Citation:

C.N. Danroth Contracting Ltd. v. Skytte

Date:

20020823

 

2002 BCSC 1227

Docket:

L011513

Registry: Vancouver

 

IN THE SUPREME COURT OF BRITISH COLUMBIA

 

Re:  In the matter of the British Columbia Human Rights Code,
R.S.B.C. 1996, c. 210 as amended;
The Judicial Review Procedure Act, R.S.B.C. 1996, c. 241;
And Rules 10 and 57 of the Rules of Court

 

BETWEEN:

C.N. DANROTH CONTRACTING LTD.

PETITIONER

AND:

HANNA SKYTTE

RESPONDENT

 

 

REASONS FOR JUDGMENT

 

OF THE

 

HONOURABLE MR. JUSTICE OPPAL

(IN CHAMBERS)

 

 

Counsel for the Petitioner

Edna Marion/
Meghan R. McCreary

 

Counsel for the Respondent,
Hanna Skytte

 

Clea F. Parfitt

 

Counsel for the Respondent,
British Columbia Human Rights Tribunal

Katherine Hardie

Date and Place of Hearing:

January 28 and 29, 2002
Vancouver, BC

 

INTRODUCTION

 

[1]            On December 15, 2000 the British Columbia Human Rights Tribunal (the Tribunal) found that the petitioner C.N. Danroth Contracting Ltd. (the employer) had wrongfully dismissed the respondent Hanna Skytte (Ms. Skytte) from her employment while she was pregnant and thereby discriminated against her on the basis of her sex contrary to s. 13 of the Human Rights Code, R.S.B.C. 1996, c. 210 (the Code).  The petitioner employer seeks a review of the decision under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, and Rules 10 and 57 of the Rules of Court

[2]            The petitioner has argued that the decision of the Tribunal was patently unreasonable both in law and in fact.  More specifically, it is argued that the Tribunal failed to consider relevant evidence and improperly assessed credibility in determining that the respondent was dismissed from her employment as a result of her pregnancy. 

GROUNDS OF REVIEW

 

[3]            The petitioner’s grounds may be summarized as follows: 

1.    That the Tribunal made patently unreasonable findings of fact central to its decision which constitute a jurisdictional error. 

2.    That the Tribunal erred in law and was patently unreasonable by making findings of fact in the absence of any evidentiary basis. 

 

[4]            The petitioner has argued that there was no causal link between the respondent’s departure from her employment and her pregnancy.  Its position at the hearing was that she was not terminated because of her pregnancy but that she requested a shift change and that the employer was unable to accommodate her.

THE HEARING

 

[5]            More specifically, the petitioner employer was the operator of a logging camp near Port Hardy on Vancouver Island.  It employed approximately sixty employees.  Ms. Skytte commenced her employment as a first-aid attendant and bull cook at the camp on July 7, 1995. 

[6]            It is important to note that the camp was accessible from Port Hardy only by air and water.  Accordingly, employees worked seven days per week for a number of consecutive weeks and then received commensurate time off when they would return to their homes.  Ms. Skytte’s particular monthly work schedule was that she would be in the camp for three consecutive weeks and be off for the fourth week.  However, at the hearing she testified that in practice the schedule became somewhat variable.  In fact, she said at no time did she ever work a three on and one off schedule. 

[7]            On January 15, 1996 Ms. Skytte learned from her doctor that she was pregnant.  She said that the doctor approved of continued employment.  However, he suggested that she work a shorter schedule.

[8]            On February 5th Mr. Danroth, employer’s principal, telephoned Ms. Skytte in order to determine whether she would be leaving for the logging camp on the following day.  She told him she would not since she had a doctor's appointment for the following day of February 6th.  On that day the parties spoke again by telephone.  There is a conflict as to what was said.  Ms. Skytte testified that while she was prepared to go work on February 7th, she requested a shorter shift from three weeks on and one week off to two weeks on and one week off because she had another medical appointment set for February 26th.  She said that if she worked the three on and one off shift she would not be able to make the appointment.  She said she did not tell him that she was pregnant.  It is also important to note that she said that she sought a temporary change in order to make the February 26th appointment.  She testified that, “I asked for one shorter shift … .”  She said she did not ask for a permanent change in her shift.  Her evidence was that that Mr. Danroth told her that “as long as you get into camp, I don’t care, just get in here.”  The contrast in the evidence is significant.  Mr. Danroth testified that when they spoke on February 6th, she told him that she was pregnant and that she needed a shift change.  He believed that she wanted a permanent change.  He was clear on that.  He told her that the company could not accommodate her.  He agreed in cross-examination that she did not use the word “permanent” but he said, “I absolutely believe in my mind that what she said to me was a permanent change.” 

