Blaine v. Office of the Ombudsperson, 2024 BCHRT 216
Date Issued: July 26, 2024
File: CS-002967
Indexed as: Blaine v. Office of the Ombudsperson, 2024 BCHRT 216
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:
Becky Blaine
COMPLAINANT
AND:
Office of the Ombudsperson
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Devyn Cousineau
For the Complainant: No submissions
Counsel for the Respondent: Kate Phipps
I INTRODUCTION
[1] This is a decision about whether to dismiss Becky Blaine’s human rights complaint without a hearing.
[2] Ms. Blaine is a Métis woman who describes herself as visibly Indigenous. She has a disability which she says can sometimes make her talk “fast and loud” and be misperceived as yelling. Her human rights complaint is about two interactions with staff at the Office of the Ombudsperson [Office].
[3] The first interaction happened on February 14, 2020, when Ms. Blaine went to the Office to file a complaint. Ms. Blaine had to wait for 45 minutes to meet with the Manager of Investigations [Manager]. She says that the Manager was rude to her in the meeting, expressing “disdain” and a negative attitude. She says that she confronted him for his behaviour, asking “Is this because I am an Indian” but he just gave her an “odd straight in the eyes look and never answered”. The second interaction happened on September 9, 2020. The Deputy Ombudsperson laughed at Ms. Blaine during a phone call when she asked him a question about fairness. Ms. Blaine says that these incidents are discrimination based on her race and mental disability, in violation of s. 8 of the Human Rights Code.
[4] The Office denies discriminating. Regarding the first interaction, it acknowledges that Ms. Blaine had to wait to meet with the Manager, but disagrees with her account of how that meeting unfolded. It denies that Ms. Blaine raised her Indigeneity at any point. It says that, even if Ms. Blaine’s account of the meeting were true, any adverse impacts were unrelated to her protected characteristic and did not rise to a level to trigger the protection of the Code. Regarding the second interaction, the Office says that the Deputy Ombudsperson promptly apologized for laughing during their call, and Ms. Blaine accepted his apology. The Deputy Ombudsperson says he was unaware that Ms. Blaine was Métis or had a disability, and says that her protected characteristics played no role in this misstep.
[5] The Office applies to have the complaint dismissed without a hearing. It says that Ms. Blaine has no reasonable prospect of proving that she was adversely impacted in respect of its services, within the meaning of human rights law, or that her protected characteristics were a factor in any adverse impact: s. 27(1)(c). It also argues that it does not further the purposes of the Codeto proceed in circumstances where it has taken prompt and effective steps to resolve Ms. Blaine’s concerns: s. 27(1)(d)(ii).
[6] Ms. Blaine did not file any response to the application. I have carefully considered the information she provided in her complaint and amendment forms.
[7] For the following reasons, I am satisfied that Ms. Blaine has no reasonable prospect of proving that the incidents in this complaint amount to discrimination under the Code.The complaint is dismissed under s. 27(1)(c).
II BACKGROUND
[8] The following background is taken from the material filed by the parties. I make no findings of fact.
[9] The Ombudsperson is an officer of the Legislature who exercises statutory authority under the Ombudsperson Act.This includes investigating complaints from members of the public about the administration of government programs and services. Between 2006 and 2022, the Office has opened at least 15 complaint files attributed to Ms. Blaine.
A. February 14: Meeting with Manager of Investigations
[10] On February 14, 2020, Ms. Blaine went to the Ombudsperson’s office. She says that she wanted to drop off some papers related to one of her complaints, and to file a new complaint against the intake/receptionist staff. The Office staff understood that Ms. Blaine wanted to discuss an existing case file. The investigator assigned to that file was not present that day, so the Manager of Investigations went to meet with her instead. Ms. Blaine had to wait for 45 minutes to meet with the Manager, which the Office acknowledges is longer than it would have liked.
[11] During their meeting, Ms. Blaine alleges that the Manager displayed a cavalier and disrespectful attitude towards her. She says he did not bring a note pad, and was propping his chair against the wall and twirling his pen. She told him that she wanted to file a complaint against the intake /receptionist staff. In response, Ms. Blaine says that the Manager told her: “You don’t get to come in here off the streets, and make demands”. She says that, at 3:45, the Manager told her they could sit there together until the office closed at 4:30 but that he was not going to do anything for her. She says she asked him: “Is this because I am an Indian?”. She says he just gave her an odd look and did not answer. She says she told the Manager he was the rudest man she had ever met and left. Ms. Blaine says that, as an Indigenous person from Manitoba, she is familiar with racism, and that the Manager demonstrated racism towards her.
