2003 BCSC 1947 Troy v. Kemmir Enterprises

Before: The Honourable Madam Justice Loo

Reasons for Judgment

Counsel for the Petitioner	F. M. Kelly and T. D. Timberg
Counsel for the Respondent, Kemmir Enterprises, doing business as Petro Canada	R. N. Hamilton
Counsel for the B.C. Human Rights Tribunal	K. A. Hardie (19 November 2003); M. A. Rea (20 November 2003)
Date and Place of Hearing:	19 and 20 November 2003
	Vancouver, B.C.

[1] This is an application for judicial review to quash the decision of the B.C. Human Rights Commission (the "Commission"), dismissing the petitioner's complaint against the respondent Kemmir Enterprises Inc. (“Kemmir”), and for an order that his complaint be sent to the B.C. Human Rights Tribunal for hearing.

Background

[2] The petitioner, Jason Troy, is a black man. On the evening of July 5, 2000, Mr. Troy attended a meeting in a church. After the meeting ended around 9:30 p.m., he met his friend Damian Wallace for coffee on Commercial Drive until 10:30 or 10:45 p.m. Mr. Troy then drove to the Petro Canada service station on East Hastings Street on the southwest corner of Hastings and Renfrew Streets in Vancouver. The service station is operated by Kemmir.

[3] Mr. Troy was driving a yellow three-quarter ton camper van. After he bought gas, he moved his van from the pumps to the side to use the pay phone. He called his friend Jody Fowler to get directions to his house as he was not familiar with that area of town. Mr. Troy had just recently moved to Vancouver. Mr. Fowler told him that he would meet him at the gas station.

[4] While waiting for Mr. Fowler, Mr. Troy noticed a female employee standing outside the service station convenience store. She was looking at him and talking on her cellular telephone. She then went back into the store.

[5] Mr. Fowler arrived about 10 to 15 minutes later and parked at the southeast corner of the well-illuminated lot, next to Mr. Troy's van.

[6] Within seconds of Mr. Fowler's arrival, two police cars raced in from the northeast corner of the lot and parked their vehicles in front and beside Mr. Troy's van. The police jumped out of their vehicles with their guns drawn.

[7] When Mr. Troy realized that the guns were pointed at him, he slowly got out of his van with his hands in the air. The police ordered him back into the van. He told the police that he was scared and that he did not know what was happening, but the police with their guns pointed at him repeated their order that he get back into his van. Mr. Troy did as the police ordered. He continued to ask what was going on, but the police gave him no answer.

[8] A small crowd of customers had gathered around to see what was happening.

[9] The police continued to hold Mr. Troy at gunpoint while they ran a check on him. He was terribly frightened because a similar event had happened to him in Victoria about eight months earlier.

[10] When the police learned that Mr. Troy had no criminal record, they told him that they had received a call from the station attendant claiming that an attempted robbery or drug deal was taking place.

[11] Mr. Troy asked the police officer if he could resolve matters by giving the attendant an opportunity to straighten things out and apologize to him. The officer went inside and returned to tell Mr. Troy that she was too frightened and traumatized to face him.

[12] Mr. Troy felt he had been treated like a criminal based on racial stereotyping. He was nicely dressed, clean shaven, polite and articulate. He wanted to know why he was being treated the way he was. He believed he was the victim of racial profiling.

[13] The police officers' reactions were based on what the service station attendant Stephanie had relayed to 911: a black male in a camper van had been on the station lot "for a few hours", "trying to case the place", and "it could possibly end up being a drug deal by the looks of it". The transcript of the 911 call reveals the following exchange:

O: Nine one one police fire or ambulance

F: Allright [sic], uh police please, for Vancouver

O: Go ahead

F: Um, I've got a camper van that's sitting in my lot here that it seems like it's trying to case the place, by the looks of it, he's been here for a few hours now.

O: He's trying to what?

F: It looks almost like he's casing the place, he parked on one side of the store for a few hours and now he's on the other side of the store and he's just sitting in his van watching the store.

O: OK, could I have your address please?

F: Twenty-eight ninety East Hastings

…

F: Ya, it's like a big huge Ram van

O: And do you have the licence plate number for that?

