Moon v. IATSE Local 891 and others, 2024 BCHRT 186
Date Issued: June 19, 2024
File: CS-000277
Indexed as: Moon v. IATSE Local 891 and others, 2024 BCHRT 186
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:
Kelly Moon
COMPLAINANT
AND:
IATSE Local 891, Rod Haney, and James Fantin
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
AND APPLICATION FOR COSTS
Section 27(1)(c) and 37(4)
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Tribunal Member: |
Jonathan Chapnick |
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Counsel for Complainant: |
Menachem Freedman |
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Counsel for Respondents: |
Allison Tremblay |
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I INTRODUCTION
[1] The International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States and Canada [IATSE] represents entertainment workers and is comprised of various local unions, including IATSE Local 891 [Local 891]. Kelly Moon has been a Local 891 member since 1991. From January 2008 to December 2019, Ms. Moon worked as Local 891’s Senior Steward, having been elected to do so several consecutive times by Local 891’s membership. Ms. Moon ran for re-election in 2019, but was not successful.
[2] On March 30, 2020, Ms. Moon filed a discrimination complaint with the Human Rights Tribunal, alleging discrimination in employment in contravention of s. 13(1) of the Human Rights Code. Her complaint – filed against Local 891 and two of its elected representatives, Rod Haney and James Fantin [collectively, Respondents ] – relates to events beginning in 2018 and culminating in her unsuccessful re-election bid in 2019. She says the Respondents and others engaged in a disability-related “smear campaign” against her during that time period. More specifically, she says she has a gambling addiction, and the Respondents used their knowledge of her addiction to publicly call into question her integrity and suitability for the Senior Steward position, which ultimately led to her election loss.
[3] The Respondents deny discriminating. Among other things, they say Ms. Moon did not have a disability and there was no smear campaign. They apply to dismiss Ms. Moon’s complaint without a hearing under ss. 27(1)(b), (c), (d), (e), (f), and (g) of the Code.
[4] I find I can most efficiently decide the Respondents’ dismissal application under s. 27(1)(c) alone. Section 27(1)(c) allows the Tribunal to dismiss complaints that have no reasonable chance of success at a hearing. I find this to be the case here. On the materials filed by the parties, I am satisfied that Ms. Moon’s complaint has no reasonable prospect of success. My decision turns on the lack of evidence before me regarding Ms. Moon’s stated disability. The evidence provided is not capable of supporting the complaint moving forward.
[5] For the reasons that follow, I dismiss Ms. Moon’s complaint under s. 27(1)(c). I also deny an application for costs advanced by Ms. Moon in her response to the Respondents’ dismissal application. To make my decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain what I decided. I make no findings of fact.
II BACKGROUND
[6] The following background is drawn from the evidence before me, including: Mr. Haney’s evidence, as set out in his response to the complaint; Mr. Fantin’s evidence, as set out in his response to the complaint; sworn statements from Ms. Moon; sworn statements from Local 891’s managing director [Managing Director]; and contemporaneous documentary evidence. I have also drawn from the submissions provided by the parties’ lawyers.
A. Investigation of Ms. Moon’s credit card use
[7] Ms. Moon was issued a Local 891 credit card in her Senior Steward role. In 2008, Local 891 investigated allegations Ms. Moon had used her credit card for personal expenses. In 2017, Local 891 again investigated Ms. Moon’s credit card use. On November 20, 2018, Ms. Moon met with the Managing Director and others regarding a forthcoming investigation report about her credit card use [Meeting].
[8] Ms. Moon’s complaint asserts that she “has suffered a gambling addiction from a young age.” It is not disputed that she disclosed a gambling addiction to Local 891 at the Meeting. The Managing Director says the Meeting was the first time he “learned that Ms. Moon claimed a disability.” He says he subsequently asked Ms. Moon “for information substantiating her claim and any request for accommodation,” but none was provided. Ms. Moon says the Meeting was not the first time she disclosed a gambling addiction. She says, “many employees and officers of Local 891 were aware of my struggles with gambling addiction long before November 2018.”
B. The Report
[9] Local 891’s investigation report regarding Ms. Moon’s credit card use, dated January 9, 2019, was provided to the Tribunal [Report]. It is not disputed that Local 891 published the Report on its internal website for a limited period of time. According to Ms. Moon’s submissions, the published Report “was accessible to anyone with a password, including all approximately 9,000 Local 891 members” and staff. The parties agree that, even before its official publication, the Report had been “leaked” to Local 891 members and staff.
