IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Bartman v. Twohey et al.,

 

2004 BCSC 1211

Date: 20040916
Docket: L032924
Registry: Vancouver

Between:

Eugene Bartman and Dr. E.O. Bartman Inc.

Petitioners

And

Nancy Twohey and British Columbia Human Rights Tribunal

Respondents


Before: The Honourable Mr. Justice Holmes

Reasons for Judgment

Counsel for the Petitioners:

David A. Goult

Counsel for the Respondent, Nancy Twohey:

Jason B. Gratl

Counsel for the Respondent, British Columbia Human Rights Tribunal:

Katherine A. Hardie

Date and Place of Hearing:

January 26-28, 2004

 

Vancouver, B.C.

[1]            The petitioners apply pursuant to the provisions of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 for judicial review of a decision of the British Columbia Human Rights Tribunal (“the Tribunal”) made September 8, 2003.

[2]            The individual petitioner is a psychiatrist, and the corporate petitioner his professional corporation.  The respondent was the petitioner’s medical office assistant from January 1990 until March of 1997.

[3]            This matter originates with a complaint filed by the respondent with the then existing British Columbia Human Rights Commission alleging that the petitioner had sexually harassed her during 1996, and that he had used hypnosis without her knowledge or consent in order to further his sexual interest in her.

[4]            The Human Rights Commission referred the complaint to the Tribunal for a hearing which was held over twelve days in April 2000, and March and April 2002.

[5]            The Tribunal member who heard the first five days of evidence which included the evidence of the parties, the lay witnesses, and the respondent’s treating psychiatrist was unable to continue with the hearing due to illness.  The parties agreed to have the hearing continue with the evidence heard by the original Tribunal member with the prior evidence received in transcript form and the new evidence mainly of experts on hypnosis heard viva voce.

[6]            The Tribunal found the respondent established on a balance of probabilities that the Petitioner’s “…continued advances, starting at the Christmas party in 1995, constitute sexual harassment contrary to s. 13(1)(b) of the Code.”  The Tribunal found the respondent failed to prove on a balance of probabilities that the petitioner had hypnotized her to facilitate his sexual harassment of her and that complaint was dismissed.

[7]            The petitioner now seeks an order quashing the decision of the Tribunal finding he sexually harassed the respondent.

GROUNDS

[8]            The grounds for the application are:

(a)   the Tribunal misapprehended and/or misapplied the law in finding that contact initiated by the respondent constituted harassment by the petitioner;

(b)   the Tribunal unreasonably found that certain of the petitioner’s impugned conduct was unwelcome;

(c)   the Tribunal unreasonably found that all or most of the petitioner’s impugned conduct was sexual; and

(d)   the Tribunal made findings of credibility against the petitioner without any or any proper evidentiary basis.

STANDARD OF REVIEW

[9]            There are three standards of review of the Tribunal’s decisions:

(1)   “correctness”, which allows the Court to intervene if it disagrees with the decision under review;

(2)   “reasonableness simpliciter”, i.e. whether the evidence, viewed reasonably, is capable of supporting the findings or inferences;

(3)   “patent unreasonableness”, the most deferential standard of review.

GENERAL PRINCIPLES

[10]        Assessing the standard of review applicable to review of an administrative tribunal’s decision involves determination of legislative intent.  Whether the legislature intended to leave an issue to the exclusive jurisdiction of the tribunal must be considered.  [Pushpanathan v. Canada (Minister of Employment & Immigration), [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193, ¶26]

[11]        A determination of the appropriate level of deference to be accorded each issue under review involves employment of a pragmatic and functional approach.  The appropriate level of deference dictates the standard of review applicable:  patent unreasonableness, reasonableness simpliciter, or correctness. [Ryan v. Law Society (New Brunswick), [2003] 1 S.C.R. 247, 223 D.L.R. (4th) 577, ¶1]

[12]        There are four relevant factors in determining the applicable standard of review:

(a)   the presence or absence of a privative clause, or a statutory right of appeal,

(b)   the expertise of the tribunal relative to the court,

(c)   the purpose of the statute,

(d)   the nature of the problem.

