COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Berezoutskaia v. British Columbia (Human Rights Tribunal),

 

2006 BCCA 95

Date: 20060302


Docket: CA033280

Between:

Irina Berezoutskaia

Appellant

(Petitioner)

And

British Columbia Human Rights Tribunal, Sodexho MS Canada Limited, Richard Fieger-Dickson, Scott Phillips and IWA Canada Local 1-3567

Respondents

 


 

Before:

The Honourable Mr. Justice Hall

The Honourable Madam Justice Levine

The Honourable Mr. Justice Smith

 

Appellant

Appearing on own behalf

W.A. Ferguson

Counsel for the Respondent,
British Columbia Human Rights Tribunal

Place and Date of Hearing:

Vancouver, British Columbia

10 February 2006

Place and Date of Judgment:

Vancouver, British Columbia

2 March 2006

 

Written Reasons by:

The Honourable Mr. Justice Smith

Concurred in by:

The Honourable Mr. Justice Hall
The Honourable Madam Justice Levine

Reasons for Judgment of the Honourable Mr. Justice Smith:

[1]                On a preliminary review pursuant to s. 27(1)(c) of the Human Rights Code, R.S.B.C. 1996, c. 210, a member of the Human Rights Tribunal dismissed the appellant’s complaint that she had been discriminated against in her employment and in her membership in a trade union on the basis of her place of origin and physical disability in violation of ss. 13(1)(a) and (b) and s. 14(c), respectively, of the Code.  The reasons of the Tribunal member for dismissing the complaint are indexed as 2005 BCHRT 133.  This appeal is from the dismissal by Mr. Justice Burnyeat of the Supreme Court of British Columbia of the appellant’s petition for judicial review of that decision.  His reasons are indexed as 2005 BCSC 1170. 

[2]                The appellant appears in person on the appeal.  The Human Rights Tribunal appears by counsel for the sole purpose of addressing the proper standard of review of its decision.  The other respondents do not appear. 

[3]                The relevant provisions of the Code are,

13  (1)  A person must not

(a)        refuse to employ or refuse to continue to employ a person, or

(b)        discriminate against a person regarding employment or any term or condition of employment

because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.

. . .

14        A trade union, employers' organization or occupational association must not

            . . .

            (c)        discriminate against any person or member

because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or member, or because that person or member has been convicted of a criminal or summary conviction offence that is unrelated to the membership or intended membership.

. . .

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:

            . . .

            (c)        there is no reasonable prospect that the complaint will succeed. . .

[4]                The appellant was a probationary employee of the respondent Sodexho MS Canada Limited and was a member of the respondent union at the material times.  The individual respondents are management-level employees of Sodexho. 

[5]                Sodexho hired the appellant to supervise workers under its contract to provide cleaning services to a care facility.  Approximately six weeks later, Sodexho transferred her to work on its cleaning contract at a hospital, demoting her from supervisor to lead hand.  The appellant, a Convention refugee from Belarus, complained to the Human Rights Tribunal that she was demoted because of her “terrible Russian accent” and poor communication skills.  She complained, as well, that she was forced to wear a short-sleeve uniform at the hospital while working with “strong chemicals” and in areas containing biological hazards.  She said her supervisor knew she had “sensitive skin”.  While working at the hospital, she delivered three letters to Sodexho in which she criticized the work of her fellow employees and alleged that her supervisors were incompetent.  Following a difference with her supervisor over her clothing, she refused to carry out her supervisor’s work instructions and she was suspended indefinitely.  She complained to Sodexho that she was being harassed by her supervisors and, as a result, Sodexho’s general manager, Mr. Fieger-Dickson, the appellant’s supervisor, and a union representative met with her.  Following the meeting, at which the respondent alleged the appellant made derogatory comments about the management of the business, the appellant’s employment was terminated.  These events all took place while she was in her probationary employment period.

[6]                The appellant sought the assistance of her union representative, who met with the employer and ultimately refused to submit a grievance on her behalf. 

[7]                As a result of these events, the appellant complained formally to both the Workers’ Compensation Board and the Labour Relations Board.  These complaints were eventually dismissed.

