Ethier v. Greater Victoria Harbour Authority, 2024 BCHRT 260
Date Issued: September 10, 2024
File: CS-003669
Indexed as: Ethier v. Greater Victoria Harbour Authority, 2024 BCHRT 260
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:
Eric Ethier
COMPLAINANT
AND:
Greater Victoria Harbour Authority
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Sections 27(1)(a), (b), (c), (d), and (g)
Tribunal Member: Devyn Cousineau
Counsel for the Complainant: J. Gareth Morley
Counsel for the Respondent: Ryan Ashmead
I INTRODUCTION
[1] This is a decision about whether to dismiss Eric Ethier’s human rights complaint without a hearing.
[2] Mr. Ethier lived on a boat moored at a marina owned and operated by the Greater Victoria Harbour Authority [GVHA]. He is Inuk. In the summer of 2020, Mr. Ethier says he had a traumatic brain injury and Major Depressive Disorder brought on by a traumatic incident. Mr. Ethier says that GVHA staff pressured him to leave the marina in September 2020. He alleges that this adverse treatment was related to stereotypes about Indigenous people, behaviour caused by his disability, and/or his rejection of sexual advances by the Dock Operations Coordinator [Coordinator]. In his human rights complaint, Mr. Ethier alleges that this is discrimination in the provision of GVHA’s services, on the basis of sex, race, and mental disability, in violation of s. 8 of the Human Rights Code. Mr. Ethier further alleges that GVHA retaliated against him for filing the complaint, in violation of s. 43 of the Code. He says that GVHA refused his request to reinstate his moorage because he had filed a human rights complaint.
[3] The GVHA denies discriminating or retaliating. It says that it no longer wished to provide moorage to Mr. Ethier because of his conduct towards staff and other customers. It asks the Tribunal to dismiss the complaint without a hearing because it is outside the Tribunal’s jurisdiction, does not allege facts that if proven could contravene the Code,has no reasonable prospect of success, has been resolved through a settlement, and parts of it are out of time: Code,ss. 27(1)(a), (b), (c), (d)(ii), and (g).
[4] For the following reasons, the application to dismiss the complaint is denied. The complaint will be scheduled for a hearing.
II DECISION
[5] Section 27(1) of the Codegrants the Tribunal a gatekeeping power to dismiss complaints that do not warrant the time and expense of a hearing. In this application, the burden is on the GVHA to establish a basis for dismissal. I will consider each of its arguments in turn.
A. Not within the Tribunal’s jurisdiction
[6] First, the GVHA says that it is a federally regulated entity that falls outside this Tribunal’s jurisdiction. It has not given notice of this constitutional question to the Attorneys General of BC and Canada, as it is required to do under s. 8 of the Constitutional Question Act : Code, s. 32(j) and Administrative Tribunals Act, s. 46.As a result, the Tribunal cannot decide the constitutional question in this application. Nevertheless, to assist the parties moving forward, I will briefly comment on the GVHA’s submissions on this issue.
[7] This Tribunal presumptively has jurisdiction to adjudicate human rights complaints in BC. Constitutionally, this jurisdiction is grounded in s. 92(13) of the Constitution Act, 1867, which grants the provinces jurisdiction over “property and civil rights”: Azak v. Nisga’a Nation and others, 2003 BCHRT 79 at para. 23. There is an exception to this jurisdiction where a complaint arises in respect of a matter “coming within the legislative authority of Parliament” for the purpose of triggering the jurisdiction of the Canadian Human Rights Act, s. 2; NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45 at para. 12.
[8] In NIL/TU,O, the Supreme Court of Canada established a two-part analysis for determining whether an entity’s labour relations are federally or provincially regulated. This analysis is predicated on the recognition that labour relations are presumptively provincial. This analysis has been extended to other areas regulated by the Code,including services customarily available to the public: D.L. v. BC Ministry of Children and Family Development and others (No. 3), 2021 BCHRT 35.
[9] The first step of the NIL/TU,O analysis is to apply a “functional test”. This test examines “the nature, operations and habitual activities of the entity to see if it is a federal undertaking”: para. 3. If it is, then it falls under federal and not provincial jurisdiction.
