IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Carter v. Travelex Canada Limited,

 

2008 BCSC 405

Date: 20080409
Docket: S075549
Registry: Vancouver

IN THE MATTER OF THE BRITISH COLUMBIA HUMAN RIGHTS CODE, R.S.B.C. 1996,
C. 210 AS AMENDED; THE JUDICIAL REVIEW PROCEDURE ACT, R.S.B.C. 1996, C.
241; THE ADMINISTRATIVE TRIBUNALS ACT, S.B.C. 2004, C. 45; RULES 10 AND 57
OF THE RULES OF COURT; AND THE DECISION OF DIANE MACLEAN, TRIBUNAL
MEMBER OF THE BRITISH COLUMBIA HUMAN RIGHTS TRIBUNAL, MADE JUNE 21,
2007

Between:

Shirley Carter

Petitioner

And

Travelex Canada Limited and Travelex U.K. Limited

Respondents


Before: The Honourable Mr. Justice Hinkson

Reasons for Judgment

Counsel for the Petitioner

N. Steinman

Counsel for the Respondents

T.L. Mackie

Counsel for the B.C. Human Rights Tribunal

Denise Paluck

Date and Place of Trial/Hearing:

February 28 and 29, 2008

 

Vancouver, B.C.

INTRODUCTION

[1]                The petitioner seeks a judicial review of the decision of the B.C. Human Rights Tribunal (the ďTribunalĒ) in Carter v. Travelex UK (No. 3), 2007 BCHRT 275, [2007] B.C.H.R.T.D. No. 275 (QL) with respect to what she alleges was her wrongful dismissal by the respondents.

[2]                The petitioner seeks the following remedies:

a)†††††††† An order or declaration that the Tribunal had no jurisdiction to dismiss her complaint to it because she failed to accept a settlement offer from the respondents;

b)†††††††† That the Tribunalís order dismissing her complaint be set aside as patently unreasonable; and/or

c)†††††††† That the Tribunal re-set her complaint for hearing.

BACKGROUND

[3]                The petitioner was born on March 11, 1947. She was employed by the respondent Travelex Canada Ltd. or its predecessors for a period in excess of 10 years prior to April 2004.

[4]                The petitioner says that as a result of a variety of events that occurred at her workplace beginning in November of 2004, she suffered a depression to such an extent that she went on a short term disability leave. She argues that her election to go on short term disability led to wrongful dismissal from her employment in April 2004, and as a result, she sought relief from the Tribunal including:

a)†††††††† a finding of discrimination;

b)†††††††† an award for injury to dignity, feelings and self respect; and

c)†††††††† an award for loss of earnings.

[5]                The respondents concede that they purported to dismiss the petitioner on the basis of the medical review of her condition by the administrator of their short term disability plan, and that her short term benefits were at one time cancelled. They say, however, that they rescinded that dismissal and resumed her benefits when they received a revised review from their plan administrator. The respondents argue that the plaintiff is still employed, albeit on a long term disability leave.

[6]                The petitioner filed a complaint of discrimination against the respondents with the Tribunal on October 13, 2005. The respondents delivered their reply to the petitioner on April 18, 2006.

[7]                In April 2007, the petitioner commenced a wrongful dismissal action against the respondents in this Court, seeking a variety of remedies, some of which are unavailable in proceedings before the Tribunal.

[8]                The petitioner applied for document disclosure before the Tribunal, and filed various documents in support of that application.

[9]                The petitioner and the respondents exchanged settlement offers in an effort to resolve the issues before the Tribunal, but were unable to achieve a settlement. Ultimately, the respondents applied to the Tribunal for a dismissal of the petitionerís complaint on the grounds that the petitioner had refused a reasonable settlement offer from the respondents.

[10]            On June 21, 2007, the Tribunal allowed the respondentsí application pursuant to s. 27(1)(d)(ii) of the Human Rights Code, R.S.B.C. 1996, c. 210 [Code], with written reasons, and it is that decision of the Tribunal which is the subject of this application.

ANALYSIS

[11]            Section 3 of the Code sets out its purposes. Included in this section of the Code as purposes are:

Ö

(c)††††††† to prevent discrimination prohibited by this Code; and

Ö

(e)††††††† to provide a means of redress for those persons who are discriminated against contrary to this Code. [Emphasis added.]

[12]            The standard of review of a decision of an administrative tribunal has been the subject of a number of appellate decisions, and is legislated in British Columbia under the Administrative Tribunals Act, R.S.B.C. 2004, c. 45 [Act]. Since counsel argued this application, the Supreme Court of Canada has revisited its earlier jurisprudence on the standard of review for such cases in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9 (QL) [Dunsmuir]. In Dunsmuir, the court stated that, depending on the nature of the issue to be reviewed, there are but two standards of review: correctness for issues of jurisdiction and other questions of law, and reasonableness for issues of fact, discretion or policy.

