2006 BCSC 43err1.doc Cariboo Chevrolet Pontiac Buick GMC Ltd. v. Becker

Before: The Honourable Mr. Justice Goepel

(In Chambers)

Reasons for Judgment

Counsel for the Petitioner:	T.F. Beasley J. Kwok
Counsel for the Respondent:	J.T. Doulis
Counsel for the British Columbia Human Rights Tribunal:	D.E. Paluck
Date and Place of Hearing:	August 22, 23, 24 and 25, 2005
	Vancouver, B.C.
Written Submissions:
British Columbia Human Rights Tribunal:	October 31, November 8 and December 9, 2005
Respondent:	October 31 and December 9, 2005
Petitioner:	November 8 and December 1, 2005

INTRODUCTION

[1] From September 1, 2001, until September 22, 2003, Cariboo Chevrolet Pontiac Buick GMC Ltd. (“Cariboo Chev”) employed Mickie Becker in the position of service manager. After her employment was terminated Ms. Becker filed a complaint under the Human Rights Code, R.S.B.C. 1996, c. 210 (the “Code”) with the British Columbia Human Rights Tribunal (the “Tribunal”). Cariboo Chev applied to dismiss Ms. Becker’s complaint. In a decision dated August 13, 2004, the Tribunal Member denied that application: Becker v. Cariboo Chev (No. 2), 2004 BCHRT 80 (the “Dismissal Decision”).

[2] Following the Dismissal Decision, Ms. Becker applied to the Tribunal for disclosure of certain documents. Cariboo Chev opposed that application. In a decision dated October 8, 2004, the Tribunal Member ordered Cariboo Chev to disclose the documents sought in Ms. Becker’s application: Becker v. Cariboo Chev (No. 3), 2004 BCHRT 139 (the “Disclosure Decision”).

[3] On December 7, 2004, Cariboo Chev commenced this proceeding under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 to quash and set aside both the Dismissal Decision and the Disclosure Decision. They also seek an order dismissing Ms. Becker’s complaint to the Tribunal.

BACKGROUND

[4] Cariboo Chev is a car dealership in Williams Lake, British Columbia, which sells and services new and used motor vehicles including Chevrolet, Oldsmobile, Pontiac, Buick and GMC products. It has been in business for more than 30 years.

[5] Ms. Becker has worked in the automotive industry for approximately 25 years. On or about August 9, 1995 Cariboo Chev hired Ms. Becker as a parts-counter person.

[6] On or about September 1, 2001 Cariboo Chev promoted Ms. Becker to the position of service manager. Ms. Becker soon learned she was being paid less than the previous service managers, both of whom were male.

[7] During the course of her employment Ms. Becker’s salary remained a sore point and was the subject of discussion during various performance reviews. On May 16, 2003, following a performance review, Ms. Becker called the Tribunal and was told it was discriminatory for her employer to pay her less than males who performed substantially the same job.

[8] On May 20, 2003 Ms. Becker met with Cariboo Chev’s general manager, Tammy Tugnum and owner, Brian Garland. Ms. Becker surreptitiously recorded a portion of that meeting. At the meeting she informed Mr. Garland and Ms. Tugnum that she had called the Tribunal and had been told she had a strong case, if she was being paid less than her male counterparts for doing the same job. There was some discussion that suggested that if she brought a complaint to the Tribunal, her job might be in jeopardy. The end of the meeting was not recorded. Ms. Becker continued to work at Cariboo Chev as service manger for several more months.

[9] On or about September 17, 2003 several service staff came to Ms. Tugnum with complaints about Ms. Becker. On September 18, 2003 Ms. Tugnum suspended Ms. Becker with pay. On September 22, 2003 Ms. Becker’s employment was terminated. It is a matter of dispute whether she was fired or resigned.

[10] On October 2, 2003 Ms. Becker filed a complaint with the Tribunal. She alleged that Cariboo Chev had discriminated against her by:

(a) Paying her a rate of pay less than the rate of pay at which an employee of the other sex was employed for similar or substantially similar work in breach of s. 12(1) of the Code;

(b) Threatening to fire her if she continued to pursue the human rights complaint, in breach of s. 43 of the Code;

[11] On June 1, 2004 Cariboo Chev brought an application to dismiss the complaint. In support of its application, it filed twelve affidavits. Ms. Becker filed an affidavit in opposition. Both sides filed detailed written submissions.

