2004 BCCA 0457 Lee. v. British Columbia Hydro and Power Authority

Before:	The Honourable Chief Justice Finch
	The Honourable Madam Justice Prowse
	The Honourable Mr. Justice Donald

I.M. Otto and M. Gehlen	Counsel for the Appellant British Columbia Hydro and Power Authority
J.T. Doulis and T.D. Timberg	Counsel for the Respondent Michael C. Lee
Place and Date of Hearing:	Vancouver, British Columbia
21 May 2004
Place and Date of Judgment:	Vancouver, British Columbia
10 September 2004

Written Reasons by:

The Honourable Mr. Justice Donald

Concurred in by:

The Honourable Chief Justice Finch

The Honourable Madam Justice Prowse

Reasons for Judgment of the Honourable Mr. Justice Donald:

[1] Michael C. Lee brought a complaint to the Human Rights Commission ("HRC") alleging that his employer, British Columbia Hydro and Power Authority ("BC Hydro"), discriminated against him because of his race. The HRC found no reasonable basis to refer the complaint to a tribunal for hearing and dismissed the complaint. Mr. Lee challenged the dismissal on judicial review. On 22 September 2003 a Supreme Court judge set aside the dismissal and referred the complaint back to the British Columbia Human Rights Tribunal, the body which has now replaced the formerly separate HRC and British Columbia Human Rights Tribunal: Human Rights Code Amendment Act, 2002, c. 62. BC Hydro appeals from that decision.

[2] The decision under appeal is indexed as 2003 BCSC 1432 and is reported at 18 B.C.L.R. (4th) 349, 7 Admin. L.R. (4th) 312.

[3] The reviewing judge set aside the dismissal on three grounds:

1. The HRC miscast the issue and missed the essence of the complaint. She held the HRC framed the issue as relating to a refusal to appoint Mr. Lee to a specific management position when the complaint also alleged discrimination in relation to a demotion and more generally that BC Hydro restricted his advancement to technical rather than managerial positions.

2. The HRC used the wrong test in deciding whether to refer the complaint to the tribunal. The reviewing judge held that in saying "... the complainant has not provided any evidence that this decision was based on his race, ethnicity or place of origin" the HRC imposed too heavy a burden on Mr. Lee who was only required to show that a prohibited ground of discrimination was part of the decision.

3. There was some evidence of discrimination contrary to the finding of the HRC.

[4] For reasons which follow, I would allow the appeal and restore the decision dismissing the complaint. In my respectful view the reviewing judge erred in construing the HRC's decision as miscasting the issue and using the wrong test, and she further erred in failing to give due deference to the HRC by substituting her view of the evidence for the HRC's. I am not able to accept the additional arguments made in support of the reviewing judge's decision advanced on behalf of Mr. Lee and which I will discuss later in these reasons.

FACTUAL BACKGROUND

[5] Mr. Lee is an engineer who was born in China and raised in Hong Kong, moved to Canada from Hong Kong in 1975 and acquired Canadian citizenship in 1980. He was hired by BC Hydro in 1981. By 1990, his employer recognized him as one of the top 100 achievers in the company.

[6] In 1992, Mr. Lee moved to the Systems Operations division of BC Hydro as a Generation Operation Planning Engineer. He aspired to managerial positions, but on several applications was not selected.

[7] In 1995, Mr. Lee's supervisor took a special assignment, and Kelvin Ketchum was appointed from outside the department and without a competition process, as Acting Manager. In 1996 Mr. Ketchum elected not to continue with the position.

[8] In October 1996, Mr. Lee was appointed Acting Manager of the Implementation Team of a new department created after a re-organization. A year later he was confirmed as the permanent manager and his title was changed to Manager of Generation Operations.

[9] However, in 1998 a further re-organization combined Mr. Lee's Power Supply Group with another group to form the new Resource Management unit. Mr. Ketchum was given, again without competition, the position of Manager of Integrated Operations. Mr. Lee retained his title, but his managerial responsibilities were reduced.

[10] In May 2000, Mr. Lee was transferred involuntarily from his position as Manager of Generation Operations to another division of BC Hydro, Powerex. A replacement was appointed Acting Manager in his absence (called a two year "rotation"). In July of that year Mr. Lee accepted a permanent position with Powerex.

