Drover v. Engineers and Geoscientists British Columbia and another (No. 2), 2024 BCHRT 173
Date Issued: June 4, 2024
File: CS-001079
Indexed as: Drover v. Engineers and Geoscientists British Columbia and another (No. 2),
2024 BCHRT 173
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
David Drover
COMPLAINANT
AND:
Engineers and Geoscientists British Columbia and Efrem Swartz
RESPONDENT
REASONS FOR DECISION
APPLICATION TO RECONSIDER A DECISION
RULE 36
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Tribunal Member: |
Andrew Robb |
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On his own behalf: |
David Drover |
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No submissions from the Respondents |
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I INTRODUCTION
[1] David Drover filed a human rights complaint against Engineers and Geoscientists British Columbia [EGBC], which regulates the professions of engineering and geoscience in British Columbia, and Efrem Swartz, an employee of EGBC. His complaint alleged that the Respondents failed to accommodate his disabilities during the process that led to the cancellation of his membership in EGBC.
[2] The Respondents applied to dismiss the complaint. Among other things, they argued that they were reasonably certain to prove their conduct in relation to Mr. Drover was justified under the Human Rights Code . In an earlier decision, I allowed the application and dismissed Mr. Drover’s complaint: Drover v. Engineers and Geoscientists British Columbia and another , 2024 BCHRT 121 [the Original Decision].
[3] Mr. Drover filed an application for reconsideration of the Original Decision, under Rule 36 of the Tribunal’s Rules of Practice and Procedure. He says the Tribunal’s process was unfair to him in several ways. In particular he says that in the Original Decision I overlooked or refused to consider relevant evidence. He also says the Tribunal should consider new evidence, which was not included in his response to the application to dismiss.
[4] For the reasons set out below, I dismiss the application for reconsideration. I am not persuaded that the Tribunal’s process was unfair to Mr. Drover, and I find the new evidence he submitted would not have affected the Original Decision.
II BACKGROUND
[5] The background to the complaint is set out in the Original Decision. In summary, Mr. Drover was an engineer, and EGBC appointed a panel to consider disciplinary measures against him. Before EGBC considered disciplinary measures against Mr. Drover, the Association of Professional Engineers and Geoscientists of Alberta [APEGA], EGBC’s counterpart in Alberta, found he had engaged in professional misconduct, and cancelled his membership, which meant he could no longer work as an engineer in Alberta. EGBC’s disciplinary panel ultimately decided to cancel Mr. Drover’s membership in EGBC as well, which meant he could no longer work as an engineer in British Columbia. Mr. Drover claimed that EGBC and its lawyers discriminated against him by communicating with him during the disciplinary panel process, even though they knew or ought to have known that doing so would aggravate the symptoms of his disability.
[6] In the Original Decision, I found the Respondents were reasonably certain to establish that EGBC’s communications with Mr. Drover, including communications by lawyers hired by EGBC, were justified under the Code. On that basis I dismissed Mr. Drover’s complaint.
[7] Mr. Drover filed this application for reconsideration on May 2, 2024. After it was filed, he continued to send emails to the Tribunal about the application. I have reviewed all the email correspondence the Tribunal has received from Mr. Drover regarding this complaint file since the application for reconsideration was filed, including one email dated May 2, 2024 (after the application for reconsideration was filed), two emails dated May 3, 2024, one email dated May 13, 2024, and one email dated May 18, 2024. Much of this correspondence relates to events that occurred before APEGA cancelled his membership, and to his attempts to contact EGBC after EGBC blocked his email address, and his attempts to initiate court proceedings against EGBC after EGBC obtained a court order providing that he must seek leave to do so. Based on my review of these emails, I find they are not relevant to the Original Decision, or Mr. Drover’s application for reconsideration.
III ANALYSIS AND DECISION
[8] Under Rule 36, the Tribunal has a limited jurisdiction to reconsider its own decisions. Specifically, the Tribunal may reconsider a decision if it is in the interests of justice and fairness to do so: Routkovskaia v. British Columbia (Human Rights Tribunal) , 2012 BCCA 141 at para. 23. The Tribunal exercises this power sparingly, giving due consideration to the principle of finality in administrative proceedings. The burden is on the person seeking to have a matter re-opened to show that the interests of fairness and justice demand such an order: Grant v. City of Vancouver and others (No. 4),2007 BCHRT 206 at para 10.
