Stibbards v. Board of Education of School District No. 44 (North Vancouver), 2024 BCHRT 174
Date Issued: June 5, 2024
File: CS-001970
Indexed as: Stibbards v. Board of Education of School District No. 44 (North Vancouver),
2024 BCHRT 174
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:
Shawn Stibbards
COMPLAINANT
AND:
Board of Education of School District No. 44 (North Vancouver)
RESPONDENT
REASONS FOR DECISION
APPLICATION TO Dismiss a complaint
Section 27(1)(c)
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Tribunal Member: |
Edward Takayanagi |
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On their own behalf: |
Shawn Stibbards |
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Counsel for the Respondent: |
Lindsie M. Thomson Abigail Cheung |
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I INTRODUCTION
[1] Shawn Stibbards filed a complaint alleging that his employer, the Board of Education of School District No. 44 (North Vancouver), discriminated against him in employment on the basis of sex contrary to s. 13 of the Human Rights Code. Mr. Stibbards is a teacher and says that the Board investigated him for allegations of misconduct because he is male.
[2] The Tribunal accepted Mr. Stibbards’ allegations that the Board discriminated in its treatment of him in the investigation process by:
1. Questioning Mr. Stibbards about reading a student’s stories that contained sexual content while a female teacher who read the same stories was not investigated;
2. Using the gender specific term “manspreading” when telling Mr. Stibbards during an investigation meeting that students complained about his posture; and
3. Concluding that it was misconduct for Mr. Stibbards to discuss issues pertaining to females because he is male.
[3] The Board denies discriminating and applies to dismiss the complaint under s. 27(1)(b), on the basis that the allegations do not set out a contravention of the Code, and under s.27(1)(c), on the basis that the complaint has no reasonable prospect of success. The Board argues that Mr. Stibbards has no reasonable prospect of proving that he was investigated because he is male. Further, the Board says it is reasonably certain to prove that it has a solely non-discriminatory reason for its actions: responding to complaints about Mr. Stibbards’ conduct.
[4] The Board asserts that in response to the application to dismiss his complaint, Mr. Stibbards reiterates allegations of discrimination that the Tribunal had already rejected for filing. As described below, I agree that Mr. Stibbards’ response includes allegations that the Tribunal expressly did not accept for filing, including that the Board did not investigate the allegations against him fairly, and that the allegations of misconduct were fabricated by students who did not like him. I treat these allegations as an attempt to challenge the Tribunal’s screening decision.
[5] For the reasons that follow, I am persuaded that there is no reasonable prospect that Mr. Stibbards will establish at a hearing that his sex was a factor in the alleged adverse treatment. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.
II BACKGROUND
[6] The background facts are largely undisputed.
[7] Mr. Stibbards has been a teacher for the Board since 2002. In the 2018/2019 academic year he taught a Grade 10 English course at a high school.
[8] In April 2019, parents of a female student in Mr. Stibbards’ class made a complaint to the Board. They said they had concerns about Mr. Stibbards’ “lack of professionalism, lack of instruction and the content of his class discussions.” They alleged that Mr. Stibbards sat on a desktop during class with his legs spread, ignored boundaries with respect to approaching female students, and pressured his students to participate in uncomfortable and inappropriate classroom discussions.
[9] On May 2, 2019, the Board initiated an investigation into these allegations. The Board gave Mr. Stibbards a notice of investigation informing him that a formal investigation was being conducted about allegations of inappropriate behaviour.
[10] Mr. Stibbards says he became concerned about the investigation and went on sick leave on or about May 8, 2019.
[11] While on leave, Mr. Stibbards was contacted on Facebook by a student, who was then in Grade 12. She asked if Mr. Stibbards would review some short stories she had written. Mr. Stibbards read and provided feedback on the stories. The parties agree the short stories contain some sexual content.
[12] On May 10, 2019, the Board hired an investigator to conduct the investigation. Between May 13 and June 19, 2019, the investigator interviewed witnesses. The witnesses raised additional concerns about Mr. Stibbards’ behaviour including that he engaged in an inappropriate relationship with the student whose stories he read. The Board provided Mr. Stibbards an amended notice of investigation on June 14, 2019, and further particulars of the allegations it was investigating on June 25, 2019.
