Pike v. Ooh La La Café and others (No. 3), 2024 BCHRT 191
Date Issued: June 21, 2024
Files: CS-000071; Legacy 19865
Indexed as: Pike v. Ooh La La Café and others (No. 3), 2024 BCHRT 191
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:
Georgia Pike
COMPLAINANT
AND:
Lu James Li and Acaro Global Solutions Inc. dba Ooh La La Café
RESPONDENTS
REASONS FOR DECISION
APPLICATION FOR COSTS
Section 37(4)
Tribunal Member: Sonya Pighin
Advocate for the Complainant: Caileigh Owen
Advocate for Lu James Li. ZiHeng Cai
I INTRODUCTION
[1] Georgia Pike is a person with legal blindness who uses a guide dog to navigate in public spaces. In Pike v. Ooh La La Cafe and others (No. 2) , 2023 BCHRT 99 [Pike No. 2], I found that Lu James Li and Acaro Global Solutions Inc. dba Ooh La La Café had discriminated against Ms. Pike, contrary to s. 8 of the Human Rights Code [Code] based on her legal blindness. Mr. Li had denied Ms. Pike a service that is customarily available to the public when he refused to serve Ms. Pike food at the Ooh La La Café. He refused to do so because her guide dog, Grainger, was with her when she requested to order the food.
[2] During Ms. Pike’s testimony at the hearing, Mr. Li made a comment about Ms. Pike being a person with blindness and whether she is capable of using her phone to make the video evidence that she was relying on. I immediately stopped Mr. Li from continuing what he was saying, and I explained that as the Member presiding over the hearing it is my responsibility to ensure a safe space for all participants. I told Mr. Li that his statement was not conducive to a safe space for Ms. Pike. He immediately stopped making it.
[3] In Ms. Pike’s closing submissions, she argued that Mr. Li’s conduct at the hearing was a continuation of his discriminatory behaviour toward her. I declined to consider her argument because Mr. Li’s conduct at the hearing did not form part of the complaint. I informed Ms. Pike that there are two options she may wish to consider regarding Mr. Li’s conduct: (1) she may file a new complaint against Mr. Li, or (2) she may apply for an order under s. 37(4) of the Code that Mr. Li pay her costs.
[4] On January 3, 2024, Ms. Pike applied, under s. 37(4) of the Code, for an order that Mr. Li pay her $7,500 in costs on the basis that he engaged in improper conduct. She alleges six types of improper conduct by Mr. Li at the hearing, which include that he rolled his eyes, laughed, and shook his head while she and her other witnesses gave evidence, refused to accept and questioned that she is legally blind and that Grainger was a guide dog, questioned whether she was capable of using her phone to make the video evidence she presented to the Tribunal, accused her of lying, provided untruthful evidence at the hearing, and coerced another witness to lie to the Tribunal.
[5] Mr. Li provided a written response to Ms. Pike’s application, denying that he engaged in improper conduct. Ms. Pike provided a written reply to that response. While I have considered all the arguments put forward by the parties, I refer only to those arguments that were necessary for me to make this decision.
II PRELIMINARY MATTERS
[6] Before moving on, I comment that when a person makes an application to the Tribunal, it is their responsibility to ensure that they submit the necessary evidence to support it. The same goes for a person who responds to an application.
[7] The Tribunal makes audio records of its hearings, which it treats as the only formal records of its hearings. A party may apply to the Tribunal for a copy of the audio record, either as an accommodation or for other reasons. They may also, at their own cost, obtain a certified transcript of all or part of an audio record: Tribunal Rules of Practice and Procedure [Tribunal Rules] at Rule 32. Either party could have requested a copy of the audio record from the hearing to assist them in preparing their submissions. This would have allowed them to point the Tribunal to those parts of the hearing where Mr. Li allegedly engaged in improper conduct. Likewise, either party could have obtained a hearing transcript and submitted it as evidence to support their arguments. Neither party did so. Nor did they submit any evidence to support their arguments.
[8] It is not the role of the Tribunal to identify those parts of its records, including an audio record, that may support a party’s application or response to an application. If the Tribunal were to do so, it would be using its limited resources in a manner that negatively impacts upon the just and timely resolution of the five thousand plus complaints that are currently active before it.
[9] Since neither party pointed me to relevant parts of the audio record, or to any other evidence to support their arguments, I have relied solely upon my memory of those parts of the hearing that I can clearly recall. However, I do not recall every part of the hearing in detail. So, where I do not clearly recall an event occurring at the hearing, I do not assume that it occurred.
[10] Last, before moving on, I comment that throughout Ms. Pike’s submissions she argues that Mr. Li’s alleged conduct was discriminatory. I wish to clarify that I am not deciding whether Mr. Li’s conduct was discriminatory. In Ms. Pike’s application, she seeks a costs award. If Ms. Pike wants the Tribunal to consider whether Mr. Li’s conduct was discrimination, then she must file a complaint about his conduct with the Tribunal.
III SECTION 37(4) OF THE CODE
[11] Next, I explain how I will decide whether to order costs under s. 37(4) of the Code, and for any award I do order, I explain how I will decide the amount to order.
[12] Section 37(4) of the Code sets out that:
The member or panel may award costs
(a) against a party to a complaint who has engaged in improper conduct during the course of the complaint, and
(b) without limiting paragraph (a), against a party who contravenes a rule under section 27.3 (2) or an order under section 27.3 (3).