[10] Here, the GVHA is a private entity incorporated under BC’s Societies Act. It leases moorage in Victoria’s harbours. The GVHA characterises its business as “port services, marine shipping, and operations incidental to these”. It says that these functions fall within the federal government’s authority over “navigation and shipping”: Constitution Act, 1867, s. 91(10). Mr. Ethier, on the other hand, argues that the GVHA’s habitual activities are renting out accommodation, akin to a hotel. He says this falls squarely within provincial jurisdiction.
[11] If the GVHA decides to pursue its jurisdictional argument at a hearing, it should be prepared to introduce evidence and argument about its habitual activities and how those relate to the federal government’s power over navigation and shipping. Jurisdictional issues should not be decided in a factual vacuum: Phillips v. Nova Scotia (Commissioner of Inquiry into the Westray Mine Tragedy, [1996] 2 SCR 97 at paras. 9-10. In addition, GVHA must be prepared to address Mr. Ethier’s substantive argument that:
Moorage, especially long-term moorage, is primarily a matter of land use under provincial jurisdiction, which includes land covered by water. While provincial restrictions on short-term moorage may be subject to interjurisdictional immunity if they interfere with shipping and navigation, long-term moorage as a form of residence is not at the core of navigation [citing West Kelowna (District) v. Newcombe,2013 BCSC 1411 at paras. 36, 44, upheld on this point in 2015 BCCA 5]. The nature of the enterprise does not change because it occurs on water. As the British Columbia Court of Appeal has put it, “Just as the hotel parking lot is part of the hotel business, the hotel dock is part of the hotel business. The dock assumes the character of the operation of which it is a part.” [citing Islands Trust v. Pinchin Holdings Ltd.(1981), 130 DLR (3d) 69 (BCCA) at para. 20]. It is of no constitutional significance that accommodation take place on water, any more than it matters if a bar or restaurant is located on water.
In NIL/TUO, the Supreme Court of Canada explained that the issue of whether a work or undertaking is federal or provincial for purposes of general labour (or human rights) jurisdiction is distinct from whether federal or provincial laws may apply in other areas. The test for the federal or provincial nature of the undertaking is “the normal or habitual activities of the business as those of ‘a going concern’.” If, but only if, the normal or habitual activities of the business (which is not co-extensive with the enterprise) is to carry on interprovincial or international transportation or communication does the Canadian Human Rights Tribunal have jurisdiction.
The GVHA is more like the Empress Hotel on water than like the railway or steam line operations of the Canadian Pacific Railway. If, as [Reference re Industrial Relations and Disputes Act, [1955] SCR 529] suggests, even terrestrial port operations are provincial undertakings for labour and human rights purposes, the renting of moorage space surely also is. …
[12] As Mr. Ethier points out, West Kelowna (District)may be analogous. There, the BC Supreme Court concluded that a municipal zoning bylaw was within provincial jurisdiction, notwithstanding its impact on moorage on Okanagan Lake: para. 36 (upheld on this point in). The court acknowledged that some anchorage and/or moorage may be core to “navigation and shipping” but concluded that long-term moorage does not fall within the core of that federal power: para. 44. Based on the very limited evidence before me, it appears that the GVHA may offer long-term moorage akin to what the court considered to fall within provincial jurisdiction in West Kelowna.
[13] The GVHA notes that its properties were divested to GVHA from the federal government in 2002 and asserts that this fact supports its jurisdictional argument. If the GVHA decides to pursue its jurisdictional argument at a hearing, it will need to explain this assertion. On the materials before me, it is not apparent how this fact relates to the jurisdictional argument. As Mr. Ethier points out, the federal Crown has divested land across the country. That history does not mean that all activities on that land remain subject to federal jurisdiction. This argument needs further explanation.
[14] Finally, the GVHA relies on a letter it received from a federal Health and Safety officer stating that “GVHA is subject to federal jurisdiction for the purposes of labour legislation”. The letter does not include any reasons or explanation about why the officer reached this conclusion, nor has GVHA provided any submission about why the Tribunal ought to find the letter persuasive. Respectfully, this letter is not a binding authority on the Tribunal. If the GVHA pursues the jurisdictional argument, this letter will require further explanation and context.