[10] The Report is largely comprised of several pages of lists of expenses charged to Ms. Moon’s credit card each year between 2008 and 2017. The lists show the date and amount of each expense, and the location or type of charge (e.g., “West Jet,” “London Drugs,” “Cash advance,” “Interest”). The narrative portions of the Report include references “to extensive charges at casinos” and “a charge … from Caesars Hotel & Casino in Las Vegas.” Ms. Moon’s complaint describes the Report as deliberately and misleadingly emphasizing charges at casinos and in Las Vegas, and as implying that she “was breaching Local 891 policy and misusing funds due to her gambling addiction.” The Respondents dispute this description. Mr. Haney, for example, describes the Report as “informative to the members.” He asserts that union members had “every right to know how their money [was] being spent.” He says all “union officers have a fiduciary responsibility to the members and are accountable.”
[11] Redacted emails provided to the Tribunal indicate that others within Local 891 were concerned about the content of the Report and its release. For example, one correspondent from Local 891’s administration office wrote that they would be “horrified” if they “were someone from membership or the general public reading” the Report. They commented that listing “every single expenditure and where it was made seems to be a massive invasion of privacy, shaming and punishing, especially considering the casino expenditures.”
C. The campaign
[12] Ms. Moon’s version of the events following the Report’s release is set out in her complaint in the form of narrative submissions from legal counsel. The complaint sets out the following summary (edited for length):
… before it was taken down, the Report was copied and preserved by an unknown number of individuals. …
Throughout 2019 and in particular, in the months before the election, Ms. Moon was the victim of a smear campaign based on the allegations and implications in the Report. A number of members posted on social and wrote in to the Local making baseless accusations of theft and fraud … including mention of the Report’s allegations expenditures at casinos, and Ms. Moon’s personal struggles with gambling. Local 891 was aware of such conduct … and failed to respond … .
More disturbingly, several Local 891 officers engaged in a concerted effort to amplify these rumours and allegations. …
…
The actions of Local 891 and the Individual Respondents ensured that the allegations about gambling and other expenses became a major, if not the main issue in the election.
[13] Appended to Ms. Moon’s response to the dismissal application, counsel provided internal Local 891 emails, correspondence between the parties’ lawyers, and the following email, dated September 25, 2019 and said to be from a Local 891 member:
I’m assuming this [the Report] is about KELLY MOON.
It is my understanding that there were legal fees incurred by the union due to her actions. Her actions specifically, using union funds to finance her gambling debt. …
Why Kelly Moon hasn’t been removed from her position, is beyond me. I hear she is running again for Senior Steward. I also understand that she has claimed that her actions are due to having an “illness,” removing herself from wanting to take any responsibility for her actions. …
[14] The Respondents generally dispute the version of events put forward in Ms. Moon’s complaint, and deny that any of their acts or omissions following the Report’s release were improper or discriminatory.
III DECISION
[15] There are two applications before me: the Respondents’ dismissal application, and Ms. Moon’s application for costs. Before I explain my decision regarding those applications, I will briefly address a preliminary issue related to solicitor-client privilege.
A. Preliminary issue
[16] Local 891 claims solicitor-client privilege over certain unredacted email correspondence between members of its executive board in January 2019 [Emails], which Ms. Moon appended to her response to the dismissal application. The Managing Director admits he provided the Emails to Ms. Moon in response to an information access request under the Personal Information Protection Act in or around 2019. However, Local 891 now says that disclosure was inadvertent, and the Emails should not form part of the record before the Tribunal. Ms. Moon disagrees. She argues that Local 891 waived any privilege over the Emails and they are important evidence in her complaint.
[17] Local 891 says its privilege claim is moot if the Tribunal dismisses the portion of Ms. Moon’s complaint related to the release of the Report.
[18] For the purposes of deciding the applications before me, I have considered the Emails. Given my decision to dismiss the complaint, I need not make any findings on the merits of Local 891’s claim of privilege.