A. What are costs?
[13] The Code does not define costs. So, it is up to the Tribunal to interpret what that term means. In doing so, I consider that the words of the Code must be read in their entire context and in their grammatical and ordinary sense harmonious with the scheme and objects of the Code, and the intention of the Legislature: Re Rizzo & Rizzo Shoes Ltd. , [1998] 1 S.C.R. 27at para. 21; Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 at para. 118; British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 at para. 30. I also consider that the Code as remedial, and I must give it such fair, large, and liberal construction and interpretation as best ensures the attainment of its objects: Interpretation Act (B.C.) at s. 8.
[14] The term costs in s.37(4) of the Code is a technical term, as opposed to it being ordinary language; People use it in an inherently legal context. As such, the grammatical and ordinary sense of the term costs is not helpful to me in determining what costs are in s. 37(4) of the Code. The Supreme Court of Canada has described costs as compensation that a person gets for legal expenses and services that they incur in the course of litigation; a very familiar and widely used legal term of art: Canada (Canadian Human Rights Commission) v. Canada (Attorney General) , 2011 SCC 53 at para 40. The B.C. Court of Appeal has described costs as amounts of money that can be ordered against a party to indemnify another party, to deter certain types of conduct, to encourage conduct that reduces the duration and expense of litigation and discourage conduct that has the opposite effect, and to require that party to carefully assess their case so as not to continue with a doubtful case: Giles v. Westminster Savings and Credit Union , 2010 BCCA 282 at para. 74.
[15] The Tribunal has said that, at least in part, s. 37(4) of the Code is punitive and a deterrent to improper conduct: Hendrickson at para 27; Terpsma v. Rimex Supply (No. 3), 2013 BCHRT 3 at para 102. It has also said that the primary purpose of a costs award is punitive, not compensatory: Bains v. Metro College Inc. and others (No. 2) , 2004 BCHRT 7 at para. 16; Kelly v. Insurance Corporation of British Columbia, 2007 BCHRT 382at paras. 90-91; Stone v. B.C. (Ministry of Health) (No. 8) , 2008 BCHRT 96 at para. 93. Last, it has said that a costs award aims to deter conduct that has a significant and detrimental impact on the integrity of the Tribunal’s process, including contraventions of the Tribunal Rules or orders: SA v. Greater Vancouver Regional District dba Metro Vancouver Housing Corporation , 2023 BCHRT 15 at para. 56.
[16] Considering the Supreme Court of Canada and B.C. Court of Appeal’s descriptions of the technical term costs, and the context of s. 37(4) of the Code, I treat the term costs as a reference to:
a. An indemnification for the legal expenses and services that a person incurs because of a participant’s improper conduct; and
b. any amount that the Tribunal determines is sufficient to:
i. hold a participant accountable for their improper conduct,
ii. deter a participant from engaging in similar improper conduct in the future, or
iii. encourage a participant to carefully assess how they conduct themselves in the Tribunal’s proceedings.
[17] Next, I turn to how I treat the phrase “improper conduct” under s. 37(4) of the Code.
B. What is improper conduct under s. 37(4) of the Code?
[18] Mr. Li argues that for Ms. Pike to establish improper conduct, she must prove that the conduct in question is deliberate. In support of this argument, he points to Hendrickson v. Long & McQuade Ltd. (No. 2), 34 CHRR 36[Hendrickson 2], in which the Tribunal said that:
“Improper conduct” imports a notion of intentional wrongdoing, or culpable action, in the sense of conduct that a reasonable person would know is wrong. Section 37(4) also requires that the conduct be a serious impropriety that has a significant and detrimental affect on the integrity of the investigation or the hearing: at para 27.
[19] In Hendrickson, the Tribunal decided that the complainant had engaged in improper conduct when he “knowingly and repeatedly offered a fundamentally untruthful account of events central to his complaints,” and it ordered costs against him for doing so: at para. 30.
[20] Ms. Pike argues that Hendrickson is outdated, and that improper conduct “is not limited to intentional wrongdoing.” In support of her argument, she points to McLean v. B.C. (Min. of Public Safety and Sol. Gen.). (No. 3), 2006 BCHRT 103 [McLean No.3].
[21] In McLean v. B.C. (Min. of Public Safety and Sol. Gen.) (No. 2), 2006 BCHRT 83, the Tribunal decided that a respondent engaged in improper conduct when it filed a complaint response that included an admission within it, and then 15 months later filed an amended response, in which the admission was excluded. The Tribunal decided that the complainant was significantly prejudiced by the respondent’s conduct because its conduct resulted in either the hearing having to be adjourned or the complainant having no time to address the expert evidence that the respondent relied on for their change in position regarding the admission: at paras 32 and 33. It invited oral submissions from the parties on whether it should order costs for the respondent’s improper conduct, and if so in what amount.
[22] The Tribunal heard oral submissions from the parties and then decided to award costs against the respondent. In McLean No. 3 , it explained its decision. It acknowledged that its finding of improper conduct was not based on a finding of intentional wrongdoing: at para. 10. It then stated that:
a. The standard in Hendrickson for deciding whether improper conduct occurred may be too high in some cases, such as when a person contravenes a rule or an order of the Tribunal;
b. Conduct that is the result of intentional wrongdoing may certainly be “improper,” but the Tribunal should not limit improper conduct to intentional wrongdoing; and
c. Conduct that has a significant impact on the integrity of the Tribunal’s processes, including conduct that has a significant prejudicial impact on another party, may constitute improper conduct under s. 37(4) of the Code: at para 8.
