Sun v. Vancouver City Savings Credit Union (No. 2), 2024 BCHRT 206
Date Issued: July 12, 2024
File: CS-009395
Indexed as: Sun v. Vancouver City Savings Credit Union (No. 2), 2024 BCHRT 206
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:
Mary Li Yee Sun
COMPLAINANT
AND:
Vancouver City Savings Credit Union
RESPONDENT
REASONS FOR DECISION
APPLICATION TO RECONSIDER A DECISION
RULE 36
Tribunal Member: Steven Adamson
On her own behalf: Mary Li Yee Sun
Counsel for the Respondent: James D. Kondopulos and Kate Dueck
I INTRODUCTION
[1] On January 16, 2024, the Tribunal accepted Mary Li Yee Sun’s retaliation complaint for filing under s. 22(3) of the Human Rights Code . The Tribunal’s reasons are indexed as Sun v. Vancouver City Savings Credit Union, 2024 BCHRT 9 [the Original Decision].
[2] The Vancouver City Savings Credit Union [Credit Union] applies for reconsideration of the Original Decision. They argue that the process followed by the Tribunal in making the Original Decision was unfair and it should be set aside. More specifically, they say the process was unfair because the Tribunal accepted the complaint for filing based on submissions from Ms. Sun that the Credit Union did not have an opportunity to respond to. They point to new arguments raised by Ms. Sun in her Form 5 – Time Limit Reply submission [the Reply].
[3] The Credit Union says the process was unfair for two reasons. First, they say that fairness and justice required the Tribunal to seek submissions from it prior to relying on new arguments raised by Ms. Sun in reply. Second, and in the alternative, the Credit Union argues that it made a mistake and/or misunderstood the Tribunal’s process. The Credit Union requests that the Tribunal reconsider the Original Decision to allow it to make further submissions on the new arguments in Ms. Sun’s Reply.
[4] After reviewing the parties’ submission on this application, I have decided that it is in the interests of fairness and justice to reconsider the Original Decision. As I explain below, while I do not accept the Credit Union’s first submission, I accept the second submission that it relied on its counsel’s mistaken advice about the Tribunal’s process.
II BACKGROUND
[5] The background to the complaint is found in the Original Decision and it is unnecessary to be repeat it here.
III ANALYSIS AND DECISION
[6] The Tribunal has a limited jurisdiction to reconsider its own decisions: Rule 36 of the Tribunal’s Rules of Practice and Procedure [Rules]. Specifically, the Tribunal may reconsider a decision if it is in the interests of justice and fairness to do so: Routkovskaia v. British Columbia (Human Rights Tribunal), 2012 BCCA 141 at para. 23. The Tribunal exercises this power sparingly, giving due consideration to the principle of finality in administrative proceedings: Grant v. City of Vancouver and others (No. 4),2007 BCHRT 206 [Grant] at para 10.
[7] The burden is on the person seeking to have a matter re-opened to show that the interests of fairness and justice demand such an order: Grant at para. 10.
[8] The Tribunal does not have authority to reconsider a decision based on an argument that the decision was wrong or unreasonable or because there has been a change of circumstances: Fraser Health Authority v. Workers’ Compensation Appeal Tribunal , 2014 BCCA 499 [Fraser Health] at paras. 135 and 160. The Tribunal will not reconsider a decision to address arguments that could have been made in the first instance but were not, or to hear a party reargue its case: Ramadan v. Kwantlen Polytechnic University and another (No. 2) , 2018 BCHRT 56 at para. 13. When a party simply disagrees with a Tribunal decision, the appropriate recourse is judicial review by the BC Supreme Court.
[9] The Tribunal may reconsider a decision where there has been a failure to provide procedural fairness: Fraser Health at para. 160.
[10] The Credit Union submits the Original Decision resulted from an unfair process and therefore should be reconsidered. The Credit Union says the process was unfair for two reasons. The Credit Union’s primary argument is that the Tribunal’s process was unfair because the Tribunal failed to seek further submissions from the Credit Union in response to Ms. Sun’s Reply. The Credit Union says Ms. Sun raised new arguments in her Reply and the Tribunal was required, on its own motion, to provide it with an opportunity to respond to the new arguments. The Credit Union’s alternative argument is that its failure to apply to make further submissions under Rule 28(5) was the result of a mistake and/or misunderstanding of the Tribunal’s process.
[11] I address each of the Credit Union’s submissions in turn.
[12] I begin with the argument that the Tribunal was required, as a matter of procedural fairness, to seek further submissions from the Credit Union before deciding whether to accept the complaint for filing under s. 22(3) of the Code.
