Before: The Honourable Mr. Justice Rogers

Reasons for Judgment

Counsel for the Petitioner:	A.C. Kempf
Counsel for the Respondent, British Columbia Human Rights Tribunal:	C.D. Qualtrough
Counsel for the Respondent, A. Rossiter:	J. Doulis
Date and Place of Hearing:	January 13, 2006
	Kelowna, B.C.

Introduction

[1] Ms. Rossiter’s employment with Lake City Casino (“Lake City”) was terminated on October 10, 2003. On April 13, 2004 Ms. Rossiter submitted a complaint to the Human Rights Tribunal (the “Tribunal”). She alleged that she was the victim of discrimination based upon her union activities and political views. All parties agree that Ms. Rossiter’s filing in April was made within the six-month limitation period stipulated by the Human Rights Code, R.S.B.C. 1996, c. 210. Several months after it received Ms. Rossiter’s complaint, the Tribunal asked her for additional information. On July 8, 2004 Ms. Rossiter submitted the additional information in a form. In that form Ms. Rossiter abandoned her first allegations and alleged instead that she was the victim of discrimination based upon physical disability. The Tribunal then delivered the complaint to Lake City. Lake City took the view that the July 8 complaint was so substantially different from the April 13 complaint as to amount to a new complaint, and which was, according to Lake City, filed out of time. Lake City applied to the Tribunal for an order dismissing the complaint. The Tribunal convened a panel of one to hear the application. The Tribunal decided to treat the July 8 complaint as an amendment to Ms. Rossiter's April 13 submission rather than a brand new complaint, and concluded that there were no grounds on which the complaint could be dismissed.

[2] Lake City takes the position that the Tribunal's failure to dismiss the complaint was incorrect or, alternatively, patently unreasonable. Lake City submits that the question should be resubmitted to the Tribunal for consideration upon proper principles.

The Facts

[3] According to the record of the proceedings before the Tribunal, Ms. Rossiter began working for a Lake City in July 1997. Her employment was terminated on October 10, 2003. On April 8, 2004 Ms. Rossiter filled out a complaint form and on April 13 she submitted that form to the Human Rights Tribunal. On that form Ms. Rossiter indicated that she felt she had suffered discrimination because Lake City terminated her employment due to her union activity and political beliefs.

[4] The Tribunal commenced processing Ms. Rossiter's complaint. On June 17, 2004 the Tribunal sent Ms. Rossiter a letter asking her to expand upon her claim of discrimination. In that letter, the Tribunal advised Ms. Rossiter that any changes she might wish to make to her complaint would be accepted by the Tribunal as if they had been submitted on April 13.

[5] On July 8 the Tribunal received Ms. Rossiter’s response to the Tribunal’s request for further information. Ms. Rossiter maintained her allegation that she lost her job due to Lake City's discrimination, but now she said that Lake City's motivation for discriminating against her was different than before. In April she said that Lake City discriminated on the basis of her union and political views; in July she alleged that Lake City discriminated on the basis of her physical disability.

[6] After receiving the additional information from Ms. Rossiter, the Tribunal communicated it to Lake City. Lake City perceived that the July 8 complaint was different in substance from Ms. Rossiter's original missive of April 13. Lake City thought that the July 8 complaint was, in fact, a brand new complaint and was, therefore, filed after expiry of the six-month limitation period prescribed by s. 22 of the Human Rights Code. Lake City applied to the Tribunal under s. 22 of the Code for an order dismissing the July 8 complaint. Lake City argued the application on the ground that Ms. Roster had filed it out-of-time.

[7] Mr. Neuenfeldt, in his capacity as the Tribunal’s panel of one, heard Lake City's application. He rendered his decision on January 28, 2005. Mr. Neuenfeldt’s reasons demonstrate that he heard and understood Lake City’s argument that the July 8 complaint was new and different from the April 13 complaint. Mr. Neuenfeldt rejected that argument. He held that the additional information Ms. Rossiter supplied in July was part and parcel of the screening process authorized by Rule 11 the Tribunal's Rules of Practice and Procedure. As such, the additional information did not, in his view, amount a new complaint advanced after expiry of the six-month limitation period, and he held that it was not an amendment contemplated by Rule 25(4). Mr. Neuenfeldt dismissed Lake City’s application.

Statute and Rules of Procedure

[8] This matter engages numerous sections of the Human Rights Code and the Rules of Practice and Procedure the Tribunal has crafted to govern its process.