[9]            Mr. Danroth testified that when Ms. Skytte requested the shift change due to her pregnancy he said to her, “This puts me in a spot but get into camp because we need you.  We will be shut down without it and I will do what I can to accommodate you.”  He testified that they could not simply accommodate her and accordingly he replaced with a first-aid attendant who was available to work the required shift.  He denied telling her that he was terminating her because of her pregnancy.  He said that she threatened to quit unless he could accommodate her.  He said, “I terminated her employment because I was asked to accommodate her on a two for one shift, that to the best of my knowledge was a permanent request.  There was never an indication that it was a temporary request, and there was never reason whatsoever given to me, other than over the phone when she said, ‘I’m pregnant I need that shift’, but there is no doctor’s back-up information for anything else.  What it boiled down to was, I needed to cover that shift, ….” 

[10]        It is not in dispute that on February 7th Ms. Skytte attended at the camp and resumed her normal duties.  She said that on February 21st Mr. Danroth approached her and asked her if she was pregnant.  When she told him she was, she testified that “he told me that he didn’t want somebody pregnant working in one of his camps and that he would replace me and he would have a replacement for me in a few days.  I told him that he couldn’t do that just because I was pregnant and he said ‘just watch me’.”  She said she was upset.  She testified that Mr. Danroth told her to “pack my stuff and get on the plane, that my replacement was coming.”  She said she had “a couple of hours notice”.  On the following day a plane came in with her replacement. 

[11]        Ms. Skytte testified that after her conversation with Mr. Danroth she was so distraught that she telephoned Ms. Scoffins, a friend, and related the conversation that she had with Mr. Danroth.  She sought both advice and support from Ms. Scoffins.  Ms. Skytte said that she telephoned Ms. Scoffins during the day at her place of employment.  On the other hand, Ms. Scoffins testified that Ms. Skytte telephoned her in the evening.  She said that Ms. Skytte told her that she had been terminated because of her pregnancy. 

[12]        Much has been said about the telephone call or the apparent lack of the call.  The evidence relating to the alleged complaint made to Ms. Scoffins was seriously challenged by counsel for the employer.  Counsel for the employer suggested to Ms. Skytte that her evidence relating to the call was fabricated.  It was also suggested that the first time she raised the issue of the call was immediately before the hearing.  She denied that suggestion and said that she made the complaint to “Employment Standards or Human Rights” but she was told it was hearsay.  Mr. Danroth testified about the telephone system in the camp in order to show that the call to Ms. Scoffins was never made.  There were a number of telephones that included land lines and mobile telephones with extensions.  There is no doubt that the evidence relating to the telephones was somewhat confusing.  Extensive telephone records were filed.  The records were incomplete in that they did not make note of all the calls.  It has been pointed out that the records were never put to Ms. Skytte in cross-examination.  The records failed to corroborate Ms. Skytte’s evidence that she made the call.  In this hearing it was argued that the discrepancy was material and ought to have seriously affected Ms. Skytte’s credibility. 

[13]        Mr. Danroth also testified that a document entitled ”Record of Employment” issued to Ms. Skytte upon her departure stated that the reason for her leaving was “pregnancy”.  He said the document was prepared by Mr. Eldred, an employee, upon information given to him by Mr. Danroth

[14]        Mr. Danroth’s evidence relating to Ms. Skytte’s departure was corroborated to some extent by Mr. Vincent, who at the time was the camp supervisor.  He said that Ms. Skytte approached him and requested a change in her schedule to two weeks in and one week out and that if she was not accommodated “her next shift would probably be her last one”.  Ms. Skytte denied that such a conversation took place. 

[15]        As noted, there were a number of inconsistencies in the evidence at the hearing.  Accordingly, credibility was the central issue.  In her reasons the Tribunal member dealt at length with the inconsistencies and the so-called frailties in the evidence.  She dealt with the vexing issue of credibility, in part, as follows:

[31]  In my view, the most serious of these inconsistencies is the divergence between Ms. Skytte’s account and Mr. Vincent’s.  The absence of clear telephone records of the 15-20 minute call Ms. Skytte made to Ms. Scoffins also carries some weight.  However, given the number of calls for which no number is recorded, I cannot be certain that there was no call of such length made to Ms. Scoffins after Ms. Skytte learned she had been terminated.  I find that these inconsistencies cast doubt on Ms. Skytte’s credibility. 

