Gichuru v. WCAT (2010), 285 B.C.A.C. 276 (CA);
482 W.A.C. 276
MLB headnote and full text
Temp. Cite: [2010] B.C.A.C. TBEd. AP.037
Mokua Gichuru (appellant/petitioner) v. The Workers Compensation Appeal Tribunal and The BC Human Rights Tribunal (respondents/respondents)
(CA037348; 2010 BCCA 191)
Indexed As: Gichuru v. Workers’ Compensation Appeal Tribunal (B.C.) et al.
British Columbia Court of Appeal
Mackenzie, Chiasson and Bennett, JJ.A.
April 20, 2010.
Summary:
The complainant, a lawyer, was dismissed from his employment as a legal researcher. He filed a complaint under the Human Rights Code, alleging that he was discriminated against because he was a person of mixed race (African and Canadian). The employer applied under s. 27(1) of the Code for summary dismissal. A member of the Human Rights Tribunal allowed the application, finding that the complaint had no reasonable prospect of success (s. 27(1)(c)). The member also stated that certain conduct by the complainant was improper, but she declined to make a finding that the complaint was filed for an improper motive or in bad faith (s. 27(1)(e)). The complainant applied for judicial review.
The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 904; 2009 BCSC 904, dismissed the application. The complainant appealed.
The British Columbia Court of Appeal allowed the appeal only to the extent of declaring that the finding of improper conduct should not have been made.
Administrative Law – Topic 542
The hearing and decision – Decisions of the tribunal – What constitutes a decision – The complainant, a lawyer, was dismissed from his employment as a legal researcher – He filed a complaint under the Human Rights Code, alleging that he was discriminated against because he was a person of mixed race (African and Canadian) – The employer applied under s. 27(1) of the Code for summary dismissal – A member of the Human Rights Tribunal allowed the application, finding that the complaint had no reasonable prospect of success (s. 27(1)(c)) – The member also stated that certain conduct by the complainant was improper, but she declined to make a finding that the complaint was filed for an improper motive or in bad faith (s. 27(1)(e)) – A chambers judge dismissed the complainant’s application for judicial review – The complainant appealed – The British Columbia Court of Appeal allowed the appeal only to the extent of declaring that the finding of improper conduct should not have been made in the circumstances of this case and was patently unreasonable – The court rejected the Tribunal’s assertion that the finding of improper conduct was not susceptible to judicial review because it did not lead to the decision under review – The complainant was a lawyer – The finding might impugn his professional reputation – Judicial review was appropriate – The standard of review was patent unreasonableness – See paragraphs 58 to 72.
Administrative Law – Topic 3203
Judicial review – General – Matters not subject to review – [See
Administrative Law – Topic 542
].
Administrative Law – Topic 8932
Boards and tribunals – Powers – Respecting evidence – The complainant, a lawyer, was dismissed from his employment as a legal researcher – He filed a complaint under the Human Rights Code, alleging that he was discriminated against because he was a person of mixed race (African and Canadian) – The employer applied under s. 27(1) of the Code for summary dismissal – A member of the Human Rights Tribunal allowed the application, finding that the complaint had no reasonable prospect of success (s. 27(1)(c)) – The member also stated that certain conduct by the complainant was improper, but she declined to make a finding that the complaint was filed for an improper motive or in bad faith (s. 27(1)(e)) – A chambers judge dismissed the complainant’s application for judicial review – The complainant appealed – The British Columbia Court of Appeal allowed the appeal only to the extent of declaring that the finding of improper conduct should not have been made in the circumstances of this case and was patently unreasonable – The material filed by the complainant that led to the finding of improper conduct was filed by the complainant in response to evidence by the employer that the person who dismissed the complainant was “a highly qualified and extremely fair administrator and manager” – This character evidence was not relevant – There was no basis for its admission – Neither the employer’s evidence of the manager’s character nor the complainant’s response to it should have been considered – It was not reasonable for the member to have taken the complainant’s response into account in making the unnecessary finding that the complainant acted improperly – However, the finding did not constitute an excess of jurisdiction – The member considered the issue only because the parties’ submissions led her to conclude that it was appropriate to do so – See paragraphs 73 to 78.
Administrative Law – Topic 9116
Boards and tribunals – Judicial review – Review of administrative policy or discretion – [See both
Civil Rights – Topic 7115
].