[11] In April 2001, Mr. Lee submitted his complaint to the HRC. He alleged that his employer had denied him advancement opportunities and had removed him from his management position on the basis of his race, ethnicity or place of origin.

[12] The HRC appointed Martha Rans, a human rights officer, to investigate the complaint. She interviewed Mr. Lee and a number of witnesses of the respondent employer, but did not interview any of the witnesses suggested by Mr. Lee. The parties also exchanged several lengthy submissions.

[13] In her report, Ms. Rans declined to make a recommendation as to whether Mr. Lee's complaint should proceed to a tribunal. She noted the contributions Mr. Lee had made to the company, but also commented on the declining relationship between Mr. Lee and senior management at BC Hydro and Mr. Lee's perceived limitations as a manager. Ms. Rans reasoned that, while arguably the evidence relating to the dynamics of the relationship between Mr. Lee and senior management as well as Mr. Lee's performance ought to be weighed by a tribunal, it was unclear that such evidence was related to the complaint that decisions about Mr. Lee's advancement were based on his race, colour, place of origin or ancestry.

[14] Ms. Rans also reported that the evidence disclosed that Mr. Ketchum was selected over Mr. Lee to the position of Manager of Integrated Operations because of particular qualities he had which were variously described as "people skills", "communication skills" and being a team player. BC Hydro's assessment of Mr. Lee was expressed this way:

Although some of these changes resulted in better systems being implemented, his personal approach to expressing his views was inappropriate and led to his alienation from virtually everyone on the CM team. He was unable or unwilling to discuss issues in a cooperative or constructive manner, he was closed to ideas that did not align with his own, he did not attempt to understand the points of view of others, and he was unwilling to make any compromises. Paul Adams tried numerous times, as Mr. Lee's manager and also the sponsor of the project, to coach him on his behavior and to help him improve his interpersonal and teamwork skills. It was made clear to Mr. Lee on many occasions that management had a concern about his inability to listen to other viewpoints and to foster relationships.

[15] Ms. Rans noted that privileging such skills may be evidence of bias, as affirmed by recent Canadian Human Rights Tribunal authority.

[16] On 27 June 2002, the HRC issued its decision that the complaint would not be referred to hearing and was dismissed under s. 27(1)(c) of the Human Rights Code. The reasons cited were that Mr. Lee had failed to provide any evidence that the decision not to appoint him Manager Generation Operations [sic] was based on his race, ethnicity or place of origin; and that there was no evidence that the respondent's decision fell within the ambit of the recent authority on the "privileging" of skills.

THE COMPLAINT PROCESS

[17] Prior to amendments in 2002 creating a single tribunal, the scheme for complaints began with the filing of a complaint with the HRC under ss. 21-22 of the Human Rights Code. The Commissioner of Investigation and Mediation then assigned a human rights officer to investigate the complaint: s. 23(2), and the officer filed a report with the Commissioner of Investigation and Mediation: s. 23(3). Under s. 26 the Commission of Investigation and Mediation either referred the complaint to a tribunal or dismissed it in whole or in part. Section 27(1) provided the grounds for dismissal. The ground relevant to these proceedings is:

27(1)The commissioner of investigation and mediation may, at any time after a complaint is filed, dismiss all or part of the complaint if that commissioner determines that any of the following apply:

. . .

(c) there is no reasonable basis to justify referring the complaint or that part of the complaint to the tribunal for a hearing;

[18] The Commissioner's decision to dismiss was considered final: s. 28.

DISCUSSION

[19] I propose to deal first with the reviewing judge's grounds for setting aside the HRC decision and then to discuss the additional points argued for Mr. Lee.

Misstatement of the Issue

[20] The officer's report was nine pages in length. It reviewed the evidence and the position of the parties. The officer summarized the complaint as alleging that Mr. Lee: "... was denied advancement opportunities and removed from his management role on the basis of his race and/or place of origin". In the penultimate paragraph of the report the officer said:

The complainant provided a detailed written rebuttal to the respondent's reply to the complaint. Much of this material is connected to the respondent's assertions concerning the complainant's performance. While such evidence ought arguably to be weighed by a Tribunal, it is unclear to me that such evidence is necessarily relevant to the complaint. Clearly the complainant disagrees with the respondent's opinion about his performance. However the issue is not whether the respondent was or was not satisfied with the complainant's performance but rather, whether or not the decisions not to appoint him to the Manager of Generations Operations position and "rotate" him to Powerex were based on his race, colour, place or [sic] origin or ancestry.