[12] On August 13, 2004 the Dismissal Decision denied the petitioner’s application to dismiss the complaint.

[13] On August 30, 2004 Ms. Becker brought an application for the disclosure of certain documents that she alleged were relevant to the complaint proceedings. In her written submission in support of the application, Ms. Becker’s counsel stated the following:

General Motor’s Customer Satisfaction Index

The Complainant submits that the General Motor’s Customer Satisfaction Index is relevant because it tests the Respondent’s claim that the Complainant was “confrontational, aggressive and uncooperative” with the customers and the potential customers as set out in its Response to the Complaint filed November 14, 2003.

Financial Statements

The Complainant submits that the Financial Statements also tests the Respondent’s claim that the Complainant was “confrontational, aggressive and uncooperative” with the customers and potential customers as set out in its Response to the Complaint filed November 14, 2003. One would assume that this degree of customer dissatisfaction would manifest itself in revenues.

Salary and Benefits of Managers

The Complainant submits that the information and documentation as to the salary and benefit packages of all managers is relevant to her allegations that she was paid less than her male counterparts because of her gender.

[14] Cariboo Chev opposed the application. It submitted the documents were not relevant to the issues raised in the complaint and constituted a fishing expedition. It noted that neither the Customer Satisfaction Index (“CSI”), nor Cariboo Chev’s financial statements were germane to the stated grounds of termination. In regards to the salary and benefits of other managers Cariboo Chev pointed out that it had disclosed those records for current and former service managers. It submitted the salary paid to other managers was not pertinent to the complaint.

[15] On October 8, 2004 the Disclosure Decision granted Ms. Becker’s application for disclosure of the requested documents.

[16] On December 7, 2004 these proceedings were commenced to quash and set aside the two decisions.

APPLICATION OF THE ADMINISTRATIVE TRIBUNAL ACT

[17] Before determining the standard of review which applies to the contested decisions, it must first be determined whether the Administrative Tribunals Act, S.B.C. 2004, c. 45 (the “ATA”), which came into force on October 15, 2004, applies. Both the Dismissal Decision and the Disclosure Decision were handed down prior to the coming into force of the ATA. The petition was filed after the ATA was in force. All parties submitted that the ATA did not apply and the decision should be reviewed under the common law. Alternatively, they each made submissions as to the appropriate standard of review under the ATA.

[18] The applicability of the ATA to Tribunal decisions delivered prior to October 15, 2004, has been the subject of three decisions of this court. In St. James Community Services Society v. Johnston and the British Columbia Human Rights Tribunal, 2004 BCSC 1807, Paris J. concluded that the provisions of the ATA applied because they were procedural in nature and did not change substantive rights. In St. James the decisions under review had been made on June 10 and July 6, 2004. The petition was filed on August 24, 2004.

[19] In HMTQ v. Hutchinson et al, 2005 BCSC 1421, Cullen J. was dealing with the review of a decision made June 28, 2004. The petition was filed July 20, 2004. Cullen J., relying on the St. James case, held that the ATA applied.

[20] In HMTQ v. Bolster & B.C. Human Rights Tribunal, 2005 BCSC 1491, Parrett J. came to a contrary conclusion. In Bolster, the Tribunal decision was issued on April 22, 2004 and the petition seeking judicial review of that decision was filed on June 21, 2004. After referring to Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590 (B.C.S.C.), Parrett J. held he was not obliged to follow the decisions in St. James and Hutchinson because St. James was an oral decision made without citation or analysis of what constitutes a procedural amendment. He found that s. 59 of the ATA was substantive, not procedural, because it altered the standard of review. He concluded at ¶ 68:

In my view, s. 59 to the extent that it alters the standard of review effects substantive change and as such cannot be applied to applications brought prior to its coming into force and the standard of review applicable are those that existed at the time the decision was made and the petition filed.

[21] The three decisions assumed that to apply the ATA would be to give it retrospective effect. In the result those decisions turned on whether the changes in the standard of review are procedural or substantive. Before that issue is considered, it is first necessary in this case, to determine whether applying the ATA would be giving the statute a retrospective effect.

