2006 BCSC 1101 Rojas v. EaglePicher Energy Products

Before: The Honourable Mr. Justice Metzger

Reasons for Judgment

(In Chambers)

Counsel for the Petitioner:	C.F. Parfitt
Counsel for the Respondent: EaglePicher Energy Products Corp.	M.W. Hunter, Q.C.
Counsel for the Respondent: National Automobile, Aerospace, Transportation and General Workers Union of Canada, CAW-Canada, Local 114	G.M. Fiorillo
Counsel for the Human Rights Tribunal:	D.E. Paluck
Date and Place of Hearing:	20060316-20060317
	Vancouver, B.C.

INTRODUCTION

[1] Kennedy Rojas seeks judicial review of a decision of the British Columbia Human Rights Tribunal (the "Tribunal") dismissing without a hearing his complaints against his former employer and union.

[2] Mr. Rojas filed complaints under the Human Rights Code, R.S.B.C. 1996, c. 210, (the "Code") alleging that his employer and union had discriminated against him in his employment and in his union membership contrary to ss. 13 and 14 of the Code.

[3] Sections 13 and 14 of the Code provide:

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.

14 A trade union, employers' organization or occupational association must not

(a) exclude any person from membership,

(b) expel or suspend any member, or

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 member, or because that person or member has been convicted of a criminal or summary conviction offence that is unrelated to the membership or intended membership.

[4] The Tribunal initially refused to accept Mr. Rojas’ complaints for filing. Counsel for Mr. Rojas then made further submissions and the complaints were ultimately accepted.

[5] Mr. Rojas’ complaints arose out of the termination of his employment with EaglePicher Energy Products Corp. ("EaglePicher"). Mr. Rojas was a member of the bargaining unit represented by the National Automobile, Aerospace, Transportation and General Workers Union of Canada, CAW-Canada, Local 114, (the "Union"). Allegations of sexual harassment were made against Mr. Rojas by female unionized employees. EaglePicher and the Union conducted a joint investigation into the allegations as required under the collective agreement. After consideration of the results of that investigation EaglePicher terminated Mr. Rojas’ employment. The Union did not grieve the termination.

[6] Mr. Rojas’ complaints to the Tribunal alleged that he was discriminated against on the basis of his sex, and on the basis of his race, colour, ancestry and place of origin.

[7] Both respondents applied to have the complaints against them dismissed. On January 13, 2005, a Tribunal member, in written reasons, dismissed Mr. Rojas’ complaints against EaglePicher and the Union. The Tribunal’s decision is indexed at 2005 BCHRT 17.

[8] Mr. Rojas seeks to have that decision set aside and seeks an order in the nature of mandamus that the Tribunal proceed to a hearing of his complaint. In the alternative, he seeks an order that the Tribunal reconsider the applications to dismiss either on the basis that there is a reasonable prospect of success, or on the basis of directions from this court.

[9] Counsel for the Tribunal appeared and made submissions with respect to the record before the Tribunal, the standard of review, and the relief available to Mr. Rojas under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241. Tribunal counsel did not take a position with respect to the merits of the petition.

BACKGROUND

[10] Mr. Rojas immigrated to Canada from the Philippines and speaks English as a second language. His first job in Canada was as a production worker in EaglePicher’s battery factory where he was employed from February 1998 until his dismissal on December 1, 2003. The workplace is unionized by the respondent Union, and Mr. Rojas was a union member.

[11] At the time of Mr. Rojas’ employment, EaglePicher’s plant employed approximately 350 individuals from a variety of cultural backgrounds. Approximately 60% of those employees were women.

[12] EaglePicher has a policy that it will not tolerate discrimination or harassment of any kind in the workplace. All employees are required to attend a company seminar explaining the policy. Mr. Rojas attended that seminar.

[13] Article 8 of the collective agreement between EaglePicher and the Union deals with harassment and discrimination in the workplace. It includes a definition of sexual harassment and sets out the procedures for investigating complaints. Article 8.03 requires both EaglePicher and the Union to investigate a complaint of harassment.