Civil Rights – Topic 7080
Federal, provincial or territorial legislation – Commissions or boards – Jurisdiction – Pre-investigation decision not to deal with complaint – The complainant, a lawyer, was dismissed from his employment as a legal researcher – He filed a complaint under the Human Rights Code, alleging that he was discriminated against because he was a person of mixed race (African and Canadian) – The employer applied under s. 27(1) of the Code for summary dismissal – A member of the Human Rights Tribunal allowed the application, finding that the complaint had no reasonable prospect of success (s. 27(1)(c)) – A chambers judge dismissed the complainant’s application for judicial review – The complainant appealed – The British Columbia Court of Appeal rejected the complainant’s assertion that the legal test on a s. 27(1)(c) application (“no reasonable prospect of success”) appeared to put the burden of proof on the complainant – The court agreed with the chambers judge’s statement that “[t]he question of the onus of proof is not a factor in this decision” – The exercise under s. 27(1)(c) did not involve an onus of proof – The member was not weighing evidence or making findings of fact – See paragraphs 38 to 42.
Civil Rights – Topic 7080
Federal, provincial or territorial legislation – Commissions or boards – Jurisdiction – Pre-investigation decision not to deal with complaint – The complainant, a lawyer, was dismissed from his employment as a legal researcher – He filed a complaint under the Human Rights Code, alleging that he was discriminated against because he was a person of mixed race (African and Canadian) – The employer applied under s. 27(1) of the Code for summary dismissal – A member of the Human Rights Tribunal allowed the application, finding that the complaint had no reasonable prospect of success (s. 27(1)(c)) – A chambers judge dismissed the complainant’s application for judicial review – The complainant appealed, asserting that the chambers judge “erred in law in holding that the legal test for the application of section 27(1)(c) is the wording of the statute” – The complainant asserted that Berezoutskaia v. Human Rights Tribunal (B.C.) et al. (2006 B.C.C.A.) held that the correct test was whether the “evidence takes the case out of the realm of conjecture” – The British Columbia Court of Appeal dismissed this ground of appeal – There was no error in the chambers judge’s statement that the legal test was as set out in s. 27(1)(c) – The judge then noted that the test had been described as “whether the evidence takes the case out of the realm of conjecture” – The latter merely provided the threshold for determining whether a complaint had no reasonable prospect of success – See paragraphs 53 to 55.
Civil Rights – Topic 7080
Federal, provincial or territorial legislation – Commissions or boards – Jurisdiction – Pre-investigation decision not to deal with complaint – [See both
Civil Rights – Topic 7115].
Civil Rights – Topic 7110
Federal, provincial or territorial legislation – Practice – Evidence and proof – [See
Administrative Law – Topic 8932
and first
Civil Rights – Topic 7080
].
Civil Rights – Topic 7115
Federal, provincial or territorial legislation – Practice – Judicial review – Standard of review – The complainant, a lawyer, was dismissed from his employment as a legal researcher – He filed a complaint under the Human Rights Code, alleging that he was discriminated against because he was a person of mixed race (African and Canadian) – The employer applied under s. 27(1) of the Code for summary dismissal – A member of the Human Rights Tribunal allowed the application, finding that the complaint had no reasonable prospect of success (s. 27(1)(c)) – A chambers judge dismissed the complainant’s application for judicial review – At issue on the complainant’s appeal was the complainant’s assertion that Berezoutskaia v. Human Rights Tribunal (B.C.) et al. (2006 B.C.C.A.) was wrongly decided and should be revisited – The British Columbia Court of Appeal held that there was no reason to reconsider Berezoutskaia and no basis on which the court could not consider itself bound by Berezoutskaia – In Berezoutskaia, the court’s task was to construe s. 27 – Berezoutskaia concluded that the standard of review of a decision to dismiss a complaint as having no reasonable prospect of success was patent unreasonableness because the decision was discretionary – On its face, the determination of whether to dismiss a complaint was discretionary: the member could dismiss or not dismiss – The exercise did not involve weighing evidence or making findings of fact – See paragraphs 25 to 31.
Civil Rights – Topic 7115
Federal, provincial or territorial legislation – Practice – Judicial review – Standard of review – The complainant, a lawyer, was dismissed from his employment as a legal researcher – He filed a complaint under the Human Rights Code, alleging that he was discriminated against because he was a person of mixed race (African and Canadian) – The employer applied under s. 27(1) of the Code for summary dismissal – A member of the Human Rights Tribunal allowed the application, finding that the complaint had no reasonable prospect of success (s. 27(1)(c)) – A chambers judge dismissed the complainant’s application for judicial review – At issue on the complainant’s appeal was the standard of review of the member’s decision – The British Columbia Court of Appeal rejected the complainant’s assertion that, while the decision whether to dismiss a complaint was discretionary, determining “whether any of the specified criteria have been met is a question of law and is not discretionary” – This contention was an impermissible parsing of the decision-making process at issue – A determination of whether to dismiss a complaint because it had no reasonable prospect of success was not to be reviewed on more than one standard of review – The inquiry involved the tribunal’s expertise, exercised by the member in her appreciation of whether the complaint had no reasonable prospect of success and in the determination whether to dismiss the complaint or to let it proceed – It was in all respects discretionary – The applicable standard of review was patent unreasonableness – The chambers judge had declined to make an express finding regarding the standard of review because he concluded that on the less deferential standards, both correctness and reasonableness, the member had made no error – There was no error in the chambers judge’s consideration of the standard of review – See paragraphs 32 to 37.