[15] In sum, the constitutional question cannot be determined without notice to the Attorneys General: Constitutional Question Act, s. 8. In any event, there appear to be several gaps in GVHA’s submissions and evidence on this issue, as I have commented on above. The GVHA may advance its jurisdictional argument again at the hearing, with proper notice to the Attorneys General.
B. Parts of the complaint are out of time
[16] There is a one-year time limit for filing a human rights complaint: Code,s. 22. This is meant to ensure that complainants pursue their human rights remedies promptly so that respondents can go ahead with their activities without the possibility of a dated complaint: Chartier v. School District No. 62, 2003 BCHRT 39 at para. 12.
[17] The GVHA argues that some of Mr. Ethier’s allegations of discrimination, made in an amendment to his complaint, fall outside this one-year time limit and should be dismissed under s. 27(1)(g) of the Code. I disagree.
[18] Mr. Ethier filed his complaint on December 14, 2020. His allegations of discrimination related to the events in July through September 2020, culminating in his decision to leave the GVHA. Those allegations were within one year of the complaint and were therefore timely. At the time he filed his complaint, Mr. Ethier was not represented by legal counsel.
[19] On September 27, 2021, Mr. Ethier – now represented by counsel – filed an amendment to his complaint. He added details to his allegations of discrimination, including to particularize his allegations based on mental disability, sex, and race. He also added the allegation of retaliation arising from an email he received on May 28, 2021. There is no issue in this application about the timeliness of the retaliation allegation.
[20] The GVHA argues that the particulars of Mr. Ethier’s discrimination allegation, set out in his amendment, are untimely because they relate to events that happened more than one year before the date of the amendment. Respectfully, this argument cannot succeed.
[21] To begin, a complainant is permitted to add details to their complaint anytime: Rule 24(1). In my view, aside from the retaliation allegation, Mr. Ethier’s amendment constitutes further particulars and does not add allegations to his discrimination complaint.
[22] In any event, even if the amendment did add new discrimination allegations, the Tribunal measures the timeliness of an amendment based on the date the complaint was filed: Kruger v. Xerox Canada (No. 3), 2005 BCHRT 284 at paras. 19-23. In this case, the discrimination allegations in the amendment are timely if they arose within one year of the original filing of the complaint in December 2020. They do, and so I agree with Mr. Ethier that the particulars in his amended complaint form part of his timely allegations of discrimination. I decline to dismiss them under s. 27(1)(g).
C. No arguable contravention of the Code and no reasonable prospect of success
[23] Next, the GVHA argues that Mr. Ethier’s complaint should be dismissed because it does not disclose an arguable contravention of the Codeand/or has no reasonable prospect of success. Though these arguments engage different subsections of s. 27(1), I find it efficient to address them together.
[24] I begin with Mr. Ethier’s allegation of discrimination, and then consider his allegation of retaliation.
1. Discrimination allegations
[25] I begin with a brief background of Mr. Ethier’s allegations. This background is taken from the material filed by the parties. I make no findings of fact.
[26] Mr. Ethier is Inuk. He describes himself as visibly Indigenous. In his complaint, he says he has a traumatic brain injury.
[27] Between 2014 and September 2020, Mr. Ethier lived on his boat, which was moored at the GVHA’s Wharf Street Marina [Marina]. His moorage was governed by a Long Term Moorage Agreement. This Agreement requires licensees to comply with the GVHA’s Code of Conduct.
[28] In around 2017, Mr. Ethier says that he had some personal discussions with the Coordinator, which he interpreted as an invitation to a romantic relationship. He says that he rejected that advance. He alleges that, after that, the Coordinator’s attitude towards him changed and she became very hostile towards him. The Coordinator denies ever implying she was interested in Mr. Ethier and denies that her attitude towards him changed because he rejected her.
[29] In June 2020, Mr. Ethier suffered a traumatic loss. He has submitted evidence that, because of that loss, he developed a Major Depressive Disorder and went off work. There is no dispute that the staff at the GVHA were aware of his loss, though it says that its staff were not aware of any of Mr. Ethier’s diagnosed disabilities at the time.