[22] The leading case on the retrospective operation of statutes is Gustavson Drilling (1964) Ltd. v. M.N.R., [1977] 1 S.C.R. 271. In Gustavson, the Supreme Court of Canada outlined the general rule regarding retrospective statutes. Dickson J., for the majority, stated at p. 279:

… The general rule is that statutes are not to be construed as having retrospective operation unless such a construction is expressly or by necessary implication required by the language of the Act. An amending enactment may provide that it shall be deemed to have come into force on a date prior to its enactment or it may provide that it is to be operative with respect to transactions occurring prior to its enactment. In those instances the statute operates retrospectively.

[23] The test for retrospectivity, also referred to as retroactivity, has been discussed by Professor Côté in his text, The Interpretation of Legislation in Canada, 3rd ed. (Scarborough, Ont.: Carswell, 2000). At p. 128, he states:

What Canadian jurists lack at the present time is not a definition of retroactivity, but a relatively certain and rational method of identifying instances of retroactive effect. To answer this need, we propose a method of characterization that is largely inspired by the work of Professor Jacques Heron.

A retroactive effect can be defined as follows: there is retroactive effect when a new statute applies in such a way as to prescribe the legal regime of facts entirely accomplished prior to its commencement.

[24] Juriansz J. adopted Professor Côté's analysis in Rive v. Newton (2001), 55 O.R. (3d) 175 (Sup. Crt.), affirmed [2003] O.J. No. 398 (QL) (C.A.), commencing at ¶ 30:

Prof. Côté, at page 128ff of his text The Interpretation of Legislation in Canada, 3rd ed. (Scarborough, Ont.: Carswell, 2000) proposes a three-stage analysis to determine whether legislation has a retroactive effect: identification of legal facts, temporal positioning of the facts and characterization.

(1) Identification of Legal Facts

The first step in the analysis is to identify the legal facts that generate the legal consequences of the statutory provision. Prof. Côté distinguishes between momentary facts, such as the crime of theft, which generally only lasts a moment, continuing facts, such as possession of a stolen item, and a series of successive facts, such as repeated infractions that result in a more severe sentence.

If we consider subs. 165(1) of the Excise Tax Act and para. 9(2)(c) of the Schedule together, the imposition of GST is based on successive facts. Simplifying the analysis for the purpose of this case, it may be said that the receipt of a supply of real property by an individual will be taxable if:

(i) there is a supply of a part of a parcel of land, and

(ii) the parcel of land was previously subdivided or severed.

(2) Temporal Positioning of the Facts

The second stage of the analysis consists of situating in time the concrete facts that correspond to the legal facts described hypothetically by the statute. A statute may come into force before, during or after the legal facts. Prof. Côté refers to the situation of "pending facts" where some of the legal facts occur before the new statute's commencement and some occur after. That is the case here. The previous subdivisions of the land took place before the statute's commencement, but the supply of the land from the defendant to the plaintiff took place after its commencement.

(3) Characterization of Application of the Statute

Prof. Côté states, at p. 130, the general proposition:

"There is retroactive effect when the new statute defines the legal regime of a fact or group of facts that arose entirely before its commencement." He goes on to make clear that there is no retroactive effect in a situation involving successive facts unless all of the facts arose prior to the statute's commencement. He says, at p. 138, "[a] statute is not applied retroactively when the basis of its application partially occurs before its commencement and partially after."

[25] In this case, one of the facts necessary for the statute's application, namely the petition for Judicial Review, took place after the statute's commencement. Applying the ATA in this case does not give the statute a retrospective effect. St. James, Hutchinson and Bolster are distinguishable. In those cases the petitions had been filed prior to the ATA coming into force and as found by Parrett J. at ¶ 60 those petitioners were entitled “to the benefits of that decision subject to the rights of review that existed at the time the[se] proceedings were commenced” (My Emphasis). I find that the ATA applies and the decisions are to be reviewed pursuant to its provisions.

STANDARD OF REVIEW

[26] Section 59 of the ATA reads as follows:

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,

(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.

[27] Cariboo Chev submits the Tribunal Member erred in law and the decisions are to be determined on a standard of correctness pursuant to s. 59(1). Ms. Becker and the Tribunal submit that both the Dismissal Decision and the Disclosure Decision are fundamentally discretionary in nature, and the decisions should not be set aside unless they are found to be patently unreasonable.

[28] In order to determine the standard of review in regards to the respective decisions, the individual decisions must be reviewed in further detail and a determination made as to the standard of review which applies to each. That standard must then be applied to the respective decisions.

