point on not being informed of the nature of the process, Mr. Gichuru’s argument should be rejected on the basis that the requirements of a complaint are well set out in ss. 21 and 27 of the Code, Rule 12(2) and the complaint form. Moreover, they submit that when Mr. Gichuru initially submitted his complaint, he received requests for further clarification from the Tribunal in which he was specifically advised of the information the Tribunal required. The respondents point to the Tribunal’s letter of December 29, 2016, to Mr. Gichuru which states:
Before it accepts a complaint for filing, the Tribunal must be satisfied that the complaint sets out fact that, if proven, could be a violation of the Human Rights Code. In this case, this means that your complaint has to show facts that could prove:
· the respondents’ conduct was in an area of daily life protected under the Code;
· you have a real or perceived personal characteristic protected under the Code;
· the respondents’ conduct had a negative effect on you; and
· each of your personal characteristics was a factor in that negative effect
[88] The Tribunal also left a voice mail on January 19, 2017, offering an extension and to call back with any further questions.
[89] Throughout the process, the Tribunal made it clear that if the facts alleged did not show how Mr. Gichuru’s personal characteristics were a factor in the negative effect, the complaint would not go forward.
[90] The VSS and personal respondents submit with respect to Mr. Gichuru’s second argument of being denied the opportunity to obtain evidence crucial to his complaint, that the Tribunal requiring Mr. Gichuru to follow the established Tribunal process regarding evidence discovery does not constitute a violation of the rules of natural justice. The respondents argue that Mr. Gichuru seeks to put the “cart before the horse”, in that he seeks the benefit of the Tribunal’s broad ranging and potentially invasive disclosure mechanisms before his complaint is even accepted for filing. The respondents submit that permitting Mr. Gichuru to seek disclosure from the respondents before his complaint was even accepted for filing or before the complainants had the opportunity to file a response or apply to have his complainant dismissed under s. 27 of the Code would effectively allow Mr. Gichuru to allow Mr. Gichuru to weaponize the Tribunal’s process against the complaints. Such a process it is argued would be significantly prejudicial to the respondents and of little benefit to Mr. Gichuru, given that he was not required to file evidence at that early stage. It would also have been contrary to all parties’ legitimate expectations that the Tribunal would follow its own procedural rules.
[91] I am not persuaded by Mr. Gichuru’s arguments as to a breach of natural justice or procedural fairness. The record indicates that the rules, the information provided by the Tribunal to Mr. Gichuru, and the fact that he is a lawyer familiar with litigation dispel his argument of the Tribunal’s failure to inform him of the process being undertaken.
[92] I also do not accept his argument regarding his inability to obtain evidence crucial to his complaint. I agree with the VSS and personal respondents’ submissions as outlined above. Ultimately, the test under s. 27(1)(b) sets a low bar and is not procedurally unfair to complainants. I note that the complaint process is free and requiring mass amount of disclosure if an alleged violation of the Code cannot be established would be unfair to the parties complained against, who then have to expend effort in gathering evidence and responding to a complaint with no merit.
[93] As a result, I find that the assertions of a breach of natural justice or procedural fairness has not been made out.
[94] I turn now the Reconsideration Decision.
[95] All parties agree that the Reconsideration Decision is a discretionary decision and subject to a standard of review of patent unreasonableness.
[96] Mr. Gichuru’s submission on the reconsideration decision is patently unreasonable because:
a) It is arbitrary because it did not apply Rule 12(2), but instead asked whether new evidence supported allegations of discrimination;
b) It is arbitrary because it did not cite or apply the test for discrimination;
c) It was based entirely or predominantly on the irrelevant factor that Mr. Gichuru had told AL that he felt it was best not be regular dance partners;
d) It was arbitrary in that it failed to address the allegation against the VSS that they banned him from attending events because of allegations made by AL that were not disclosed to the petitioner;
e) It was arbitrary in that it failed to consider that the VSS’s conduct was influenced by stereotype;
f) It was arbitrary because it focused on gender dynamics to the exclusion of racial dynamics.
[97] Reconsideration of a complaint that has been dismissed is not found within the Code but is retained as part of the Tribunal’s equitable jurisdiction. The Tribunal may reconsider a complaint if it is in the interests of justice and fairness to do so (Routkovskaia v. British Columbia (Human Rights Tribunal), 2012 BCCA 141 at para. 23; Zutter v. British Columbia (Council of Human Rights) (1995) D.L.R. (4th) 665)). I note that this a separate and distinct test to that under s. 27(1)(b) and engages a different discretionary aspect of the Tribunal’s decision making power. The test is no longer whether a contravention is alleged, but rather focuses on whether or not new evidence or circumstances results in a compelling reason to re-open the complaint.
[98] Because the test is different on reconsideration, the Tribunal is not required to re-apply Rule 12(2) and re-open the complaint if the test under s. 27(1)(b) is now met. The Tribunal properly stated that the test is to consider whether it is in the interests of justice and fairness to re-open the complaint. It is not patently unreasonable for the Tribunal to take a broader approach to analyzing the new evidence and its relationship to the complaint.