[13] After he returned from his sick leave, the investigator interviewed Mr. Stibbards. The interviews took place on January 22, 2021, and February 5, 2021. Mr. Stibbards was interviewed about the allegations that he made inappropriate, offensive, and sexist comments that had no connection to the curriculum during his classes. The alleged comments were about the role of women in society, abuse, abortion, miscarriages, public execution, and suicide. He was told that several students complained that he was “manspreading” by sitting in front of them with his legs spread wide to display his crotch. He was told he was alleged to have engaged in an inappropriate relationship with a student including inappropriate communications and sharing inappropriate sexually explicit stories. Mr. Stibbards was accompanied by two representatives from the Teachers’ Association at his interviews and was given an opportunity to tell his version of events.
[14] On March 23, 2021, the investigator concluded the investigation and issued a written report to the Board. The investigator found the allegation that Mr. Stibbards sat with his legs spread apart occurred but was not misconduct. The investigator found that it was inappropriate for Mr. Stibbards to communicate with a student on Facebook when he was on medical leave. The investigator did not find that it was inappropriate for Mr. Stibbards to review the student’s stories but had crossed appropriate teacher-student boundaries by communicating with a student while on medical leave. The investigator found that there was a pattern of inappropriate, offensive, and unprofessional comments and questions made by Mr. Stibbards in his classes that, because it demonstrated a pattern of behaviour, was misconduct.
[15] The Board shared the investigation report with Mr. Stibbards. Before deciding whether to discipline Mr. Stibbards for the misconduct, the Board received medical information from Mr. Stibbards stating that much of his inappropriate behaviour may be a result of a mental disability. Based on the medical information the Board decided not to discipline Mr. Stibbards.
III DECISION
A. Preliminary issue: The scope of the complaint
[16] The Board argues Mr. Stibbards has improperly repeated allegations that have already been rejected by the Tribunal in his response to the application to dismiss.
[17] In his response to the application to dismiss the complaint, Mr. Stibbards acknowledges that “the Tribunal has not accepted [his] complaint that the decision to investigate itself was prejudicial.” He nevertheless argues that the investigation into his alleged misconduct was unfair and discriminatory. He says the complaints about his misconduct were made by two students who disliked him, that the investigator had no experience as an educator or child psychologist and was therefore unqualified to investigate the complaints, and that the investigation process was flawed because the investigator did not interview witnesses who would support his version of events.
[18] In this case, I agree with the Board’s characterization that these allegations repeat and expand on allegations that the Tribunal has already rejected for filing. In a screening decision of July 13, 2021, the Tribunal did not accept the portions of Mr. Stibbards’ complaint where he alleged that the Board discriminated against him by investigating complaint about his conduct. Mr. Stibbards subsequently applied to amend his complaint and add an allegation that it was discriminatory for the Board to investigate Mr. Stibbards based on complaints from students. In a letter decision of March 9, 2023, the Tribunal found that the proposed amendment repeated allegations that were not accepted at the screening stage. The Tribunal did not accept the amendment.
[19] Mr. Stibbards is repeating for the third time his allegations that the Board discriminated by investigating him based on complaints of misconduct. It appears that Mr. Stibbards is challenging the screening decisions and asking the Tribunal to consider his allegations without following the processes available: seeking reconsideration of the decision or judicial review. Under these circumstances it would not be fair to the Board if the Tribunal considered these allegations. Accordingly, I do not consider Mr. Stibbards’ allegations about the investigation of his misconduct.
B. Section 27(1)(c) – No reasonable prospect of success
[20] In my view, this application is most appropriately dealt with under s. 27(1)(c). This section is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[21] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan ,2013 BCSC 942 at para. 77.
[22] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority ,2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission ,[1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.
[23] To prove his complaint at a hearing, Mr. Stibbards will have to prove that he has a characteristic protected by the Code , he was adversely impacted in employment, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33.
[24] Mr. Stibbards alleges that he was treated differently with respect to his conduct because of his sex. Specifically, he says that the Board investigated him for reading a student’s stories when another female teacher who read the stories was not, that a gender specific term “manspreading” was used when he was told students complained about the way he sits, and that the Board deemed it misconduct for Mr. Stibbards to discuss issues pertaining to females while female teachers were allowed to discuss similar topics.