[Dr. Q. v. College of Physicians & Surgeons (British Columbia), [2003] 1 S.C.R. 226, 11 B.C.L.R. (4th) 1, ¶26]

FACTUAL DETERMINATIONS OF THE TRIBUNAL

[13]        The petitioner alleges error in several of the determinations of the Tribunal, including:

(a)   the Respondent did not take the petitioners hand when they left Stearman Beach [¶226 of Decision],

(b)   the petitioner’s explanation that he was at the respondent’s desk was because there was more dictation was unreasonable [¶218 Decision],

(c)   the petitioner was overly friendly [¶220 Decision],

(d)   the petitioner’s “love sick sighs” around the respondent [¶220 Decision].

[14]        The petitioner also alleges the Tribunal erred in respect of findings of credibility between the petitioner and the respondent.

[15]        The petitioner in arguing the Tribunal was unreasonable in its ultimate finding of sexual harassment challenges several determinations that are factual in nature.  These findings include:

(a)   that a poem was a part of the Petitioner’s continued pursuit of the Respondent [¶222/3 Decision]

(b)   regarding a meeting on the Pier, that the petitioner’s continued request for contact was inappropriate [¶223/4 Decision]

(c)   regarding an exchange of post-it notes there was no reasonable explanation why the petitioner continued to pursue discussions with the respondent other than to continue his pursuit of her [¶225 Decision]

(d)   the petitioner used his need for keys as an excuse to facilitate contact with the respondent [¶229/30 Decision]

(e)   regarding a poem the petitioner read to the respondent she “…would not have laughed given her previous statements to the petitioner about her lack of feelings for him.”  [¶230/31 Decision]

(f)   the petitioner invited the respondent to dinner [¶236 Decision]

(g)   the petitioner attended at the office November 29, 1996 in order to have direct contact with the respondent [¶238 Decision].

CONSIDERATION OF THE RELEVANT FACTORS

1. Presence or Absence of a Privative Clause or Statutory Right of Appeal

[16]        The presence of a full privative clause is a clear indication that deference is owed to a tribunal’s decision, and the presence of a right of appeal suggests less deference is owed.  The absence of a privative clause however does not compel less deference if other factors point to a more deferential standard of review.  [Pushpanathan, supra, ¶30]

[17]        The Human Rights Code, R.S.B.C. 1996, c. 210, contains neither a privative clause or a right of appeal.  In Reid v. Vancouver Police Board, 2003 BCSC 1348, at ¶66 Garson J. in considering a decision under the Code that involved a question of mixed fact and law held that the absence of both a privative clause and a right of appeal rendered this factor neutral in determining the applicable standard of review.

[18]        Historically judicial review of findings of fact even in the absence of a privative clause has been limited to errors of law where there is no evidence or where there is jurisdictional error with a patently unreasonable finding.

2.    Relative Expertise

[19]        Relative expertise is the primary factor in determination of the applicable standard of review.  [Canada (Director of Investigation & Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748, 144 D.L.R. (4th) 1, ¶50]  Consideration must be given to the expertise of tribunals, the expertise of the court relative to the tribunal, and the nature of the specific issue in relation to the expertise.

[20]        The Supreme Court of Canada has held curial deference to human rights tribunals regarding finding of fact is appropriate with recognition of a tribunal’s superior expertise of fact-finding and adjudication in a human rights context.  The expertise of human rights tribunals in making findings of discrimination due to the fact intensive nature involved is also recognized.  [Canada (Attorney General) v. Mossop (1993), 100 D.L.R. (4th) 658 at 675, [1993] 1 S.C.R. 554; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, 133 D.L.R. (4th) 1, ¶28-29]

3.    Purpose of the Statute

[21]        The purposes of the Code are stated in Section 3.  The dispute here is mainly adjudicative as between the principal parties and does not deviate substantially from the normal role of the courts.  This suggests a lesser degree of deference.

