Truman v. CCON Recon Inc. and another (No. 2), 2024 BCHRT 210
Date Issued: July 16, 2024
File: CS-001493
Indexed as: Truman v. CCON Recon Inc. and another (No. 2), 2024 BCHRT 210
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:
Trent Truman
COMPLAINANT
AND:
CCON Recon Inc.
RESPONDENT
REASONS FOR DECISION
APPLICATION TO RECONSIDER A DECISION
RULE 36
Tribunal Member: Edward Takayanagi
On their own behalf: Trent Truman
On his own behalf: Greg Dahl
I INTRODUCTION
[1] Trent Truman filed a complaint alleging his former employer, CCON Recon Inc. and its owner Greg Dahl, discriminated against him in employment based on family status contrary to s. 13 of the Human Rights Code . Mr. Truman alleges he was fired because his mother and Mr. Dahl are getting a divorce.
[2] Mr. Dahl applied to dismiss the complaint against him under s. 27(1)(d)(ii) of the Code because proceeding against him would not further the purposes of the Code. I was satisfied that, among other reasons, because CCON accepted responsibility for any damages that may be ordered it would not further the purposes of the Code to proceed against Mr. Dahl. I allowed the application and dismissed the complaint, as against Mr. Dahl, in Truman v. CCON Recon Inc. and another , 2023 BCHRT 63 (the “Original Decision”). The complaint continued against CCON.
[3] Mr. Truman now applies to add Mr. Dahl back as a respondent under Rule 25 of the Tribunal’s Rules of Practice and Procedure . In the alternative he applies for reconsideration of the Original Decision under Rule 36. Mr. Truman says he has learned CCON has declared bankruptcy, and he will be without a means of redress for the discrimination.
[4] The parties were given a full opportunity to make submissions. Mr. Dahl confirmed that he no longer is authorized to represent CCON, and he is solely representing himself. Mr. Dahl has filed materials disputing the allegations of discrimination in the complaint but has not provided any arguments dealing with the issue of whether the Original Decision should be reconsidered. CCON did not make any submissions.
[5] For the reasons that follow, I find that in this particular circumstance it is in the interests of fairness and justice to reconsider the Original Decision. On reconsideration I am persuaded that proceeding with the complaint as against Mr. Dahl would further the purposes of the Code, specifically under s. 3(e) to provide a means of redress. Accordingly, I reconsider the Original Decision and deny Mr. Dahl’s application to dismiss the complaint against him under s. 27(1)(d)(ii).
II BACKGROUND
[6] The background to Mr. Truman’s complaint was set out in the Original Decision and I will not repeat it here: Truman at paras. 7-10. In brief, Mr. Truman’s mother was the spouse of Mr. Dahl. The spouses are the co-owners of CCON. Mr. Truman was an employee of CCON. In 2018, Mr. Dahl and Mr. Truman’s mother separated and commenced a family law action regarding division of assets. Mr. Truman was fired from CCON on May 23, 2019.
[7] The issue before me in the Original Decision was whether it would not further the purposes of the Code to proceed against Mr. Dahl. I was satisfied, based on the evidence before me, that it would not further the purposes of the Code to proceed against Mr. Dahl. A key consideration was that CCON accepted responsibility for satisfying any remedial orders. I was also persuaded that the allegations related to Mr. Dahl’s conduct in his capacity as an officer of CCON that did not indicate a level of individual culpability.
[8] The Tribunal issued the Original Decision on June 23, 2023. The Tribunal informed Mr. Truman of his option to apply to have the decision reconsidered and wrote, “The Tribunal can only reconsider a decision in very limited circumstances to fix an unfairness that occurred in the process of making a decision. There is a 14 day time limit.” Mr. Truman did not apply to reconsider the Original Decision within 14 days.
[9] On January 11, 2024, the Tribunal sent the parties a notice of hearing, scheduling a hearing on July 22, 23, and 24, 2024.
[10] On March 7, 2024, counsel for CCON filed a notice of withdrawal informing the Tribunal that he no longer represented the company and all future correspondence on the complaint against CCON should be sent to Mr. Dahl.
[11] Mr. Truman says that in late April 2024, he learned that CCON had been assigned into bankruptcy.
[12] On May 2, 2024, Mr. Dahl wrote to the Tribunal confirming CCON filed for bankruptcy and a bankruptcy trustee had been appointed.