THE DISMISSAL DECISION

A. Statutory Framework

[29] Cariboo Chev sought to have the complaint dismissed on the following grounds:

(a) The acts or omissions alleged in the complaint do not contravene the Code, s. 27(1)(b);

(b) There is no reasonable prospect that the complainant will succeed, s. 27(1)(c); and

(c) Proceeding with the complaint or that part of the complaint would not further the purposes of the Code, s. 27(1)(d)(ii).

[30] Section 27 of the Code states in part:

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;

(d) proceeding with the complaint or that part of the complaint would not

(i) benefit the person, group or class alleged to have been discriminated against, or

(ii) further the purposes of this Code;

[31] Ms. Becker’s complaints were made under s. 12, 13 and 43 of the Code. Those sections are as follows:

12(1) An employer must not discriminate between employees by employing an employee of one sex for work at a rate of pay that is less than the rate of pay at which an employee of the other sex is employed by that employer for similar or substantially similar work.

(2) For the purposes of subsection (1), the concept of skill, effort and responsibility must, subject to factors in respect of pay rates such as seniority systems, merit systems and systems that measure earnings by quantity or quality of production, be used to determine what is similar or substantially similar work.

(3) A difference in the rate of pay between employees of different sexes based on a factor other than sex does not constitute a failure to comply with this section if the factor on which the difference is based would reasonably justify the difference.

(4) An employer must not reduce the rate of pay of an employee in order to comply with this section.

(5) If an employee is paid less than the rate of pay to which the employee is entitled under this section, the employee is entitled to recover from the employer, by action, the difference between the amount paid and the amount to which the employee is entitled, together with the costs, but

(a) the action must be commenced no later than 12 months from the termination of the employee's services, and

(b) the action applies only to wages of an employee during the 12 month period immediately before the earlier of the date of the employee's termination or the commencement of the action.

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.

(2) An employment agency must not refuse to refer a person for employment for any reason mentioned in subsection (1).

(3) Subsection (1) does not apply

(a) as it relates to age, to a bona fide scheme based on seniority, or

(b) as it relates to marital status, physical or mental disability, sex or age, to the operation of a bona fide retirement, superannuation or pension plan or to a bona fide group or employee insurance plan.

(4) Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.

43 A person must not evict, discharge, suspend, expel, intimidate, coerce, impose any pecuniary or other penalty on, deny a right or benefit to or otherwise discriminate against a person because that person complains or is named in a complaint, gives evidence or otherwise assists in a complaint or other proceeding under this Code.

B. Evidentiary Background

[32] In regards to the complaint under s. 12, Ms. Becker alleged that she was paid less than her predecessors for similar or substantial work. Pursuant to s. 12(1) of the Code, an employer must not discriminate or pay an employee of one sex less than the other. Cariboo Chev relied on s. 12(3) and submitted that the difference in the rate of pay between Ms. Becker and her predecessors was based on factors other than sex.

[33] In regards to the complaint under s. 13, Ms. Becker alleged subsequent to the meeting of May, 2003, in which she advised her employer that she intended to pursue her rights under the Code, the general manager commenced a campaign of harassment and interference which ultimately led to her termination on September 22, 2003. Cariboo Chev submits that Ms. Becker was terminated as a result of complaints made by service department employees. They deny that sex played any role in the decision to refuse to continue to employ her.

[34] In regards to the s. 43 complaint, Ms. Becker submits she was discharged as a result of her threat to pursue her rights under the Code. Cariboo Chev says that s. 43 can only apply if a person is dismissed after that person has complained under the Code. Cariboo Chev says that Ms. Becker made no complaint under the Code until after her termination.

C. Tribunal Decision

[35] The Tribunal Member first considered s. 27(1)(b) and whether the alleged acts or omissions contravened the Code. In that regard, she noted that Ms. Becker alleged that different rates of pay were paid to males and females performing the same job, that she was threatened that she would be fired if she pursued a complaint and that her terms and conditions of employment became worse after the threat was allegedly made, culminating in the termination of her employment. The Tribunal Member concluded that these acts, if proven, would be contraventions of the Code. The Tribunal Member held that the fact that Cariboo Chev put forth an alternative version of events, under which there would be no contravention of the Code, was not relevant to the s. 27(1)(b) analysis. The Tribunal Member held there was no basis for dismissing the complaint under s. 27(1)(b) of the Code.