[12] The Office says that its staff have had many difficult interactions with Ms. Blaine, which have contributed to “some degree of staff fatigue”. Regarding this incident, it did not submit direct evidence from the Manager. However, it says that his account of the meeting was different. The Manager says that he arrived at the meeting prepared to discuss an ongoing investigation into one of Ms. Blaine’s complaints, but that Ms. Blaine insisted she would only speak to the Ombudsperson directly. When he understood that Ms. Blaine wanted to file a new complaint, the Manager says he gave her a pen and offered to stay with her until 4:30 so it could be filed. He says that, rather than writing down her complaint, Ms. Blaine stormed off, shouting obscenities. The Office denies that Ms. Blaine mentioned her Indigeneity during this meeting.
[13] On February 19, Ms. Blaine emailed the Ombudsperson to complain about this interaction. She did not mention her perception that the interaction was discriminatory.
[14] The Executive Director of Investigations investigated Ms. Blaine’s complaint. He spoke to Ms. Blaine and the Manager. He reported the outcome of his investigation to Ms. Blaine on May 6, 2020, concluding:
It is clear that your visit to our office was not productive for you and that may have been partly because of our misunderstanding about the purpose of your visit. I can’t speak to your assertions about the manager’s posture or body language, but can say his offer to discuss your concerns about our existing investigation was consistent with his role.
When you and I spoke, you said you felt that the officer investigating your complaint had swept your concerns under the carpet. I have reviewed our investigation file and can confirm the investigation is proceeding and I am satisfied the officer is taking appropriate steps.
[15] The Executive Director then spoke to Ms. Blaine on May 23. He says that she alleged she had been discriminated against but that she hung up the phone when he asked her to explain how. In subsequent communications through June, July, and August, the Office says its staff continued to have communications with Ms. Blaine, including offering to take the details of the complaint she said she had been unable to file on February 14. In a letter dated August 13, 2020, the Executive Director wrote to Ms. Blaine again about various issues, including her February 14 interaction with the Manager. He said he had nothing further to say about the issue, “except to say that it was not [the Manager’s] intent to make you feel the way you did and I am sorry you felt that way”.
[16] The next day, Ms. Blaine called the Office and said “Tell [the Executive Director] I do not want to hear from him or any of his Ombuds people again… One more call and I’ll press charges”. The Executive Director recommended that staff respect Ms. Blaine’s request not to be contacted.
[17] On August 20, Ms. Blaine wrote to the Office to complain that the Executive Director had not followed through or answered her questions and complaints about the Manager. She asked to speak directly to the Ombudsperson.
[18] The Deputy Ombudsperson responded to Ms. Blaine the next day. He explained that it was his role to address her complaints about the Executive Director.
B. September 9: Phone call with Deputy Ombudsperson
[19] On September 9, 2029, Ms. Blaine spoke to the Deputy Ombudsperson on the phone. The Deputy Ombudsperson says that Ms. Blaine expressed concerns about matters relating to one of her complaint files, and that he offered to review the file. He says that she agreed, but expressed doubts that he would do so fairly and impartially. The Deputy Ombudsperson says the he asked Ms. Blaine if she trusted him to conduct an impartial review. He says that she said she did not trust him, but wanted him to do the review anyway. He acknowledges that he laughed in response. Ms. Blaine says that this laughter made her feel like he was insinuating she was stupid, and “there was no future [and] present hope for help in fair treatment”. She hung up.
[20] The Deputy Ombudsperson says that he immediately called Ms. Blaine back, but she simply said “It’s all a big joke to you” and hung up. He called back a second time, but she did not pick up. He says he left a voicemail inviting Ms. Blaine to call or email him to continue the conversation. He called a third time, and Ms. Blaine said “I wrote you an email” and hung up.
[21] The Deputy Ombudsperson says that he did not know that Ms. Blaine was Indigenous or had a disability during their call.
[22] Ms. Blaine complained about the Deputy Ombudsperson’s conduct in an email dated September 9, 2020. She said that his laughter was “unacceptable” and the “last insult”, proving her point that “[t]here is no fairness from the BC Ombudsperson Office”.