[23] I adopt the Tribunal’s approach in McLean No. 3 to determining whether a person’s conduct is improper conduct. In various other cases, the Tribunal has taken the same approach to improper conduct as it did in McLean No. 3: For example, see Shin v. Ministry of Public Safety and Solicitor General and another (No. 2) , 2024 BCHRT 156 at para. 49; Forbes v. Bolen Books, 2024 BCHRT 27 at para. 41; and Christensen v. Save-a-Lot Holdings Corp. (No. 3), 2023 BCHRT 125 at para. 212. In at least two cases, the B.C. Supreme Court has found that the Tribunal’s adoption of its approach in McLean No. 3 to assessing whether a person engaged in improper conduct is not patently unreasonable: See Asad v. Kinexus Bioinformatics, 2008 BCHRT 293 [Asad] at paras. 984 and 985 and Kinexus Bioinformatics Corporation v. Asad, 2010 BCSC 33 [Kinexus]at paras. 170 – 171; Also see McIntosh v. Metro Aluminum Products Ltd., 2012 BCSC 345 at paras. 53 to 63.
[24] Before moving on, I address the element of intention in proving improper conduct under s.37(4) of the Code. If a person’s conduct must be intentional for it to be improper conduct, then, using the description of improper conduct in McLean No. 3,before the Tribunal could order costs it would need to be satisfied that the person who engaged in the conduct intended for that conduct to:
a. result in a contravention of the Tribunal Rules or its orders or directions;
b. have a significant impact on the integrity of the Tribunal’s processes; or
c. have a significant prejudicial impact on another party.
[25] I do not accept that proving improper conduct requires a person to establish that the conduct at issue was intentional. Such a high threshold would be nearly impossible to meet in most cases. However, intention still has a place in the assessment of whether to award costs, and I will come back to it below when I discuss the discretionary nature of costs awards and amounts.
[26] Before discussing the discretionary nature of costs awards and amounts, I note that in McLean No. 3 and successive decisions where the Tribunal adopts the McLean No. 3 approach to improper conduct, it has not explained what it means by “the integrity of the Tribunal’s processes” or “prejudicial impact on another party.” As such, I set out how I treat those phrases in my assessment of whether improper conduct has occurred.
[27] First, I consider the Tribunal’s processes to have integrity when the Tribunal acts in a manner consistent with the Code and the Tribunal Rules. Second, I consider the Tribunal’s processes to have integrity when the Tribunal enforces the Code, its own orders and directions, and the Tribunal Rules, upon parties to a complaint. I note that only one of the Tribunal Rules is at play in this decision. Rule 7 of the Tribunal Rules sets out, in part, that:
(4) Participants … must treat all persons in the course of a complaint with courtesy and respect.
(5) Participants … must participate in the complaint process with appropriate consideration for all persons without discrimination.
(6) Participants … must conduct themselves with honesty and integrity, and must not act in a manner that would undermine the Tribunal’s process.
[28] Enforcing the Tribunal Rules includes acting swiftly to address inappropriate remarks or behaviours of the participants at hearings, without jeopardizing the parties’ rights’ to have their positions heard. It includes the Tribunal exercising its authority to make orders to facilitate the just and timely resolution of a complaint, and to make orders or give directions that it considers necessary for the maintenance of order at a hearing. If a person fails to comply with the Tribunal’s orders or directions at a hearing, it includes the Tribunal imposing restrictions on their continued participation in or attendance at the hearing: Code at ss. 27.3(3) and 32(l); Administrative Tribunals Act at s. 48; Tribunal Rules at Rule 32(12).
[29] Last, the Tribunal’s processes have integrity when those processes provide parties with a just and timely resolution of their complaints. Parties get a just resolution of their complaint when either the parties resolve it themselves or the Tribunal makes a final decision about its merits, providing the parties with certainty and finality in the outcome, after a hearing that is procedurally fair to both parties and after it has all the information before it that may be relevant to the issues at hand.
[30] The Tribunal’s processes provide a timely resolution when they are efficient, meaning they are as quick as possible. At the same time, the Tribunal must provide parties, especially self-represented parties, with information and reasonable assistance regarding procedural and evidentiary rules so that they can fully participate in the proceedings.
[31] A party experiences a prejudicial impact when another participant’s conduct results in that party experiencing a negative effect regarding fairness in the proceedings. Without limiting the types of negative effects that may arise regarding fairness, they include experiencing:
a. An impaired ability to present their own case to the Tribunal because the other participant’s conduct interferes with their ability to present their own evidence, question their witnesses, keep track of what evidence has been put before the Tribunal, raise and respond to evidentiary objections, keep track of the hearing proceedings, conduct an effective cross-examination, make decisions around their litigation strategy, or maintain their own record of what has occurred at the hearing.
b. Moral prejudice, which is when another participant’s conduct unnecessarily brings the Tribunal’s focus to some general disposition or propensity of the party to act in a certain way, risking the potential for the Tribunal to make an inference about that party’s conduct based on their “bad personhood.” This includes conduct that aims primarily to arouse emotions of prejudice, hostility, or sympathy toward a party: For example, see R. v. Handy, [2002] S.C.J. No. 57 [Handy] at paras. 31 and 139 – 143; R. v. Hart, [2014] S.C.J. No. 52 [Hart] at para 73; R v. Clarke, [1998] O.J. No. 3521 [Clarke] at para 34.
c. Reasoning prejudice, which is when another participant’s conduct distracts the Tribunal from its proper focus on the allegations before it; when it distracts the Tribunal away from the issues it needs to focus on and decide: For example, see Handy at paras 144 to 147; Hart at para. 73; Clarke at para. 34.
d. Timing prejudice, which is when another participant’s conduct consumes an undue amount of time, reducing the impacted party’s available opportunity to present their case to the Tribunal.