[13]            The Code does not contain a privative clause. In the event that a tribunalís enabling legislation does not provide a privative clause, as is the case here, s. 59 of the Act provides:

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,

(c)††††††† is based entirely or predominantly on irrelevant factors, or

(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.

[14]            In the result, despite the recent decision of the Supreme Court of Canada in Dunsmuir, three standards of review remain applicable on judicial review in British Columbia depending upon the nature of the question or questions raised.

Did the Tribunal Have Jurisdiction?

[15]            The petitioner argues that there is no statutory authority that would permit the Tribunal to dismiss the petitionerís complaint in the manner it did. Under s. 59(1) of the Act, the question of jurisdiction attracts a standard of correctness for the purpose of judicial review.

[16]            Section 27(1)(d)(ii) of the Code provides:

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:

Ö

(d)††††††† proceeding with the complaint or that part of the complaint would not

Ö

(ii)††††††† further the purposes of this Code;

[17]            In Scott v. CPAC (Crescent Gardens) Inc. et al., 2003 BCSC 222 at paras. 12-13, 120 A.C.W.S. (3d) 385 [Scott], Gray J. considered this subsection and concluded that:

The British Columbia Human Rights Commission has discretion under section 27 of the Code to dismiss a complaint where proceeding with it would not further the purposes of the Code. The purposes of the Code require the Commission to look at more than just the individual rights of the complainant and respondent. In considering how to "foster a society in British Columbia in which there are no impediments to full and free participation" and in promoting "a climate of understanding and mutual respect," the Commission must look beyond the individual complaint. It can take into account whether it will advance the purposes of the Code to use public funds for further investigation of a complaint and a possible hearing of a complaint which can be settled reasonably. It is entitled to sift through complaints and remove a number of them from the time-consuming process of investigation and hearing at public expense.

As with the Canadian Commission in Garnhum, supra, the British Columbia Commission can take into account considerations from its public policy role, including that of administrative efficiency. The reasonableness of the terms of an offer of settlement is a fact that may legitimately be considered in balancing public policy considerations with the need of complainants to have their complaints adjudicated. Therefore, the Commissioner can dismiss a complaint on the basis that a respondent is prepared to make a reasonable settlement.

[18]            The petitioner argued that because s. 27 of the Code includes various specific bases upon which a complaint can be dismissed, but no specific grant of authority to dismiss a complaint for failure to accept a reasonable offer of settlement, there is no statutory authority to dismiss on such a ground.

[19]            I consider that the reasoning of Gray J. in Scott applies equally to the present Human Rights Tribunal and is the established and preferred approach to statutory interpretation that is articulated by Professor Driedger in Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1994) at 87. This requires that the words of the enactment be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the Legislature: see Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 at para. 26, [2002] 2 S.C.R. 559.

[20]            I do not consider that the list of categories in s. 27 of the Human Rights Code to preclude the application of subsection (1)(d)(ii) by the Tribunal in this case, and find that such an application is within the jurisdiction of the Tribunal. The fact that the Legislature has not chosen to adopt rules or regulations with respect to settlement does not detract from the scope of s. 27.

[21]            The Tribunal addressed the reasoning in Scott, and found at para. 24 of its decision which is the subject of this review:

Scott was decided prior to the amendments to the Code which eliminated the Human Rights Commission and transferred the discretion to dismiss a complaint under s. 27 to the Tribunal. However, in Dar Santos v. University of British Columbia, 2003 BCHRT 73, the Tribunal decided that the authority to dismiss a complaint based on the refusal to accept a reasonable settlement offer applies equally to it:

I accept that, the ďpurposes of the CodeĒ go beyond the individual rights of a complainant and a respondent. The purposes of the Code, as outlined in s. 3 include several public policy purposes. Thus, the assessment of whether proceeding with a complaint will further the purposes of the Code, involves more than an assessment of an individual complaint, but encompasses broader public policy issues, such as the efficiency and responsiveness of the human rights system and the expense and time involved in processing a complaint to a hearing. Specifically, I agree that one example of the kind of complaint that in some circumstances would not further the purposes of the Code is one in which a complainant refused to accept a reasonable settlement offer.