[23] On September 21, 2020, the Deputy Ombudsperson wrote to Ms. Blaine. He began:
I must begin with an unmitigated apology to you for having laughed during our telephone conversation on September 9, 2020, at your assertion that you did not trust me to conduct an impartial review of your complaint about our Executive Director of Investigations, yet you wished for me to proceed nonetheless. I regret my outburst and I understand how offensive it was; how could I expect anyone to have trust in me if they have no previous experiences of my work. My telephone calls to you immediately after that conversations were to express my regret. I respect your refusal to engage further at that time. Your experience seeking the assistance of this office is important and not a matter for laughter.
He confirmed that he would proceed with his review of her concerns and updated her about progress on another one of her complaint files.
[24] Ms. Blaine responded on September 25:
This letter is to let you know I accept your apology … This does not restore my trust in you, however I am willing to go forward with hope to have this issue before us resolved.
Its not the expensive clothes, a person needs to show the man that he is, his character. …
It takes a lot for a mature man to admit a wrong, than apologize,
Thankyou… [as written]
[25] On January 15, 2021, Ms. Blaine filed this human rights complaint.
III DECISION
[26] This Tribunal has discretion to dismiss complaints that do not warrant the time or expense of a hearing: Code,s. 27(1). The Office argues that Ms. Blaine’s complaint should be dismissed because she has no reasonable prospect of proving that the two incidents at issue rise to a level of discrimination and/or that it does not further the purposes of the Codeto proceed because the issues have been resolved: Code, ss. 27(1)(c) and (d)(1)(d)(ii). I find I can most efficiently address the application under s. 27(1)(c).
[27] The burden is on the Office to establish that Ms. Blaine’s complaint has no reasonable prospect of success. In this exercise, the Tribunal does not make any findings of fact. Instead, it 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. This is important in this case, because Ms. Blaine did not file a response to the application.
[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] To prove her complaint at a hearing, Ms. Blaine would have to prove that she was adversely impacted in the Office’s services, and that her race and/or mental disability were a factor in that adverse impact: Moore v. BC (Education),2012 SCC 61 at para. 33. While the Office accepts in this application that Ms. Blaine is protected from discrimination based on her race and mental disability, it argues that she has no reasonable prospect of proving the other elements of her complaint. I agree.
[30] The issue of what amounts to an “adverse impact” for the purposes of the discrimination analysis is determined contextually, having regard to the purposes of the Code.Those purposes include fostering an equitable society and identifying and eliminating persistent patterns of inequality: s. 3. In light of these purposes, the Tribunal has recognized that not every negative interaction in a service rises to a level that triggers the Code’sprotections. In Brito v. Affordable Housing Society, 2017 BCHRT 270, the Tribunal explained:
… not every negative comment that is connected to a protected characteristic will be discriminatory harassment contrary to the Code . It is certainly undesirable for people to treat each other rudely, disrespectfully, or inappropriately. However, it is not the Tribunal’s purpose to adjudicate disputes other than where a person’s protected characteristic has presented as a barrier in their ability to fully, and with dignity, access an area of life protected by the Code. In performing this function, the Tribunal is cognizant that the disputes brought to it arise between human beings, with all the imperfection that entails. Not every failure to be kind or professional requires state intervention. This includes failures with discriminatory overtones – and therefore highlights a distinction between comments that may be “discriminatory” in the everyday sense of that word, and comments that amount to discrimination, within the meaning and scope of human rights legislation. [para. 41]
[31] Context is critical to deciding whether Ms. Blaine’s interactions with the Office rise to a level of mistreatment that adversely impacted her access to its services. Some relevant considerations include “the involved parties, the context in which the comment was made, whether an apology was offered, and whether or not the recipient of the comment was a member of a group historically discriminated against”: Pardo v. School District No. 43, 2003 BCHRT 71 at para. 12.
[32] At the outset, I acknowledge the pervasive and ongoing reality of discrimination against Indigenous persons in all areas of life protected by the Code:see eg. Ardith Walpetko We’dalx Walkem, KC, Expanding Our Vision: Cultural Equality & Indigenous Peoples Human Rights (2020) [Expanding our Vision]. One manifestation of this is “micro-discriminations”, defined by Professor Sallie Chisholm as “the subtle, mostly nondeliberate biases and marginalizations that ultimately [add] up to serious assaults”: cited in Expanding Our Vision at p. 21. Micro-discrimination can include micro-insults, micro-invalidations, and micro-assaults. Though an individual incident may be minor, the cumulative effects of micro-discriminations are serious, and can perpetuate the patterns of inequality associated with discrimination prohibited by the Code:s. 3(d). Applying the contextual approach I have described, there are circumstances where micro-discriminations violate the Code.