[8]                The appellant set out her complaints to the Human Rights Tribunal in a detailed narrative.  Sodexho filed a comprehensive written response.  Its position was that the appellant was demoted because it became apparent that she had insufficient supervisory skills.  The demotion was triggered by an incident in which she caused injury to an employee while she was demonstrating the use of certain equipment.  While she was working as a lead hand, according to Sodexho, she exhibited a poor attitude and insubordination and, for those reasons, she was discharged from her employment.

[9]                Sodexho, supported by the union, applied for dismissal of the complaint pursuant to s. 27(1)(c) of the Code.  The Tribunal member who was assigned to hear the application began her analysis by rejecting the appellant’s submission that credibility was central to the dispute.  She observed that the appellant’s submissions did not differ in substance from the versions of events provided by Sodexho and the union and that there was sufficient similarity between the versions that she could conclude that there was no reasonable prospect that the complaint could succeed.  She said, 

[21]      . . . I base my decision on the principles set out in Bell v. Sherk and others, 2003 BCHRT 63, as follows:

 

In my view, the fact that a complaint raises issues of credibility is not, in and of itself, sufficient reason to deny an application to dismiss. Credibility is a factor in virtually every human rights complaint.  Tribunal members, however, when considering the information which is before them in an application to dismiss, are not making findings of credibility per se, but rather are evaluating all the information before them in order to determine whether there is a reasonable prospect the complaint will succeed.

 

 

This evaluation or weighing of the evidence for the purpose of determining whether there is a reasonable prospect the complaint will succeed is not of the same nature as that which occurs at a hearing before a tribunal, where the tribunal would make an assessment of the evidence on the balance of probabilities.  The weighing or assessing at the s. 27 stage should relate solely to the question of whether there is a reasonable prospect that the complaint will succeed:  Rogers v. British Columbia (Council of Human Rights) (1993), 21 C.H.R.R. D/67 (B.C.S.C.) at paras. 23-24.  (See also Yuan [Yuan v. British Columbia (Human Rights Commission), 2003 BCSC 461], where the Court states that the Commissioner's delegate (by analogy, now, the Tribunal) "must, in order to consider the statutory obligation concerning no reasonable basis [now, no reasonable prospect the complaint will succeed] weigh or assess or evaluate the evidence in its entirety.") (paras. 28 and 29)

 

 

[10]            Next, the Tribunal member addressed the complaints against Sodexho.  She said,

[22]      Ms. Berezoutskaia alleges that Sodexho and its employees discriminated against her because she is an immigrant from Russia and has a heavy accent.  However, Ms. Berezoutskaia does not dispute her employment performance history with Sodexho.  While she provides an excuse for the manner in which she behaved, Ms. Berezoutskaia does not dispute the nature of the events that led to Sodexho's decision to terminate her.  Ms. Berezoutskaia has alleged no facts which demonstrate that Sodexho's and its employees' actions were the result of discrimination, and moreover, they have offered a non-discriminatory explanation for their actions.

[23]      Ms. Berezoutskaia has Building Service Worker and Management certificates, as well as other qualifications, which would have led Sodexho to believe she was qualified to perform the supervisory work for which she was hired.  When Sodexho realized Ms. Berezoutskaia was not yet ready to perform supervisory work, it gave her another chance to work successfully in a Lead Hand position.  However, in the end, it was her attitude and insubordinate behaviour that led Sodexho to conclude she would not successfully complete her probationary period.  

[24]      Respecting Ms. Berezoutskaia's complaints about Sodexho's operations at Royal Columbian, Mr. Fieger-Dickson responded positively to her complaints, instead of dismissing them.  Nevertheless, Ms. Berezoutskaia continued to complain about the operations and her supervisors.  

[25]      With respect to the issue about the uniform, I find that Ms. Mowll's response was justified.  She considered the matter and advised Ms. Berezoutskaia that if she was to have a variance from the standard uniform requirement she should provide medical information to support her request.  It was after that discussion that Ms. Berezoutskaia demonstrated the insubordinate behaviour towards Ms. Mowll and was subsequently suspended.  Then, after considering Ms. Berezoutskaia's letter, Mr. Fieger-Dickson met with Ms. Berezoutskaia before making any decision about her termination.  It was after her outburst at that meeting that Mr. Fieger-Dickson and Ms. Mowll considered the situation with Ms. Berezoutskaia, and decided to terminate her.  

