COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Barker v. Hayes,

 

2008 BCCA 148

Date: 20080408

Docket: CA034205

Between:

Kevin Barker (1118) and Vancouver Police Department

Appellants

(Petitioners)

And:

Peter M. Hayes and the British Columbia Human Rights Tribunal

Respondents

(Respondents)

And:

The British Columbia Civil Liberties Association

Intervenor

Before:

The Honourable Madam Justice Rowles

The Honourable Madam Justice Levine

The Honourable Madam Justice Kirkpatrick

R.D. Hill

Counsel for the Appellants

J. Doulis

Counsel for the Respondent Peter M. Hayes

D. Paluck

Counsel for the Respondent

British Columbia Human Rights Tribunal

G. Pastine

Counsel for the Intervenor

Place and Date of Hearing:

Vancouver, British Columbia

23 October 2007

Place and Date of Judgment:

Vancouver, British Columbia

8 April 2008

Written Reasons by:

The Honourable Madam Justice Rowles

Concurred in by:

The Honourable Madam Justice Levine

The Honourable Madam Justice Kirkpatrick

 

Reasons for Judgment of the Honourable Madam Justice Rowles:

I.          Introduction

[1]                The Vancouver Police Department (“VPD”) and Mr. Kevin Barker appeal from an order dismissing their petition for judicial review of a decision of a member of the British Columbia Human Rights Tribunal (the “Tribunal”) concerning a complaint filed by the respondent, Peter Hayes, alleging that the appellants had discriminated against him on the grounds of religion and sexual orientation in relation to services and employment, contrary to, respectively, ss. 8 and 13 of the Human Rights Code, R.S.B.C. 1996, c. 210 (the “Code”). 

[2]                In his complaint, Mr. Hayes alleged that he had been refused a chauffeur’s permit on the basis of his pagan beliefs and “BDSM lifestyle”, the latter referring generally to bondage and discipline, domination and submission, and sadism and masochism.

[3]                The Tribunal decided not to accept the part of the complaint alleging discrimination in relation to employment as Mr. Hayes was not in an employment relationship with either of the appellants.  The complaint alleging discrimination in relation to services was accepted for filing on the ground of religion.

[4]                A preliminary jurisdictional question was raised by the Tribunal as to whether sexual orientation includes BDSM.  The Tribunal asked for further submissions in the following terms:

Before the tribunal decides if it should accept the complaint [of discrimination in relation to services] based on the grounds of      sexual orientation, the parties are invited to make submissions about whether the facts as presented, if proven, could amount to a contravention of the Code on the protected grounds of sexual orientation.

[5]                After receiving submissions, the Tribunal decided it was not clear that sexual orientation does not include BDSM and accepted the complaint for filing under Rule 11 of the Tribunal’s Rules of Practice and Procedure, effective October 15, 2004 (amended rules) (the “Rules of Practice”).  The decision of the Tribunal is indexed as Hayes v. Barker, 2005 BCHRT 590.

[6]                The appellants subsequently brought a petition under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, to review the decision of the Tribunal.  In their argument before the chambers judge, the appellants asserted that the Tribunal, by deciding that BDSM may come within sexual orientation, exceeded its jurisdiction by:

(a)        adopting an interpretation of sexual orientation inconsistent with the meaning of the phrase, the statutory scheme of the Human Rights Code, the Canadian Charter of Rights and Freedoms, and other human rights legislation and case law; and

(b)        embarking on a process outside of the Tribunal’s mandate.

[7]                Madam Justice Brown, whose reasons for judgment may be found at 2006 BCSC 1217 and at [2006] B.C.J. 1822 (QL), dismissed the petition for judicial review primarily on the ground that the petition was premature.

[8]                In my view, Madam Justice Brown did not err in concluding that the appellants’ petition was premature.  My reasons for reaching that conclusion follow. 

II.         Relevant statutory provisions and Tribunal’s Rules of Practice

[9]                The sections of the Code relevant to the arguments on appeal are set out below:

Discrimination in accommodation, service and facility

8 (1) A person must not, without a bona fide and reasonable justification,

(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or

(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public

because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons.

