Macphail v. Maximizer Services Inc. and another, 2024 BCHRT 189
Date Issued: June 20, 2024
File: CS-000721
Indexed as: Macphail v. Maximizer Services Inc. and another, 2024 BCHRT 189
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:
Ian Macphail
COMPLAINANT
AND:
Iain Black and Maximizer Services Inc.
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27 (1)(c), (d)(ii)
APPLICATION TO FILE FURTHER SUBMISSOINS Rule 28(5)
Tribunal Member: Edward Takayanagi
On their own behalf: Ian Macphail
Counsel for the Respondents: Sari A. Wiens
I INTRODUCTION
[1] Ian Macphail alleges that his former employer, Maximizer Services Inc., and its president, Iain Black, discriminated against him in employment based on family status contrary to s. 13 of the Human Rights Code . Mr. Macphail alleges that he was fired because he has family members with disabilities and the Respondents decided he would be a drain on the company’s extended health benefits plan.
[2] The Respondents deny discriminating. Mr. Black applies to dismiss the complaint as against him under s. 27(1)(d)(ii) on the basis that proceeding with the complaint would not further the purposes of the Code. Mr. Black says at all relevant times he was acting in the scope of his employment as president of Maximizer and Mr. Macphail’s complaint does not allege conduct that indicates a level of individual culpability.
[3] The Respondents also apply to dismiss the complaint under s. 27(1)(c) on the basis that there is no reasonable prospect the complaint will succeed. They say Mr. Macphail was fired due to poor job performance. They say the fact that he has family members with disabilities was not a factor in their decision to end his employment.
[4] I consider first, the application to dismiss as against Mr. Black under s. 27(1)(d)(ii). For the reasons below, I am not persuaded by the materials before me that it would not further the purposes of the Code to proceed against him and deny his application.
[5] Next, I consider the application to dismiss under s. 27(1)(c). The parties put forward diametrically conflicting views of the events that give rise to this complaint. Because the parties give fundamentally different accounts of the termination and the events preceding the termination, my decision turns on whether I am able to resolve the conflicts in the evidence and positions of the parties. For the reasons that follow, I am unable to do so. The parties have raised issues of credibility on key elements of the complaint, and a hearing is required to resolve those issues.
[6] Therefore, I deny the Respondents’ dismissal application. 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
[7] The following facts are taken from the parties’ materials and are undisputed.
[8] Maximizer is a company in the business of providing customer relationship management software. Iain Black is the President and CEO of Maximizer.
[9] Mr. Macphail worked at Maximizer from May 2006 until November 4, 2019.
[10] As a benefit of employment, Mr. Macphail was provided extended health benefits by Maximizer, administered by a third-party benefits provider. Mr. Macphail put his spouse and three children as dependents on his extended health benefits.
[11] On November 4, 2019, Mr. Macphail met with his supervisor and the financial controller and was told his employment was being terminated. Mr. Macphail was told he was not being dismissed for cause. Mr. Macphail was told that as part of his severance his extended health benefits would continue until January 7, 2020.
III PRELIMINARY ISSUE – APPLICATION TO FILE FURTHER SUBMISSIONS
[12] Generally speaking, the Tribunal’s application process involves three submissions: the application, the response, and the reply: Tribunal Rules of Practice and Procedure, Rule 28(2). The Tribunal may accept further submissions where fairness requires that a party be given an opportunity to respond to new issues raised in reply: Rule 28(5); Kruger v. Xerox Canada Ltd (No. 2), 2005 BCHRT 24 at para. 17. The overriding consideration is whether fairness requires an opportunity for further submissions: Gichuru v. The Law Society of British Columbia (No. 2), 2006 BCHRT 201, para. 21.
[13] After the submission period closed on the Respondents’ dismissal application, Mr. Macphail applied to file a further submission dealing with, what he says are, new arguments made by the Respondents in their reply submission. Specifically, he seeks to submit information about his salary and pay increases which he says addresses the Respondents’ argument that there were job performance issues.
[14] The Respondents say that none of the arguments cited by Mr. Macphail were newly raised in their reply submissions. The Respondents argue that Mr. Macphail had a full opportunity to address the Respondents’ arguments in his response.
[15] In this case, I agree with the Respondents. I have reviewed all the materials, and, in my view, the Respondents have not raised new issues or arguments in their reply submissions. The Respondents raised the issue of whether there were job performance issues in its application.
[16] I am not persuaded that there are any new issues or arguments raised for the first time in the Respondents’ reply submissions such that fairness would require Mr. Macphail be given an opportunity to make further submissions. I am satisfied the parties have already had an adequate opportunity to make submissions and respond to the issues raised in the application. Accordingly, I deny Mr. Macphail’s application for sur-reply and do not consider his sur-reply submissions to decide the application to dismiss.
IV DECISION
A. Section 27(1)(d)(ii) – Should the complaint be dismissed against the individual respondent?
[17] The issue before me is whether the complaint, as against Mr. Black, should be dismissed pursuant to s. 27(1)(d)(ii) because proceeding would not further the purposes of the Code.
[18] 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 62 at para. 56. This is especially true for allegations of discrimination with a high degree of personal culpability, like sexual or racial harassment: Daley v. BC (Ministry of Health), 2006 BCHRT 341 at para. 53.