[Emphasis added]

[21] The HRC decision was in the form of a letter addressed to the parties and dated 27 June 2002. It reads as follows:

I have been delegated authority by the Commissioner of Investigation and Mediation to decide under s. 26(1) of the Human Rights Code whether to dismiss the above noted complaint or refer it to the Tribunal for a hearing.

I have reviewed the investigation report concerning this complaint and have considered the subsequent submissions. I have decided to dismiss the complaint under s. 27(1)(c) of the Human Rights Code.

As noted by the human rights officer the complainant was promoted within the respondent. At issue is the decision not to appoint him to the position of Manager Generation Operations. The complainant has not provided any evidence that this decision was based on race, ethnicity or place of origin.

The human rights officer referred to recent authority that raises the "privileging" of skills by the respondent. I have reviewed this authority and the submissions on this point and note that there is no evidence that falls within the ambit discussed in the authority.

As a result, this complaint will not proceed to a hearing, and the file has been closed.

[22] I respectfully suggest that the reviewing judge gave the decision an overly close reading when she interpreted it as ignoring important aspects of the complaint. The reviewing judge declined BC Hydro's counsel's invitation to consider the language of the decision in the context of the much more comprehensive investigation report because she said the decision did not expressly incorporate the report. I think the HRC was entitled to a contextual review of its decision on the principle of curial deference. It should not have been necessary for the HRC to recite everything that it considered in arriving at the result. And, as BC Hydro's counsel pointed out to us, the HRC got the whole file, all the submissions and supporting materials from the parties including submissions on the report itself, before rendering the decision. In my view the reviewing judge should not have assumed that the HRC missed salient points of Mr. Lee's complaint.

The Wrong Test

[23] The second ground for setting aside the decision was that the HRC used the wrong test. The reviewing judge's reasons on this point are:

[22] The Decision states that: "the complainant has not provided any evidence that this decision was based on his race, ethnicity or place of origin". That statement is a misstatement of the test. A human rights complainant is not required to establish that a decision was based on a prohibited ground, only that a prohibited ground was a factor in the decision; see Premakumar v. Air Canada, [2002] C.H.R.D. No. 3 No. TD 3/02 at para. 82 and Kennedy v. British Columbia (Ministry of Energy and Mines), 2000 B.C.H.R.T. 60, [2000] B.C.H.R.T.D. 60.

[24] It is my respectful opinion that the reviewing judge also gave too strict a reading of this aspect of the brief reasons for decision. The proposition that a human rights complainant need only show that a prohibited ground was a factor in the impugned activity is well known and understood by those who work in the field. It should not be readily assumed that a specialized tribunal like the HRC was unaware of something as fundamental, even trite, as this. The corollary of the reviewing judge's finding, that the HRC obliged Mr. Lee not only to show racism to have been a factor but also the only reason for BC Hydro's treatment of him is, in my view, unsupportable.

The Evidence

[25] The HRC said there was not any evidence to support the complaint. The reviewing judge said there was some evidence (without specifying the evidence) that could lead to an inference of discrimination. Her reasons are as follows:

[29] With respect to the issue of that scrutiny, counsel for Mr. Lee submits that there is an abundance of evidence that was overlooked or misunderstood that calls into question the explanation offered by BC Hydro. The weight of this evidence, in counsel's submission, shows the employer's explanation to be a "litany of pretexts". He notes in particular, that the explanation from BC Hydro comes from the very people against whom Mr. Lee is complaining and stands in stark contrast to the evidence of the independent witnesses, which evidence was never referred to by either the Investigator or in the Decision.

[30] In this case I have concluded that there is evidence in the record that calls into question or casts doubt upon the explanation offered by the employer. Therefore, in my view, in concluding that there was no evidence upon which to base a claim, the Delegate must have either ignored this evidence or engaged in a weighing of the evidence that goes beyond the permissible limits for the exercise of the discretion under section 27(1)(c).

[31] In this case, it cannot be said that the evidence of BC Hydro is "clearly unimpeached". Nor can it be said that the evidence as a whole is overwhelmingly against the complainant.