[14] On October 15, 2003 Poonam Bali, a unionized employee of EaglePicher, filed a harassment complaint in writing against her co-workers, Mr. Rojas and Anthony Eliseet. She complained that both men made inappropriate comments of a sexual nature to her and that Mr. Rojas touched her "rear". Both Mr. Rojas and Anthony Eliseet are of Filipino descent.

[15] Both EaglePicher and the Union conducted a joint investigation of the complaint. The Union appointed individual representatives for Mr. Rojas, Mr. Eliseet and Ms. Bali.

[16] The results of the investigation committee were inconclusive as against Mr. Rojas. No disciplinary action was taken against him as a result of Ms. Bali’s complaint.

[17] Mr. Eliseet admitted his inappropriate behaviour towards Poonam Bali. He was disciplined but not terminated. He remains an employee of EaglePicher.

[18] During the investigation of the Bali complaint, three other female employees brought sexual harassment complaints against Mr. Rojas. These complaints were also investigated in accordance with the collective agreement. Mr. Rojas had the same Union representative as he had in the Bali complaint.

[19] The names of the new complainants, the details of the allegations, and the names of witnesses and the details of what they witnessed were not revealed to Mr. Rojas. He denied all allegations of sexual harassment.

[20] The joint investigation concluded harassment had occurred. The Union representatives concluded that Mr. Rojas’ explanations were not credible and that they preferred the evidence of the complainants and other witnesses. On December 1, 2003, EaglePicher advised Mr. Rojas of its decision to terminate his employment.

[21] Immediately after that meeting, the Union asked Mr. Rojas if he wanted to grieve his termination. Mr. Rojas did not respond. The Union then informed Mr. Rojas that it would not grieve the termination as it had determined that the grievance would not be successful due to Mr. Rojas’ lack of credibility.

[22] Mr. Rojas was advised that he had the right to appeal the Union decision to not grieve the termination. Mr. Rojas did not do so.

[23] It was Mr. Rojas’ right to complain to the Labour Relations Board alleging that the Union had failed in its duty of fair representation in the course of the investigation, or in declining to grieve his termination. He did not do so.

[24] English is the language used in the workplace. Other than his assertion in his post-termination complaint, there is no indication throughout the investigation or in the materials filed, that Mr. Rojas experiences difficulty with the English language.

[25] Prior to filing his complaint with the Tribunal, Mr. Rojas did not raise with either respondent the issue of discrimination on any basis including gender, race or place of origin.

THE PETITION

[26] In his complaint before the Tribunal, Mr. Rojas alleged that EaglePicher discriminated against him on the basis of his sex as follows:

a. Questioning me about a complaint of sexual harassment without advising me that the meeting could be disciplinary and without permitting me to bring Union representation;

b. Questioning me about complaints from unnamed individuals without providing me with the specifics of the complaints and who was making them, and the specifics of any witnesses and what they said they had seen;

c. Accepting complaints of sexual harassment against me without giving me a fair opportunity to defend myself; and,

d. Ignoring my statements that I had done nothing wrong and terminating me on the basis of complaints which are not true and against which I had not been given a fair opportunity to defend myself.

[27] Mr. Rojas alleged that the Union had discriminated against him on the basis of his sex and/or on the basis of his race, colour, ancestry and place of origin as follows:

a. Helping the Employer investigate the complaints against me;

b. Failing to tell me that they were helping the Employer to investigate the complaints against me;

c. Attempting to act as my representatives although they were acting against my interests by helping with the investigation;

d. Failing to insist that I was provided with proper specifics of the nature of the complaints, the names of the complainants, the names of the witnesses, and the details of their observations;

e. Accepting the validity of the complaints against me although I denied the complaints;

f. Failing to attempt to show the Employer that I had done nothing wrong and, in particular, failing to examine my side of events for information which might help them to show that I had done nothing wrong;

g. Telling me that they would not believe any information I tried to present about my side of events;

h. Treating me in a rude and disrespectful manner in front of the Employer and severely compromising my interests by yelling at me, swearing at me and saying that my comments were "bullshit" and that I was "full of shit"; and,

i. Failing to grieve my termination or properly follow-up with me to determine if I wanted to grieve my termination.