[32] Next, I turn to the discretionary nature of costs awards, and of decisions about the amounts of costs to award.
C. Discretionary nature of costs awards and amounts
[33] Section 37(4) of the Code states that the Tribunal may awards costs, not that it must do so. This means it does not have to orders costs after a finding of improper conduct. When the Tribunal finds that improper conduct occurred, it has discretion on whether to order costs and, if so, on the amount to order: Fougere v. Rallis and Kalamata Greek Taverna (No. 3), 2003 BCHRT 56, at paras. 11 and 12; Kinexusat para. 34; Downtown Vancouver Business Improvement Association v. Pivot Legal Society , 2010 BCSC 807 at para. 42.
[34] Whether a person’s conduct is intentional is relevant to whether the Tribunal should exercise its discretion to award costs for improper conduct, and to the amount it should order to remedy that improper conduct. When a person’s improper conduct is intentional, it is an aggravating factor that increases the necessity of a costs award and the necessity for the amount of that award to be higher.
[35] In considering whether to award costs, the Tribunal has also considered whether the person applying for costs had alternative remedies they could have sought to forestall the conduct of the person against whom they sought costs: Stein v. Vancouver Coastal Health Authority and another (No. 2), 2014 BCHRT 227 [Stein] at para. 190. I agree with this approach because, in my view, there is a duty upon parties to raise issues of alleged improper conduct with the Tribunal at the time it occurs. When a person raises such issues, the Tribunal can make those orders or give those directions that are necessary to enforce the Tribunal Rules, uphold the integrity of the Tribunal’s proceedings and alleviate any prejudicial impact that may result to them from the participants conduct. It is not appropriate for a party to tolerate a participants conduct that they consider to be improper, and then after the Tribunal processes conclude, raise the issue seeking a monetary award. At the same time, when considering whether a person could have raised an issue of improper conduct when it occurred, the Tribunal must be mindful of whether that person is self-represented and whether they understood that they could ask the Tribunal to make orders and give directions to participants regarding the conduct they deemed to be improper.
[36] In considering the amount of costs it should order, the Tribunal has said that:
a. The actual costs of involvement in a hearing may be a relevant consideration under s. 37(4)of the Code, but they do not have the same significance or standard of measure in the conduct of human rights litigation as they do in the Supreme Court: Theodoridis v. Long & McQuade and Martel , 1999 BCHRT 35 [Theodoridis] at para. 11.
b. The amount of an award under s. 37(4)of the Codeshould reflect:
i. the seriousness of the effect of the improper conduct upon the wronged parties to the complaint, and
ii. the effect of the improper conduct upon the functioning of the human rights complaint system itself: Theodoridisat para. 12.
c. The amount awarded should be adequate to deter the party against whom the order is made, and others, from similar conduct in the future: Theodoridis at para. 12.
[37] In considering the amount of costs it should order, the Tribunal has also considered whether a person who engaged in improper conduct:
a. is self-represented and less familiar than legal counsel with the Tribunal Rules: Asad at para. 1004; Fletcher v. Meadow Gardens (No. 2) , 2010 BCHRT 148 [Fletcher] at para. 132.
b. is sophisticated and able to both understand and comply with the Tribunal Rules: Asad at para. 1005.
c. has a disability or other condition that contributed to their improper conduct: Stein at paras. 191 to 195; Fletcher at para. 132; Gichuru v. Vancouver Swing Society (No. 3), 2020 BCHRT 1 [Gichuru] at para. 239.
d. has the financial ability to pay costs: Mahal v. Hartley, 2004 BCHRT 63; Kelly v. ICBC, 2007 BCHRT 382 [Kelly] at para. 91; Fletcher at para. 132; Pearson v. Dewey Cuttem & Howe Hair and another (No. 2) , 2017 BCHRT 94 at para. 48; C v. Van City, 2016 BCHRT 103 at para. 94.
e. is relatively culpable for their conduct: Neuls v. Ann Davis Transition Society and Jacob (No. 2), 2007 BCHRT 5; Kelly at para. 91; Gichuru at para. 239.
[38] Last, it has considered any other consequences that a party has suffered because of the participant’s improper conduct: Kelly at para. 91; Gichuru at para. 239.
[39] I find each of these factors helpful in both determining whether to make a costs award, and in deciding what an appropriate amount of costs is to award.
D. Summary
[40] First, I will consider whether Ms. Pike has proven that Mr. Li engaged in the conduct she says he engaged in. Where she has not proven that he did so, I will decide that she has not proven he engaged in improper conduct.
[41] Next, for each instance where Ms. Pike proves that Mr. Li’s alleged conduct occurred, I will determine whether that conduct is improper conduct under s.37(4) of the Code. It will be improper conduct if it:
a. was a breach of the Tribunal Rules, or an order or direction of the Tribunal;
b. had a significant impact on the integrity of the Tribunal’s process; or
c. had a significant prejudicial impact on Ms. Pike.
[42] If I find that Mr. Li engaged in improper conduct, I will decide whether to make a costs order against him for that improper conduct, and if so then what amount of costs to order. In doing so, I will consider:
a. whether Mr. Li intended to engage in the improper conduct;
b. that Mr. Li is self-represented and less familiar than legal counsel with the Tribunal Rules;
c. Mr. Li’s level of sophistication, including his ability to understand and comply with the Tribunal Rules;
d. factors, such as a disability, which may have contributed to Mr. Li’s conduct;
e. whether Mr. Li has the financial ability to pay costs;
f. the amount of costs that will deter Mr. Li and others from engaging in the same type of improper conduct;
g. the amount of costs that may penalise or discipline Mr. Li for his improper conduct;
h. whether Ms. Pike could have sought alternative remedies for Mr. Li’s improper conduct when it occurred;
i. the actual costs that Ms. Pike has incurred because of the improper conduct;
j. the seriousness of any effects of the improper conduct upon the integrity of the Tribunal’s processes; and
k. the seriousness of any prejudicial impact that Ms. Pike experienced because of the improper conduct.