F: Um,

M: A three quarter ton camper van

F: Did you see the licence plate? Run, run around the back here. Hang on, we're getting it.

O: OK

F: We can't see it, it's covered by bikes.

O: Ok, can you tell me what type of vehicle it is.

F: It's like yellow, it's a three quarter ton camping van

M: Sitting at the full serve pump

F: Sitting at the full serve pump

O: And he's parked on the premises there?

F: Ya. I think it could possibly end up being a drug deal by the looks of it.

O: And what's the name of the, where you are?

F: Petro Canada

O: Petro Canada?

M: Tell them to swing by and check it out, if she would. Get in the area.

F: Ya. Ya, by the looks of it they might be doing a drug deal or something

…

O: Could you actually see the people in the van?

F: Ya, there's, the guy in the van is over on the other side of the parking lot talking to a guy in another car that just pulled up. I don't know what they're doing, he's been here for a few hours.

O: Is he a white male?

F: No, he's a black male.

O: And what was he wearing?

F: Um, like a dark blue shirt and white pants, like cream white pants.

…

O: And he's actually in the yellow camper?

F: Ya, he's walking around the property.

…

O: How old does he look, this guy?

F: Pardon me?

O: How old does the male look?

F: Uh, I'd say he's in his thirties.

O: OK, how tall is he?

F: He's probably over six feet, just over six feet, fairly hefty, short to no hair pretty much.

O: Is he carrying anything?

F: No, he's not carrying anything, he's wandering around the lot with a different guy.

O: Ok, we'll send an officer around as soon as we can

F: OK, thank you

…

[Emphasis added]

[14] Mr. Troy was neither a robber nor a drug dealer, and he was angry with the way he had been treated. He shared his anger with Kevin McLeod, Kemmir’s service station manager. He received two apologies, one from Petro Canada and one from Kevin McLeod, accompanied by gas coupons, and reimbursement for long distance calls. The letter dated September 11, 2000 from Mr. McLeod states:

I apologize to you for any embarrassment the situation at my station on July 5, 2000 may have caused. It is for the safety and security of both the guests and the staff that any suspicious activity be reported to the police immediately for investigation. I sincerely hope that this does not happen again and we will try to continue to provide a safe environment for all person(s) on and around our property.

[15] On June 14, 2001, Mr. Troy made a detailed written complaint to the Commission alleging that Petro Canada, Kemmir, and the Vancouver City Police had discriminated against him because of his race.

[16] Leanne Dosptial, a Human Rights Officer, investigated his complaint. In her letter dated July 31 2002, to Mr. Troy and others, she recommended that his complaint be dismissed, and stated in part:

… I have reviewed the submissions of the parties and am writing now with my opinion regarding the disposition of this complaint.

Allegation:

The complainant alleges that the respondents discriminated against him because of his race, colour and ancestry contrary to Section 8 of the Human Rights Code.

Complainant's Position:

The complainant states that on the evening of July 5, 2000 he was returning from a meeting and stopped to buy gas and make a phone call at the Petro-Canada at 2890 East Hastings Street in Vancouver. He states that the meeting started at 8:00 p.m. and went until 9:30 p.m., after which he went for coffee with his friend, Damian (the complainant provided Damian's last name in a subsequent conversation but initially he did not know his last name). The complainant states that he arrived at the Petro-Canada around 10:55 p.m. He states that he first bought gas, then needed to use a payphone to call his friend as he was having trouble with his cell phone. He states that he moved his vehicle three times, from the pump to a parking space by the payphone, then to use his cell phone.

He states that he waited for his friend, Jody Fowler, to arrive and the total time he was parked at Petro-Canada was 10 to 15 minutes. While he was waiting for Mr. Fowler the complainant states that an employee came outside of the Petro-Canada and was looking at him and talking on her cell phone. He states that shortly after Mr. Fowler arrived two Vancouver Police Department ("police") cars came into the parking lot with their lights flashing. The police pointed their guns at the complainant and asked for identification from him and Mr. Fowler. The police told the complainant that they had received a report of attempted robbery from the woman inside Petro-Canada.