[28] In his petition for judicial review, Mr. Rojas claims that the Tribunal member made a reviewable error in failing to consider the due process aspects of his complaints against EaglePicher and the Union. Mr. Rojas submits that his principal complaint was that he was treated unfairly in the investigation of the sexual harassment allegations against him. He alleges that the Tribunal member did not consider the fact that EaglePicher failed to properly inform him about the allegations against him. Mr. Rojas also alleges that the Tribunal did not identify that his key complaint against the Union was that it did not permit or assist him to make any real answer to the sexual harassment allegations against him.

[29] Mr. Rojas further claims that the process before the Tribunal was procedurally unfair because:

(1) he did not have an opportunity to cross-examine EaglePicher and Marge Ramos on Ms. Ramos’ affidavit; and

(2) EaglePicher and the Union were not required to produce information or documents before the Tribunal made its decision. This includes information about the allegations of sexual harassment and documents with respect to the investigation by EaglePicher and the Union into the allegations.

THE DECISION OF THE TRIBUNAL

[30] The record of proceedings before the Tribunal member included the following materials and evidence: Mr. Rojas’ complaint and amendment to his complaint; the dismissal application by EaglePicher and supporting affidavit by Marge Ramos; the Union’s dismissal application; Mr. Rojas’ submission in response to the dismissal applications and supporting affidavit; and reply submissions of EaglePicher and the Union.

[31] The Tribunal restricted its analysis to s. 27(1)(c) of the Human Rights Code, which provides that a member may dismiss all or part of a complaint if "there is no reasonable prospect that the complaint will succeed". EaglePicher had also applied to have the complaint against it dismissed under s. 27(1)(b). The Union had also applied under s. 27(1)(e) and (f).

[32] The Tribunal member began her analysis by setting out the applicable legal principles at paras. 6 and 7 of the decision as follows:

[6] The Tribunal has discussed s. 27(1)(c) on numerous occasions. I refer to Wickham and Wickham v. Mesa Contemporary Folk Art and others, 2004 BCHRT 134, in which the Tribunal stated:

The role of the Tribunal, on an application, is not to determine whether the complainant has established a prima facie case of discrimination, nor to determine the bona fides of the response. Rather, it is an assessment, based on all of the material before the Tribunal, of whether there is a reasonable prospect the complaint will succeed: Bell v. Dr. Sherk and others, 2003 BCHRT 63.

The assessment is not whether there is a mere chance that the complaint will succeed, which would be the lowest threshold a complainant would have to meet. Nor is it that there is a certainty that the complaint will succeed, which would be at the highest threshold a complainant would have to meet. Rather, the Tribunal is assessing whether there is a reasonable prospect the complaint will succeed based on all the information available to it.

[7] In making that assessment, the Tribunal must consider the material which the parties have put before it in accordance with the principles set out in Bell v. Dr. Sherk:

The Tribunal can only make a decision based on the information which it has. As the Tribunal does not conduct investigations, it is the responsibility of the parties to put before the Tribunal the information which they believe is necessary, and in a form which they consider appropriate, to enable the Tribunal to make decisions under s. 27, and more particularly, s. 27(1)(c).

[33] Next, the Tribunal member went on to consider whether Mr. Rojas’ complaints against EaglePicher and the Union had a reasonable prospect of success.

The Complaint Against EaglePicher

[34] The Tribunal member summarized Mr. Rojas’ discrimination complaint against EaglePicher as follows:

[9] The essence of Mr. Rojas’ complaint against EaglePicher is that the managers who made the decision to terminate his employment preferred the interests of the women who complained about him and found him less believable because he is a man. He alleges that his sex, and stereotypes about men and women and sexual harassment complaints, were factors in how EaglePicher treated the complaints made against him. He alleges that a particular taint attached to the complaints about him because he was a male accused of sexual harassment.

[10] I accept that an employer’s beliefs about men and women and sexual harassment could affect the manner in which it deals with sexual harassment complainants, and could result in discrimination against a man accused of sexual harassment by a female co-worker.