[9] The seminal limitation provision is found in s. 22 of the Code. Section 22(1) says that a complaint must be filed within six months of the alleged contravention. “Contravention” is not defined, but must mean a contravention of the complainer’s rights. Section 22(3) says that the Tribunal may allow a late-filed complaint to go ahead if the Tribunal is satisfied that it would be in the public interest to accept the complaint and if the delay has not caused substantial prejudice to any person.

[10] Section 27(1)(g) of the Code says that unless a complaint is saved by s. 22(3), the Tribunal may dismiss the complaint if the Tribunal finds that a complaint relates to a contravention that happened more than six months before the complaint was filed.

[11] Section 10(1) prescribes the form a person must use to submit a complaint that his rights were contravened. Sections 10(2) and (3) echo the limitation and saving provisions of the Code, providing for the same six-month limitation and the same authority for the Tribunal to allow a late-filed complaint to proceed provided that it is in the public interest to do so and provided that delay has not worked substantial prejudice upon any person.

[12] The whole of Rule 11 sets up a screening function which the Tribunal may employ to ensure that a complaint is complete and to ensure that the complaint is within the Tribunal’s jurisdiction. If the complainant does not reply to the Tribunal’s request for additional information within the time the Tribunal, in its sole discretion, prescribes, the Tribunal may decide to not proceed with the complaint. If the complainant does supply the information requested, Rule 11(5) obliges the Tribunal to treat the completed form as if it were filed on the day it was first received, not the day the additional information was supplied. Finally, if upon all of the information the Tribunal decides that the matter is not within its jurisdiction, the Tribunal may decide to not proceed with the complaint.

[13] Rule 12 provides that after the complaint passes through the screening process the Tribunal will send it to the respondent.

[14] Rule 13 provides the process by which the respondent may articulate its position concerning the complaint.

[15] Rule 24 prescribes the process by which a party may bring an application before the Tribunal.

[16] The parties to a proceeding may employ Rule 25 to amend their complaint and response. Rule 25(1) gives the parties carte blanche to amend their submissions. Rule 25(4) limits that freedom; it says:

(4) Despite rule 25(1), if the complainant’s amendment to the complaint adds an allegation that occurred outside of the time limit for filing the complaint…the complainant must apply under rule 24.

This is to say that if the amendment triggers Rule 25(4), the complainant must apply under Rule 24 for a saving order pursuant to s. 22(3) or Rule 10(3).

The Tribunal’s Decision

[17] As I described above, Mr. Neuenfeldt considered the application as a contest between two possible interpretations of the additional information Ms. Rossiter supplied in July. One interpretation, urged by Lake City, was that Ms. Rossiter’s July filing constituted a brand new complaint, or alternatively, that it was an amendment which, contrary to Rule 25(4), raised allegations that occurred outside of the six-month limitation period. In either case Lake City argued that the new information could not proceed as a complaint without Ms. Rossiter first getting a saving order. The other interpretation, presumably argued by Ms. Rossiter, was that the additional information was supplied in the course of the Tribunal’s screening function and was not a new complaint, nor was it an amendment contemplated by Rule 25(4). According to this interpretation, the additional information did not give rise to the need for a saving order.

[18] Mr. Neuenfeldt adopted the latter interpretation. His reasons do not state it clearly, but they necessarily imply that he held that until the Tribunal finished its Rule 11 screening procedure, Ms. Rossiter’s complaint remained in a kind of formative state. While it was in that formative state it remained wholly malleable. Mr. Neuenfeldt must have concluded that after the screening process was complete the complaint became the kind of document that could be amended under Rule 25. He held, therefore, it was only after the complaint got through the screening process that subsequent amendments to it could trigger Rule 25(4). Lake City’s argument that Rule 25(4) applied was, therefore, ungrounded.

[19] With the greatest of respect to Mr. Neuenfeldt, I note that he might have articulated his rationale a bit more clearly. Perhaps the most confounding aspect of his reasons is his use of the term “amendment” in the context of both the screening process and Rule 25. It would have been useful to the parties had Mr. Neuenfeldt clearly stated that a change made to the complaint in the course of the screening process is not an amendment within the meaning of Rule 25, and further, that only after a complaint gets through the screening process does it enter into a state of being capable of amendment under Rule 25.

[20] In summary, then, Mr. Neuenfeldt’s decision concentrated upon the process through which a complaint passes as it wends its way through the Tribunal’s Rules of Practice and Procedure. Mr. Neuenfeldt concluded that the process is wholly linear: he held that the complaint must go through Rule 11 screening first; after it is screened the complainant may then employ Rule 25 to amend it; and although his reasons do not address the question, it is obvious that amendment after screening under Rule 25 may be subject to Rule 25(4).

