Decker and another v. Fraser Valley Child Development Centre and another, 2024 BCHRT 182
Date Issued: June 12, 2024
File: CS-004229
Indexed as: Decker and another v. Fraser Valley Child Development Centre and another,
2024 BCHRT 182
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:
Sheriann Decker and Rylie Tribe (by Sheriann Decker)
COMPLAINANTS
AND:
Fraser Valley Child Development Centre and Megan Markloff
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(d)(ii)
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Tribunal Member: |
Robin Dean |
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For the Complainants: |
No submissions |
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Counsel for the Respondents: |
Tom Newnham and Ben Folarin |
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I INTRODUCTION
[1] This is the Respondents’ application to dismiss Sheriann Decker’s and Rylie Tribe’s joined complaints against the individual Respondent, Megan Markloff, under s. 27(1)(d)(ii) of the Human Rights Code . In this decision, I must decide whether proceeding with the complaints against Ms. Markloff would not further the purposes of the Code.
[2] In her complaint, Ms. Decker alleges that the Respondents discriminated against her based on mental disability and family status contrary to s. 8 of the Code. Mr. Tribe, who is Ms. Decker’s child, alleges that the Respondents discriminated against him based on ancestry, mental disability, family status, and Indigenous identity contrary to s. 8 of the Code. The complaints have a common factual background. Namely, Ms. Decker and Mr. Tribe allege that the Respondents discontinued services for them and excluded them from their programs in a discriminatory manner. Ms. Decker and Mr. Tribe did not file a response to the application to dismiss.
[3] As I explain below, the Respondents have misapprehended the factors that the Tribunal considers when determining whether to dismiss a complaint against an individual Respondent. They have not provided me with the evidence and information that I need to conclude that it would not further the purposes of the Codeto proceed against Ms. Markoff. I am therefore not persuaded to dismiss the complaints against her. I deny the Respondents’ application to dismiss. The complaints will proceed against both Respondents.
II DECISION
[4] 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.
[5] The Respondents argue that it would not further the Code’spurposes to proceed against Ms. Markloff: Daley v. BC (Ministry of Health), 2006 BCHRT 341 [Daley].
[6] There are strong policy reasons that favour complaints against individual respondents. As the Supreme Court of Canada has acknowledged, “the aspirational purposes of the Code require that individual perpetrators of discrimination be held accountable for their actions”: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62at para. 56. This is especially true for allegations of discrimination with a high degree of personal culpability, like sexual or racial harassment: Daley at para. 53.
[7] On the other hand, naming individual respondents can complicate and delay the resolution of complaints, exacerbate feelings of personal animosity, and cause needless personal distress to individuals who are accused of discrimination: Daley at para. 54. Because employers and institutional respondents are liable for the acts of their agents, they will be responsible for any remedy ordered by the Tribunal: Code, s. 44(2); Robichaud v. Canada, [1987] 2 SCR 84. In those situations, the remedial aims of the Codemay be most fairly and efficiently fulfilled without holding individuals liable.
[8] The Tribunal balances all these considerations to decide whether the purposes of the Code are best served by having a complaint proceed against individuals as well as an institutional respondent, or against the institutional respondent only. It has identified the following factors as relevant:
a. whether the complaint names an institutional employer as a respondent and that respondent has the capacity to fulfill any remedies that the Tribunal might order;
b. whether the institutional respondent has acknowledged the acts and omissions of the individual as its own and has irrevocably acknowledged its responsibility to satisfy any remedial orders which the Tribunal might make in respect of that individual’s conduct; and
c. the nature of the conduct alleged against the individual, including whether:
i. their conduct took place within the regular course of their employment;
ii. the person is alleged to have been the directing mind behind the discrimination or to have substantially influenced the course of action taken; and
iii. the conduct alleged against the individual has a measure of individual culpability, such as an allegation of discriminatory harassment.
Daleyat paras. 60-62.
[9] The Respondents characterize the law as follows:
The legal test for dismissing the complaint against the individual requires that the respondent show three things:
a. The complaint names the person’s employer who is responsible for the conduct;
b. The employer can fulfill any remedies that the Tribunal might order; and
c. Proceeding against the individual would not further the purposes of the Code.
[10] While this recitation captures aspects of the Daley factors, some of the factors are missing, namely, (1) whether the institutional respondent has acknowledged the acts and omissions of the individual as its own and has irrevocably acknowledged its responsibility to satisfy any remedial orders which the Tribunal might make in respect of that individual’s conduct; (2) the nature of the conduct alleged against the individual, including whether the person is alleged to have been the directing mind behind the discrimination or to have substantially influenced the course of action taken; and (3) whether the conduct alleged against the individual has a measure of individual culpability, such as an allegation of discriminatory harassment. Finally, I note that whether proceeding against the individual would not further the purposes of the Code is the overarching inquiry that the Daleyfactors are aimed at exploring. It is the ultimate question that the Tribunal must answer in determining a s. 27(1)(d)(ii) application to dismiss against an individual respondent.
[11] As a result of this misapprehension of what the Tribunal considers on a s. 27(1)(d)(ii) application, the Respondents do not apply all of the Daleyfactors to the case, nor do they provide me with evidence and argument to support each of the Daleyfactors. I find that under these circumstances, I am not able to say that the factors weigh in favour of dismissing the complaint against Ms. Markloff.
[12] Regarding the nature of the conduct alleged, the Respondents say that all Ms. Markloff’s interactions with the Complainants occurred in her capacity as Fraser Valley Child Development Centre’s employee, in which capacity she was applying Fraser Valley Child Development Centre’s policies and procedures. Despite these submissions, I find it difficult to assess the other important aspects of the nature of Ms. Markloff’s alleged conduct. I am not satisfied on the materials and argument before me that her conduct does not have a measure of individual culpability sufficient to continue the complaint against her and that she was not the directing mind behind the alleged conduct. Indeed, many of the allegations in the complaint centre on Ms. Markloff’s conduct. As such, I cannot say that this factor weighs in favour of dismissing the complaint against Ms. Markloff.
[13] I also must be satisfied that Ms. Decker and Mr. Tribe will have a means of redress should it be determined at a hearing that there was a breach of the Code. While Fraser Valley Child Development Centre says that it has the capacity to satisfy any remedial award, pointing to its insurance policy, it has not expressly acknowledged that it will be responsible for any remedial orders that may be made about Ms. Markloff’s conduct. While capacity focuses on the ability to pay, acknowledgement of responsibility focuses on the obligation to pay. The two are not the same, and I cannot conclude based on Fraser Valley Child Development Centre’s ability to pay that it indeed will pay in the event there was a breach of the Code. The absence of Fraser Valley Child Development Centre expressly acknowledging Ms. Markloff’s acts as its own weighs heavily against dismissing the complaint against her.
[14] Based on the information before me, I am not persuaded that allowing the complaint to proceed against Ms. Markloff would not further the purposes of the Code.
III CONCLUSION
[15] I deny the Respondents’ application to dismiss. The complaints will proceed against both Fraser Valley Child Development Centre and Ms. Markloff.
Robin Dean
Tribunal Member