Courts – Topic 583
Judges – Duties – Re reasons for decisions (incl. notes) – The complainant, a lawyer, was dismissed from his employment as a legal researcher – He filed a complaint under the Human Rights Code, alleging that he was discriminated against because he was a person of mixed race (African and Canadian) – The employer applied under s. 27(1) of the Code for summary dismissal – A member of the Human Rights Tribunal allowed the application, finding that the complaint had no reasonable prospect of success (s. 27(1)(c)) – A chambers judge dismissed the complainant’s application for judicial review – The complainant appealed, asserting that the chambers judge’s reasons were inadequate – The British Columbia Court of Appeal rejected this ground of appeal – The complainant’s focus appeared to be on the chambers judge’s review of the evidence before the member – However, it was not the function of a judge on judicial review to undertake “an independent analysis of the evidence”, as contended by the complainant – The judge’s pathway to his conclusions was clear – See paragraphs 81 and 82.
Cases Noticed:
Evans v. University of British Columbia, [2008] B.C.T.C. Uned. 658; 2008 BCSC 1026, refd to. [para. 15].
Lee v. British Columbia (Attorney General) et al. (2004), 204 B.C.A.C. 113; 333 W.A.C. 113; 2004 BCCA 457, refd to. [para. 15].
Berezoutskaia v. Human Rights Tribunal (B.C.) et al. (2006), 223 B.C.A.C. 71; 369 W.A.C. 71; 51 B.C.L.R.(4th) 4; 2006 BCCA 95, folld. [para. 15].
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 29].
VIA Rail Canada Inc. v. Canadian Transportation Agency et al., [2007] 1 S.C.R. 650; 360 N.R. 1; 2007 SCC 15, refd to. [para. 33].
Bibeault – see Syndicat national des employés de la Commission scolaire régionale de l’Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).
Union des employés de service, local 298 v. Bibeault – see Syndicat national des employés de la Commission scolaire régionale de l’Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).
U.E.S., Local 298 v. Bibeault – see Union des employés de service.
Syndicat national des employés de la Commission scolaire régionale de l’Outaouais (CSN) v. Union des employés de service, local 298 (FTQ), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244; 35 Admin. L.R. 153, refd to. [para. 34].
New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 34].
Hartwig v. Commissioner of Inquiry into matters relating to the death of Neil Stonechild, Re – see Stonechild, Re.
Stonechild, Re, [2008] 9 W.W.R. 615; 310 Sask.R. 263; 423 W.A.C. 263; 2008 SKCA 81, dist. [para. 61].
York Advertising Ltd. et al. v. Human Rights Commission (Ont.) et al. (2005), 197 O.A.C. 185; 55 C.H.R.R. 308 (Div. Ct.), dist. [para. 61].
Chrétien v. Gomery et al., [2009] 2 F.C.R. 417; 333 F.T.R. 157; 2008 FC 802, dist. [para. 61].
Bentley v. Braidwood – see Rundel v. Braidwood.
Rundel v. Braidwood (2009), 279 B.C.A.C. 215; 473 W.A.C. 215; 2009 BCCA 604, refd to. [para. 62].
Libby, McNeill & Libby of Canada Ltd. and United Automobile, Aerospace & Agricultural Implement Workers of America et al., Re (1978), 21 O.R.(2d) 362; 91 D.L.R.(3d) 281 (C.A.), dist. [para. 65].
Alberta v. Public Service Employee Relations Board and Alberta Union of Provincial Employees (1985), 61 A.R. 110; 14 Admin. L.R. 277 (Q.B.), dist. [para. 65].
Smith v. Salt Spring Island, 2000 BCHRT 89, dist. [para. 76].
Rigaux v. Gove, J., et al., [1998] B.C.T.C. Uned. 16; 155 D.L.R.(4th) 716 (S.C.), dist. [para. 77].
Statutes Noticed:
Human Rights Code, R.S.B.C. 1996, c. 210, sect. 27(1) [para. 10].
Counsel:
Appellant appeared in person;
P.A. Gall, Q.C., and D.R. Munroe, Q.C., for the respondent, Workers’ Compensation Appeal Tribunal;
D.A. Paluck, for the respondent, BC Human Rights Tribunal.
This appeal was heard at Vancouver, British Columbia, on January 19, 2010, by Mackenzie, Chiasson and Bennett, JJ.A., of the British Columbia Court of Appeal. On April 20, 2010, Chiasson, J.A., delivered the following reasons for judgment for the court.