Standard of Review

[21] The first issue to decide here is the appropriate standard for review of Mr. Neuenfeldt’s decision. The Human Rights Code does not contain a privative clause, therefore s. 59 of the Administrative Tribunals Act, S.B.C. 2004, c. 45 applies to its decisions:

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.

[22] For the standard of review to be anything other than correctness, the decision must be in respect of an exercise of discretion, a finding of fact, or the application of natural justice and procedural fairness. When the decision is of one of those three types, the Administrative Tribunals Act prescribes a particular standard of review for each.

[23] Lake City’s application required Mr. Neuenfeldt to refer to and interpret the Tribunal’s Rules of Practice and Procedure. It was for Mr. Neuenfeldt to decide where in the process Ms. Rossiter’s application stood when she complained of disability discrimination. Mr. Neuenfeldt had before him evidence comprising various documents, and he had reference to the Rules and the Code. In my view, the problem put to Mr. Neuenfeldt did not require him to find any substantive facts. Neither did his ruling engage or offend the rules of natural justice and procedural fairness. In fact, Lake City appears to have had a complete opportunity to challenge and argue the limitation issue.

[24] The problem did require Mr. Neuenfeldt to consider the Tribunal’s exercise of discretion, viz: the Tribunal’s screening decision to allow the complaint to proceed on the basis of the July 8 disability discrimination allegation. In the course of the screening process it may have been open to the Tribunal to hold that the July information was a new complaint filed out of time. Instead the Tribunal decided that the information was part and parcel of the original complaint that Ms. Rossiter voiced in April, and so it was filed in time. The Tribunal’s decision on that issue required it to read and understand Ms. Rossiter’s two communications, to decide whether they supplied sufficient information to satisfy the Rule 11 screening process, and whether the information established that the subject of Ms. Rossiter’s complaint was within the Tribunal’s jurisdiction. As such, Mr. Neuenfeldt’s ruling on Lake City’s objection confirmed the Tribunal’s exercise of discretion in Ms. Rossiter’s favour.

[25] In the alternative, if Mr. Neuenfeldt did not review an underlying decision but rather made a decision in the first instance, I find that his decision was still an exercise of discretion. That is because the task required him to apply the Tribunal’s Rules to the information contained in Ms. Rossiter’s April and July missives. It was clearly within the Tribunal’s expertise to interpret that information. In order to efficiently function, the Tribunal must be permitted to be the master of its own process. To that end, the Tribunal, in this case embodied by Mr. Neuenfeldt, must have the authority to exercise discretion pertaining to the nature and sufficiency of information it requires from the complaints it receives. It must have authority to exercise discretion relating to the process through which those complaints must pass. Mr. Neuenfeldt’s decision falls squarely within that exercise of discretion – he interpreted the nature and sufficiency of the information contained in Ms. Rossiter’s complaints, he found that the July information was tendered in the course of the Rule 11 screening process, and he found that Lake City’s limitation objection was groundless because when that information was tendered, Ms. Rossiter’s complaint was not yet at a stage where the kind of amendment contemplated by Rule 25 could be made.

[26] I must, therefore, conclude that the subject of Mr. Neuenfeldt’s decision was the exercise of discretion by the Tribunal in the course of its screening process. Mr. Neuenfeldt’s decision bears upon that discretion and the standard of review this court must apply is whether the decision was patently unreasonable.

Discussion

[27] Lake City says that the complaint Ms. Rossiter submitted in July triggered Rule 25(4). It argues that the July information was an amendment to the existing complaint and that Ms. Rossiter added that allegation outside the time limit for filing it. Mr. Neuenfeldt rejected that argument. Mr. Neuenfeldt’s reasons indicate that he approached the problem as one engaging an interpretation of the subject and nature of Ms. Rossiter’s complaint and the Tribunal’s screening process, and inferentially raising the question of when in that process a complaint is promoted to a state of being in which amendments to it could only be accomplished under Rule 25. Mr. Neuenfeldt’s conclusion is clear; while the screening process is underway a complaint may be altered as necessary to articulate the true nature of the complainant’s beef. When the complaint finally contains sufficient information to satisfy the Tribunal’s screening process, the final form of the complaint will be treated as if it had been received on day the complaint was first filed. It might then be amended pursuant to and subject to Rule 25.

[28] An implication of this ruling offended Lake City. It argued that if Mr. Neuenfeldt’s decision stands, then an initial complaint may be used as a place holder to protect the complaint from expiry of the six-month limitation period. For example, a person might submit a complaint alleging made-up or bogus allegations, and might file that complaint a day shy of six months after he perceived a contravention. Lake City points out that the screening process would then afford that person additional time after the six-month limitation to put together a description of the real allegations he plans to assert, and would effectively stretch the limitation period from six months, to six months plus however long the screening process may take. Lake City argues that the six-month limitation period is a substantive provision and that the Tribunal should not be permitted to apply its process in a fashion that renders that limitation, if not nugatory, at least uncertain.