[9] The Tribunal does not have authority to reconsider a decision based on an argument that the decision was wrong or unreasonable or because there has been a change of circumstances: Fraser Health Authority v. Workers’ Compensation Appeal Tribunal , 2014 BCCA 499 at paras. 135 and 160. The Tribunal will not reconsider a decision to address arguments that could have been made in the first instance but were not, or to hear a party reargue its case: Ramadan v. Kwantlen Polytechnic University and another (No. 2) , 2018 BCHRT 56 at para. 13. When a party simply disagrees with a Tribunal decision, the appropriate recourse is judicial review by the BC Supreme Court.
[10] The Tribunal may reconsider a decision where it is satisfied that the process was unfair: Fraser Health Authorityat para. 161. The Tribunal may also reconsider a decision where there is new evidence that was not available at the time the party made its submission. Relevant factors include whether the new evidence could affect the result, and whether reconsideration would result in prejudice to other parties: Gichuru v. Vancouver Swing Society and others, 2018 BCHRT 18 at para. 22.
a. Fairness in the Tribunal’s process
[11] Mr. Drover says the Tribunal’s process was unfair in several ways. His first argument relates to EGBC’s legal counsel. EGBC’s counsel in the Tribunal process also represented EGBC in other proceedings against Mr. Drover, including the professional discipline proceedings that led to the cancellation of his membership in EGBC and, according to Mr. Drover, an application to the BC Supreme Court for a declaration that he was a vexatious litigant. The same counsel was among the lawyers who communicated with Mr. Drover on behalf of EGBC, even though, according to Mr. Drover, she ought to have known that doing so would aggravate the symptoms of his disability. Mr. Drover suggests that counsel’s continued representation of EGBC could give rise to a conflict of interest that affected the application to dismiss process, since counsel’s submissions to the Tribunal were, in part, in defence of her own actions on behalf of EGBC.
[12] Mr. Drover does not cite any authority for a finding that this could give rise to a conflict of interest or render the Tribunal’s process unfair. It is not uncommon for lawyers to represent clients at the Tribunal, after representing or advising the same clients in the events that led to a complaint being made to the Tribunal. For example, a lawyer might advise their client about how to accommodate an employee with a disability, and may even communicate with that employee on behalf of the lawyer’s client, and then go on to represent the client in responding to a human rights complaint by that employee. Even if the lawyer’s communications with the employee are at issue in the complaint, this situation does not necessarily give rise to a conflict of interest.
[13] There is nothing in the circumstances raised by Mr. Drover that could suggest he was deprived of a fair hearing before the Tribunal by counsel’s representation of EGBC in both the disciplinary proceedings and the application to dismiss. I decline to reconsider the Original Decision on this basis.
[14] Mr. Drover raises additional concerns about fairness in the Tribunal’s process. He refers to delay in the process, and he says a Tribunal case manager mishandled his file. I appreciate that the delay in the Tribunal’s process has been frustrating for Mr. Drover, but he does not explain how it created unfairness in his case or prejudiced his complaint. He has also not explained how his file was mishandled, or how the Tribunal’s case management processes created any unfairness for him. On the materials before me, I am not persuaded that they did.
[15] Next, Mr. Drover says the Tribunal’s process was unfair because the Original Decision overlooked relevant evidence that he presented to the Tribunal, especially evidence related to his complaints to the RCMP about the Respondents and their agents communicating with him, during EGBC’s disciplinary panel process. I recognize that if I overlooked relevant evidence that Mr. Drover provided in support of his response to the application to dismiss, that could make the Original Decision unfair to him.
[16] The Original Decision did not refer to the RCMP at all. Mr. Drover says it was relevant that the RCMP decided not to charge EGBC with criminal harassment, despite his complaints to the RCMP about what he perceived as harassment by EGBC, during the disciplinary process. This evidence was before me when I made the Original Decision, but I did not refer to it because it was not relevant to the Original Decision.