[…]

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;

[…]

[10]            The Rules of Practice relevant to the points on appeal, as they appeared at the time of the hearing, are as follows:

Rule 11 - Screening of Complaints

Tribunal will screen

(1)        When a complaint is filed, the tribunal will screen the complaint to ensure that:

(a) the Complaint Form and, if applicable, the Representative Complaint Form, is complete; and

(b) the complaint appears to be within the jurisdiction of the tribunal.

[…]

Screening for lack of jurisdiction

(6)        If it is clear that the tribunal does not have jurisdiction to proceed with the complaint or part of the complaint, the tribunal will refuse to accept the complaint or that part of the complaint for filing and will give reasons for its refusal.

(7)        If the tribunal accepts a complaint for filing, this is not a final decision that the tribunal has jurisdiction over the complaint.

[Emphasis added.]

III.        History of the proceedings

[11]            Mr. Hayes filed his complaint with the Tribunal after being denied a chauffeur’s permit, which was a condition of his employment as a driver for a limousine company.  The part of the complaint that alleged discrimination in relation to services on the ground of religion was accepted for filing. 

[12]            A preliminary jurisdictional question was raised as to whether Mr. Hayes’ “BDSM lifestyle” fell within the scope of the protected grounds of sexual orientation under the Code and the Tribunal invited submissions on that point.  After receiving submissions, the Tribunal concluded that the complaint ought to be accepted for filing under Rule 11.  In doing so, the Tribunal made the following observation about the state of the record (at para. 1):

In brief, the complaint has to do with the respondent’s refusal to grant Mr. Hayes a chauffeur’s permit allegedly on the basis of Mr. Hayes’ religion and sexual orientation.  Mr. Hayes is a pagan and practices what may loosely be described as a BDSM lifestyle.  I take BDSM to refer generally to bondage and discipline, domination and submission, and sadism and masochism.  As I will discuss in more detail below, neither the precise nature of Mr. Hayes’ lifestyle practices and preferences, nor the parties’ use of the term “BDSM” or other related terms is absolutely clear on the materials before me.

[Emphasis added.]

[13]            The Tribunal concluded that “the acts alleged by Mr. Hayes could, if proven, constitute discrimination on the basis of sexual orientation” (at para. 47).  In accepting the complaint for filing, the Tribunal emphasized that the decision was “neither a final determination as to whether the Tribunal has jurisdiction over the complaint nor a decision as to whether the complaint is justified” (at para. 13).

[14]            The appellants subsequently brought a petition under the Judicial Review Procedure Act for a review of the Tribunal’s preliminary decision.

IV.        Reasons of the chambers judge for dismissing the appellants’ petition

[15]            Madam Justice Brown dismissed the petition, primarily on the ground that it had been brought prematurely.  Her reasons in that regard may be summarized as follows:

a)         the Tribunal has not determined that BDSM is sexual orientation or that discrimination on that basis is discrimination based on sexual orientation;

b)         judicial intervention will fragment the Tribunal’s proceedings and could unnecessarily add to the expense and cause delay in the process;

c)         the Tribunal may resolve the dispute to the parties’ satisfaction;

d)         the court’s decision may be rendered moot because of a ruling by the Tribunal on some other aspect of the proceeding; and

e)         there is no evidentiary record or an analysis of the evidence by the Tribunal to assist the court.

[16]            The chambers judge went on to state that even if she were wrong as to whether the petition was premature, the Tribunal’s decision should not be set aside.  In that regard, Madam Justice Brown found that a review of the case law did not necessarily lead to the conclusion that "sexual orientation" was, as the appellants had argued, “limited to a person’s attraction to members of a given gender or genders and not to any other characteristic related to sexual behaviour or preference” (at para. 18).

[17]            In her reasons, Madam Justice Brown emphasized, at para. 9:

The tribunal has not determined that BDSM is sexual orientation or that discrimination on that basis is discrimination based on sexual orientation.  Rather, the tribunal has determined that it is not clear that the tribunal does not have jurisdiction.  That decision is not a final decision that the tribunal has jurisdiction over the complaint.