[43] I now turn to my decision on Ms. Pike’s application.
IV DECISION AND ORDER FOR COSTS
[44] Mr. Li engaged in improper conduct at the hearing when he:
a. rolled his eyes, laughed, and shook his head while Ms. Pike testified, which was a breach of his duty under Rule 7 of the Tribunal Rules to treat Ms. Pike with courtesy and respect;
b. made a statement about Ms. Pike’s capacity to make a video, which was a breach of his duty under Rule 7 of the Tribunal Rules to treat Ms. Pike with courtesy and respect; and
c. provided untruthful evidence to the Tribunal about matters that were central to the issues I had to decide, which was a breach of his duty under Rule 7 of the Tribunal Rules to conduct himself with honesty and integrity.
[45] I find it appropriate in these circumstances to award costs under s. 37(4) of the Code for Mr. Li’s above-mentioned improper conduct. Under that section of the Code, I order that Mr. Li pay costs to Ms. Pike in the amount of $2,000.
[46] I am satisfied that Mr. Li refused to accept and questioned whether Ms. Pike is legally blind and whether her guide dog was a guide dog. However, I am not convinced that his doing so was improper conduct and I deny Ms. Pike’s application for a costs award on these grounds.
[47] Ms. Pike has not proven that Mr. Li engaged in the following conduct, so she has not proven that such alleged conduct was improper conduct, and I deny her application for a costs award on these grounds:
a. that he rolled his eyes, laughed, or shook his head when Ms. Pike’s other witnesses gave evidence;
b. that he accused Ms. Pike of lying multiple times throughout the hearing; or
c. that he coerced another witness to lie to the Tribunal.
[48] I will now explain my decision, and the reasons for my order.
V ANALYSIS RE: IMPROPER CONDUCT
A. Did Mr. Li engage in improper conduct by eye rolling, laughing, and shaking his head at the hearing?
[49] First, Ms. Pike’s alleges that Mr. Li engaged in improper conduct by rolling his eyes, laughing, and shaking his head while she and her witnesses gave their evidence.
[50] Mr. Li does not admit to rolling his eyes, laughing, or shaking his head during any specific incidents during the hearing. However, he admits he may have made innocuous subconscious reactions at the hearing due to his inability to fully comprehend the issues discussed, that at many points during the hearing he was confused about the facts presented and the proper legal procedures, and that he lacked sufficient consultation to effectively engage in the Tribunal’s processes as a self-representing non-English speaker. I treat this as him arguing that if he did roll his eyes, laugh, or shake his head, then it does not amount to improper conduct, and that if the Tribunal finds it did, then it does not warrant a costs award.
[51] I accept that Mr. Li rolled his eyes, laughed, and shook his head while Ms. Pike testified. I recall observing him do so. I also find that his conduct in doing so was a breach of Rule 7 of the Tribunal Rules , making it improper conduct. I recognise that sometimes a person may laugh or shake their head out of confusion. However, I do not accept that a person rolls their eyes, other than as a sign of their displeasure or to be dismissive of the information they are receiving. Given that I recall Mr. Li’s laughter and headshaking being concurrent with his eye rolling, I am willing to accept that all three actions were signs of his displeasure and him being overtly dismissive of Ms. Pike’s testimony. While a party may not like another party’s testimony, they are still responsible for ensuring that they treat the other party with courtesy and respect, which means being polite and considerate while they testify.
[52] I do not accept that Mr. Li rolled his eyes, laughed, or shook his head while Ms. Pike’s other witnesses provided their testimonies. Ms. Pike put four witnesses forward during the hearing. I do not recall this occurring during any of their testimonies. Ms. Pike has provided no details about which witness was speaking when Mr. Li allegedly conducted himself in this manner, or about the specific context within which his alleged conduct occurred. If she had done so, perhaps I would have recalled the incidents. Given I do not recall this occurring, and Ms. Pike has provided no evidence that it occurred, she has not proven that it occurred.
B. Did Mr. Li engage in improper conduct by refusing to accept and questioning whether Ms. Pike is legally blind and whether Grainger was her guide dog?
[53] Ms. Pike alleges that Mr. Li engaged in improper conduct at the hearing by refusing to accept, and questioning, whether she is legally blind and that her guide dog is a guide dog. She argues that Mr. Li continuously questioned her ability to see, and says he commented about how he believed she was lying about her lack of sight. She also says that Mr. Li refused to accept that Grainger was her guide dog, despite her having shown him Grainger’s certification card and despite another of her witnesses providing evidence that he assisted in training Grainger at The Seeing Eye. Last, she says that he consistently interrupted her testimony by objecting to her calling Grainger her guide dog, which she says was demoralizing.