 

[32]  I consider the explanations for the other gaps and inconsistencies described above plausible, and I do not consider that they diminish Ms. Skytte’ credibility.  Nor am I persuaded by the Respondent’s submissions with respect to other inconsistencies in Ms. Skytte’s evidence.  I am not prepared to draw any inferences about Ms. Skytte’s credibility based on what she said she told Ms. Scoffins about her pregnancy.  I consider the timing of the February 26 doctor’s appointment natural given the requirement of monthly visits and the likely time the lab results would be available.  The difference between Ms. Skytte's testimony that she asked for a “shorter shift” and her complaint dated March 20, 1996, where she refers to having requested one two-week shift only, is adequately explained by the likelihood that Ms. Skytte was responding to the Respondent’s comment, on her record of employment that she was let go because she wanted a permanent two-week shift.  Finally, I reject the Respondent’s argument that Ms. Skytte left the camp “calmly” on February 22 and that this means she intended to leave her job.  Ms. Skytte testified she was upset, not calm.  If, by “calm” the Respondent means that Ms. Skytte did not create a fuss or protest further, this is equally consistent with being in shock over an unexpected termination or feeling that it was so unjustified that there was no point in discussing it further with Mr. Danroth

 

[16]        The Tribunal found that the employer discriminated against Ms. Skytte by terminating her because she was pregnant.  In making the finding the Tribunal member made the following comments in reaching her decision: 

[44]  The Respondent also appeared to argue that Ms. Skytte quit her job and that Mr. Danroth did not terminate her employment.  Section 13(1) of the Code provides that it is discrimination to “refuse to continue to employ a person” because of their sex, among other things.  It is clear from his own evidence that Mr. Danroth refused to continue to employ Ms. Skytte.  He decided to replace her.  He hired Ms. Avon.  He broke the news to Ms. Skytte.

 

[45]  In order to find the complaint justified, I must determine only that it is more likely than not that Ms. Skytte’s pregnancy was a factor in the termination.  It need not be the sole or even an overriding factor.  The evidence shows that it is reasonable to infer Ms. Skytte’s pregnancy was a factor in Mr. Danroth’s decision to replace her with Ms. Avon.  The Respondent has not displaced that inference with an alternative explanation. 

 

[46]  The Respondent has submitted that the duty to accommodate does not arise in this case.  Even if it did, the Respondent’s failure to raise the matter again with Ms. Skytte and make clear to her that her employment would be terminated unless she worked a 3 in/1 out shift precludes any undue hardship argument.

 

[47]  I conclude that the complaint is justified ….

 

(Emphasis added)

 

ANALYSIS

 

The Law

 

[17]        In determining whether a court ought to embark upon a review, the court must examine the role and purpose of the administrative body which has rendered the decision.  The question which must be addressed is what was intended by the legislature to be left to the exclusive decision of the board?  (See Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890, at p. 18, per Sopinka J.) 

[18]        The next step in any discussion on this issue is to determine the standard of review.  The law is generally well settled.  There is no single standard of review which is common to all administrative tribunals.  Rather, there are various standards that apply to different bodies.  In that respect the remarks of Iacobucci J. in Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, are particularly instructive wherein, at pp. 589-91, he stated the following: 

… The central question in ascertaining the standard of review is to determine the legislative intent in conferring jurisdiction on the administrative tribunal.  In answering this question, the courts have looked at various factors.  Included in the analysis is an examination of the tribunal’s role or function.  Also crucial is whether or not the agency’s decisions are protected by a privative clause.  Finally, of fundamental importance, is whether or not the question goes to the jurisdiction of the tribunal involved.

Having regard to the large number of factors relevant in determining the applicable standard of review, the courts have developed a spectrum that ranges from the standard of reasonableness to that of correctness.  Courts have also enunciated a principle of deference that applies not just to the facts as found by the tribunal, but also the legal questions before the tribunal in light of its role and expertise.  At the reasonableness end of the spectrum, where deference is at its highest, are those cases where a tribunal protected by a true privative clause, is deciding a matter within its jurisdiction and where there is no statutory right of appeal.  See Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227;  U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, at p. 1089 (Bibeault), and Domtar Inc. v. Quebec (Commission d’appel en matière de lésions profesionnelles), [1993] 2 S.C.R. 756. 