V.         Grounds of appeal

[18]            The points on appeal concern three main issues:  jurisdiction, procedure, and fairness.  The grounds of appeal as set out in the appellants’ factum are as follows:

1.         The learned Chambers Judge erred in law

a.         by failing to conclude that sadism and masochism, domination and submission, and bondage and discipline are not within “sexual orientation” in the Code[;]

b.         by failing to conclude that the decision of the Tribunal was an attempt to amend its founding statute;

c.         by concluding that evidence was required to interpret the meaning of sexual orientation in the Human Rights Code;

d.         and thus, by failing to conclude that the Tribunal had exceeded its jurisdiction.

2.         The learned Chambers Judge erred in law by upholding the procedure used by the Human Rights Tribunal to make its decision.  The Tribunal's process was in excess of its jurisdiction.

3.         The Appellants also seek leave to argue a new ground in the alternative:  that the Tribunal acted unfairly in adopting a process to interpret the statute which impaired the Appellants' statutory rights under the Code, and the application was therefore not premature. 

4.         The learned Chambers Judge erred in rejecting the Appellants' application for judicial review as premature, because:

a.         she considered irrelevant factors, failed to consider relevant factors; and she came to an unreasonable conclusion; and

b.         she came to an unreasonable conclusion in finding that judicial review would fragment the Tribunal's process.

5.         The appropriate response on judicial review would have been to quash the decision of the Tribunal and prohibit it from proceeding further with the complaint.  In the alternative, the matter should be remitted back to the Tribunal for reconsideration under s. 27(1)(a) of the Human Rights Code, with directions that the Tribunal Member who made the decision under review not be involved in the reconsideration.

VI.        Arguments of the parties

(a)        The appellants’ submissions  

(i)         The jurisdictional issue

[19]            The appellants claim that while the chambers judge appropriately identified and selected correctness as the standard of review, she erred in law by upholding the Tribunal’s decision that it had jurisdiction to consider whether BDSM fell within the meaning of “sexual orientation” in the Code.

[20]            The essence of the appellants’ position is that the meaning of “sexual orientation” in the Code is unambiguous with an “easily discernible common sense meaning” and does not include the behaviours mentioned in the complaint.  The appellants describe at length the problems associated with adopting a broader meaning.  The appellants contend that the meaning of “sexual orientation” contemplated by the Tribunal is inconsistent with the Charter, the Code, and previous case law.  In that regard, the appellants rely on R. v. Hancock, 2000 BCSC 1581, 50 W.C.B. (2d) 417; McAleer v. Canada (Human Rights Commission), [1996] 2 F.C. 345, 132 D.L.R. (4th) 672 (T.D.), aff’d 175 D.L.R. (4th) 766, 247 N.R. 215 (F.C.A.); and Vriend v. Alberta, [1998] 1 S.C.R. 493, 156 D.L.R. (4th) 385.

[21]            The appellants contend that the chambers judge made a fundamental error of law when she concluded that further evidence was necessary in order for the Tribunal to determine whether BDSM is or is not a sexual orientation.  The issue before the Tribunal was a straightforward jurisdictional issue, which was a question of law, not a question of fact.  The appellants contend that a general question of statutory construction does not require evidence, and that the jurisdictional question about the meaning of the statute should have been answered at the outset.  To support their submission, the appellants referred to British Columbia v. Crockford, 2005 BCSC 663, 40 B.C.L.R. (4th) 313, portions of which they claim were affirmed on appeal despite being overturned in result (2006 BCCA 360, 271 D.L.R. (4th) 445).  The appellants submit that the Tribunal attempted to import Charter values into the analysis rather than simply interpret and apply the Code and thus exceeded its jurisdiction under s. 45 of the Administrative Tribunals Act, S.B.C. 2004, c. 45.  On that basis, the appellants argue that their application for judicial review was not premature because it focused “squarely on the jurisdiction of the inferior Tribunal”.