[54] Assuming without deciding that Mr. Li refused to accept, and that he questioned whether Ms. Pike was legally blind and whether Grainger was a guide dog, I am still not convinced that his doing so was improper conduct. First, Ms. Pike was responsible for proving at the hearing that she has a physical disability, that Grainger was a guide dog, and that Grainger was a tool she used to navigate public spaces due to her having a physical disability. It was in Mr. Li’s right to question her evidence about these matters. This is a part of his right to defend himself, which is a necessary part of the Tribunal’s process to ensure all parties get a just resolution of their complaint. Second, Ms. Pike has not explained how Mr. Li’s conduct is a breach of the Tribunal Rules, how it has had a significant impact on the integrity of the Tribunal’s processes, or how it has resulted in a significant prejudicial effect on her.
[55] Next, I do not recall Mr. Li making a comment at the hearing about Ms. Pike lying about her lack of sight, and Ms. Pike has not provided any evidence to support this allegation. As such, Ms. Pike has not proven that this occurred, so I will not consider whether it was improper conduct.
[56] Last, I recall Mr. Li raising concerns at the hearing about Ms. Pike’s use of the term guide dog to describe Grainger. However, I do not find that his raising of such concerns amounts to improper conduct. First, each time Mr. Li raised this concern, I treated it as a concern that Ms. Pike was speaking as if the Tribunal had already decided that Grainger was a guide dog, when I had not yet made such a determination. I explained to the parties that while Ms. Pike is using the term guide dog in her evidence, it is her responsibility to prove whether Grainger was a guide dog. I also explained that, after all parties have provided their evidence, I will decide whether Grainger was a guide dog, or a pet dog as alleged by Mr. Li. I explained this a couple of times and then Mr. Li seemed to understand what I was saying. As far as I recall, Mr. Li’s interruptions on this basis stopped once he understood that I would decide later whether Grainger was a guide dog, and that he would have an opportunity to present his own evidence on the matter before I make that decision. I am satisfied that Mr. Li’s objections were honest misunderstandings of how the Tribunal assesses parties’ evidence and how it makes decisions. Second, Ms. Pike has not pointed me to how Mr. Li’s conduct is a breach of the Tribunal Rules or an order or direction of the Tribunal. She has also not pointed me to how his conduct has had a significant impact on the integrity of the Tribunal’s processes, or how it has resulted in a significant prejudicial effect on her.
C. Did Mr. Li engage in improper conduct by making a statement about Ms. Pike’s capacity, as a legally blind person, to make a video?
[57] Ms. Pike alleges that Mr. Li engaged in improper conduct by cross-examining her on her ability to record a video if she is legally blind. Ms. Pike argues that during cross-examination, Mr. Li said to her, “I believe for a person who has very limited vision or who is almost blind, its not possible for such a person to make a video.” She further argues that his doing so was a method of accusing her of lying about her disability, which was damaging to Ms. Pike.
[58] Mr. Li does not deny making a statement at the hearing about Ms. Pike’s capacity to make a video. However, he argues that he was putting forth his best genuine effort, although ineffective, at cross-examination, that he did not have any meaningful legal consultation, and that he is not proficient in the best use of the English language. He further argues that he had intended to show that Ms. Pike has some ability to process visual stimulus, and that he was confused about the distinction between legally blind and fully blind, and how the two descriptors of being blind may be relevant to the complaint.
[59] First, I recall Ms. Li making the alleged statements about Ms. Pike’s capacity to make a video on her phone and I accept that he did so. As I have already stated, I immediately stopped Mr. Li from continuing what he was saying. I explained that as the Member presiding over the hearing it is my responsibility to ensure that the hearing room is a safe space for all participants, and I told Mr. Li that his statements were not conducive to a safe space for Ms. Pike. He did not continue with his statement.
[60] Second, I am satisfied that Mr. Li’s statement was a breach of Rule 7 of the Tribunal Rules, making it improper conduct. Mr. Li’s statement contained nothing more than his opinion about Ms. Pike’s capacity as a person with an alleged physical disability to undertake a basic task of recording a video on her telephone. If Mr. Li had questions for Ms. Pike about her physical capacities or about the condition that she was claiming to be her physical disability, he could have asked her those questions. Doing so would have been within his rights. Instead, he made an opinionated statement about Ms. Pike, and I clearly recall that when he made that statement, Ms. Pike’s facial expression turned from neutral to one of someone who has been offended. Her eyes eyebrows scrunched up toward each other, her lower jaw dropped open, and she pulled her body away. Making offensive statements toward another party at a hearing about their ability to undertake a basic task is a breach of the duty under Rule 7 of the Tribunal Rulesto treat other participants with courtesy and respect.
D. Did Mr. Li engage in improper conduct by accusing Ms. Pike of lying?
[61] Ms. Pike alleges that Mr. Li accused her of lying multiple time throughout the hearing. However, she has not proven that this occurred, so I will not consider whether it was improper conduct. First, I have no clear recollections of Mr. Li making the statements that Ms. Pike says he did about her lying. Second, as I have already mentioned, it is Ms. Pike’s responsibility to provide the Tribunal with the necessary evidence to support her allegations. Ms. Pike has not pointed me to those parts of the hearing or those spots in the audio record where Mr. Li allegedly made statements about her lying, and she has provided no other supporting evidence that this occurred.
E. Did Mr. Li engage in improper conduct by providing untruthful evidence to the Tribunal?
[62] Ms. Pike alleges that Mr. Li provided untruthful evidence at the hearing and that his doing so was improper conduct. Ms. Pike argues that Mr. Li was untruthful with respect to the “central aspects of the complaint,” gave false representations, and made material misrepresentations and omissions to the Tribunal. In support of her argument that this was improper conduct, she points to past Tribunal cases where the Tribunal has said that providing untruthful testimony about matters respecting central aspects of a complaint is improper conduct, and that giving evidence to mislead the Tribunal is improper conduct:Stopps v. Just Ladies Fitness (Metrotown) Ltd. (No. 4), 2007 BCHRT 125[Stopps] at para. 23, Gichuru v. Purewal , 2017 BCHRT 19 at para. 327.