[17] In the Original Decision I assumed that Mr. Drover could establish that he experienced an adverse impact which was connected to his disability, as a result of the Respondents’ communications with him. The Original Decision was based on my finding that the Respondents were reasonably certain to establish that these communications were justified, because EGBC needed to ensure procedural fairness during the disciplinary panel process. The fact that Mr. Drover complained to the RCMP about EGBC, and the RCMP did not charge anyone based on his complaints, was not relevant to that finding.
[18] Finally, Mr. Drover suggests the Tribunal unfairly refused to consider an affidavit that he submitted to the Tribunal in 2021. He says this affidavit was originally filed in the BC Supreme Court, in a matter involving Mr. Drover and APEGA. He does not explain how it would have affected the result of the Original Decision.
[19] I reviewed the Tribunal’s complaint file and I could not find any record of the affidavit being submitted before Mr. Drover filed his application for reconsideration, or the Tribunal refusing to consider it. I have now reviewed the affidavit, which Mr. Drover included as part of his application for reconsideration. I am satisfied that there is nothing in it that would have changed the outcome of the Original Decision. It repeats some of the same allegations that Mr. Drover made against EGBC in his response to the application to dismiss, and some of the allegations of conflict of interest that Mr. Drover makes against counsel for EGBC in this application, among other allegations against other parties.
[20] In my view, there is nothing in Mr. Drover’s application for reconsideration that suggests the Tribunal’s process was unfair to him.
b. New evidence
[21] Mr. Drover says there is new evidence that is relevant to the application to dismiss, which he did not include with his response to the application.
[22] The new evidence he refers to includes: a decision by the Commission of Inquiry into Money Laundering in British Columbia, in which Commissioner Austin Cullen denied Mr. Drover’s application to participate in the inquiry; a letter from the Attorney General of British Columbia, declining Mr. Drover’s request to intervene in his court proceedings; and a decision by the Foreign Interference Commission established under the federal government’s Public Inquiry into Foreign Interference in Federal Electoral Processes and Democratic Institutions, denying Mr. Drover’s application for standing at the inquiry.
[23] Mr. Drover’s application for reconsideration also includes new evidence about formal complaints he made to various government agencies and other organisations, against various lawyers and other parties. These complaints appear to be related to business disputes in which Mr. Drover was involved, and to complaints made against him by others.
[24] Some of the complaints and decisions that Mr. Drover relies on appear to have been made before he filed his response to the application to dismiss, and he does not explain why they were not included in his response. But in any event, I am not persuaded that any of them are relevant to the application to dismiss. The issues they address are not related to EGBC’s communications with Mr. Drover during the disciplinary process. I am satisfied that they would not have affected the outcome of the Original Decision.
[25] Mr. Drover also refers to evidence of staff turnover at EGBC after he submitted his response to the application to dismiss. He says this suggests a concerted effort by EGBC to suppress information about his case and evade accountability. I find this is speculative. There is no evidence before me in this application, and there was no evidence before me in the application to dismiss, which could suggest such an effort by EGBC. In any event, Mr. Drover does not explain how this evidence would have affected my finding that the Respondents were reasonably certain to establish that their communications with him, during EGBC’s disciplinary process, were justified.
[26] In summary, some of the new evidence submitted by Mr. Drover appears to have been available before he responded to the application to dismiss, and he has not explained why it was not included in his response. None of the new evidence would have affected the outcome of the Original Decision. For these reasons, I decline to reconsider the Original Decision in light of the new evidence.
[27] It is apparent from Mr. Drover’s submissions that he wanted the Tribunal to consider all his interactions with EGBC, and the events leading up to those interactions, to decide whether EGBC and other parties treated him fairly. This reflects a misunderstanding of the Tribunal’s role. The Tribunal can only consider the relatively narrow issue of whether EGBC discriminated against him based on his disability.
IV CONCLUSION
[28] I find the interests of fairness and justice do not require reconsideration of the Original Decision. I dismiss Mr. Drover’s application for reconsideration.
Andrew Robb
Tribunal Member