[33] In this case, I find it significant that Ms. Blaine has not filed any response to the Office’s application. This means there is very little information from her about the context of the two incidents she complains about, including how those interactions impacted her ability to access the Office’s services. It also means that some of the information presented by the Office about their relationship and interactions before and after the incidents are undisputed.
[34] The parties have an ongoing relationship. Ms. Blaine has filed many complaints with the Office and had previous interactions with Office staff. Ms. Blaine has not filed any material to dispute the Office’s assertion that some of their interactions have been difficult, including because Ms. Blaine has occasionally expressed that she does not want to communicate with certain staff members, at times expresses herself sarcastically, and regularly criticizes the services she is receiving. Before and after the impugned incidents, the Office has continued to investigate and process Ms. Blaine’s complaints. It seems that at least one of their investigations – concluded during the period of this complaint – has been in her favour.
[35] In this context, Ms. Blaine’s February 14 interaction with the Manager was a difficult one. Accepting Ms. Blaine’s version of events, without deciding, the Manager was inattentive, cavalier, rude, and unhelpful. She ended their meeting and left the Office without filing the complaint she had intended to file that day.
[36] When Ms. Blaine complained to the Office about the Manager, she reported that he had not allowed her to submit a complaint, took a sarcastic tone, lacked professionalism, and acted as if he was too good to be speaking to her. She never alleged to the Office that his conduct was related to her Indigeneity or mental disability. The Office promptly investigated Ms. Blaine’s complaint and reported the results of the investigation back to her. The Director of Investigations acknowledged that she’d had to wait for their meeting, apologized for a miscommunication regarding the purpose of her visit, and acknowledged that the visit was unproductive for her. The Office offered Ms. Blaine multiple opportunities to file the complaint she alleges she had been unable to file on February 14, while respecting her request at times not to be contacted.
[37] I accept the Respondents’ submission that there is no reasonable prospect this complaint will succeed because the circumstances I outline above are similar to cases where the Tribunal has dismissed complaints which allege discrimination from a single incident. For example, in Patria v. Winners,2018 BCHRT 164, the Tribunal dismissed a complaint about a single rude interaction with a staff person, in circumstances where the encounter was brief, the complainant was able to access the store’s service, and the store later apologized and offered to make amends. In Demsky v. Winners,2017 BCHRT 173, the Tribunal dismissed a complaint where the complainant alleged a staff person had told her there was “something wrong with her head” and she should have stayed home and not come to the store: para. 8. The Tribunal considered that the complainant continued to frequent the store and that Winners had apologized for poor customer service. Likewise here, the undisputed evidence is that – after her allegedly negative interaction with the Manager – the Office responded promptly and appropriately to Ms. Blaine’s complaint and Ms. Blaine has continued to access the Office’s services.
[38] Viewed as a whole, and in the absence of any response from Ms. Blaine, I am satisfied that there is no reasonable prospect that the Tribunal would find that this interaction violated the Code.
[39] The same factors apply with more force to Ms. Blaine’s September 9 phone call with the Deputy Ombudsperson. This was a much briefer encounter, in which the alleged discrimination is a single laugh. Following that incident, the Deputy Ombudsperson also offered a quick and unqualified apology, which Ms. Blaine accepted. I also note that, even accounting for a social context of discrimination against Indigenous people, the undisputed evidence before me is that the Deputy Ombudsperson did not know Ms. Blaine was Métis or had a mental disability. In this situation, even if his laughter rose to a level of adverse impact under the Code,there is no reasonable prospect that Ms. Blaine could prove a connection to her protected characteristics.
[40] I have considered the two incidents separately and now I consider them together. Accounting for the parties’ ongoing and at-times difficult relationship, Ms. Blaine’s continued access to the services of the Office, the prompt and reasonable way that the Office addressed Ms. Blaine’s complaints, and the fact that there is no evidence before me to explain how these interactions created a Code-related barrier for Ms. Blaine, I am satisfied there is no reasonable prospect that the Tribunal would conclude that the incidents amounted to discrimination under the Code.The complaint is dismissed under s. 27(1)(c) of the Code.
IV CONCLUSION
[41] The complaint is dismissed.
Devyn Cousineau
Vice Chair
Human Rights Tribunal