      At the correctness end of the spectrum, where deference in terms of legal questions is at its lowest, are those cases where the issues concern the interpretation of a provision limiting the tribunal’s jurisdiction (jurisdictional error) or where there is a statutory right of appeal which allows the reviewing court to substitute its opinion for that of the tribunal and where the tribunal has no greater expertise than the court on the issue in question, as for example in the area of human rights.  See for example Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321;  Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, and University of British Columbia v. Berg, [1993] 2 S.C.R. 353. 

 

(Emphasis added)

 

[19]        More recently, in Pushpanathan v. Canada, [1998] 1 S.C.R. 982, the Court suggested that the courts ought to take a “pragmatic and functional approach” in determining a standard of review.  In discussing this approach and determining legislative intent Bastarache J., at p. 1004, made the following comments: 

This more nuanced approach in determining legislative intent is also reflected in the range of possible standards of review.  Traditionally, the “correctness” standard and the “patent and unreasonableness” standard were the only two approaches available to a reviewing court.  But in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, a “reasonableness simplicter” standard was applied as the most accurate reflection of the competence intended to be conferred on the tribunal by the legislature. 

 

Thus, there are three standards of review.  They are correctness, reasonableness simplicter and patent unreasonableness.  They may be summarized as follows:

1.    Where there is a legal question, the standard is correctness.

2.    Where there is a question of mixed fact and law, that is, where the court is reviewing the application of the facts to the law, the standard is reasonableness.

3.    Where the review relates to factual considerations, the standard is patent unreasonableness. 

 

[20]        There has been much judicial discussion relating to the degree of deference that ought to be accorded to human rights tribunals.  In Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, the Court in restating the distinction between human rights tribunals and other statutory bodies set out the policy reasons for the distinction.  La Forest J., at p. 584-5, made the following comments: 

… The Human Rights Commission undoubtedly serves many useful functions that help to educate, inform and advise the government, the public and the courts on matters of human rights (s. 27).  It also provides a procedure for initiating, investigating, and seeking voluntary settlement of human rights complaints.  But it must be noted that in none of these roles is the work of the Commission binding on all parties.  That power resides only with the tribunal in its adjudicative role under Part III of the Act.  And the tribunal is not, simply by these other functions of the Commission, entitled to be free of normal review in its adjudicative function.  The tribunals themselves are ad hoc bodies established to settle a particular dispute.  In this respect their positions are similar to that of a labour arbitrator.  But a human rights tribunal does not appear to me to call for the same level of deference as a labour arbitrator. ….

 

(Emphasis added)

 

[21]        In Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, the Court revisited the issue of applicable standards of review from decisions of human rights tribunals.  After making reference to its decision in Pezim, supra, the Court again discussed the distinction between human rights tribunals and labour tribunals and in particular noted the expertise of human rights tribunals in fact-finding.  La Forest J. stated at p. 849: 

I do not think the fact-finding expertise of human rights tribunals should be restrictively interpreted, and it must be assessed against the backdrop of the particular decision the tribunal is called upon to make.  Here, inquiry into the appropriate standard of review is largely governed by the fact that the administrative law issue raised calls upon this Court to consider whether the finding of discrimination by the Board of Inquiry was beyond its jurisdiction.  A finding of discrimination is impregnated with facts, facts which the Board of Inquiry is in the best position to evaluate.  The Board heard considerable evidence relating to the allegation of discrimination and was required to assess the credibility of the witnesses’ evidence and draw inferences from the factual evidence presented to it in making a determination as to the existence of discrimination.  Given the complexity of the evidentiary inferences made on the basis of the facts before the Board, it is appropriate to exercise a relative degree of deference to the finding of discrimination, in light of the superior expertise in fact-finding, a conclusion supported by the existence of words importing a limited privative effect into the constituent legislation. 

 

(Emphasis added)

 

[22]        It is a generally well settled rule that the courts have recognized that human rights tribunals have a particular expertise in fact-finding.  In Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571, the Court recognized that expertise when it was stated that the superior expertise of a human rights tribunal relates to fact-finding and adjudication in a human rights context.  Human rights ought to be given a broad liberal purpose of approach. 

[23]        Where a tribunal makes a finding of fact without any evidentiary basis, then the finding will be unreasonable and will constitute a jurisdictional error.  As well, the failure to consider evidence that ought to have been considered constitutes an error in law.  As is often the case for human rights tribunals, it is often difficult to separate questions of law from questions of fact. 