[36] The Tribunal Member dealt with the allegations under ss. 27(1)(c) and 27(1)(d)(ii) together. Having reviewed the material, she determined that she could not resolve why Ms. Becker was paid less than her male predecessors. Though the Tribunal Member had before her affidavit evidence from Carbioo Chev suggesting that qualifications and previous experience of the male service managers reasonably justified the differences, she was not prepared to decide that question on untested affidavit evidence. In her reasons, the Tribunal Member drew an analogy to Rule 18A and the court’s reluctance in certain circumstances to decide matters summarily.

[37] Similarly, in relation to the complaints dealing with on-going discrimination and termination, the Tribunal Member felt it was not possible to resolve the issues. The Tribunal Member noted that the credibility of a number of witnesses would be very much in issue in determining what happened between the parties. The Tribunal Member noted that while it was possible that Ms. Becker would not succeed in showing that Cariboo Chev treated her poorly because of her sex or the May 20, 2003 discussions, she could not say there was no reasonable prospect of her doing so. As a result, the Tribunal Member refused to dismiss any part of Ms. Becker’s complaint.

D. Standard of Review

[38] I find that different standards of review apply to different portions of the Dismissal Decision. Under s. 27(1)(b) the Tribunal can dismiss the complaint if the acts or omissions alleged, if true, do not contravene the Code. That decision does not require an exercise of discretion, findings of fact or the application of common laws rules of natural justice and procedural fairness. Section 59(1) of the ATA mandates that the decision under s. 27(1)(b) be reviewed on a standard of correctness.

[39] A decision under s. 27(1)(b) is similar to that which must be made under s. 27(1)(a) when the issue is whether the complaint is within the jurisdiction of the Tribunal. In British Columbia v. Crockford (2005), 40 B.C.L.R. (4^th) 313 (S.C.), Joyce J. held the Tribunal Member must first decide if the action complained of falls within its jurisdiction before deciding whether there was an evidentiary basis for the complaint. Such a decision was a question of pure law. Similar reasoning applies to complaints under s. 27(1)(b). If the acts alleged do not contravene the Code, the complaint should be dismissed.

[40] Section 27(1)(c) has been before the court on three occasions since the introduction of the ATA. In Shilander v. BC Human Rights Tribunal, 2005 BCSC 728 Gerow J. held that the initial determination as to whether a complaint alleges sufficient facts to support a claim of discrimination under the Code, involves an exercise of discretion. She concluded that the decision of the Tribunal under s. 27(1)(c) should not be set aside unless it is patently unreasonable. Burnyeat J. came to a similar conclusion in Berezoutskaia v. British Columbia Human Rights Tribunal, 2005 BCSC 1170 as did Williamson J. in Chaloob v. Vancouver Police Department and B.C. Human Rights Tribunal (December 12, 2005), Vancouver. L052251 (B.C.S.C.).

[41] Section 27(1)(c) gives the Tribunal the power to summarily dismiss a complaint with or without a hearing, where the Tribunal is satisfied there is no reasonable prospect the complaint will succeed. It is similar to the power formerly exercised by the Human Rights Commission prior to its elimination: Human Rights Code Amendment Act, 2002, S.B.C. 2002, c. 62. In Lee v. British Columbia (Attorney-General) (2004), 32 B.C.L.R. (4^TH) 1 (C.A.), decided under the former legislation, the court noted that the then s. 27(1)(c) acted as a screening process so that only complaints with sufficient merit would proceed to a hearing. I find that the present section has a similar purpose. The decision involves an assessment of evidence in a specialized area. It is discretionary in nature. Decisions under s. 27(1)(c) should only be set aside if they are patently unreasonable.

[42] Similarly, decisions made under s. 27(1)(d) should be reviewed under the patently unreasonable standard. Decisions under that section are clearly discretionary and grounded in the Tribunal’s expertise.

E. Application of Standard of Review

1. Section 12 Complaint

[43] The foundation of the s. 12 complaint is that Ms. Becker was paid less than her predecessors for similar work. The complaint falls clearly under s. 12 of the Code. The Tribunal Member’s decision not to dismiss the s. 12 complaint under s. 27(1)(b) was correct.