B. Application to dismiss
[19] Ms. Moon asserts that her complaint “is primarily about direct discrimination.” She says she has a disability (gambling addiction), and alleges that “this was known to many officers and employees of Local 891, including, at the material times, the Individual Respondents Haney and Fantin, as well as … one of the authors” of the Report. Ms. Moon alleges that the Respondents used the Report and their knowledge of her disability to discredit her, which ultimately cost her the 2019 election for the Senior Steward position. She describes the Respondents’ alleged acts and omissions as a discriminatory “smear campaign.” She argues that a major theme of this campaign “was alleged expenditures at casinos and Las Vegas by Ms. Moon, with the clear implication being that Ms. Moon had a gambling problem and would misappropriate Local 891 funds to support her gambling.” Further, she argues that Local 891 failed to take steps “to prevent copying and leaks of the Report,” and failed “to respond adequately or in a timely fashion when members wrote in referencing fraud and [her] gambling addiction.”
[20] The Respondents apply to dismiss Ms. Moon’s complaint on various grounds, including under s. 27(1)(c) of theCode.
[21] Section 27(1)(c) gives the Tribunal discretion to dismiss complaints that have no reasonable prospect of success and therefore do not warrant the time and expense of a hearing: Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95, at paras. 22-26, leave to appeal ref’d [2006] S.C.C.A. No. 171; Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27. The Tribunal does not make findings of fact under s. 27(1)(c). Instead, my task in applying this section of the Code is to determine whether, based on all the evidence before me, there is no reasonable prospect that findings of fact supporting the complaint could be made on a balance of probabilities after a hearing: Berezoutskaia at para. 22.
[22] To succeed at a hearing, Ms. Moon would first need to prove that she had a personal characteristic that is protected by the Code : Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. Her complaint centres on a claim that she has a disability, which she describes as a gambling addiction. The Respondents deny this claim, and assert that she will fail to prove it. While they make this assertion in their arguments under s. 27(1)(b) of the Code, they ask me to also consider it under s. 27(1)(c), which I have.
[23] The Respondents say that, for a health condition to be a disability for Codepurposes, it must be involuntary, have some degree of permanence, and impair a person’s ability to carry out normal functions, citing Cummings v. Nenan Dane Zaa Deh Zona Family Services Society , 2015 BCHRT 116 and Toth v. Dynamic Structures Ltd., 2014 BCHRT 137. They say Ms. Moon’s stated gambling addiction does not meet these criteria. Ms. Moon takes the opposite position, arguing as follows:
Ms. Moon’s gambling addiction, as alleged in the complaint, meets the criteria … as it is involuntary, has some degree of permanence and impairs the victim’s ability to participate in the normal functions of life and employment. As Ms. Moon alleges, she has suffered from a gambling addiction since a young age. One result was the use of the employer respondent’s corporate credit card for gambling-related expenses in 2008-2015.
[24] While I agree that health conditions meeting the criteria from Cummingsand Toth may attract the Code’s protection, I note that the disability concept under human rights legislation, including under the Code, extends beyond biomedical conditions and functional impairments: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City) , [2000] 1 SCR 665 at paras. 76-81; see also Granovsky v. Canada (Minister of Employment and Immigration) , [2000] 1 SCR 7; Morris v. BC Rail, 2003 BCHRT 14; Stevenson v. Marcon Construction , 2020 BCHRT 80. However, neither party has framed the complaint or argued this dismissal application in reference to this broader conception of disability.
[25] The Respondents argue that Ms. Moon has not provided evidence capable of establishing a disability. In their reply submissions, they say that they “put the existence of her disability in dispute in this proceeding,” yet Ms. Moon failed to provide corroborative evidence of her disability in response to their dismissal application. As a result, they assert that Ms. Moon’s complaint cannot succeed.
[26] In an application under s. 27(1)(c), the onus is on the respondent to establish the basis for dismissal: Paulsen v. BC Hydro and another, 2020 BCHRT 75 at para. 11. At the same time, in an application where the respondent disputes an element of the complainant’s case, it is up to the complainant to ensure there is some evidence before the Tribunal capable of supporting the complaint moving forward: Sincraian v. Board of Education of School District No. 38 (Richmond) , 2024 BCHRT 53 at para. 17; see Rutkowski v. Unite Here Local 40, 2018 BCHRT 236 at para. 30. In the present case, I find that the information regarding Ms. Moon’s alleged disability falls short of this low threshold. While the materials before me allow me to speculate that Ms. Moon could possibly have a disability, this is not sufficient for her complaint to continue forward. Mere possibility is not enough to warrant a hearing: Berezoutskaia at paras. 24-26. In a dismissal application, the Tribunal must base its decision on the materials the parties have provided, not on speculation about what evidence might come out at a hearing: University of British Columbia v. Chan, 2013 BCSC 942. Taking this approach, I am persuaded that Ms. Moon’s complaint has no reasonable prospect of success because there is not a sufficient evidentiary basis for a finding that she had a disability under the Code.