Conclusions

 

[24]        The petitioner employer’s main argument is that the Tribunal made patently unreasonable findings of fact that were both central and material and in so doing made a jurisdictional error.  It has been further argued that there was an error in law in that the Tribunal made findings contrary to the evidence or without any evidentiary basis.  Finally, it is argued that the Tribunal misdirected itself on the law by applying an incorrect standard of proof. 

[25]        There are two particular evidentiary matters of concern.  The first relates to the telephone call and the second to the overall conflict between the evidence of Ms. Skytte and that of Mr. Danroth and Mr. Vincent.  I will deal with the telephone call first.  It is clear that the Tribunal made no clear findings of fact from the evidence dealing with that issue, as the member said, “I … cannot be certain that there was no call … made to Ms. Scoffins.”  That was an entirely reasonable inference to draw from the evidence which was confusing to say the least.  Mr. Danroth’s own evidence was not at all clear when he testified of the number of telephones with extensions that were in use at the time.  The records were incomplete in that all calls were not recorded.  Moreover, the records which were sought to contradict Ms. Skytte were not put to her in cross-examination.  Thus, whatever evidentiary value they had was of little or no consequence.  However, in spite of the inconsistencies, the Tribunal did make an adverse finding with respect to Ms. Skytte’s credibility.  In her reasons the member stated that “these inconsistencies cast doubt on Ms. Skytte’s credibility”.  The concern here is that by not going further with that evidence which was, according to the petitioner, central to the Tribunal’s findings, the Tribunal erred in law.  With respect, I must disagree.  This was an evidentiary issue.  It is not an error in law for a trier of fact not to make a finding from each item of evidence, particularly where the evidence in question falls short of proving a fact in issue. 

[26]        It should also be noted that the evidence relating to the telephone call was at most a collateral issue that dealt with a complaint which otherwise would not be admissible for its substantive contents.  The evidence was relevant to the questions of consistency and credibility.  In other words, the only relevance of the telephone call to Ms. Scoffins was that it may have indicated a consistency of conduct.  I pause here to note that in any event the evidence was not at all compelling.  The probative value of that evidence was of limited value. 

[27]        This was a credibility case.  The evidence was not particularly complex.  It is clear that the Tribunal member considered the frailties and inconsistencies in the evidence.  In fact, referring to the telephone issue, she did draw an adverse inference concerning Ms. Skytte’s credibility.  However, in spite of that conclusion she found in her favour.  There was ample evidence from which the Tribunal could have concluded that the complaint was justified.  The Tribunal relied on Mr. Danroth’s own testimony to conclude that Ms. Skytte had been terminated because of her pregnancy.  To put it in another way, his evidence made the case for the respondent Ms. Skytte.   Thus, based on his evidence alone, it was open for the Tribunal to conclude that the employer had breached s. 13 of the Code.  In my view, the Tribunal fairly and objectively assessed Ms. Skytte’s evidence and took particular note of the so-called frailties or weaknesses.  In fact, the Tribunal went to some length to assess her credibility in relation to the petitioner’s witnesses.  The matters of credibility raised by the petitioner were clearly within the jurisdiction of the Tribunal. 

[28]        There was an obvious conflict in the evidence of Ms. Skytte and that of Mr. Danroth and Mr. Vincent.  After having read the testimony of all witnesses, as well as the reasons of the Tribunal, I cannot conclude that the Tribunal’s findings were patently unreasonable.  As the Supreme Court of Canada said in both Ross, supra, and Gould, supra, courts have adopted the principle of deference to human rights tribunals in their fact-finding functions.  In this case, even if the lesser test were to be applied, it cannot be said that the findings both material and collateral were in any sense unreasonable.  It is no function of this Court to substitute its own findings of fact for that of the Tribunal, which was in a far better position to assess credibility than the Court. 

[29]        The next issue to consider is whether the Tribunal member made an error in law by misdirecting herself on the applicable standard of proof.  On that issue the Tribunal member stated as follows:

Here Ms. Skytte must prove that it is more likely than not that her pregnancy was a factor in the termination of her employment.

 

[30]        In order to prove a complaint under the Human Rights Code, the onus is on the complainant to prove its case on the civil standard of a balance of probabilities.  In the circumstances there was no misdirection.

[31]        For these reasons the petition must be dismissed.  Costs follow the event. 

“W.T. Oppal, J.”
The Honourable Mr. Justice W.T. Oppal