[44] The Tribunal Member’s decision not to dismiss the s. 12 complaint under s. 27(1)(c) or s. 27(1)(d)(ii) was not patently unreasonable. The Tribunal Member had before her conflicting evidence. Based upon that evidence, the Tribunal Member was satisfied that she could not conclude that the complaint was bound to fail. I would not set aside her decision even if the standard of review was one of correctness. A determination that the affidavit evidence does not allow a final conclusion is not an abandonment of decision making responsibility. It instead is recognition of the evidentiary frailties of untested affidavit evidence in which credibility issues are raised.

2. Section 13 Complaint

[45] The foundation of Ms. Becker’s s. 13 complaint is that she was fired on account of her sex. Section 13 prohibits an employer from refusing to continue to employ a person for various reasons including sex. If Ms. Becker can establish she was fired for the reasons she alleges, there would be a contravention of the Code. The Tribunal Member was correct in declining to dismiss the s. 13 complaint under s. 27(1)(b).

[46] In regards to s. 27(1)(c), similar considerations apply as previously discussed in relation to the s. 12 complaint. There is conflicting affidavit evidence as to why the company dismissed Ms. Becker. That evidence has not been tested by cross-examination. In those circumstances, it was not patently unreasonable for the Tribunal Member to refuse to dismiss the complaint.

3. Section 43 Complaint

[47] The issue in regards to the s. 43 complaint is whether or not a claim can be sustained under s. 43 if a complaint is sanctioned before bringing a complaint under the Code. It has been long held that human rights legislation is to be broadly interpreted. Saunders J.A. summarized the authorities in Vancouver Rape Relief Society v. Nixon, 2005 BCCA 601 at ¶ 24:

Courts approach human rights legislation using a broad, liberal and purposive approach to "advance the broad policy considerations underlying it", to interpret the provisions "in a manner befitting the special nature of the legislation", giving it "such fair, large and liberal interpretation as will best ensure the attainment of their objects": Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84 at p. 89, 40 D.L.R. (4^th) 577; Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd.,[1985] 2 S.C.R.536, 23 D.L.R. (4^th) 321; and North Vancouver School District No. 44 v. Jubran (2005), 253 D.L.R. (4^th) 294, 39B.C.L.R. (4^TH) 153, 2005 BCCA 201. At the same time, as observed by Lamer C.J. in University of British Columbia v. Berg, [[1999] 2 S.C.R. 353]], in a passage referred to by La Forest J. in his concurring reasons in Gould v. Yukon Order of Pioneers, [[1996] 1 S.C.R. 571]], at para. 50: "[t]his interpretative approach does not give a board or court license to ignore the words of the Act in order to prevent discrimination wherever it is found."

[48] As previously noted, s. 43 of the Code is as follows:

A person must not evict, discharge, suspend, expel, intimidate, coerce, impose any pecuniary or other penalty on, deny a right or benefit to or otherwise discriminate against a person because that person complains or is named in a complaint, gives evidence or otherwise assists in a complaint or other proceeding under this Code.

[49] Section 1 of the Code contains the following definitions:

“complainant” means a person or group of persons that files a complaint under section 21;

“complaint” means a complaint filed under section 21.

[50] Section 21(1) of the Code reads:

Any person or group of persons that alleges that a person has contravened this Code may file a complaint with the tribunal in a form satisfactory to the tribunal.

[51] Section 28(4)of the Interpretation Act, R.S.B.C. 1996, c. 238 states:

If a word or expression is defined in an enactment, other parts of speech and grammatical forms the same words or expression have corresponding meanings.

[52] The interpretation of s. 43 has been a matter of some dispute at the Tribunal. In Hendrickson v. Long and McQuade Limited (1998), 31 C.H.R.R. D/117 (B.C.H.R.T.) the Tribunal Member held that in order to make out a complaint under s. 43 of the Code, the complainant must establish that a complaint had been filed pursuant to the Code, that the employer knew that the complaint had been filed and that the employer retaliated because the complaint had been filed. Similar conclusions were reached in Bland v. The Board of School Trustees School District No. 60, 2004 BCHRT 97 and Quarrington v. Salt Spring Island Community Services Society, 2003 BCHRT 59. A contrary conclusion was recently reached in Talkkari v. City of Burnaby and others, 2005 BCHRT 68. In that case, the Tribunal Member refused to follow the aforementioned decisions and held that a s. 43 claim could proceed even though no complaint had been filed under the Code when discipline was imposed. Section 43 does not appear to have been the subject of any decision in this court.