[22]            Having referred to these precedents, the Tribunal then went on at para. 27 to cite Demassi v. City of Vancouver (No. 2), 2006 BCHRT 220, [2006] B.C.H.R.T.D. No. 200 (QL) in following a two step process to first determine if the settlement offer was reasonable, and if so, whether it would serve the purposes of the Code to allow the complaint to proceed. In so doing, the Tribunal considered the petitionerís allegations on the basis that they would be proven.

[23]            I pause to note that one of the purposes of the Code is to provide ďa meansď, not necessarily the only means, of redress to those discriminated against contrary to the Code.

[24]            I find that the Tribunal had the jurisdiction to proceed as it did in this case.

Was the Tribunalís Decision Patently Unreasonable?

[25]            The petitioner says that she wanted more than money for the injury to her dignity and self-respect from her complaint to the Tribunal; she wanted a finding that she had been discriminated against and an award for loss of earnings. She argues that these are among the purposes of the Code.

[26]            The petitioner argues that if the Tribunal had jurisdiction to make an order dismissing her complaint for failure to accept a reasonable settlement offer, its decision to do so on the facts of this case was patently unreasonable as it deprived her of findings of discrimination and compensation for her loss of wages. On this issue, s. 59 of the Administrative Tribunals Act requires a finding of patent unreasonableness before the decision will be overturned.

[27]            I see nothing that is patently unreasonable in the decision of the Tribunal under review. The settlement figure for injury to the petitionerís dignity and self-respect was in fact greater than the sum proposed by the petitioner for that head of damages, and counsel agreed that the figure was at the upper range of the awards made by the Tribunal in other cases for such claims.

[28]            I reject the petitionerís submission that the Tribunal forgot or ignored the obligations it has under ss. 3(c) and 3(e) of the Code. Section 3 of the Code is specifically mentioned at para. 48 of the Tribunalís decision, and addressed in the paras. that follow it.

[29]            The petitioner acknowledged that courts are quite prepared to make findings of discrimination and to award even punitive damages without requiring an earlier finding of discrimination by a human rights tribunal, a fact that the Tribunal addressed at para. 42 of its decision.

[30]            The Tribunal was also alive to the petitionerís wish for a finding that she had been discriminated against, finding at para. 53 that:

ÖTherefore, there is no public purpose to be served in allowing this complaint to proceed and, in particular, it is not in the public interest to use the Tribunalís limited resources as a tool to gain a litigation advantage in another proceeding. I note that Travelexís offer remains open, regardless of the decision on this application to dismiss, and that the offer does not prevent Mrs. Carter from continuing her court action.

[31]            While the petitioner says that one of her motives for seeking a finding of discrimination from the Tribunal was its potential litigation advantage for her application to this Court, her other motive stated on this application was to obtain a public denunciation of the respondentís conduct toward her. However, as indicated above, the Code does not purport to provide every remedy desired by a complainant, offering only ďa meansĒ of redress.

[32]            This approach is consistent with the approach taken by the Tribunal in Lawrence v. Chartwell Construction Ltd., 2007 BCHRT 49 at para. 51, [2007] B.C.H.R.T.D. No. 49 (QL):

First, what Mr. Lawrence says is necessary for him to achieve the public vindication he seeks is a cease and desist order from the Tribunal. If this was a sufficient basis upon which to find that allowing a complaint to proceed would further the purposes of the Code, the effect would be that the Tribunal could never dismiss a complaint on the basis of a reasonable settlement offer. That is because that is an order which the Tribunal can only make upon finding the complaint justified under s. 37. To accept this as a reason for allowing the complaint to proceed would therefore be inconsistent with the Tribunalís case law in this area. Ö

[33]            I consider that the same could be said of the petitionerís argument that only if the settlement offer addresses every remedy she thinks fit can an offer of settlement be found to be reasonable. To so find would mean that the reasonableness of a settlement offer would only be viewed from the perspective of the complainant, thus rendering the public interest a secondary consideration, or no consideration at all.

[34]            Such a conclusion would be contrary to the reasoning in Losenno v. Ontario Human Rights Commission (2005), 78 O.R. (3d) 161 at para. 44, 260 D.L.R. (4th) 298 (Ont. C.A.), leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 531, which I adopt:

Board proceedings can be lengthy and costly to the complainant, especially if the Commission withdraws from the procedure after referral to a board, as it might well do because of the sufficiency of an offer, and the complainant is forced to carry on before the board of inquiry on his or her own: see McKenzie Forest Products Inc. v. Tilberg (2000), 48 O.R. (3d) 150, [2000] O.J. No. 1318, 185 D.L.R. (4th) 257 (C.A.), leave to appeal refused [2000] S.C.C.A. No. 285. An offer to settle can recognize the injury done to the complainant, provide reasonable compensation and uphold the public interest. In my view, allowing the Commission to consider an offer to settle is consistent with the legislative intent.