[25] The Board does not dispute that Mr. Stibbards’ sex is a characteristic protected by the Code. Therefore, the issues I must decide on this application is whether there is no reasonable prospect that Mr. Stibbards will demonstrate that he was adversely affected in employment, and whether his sex was a factor in the adverse treatment.
[26] I deal first with the allegation that Mr. Stibbards was questioned about reading a female student’s stories. Based on the materials before me, I am persuaded that there is no reasonable prospect Mr. Stibbards will prove at a hearing that he was questioned because of his sex.
[27] It is undisputed that while Mr. Stibbards was on medical leave he used Facebook to communicate with a student and reviewed her stories. The Board says Mr. Stibbards was questioned about his conduct, not because he is male, but because it was alleged that he was communicating with a student while on leave on a non-work platform. The Board says that when a teacher is on leave it is inappropriate to communicate with students. It also says that it is inappropriate for teachers to communicate with students on a non-work platform.
[28] The Board provided the investigator’s report which states that witnesses alleged Mr. Stibbards’ relationship with the student may be inappropriate. The report says that a witness expressed concern that Mr. Stibbards was communicating with a student while on leave. While Mr. Stibbards was questioned about the student’s stories, it was in the context of investigating allegations that a teacher who was on leave had engaged in improper communications with a student. The Board says reading the student’s stories was not the central point of the allegations nor was it the overriding concern of the investigation. Rather, the Board says Mr. Stibbards was alleged to have been communicating with a student, while on medical leave, on a non-work platform.
[29] It is not disputed that other teachers (who are female) read the student’s stories which contain some sexual content and were not investigated. Mr. Stibbards asks the Tribunal to draw an inference that the reason he was investigated, and other teachers were not, is because he is male, and the other teachers are female.
[30] The Board says other female teachers were not questioned about reading the student’s stories because there were no allegations that they had violated student-teacher boundaries by communicating with a student while on leave on non-work platforms.
[31] In light of the evidence, I cannot say that Mr. Stibbards’ assertion that he was questioned about reading a student’s story because he is male has been raised above the realm of conjecture. This is because, on the whole of the evidence, I am persuaded that the Board is reasonably certain to prove that Mr. Stibbards was questioned because he was alleged to have communicated with a student on a non-work platform while on medical leave and reading the student’s stories was not the reason for their investigation.
[32] I turn next to the allegation that Mr. Stibbards was told by the Board’s investigator that students commented on how he sat with his legs apart during his classes. Mr. Stibbards asserts that the term “manspreading” used to describe his posture is a “gendered slur.” Mr. Stibbards argues that it is discriminatory for the Board to hold him culpable for other people’s gaze falling upon his crotch while deeming it harassment when he stares at female students’ chests.
[33] The Board argues that the investigator communicating to Mr. Stibbards and telling him that students said he was “manspreading,” has no nexus with his protected characteristic. It says that the investigator would have told a subject of an investigation for alleged misconduct, regardless of their sex, what the allegations against them were.
[34] In my view, even if “manspreading” is a gender-specific term its mere use does not constitute a contravention of the Code. While Mr. Stibbards characterizes it as a gender-based slur, and suggests the Tribunal infer from its use that the Board discriminated on the basis of sex, the undisputed evidence before me is that the word was used in the context of the investigator informing Mr. Stibbards about the students’ complaints. On the materials before me, it appears that the investigator was simply providing details of allegations during the investigation process.
[35] Further, there is nothing in the materials before me to support Mr. Stibbards’ characterization that he was held culpable for other people’s gaze. The evidence is that Mr. Stibbards was informed that students reported feeling uncomfortable with how he positioned his body during classes, Mr. Stibbards was given an opportunity to respond, and the investigator found that Mr. Stibbards’ posture was not misconduct.
[36] In these circumstances, I am satisfied that there is no reasonable prospect Mr. Stibbards will establish at a hearing that being told students said he was manspreading is so inherently inappropriate or offensive as to trigger the protection of the Code.
[37] Finally, I consider the allegation that the Board deemed it misconduct for Mr. Stibbards to discuss issues pertaining to females because he is male. I understand Mr. Stibbards’ allegation is that the Board determined that the comments he made, and the questions he asked of students was inappropriate because he is male.