[11]            Accordingly, she concluded that the complaints against Sodexho and its employees had no reasonable prospect of success and dismissed them. 

[12]            Next, the Tribunal member reviewed the complaint against the union.  She observed that the appellant had presented no facts to support her allegations of discrimination by the union and concluded that the complaint was essentially about representation.  Accordingly, she found there was no reasonable prospect that the complaint against the union would succeed and dismissed it, as well. 

[13]            The appellant petitioned the Supreme Court for judicial review of the decision of the Tribunal member, asking that it be set aside.  She argued, among other things, that the Tribunal member made findings of fact that were not supported by the evidence, that the member acted unfairly in accepting the employer’s and the union’s factual assertions without regard to hers, and that the decision was wrong. 

[14]            The judicial review was governed by s. 59 of the Administrative Tribunals Act, R.S.B.C. 2004, c. 45:

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.

[15]            Although the chambers judge observed that the Legislature has prescribed the patently unreasonable standard of review in s. 59(3) of the Administrative Tribunals Act, he did not apply the definition of “patently unreasonable” contained in s. 59(4).  Rather, after reviewing a number of case authorities dealing with standards of review in administrative law, he concluded that he could interfere with the decision of the Tribunal member only if it was shown to be patently unreasonable within the meaning of that phrase set out by Cory J. in Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 at 963-64, stating,

[19]      The standard of review of patently unreasonable has been variously described.  I adopt the description contained in Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, where Cory J. on behalf of the Court stated:

. . . In the Shorter Oxford English Dictionary "patently", an adverb, is defined as "openly, evidently, clearly".  "Unreasonable" is defined as "[n]ot having the faculty of reason; irrational. ... Not acting in accordance with reason or good sense".  Thus, based on the dictionary definition of the words "patently unreasonable", it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there was a loss of jurisdiction.  This is clearly a very strict test.  (at pp. 963-4)

[16]            He concluded,

[26]      It was not patently unreasonable for the Tribunal Member to conclude that there was no reasonable prospect that the Petitioner could show that there was discrimination based on language, ancestry and/or place of origin.  It is clear that the Tribunal Member was of the opinion that, if there was any issue about language skills, there was no discrimination based on race, colour, ancestry or place of origin as the problem was based on the perceived lack of communication skills which were necessary to perform the work assigned to the Petitioner.  It was also not patently unreasonable for the Tribunal Member to come to the conclusion that the Petitioner alleged no facts which demonstrated that the actions of Sodexho and its employees or that the actions or inactions of the IWA were as a result of discrimination.

[17]            The chambers judge dismissed the appellant’s submissions that the Tribunal member made findings of fact without evidence and that she acted unfairly in the following passage of his reasons: 

[27]      Although it is raised by the Petitioner, I can make no finding that the findings of the Tribunal Member were not based on the evidence before her.  While the Petitioner refers to certain “fabrications” in the submissions that the Tribunal Member received from Sodexho, the submissions received from Sodexho were received by the Petitioner prior to the deadline for her submissions to the Tribunal and, accordingly, the Petitioner had ample opportunity and took the opportunity to rebut the “fabrications” which the Petitioner claims were present in the submissions of Sodexho.  In these regards, I find that it was not patently unreasonable for the Tribunal Member to rely upon the principles set out in the Bell v. Sherk and others decision of the Tribunal and that it was appropriate for the Tribunal Member to resolve so-called differences by evaluating all information before her in order to determine whether there was a reasonable prospect whether the complaint would succeed or not.  While a lack of procedural fairness and a violation of the rules of natural justice is alleged by the Petitioner, I can make no such finding.

[18]            Accordingly, he dismissed the petition against all respondents. 

[19]            I agree with the appellant, as does counsel for the Human Rights Tribunal, that cases decided prior to enactment of the Administrative Tribunals Act are no longer controlling on question of the appropriate standard of review.  There was no need for the chambers judge to invoke the common-law definition of “patently unreasonable” set out in Canada (Attorney General) v. Public Service Alliance of Canada, supra.  Rather, he should have applied the definition set out in s. 59(4) of the Administrative Tribunals Act.