[53] A broad reading of the section is not without attraction. Given that the purpose of s. 43 is to protect those whose complain or assist in a complaint under the Code from being punished or retaliated against, if s. 43 is interpreted as only applying to those who have filed a complaint, a person could be without redress for retribution if disciplined before the complaint is made. A broad reading would encourage individuals to address their complaints first to their organizations internal system.

[54] While a broad interpretation may be more consistent with objects of the Code, as noted by Lamer C.J.C. in University of British Columbia v. Berg, [1993] 2 S.C.R. 353 the court does not have license to ignore the words used in the Act. The phrase that must be interpreted is “complains under the Code”. “Complains” is not defined, however, “complaint” and “complainant” are. A “complaint” means a complaint filed under s. 21 of the Code. A “complainant” means a person or group of persons that files a complaint under s. 21. Section 28(4) of the Interpretation Act directs that “complains” must be given a corresponding meaning. This inexorably leads to the conclusion that the phrase “complains under the Code” is limited to persons who have filed a complaint pursuant to s. 21 the Code. In contrast to the B.C. legislation some provinces have provided protection to individuals who have made or may make complaints: The Human Rights Code, S.M. 1987-88, c. 45, s. 20; The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, s. 45.

[55] Ms. Becker made no complaint under the Code before she was terminated. In the circumstances, her complaint under s. 43 cannot succeed and should have been dismissed under s. 27(1)(b). The Tribunal is prohibited from proceeding with that complaint.

THE DISLCOSURE DECISION

A. Statutory Framework

[56] Pursuant to s. 27.3 of the Code, the Tribunal has the power to make rules respecting its practice and procedures in order to facilitate the just and timely resolution of complaints. Pursuant to that section, the Tribunal has enacted certain rules. Rule 18(6) requires that within 30 days of disclosure by the complainant, the respondent must file and deliver to the complainant a response to the particulars of the remedy sought and deliver to the complainant copies of all relevant documents in their possession and control. Cariboo Chev, pursuant to those obligations, disclosed Ms. Becker’s employment file together with information concerning the salary and bonuses paid to her two immediate predecessors and her replacement.

B. Tribunal Decision

[57] Ms. Becker was not satisfied with the disclosure. She sought production of the CSI, Cariboo Chev’s financial statements and the salaries and benefits of various managers in other positions. The application was opposed on the grounds of relevancy.

[58] The Tribunal Member ordered production. In her reasons, she noted that Cariboo Chev’s position was that Ms. Becker was removed from her position as a result of complaints concerning her behaviour and concluded that CSI documents and Cariboo Chev’s financial statements may contain evidence relevant to Cariboo Chev’s stated reason for terminating Ms. Becker’s employment.

[59] In regards to the disclosure of the information paid to other managers, the Tribunal Member concluded that the complaint and Cariboo Chev’s defence of the complaint had put the rates of pay of Cariboo Chev’s management staff directly in issue. The Tribunal Member concluded that given those circumstances the salary and benefit packages of Cariboo Chev’s managers were arguably relevant.

C. Standard of Review

[60] The parties agree that the test for production of documents is one of arguable relevance. That is a legal test. The decision does not require an exercise of discretion, findings of fact, or the application of the common law rules of natural justice and procedural fairness. The standard of review pursuant to s. 59(1) of the ATA is correctness.

D. Application of Standard of Review

[61] The onus is on Ms. Becker to establish that the documents she seeks are arguably relevant to the issues in dispute. The issues are framed by her complaint and the response to the complaint. Ms. Becker’s complaint is that Cariboo Chev breached the Code by paying her less than they paid her male predecessors and that they terminated her employment because she threatened to complain to the Tribunal. The defence to the first claim is that there were reasons other than sex that justified the differential in pay, while the defence to the second claim is that Ms. Becker’s job was terminated for cause after complaints about her conduct. Significantly, Ms. Becker does not allege systemic discrimination of female employees and Cariboo Chev does not suggest that the termination was for financial reasons.

[62] Cariboo Chev has produced Ms. Becker’s entire employment file, together with the particulars of the remuneration paid to those male employees who preceded and succeeded her as service manager.