(ii)        The procedural and fairness issues

[22]            The appellants’ arguments on procedure and fairness are inter-related and may conveniently be summarized together.

[23]            The appellants submit that the Tribunal purported to make a decision under Rule 11 of the Tribunal’s Rules of Practice about whether to accept the complaint for filing but, in fact, “embarked on a process completely outside of [the Rules]”.  Rule 11(6) allows the Tribunal to reject a complaint if “it is clear that the tribunal does not have jurisdiction".  In the appellants’ submission, this threshold for acceptance is appropriate in the circumstances because Rule 11(7) emphasizes that acceptance is not a final decision on jurisdiction, which preserves a respondent’s right to make a jurisdictional challenge later on under s. 27(1)(a) of the Code.  The appellants argue that in seeking submissions from the parties on the meaning of sexual orientation before a decision on acceptance of the complaint had been made, the Tribunal was prematurely making a formal decision on jurisdiction as if it were acting under s. 27(1)(a) of the Code.

[24]            Based on the foregoing submissions, the appellants seek leave to argue a new ground of appeal, the new ground being that the Tribunal’s process amounted to a denial of procedural fairness “because it prejudiced the Appellants’ statutory right to later bring an application pursuant to section 27(1)(a)”, which has a much higher threshold than the “not clearly not” standard set in Rule 11.

(b)       Submissions of the Tribunal

[25]            In response to the new ground the appellants seek to raise on appeal, the Tribunal submits that it is premature to argue that the Tribunal’s process was procedurally unfair when the issue was not raised before the Tribunal and when the Tribunal "has authority to determine procedural fairness at the first instance”.

[26]            In response to the other jurisdictional arguments raised by the appellants, the Tribunal submits that it has authority to determine its own jurisdiction, and that includes the “discretion to defer a determination of its jurisdiction pending consideration of an evidentiary record when a factual context is a component of that determination”.  To support its submission on this point, the Tribunal relies on Hospital Employees’ Union v. Canadian Forest Products Ltd., 2005 BCSC 877, 40 A.C.W.S. (3d) 486 at para. 10; Kelowna (City) v. British Columbia (Human Rights Commission) (1999), 90 A.C.W.S. (3d) 441, [1999] B.C.J. No. 1848 (QL) (S.C.) at paras. 13, 16; and Edmonton (City) v. Alberta (Human Rights and Citizenship Commission), 2002 ABQB 1013, [2003] 3 W.W.R. 731 at para. 41.  

[27]            In response to the appellants’ submissions based on Crockford, the Tribunal argues that the Court of Appeal stated that jurisdictional questions must be dealt with at the outset where the jurisdictional question is purely one of law and, in any event, the Court's reservations were obiter dicta.  In the Tribunal's submissions, the chambers judge correctly recognized that judicial review of its preliminary screening decision was premature and that a review at that point could frustrate the Tribunal’s mandate and legislative purpose.

(c)        Submissions of the respondent, Peter Hayes

[28]            Mr. Hayes submits that the chambers judge did not err in dismissing the application for judicial review as premature, as the Tribunal’s decision was an interlocutory one “that left undetermined the merits of the case and the issues raised in the complaint”.  He notes that, except for the Yukon Territories, the term “sexual orientation” is undefined in human rights legislation, and further, “[i]t is also largely undefined by the courts…[and] not even clearly defined in public discourse”.  Mr. Hayes submits that the analytical framework set out in North Vancouver School District No. 44 v. Jubran, 2005 BCCA 201, 253 D.L.R. (4th) 294, applies.  In his submission, “it is not clear that the meaning of sexual orientation for the purposes of the Code is restricted to an individual’s preference towards members of a certain gender”.  Mr. Hayes emphasizes that neither the Tribunal nor the chambers judge ruled that BDSM behaviours fell within the ambit of sexual orientation under the Code.  Rather, “they could not say that BDSM was clearly not within the scope of the meaning of sexual orientation”.  Mr. Hayes submits that the issue of whether certain behaviours fall within the meaning of “sexual orientation” under the Code is one that requires an evidentiary record, and points out that the contrary point in Crockford on which the appellants rely was not affirmed on appeal to the British Columbia Court of Appeal.