[19] 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.
[20] 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.
[21] Here, while Mr. Macphail has named the institutional respondent, Maximizer, what is missing in the materials before me is information from which I can conclude that Maximizer has the means to satisfy any remedial orders the Tribunal may order. Maximizer has acknowledged as its own any acts or omissions by Mr. Black and takes responsibility to satisfy any remedial order. However, there is nothing before me to indicate that Maximizer has the capacity to fulfill such remedial orders.
[22] The Respondents argue that the allegations against Mr. Black do not disclose a measure of personal culpability warranting proceeding against him. They say the allegations do not disclose conduct beyond the scope of Mr. Black’s role and position as President and CEO of Maximizer. I do not agree with this characterization of Mr. Macphail’s complaint.
[23] Mr. Macphail’s allegation is that Mr. Black acted outside the regular course of his duties as President and CEO by having the financial controller investigate his extended health benefit use. And that knowing he had dependents on his plan, was a factor in Mr. Black’s decision to terminate his employment. In Daleyterms, Mr. Macphail alleges Mr. Black was the directing mind behind the alleged discrimination and is personally culpable.
[24] For the above reasons, I decline to exercise my discretion to dismiss the complaint, as against Mr. Black, under s. 27(1)(d)(ii).
B. Section 27(1)(c) – Is there no reasonable prospect the complaint will succeed?
[25] The Respondents apply to dismiss Mr. Macphail’s complaint on the basis that it has no reasonable prospect of success: Code,s. 27(1)(c) The onus is on the Respondents to establish the basis for dismissal.
[26] Section 27(1)(c) 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.
[27] 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.
[28] 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.
[29] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia, 2008 BCSC 1026 at para. 34. However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City) , 2017 BCCA 242 at para 67. These principles are important in this case because the parties disagree about what happened prior to Mr. Macphail’s termination and the reason for the termination.
[30] Mr. Macphail says that less than a month before he was terminated, he met with the financial controller who said Mr. Black ordered her to find out how many dependents were on Mr. Macphail’s extended health benefits plan. He says he was asked if he was using a “member or family” plan. Mr. Macphail says he informed the financial controller that he was on a family plan with four dependents covered by his extended health benefits. I understand Mr. Macphail to argue that the temporal proximity between being asked about whether he had dependents on his extended health plan on October 9, 2019, and being fired weeks later on November 4, 2019, gives rise to a reasonable inference that his family status – having dependents – was a factor in his termination.
[31] The Respondents deny that any such meeting between Mr. Macphail and the financial controller took place. Mr. Black denies that he ordered an investigation into Mr. Macphail’s use of extended health benefits, and the financial controller denies she met with Mr. Macphail and asked if he had dependents on his plan, or at all.
[32] The Respondents say that Mr. Macphail was fired because his supervisor determined that he was not meeting the needs of the company. The supervisor provided affidavit evidence saying Mr. Macphail was often late and had issues with time management. The supervisor says the issues did not improve despite discussions and coaching and the decision was made to terminate his employment.
[33] Mr. Macphail responds that he received a salary increase in 2019 that undermines the Respondents’ argument that his work was not meeting the company’s needs. The Respondents do not dispute that Mr. Macphail was given a salary increase but say the raise was related to a change in the nature of his job and not a reflection on his performance. They say Mr. Macphail has not disputed that he was told there were performance concerns.
[34] In my view, the conflicting evidence directly relates to the key issue of whether Mr. Macphail having family members on his extended health plan was a factor in the Respondents’ decision to terminate his employment.
[35] At this stage, where the Tribunal does not weigh evidence and make findings of fact, I am unable to reconcile the conflicting evidence. Specifically, in regard to whether Mr. Macphail met with the financial controller, whether she asked if he had dependents on his plan, and whether the controller said Mr. Black ordered her to investigate whether he had a “member or family” plan. These are key issues because Mr. Macphail says the Respondents made their decision to terminate his employment because he had dependents on his plan. The Tribunal can only determine which version of events is accurate with the benefit of the witness’ evidence being tested on cross-examination.
[36] I have considered the Respondents’ argument that the sole reason for the termination was Mr. Macphail’s poor job performance. However, I find this core issue cannot be resolved at this stage based on the materials before me. The Respondents have provided affidavit evidence from Mr. Black, the financial controller, and the supervisor asserting that poor job performance was the sole reason for firing Mr. Macphail. However, what is lacking in the materials is any contemporaneous documentation regarding the alleged performance concerns.
[37] Moreover, even if there was such documentation it is not evident to me that there would be no prospect Mr. Macphail’s complaint could succeed. It is well-established that a protected characteristic need only be a factor in the adverse impact, nor the predominant or only factor. Therefore, a hearing would be required to resolve whether Mr. Macphail’s evidence about the meeting with the financial controller is credible – and whether it is enough to ground an inference that his family status was a factor in his termination – even if there had been contemporaneous documentation about his alleged performance issues.
[38] At this stage, I cannot say the Respondents have established that there is no reasonable prospect the complaint will be successful.
V CONCLUSION
[39] I deny the application to dismiss.
Edward Takayanagi
Tribunal Member