[63] General Motors of Canada produces and administers a “Service Satisfaction Survey” for General Motors dealers across Canada. As part of the survey, the dealers, including Cariboo Chev, receive completed customer forms from General Motors Canada. Based on those completed survey forms, General Motors Canada issues reports for all dealers across Canada with a cumulative score based on a three month and twelve months average. The documents do not mention individual employees. In my opinion the CSI documents are not arguably relevant. Cariboo Chev has alleged that Ms. Becker was terminated from her position as service manager because of her conduct. It will have to prove its allegation. The CSI documents will be of no assistance to either party in determining that issue. The fact that certain respondents to a survey may have been satisfied with the service they received is not relevant in determining whether Cariboo Chev had grounds to terminate Ms. Becker’s employment.

[64] Similarly there is no correlation between Cariboo Chev’s financial statements and the decision to terminate Ms. Becker. Cariboo Chev does not allege financial hardship as a reason for the difference in pay. The assumption that a degree of customer dissatisfaction with Ms. Becker would manifest itself in revenues is without foundation. The company’s financial situation is based on a myriad of factors, many of which the company itself cannot control. The financial statements can do no more than reflect the business results of the company. It cannot quantify or determine whether business was lost because of Ms. Becker’s conduct. Even if Ms. Becker was the most conscientious of employees the company could still be in financial difficulties. The financial statements are not arguably relevant to the issues raised in the complaint and will not assist in their resolution.

[65] There is no present foundation for the order that the records and benefits of the other managers be disclosed. There is no suggestion in the complaint that Cariboo Chev systematically discriminates on the basis of sex. The issue is whether Ms. Becker was discriminated against in her position as service manager. What is relevant are the sums paid to the other individuals who held that job and the reasons why they may have been paid more than Ms. Becker. In the circumstances of this case the situation of other managers is not presently relevant. The production of those documents will not assist in an orderly resolution of this complaint. Having reached that conclusion I would caution that production of such documents may become relevant if Cariboo Chev intends to justify Ms. Becker’s treatment by reference to how it treats other female employees. That will be for the Tribunal to decide as this matter moves forward.

[66] In the result, I have concluded that the Tribunal Member erred in the Disclosure Decision. That decision is set aside.

E. Timeliness of Judicial Review

[67] In coming to this decision, I have not overlooked submissions made by the Tribunal and Ms. Becker that the application for judicial review of the Disclosure Decision was premature. In their submissions, they rely on Brady v. BC Human Rights Tribunal et al, 2005 BCSC 1403 where Russell J. declined to exercise her discretion in an application challenging a tribunal order in regards to the disclosure of documents. In her decision, Russell J. referred to Vancouver (City) v. British Columbia (Assessment Appeal Board) (1996), 135 D.L.R. (4th) 48 (B.C.C.A.). In that case, Williams J.A. stated that the general rule is that a tribunal should be permitted to complete its process and to render its final decision before judicial review is entertained. He noted, however, that there were circumstances where the court should intervene. Indeed in the Vancouver (City) decision the court did intervene.

[68] In Fire-Trol Canada Company v. Bradley and BC Human Rights Tribunal, 2005 BCSC 1646 Masuhara J. set out the rational for not reviewing decisions made during the course of a tribunal proceeding was to avoid unnecessary delay and expense. In this case, not to intervene would lead to the production of documents which are not relevant to the proceeding and will needlessly increase costs. In the circumstances, judicial intervention is not premature. I would exercise my discretion accordingly.

NEW EVIDENCE

[69] The Tribunal and Ms. Becker objected to the admission of evidence that was not before the Tribunal Member, including the affidavit of Mr. Garland sworn December 8, 2004, and certain exhibits attached to the affidavit of Ms. Forestelll sworn December 7, 2004. I have not considered that evidence in coming to my conclusions.

COSTS

[70] There has been mixed success on this petition. In the circumstances, each side should bear their own costs.

SUMMARY

[71] In summary, therefore, the Tribunal’s decision in regards to s. 43 is quashed. The Tribunal is prohibited from proceeding with that portion of the complaint. The Disclosure Decision is set aside. The balance of the relief sought in the petition is dismissed. Each side shall pay their own costs.

“R.B.T. Goepel, J.”
The Honourable Mr. Justice R.B.T. Goepel

January 20, 2006 – Revised Judgment

On page 8, paragraph 19, the neutral citation number quoted should read:

“HMTQ v. Hutchinson et al, 2005 BCSC 1421, …”

Citation:	*Cariboo Chevrolet Pontiac Buick GMC Ltd. v. Becker,*
	2006 BCSC 43