(d)       Submissions of the Intervenor, the British Columbia Civil Liberties Association

[29]            The intervenor’s position, broadly stated, is that the Tribunal hearing ought to proceed in the normal course to completion so that it has an the opportunity to consider whether a restrictive interpretation of the sexual orientation provision of the Code would infringe fundamental rights.  The intervenor frames the essence of the appeal as determining whether the Tribunal “should have the opportunity to hear evidence on Mr. Hayes’ sexual identity and what BDSM is”.  The intervenor notes the necessity of having an evidentiary record because the exact nature of Mr. Hayes’ lifestyle, practices and preferences are not yet a matter of record.  The intervenor’s factum contains extensive submissions about the correct approach to interpreting human rights legislation and the sexual orientation provision in the Code.  The intervenor relies on Jubran for the proposition that “sexual orientation in the Code does not refer solely to the gayness or lesbianness of an individual”.

VII.       Analysis

[30]            The appellants contend that this appeal broadly concerns the meaning of “sexual orientation” in the Code.  In my view, to frame the issue in that manner misses the central point that has to be decided on this appeal.  The question before us is not whether Mr. Hayes’ sexual identity and practices are or ought to be protected under the Code.  Instead, the issue before us is whether the chambers judge erred in dismissing the application for judicial review as premature when she found that the Tribunal had not exceeded its jurisdiction in deciding that it was not clear that the alleged facts, if proven, could constitute discrimination on the basis of sexual orientation.  In other words, the effect of the Tribunal’s decision was merely to leave open the possibility that discrimination based on sexual orientation might be found, and to provide an opportunity for the Tribunal to hear evidence in order to consider whether there is a proper basis for the claim.

[31]            The appellants made lengthy submissions on the meaning of the term “sexual orientation” and why it should not include BDSM.  In reply, the respondent Hayes and the intervenor address the same issue.  However, this is not the issue on appeal.  In my view, counsel for the Tribunal has correctly stated that this appeal is about “whether the learned Chambers Judge erred in determining that a judicial review of a decision to accept a complaint for filing is premature, where the Tribunal determined, and the Judge agreed, that evidence was necessary to determine the jurisdictional question”.

[32]            On the issue of whether the Tribunal was permitted to consider evidence before determining jurisdiction, the difference between the positions of the appellants and the Tribunal lies in how the parties have characterized the question to be decided.  The appellants argue that the meaning of “sexual orientation” is a pure question of law and so, based on Crockford, the jurisdictional issue should have been decided at the outset.  In their submission, the Tribunal exceeded its jurisdiction and therefore judicial review at this stage is not premature.  The Tribunal submits that the question of whether BDSM falls within the scope of “sexual orientation” for the purposes of the Code requires some factual inquiry, which necessitated deferring the jurisdictional issue.

[33]            In Crockford, the jurisdictional question to be decided was whether a Crown prosecutor, in deciding whether or not to lay criminal charges, was providing a “service…customarily available to the public”.  In that case, the court was able to make a determination without additional evidence.  However, in Hospital Employees’ Union, a case on which the Tribunal relies, the issue before the court was whether the actions of members of the Union could be characterized as political protest rather than picketing.  In considering whether the jurisdictional question was one of pure law or whether it required consideration of evidence, the court drew the following comparison with Crockford (at para. 10):

If the actions of the individuals as set out in [the] complaint could be described only as "political protest" with the same degree of certainty as to the meaning of that activity as there is to the understanding of the activity of a prosecutor in charge approval [as in Crockford], the jurisdictional question might be one of pure law.  That is obviously not the case, and some factual inquiry into the nature of the conduct complained of is clearly necessary to determine the jurisdictional question.