[13] On May 29, 2024, the Tribunal convened a conference call with Mr. Truman and Mr. Dahl, acting in his capacity as representative for CCON, to prepare for the hearing. Mr. Dahl confirmed on the call that CCON had been assigned into bankruptcy.
[14] Mr. Truman said he wanted to add Mr. Dahl back to the complaint as an individually named respondent.
[15] During the conference call, and in a letter summarizing the call on the same day, the Tribunal reiterated the information about applying to reconsider the Original Decision and gave information to the parties about applying to add a respondent to a complaint.
[16] Mr. Truman filed an application to add a respondent and an application for reconsideration on June 5, 2024.
III ANALYSIS AND DECISION
A. Whether to Accept Late-Filed Application
[17] Rule 36(2) sets a time limit to file a reconsideration decision: A party must apply to reconsider a decision within 14 days of the date on which the circumstances that form the basis of the application came to the party’s attention or could have come to the party’s attention if the party exercised reasonable diligence, whichever is earlier.
[18] The reconsideration application was filed on June 5, 2024. I infer from Mr. Truman’s application that the circumstance that form the basis of the reconsideration application is learning of CCON’s bankruptcy. Mr. Truman says in his application he learned that CCON had been assigned into bankruptcy in late April 2024. Therefore, the application is at least three weeks late filed.
[19] The Tribunal has authority to waive or vary time limits set out in the Rules, as it considers appropriate: Rule 2(2). In exercising this discretion, the Tribunal considers that the purpose of the Rules is to “facilitate the just and timely resolution of complaints”: Rule 1(1). In MacLennan v. BC Ministry of Public Safety and Solicitor General,2018 BCHRT 214, the Tribunal identified factors that may be relevant in exercising its discretion to waive or vary the time limit in Rule 36(2):
In the context of a late-filed application for reconsideration, the Tribunal must – as in all cases – consider all of the circumstances to exercise its discretion in a manner that best furthers the fair and timely resolution of the complaint and the purposes of the Code. Because the authority to reconsider a final decision is based on considerations of fairness and equity, these will be guiding principles. In my view, relevant factors may include: whether there are serious grounds for reconsideration, the length of the delay, the explanation for the delay, and prejudice to any person. These factors are non-exhaustive. These are not statutory criteria so, unlike a late-filed petition, a person seeking to file a late reconsideration application does not need to satisfy each of the criteria to persuade the Tribunal to waive the time limit. Rather, the Tribunal considers all of the circumstances to determine whether to consider the late-filed application. This is a highly discretionary exercise.
[20] Here, the delay is three weeks, which is significant. Because Mr. Truman says he learned of the circumstance that gives rise to his reconsideration application in late April 2024, in my view, it would have been reasonable for him to file his application then. The Tribunal gave him instructions on how to apply for reconsideration and explicitly told him during the conference call of May 29, 2024, that he could apply. Mr. Truman did not apply for reconsideration at that time and did not file his application until the following week on June 5, 2024.
[21] Mr. Truman made no submissions about the reasons for the delay. His submissions deal exclusively with his argument that the bankruptcy of CCON jeopardizes the likelihood that he will be able to receive any monetary award from CCON. I find that the length of the delay and no explanation being given for the delay are factors that weigh against waiving the time limit.
[22] Nevertheless, I have reviewed the circumstances of this late-filed application for reconsideration, and I find that it serves the purposes of the Code to exercise my discretion to waive the time limit for filing. I find there are serious grounds for reconsideration. The undisputed evidence is that CCON has filed for bankruptcy and as a result, Mr. Truman may not have access to redress from CCON if his complaint succeeds.
[23] I also note that due to the bankruptcy, while the hearing is currently scheduled to begin on July 22, 2024, the trustee in bankruptcy for CCON says CCON will likely seek a stay of proceedings under s. 69 of the Bankruptcy and Insolvency Act.Therefore, I find the application does not risk delaying the Tribunal’s process.
[24] Furthermore, Mr. Dahl does not say that he is prejudiced due to the delay in filing the reconsideration application.
[25] On balance, I am satisfied that it furthers the just resolution of the complaint to waive the time limit and consider the late-filed application for reconsideration. I next consider the merits of the reconsideration application.