4.    Nature of the Problem

[22]        It appears that at issue here are pure findings of fact and fact intensive findings of mixed fact and law.  Less deference will be accorded a tribunal’s findings of law.  More deference will be accorded a tribunal’s pure findings of fact.  On findings of mixed fact and law more deference is accorded findings that are fact intensive and less if law intensive.  [Dr. Q. v. College of Physicians & Surgeons (British Columbia), supra, ¶34; Ross v. New Brunswick School District No. 15, supra, ¶29]

[23]        The Petitioner agrees generally that courts would defer to human rights tribunals on questions of fact, but in this specific case he urges a lesser deference be indicated because the tribunal member who made the decision did not hear all the evidence viva voce.

[24]        In Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571, 133 D.L.R. (4th) 449, ¶4, Iacobucci J. commented on the standard of review applicable in circumstances where the evidence was entirely by admission and agreement .

… In these circumstances, where the issue is not the facts themselves but rather the inferences to be drawn from agreed facts, the policy considerations which ordinarily militate in favour of deference are significantly attenuated: see New Brunswick (Workmen's Compensation Board) v. Greer, [1975] 1 S.C.R. 347.

[25]        I agree with counsel for the Tribunal the present case is significantly different to Gould.  The evidence here was not by admission or agreement.  There was ten days of testimony by several witnesses.  The Tribunal member heard five days of the evidence of expert witnesses viva voce, and had before her the transcript of the evidence of all the earlier evidence of witnesses and the exhibits.

[26]        The review in Gould was by way of appeal rather than judicial review.

[27]        Gould involved drawing inferences from agreed facts.  The present case involves disputed evidence requiring the institutional expertise of the tribunal for fact finding and adjudication within the human rights context.  [Dr. Q. v. College of Physicians & Surgeons (British Columbia), supra, ¶29]

[28]        The Board of Adjudication in Gould was not a permanent standing tribunal but was formed to respond to specific complaint.  Garson J. in Reid v. Vancouver Police Board, supra, ¶70, observed “The creation of the Tribunal as a permanent adjudicative body under the Act is itself a legislative statement of expertise”.

[29]        In Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 211 D.L.R. (4th) 577, at ¶15-18 the Supreme Court of Canada canvassed the principles that underlie the deference accorded the fact finder upon an appellate review.  The principles include limiting the number, length, and cost of appeals; promoting the autonomy and integrity of trial proceedings, and a recognition of the trier of fact’s expertise and advantageous position.

[30]        The advantageous position not only relates to the hearing of viva voce evidence but also encompasses “extensive exposure to the evidence” and “familiarity with the case as a whole”.  [Housen, supra, ¶18]

[31]        The Court affirmed there is but one standard of review on appellate review of findings of fact regardless of whether a factual finding is grounded in credibility or inferences from findings of fact.  [Housen, supra, ¶24-25]

[32]        In St-Jean c. Mercier, [2002] 1 S.C.R. 491, 209 D.L.R. (4th) 513, the Supreme Court of Canada upheld the principle that an appellate court should not interfere with the trial court’s findings of fact absent palpable and overriding error.  The circumstance was a trial judge who fell ill before giving his decision and another judge gave judgment based on a review of the transcript.  [¶36, ¶41-42]

[33]        Here, as in St. Jean, the obligation is upon the Tribunal member to make a decision on all the evidence before her, and she must be “presumed to have diligently discharged that duty”.  [supra, ¶42]

[34]        I find no basis to depart from the view that the courts will accord a human rights tribunal considerable deference with respect to its fact finding role and that the applicable standard is patent unreasonableness.

PATENT UNREASONABLENESS

[35]        The standard of patent unreasonableness requires the court not interfere unless the tribunal’s decision is “clearly irrational” or, in the case of a finding of fact, based on no evidence.  [Ryan, supra, ¶52; Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, 144 D.L.R. (4th) 385, at ¶41-48]

[36]        In Aquasource Ltd. v. British Columbia (Information & Privacy Commissioner) (1996), 45 Admin.L.R. (2d) 214, aff’d (1998), 58 B.C.L.R. (3d) 61 (C.A.), ¶13 this court held that if there is any evidence upon which the factual conclusion could have been reasonably reached, the court cannot interfere.  A finding of fact may be interfered with only if it is both instrumental to the decision and was reached on the bases of no evidence.

