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ENFORCEMENT AND PROCEDURE - Commissions - Powers - Investigation

Tuesday, May 04, 2021 @ 6:35 AM  

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Appeal by Gichuru from a decision dismissing his application for judicial review of a decision of a Human Rights Tribunal. The appellant alleged that the respondent VSS discriminated against him based on age, sex and race after banning him from attending its events. The VVS determined the appellant’s conduct towards younger female members was problematic. The Tribunal refused to accept the complaint for filing. It concluded that the appellant had made no allegations that suggested discrimination based on age or sex, and the allegations based on race were speculative. The Tribunal reconsidered this Screening Decision but maintained its refusal in a Reconsideration Decision. The chambers judge concluded that the Tribunal was correct in determining that it had jurisdiction to not accept a complaint, but that the Tribunal’s jurisdiction to refuse to accept a complaint was grounded not in s. 21(1) of the Code, but in s. 27(1). The judge concluded that the Tribunal’s screening decisions were discretionary decisions to which the standard of patent unreasonableness applied. He noted that the Tribunal considered the issue in finding an insufficient causal nexus to the allegations of discrimination and held that it was not patently unreasonable to decide that the appellant’s age and sex did not directly impact VSS’s decision. The chambers judge was not persuaded by the appellant’s arguments that the Tribunal failed to inform him of the nature of the process being undertaken or that he was denied the opportunity to obtain evidence through disclosure before his complaint was filed. He held that overall, the Tribunal had adequately addressed the issues raised by the appellant and had analyzed the complaints and the new evidence with due consideration of the complexities of discrimination, power dynamics and the alleged stereotyping.

HELD: Appeal dismissed. While the appellant had not raised the basis for the Tribunal’s jurisdiction before the Tribunal, consideration of s .27(1)(b) of the Code was not precluded by the pleadings, as the Tribunal raised its power under that section in its response to the petition. While the Tribunal did not ground its source of authority under s. 27(1)(b), the application of s. 27(1) at the outset of a complaint was raised and discussed. The chambers judge did not err in concluding that the Tribunal’s jurisdiction to screen complaints was grounded in s. 27(1) of the Code. The Tribunal’s procedures for screening complaints was consistent with the screening authority in s. 27(1) which gave the Tribunal a broad substantive power to end a complaint on its own motion, without a hearing and with or without notifying a respondent, on any of the grounds listed. There was no substantive difference between not accepting a complaint and dismissing a complaint without a hearing. The Tribunal had established a Tribunal-driven screening process that applied the arguable contravention test from s. 27(1)(b) to all complaints. It had also established a respondent-driven process for summary dismissal of complaints under s. 27(1). The Tribunal explained what it required from the appellant. The chambers judge did not err in concluding that the Tribunal’s procedures respecting the Screening Decision were not unfair. The Tribunal clearly stated at the outset that a complaint must set out facts that, if proven, could constitute a violation of the Code, and explained that it required the appellant to provide specific information to link the respondents’ acts to the alleged grounds of discrimination. The Tribunal did not consider that the information provided by the appellant contained that nexus. The screening process did not entitle the appellant to adduce evidence, nor did it preclude him from making any submissions he considered appropriate in relation to the information requested by the Tribunal.

Gichuru v. Vancouver Swing Society, [2021] B.C.J. No. 440, British Columbia Court of Appeal, G. Dickson, B. Fisher and P.G. Voith JJ.A., March 9, 2021. Digest No. TLD-May32021006