[35]            Even before the Tribunalís decision, the petitioner had commenced a civil action in this Court seeking compensation for what she alleges was her wage loss. She is plainly of the view that she can seek that remedy from other than the Tribunal.

[36]            I share the view that the petitioner can seek a remedy for any wage loss that she can prove from this Court. While the Tribunal rejected the claim before it for lost wages on the basis that the petitioner had failed to quantify her claim for this loss, and the petitioner argues that the Tribunal had the information necessary to allow it to do so from material filed in support other applications in the matter, she does have another forum where she can seek a remedy for any wage loss that she can prove. The respondents agree that she can do so and that they will not rely upon the decision of the Tribunal as a defence to such a claim in this Court.

[37]            I need not decide whether the petitionerís material from earlier application ought to have been considered by the Tribunal, as there is a complete answer to the petitionerís assertion that she ought to have received an award for lost wages from the Tribunal. Other decisions make it clear that the Tribunal does not provide compensation to successful complainants for lost wages for periods of time that they are unable to work due to disability or illness: see Toivanen v. Electronic Arts (Canada) Inc., 2006 BCHRT 396, [2006] B.C.H.R.T.D. No. 396 (QL); McArthur v. M&A Ventures Ltd., [1996] B.C.C.H.R.D. No. 32 (QL); and Flamand v. Chow, [1989] B.C.C.H.R.D. No. 10 (QL).

[38]            On the evidence before the Tribunal, the petitioner was receiving and accepting wage loss benefits from the respondents and the respondents say that she can only do so if her employment was not terminated. She was not, unless wrongfully dismissed, entitled to a claim for wage loss. As I have stated above, she is free to pursue and is indeed pursuing that remedy in this Court in other proceedings.

Did the Tribunal Deprive the Petitioner of her Right to Natural Justice?

[39]            The petitioner further argues that she was deprived of the right to natural justice as a result of the Tribunalís decision.

[40]            Under s. 59(4) of the Administrative Tribunals Act, this issue should be reviewed on the basis of whether or not the Tribunal acted fairly.

[41]            The issue was discussed by Donald J.A. with respect to the Human Rights Commission under the former Human Rights Code in Lee v. British Columbia (Attorney General), 2004 BCCA 457 at para. 27, 32 B.C.L.R. (4th) 1:

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. I do not think it can be said that the decision to dismiss the complaint was patently unreasonable. Mr. Lee said racism influenced BC Hydro's decisions relating to his career. BC Hydro said racism played no part in the matter. It was open to the HRC to decide that there was nothing in the evidence that moved the allegation from speculation to inference: see Jacques v. British Columbia (Council of Human Rights) (1998), 51 B.C.L.R. (3d) 111, 161 D.L.R. (4th) 137 at para. 25 (C.A.). Before us, Mr. Lee was unable to bring out anything that takes the case over the line in an obvious way so that it can be said that the dismissal of his complaint was patently unreasonable. As I said in my introductory remarks, the reviewing judge appears to have substituted her own view of the evidence for that of the HRC contrary to the approach set out in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19 at para. 42. It is clear that the legislature intended the screening to be done by the HRC, not the courts.

[42]            I consider that those comments apply in these circumstances as well. I am fortified in that view by the decision of the B.C. Court of Appeal in Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at para. 26, 223 B.C.A.C. 71, leave to appeal to the S.C.C. refused, [2006] S.C.C.A. No. 171.

[43]            In this case, the Tribunal offered the petitioner and the respondents the opportunity to file material in support of their positions, and to make whatever submissions they chose in support of their positions. The Tribunal decided the matter based upon its own precedents with the benefit of applicable case authorities. In my view, there was no denial of natural justice by the Tribunal in this case.

CONCLUSION

[44]            The petitionerís application for judicial review of the decision of the Tribunal of June 21, 2007 is dismissed with costs to the respondents at Scale B.

[45]            Although the Tribunal appeared by counsel in this matter, it properly restricted its submissions to addressing the record of the proceedings, the legislative and procedural context of the decision, jurisdiction, standards of review, and the relief available pursuant to the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241. It refrained from submissions on the merits of the positions of the parties.

[46]            Counsel for the Tribunal properly refrained from asking for costs, consistent with the decision in Lang v. British Columbia (Superintendant of Motor Vehicles), 2005 BCCA 244, 212 B.C.A.C. 78, and in the result, there will be no order for costs for or against the Tribunal.

ďHinkson J.Ē