[99] I also find that it is not patently unreasonable that the Tribunal did not directly cite or apply the test for discrimination at this stage. The Tribunal clearly turned its mind to the complexities of discrimination and power dynamics in its reasons. Decisions in administrative cases have held that the adequacy of reasons is not a stand-alone basis for quashing decisions and that the court must undertake a more organic exercise when assessing decisions (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 14). Although I share Mr. Gichuru’s concerns that the reasons seem to suggest that the new evidence does not support Mr. Gichuru’s claim for discrimination without outlining the legal definition and steps required, the reasons, as read as a whole, do not indicate a decision that is patently unreasonable was reached because of this.
[100] As to whether the Reconsideration Decision was based primarily on whether Mr. Gichuru told AL he did not want to be dance partners, a factor Mr. Gichuru considers to be irrelevant, Schnurr v. Douglas College, 2008 BCSC 1799 at para. 16, states that a decision is only arbitrary if it is based, at minimum, predominately, on irrelevant factors. I find that the Tribunal did not base their decision entirely or predominantly on this fact. This incident served as part of the factual background to the dispute between members of the VSS and Mr. Gichuru and the Tribunal did not give it undue weight in their analysis in analyzing Mr. Gichuru’s conduct as a whole. Although this was not directly relevant to the issues raised by Mr. Gichuru’s complaint, it is nonetheless relevant to assessing the reasoning behind why Ms. Russell and Mr. Lam chose to respond to Mr. Gichuru in the way that they did.
[101] It was also not arbitrary for the Tribunal not to address the allegation against the VSS that they banned him from attending events because of allegations made by AL that were not disclosed to Mr. Gichuru as I find that Mr. Gichuru never raised this as one of the reasons grounding discriminatory conduct in his original complaint against the VSS or upon application for reconsideration. As such, it is inappropriate for me to consider this argument upon review. Additionally, I find it is unclear how that fact can ground the basis for a human rights complaint or constitute whether it is in the interests of justice and fairness to reopen a complaint. Although specific some allegations were not disclosed, the VSS did reach out to Mr. Gichuru to explain their worries about his conduct toward other members of the VSS. I would also point out that the VSS only took action against Mr. Gichuru after he submitted a complaint to the board about an online dispute, after which the VSS considered the story on both sides and found Mr. Gichuru’s conduct problematic.
[102] Finally, Mr. Gichuru submits that the Tribunal failed to consider that the VSS’s conduct was influenced by stereotype and that it focused on gender dynamics to the exclusion of racial dynamics. On the first point, I find that the Tribunal gave due consideration to the possibility that the VSS’s actions against Mr. Gichuru were influenced by stereotype and found that this was not the case. The way the Tribunal analyzed the allegations was not patently unreasonable. The Tribunal reviewed the evidence as a whole and found that the VSS was concerned about Mr. Gichuru’s conduct in relation to AL, another member of the VSS, and not on the basis of Mr. Gichuru’s sex or age. Rather than failing to consider whether the conduct was influenced by stereotype, the Tribunal considered it quite carefully and found that the VSS did not act based on stereotype. Additionally, Mr. Gichuru’s allegation of race discrimination was again found to have no reasonable basis on the facts presented.
[103] I also find that the Tribunal did not unreasonably focus on gender dynamics. Ultimately, the Tribunal found that the VSS was alert to social inequities and sexual harassment in the swing dance community. Citing British Columbia Human Rights Tribunal v. Shrenk, 2017 SCC 62, the Tribunal stated the “men can exercise gendered power over women, and white people can exercise racialized power over people of colour.” The Tribunal clearly took into account the possibility that both gendered and racial dynamics can exist. However, in the context of the behaviour that lead to the complaint, it clearly found that the VSS properly considered age and gender and its relation to power. It found that the VSS did not stereotype him as a “creep” because of his age or sex, but rather that the VSS was concerned about sexual harassment and took into account the experiences of women and the power dynamics at play in the swing dance community between younger women and older men. The VSS asked Mr. Gichuru to consider the power dynamics at play when he made his complaint to them, but it was Mr. Gichuru who refused to do so. As the Tribunal found there was no basis to support any allegation of racial discrimination or that Mr. Gichuru’s race played any factor in the conduct of the members of the VSS, the focus on gender dynamics was not unreasonable in this case.
[104] Considering Mr. Gichuru’s submissions on this topic both individually and as a whole, I do not find that the Tribunal acted patently unreasonably in its decision to deny reconsideration on the basis that it is not in the interests of fairness and justice. Overall, the Tribunals reasons adequately address the issues raised by Mr. Gichuru. Organizations such as the VSS cannot be faulted for taking power dynamics based on gender or age into account when dealing with issues between members as they may inform and contextualize the conduct of the people involved. This is especially true when dealing with issues such as sexual harassment. However, as the Tribunal states, this “does not mean that every man is a harasser or that when assessing a complaint of harassment there is no need to hear from the alleged harasser.” The Tribunal assessed the evidence and found that this was not the case here.
[105] In the result, I find that Rule 12(2) is intra vires the powers of the Tribunal under s. 27(1)(b) of the Code. Neither the Screening Decision nor the Reconsideration Decision were patently unreasonable. Therefore, all the orders requested by Mr. Gichuru’s are denied.
“The Honourable Mr. Justice Masuhara”