[27] Ms. Moon’s evidence regarding her alleged disability is as follows:
a. In an email to the Managing Director, dated November 23, 2018, Ms. Moon states, “I am a recovering gambling addict and have been for several years.”
b. In a sworn statement dated November 12, 2021, Ms. Moon says the following:
i. The Meeting “was not the first time I notified Local 891 of my gambling addiction.”
ii. “[M]any employees and officers of Local 891 were aware of my struggles with gambling addiction before November 2018.”
iii. The Managing Director “was involved in prior years in accommodating my gambling addiction by ensuring that certain Local 891 events were not held in casinos.”
iv. “I also recall telling other Local 891 employees and officers about my gambling addiction, including telling the President and Treasurer of Local 891 in 2008-2009, after concerns had been raised about my use of the Local 891 credit card at casinos.”
c. Attached to her sworn statement, Ms. Moon provided screenshots of a text message to a colleague from May 30, 2013. In her sworn statement, Ms. Moon says she discussed her gambling addiction in the text message. In the text message, Ms. Moon states, “You can’t ever let me gamble. I got some tough news … late yesterday and I was already in a funk … . I thought I could just go for a couple of hours. I … smoked and gambled till I was sick. I had already made plans to meet with … next week to get counseled.”
[28] The assessment of whether a person has a disability under the Codeis contextual and purposive: see Stevensonat para. 7. The Tribunal will consider various types of evidence, including evidence of physical or mental health conditions or impairments, functional limitations, perceptions, and related social context and constructs: see Morrisat paras. 204-221. Medical proof, while relevant, is not required in all cases: Morrisat para. 214; see Gichuru v. Purewal , 2017 BCHRT 19 at para. 275. In Gichuru, for example, the Tribunal found a mental disability (depression) based on the complainant’s detailed, direct evidence regarding his difficulties with depression and his health issues and attendant struggles, without any corroborative medical records.
[29] The type of evidence presented in Gichuruis not before me in the present case. Nor are the various other types of evidence upon which the Tribunal may base a disability finding. The bare assertions of purported facts in Ms. Moon’s legal submissions are not evidence: Ochebiri v. Corrpro Canada , 2019 BCHRT 99 at para. 9; Sienaert v. Ikea Canada Limited Partnership , 2021 BCHRT 84 at para. 42. And even if they were, they are too vague and general to engage the Code’s protection against disability-related discrimination.
[30] I appreciate that the materials before me include references to Ms. Moon’s gambling and others’ knowledge of it, and I understand that her legal submissions assert a connection between her historical credit card expenses and a disability. But this is not enough. Ms. Moon has provided no evidence regarding the circumstances of the charges listed in the Report. She has referred to “struggles with gambling addiction,” but has offered no direct evidence regarding the nature or particulars of those struggles. Her May 2013 text message to a colleague refers to plans “to get counseled,” but Ms. Moon has provided no further context or details, let alone evidence regarding supports or services related to her alleged disability. In her November 2018 email to the Managing Director, Ms. Moon refers to herself as a “recovering gambling addict,” but she has provided no evidence to the Tribunal about what that means. Her complaint asserts the existence of “stereotypical notions about people with gambling addictions,” without referring to any supporting information, case law, or research literature.
[31] The first element of Ms. Moon’s case – the first claim advanced in her complaint – is that she has a gambling addiction and her circumstances engage the Code’s protection against disability-related discrimination. In my view, given the lack of evidence before me, she has no reasonable prospect of proving this claim. I therefore grant the Respondents’ application to dismiss the complaint under s. 27(1)(c) of the Code.
C. Application for costs
[32] In her response to the dismissal application, Ms. Moon advanced an application for costs against the Respondents under s. 37(4) of the Code.
[33] Section 37(4) allows the Tribunal to order costs against a party for “improper conduct during the course of the complaint.” The purpose of a costs award is punitive: Terpsma v. Rimex Supply (No. 3) , 2013 BCHRT 3 at para. 102. It aims to deter conduct that has a significant and detrimental impact on the integrity of the Tribunal’s process: Oger v. Whatcott (No. 7), 2019 BCHRT 58 at para. 246. “Improper conduct” within the meaning of s. 37(4) of the Codeis not necessarily limited to intentional wrongdoing, and may include conduct that has a significant prejudicial impact on another party: McLean v. B.C. (Min. of Public Safety and Sol. Gen.) (No. 3) , 2006 BCHRT 103 at para. 8.