[35] An analysis of the evidence was set out in paras. 11, 12, and 13 of the decision, with the following conclusion at para. 14:

[14] Taking all of the material before me into account, I find that there is not a reasonable prospect that Mr. Rojas’ complaint against EaglePicher will succeed. I therefore dismiss the complaint against EaglePicher.

The Complaint Against the Union

[36] The Tribunal defined the complaint against the Union as follows:

[15] I turn now to the complaint against the Union. So far as the Union is concerned, Mr. Rojas’ complaint centres around its representation of him in this process. He alleges that the Union too easily accepted the word of the women making the complaints about him. Instead of providing him with proper Union representation, he alleges that the Union representatives involved in this matter tried to get him to admit the allegations against him. He also alleges that the Union did not grieve his termination; he says that the Union only asked him if he wanted to grieve the termination once, right after the termination meeting, when he was in shock, and never contacted him again. Mr. Rojas alleges that the Union acted in this manner because of the taint attached to him as a man accused of sexual harassment and because of the fact he is a Filipino who speaks English as a second language.

[16] I accept that the failure by a union to provide its member with proper representation in response to a sexual harassment complaint, where that failure was influenced by negative beliefs or stereotypes about men, immigrants or people for whom English is a second language could constitute discrimination contrary to the Code. Once again, however, the difficulty which Mr. Rojas faces is the absence of evidence which would tend to establish any link between any ground prohibited under the Code and the Union’s behaviour.

[37] An analysis of the evidence was set out in paras. 17 and 18, and the Tribunal member concluded the following at paras. 19 and 20:

[19] There is nothing in the Union’s conduct to suggest that it was in any way influenced by Mr. Rojas’ gender, race, ethnicity, place of origin or colour. …

[20] Taking all of the material before me into account, I am satisfied that there is not a reasonable prospect that Mr. Rojas’ complaint against the Union will succeed. I therefore dismiss the complaint against the Union.

THE STANDARD OF REVIEW

[38] Mr. Rojas alleges that:

(1) the Tribunal member made reviewable errors in her decision to dismiss the complaints; and

(2) the process before the Tribunal under s. 27(1) was procedurally unfair.

[39] Section 32 of the Code specifies that s. 59 of the Administrative Tribunals Act, S.B.C. 2004, c. 45 (the "ATA"), applies to the Tribunal. Section 59 contains a statutory prescription of the standards of review of decisions by administrative tribunals. It states:

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.

[40] Prior to the elimination of the B.C. Human Rights Commission, the Commission investigated complaints of discrimination. In Lee v. British Columbia (Attorney General) (2004), 32 B.C.L.R. (4th) 1, 2004 BCCA 457 [Lee], the British Columbia Court of Appeal characterized the exercise of discretion by the Human Rights Commission under s. 27 of the Code as a "gate keeping" function to assess whether a complaint warrants the time and expense of a full hearing. Donald J.A., writing for the Court, stated the following at para. 27:

[27] In my view the evaluation of the complaint at the gate keeping stage attracts the highest degree of curial deference. It involves the assessment of evidence in a specialized area. ...

[41] The transfer of s. 27 powers in the Code from the Commission to the Tribunal did not change the discretionary nature or purpose of s. 27: see Shilander v. British Columbia Human Rights Tribunal, 2005 BCSC 728 [Shilander]; Chaloob v. Vancouver Police Department and British Columbia Human Rights Tribunal, 2005 BCSC 1836; Cariboo Chevrolet Pontiac Buick GMC Ltd. v. Becker, 2006 BCSC 43; Berezoutskaia v. British Columbia Human Rights Tribunal (2006), 51 B.C.L.R. (4th) 4, 2006 BCCA 95 [Berezoutskaia]. The Tribunal is now responsible for screening complaints. It does not have an investigatory function.

[42] In Berezoutskaia, supra, the Court of Appeal held that:

1. the Tribunal’s decisions under s. 27(1)(c) are discretionary;

2. the standard of review is patent unreasonableness as set out in s. 59(3) of the ATA;

3. patent unreasonableness is defined in s. 59(4) of the ATA, and there is no need to invoke a common law definition of patent unreasonableness;

4. in a decision under s. 27(1)(c), the Tribunal is not making findings of fact on a balance of probabilities after weighing the evidence and therefore s. 59(2) is not engaged.