[20]            However, the appellant contends that the applicable standard in this case is not the standard set out in s. 59(4).  Rather, she says, it is set out in s. 59(2).  In her submission, the Tribunal must make findings of fact before it can exercise its discretion to dismiss a complaint.  She contends that the Tribunal member made findings of fact in this case that were not supported by the evidence or were otherwise unreasonable and that the chambers judge erred in failing to recognize and give effect to this error. 

[21]            In my view, if the Tribunal member had made findings of fact that were not supported by the evidence or were otherwise unreasonable as the appellant alleges, her decision to dismiss the complaint based on that error would have been arbitrary in the sense that it would not have been made according to reason and principle, and it would therefore have been patently unreasonable by virtue of s. 59(4)(a).  Thus, even accepting the appellant’s allegations of error, the applicable standard of review would be patent unreasonableness as defined in s. 59(4). 

[22]            However, the appellant’s submission overlooks the differences in nature between decisions made with and those made without a hearing.  The latter involve findings of fact on a balance of probabilities reached after a weighing of the evidence presented, while the former involve only a preliminary assessment of the evidence submitted in order to determine whether that evidence warrants going forward to the hearing stage.  Thus, in dismissing the appellant’s complaint without a hearing, the Tribunal member did not weigh the evidence and make findings of fact that would be subject to review pursuant to s. 59(2).  Rather, she merely concluded that the evidence did not justify the time and expense of a full hearing because, in her judgment, there was no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence.  Accordingly, s. 59(2) is not engaged and the exercise of this discretion falls to be reviewed according to the standard of patent unreasonableness pursuant to s. 59(3). 

[23]            The point may be illustrated by reference to this Court’s decision in Lee v. British Columbia (Attorney General) (2004), 32 B.C.L.R. (4th) 1, 244 D.L.R. (4th) 404, 2004 BCCA 457.  This case was decided under the Code as it stood prior to the amendments made by the Human Rights Code Amendment Act, S.B.C. 2002, c. 62.  Mr. Justice Donald, delivering judgment for the Court, described the earlier scheme, stating,

[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;

[24]            Mr. Justice Donald described the function of the Human Rights Commission under the prior scheme as that of a gate keeper.  He said,

[26]      . . . [T]here 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.

[25]            As to the proper approach to a review of a decision made at the gate keeping stage, Mr. Justice Donald said,

[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.

[26]            Although there is now a single tribunal, the scheme has not changed in its essence.  The discretion to dismiss a claim that, on a preliminary assessment, does not warrant a full hearing has passed from the former Human Rights Commission to a panel or a member of the Tribunal under the current s. 27(1).  The nature of this gate keeping function has not changed.  In my view, the approach set out by Mr. Justice Donald to a gate keeping decision of the Human Rights Commission is equally applicable to a gate keeping decision made by a panel or a member of the Tribunal. 

[27]            Applying s. 59(4), I conclude that the chambers judge was correct to dismiss the petition.  The Tribunal member fully considered the submissions of the parties and afforded the appellant a fair consideration of her complaint.  Although some of her conclusions have the appearance of findings of fact, she properly addressed the weighing and evaluation of the evidence as she demonstrated by relying upon the passage in the reasons of Bell v. Sherk and others, 2003 BCHRT 63, that she quoted (see para. 9 above).  Her approach was reasoned and principled and was not shown to be based on any irrelevant factors.  Nor did she fail to take any statutory requirements into account.  Further, it was not suggested that she acted in bad faith or for an improper purpose.  Accordingly, her decision to dismiss the complaint does not transgress any of the criteria in s. 59(4) and it cannot be said to be patently unreasonable. 

[28]            The appellant also gave notice under the Constitutional Question Act, R.S.B.C. 1996, c. 68, of her intention to seek a constitutional remedy under s. 24(1) of the Charter.  She alleges that the actions of Sodexho and the decision of the Human Rights Tribunal infringed her rights and freedoms guaranteed under s. 2, s. 7, and s. 15 of the Charter.  As well, she alleges they violated certain provisions

of the Criminal Code.  There is no merit in these allegations and I would reject them. 

[29]            For the reasons I have given, I would dismiss the appeal.

“The Honourable Mr. Justice Smith”

I agree:

“The Honourable Mr. Justice Hall”

I agree:

“The Honourable Madam Justice Levine”