…

Damian Wallace:

Mr. Wallace states that he has been a friend of the complainant's for six to seven years. He states that he attended a meeting with the complainant on July 5, 2000. He states that this meeting started at 7:30 pm and he was there with the complainant until 9:00 or 9:15 pm. After the meeting they both went to Joe's Café on Commercial Drive where they stayed until 10:30 or 10:45 pm.

…

Stephanie, Kemmir employee who called 911:

Stephanie started working at Kemmir in July 1999 and quit in June 2001. She was working with Blaise Smith on July 5, 2000 and her shift was from 4:00 p.m. to midnight. She states that the complainant was there, at the gas station, for a couple of hours. She states that this was around the time that there were other gas station robberies.

Stephanie states that she thought that this was a drug deal because there were one or two cars that arrived and the drivers got out of their cars to talk to the complainant. She states that the complainant was first parked in the northwest corner of the premises then moved to the east side where he could not be seen by the camera. Stephanie states that she and Mr. Smith looked at the complainant by going out through the front door. She states that drug deals happen a lot there and that she's used to it. She states that the complainant's mannerisms were what made her think that this was drug deal; ie. him being there for so long and different cars coming up to him.

Stephanie states that she called 911 because of the length of time the complainant was on the premises and because there had been other robberies. …

Vancouver Police Department:

The 911 call … was made at 10:31 p.m. and ended at 10:37 p.m. The police arrived on the premises at 10:42 p.m. During the 911 call the operator asked Stephanie questions about the situation and for a description of the vehicle and the complainant. The operator asked Stephanie if the man in the van was white. She responded, "no, he's a black male."

…

Analysis:

The complainant states that he was only at the gas station for ten to fifteen minutes and that he arrived at 10:55 p.m. The 911 transcript indicates that the call was made at 10:31 p.m. and the police arrived at 10:42 p.m. There is a dispute about the length of time the complainant was at the gas station. While the complainant places importance on the length of time at the gas station it is not necessarily relevant to the human rights allegations. The complainant states that the reason 911 was called was because he is black and that he was not at the gas station long enough to create suspicion.

…

The 911 operator was looking for a description of the complainant as a suspect. The operator asked if the complainant was white and the only mention of the complainant's race was in the response that he is black. The police asking for a suspect's identification is reasonable and expected when responding to a call. Again, given the recent robberies in the area and that the police married the two calls they responded appropriately.

While it was reasonable for 911 to be called and the police responded appropriately, this does not mean that the complainant was treated appropriately, but my task is not to determine if the police reacted appropriately once on the scene. My task is to determine, based on the information provided, whether the complainant's race was a factor in the 911 call and the police response. There is no clear link between the complainant's race and the 911 call or police response. Just because the complainant is black does not mean that the call was made because he is black. From the information provided it appears that 911 was called and the police responded because of suspicious behaviour not because the complainant is black.

It is clear from the information provided that Petro-Canada is not responsible for the employees of 2890 East Hastings Street and that Kemmir is the proper respondent in this complaint.

Recommendation:

I recommend that the complainant [sic] against both Kemmir and the police be dismissed under Section 27(1)(c) of the Human Rights Code because "there is no reasonable basis to justify referring the complaint or that part of the complaint to the tribunal for a hearing."I recommend that the complainant [sic] against Petro-Canada also be dismissed under Section 27(1)(c).

…

[Emphasis added]

[17] Counsel for Mr. Troy replied by letter dated August 12, 2002, and disputed a number of the findings, including Mr. Troy’s assertion that he moved his van only once - not three times; that he was there maybe 15 minutes - not “a couple of hours” or a “few hours”; and that he spoke to no one, other than Mr. Fowler. Counsel for Mr. Troy maintained that his complaint should be submitted to the tribunal for hearing, and stated in part:

… the test as to whether or not a matter should be referred to the Tribunal is if prima facie there appears to be a discriminatory act. It is the job of the tribunal to determine if in fact the actions complained of were discriminatory, not the Human Rights Officer. In the complainant's submission, there is ample evidence to support a prima facie case of discrimination.