[43] In that case, the Court considered the argument that s. 59(2), not s. 59(3), applied to a decision under s. 27(1)(c) of the Code. The Court rejected that argument on the basis that on an application to dismiss without a hearing, the Tribunal member does not weigh evidence and make findings of fact. Rather, the focus at that stage is on whether the evidence justifies the time and expense of a full hearing.

[44] The Court stated as follows at para. 21:

[21] In my view, if the Tribunal member had made findings of fact that were not supported by the evidence or were otherwise unreasonable as the appellant alleges, her decision to dismiss the complaint based on that error would have been arbitrary in the sense that it would not have been made according to reason and principle, and it would therefore have been patently unreasonable by virtue of s. 59(4)(a). Thus, even accepting the appellant’s allegations of error, the applicable standard of review would be patent unreasonableness as defined in s. 59(4).

[45] The Court of Appeal appears to give "arbitrary" a fairly broad definition.

[46] With respect to Mr. Rojas’ claim regarding the procedure before the Tribunal, he submits s. 59(5) should be applied which he argues is a standard of correctness and not one of patent unreasonableness. I disagree.

[47] Following the reasoning enunciated by the Court of Appeal in Berezoutskaia, supra, it is not appropriate to define the standard of review in s. 59(5) by reference to common law standards of review such as correctness. Section 59(5) sets out a statutory standard which is whether the Tribunal acted fairly having regard to all of the circumstances.

[48] In addition, s. 59(1) specifically provides an exception to the standard of correctness for questions respecting the common law rules of natural justice and procedural fairness.

[49] Therefore, the standard of review with respect to the discretionary decision pursuant to s. 27(1)(c) is patent unreasonableness as defined in s. 59(4) of the ATA. The standard of review with respect to the procedure before the Tribunal is that set out in s. 59(5).

ANALYSIS

1. Did the Tribunal make a reviewable error in its decision to dismiss Mr. Rojas’ complaints?

[50] The task for the Tribunal was to assess whether, on all the material before the Tribunal, there was a reasonable prospect the complaint would succeed: Wickham and Wickham v. Mesa Contemporary Folk Art and others, 2004 BCHRT 134; Bell v. Dr. Sherk and others, 2003 BCHRT 63.

[51] At the screening stage, the Tribunal must consider whether the facts before it move the complaint "out of the realm of conjecture" or "from speculation to inference": see Shilander, supra; Lee, supra.

[52] Mr. Rojas alleges the Tribunal did not consider his principal complaint and therefore has erred in its decision. A summary of Mr. Rojas’ principal complaint is that:

1. he was involved in a disciplinary meeting without notice or union representation;

2. he was not provided with a realistic opportunity to respond to the additional allegations as he was not provided with the names of his accusers, the details of the offences, or the names and observations of any witnesses;

3. he was required to admit the allegations in order to avoid termination.

[53] It is clear from the decision that the Tribunal member was looking for evidence to indicate what was going on in the heads of the EaglePicher and Union representatives during the joint harassment investigation. At para. 11 of the decision, the Tribunal member states:

[11] As Mr. Rojas admits, there is little disagreement about what happened in this case; the dispute here is about the motivations of the parties. The difficulty which Mr. Rojas faces is that there is no evidence to substantiate his bald assertions that EaglePicher’s management personnel were influenced by gender stereotypes in their treatment of the sexual harassment complaints made against him. [Underlining added.]

[54] There is little dispute about the facts of the case. I agree with the Tribunal that there is no evidence to support what went on in the heads of EaglePicher management and the Union representatives during the harassment investigation. However, I agree with Mr. Rojas’ counsel that the error on the part of the Tribunal member was emphasizing only part of the complaint and not analyzing the evidence that was before the Tribunal with respect to due process.