[63] Ms. Pike further argues that Mr. Li provided untruthful testimony to mislead the Tribunal by testifying that:
a. In a video of him gesturing toward his nose during his interactions with Ms. Pike at the café, he was “digging it,” meaning digging in his nose, as opposed to gesturing toward it and telling her that Grainger could not be in the café because he is sensitive.
b. When Ms. Pike entered the café, Grainger was not guiding her into the space, and instead she walked on her own up to the café counter.
c. While Ms. Pike was in the café, she had a golden retriever dog with her that did not have any indicia of being a guide dog, and that the dog was running around off-leash, sniffing, and licking food.
[64] Last, Ms. Pike argues that Mr. Li’s fabricated evidence caused the hearing to be a much longer and a more cumbersome process than it should have been, and that it had a direct impact on Ms. Pike, causing her to become upset and emotional. She says the Tribunal’s findings about Mr. Li’s evidence not being credible are findings that he lied, and that such lying is improper conduct.
[65] Mr. Li argues that the Tribunal’s findings about his credibility are a necessary step in its process, and that short of positive and explicit language ascertaining a finding of deliberate deceit, such findings do not prove that improper conduct occurred. He points to Fraser v. BC Ministry of Forests, Lands and Natural Resource Operations (No.5) , 2019 BCHRT 194 at para. 22. In that case, the Tribunal said that:
The Tribunal’s findings will generally be inconsistent with factual allegations advanced by at least one party. This, per se, does not mean that the party who does not succeed on that point has behaved improperly. Rather, there must be evidence of an intention to mislead…
[66] Mr. Li further argues that his inaccurate testimony at the hearing is a matter of reliability, and not of his credibility. He says the hearing occurred over three years after the incident occurred, and that the Tribunal should attribute any minor inconsistencies to his poor memory and bad recollections of “one in a million customer interactions” that he experienced as a store owner. Last, Mr. Li argues that Ms. Pike has not proven his conduct resulted in any unreasonable delays in the hearing.
[67] In reply to Mr. Li’s arguments, Ms. Pike points the Tribunal back to its decision in McLean and reiterates that improper conduct does not require intentional wrongdoing.
[68] I have already explained that intentionality is not a factor that I will consider in determining whether Mr. Li engaged in improper conduct. However, I will consider intentionality when I decide whether any improper conduct warrants a cost award and the amount of any such award to order.
[69] In Pike v. Ooh La La Café and others (No. 2), 2023 BCHRT 99 [Pike No. 2], I decided that Mr. Li’s testimony was not credible, meaning that I did not find it to be truthful, or in other words that I found that he had lied to the Tribunal: at paras 32 to 35. I did not merely prefer Ms. Pike’s testimony over Mr. Li’s testimony. I accepted her testimony as truthful, and I did not accept Mr. Li’s as truthful. I found that Mr. Li lied about Ms. Pike entering the café on her own without any support, about the dog Ms. Pike had with her in the café being a golden retriever who was not wearing a harness, about the dog’s behaviour while in the café, about his discussions with Ms. Pike regarding whether the dog she had with her was a guide dog, and about the reasons he gave to Ms. Pike for not providing her service.
[70] The only question here is about whether Mr. Li’s untruthful testimony was improper conduct, and I find that it was. When Mr. Li provided untruthful testimony to the Tribunal, he breached Rule 7 of the Tribunal Rules that require him to conduct himself with honesty and integrity. I note that he also provided an oath to tell the truth, the whole truth, and nothing but the truth, and then he gave untruthful evidence. Ms. Pike has not proven that Mr. Li’s giving of untruthful evidence had a significant impact on the integrity of the Tribunal’s processes or a significant prejudicial effect on her. However, it was still a breach of Tribunal Rules, making it improper conduct.
F. Did Mr. Li engage in improper conduct by coercing another witness to lie to the Tribunal?
[71] Ms. Pike argues that the Tribunal should make an inference between the similarities in Mr. Li’s testimony and his witness Ms. Jiang’s testimony to conclude that Mr. Li coerced Ms. Jiang to lie for him. She further argues that his doing so is improper conduct.
[72] Ms. Pike has not proven that Mr. Li coerced Ms. Jiang to lie to the Tribunal for him. As such, his alleged doing so is not improper conduct. First, I am willing to make an inference between the similarities in Mr. Li’s testimony and Ms. Jiang’s testimony to conclude that Mr. Li and Ms. Jiang had some discussion about Ms. Pike’s complaint. I am also willing to make the same inference and conclude that their discussions resulted in Ms. Jiang giving the Tribunal descriptions of Ms. Pike’s dog and of Ms. Pike navigating the café without any assistance that are identical to Mr. Li’s descriptions of those matters. However, I am not willing to make that same inference to conclude that Mr. Li coerced Ms. Jiang to lie about these matters. First, Ms. Pike has provided no evidence that Mr. Li forced Ms. Jiang to lie. Second, Ms. Pike has not pointed me to any other evidence that could suggest that Mr. Li coerced Ms. Jiang to lie to the Tribunal. Ms. Jiang testified that, at the time of the hearing, she no longer worked for Mr. Li. This means Mr. Li did not have any power over her as her employer. There are also other possible explanations for their limited identical descriptions of what occurred. It is possible that they are friends, they are related to one another, or they have some other type of relationship that made Ms. Jiang want to help Mr. Li by corroborating his story, choosing herself to give this evidence to the Tribunal. It is also possible that Mr. Li gave Ms. Jiang details about what he said he remembers and plans to say in his testimony, that she did not recall the events clearly before talking to him, and that because of their conversation she either inadvertently recalled something that did not occur, or she recalled things differently from the way they occurred. This would have made her evidence not reliable, but it would not mean that she lied for Mr. Li because he coerced her to do so.