[29] I pause to note that Lake City’s argument here affirms my conclusion that the essence of Mr. Neuenfeldt’s decision was the exercise of discretion. The Tribunal is empowered to determine the sufficiency of the information contained in a complaint made to it. That power is undeniably discretionary. Human rights complaints are often made by persons who, as the Tribunal’s counsel put it, “often don’t know what they mean to say, and sometimes it takes time for them to get it right”. It is for the Tribunal to decide how much time and how much latitude to give to complainants to get their complaints in order. The Rule 11 screening process was clearly crafted to give the Tribunal a broad discretion in that arena. Rule 11 does not stipulate that additional allegations cannot be included in a complainant’s response. How new allegations should be treated in the screening process is a matter for the Tribunal to decide having regard to its mandate. Therefore, the treatment of information tendered in the course of screening is very much a matter within the Tribunal’s discretion.

[30] As to the merits of the objection, I cannot find that the implications of Mr. Neuenfeldt’s decision render it patently unreasonable. The Tribunal has chosen to focus on the filing of a complaint of contravention as the critical date against which the six-month limitation period is measured. The Tribunal has chosen not to focus on the substance of the complaint – presumably it will be sufficient for a complainant to make some allegation in his first filing, but the Tribunal will allow that allegation to be revised or even supplanted by another in the course of the screening process. It is entirely reasonable for the Tribunal to conduct its process in this way. The Tribunal’s screening method gives it the latitude necessary to deal with persons having human rights complaints, and to fully and properly carry out its mandate. The screening method does not frustrate the Code’s six-month limitation period – the screening method merely permits the Tribunal to effectively perform its function.

[31] Lake City also argued that Mr. Neuenfeldt’s decision was not correct, or was patently unreasonable, because it denied Lake City the opportunity to test whether the disability discrimination complaint should go ahead because it would be in the public interest to do so and delay had worked no substantial prejudice on any party. Of course, those tests would only apply if the complaint was filed out of time. I cannot find that it was patently unreasonable or even incorrect for Mr. Neuenfeldt to conclude that the screening process permits a complainant to substantially revise or even rewrite his complaint. The Code and the Rules of Practice and Procedure do not prohibit such revision or rewriting. The Code and the Rules contemplate only one filing date for a complaint and the Rules, specifically Rule 11, operate to back-date screening revisions to that filing date. Given that the Code and the Rules do not impose a requirement that complaints be substantially perfect when first filed, it cannot be wrong or patently unreasonable for the Code and Rules to be applied, as Mr. Neuenfeldt did, to ensure that a complaint articulates its proper substance before it leaves the screening process and becomes a more formal complaint which might then be amended subject to the more formal provisions of Rule 25.

[32] I would go further. If Mr. Neuenfeldt is wrong and Ms. Rossiter’s complaint was through the screening process by the time she altered it in July, I would nevertheless conclude that that alteration did not trigger Rule 25(4). This is not a scenario Mr. Neuenfeldt considered, but I will deal with it for the sake of completeness and to give a direct answer to Lake City’s argument that Ms. Rossiter had to get a saving order under s. 22(3) or Rule 10(3) before her complaint could proceed. To repeat, Rule 25(4) says:

[33] Lake City’s position begs this question: did the amendment substituting disability discrimination add “an allegation that occurred outside of the time limit for filing the complaint”? There is only one time limit for filing a complaint – it is six months after the alleged contravention. Ms. Rossiter alleges the contravention occurred on October 10, 2003. She filed her complaint (just) within the six-month limitation period. Her amendment alleges the disability discrimination occurred on October 10, 2003. That allegation lies within the six-month limitation period. Had her amendment alleged that the disability discrimination occurred on, say, October 8, 2003, then the amendment might well have triggered Rule 25(4). But it did not, and so even if one accepts Lake City’s argument that the amendment was under Rule 25, it did not invoke Rule 25(4) and there was no need for Ms. Rossiter to obtain a saving order.

Conclusion

[34] The standard of review for Mr. Neuenfeldt’s decision is patent unreasonableness. His decision was not patently unreasonable. The petition must be dismissed. No party sought costs against the other, and there will be no order as to costs of the proceeding.

“P.J. Rogers, J.”
The Honourable Mr. Justice P.J. Rogers