[55] The decision does not refer to the specifics of the due process aspect of the complaints in either its review of the evidence of in its analysis. In particular, the decision does not mention that Mr. Rojas was not informed of the names of the complainants, the specific details of the alleged incidents, and the names and observations of witnesses. Nor does the decision mention Mr. Rojas’ claim that the Union failed to look into his version of events or seek details of the complaints on his behalf. Instead, the Tribunal member accepts that the Union acted reasonably in seeking to have Mr. Rojas admit his guilt and refusing to grieve Mr. Rojas’ termination.

[56] Mr. Rojas’ complaint involved more than the motivation of EaglePicher and the Union in arriving at their conclusions. However, the Tribunal member focused on the motivations of EaglePicher and the Union to the exclusion of the due process aspects of the complaints. As a result, the Tribunal member failed to consider whether the procedure followed in the investigation and the treatment of Mr. Rojas during and after the investigation raises the inference that Mr. Rojas’ gender was a factor in that treatment.

[57] I am satisfied that the Tribunal member erred in not considering the whole of Mr. Rojas’ complaint. I find that the decision was patently unreasonable within the meaning of s. 59(4)(a) of the ATA. There is no indication that the decision was made in bad faith. However, the failure to consider the whole of the complaint rendered the decision an arbitrary one.

2. Was the process before the Tribunal on the s. 27(1) applications unfair?

[58] There is nothing in the record of proceedings that leads to the conclusion that the procedure before the Tribunal was unfair. The evidence of the Tribunal is that most applications to dismiss are decided on the basis of written submissions and any affidavits or other supporting documents. On occasion, a Tribunal member may request further submissions on a particular point, or may consider a request by a party to cross-examine on an affidavit. The Tribunal has the discretion to hold an oral hearing on a s. 27(1) application. This is done where there is a fact or fact-dependent issue which is determinative of the application.

[59] Rule 24 of the Tribunal’s Rules of Practice and Procedure provides an opportunity for a party to apply for an oral hearing or cross-examination. The Rule applies to all proceedings before the Tribunal.

[60] Rule 18 governs disclosure. It prescribes a time for the parties to disclose all documents in their control or possession that may be relevant to the complaint. It also imposes a continuing obligation to disclose. The Rules do not require a party to disclose all relevant documents prior to the consideration of a s. 27(1) application.

[61] EaglePicher and the Union chose what material they would put before the Tribunal in support of their dismissal applications. The burden, however, was always on Mr. Rojas to establish that his complaint had a reasonable prospect of success.

[62] I am satisfied that the Tribunal followed the procedure set out in the Code and Rules. In all of the circumstances, the procedure was fair. If Mr. Rojas alleges that sections of the Code and the Rules are unfair, he would have had to directly challenge the legislation itself. That was not done.

[63] Accordingly, I dismiss this portion of the petition.

DECISION

[64] I am satisfied that the appropriate relief is to send the decision back for reconsideration. I agree with counsel for the Tribunal that ordering that the complaint proceed to a hearing, or ordering reconsideration on the basis there is a reasonable prospect of success, is beyond the jurisdiction of this court and beyond what is required to correct the reviewable error in the decision.

[65] The Tribunal has analyzed the issue of the motivations of the parties. I take no issue with those findings. As the Tribunal has erred to the extent that it did not consider all of Mr. Rojas’ complaint, I set aside only the final conclusion in the decision. The Tribunal will reconsider its final decision after having considered the whole of Mr. Rojas’s complaint.

COSTS

[66] Mr. Rojas will have his costs at Scale 3 against EaglePicher and the Union. There will be no costs awarded against the Tribunal as it did not seek costs against Mr. Rojas. The Tribunal is not an ordinary litigant as there is not a true lis between Mr. Rojas and the Tribunal: see Lang v. British Columbia (Superintendent of Motor Vehicles) (2005), 43 B.C.L.R. (4th) 65, 2005 BCCA 244, at paras. 22-24 and 47-55. Further, the Tribunal has not engaged in conduct that would warrant an award of costs against it.

“R.W. Metzger, J.”
The Honourable Mr. Justice R.W. Metzger

Citation:	*Rojas v. EaglePicher Energy Products Corp. et al,*
	2006 BCSC 1101