[18] Cindy Bachman acting as delegate for the Commissioner of Investigation and Mediation, did not agree with Ms. Dospital’s recommendation to dismiss the complaint under s. 27(1)(c). Based on the Vancouver Police investigation and the two letters of apology, Ms. Bachman dismissed the complaint under s. 27(1)(f) as the “complaint has been appropriately dealt with in another proceeding”. In her letter dated September 5, 2002, Ms. Bachman stated:

…

I have reviewed the investigation report [Ms. Dospital's letter dated July 31, 2002] into this complaint and subsequent submission by the Complainant. I do not agree with the recommendation in the report to dismiss this complaint further to s. 27(1)(c). I have decided to dismiss the complaint under s. 27(1)(f) of the Code for the following reasons.

In August 2000 the Vancouver Police Department was informed of your allegation of discrimination. They investigated the matter and found that based on the fact that the police were informed that the suspect was "trying to case the place" or that a "drug deal" may be taking place, their actions were appropriate.

On July 8, 2000 you received a letter of apology from David Charron, Retail Operations Manager of Petrol [sic] Canada regarding the incident. Further, Mr. Charron also enclosed "gas vouchers to compensate you for the long distance telephone calls." Further, on September 11, 2000 you received a second written letter of apology from Kevin McLeod, Manager for Petro Canada.

Based on the Vancouver Police Department's investigation and the fact that Petro Canada looked into the situation and provided you with two letters of apology, I have decided to dismiss this complaint further to s. 27(1)(f) as "the complaint has been appropriately dealt with in another proceeding."

As a result, this complaint will not proceed to a hearing, and the file has been closed.

Analysis

[19] The Human Rights Code, R.S.B.C. 1997, c. 22 (as amended) (the "Code") recognizes that there are ingrained patterns of discrimination against certain persons or groups in society.

[20] Section 3 of the Code provides:

Purposes

3 The purposes of this Code are as follows:

(a) to foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia;

(b) to promote a climate of understanding and mutual respect where all are equal in dignity and rights;

(d) to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by this Code;

(e) to provide a means of redress for those persons who are discriminated against contrary to this Code;

…

[21] The provisions of the Code are paramount:

Code prevails

4 If there is a conflict between this Code and any other enactment, this Code prevails.

[22] A person must not without bona fide and reasonable justification discriminate because of race or colour:

Discrimination in accommodation, service and facility

8 (1)A person must not, without a bona fide and reasonable justification,

(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or

(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public

because of … race, colour, …

[23] The Commission has authority to dismiss a complaint pursuant to s. 27 of the Code:

Dismissal of a complaint

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;

…

(f) the substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding;

(g) the contravention alleged in the complaint or that part of the complaint occurred more than 6 months before the complaint was filed unless the complaint or that part of the complaint was accepted under section 22(3).

[24] The leading case on the test to be applied by the Commission, is Rogers v. British Columbia (Council of Human Rights), [1993] B.C.J. 698, where Shaw J. states at ¶28 to 32:

¶ 28 … The scope of the evaluation is limited to that which is necessary to determine whether there is a reasonable basis in the evidence for carrying on the claim to the next stage.

¶ 29 I should emphasize that the evaluation or weighing of the evidence for the purpose of determining whether a complaint should be discontinued is not of the same nature as that which occurs at a hearing in court or before a tribunal. In those forums the task is to make a decision based upon the court's or tribunal's assessment of the evidence on a balance of probabilities. The weighing or assessing at the discontinuance stage should relate solely to the question of whether there is a reasonable basis in the evidence to warrant taking the complaint further. I will elucidate this approach by some examples.

¶ 30 If the principal evidence in an investigation report consists of assertions, opinions or hearsay that are without supporting detail or other verification, then it is open to the Council to determine that the evidence is so lacking in substance that moving the complaint to the next stage is not warranted. This may also be done even where there is some direct evidence to support a complaint, but the rest of the evidence brought out by the investigation demonstrates to the Council that there is no reasonable chance that the complaint will succeed. An example is where a complaint is explained away by evidence which is clearly unimpeached.

¶ 31 While as a general rule the Council should not decide questions of credibility that are reasonably in dispute that should be for the hearing stage there may be some occasions when credibility may properly be considered. For example, where the evidence as a whole is overwhelmingly against what the complainant or a witness says, then, in my view, the Council may properly conclude that there is not a reasonable basis in the evidence to warrant carrying on further with the complaint.