[34] In her application for costs, Ms. Moon argues that the Respondents refused to meaningfully engage with her lawyer to resolve document disclosure issues during the complaint process. As a result, she was forced to go to great expense to prepare related submissions to the Tribunal. Among other things, Ms. Moon says the Respondents have “impugned the integrity of the Tribunal’s processes” by using “solicitor-client privilege improperly to hide inculpatory documents” while filing their dismissal application. She asserts that this was “the culmination of a pattern where the respondents failed to make proper document disclosure before filing their [dismissal application], and made overly expansive claims of privilege over another document which were only rescinded once challenged.”
[35] Ms. Moon argues that the Tribunal has awarded costs when parties have acted improperly regarding privileged information, citing Wittworth v. ARO, 2016 BCHRT 24 and Furtado v. Cold Logic and another , 2012 BCHRT 227. For the Respondents’ alleged misconduct, she seeks a “significant award” of costs, but does not specify an exact amount.
[36] The Respondents deny engaging in improper conduct. They argue that it is not improper for a party to take all available steps to protect solicitor-client privilege.
[37] For the following reasons, I do not accept that the Respondents have engaged in improper conduct within the meaning of s. 37(4).
[38] First, the record before me does not support Ms. Moon’s assertion of improprieties regarding privileged information and document disclosure. Rather, it shows reasonable disagreements between the parties regarding various disclosure issues and other procedural matters related to the dismissal application, including: the timing of document disclosure by Mr. Haney and Mr. Fantin; disclosure of documents related to Local 891’s investigation of Ms. Moon’s credit card use in 2008; Local 891’s claims of solicitor-client privilege over several documents; and Ms. Moon’s assertions that certain documents existed (e.g., text messages, Meeting notes) but were not disclosed by Local 891.
[39] The record shows that these matters were the subject of a case conference with the Tribunal in July 2021, which resulted in the Tribunal making various decisions, including deciding: to allow the dismissal application to proceed; that the issue of Mr. Haney’s and Mr. Fantin’s document disclosure had been remedied without undue delay or prejudice to Ms. Moon; not to order disclosure of documents related to the 2008 investigation because it was not clear they were arguably relevant or would further the just and timely resolution of the complaint; and not to make any orders regarding Local 891’s privilege claims or Ms. Moon’s assertions of missing documents, but instead to invite Ms. Moon to make a formal application for disclosure regarding those matters if she wished. I note that, according to the Tribunal’s August 20, 2021 letter to the parties regarding the case conference, Ms. Moon made no suggestions at that meeting of “anything untoward on the part of Local 891 or its legal counsel regarding the assertions of privilege.” The record shows that Ms. Moon did not file a formal disclosure application following the case conference. In the end, the parties agreed to make arguments regarding the outstanding issue of the Emails during the course of the dismissal application submissions process.
[40] I am not persuaded that the above circumstances justify a punitive costs award against the Respondents. There is nothing before me that shows the Respondents impugned the integrity of the Tribunal’s process.
[41] Second, Ms. Moon has not established she experienced any significant prejudice in relation to the Respondents’ conduct. I appreciate that she may have incurred legal expenses related to the parties’ disputes over disclosure and privilege. However, this is not uncommon in an adversarial legal process, and does not – on its own – amount to significant prejudice. In general, I find that Ms. Moon’s submissions regarding prejudice are vague and are put forward without supporting evidence. Without more, they do not provide a sufficient basis for a costs order.
[42] Last, I agree with the Respondents that Wittworthand Furtadoare distinguishable from the matter before me. Ms. Moon’s submissions suggest those cases broadly establish that costs may be awarded “when parties have acted improperly regarding privileged information.” This is a mischaracterization. Wittworthinvolved a costs award against a party specifically for disclosing information obtained through mediation in contravention of s. 40(2) of the Code. Similarly, Furtado involved a costs award against a party for disclosing information obtained at an early settlement meeting, and for persistently refusing to comply with other Tribunal rules and directions. Those circumstances do not arise here.
[43] For all of the above reasons, Ms. Moon’s application for costs is denied.
IV CONCLUSION
[44] Ms. Moon’s application for costs is denied. The Respondents’ application to dismiss Ms. Moon’s complaint under s. 27(1)(c) of the Codeis granted. The complaint is dismissed.
Jonathan Chapnick
Tribunal Member