Shin v. Ministry of Public Safety and Solicitor General and another (No. 3), 2024 BCHRT 185
Date Issued: June 18, 2024
File: CS-000946
Indexed as: Shin v. Ministry of Public Safety and Solicitor General and another (No. 3),
2024 BCHRT 185
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:
Steve (Sangin) Shin
COMPLAINANT
AND:
His Majesty the King as represented by the Ministry of Public Safety and Solicitor General (Okanagan Regional Correctional Centre) and Denean Barkman
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO RECONSIDER A DECISION
RULE 36
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Tribunal Member: |
Edward Takayanagi |
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On their own behalf: |
Steve (Sangin) Shin |
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Counsel for the Respondents: |
Justin Mason |
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I INTRODUCTION
[1] Steve (Sangin) Shin filed a complaint alleging discrimination by His Majesty the King in Right of the Province of British Columbia as represented by the Ministry of Public Safety and Solicitor General (Okanagan Regional Correctional Centre) and Denean Barkman [together the “Respondents”]. Mr. Shin said the Respondents discriminated against him on the basis of ancestry, place of origin, race, age, and mental disability when they terminated his employment. Mr. Shin alleges the Respondents targeted and discriminated against him by forging documents, falsely accusing him of cheating and investigating his conduct, failing to accommodate his English skills, and not assessing his performance fairly.
[2] The Respondents applied to dismiss the complaint. After submissions on the dismissal application closed Mr. Shin applied to file a sur-reply in response to, what he said, were new arguments made by the Respondents. In Shin v. Ministry of Public Safety and Solicitor General and another (No. 2) , 2024 BCHRT 156 (the “Original Decision”) I denied Mr. Shin’s application to file a sur-reply and dismissed the complaint.
[3] Mr. Shin says he does not agree with the Original Decision and asks the Tribunal to reconsider it pursuant to Rule 36 of the Tribunal’s Rules of Practice and Procedure. I have not found it necessary to seek submissions from the Respondents to decide this application.
[4] For the following reasons I deny the reconsideration application.
II BACKGROUND
[5] The background to Mr. Shin’s complaint is set out in paragraphs 7-17 of the Original Decision. I will not repeat it here.
[6] In brief, Mr. Shin was hired on a probationary basis as a Correctional Officer. His employment was contingent on successfully completing an officer training program. Mr. Shin failed several written examinations and role play exercises. The Respondents ultimately rescinded their offer of employment. Mr. Shin filed a complaint alleging the Respondents targeted and discriminated against him based on his ancestry, place of origin, race, age, and mental disability.
[7] The Respondents filed an application to dismiss Mr. Shin’s complaint under s. 27(1)(c) of the Code.They argued there was no reasonable prospect that Mr. Shin could establish that his protected characteristics were a factor in their decision to terminate his employment.
[8] The issue before me in the Original Decision was whether there was no reasonable prospect Mr. Shin could establish that his protected characteristics were a factor in the Respondents’ decision to terminate his employment. I was satisfied, based on the totality of the evidence, that the Respondents were reasonably certain to establish there was solely a non-discriminatory reason for their action. I dismissed the complaint. I also considered whether the Respondents raised new issues or arguments in their reply submissions and whether fairness would require Mr. Shin be given an opportunity to make further submissions. I found the Respondents had not raised new issues in their reply and denied Mr. Shin’s application to file a sur-reply.
III ANALYSIS AND DECISION
[9] The Tribunal has a limited jurisdiction to reconsider its own decisions: Rule 36 of the Tribunal’s Rules of Practice and Procedure . 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: Grant v. City of Vancouver and others (No. 4),2007 BCHRT 206 [Grant] at para 10.
[10] 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 at para. 10.
[11] 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.
[12] Here, Mr. Shin seeks to reargue that his protected characteristics were a factor in the adverse treatment. He repeats his allegation that the Respondents wrongfully terminated his employment, framed him for cheating, and forged documentary evidence in support of their position. He says that the Respondents discriminated by not accommodating his English language skills, which he says is linked to his ancestry and place of origin, during the training program.
[13] I find that Mr. Shin’s submissions do not present circumstances where fairness and justice require intervention in the Original Decision.
[14] The arguments that Mr. Shin makes in his reconsideration application are arguments that were before me in the dismissal application and specifically dealt with in the Original Decision. I was persuaded that, in the context of the totality of the evidence, the Respondents were reasonably certain to establish that they accurately assessed Mr. Shin during the training program and that they could not accommodate Mr. Shin’s English language skills because it was a bona fide occupational requirement to accurately assess a candidate’s qualifications for the job: Shin at paras. 34-40.
[15] Reconsideration is not an opportunity to reargue issues that have already been determined in the Original Decision. It appears Mr. Shin disagrees with the Original Decision and believes that I should have accepted his arguments to find in his favour. This is not a basis for reconsideration of a decision. It would not be in the interests of justice and fairness to interfere with a decision simply because Mr. Shin disagrees with the outcome.
[16] On the application to file a sur-reply Mr. Shin argues that in the reply submissions the Respondents provided new information disputing his allegation that the Respondents’ evidentiary materials in support of their dismissal application was untrue. Mr. Shin argues that the information provided by the Respondents in their reply was new to him and therefore he should be permitted to file a sur-reply.
[17] I am not persuaded by Mr. Shin’s argument. As Mr. Shin acknowledges, the Respondents’ reply submissions addressed arguments he made in his response to the dismissal application. While Mr. Shin disagrees with the truth of the Respondents’ evidence and arguments that is not a basis for further submissions. There were no new issues or new facts raised in the Respondents’ reply such that fairness required Mr. Shin be allowed to file a sur-reply.
[18] For these reasons, I am not satisfied that Mr. Shin has met his burden of showing that it would be in the interests of fairness and justice to reconsider the Original Decision.
IV CONCLUSION
[19] I deny the application for reconsideration.
Edward Takayanagi
Tribunal Member