[38] I find the Board has put forward evidence that persuades me there is no reasonable prospect Mr. Stibbards will establish that his sex was a factor in the adverse treatment alleged.
[39] First, while Mr. Stibbards argues that the Board predetermined that he was guilty of misconduct merely because of the allegations made by students, the evidence before me contradicts Mr. Stibbards’ position.
[40] Mr. Stibbards says that because the Board says it conducted an investigation “against” him, it must have been an adversarial and biased “exercise in case-building.” He believes the Board predetermined his guilt based on the fact he is male. There is nothing before me to support Mr. Stibbards’ view.
[41] The evidence before me is that the investigator was hired to examine the complaints and determine if Mr. Stibbards had engaged in the alleged behaviour and if so if it was misconduct. The materials support the Board’s position that the investigation did not have a predetermined outcome.
[42] Second, the Board has provided documentary evidence by way of affidavits and correspondences that show it received complaints and inquiries about Mr. Stibbards’ classroom behaviour from parents of his students. It says these concerns were serious and required investigation. The concerns about Mr. Stibbards include:
a. Asking students if they would rather be sterilized at birth or have an abortion each time they are pregnant;
b. Asking students if they would rather die by suicide or be murdered;
c. Commenting that life is short and someone could drive-by and shoot at the class;
d. Asking students if they would rather have parents abuse them physically or mentally;
e. Asking female students if they were romantically stimulated after reading a story;
f. Making negative comments about female teachers at the school;
g. Commenting that they should build a diving board off the Lions Gate Bridge for the amount of people who die by suicide;
h. Leaving his class unattended and frequently arriving late to class; and
i. Sitting on a desktop during class with his legs spread.
[43] While Mr. Stibbards says his comments are taken out of context, he has not disputed that he engaged in the behaviour outlined above.
[44] Third, the Board asserts that it has an obligation under its Code of Conduct and Student Safety and Welfare Policy to investigate complaints about misconduct by teachers. It says it decided to investigate based on the serious nature of the complaints and the issue of whether the allegations occurred and were misconduct was left to the investigator.
[45] Mr. Stibbards argues that because the Policy states it applies to “reported allegations of employee misconduct” an investigation occurs only when the Board has determined there has been misconduct. I am not persuaded by Mr. Stibbards’ argument. It is clear on its face that the Policy is engaged when there have been allegations of misconduct. Allegations are not determinative. There is nothing before me from which I could infer that the Board determined that Mr. Stibbards engaged in misconduct because it investigated him.
[46] Finally, the written report is clear that the investigator determined Mr. Stibbards’ behaviour was misconduct not because he discussed “issues about females,” but rather because he engaged in a pattern of inappropriate, offensive, and unprofessional comments and questions that had tenuous connection to the curriculum. The report makes clear that Mr. Stibbards was determined to have engaged in misconduct not because of any single comment or discussion but based on the cumulative effect of repeated improper conversations with his students on subjects that had little to do with the subject matter being taught.
[47] The central point of Mr. Stibbards’ submission is that he disagrees with the findings of the investigator. He says his comments are intended to be controversial to engage his students and similar comments are made by female teachers who have not been investigated. There is nothing before me to support Mr. Stibbards’ assertion. While Mr. Stibbards says that he was treated differently because he was investigated while female teachers were not, there is nothing in the materials before me that shows the Board received complaints about any other teachers or that other teachers made comments or asked students questions similar to Mr. Stibbards’ questions and comments. On the materials before me, I cannot say that Mr. Stibbards’ assertion that he was treated differently because of his sex has been taken out of the realm of conjecture.
[48] Based on the information and materials before me at this stage, I conclude there is no reasonable prospect that a Tribunal member hearing the complaint would draw an inference that Mr. Stibbards’ sex was a factor in any of the alleged adverse treatment. As outlined above, the Board has provided evidence that persuades me that there is no reasonable prospect Mr. Stibbards will be able to establish that he was treated differently than others because of his sex. As such the complaint is dismissed under s. 27(1)(c).
IV CONCLUSION
[49] The complaint is dismissed under s. 27(1)(c) of the Code .
Edward Takayanagi
Tribunal Member
Human Rights Tribunal