[73] I am not willing to make an inference between any other parts of Mr. Li and Ms. Jiang’s testimonies to conclude that Mr. Li coerced Ms. Jiang to lie to the Tribunal about the remainder of her testimony. Their descriptions of the events that unfolded were not so identical that I believe Ms. Jiang could have scripted her testimony to align with Mr. Li’s testimony.
VI ANALYSIS RE: ORDER FOR COSTS
[74] Ms. Pike seeks a costs award in the amount of $7,500. She argues that previous case law supports such an award. She points to various Tribunal cases to support her arguments about whether improper conduct occurred. However, she does not explain why any of those decisions support a costs award in the amount of $7,500, so I do not find her arguments on this point helpful. Last, she argues that a $7,500 award is appropriate because of the hurt that Mr. Li’s actions caused to her and the impact they had on the hearing process. She provides no further arguments about why Mr. Li’s improper conduct warrants a $7,500 costs award.
[75] Mr. Li argues that if the Tribunal finds he engaged in improper conduct, a costs award in the amount of $1,000 is appropriate. He says any delays resulting from his ineffective cross-examination of Ms. Pike are minor and that Ms. Pike had a law student representing her, so she has not incurred any additional legal costs because of his conduct.
[76] I will now explain why I find that it is appropriate to order costs against Mr. Li regarding his improper conduct, and why I find that $2,000 is an appropriate amount of costs to order. First, Ms. Pike has provided no evidence that she suffered financial losses because of Mr. Li’s improper conduct, so there is no need for the Tribunal to award costs to indemnify her for such losses. However, I have decided to make a costs award to deter Mr. Li and others from engaging in the same type of improper conduct and to penalise or discipline Mr. Li for his improper conduct.
[77] I find that $1,500 is an appropriate amount of costs to order against Mr. Li for providing untruthful evidence to the Tribunal. The Tribunal provided Mr. Li with an interpreter for the entirety of the hearing. Before he gave his testimony, he made an oath that he would tell the truth, the whole truth, and nothing but the truth in his testimony. I am satisfied that he understood his obligation to do so, and that him being self-represented had no impact on his understanding of that obligation. There is no evidence before me that Mr. Li has any type of a disability that may have contributed to him giving the Tribunal untruthful testimony, or that he cannot afford to pay costs to Ms. Pike because of his conduct.
[78] I recognize that Mr. Li was self-represented, and that as a self-represented party he would have been less familiar than legal counsel with the Tribunal Rules. However, he is also a sophisticated businessperson who owned and ran a business in Canada. He was able to research and provide the Tribunal with information and arguments about the Guide Dog and Service Dog Act and the Public Health Act Food Premises Regulation in his defence to the complaint. If Mr. Li could do these things, then he could also read and understand his duty under Rule 7 of the Tribunal Rules to conduct himself with honesty and integrity.
[79] A costs award of $1,500 is also proportionate to the impact that Mr. Li’s untruthful testimony had on the integrity of the Tribunal’s processes. While I have not found that his untruthful testimony had a significant impact on the integrity of the Tribunal’s processes, this does not mean that it had no impact. When Mr. Li provided untruthful testimony, he unnecessarily used up hearing time, as well as limited Tribunal resources that were committed to providing him with an interpreter. He gave his untruthful testimony over a period of 4 hours, which impacted negatively on the efficiency of the Tribunal’s processes. My intent with selecting $1,500 as a costs award is to serve as a reminder to Mr. Li that the Tribunal will impose a punishment upon him if he provides untruthful testimony again, which will hopefully also discourage him from giving untruthful testimony to the Tribunal in the future. I also intend for it to punish Mr. Li for his improper conduct.
[80] I find that $500 is an appropriate amount of costs to order against Mr. Li for his eye rolling, laughter and head shaking while Ms. Pike gave her testimony, and for his statement about her capacity to make a video. First, as I have already mentioned, Mr. Li is a sophisticated individual. I am satisfied that he was capable of reading and understanding his duty under Rule 7 of the Tribunal Rules to treat Ms. Pike with courtesy and respect. A costs award of $500 is also proportionate to Mr. Li’s conduct, which was not respectful conduct, but at the same time it was not malicious, vindictive, or mean-spirited, which would have warranted a higher award amount.
[81] Regarding, Mr. Li’s eye rolling, laughter and head shaking, I have not awarded a higher amount of costs because during Ms. Pike’s testimony her legal advocate could have asked for a break and discussed his conduct with her. Ms. Pike could have then sought alternative remedies from the Tribunal by asking it to give Mr. Li directions. If she had done so the Tribunal could have made the necessary orders or given the necessary directions to stop his conduct from continuing.
[82] Last, regarding Mr. Li’s opinionated statement about Ms. Pike. The Tribunal stopped the hearing to address that conduct and it did not continue. As such, a higher costs award is not necessary to deter him from the same behaviour in the future, or to punish him for it.
VII CONCLUSION
[83] Ms. Pike has proven that Mr. Li engaged in improper conduct, and I have ordered that he pay her costs in the amount of $2,000 because of that improper conduct.
Sonya Pighin
Tribunal Member