[37]        The Petitioner alleges the Tribunal erred in determining he sexually harassed the Respondent contrary to s. 13 of the Code.

[38]        This is a question of mixed law and fact and the parties are agreed the standard of review on such questions is reasonableness simpliciter.  [Ross, supra, ¶29; Mahmoodi v Dutton (2001), 95 B.C.L.R. (3d) 186, 2001 BCSC 1256, ¶31, ¶65; Oak Bay Marina Ltd. v. British Columbia (Human Rights Commission) (2002), 5 B.C.L.R. (4th) 115, 217 D.L.R. (4th) 747, ¶13]

[39]        Reasonableness simpliciter is the middle ground of deference falling between patent unreasonableness and correctness.  The onus is upon the party seeking review to show the decision was unreasonable.

[40]        A review court should give “respectful attention” to the reasons of the reviewed tribunal and whether the decision is supported by reasons that can withstand a “somewhat probing examination”.  The reviewing court need not find the tribunal’s reasons compelling, nor need all elements of the reasoning meet the test.  [Ryan, supra, ¶47-49, ¶54-56; Southam, supra, ¶56-60, ¶76-80]

[41]        A reviewing court should accord significant weight to those views of the tribunal regarding matters of which they have considerable expertise.  [Ryan, supra, ¶50; Southham, supra, ¶62]

[42]        The Petitioner argues on an individualized approach that each of the events reviewed by the Tribunal in reaching its decision do not reasonably constitute sexual harassment.

[43]        The task of the court however is to look to the Reasons of the Tribunal in support of the finding of sexual harassment and consider whether the decision viewed as a whole meets the standard of reasonableness simpliciter.  [Ryan, supra, ¶54-56]

LAW OF SEXUAL HARASSMENT

[44]        The decision of the Adjudicator sets out the authorities that correctly define the law applicable to sexual harassment at ¶198-206.  The petitioner does not take exception to the outline and in fact appears to repeat and adopt it in his submission.

[45]        In its broad context for conduct to be categorized as sexual harassment

(a)   it must be of a sexual nature

(b)   be unwelcome

(c)   detrimentally affect the work environment or lead to adverse job related consequences for the victim.

[Janzen v. Platy Enterprises Ltd., [1989] 4 W.W.R. 39, [1989] 1 S.C.R. 1252]

FINDING OF SEXUAL HARASSMENT

[46]        The complainant’s allegation of sexual harassment commences at a 1995 office Christmas party and continues through to the period the petitioner was asked by his partners to leave the office at the end of 1996.

[47]        The Adjudicator dealt with evidence concerning the allegations in chronological order to reach her decision.  Counsel based their argument on the same progression.

[48]        In order to follow the argument of counsel and give substance to the basis for the decision I have reviewed the transcript of the hearing to form as did the Adjudicator the context of the whole of the evidence given by the witnesses.

[49]        I also reviewed in detail the petitioner’s objection to specific findings of fact, and of mixed law and, said to arise in the Adjudicator’s decision.  The Adjudicator supports her decision by a logical chronological sequence of major events of relevance.

CHRISTMAS OFFICE PARTY 1995

[50]        The petitioner was overly attentive and complementary to the complainant, rubbed her leg and played “footsie” with her.  He whispered in, and kissed her ear.  He made comment of sexual innuendo.  The complainant was embarrassed by his conduct.

[51]        The petitioner apologized the following day, and it was held there was no apparent immediate adverse affect on the complainant.

[52]        The Christmas party incidents could constitute sexual harassment.  The Adjudicator found if they were the only incidents of sexual harassment the complaint could have been dismissed because of the acknowledgement made of the inappropriate conduct and the apology he made.  The Christmas party however cannot be viewed in isolation.  On the evidence it became but the first in a continuing series of incidents.  When viewed in the context of the whole of the evidence it was part of the sexual harassment alleged.

[53]        The Adjudicator found the petitioner spent an excessive amount of time around the complainant’s work area and that time was not exclusively work related.  The complainant, supported by another employee testified the petitioner was becoming overly friendly.