B. Whether to Reconsider the Original Decision
[26] An application for reconsideration is an extraordinary remedy. The Tribunal has a limited jurisdiction to reconsider its own decisions: Rule 36. 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. The Tribunal may reconsider a decision where there is new evidence that was not available at the time the party made its submission: Gichuru v. Vancouver Swing Society and others, 2018 BCHRT 18 at para. 22. Relevant factors include whether the new evidence could affect the result, and whether reconsideration would result in prejudice: Gichuru at paras. 22, 43.
[27] The principle of finality allows parties and the public to govern their affairs in reliance on a decision by the Tribunal. Applying the finality principle, a matter should not be reheard if, a reasonable time after the decision, a party made binding commitments, unless there is compelling new evidence.
[28] However, the principle of finality in proceedings before administrative tribunals should be more flexible. In Chandler v. Association of Architects (Alta.) , 1989 CanLII 41 (SCC) at p. 596 Sopinka J. stated that:
… I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.
Accordingly, the principle should not be strictly applied where there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation.
[29] Section 3 of the Code sets out the purposes of the Code:
(a) to foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia;
(b) to promote a climate of understanding and mutual respect where all are equal in dignity and rights;
(c) to prevent discrimination prohibited by this Code ;
(d) to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by this Code;
(e) to provide a means of redress for those persons who are discriminated against contrary to this Code.
[30] In the Original Decision I considered whether the complaint, as against Mr. Dahl, should be dismissed pursuant to s. 27(1)(d)(ii) of the Code because proceeding with the complaint would not further the purposes of the Code.
[31] In reaching my decision that it would not further the purposes of the Code to proceed with the complaint as against Mr. Dahl, two of the factors I considered were whether the employer has the capacity to satisfy any award that might be ordered on account of the individual respondent’s conduct, and whether the employer had irrevocably acknowledged its responsibility to satisfy any remedial awards ordered on account of the individual respondent’s conduct. I was satisfied that because CCON had accepted liability for any acts or omissions of Mr. Dahl in his capacity as a director and officer and took responsibility for satisfying any remedial orders, Mr. Truman would have access to a remedy if there were a finding of discrimination.
[32] It is undisputed that CCON has declared bankruptcy. Mr. Truman argues that CCON’s bankruptcy means he will not have access to a remedy from CCON. In support of his application for reconsideration, Mr. Truman submits the notice to creditors issued by the trustee in bankruptcy for CCON.
[33] Mr. Dahl does not address whether it would be in the interests of justice and fairness to reconsider the Original Decision. Mr. Dahl says Mr. Truman’s complaint is meritless because Mr. Truman was not fired for discriminatory reasons. Mr. Dahl resubmits documents and affidavits that were submitted for the application to dismiss. However, the merit of the complaint is not the issue I must decide on this application.
[34] Under the circumstances I find it would be in the interests of justice and fairness to reconsider the Original Decision. In reaching my decision I balance the principle of finality and the purpose of the Code to provide a means of remedy. In this case, I find that the purpose of the Code to provide a means of remedy outweighs the principle of finality and any potential prejudice to the parties from reconsidering the decision. A principal basis of my decision to dismiss the complaint as against Mr. Dahl has fallen away while the complaint proceeding is ongoing and it is in the interests of justice to re-open the decision to consider that fact.
[35] When a successful party is deprived of their successful result through a matter being reopened there will be some prejudice. In this case, Mr. Dahl has not said that he would be prejudiced or that it would be unfair to him to reconsider the Original Decision. He does not submit that he has made any binding commitments based on the outcome of the Original Decision.
[36] In these circumstances, I find that in order to satisfy the remedial purpose of the Code, it is necessary to reconsider the decision so that Mr. Truman has access to a means of remedy.
[37] Therefore, I find it is just and fair to reconsider the Original Decision. I am not satisfied that proceeding with the complaint, as against Mr. Dahl, would not further the purposes of the Codein circumstances where CCON may be unable to fulfill any remedy ordered if Mr. Truman succeeds in his complaint.
IV CONCLUSION
[38] I have reconsidered paras. 11 to 19 of the Original Decision. I deny the application to dismiss the complaint as against Mr. Dahl under s. 27(1)(d)(ii) of the Code. The complaint will proceed against CCON and Mr. Dahl.
Edward Takayanagi
Tribunal Member
Human Rights Tribunal