[26] The HRC's use of the phraseology: "not any evidence" was infelicitous; it would have been better to say there was not sufficient evidence. As other judges have observed, there will almost always be some evidence of the possibility of discrimination when a member of a minority group is passed over in favour of a member of the majority group. But a mere possibility surely cannot be enough to require a hearing. The scheme of the statute involves a screening process so that only complaints with sufficient merit will proceed to a hearing. The HRC was assigned the role of gate keeper. Thus the HRC had to assess this case in a preliminary way and make a judgment whether the matter warranted the time and expense of a full hearing. The threshold is not particularly high: whether the evidence takes the case "out of the realm of conjecture": Onischak v. British Columbia (Council of Human Rights) (1989), 38 Admin. L.R. 258 at 266 (B.C.S.C.) per Huddart J. (as she then was), followed by Shaw J. in Rogers v. British Columbia (Council of Human Rights) (1994), 21 C.H.R.R. D/67, [1993] B.C.J. No. 698 (QL) at para. 18 (B.C.S.C.), which in turn was applied by this Court in Kratoska v. British Columbia (Council of Human Rights) (1997), 88 B.C.A.C. 241, [1997] B.C.J. No. 638 (QL) at para. 11. As the tribunal is assumed to know the law, the HRC must be taken to have applied this test.

[27] In my view the evaluation of the complaint at the gate keeping stage attracts the highest degree of curial deference. It involves the assessment of evidence in a specialized area. I do not think it can be said that the decision to dismiss the complaint was patently unreasonable. Mr. Lee said racism influenced BC Hydro's decisions relating to his career. BC Hydro said racism played no part in the matter. It was open to the HRC to decide that there was nothing in the evidence that moved the allegation from speculation to inference: see Jacques v. British Columbia (Council of Human Rights) (1998), 51 B.C.L.R. (3d) 111, 161 D.L.R. (4th) 137 at para. 25 (C.A.). Before us, Mr. Lee was unable to bring out anything that takes the case over the line in an obvious way so that it can be said that the dismissal of his complaint was patently unreasonable. As I said in my introductory remarks, the reviewing judge appears to have substituted her own view of the evidence for that of the HRC contrary to the approach set out in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19 at para. 42. It is clear that the legislature intended the screening to be done by the HRC, not the courts.

Additional Points

[28] I turn now to the additional points raised on behalf of Mr. Lee in an effort to support the judgment below. They are that: (1) the human rights officer did not interview Mr. Lee's witnesses in breach of the duty of fairness; (2) the HRC ignored or failed to give appropriate weight to Mr. Lee's statistics said to prove a pattern of racial discrimination in the promotion of Asians within management; and (3) the HRC applied a more onerous test than "beyond conjecture".

[29] On the first point, it is apparent from Mr. Lee's submissions that his witnesses would have spoken to his strengths as a BC Hydro employee. BC Hydro acknowledged his strengths and in fact had promoted him to managerial positions. But in any event, the scope of the investigation must be left to the HRC and absent any manifest bad faith, partiality or serious default in examining the matter, a reviewing court cannot second guess how the HRC conducts an investigation. No such fundamental defect is evident here. Moreover, the petition for judicial review was based on errors of law. No ground relating to the duty of fairness was advanced below and I do not think this point can now have any persuasive force.

[30] The second point also calls for intrusive scrutiny of the investigation process. Both sides had statistics – BC Hydro proudly put forward its record of ethnic diversity in management – and the parties argued the numbers fully in their written submissions. It cannot be assumed that the HRC ignored this aspect of the evidence simply because it did not mention statistics in the decision.

[31] As to the third point, I do not find any indication in the record to support the allegation that the HRC imposed a higher threshold than the "beyond conjecture" test. Mr. Lee's argument goes no further than that there was enough evidence to allow an inference of racism. The HRC did not see the evidence that way and this view must prevail unless shown to be patently unreasonable.

DISPOSITION

[32] For these reasons I would allow the appeal.

“The Honourable Mr. Justice Donald”

I Agree:

“The Honourable Chief Justice Finch”

I Agree:

“The Honourable Madam Justice Prowse”

Correction: 14 September 2004

Para. 26 the word “Infelicitous” was corrected.

Citation:	*Lee v. British Columbia Hydro and Power Authority,*
	2004 BCCA 457