[54]        The petitioner admits that during this period he became infatuated with the respondent.  The complainant testified he was making “love sick sighs” around her.

[55]        The Adjudicator’s findings as to credibility and the inferences she draws from the evidence were both reasonable and supportable.

[56]        The conduct of the petitioner found by the Adjudicator seems reasonable and consistent with proclamations of love which next occurred in July.

JULY 1996

[57]        The petitioner’s advances became more overt.  He invited the complainant to lunch.  She thought it was work related but clearly that was not the petitioner’s intent.  The petitioner told her he was unhappy in his marriage and that he had developed strong feelings for her.

[58]        The respondent told him his feelings were not reciprocated.  That should have ended the matter, but it did not.

[59]        The following morning the respondent arrived at work to find a poem written by the petitioner on her desk.  The petitioner suggests it was to thank the complainant for being so straightforward about her feelings.  It was certainly not apparent that was the meaning.

[60]        When the complainant failed to respond to receipt of the poem the petitioner decided he needed to speak to her privately and he initiated a series of post-it note messages that ultimately led to them meeting on a nearby Pier.  The meeting lasted 30 minutes in the middle of a work day.

[61]        In the afternoon more post-it notes are exchanged including one with the petitioner’s declaration of love for the complainant.  He advised her that he was not going to leave on his holidays if she was “not feeling fine”.

[62]        The Adjudicator considered the petitioner’s conduct was a continuation of his pursuit of the complainant and that appears a reasonable inference to be drawn from the evidence.

[63]        The fact the complainant “responded” to post-it notes and requests for meetings was certainly not an indication she was welcoming the continuing attention of the petitioner.

[64]        The final incident of the day concerns the parties meeting at Stearman Beach.  The petitioner places reliance on this meeting and the evidence of the petitioner is that at the conclusion of the meeting the complainant took his hand in hers as they walked to his car.  The petitioner takes the position that this was a sign that she would now be receptive to his advances.

[65]        The Adjudicator found that in context this meeting was a continuation of the petitioner’s attempt to continue contact.  That day the petitioner had presented her with a poem quite capable of being interpreted of his need for her.  He then insisted on a meeting lasting 30 minutes for him to explain the poem was only to thank her for being forthright.  There followed another series of post-it communications which included one expressing his love for her and finally the dramatic announcement he would not go on his holiday if she wasn’t feeling fine.

[66]        The Adjudicator found that one reason the complainant appeared “upset about something” was because of the continuing unwelcome advances and attention by the petitioner, her employer.

[67]        The petitioner testified that on leaving the meeting at Stearman Beach the complainant took his hand in hers.  The Adjudicator chose not to accept his evidence as credible on that point.

[68]        The Adjudicator found that it defied “common sense that she would initiate some contact which could be viewed by … as a sexual overture”.

[69]        It did not accord with the earlier events that had occurred nor the petitioner’s evidence was that minutes later while driving her home the complainant did not respond to his attempt to initiate physical contact by reaching out with his hand to her.

[70]        There would appear ample facts before and after the Stearman Beach meeting to support the improbability of her taking his hand in any context that could be interpreted as announcing his advances were now being welcomed.

[71]        The petitioner relies on his evidence of her taking his hand not being challenged or contradicted by other evidence.  The complainant has no memory of the event, and in that sense does not deny it.  The petitioner was not challenged in cross-examination as to the truth of this evidence, and the petitioner relies on Browne v. Dunn (1894), The Reports 67 (1894), requiring that before the evidence of a witness can be impeached he must be given notice, and a failure to do so leaves the evidence unchallenged, and it should therefore be accepted as conclusive.