[13] The Credit Union submits that Ms. Sun initially provided two reasons in her complaint form for her retaliation complaint being late filed. First, Ms. Sun stated she was not aware of the significance of filing a retaliation complaint and did not know about the time limit for filing. Second, she did not learn that she had a potential retaliation complaint until she was preparing for a mediation in May 2023 regarding her initial age and employment complaint. The Credit Union says it responded to these arguments in its response submission, but it did not have an opportunity to raise new arguments that Ms. Sun raised in her Reply. The Credit Union submits Ms. Sun argued in her Reply that her retaliation complaint was late filed because of factors beyond her control, namely poor advice from her previous legal counsel. The Credit Union argues that this was a new argument that was “dramatically different” from, and inconsistent with, her previous arguments.
[14] The Credit Union argues that in the circumstances, it was incumbent on the Tribunal to seek submissions from the Credit Union, before considering and accepting Ms. Sun’s new submissions.
[15] The Credit Union argues that its position is reflected in the Tribunal’s Rules. The Credit Union submits Rule 12(6) stipulates that the submission schedule for time limit applications includes only a response from the respondent and a reply from the complainant. The Credit Unions acknowledges that Rule 28(4) provides a process to apply to make further submissions but submits that Rule 28(4) is limited to narrow circumstances. The Credit Union asserts that requests under Rule 28(4) are “extraordinary” and “not the norm”, as they require a party to incur the time and expense of preparing an application and full submission according to Rule 28(5).
[16] I understand the Credit Union’s submission to be that the Rules, and the interests of justice and fairness in the circumstances of this case, required the Tribunal to seek further submissions from the Credit Union in response to Ms. Sun’s new arguments. I understand the Credit Union’s argument to be that Ms. Sun’s new arguments could only be considered by the Tribunal if the Tribunal sought submissions from the Credit Union.
[17] While I agree with the Credit Union that Ms. Sun raised new arguments in her Reply, I do not agree that procedural fairness required the Tribunal to seek submissions from the Credit Union before considering those arguments.
[18] I do not agree with the Credit Union’s arguments that Rule 12 and 28 support its position. In my view, the Tribunal’s Rules are clear: where a new issue is raised in a reply submission, it is incumbent upon the responding party to raise the issue with the Tribunal and to request the opportunity to make further submissions.
[19] I begin with Rule 12. Rule 12(6) applies to circumstances where the Tribunal seeks submission from the parties regarding the time limit for filing a complaint. Rule 12(6) sets out the standard schedule for time limit submissions. The respondent is first provided an opportunity to file a Form 4 – Time Limit Response followed by the complainant being provided an opportunity to file a Form 5 – Time Limit Reply
[20] Rule 12(7) states that Rules 28(3) to (6) apply to time limit submissions.
[21] Rule 28(4) states that the Tribunal will not consider submissions other than those permitted in a schedule for submissions unless it allows an application under Rule 28(5) or (6).
[22] Rule 28(5) addresses circumstances where a new issue is raised in a reply submission. Where a participant wishes to make further submissions to address a new issue raised in a reply submission, Rule 28(5) sets out the process for the participant to apply to make further submissions. Rule 28(5) states (emphasis added):
To request that the tribunal consider a further submission to address a new issue raised in a reply submission, a participant must:
(a) immediately notify the tribunal and other participants of their
intention to apply to file a further submission;
(b) apply within one week of receiving the reply submission;
(c) state in the application the new issue raised in the reply submission
and why fairness requires that the tribunal consider the further
submission; and
(d) attach the further submission to the application.
[23] As such, the mechanism for addressing new issues raised in a Form 5 – Time Limit Reply are set out in Rule 28(5). Under Rule 28(5), respondents can apply to make further submissions. This may include submissions about the Tribunal’s consideration of the new reasons for late filing and arguments as to why the Tribunal should give limited weight to new reasons.
[24] Contrary to the Credit Union’s submissions, Rule 28 does not require the Tribunal to seek further submissions when a complainant raises a new reason for not filing a timely complaint in a Form 5 – Time Limit Reply. That is not supported by the plain language of the Rules, nor has the Credit Union provided any authorities supporting an interpretation otherwise. While in Kruger v. Xerox Canada Ltd. (No. 2), 2005 BCHRT 24, the Tribunal recognized that fairness may require an opportunity for further submission and may be requested by Tribunal members on their own initiative, that decision confirmed that a party who believes it should have the right to file further submissions should apply to file them, with the further submissions attached, as soon as possible after receiving the reply to which it wishes to respond without discussing when the Tribunal might do so on its own initiative: para. 17. The authorities cited by the Credit Union for circumstances where the Tribunal sought submissions on its own initiative did not involve situations where a new issue is raised in a reply submission. In Richardsonv. Strata Plan NW1020,2009 BCHRT 158 the Tribunal sought further submission from the parties on a recently released Tribunal decision pertinent to the issue of costs. In Postv. Thyssen Krupp Elevator (Canada) Ltd., 2009 BCHRT 369 the Tribunal sought further submissions on the applicability of s.27(1)(c), no reasonable prospect of success, where the respondents had not filed on that basis, and it was perhaps thought to be relevant for consideration. Finally, in Seyed-Aliv. Central City Brewers and Distillers Ltd. , 2020 BCHRT 171 the Tribunal sought submissions after discovering it rendered a decision in error without considering one of the complainant’s submissions.