[34]            In this case, the Tribunal noted in its decision that “neither the precise nature of Mr. Hayes’ lifestyle, practices and preferences, nor the parties’ use of the term BDSM or other related terms, is absolutely clear on the materials” (at para. 1).  In order to determine whether BDSM fell within the scope of “sexual orientation”, an additional factual inquiry was required.  How can the Tribunal determine if BDSM falls within the meaning of “sexual orientation” if it does not have a full understanding of what BDSM means?  It seems to me that the question before the Tribunal was not a question of pure law, and therefore the Tribunal did not exceed its jurisdiction in accepting the complaint for filing.  Adopting that course permitted consideration of additional evidence before the complaint was determined. 

[35]            I am of the view that the appellants’ jurisdictional arguments must fail.  As Madam Justice Brown noted, the Tribunal has not yet determined whether BDSM is sexual orientation within the meaning of the Code; instead, it has only determined that it is not clear it does not have jurisdiction.  The Tribunal’s decision simply opens the door to an examination of evidence and further submissions on an unusual question.

[36]            I am also of the view that the appellants’ procedural and fairness arguments are without merit, as reference to the relevant Rules of Practice and Code provisions that govern the Tribunal’s practices and procedures demonstrates.

[37]            Rule 11 concerns the “Screening of Complaints”.  When a complaint is filed, the Tribunal screens the complaint to ensure that it is complete and that it appears to be within the jurisdiction of the Tribunal (Rule 11(1)).  If the complaint is not complete, the Tribunal may request additional information.  If it is clear that the Tribunal does not have jurisdiction to proceed with all or part of the complaint, the Tribunal will refuse the complaint or part of the complaint and must provide reasons for that decision (Rule 11(6)).  Rule 11(7) provides that if a complaint is accepted, it is not a final determination that the Tribunal has jurisdiction.

[38]            Once a complaint has passed through this screening process, Rule 12 provides that the Tribunal is to notify the respondent by letter and to provide copies of the complaint.  Rule 13 governs the process by which the respondent may articulate its position regarding the complaint. 

[39]            The Code provides that the Tribunal may receive and accept on oath evidence and information that it considers necessary and appropriate, whether or not it would be admissible in a court of law (s. 27.2; see also Rule 35(12)).  Section 27.3 of the Code gives the Tribunal broad powers to make rules and orders respecting its practice and procedure to facilitate the just and timely resolution of complaints.  Under s. 27(1)(a), the Tribunal may dismiss for lack of jurisdiction all or part of a complaint at any time after the complaint is filed.  The parties must be notified and given reasons for the dismissal (s. 27(2)).

[40]            The appellants challenge the Tribunal’s process on the basis that instead of merely screening the complaint under Rule 11, the Tribunal actually engaged in a much more in-depth inquiry by inviting the parties to make submissions.  The appellants submit that absent the decision under appeal, they would have had “an unfettered right to challenge the Tribunal's jurisdiction under s. 27(1)(a)”.  While the appellants acknowledge they could still bring such an application “in theory”, they argue that the Tribunal has already made a decision on jurisdiction and it would not be able to reconsider the same issues again.  In this way, the appellants claim that the Tribunal’s procedure was unfair.

[41]            I do not agree with the appellants’ argument that the procedure was unfair.

[42]            The Tribunal’s Rules of Practice do not require that a respondent be given an opportunity to make submissions prior to the Tribunal deciding whether to accept the complaint for filing but, in this case, they were given an opportunity to do so.  The appellants’ argument that the procedure used by the Tribunal was unfair rests entirely on speculation of future unfairness.  The appellants submit that if they were to later bring an application to dismiss the complaint for want of jurisdiction under s. 27(1)(a) of the Code, the Tribunal would not give the application proper consideration.  Quite simply, there is no basis for drawing such a conclusion.  As both the Tribunal and chambers judge emphasized, the Tribunal’s decision was not a final decision on jurisdiction over the complaint.

VIII.      Conclusion

[43]            For the reasons stated, as well as the reasons given by Madam Justice Brown, with which I substantially agree, I would dismiss the appeal. 

“The Honourable Madam Justice Rowles”

I agree:

“The Honourable Madam Justice Levine”

I agree:

“The Honourable Madam Justice Kirkpatrick”