[72]        Counsel for the respondent relies on the passage of Lord Morris in the judgment at page 79, as quoted with approval by the Supreme Court of Canada in Palmer and Palmer v. R. (1979) 50 C.C.C. (2d) 193, [1980] 1 S.C.R. 759, at ¶40:

In my opinion, the effect to be given to the absence or brevity of cross-examination depends upon the circumstances of each case.  There can be no general or absolute rule.  It is a matter of weight, to be decided by the tribunal of fact; see Sam v. C.P. Ltd. (1976), 63 D.L.R. (3d) 294 (B.C.C.A.), and cases cited there by Robertson J.A. at pp. 315-17.  In the present case, Douglas Palmer was cross-examined extensively.  It seems to me the circumstances are such that it must have been foreseen that his credit would be attacked if he testified to his innocence.  In any event, this was made plain when he was cross-examined.  The trial judge gave a careful explanation for his acceptance of the story of Ford and his rejection of that of Douglas Palmer.  I cannot give effect to this ground of appeal.

[73]        I accept that in circumstances here it “…is a matter of weight to be decided by the tribunal of fact.”  The Adjudicator, being fully apprised of all the facts concerning this evidence, was entitled to decide on its acceptance.

AUGUST 1996

[74]        While on vacation the Petitioner forwarded dictation tapes for transcription by the complainant.  They contained inappropriate comments of his feelings and expressions “wishing she were there”.  They were held to be unwelcome and of a sexual nature.

[75]        The Petitioner’s position that the “hand holding” at Stearman Beach made these comments welcome was rejected.  The hand holding, even if accepted by the Adjudicator, would not in the overall context of the evidence support there had been a reversal of the complainant’s rejection of the Petitioner’s advances to indication of desire for the personal relationship he proposed.

[76]        In August 1996 the Petitioner returned from his vacation on a week-end to find his office had been re-keyed because of a break in.  The Petitioner received a key from one of his partners that provided him with access to the office but he also contacted the complainant to get another key from her.  The Adjudicator found the evidence did not support a logical reason for his need of the second key and inferred it was because of a desire for contact with the complainant.  Evidence of the office lay-out and access to the complainant’s work station is evidence that was considered by the Adjudicator and supports the inference she drew.

[77]        In August, while still on holidays, the Petitioner again asked the complainant to lunch.  The Adjudicator rejected the Petitioner’s explanation it was compatible with them being friends.  He certainly had not taken the complainant to lunch in like manner previously to 1996.  The Petitioner recites another poem he had written earlier about his love for her.  The Adjudicator believed the evidence of the complainant she did not find this conduct amusing, and if she laughed it was because of her embarrassment.

[78]        While the Adjudicator rejected the suggestion that any overt sexual physical contact occurred at this “beach lunch” she accepted the evidence supports something more than an employment relationship.

[79]        The evidence was the complainant wanted to end the lunch and get back quickly to the office.  The Adjudicator accepted that shortly after returning to the office the Petitioner came in unexpectedly, and the complainant was crying and the staff member with her gave him “a glowering look”.  The evidence fairly supports that the adverse affect of the lunch meeting should have been obvious to him.

[80]        The Petitioner tried again in August to invite her to lunch.  It angered the complainant.  There were no more lunch invitations.  There were no further meeting outside the office.

[81]        In this period there was no contact outside the office.  The Petitioner felt there was something wrong with the complainant.  He decided to help by trying to amuse her, encourage contact via the message machine, and give her an amusing Christmas gift.

[82]        The Adjudicator considered evidence and exhibits concerning the nature of faxes and messages between the parties.  It appears that some pages of the “message book” had been removed.

[83]        The Adjudicator in general found that the tenor of messages containing personal comment or pleasantries appeared to change significantly after June of 1996.  The Adjudicator accepted that a reasonable inference to be drawn was that the complainant was signalling after June 1996 that she was not interested in a personal relationship.

CONCLUSION

[84]        I find on review that the conclusion of the tribunal that the petitioner sexually harassed the complainant contrary to s. 13 of the Code is reasonable and well supported on the evidence.

[85]        The petitioner has not shown the Adjudicator’s findings of fact were patently unreasonable.

[86]        The Adjudicator was entitled to the findings of credibility she made as well as the findings of fact and inferences she drew from proven fact.

[87]        The petition is dismissed.  The respondent is entitled to Costs on scale 3.

“R.R. Holmes, J.”
The Honourable Mr. Justice R.R. Holmes