[25] What is clear from Rule 28(5) is that a participant that chooses not to apply to make further submissions does so at their own peril.
[26] In this case, there is no dispute that the Credit Union had notice of Ms. Sun’s new arguments. The Credit Union received Ms. Sun’s Reply submission and did not apply to make further submissions under Rule 28(5). If they wished to file further submissions, the process for doing that is set out in Rule 28(5). The fact that the new arguments may have been, as the Credit Union argues, “dramatically different” or based on “uncorroborated hearsay” does not change that. If there were new arguments the Credit Union wished to address the process was to apply, and they did not.
[27] For these reasons, I would not grant reconsideration based on the first argument advanced by the Credit Union.
[28] I now turn to the Credit Union’s alternative argument, that its failure to apply to make further submissions under Rule 28(5) was the result of a mistake or misunderstanding of the Tribunal’s process.
[29] As I understand it, the Credit Union argues that in the alternative it relied on advice from its counsel that it was unnecessary to file an application for further submissions because the Tribunal would seek submissions in the circumstances.
[30] Circumstances where fairness and justice may warrant reconsideration include where a party or their counsel make an error. For example: where counsel did not provide the party’s submission: Zutter v. British Columbia (Council of Human Rights) , 1993 CanLII 2582 (BC SC); aff’d. 1995 CanLII 1234 (BC CA); leave to appeal to S.C.C. refused [1995] S.C.C.A. No. 243 [Zutter] or where a party acted on a misunderstanding of the applicable procedures: Rashead v. Vereschagin, 2005 BCHRT 426.
[31] Where a party relies on its counsel’s error, relevant factors include the party’s explanation for the error and whether it is reasonable, and any prejudice to another party: Maydak v. B.C. (Ministry of Public Safety and Solicitor General and Ministry of Attorney General) (No. 2) , 2007 BCHRT 455 at para. 9.
[32] Having considered the factors identified by the Tribunal in Rasheadand Maydak, I am satisfied that the Credit Union acted on a mistake of counsel about the Tribunal’s procedures and that considerations of fairness and justice warrant reconsideration.
[33] First, I have considered whether the Credit Union’s explanation for not applying under Rule 28(5) to make further submissions is reasonable. The Credit Union says it relied on advice from its legal counsel that it was unnecessary to do so in the circumstances. As I have explained above, counsel’s explanation of the process was mistaken. While the Tribunal’s expectation is that counsel will be aware of and understand Rule 28(5), I have considered that this may be the first decision of the Tribunal directly addressing the point, and I am satisfied here that the client (Credit Union) acted on its counsel’s mistaken advice. In these circumstances I am satisfied that the Credit Union’s explanation (reliance on counsel’s mistaken advice) is reasonable.
[34] Second, I am satisfied that the Credit Union raised the issue quickly with the Tribunal and without delay.
[35] Third, I am not satisfied that reconsideration would result in prejudice to Ms. Sun. While I recognize that Ms. Sun would prefer to move ahead in the Tribunal’s process, there is no prejudice in having the s. 22(3) issue revisited to ensure fairness to the parties.
[36] Next, I am satisfied that the remaining circumstances of this case also favour reconsideration. Here, the Original Decision was based on my understanding that the Credit Union did not wish to make further submissions in response to the new arguments raised in Reply (Original Decision, para. 18). The new arguments were material to my findings in the Original Decision. I now understand, however, that the Credit Union did wish to make submissions but failed to do so because of counsel’s mistake. Where, as here, a party intended to make submissions on a material issue, but those submissions were not put before the Tribunal due to a mistake or error (as in Zutter) by counsel, this weighs in favour of reconsideration.
[37] To be clear, the Tribunal expects counsel to be familiar with its Rules and follow them. This decision should not be taken to endorse counsel mistake as a determinative or even persuasive factor on an application for reconsideration. I am, however, persuaded in this case that the interests of justice and fairness permit reconsideration in the totality of the circumstances.
[38] Finally, I add that the s. 22(3) issue is a threshold one. A determination under s. 22(3) will not be revisited by the Tribunal (see s. 27(1)(g)), subject to the Tribunal’s reconsideration power under Rule 36. This consideration, while not determinative on its own, weighs in favour of allowing reconsideration of the s. 22(3) issue based on complete submissions.
IV CONCLUSION
[39] The application is allowed. The Original Decision allowing the complaint to proceed under s. 22(3) of the Code will be revisited. The Tribunal case manager will contact the parties regarding next steps and deadlines.
Steven Adamson
Tribunal Member