¶ 32 Where there is no direct evidence of discrimination but the question is whether an inference of discrimination may be drawn from the evidence in the investigation report, then the Council may determine whether there is a reasonable basis in the evidence to go to the next stage by using the test developed by Huddart J. in Onischak [Onischak v. British Columbia (Council of Human Rights) (1989), 10 C.H.R.R. D/6290 (B.C.S.C.)], that being whether the complainant's case has been taken out of the realm of conjecture. In arriving at this conclusion, quite clearly the collective experience and common sense of the Council members will have to be brought into play.

[25] Mr. Troy complained that he was discriminated against based on racial stereotyping. He does not need to show that discrimination comprised the sole factor in the conduct complained of, and he only needs to raise a prima facie case that it was a factor. The burden is not an onerous one. This is because the law recognizes that discrimination is rarely openly displayed, and in most cases, must be inferred from circumstantial evidence.

[26] In the recent case of Lee v. British Columbia (Attorney General), 2003 BCSC 1432 Ross J. stated at ¶22 and 23:

The Test

[22] The Decision states that: "the complainant has not provided any evidence that this decision was based on his race, ethnicity or place of origin". That statement is a misstatement of the test. A human rights complainant is not required to establish that a decision was based on a prohibited ground, only that a prohibited ground was a factor in the decision; see Premakumar v. Air Canada, [2002] C.H.R.D. No. 3 No. TD 3/02 at para. 82 and Kennedy v. British Columbia (Ministry of Energy and Mines), 2000 B.C.H.R.T. 60, [2000] B.C.H.R.T.D. 60.

Evidence

[23] In Kennedy, supra, the requirements are stated at paras. 58-60 as follows:

The Complainant must prove on a balance of probabilities that the Ministry discriminated against him because of his race, colour or ancestry. He need not establish that a prohibited ground was the sole or even the most significant factor, merely that it was a factor that contributed to the discrimination. His initial evidentiary burden is to establish a prima facie case. That is, he must provide evidence from which it is reasonable to infer that the Ministry discriminated against him because of one of the listed characteristics.

Human rights tribunals and boards of inquiry have frequently noted that the initial burden [sic] complainants is not an onerous one: see, for example, Mbaruk v. Surrey School District No. 36 (1996), 30 C.H.R.R. D/182 (B.C.C.H.R.) at para. 41 and cases cited therein. This is so because it is recognized that discrimination is rarely displayed openly. Rather, discrimination must be inferred from circumstantial evidence.

If the Complainant establishes a prima facie case, the evidentiary burden then shifts to the Ministry to provide evidence of a credible non-discriminatory reason for its conduct.

[27] Counsel for Kemmir concedes that its apology to Mr. Troy, gas coupons, and reimbursing him for telephone calls is not "another proceeding" within the meaning of s. 27(1)(f). However it contends that the Commission came to the right decision for the wrong reasons. It maintains that the evidence before the Commission shows that Mr. Troy was at the service station for at least 25 minutes (not just 10 to 15 minutes as he says) and he moved his van three times. His behaviour was therefore suspicious and it was reasonable for Stephanie to call 911.

[28] Kemmir further argues that discrimination must be conscious on the part of the station attendant and a motivating factor for her call to the police.

[29] On this last point, I disagree.

[30] In R. v. Williams, [1998] 1 S.C.R. 1128, McLachlin J. (as she then was) commented on the insidious nature of racism, and stated at p. 1142-3:

21 To suggest that all persons who possess racial prejudices will erase those prejudices from the mind when serving as jurors is to underestimate the insidious nature of racial prejudice and the stereotyping that underlies it. As Vidmar, supra, [Vidmar, Neil. "Pretrial prejudice in Canada: a comparative perspective on the criminal jury" (1996), 79 Judicature 249] points out, racial prejudice interfering with jurors' impartiality is a form of discrimination. It involves making distinctions on the basis of class or category without regard to individual merit. It rests on preconceptions and unchallenged assumptions that unconsciously shape the daily behaviour of individuals. Buried deep in the human psyche, these preconceptions cannot be easily and effectively identified and set aside, even if one wishes to do so. For this reason, it cannot be assumed that judicial directions to act impartially will always effectively counter racial prejudice: see Johnson, supra. Doherty J.A. recognized this in Parks, supra, at p. 371:

In deciding whether the post-jury selection safeguards against partiality provide a reliable antidote to racial bias, the nature of that bias must be emphasized. For some people, anti-black biases rest on unstated and unchallenged assumptions learned over a lifetime. Those assumptions shape the daily behaviour of individuals, often without any conscious reference to them. In my opinion, attitudes which are engrained in an individual's subconscious, and reflected in both individual and institutional conduct within the community, will prove more resistant to judicial cleansing than will opinions based on yesterday's news and referable to a specific person or event.

22 Racial prejudice and its effects are as invasive and elusive as they are corrosive. We should not assume that instructions from the judge or other safeguards will eliminate biases that may be deeply ingrained in the subconscious psyches of jurors. Rather, we should acknowledge the destructive potential of subconscious racial prejudice by recognizing that the post-jury selection safeguards may not suffice. Where doubts are raised, the better policy is to err on the side of caution and permit prejudices to be examined. Only then can we know with any certainty whether they exist and whether they can be set aside or not. …

[31] Therefore, the question is whether the Commission erred by dismissing the complaint under s. 27(1)(c).

Conclusion

[32] In my opinion, there were issues in dispute which should not have been evaluated or determined by the Commission, but referred to the tribunal for hearing. In Jacques v. British Columbia (Council of Human Rights) (1998), 161 D.L.R. (4th) 137, the B.C. Court of Appeal found that a complainant is entitled to a hearing if he can satisfy the relatively low threshold test of whether the evidence took the allegation beyond the realm of conjecture. In dealing with Mr. Troy's complaint, the Commission failed to ask itself a number of crucial questions that were in dispute, including: why did Stephanie tell 911 that Mr. Troy had been at the service station "for a few hours" when even Kemmir contends he was there for less than half an hour; why did she say it seemed like he was "casing the place"; why did she say that "it could possibly end up being a drug deal by the looks of it," especially if as Mr. Troy says he moved his van only once to the pay phone and not three times (even I question whether driving into the station and pulling up to the pumps can be counted as one move); why was she suspicious of his behaviour; and would she have reacted in the same manner or been suspicious if Mr. Troy instead of being a black male, had been a white female?

[33] I conclude that there was a reasonable basis in the evidence for referring the complaint to the next stage. There will be an order quashing the decision of the Commission, and an order referring the complaint against Kemmir Enterprises Inc., to the B.C. Human Rights Tribunal, and an order for costs.

“L.A. Loo, J.”
The Honourable Madam Justice L.A. Loo

April 15, 2004 – Corrigendum to the Reasons for Judgment issued by Madam Justice Loo advising that this Corrigendum is issued pursuant to my Supplementary Reasons for Judgment dated 15 April 2004 (2004 BCSC 499).

[2] Kemmir's name, as set out in the style of cause of my Reasons for Judgment dated 24 December 2003 (2003 BCSC 1947) is amended to read as follows: "Kemmir Enterprises Inc."

[3] Accordingly, paragraphs 1, 2, 14, 15, 27, 28, 32 and 33 are amended to read as follows:

[1] This is an application for judicial review to quash the decision of the B.C. Human Rights Commission (the "Commission"), dismissing the petitioner's complaint against the respondent Kemmir Enterprises Inc. ("Kemmir"), and for an order that his complaint be sent to the B.C. Human Rights Tribunal for hearing.

[14] Mr. Troy was neither a robber nor a drug dealer, and he was angry with the way he had been treated. He shared his anger with Kevin McLeod, Kemmir's service station manager. He received two apologies, one from Petro Canada, and one from Kevin McLeod, accompanied by gas coupons, and reimbursement for long distance calls. The letter dated September 11, 2000 from Mr. McLeod states:

[28] Kemmir further argues that discrimination must be conscious on the part of the station attendant and a motivating factor for her call to the police.

Citation:	*Troy v. Kemmir Enterprises Inc.,*
	2003 BCSC 1947