[30] On July 5, 2020, Mr. Ethier was involved in an incident which would ultimately lead to him leaving the Marina.
[31] Earlier that day, an American vessel approached the Marina. This was during the height of the COVID-19 pandemic, when the US-Canada border was closed. Mr. Ethier says that several residents questioned the people onboard about what they were doing at the Marina. Mr. Ethier says he approached the boat to ask what they were doing there. He says he was the fifth resident to do so. Mr. Ethier then threatened to call Border Security. As he was walking away, he says that someone on the boat told him to “chill out” and he turned around and said, “We don’t want Americans here and we don’t want American vessels”. After that, the boat left. Mr. Ethier says that he was calm throughout this interaction. His account is supported by an affidavit from another person who says she was there.
[32] The next day, the Coordinator called Mr. Ethier. He says that she was angry and “berating” him about improperly interfering with the vessel. He says she was singling him out in circumstances where several people had intercepted the vessel. He says they began to argue and he told her he was off work, under a doctor’s care. He says that she was yelling at him, to the point that he lost his temper and yelled at her. In his complaint, he says that his shouting is a symptom of his traumatic brain injury. For her part, the Coordinator says that Mr. Ethier’s conduct with the American vessel was “disgraceful” and harmed the GVHA’s business.
[33] Over the following weeks, Mr. Ethier says that it was clear that that the Coordinator wanted him out. Among other things, he says that GVHA’s Director of Operations [Director] spread information that he had a criminal record. He alleges that this perpetuated negative stereotypes against him as an Indigenous person, and fueled the growing pressure that Mr. Ethier should leave the Marina. The Director denies telling people that Mr. Ethier had a criminal record.
[34] It appears that the GVHA agrees that its staff wanted Mr. Ethier to leave. It says that Mr. Ethier’s conduct towards staff and guests of the Marina breached its Code of Conduct and he was no longer welcome. It cites specific examples, namely:
a. An incident in 2017 involving an inspection of Mr. Ethier’s boat and discussion of required repairs. Related to this incident, the Manager described Mr. Ethier as “a bully and argumentative” during one of their calls.
b. A report from a diver that Mr. Ethier had thrown his barbeque into the ocean out of frustration. Mr. Ethier says he did this because the barbeque had a grease fire, which is particularly dangerous on a boat.
c. Before 2020, Mr. Ethier made people feel uncomfortable in connection with his claim that a neighbour sabotaged his vessel.
d. Conflict with other people at the Marina about vessels running their generators at night. Mr. Ethier says that it was a Marina rule that boats could not run generators after 9 pm. He says he filed a complaint about one boat running its generators at night, but the Coordinator refused to help.
e. The incident with the American vessel on July 5, 2020.
Mr. Ethier says that, after the July 5 incident, he was under increasing pressure to leave the Marina. At this stage, it does not appear that GVHA disputes this.
[35] On August 5, 2020, Mr. Ethier met with the Coordinator and the Director. Mr. Ethier’s lawyer was present. Mr. Ethier says his intention was to negotiate an amicable resolution which would allow him to stay at the Marina. Instead, he says that the GVHA representatives raised several grievances about his behaviour. Mr. Ethier says that one issue was characterized by the GVHA as “sexual misconduct” on his part. Mr. Ethier says that he was accused of telling people at the Marina that he and the Coordinator had slept together. He denies ever saying that. He acknowledged that he had told people they had a “more intimate relationship” but explained that was because she had shared personal details of her life with him. He says the Coordinator accused him of lying about this. Throughout this meeting, Mr. Ethier says that the Director kept saying a phrase that was triggering to him. The Director agrees he inadvertently said the phrase once, but denies saying it repeatedly. Mr. Ethier says he eventually left the meeting, on the understanding that he would leave the Marina if he could find a suitable alternative place to live.
[36] The outcome of the meeting was summarized in a letter by Mr. Ethier’s lawyer, dated September 8, 2020. The letter records that Mr. Ethier agreed to leave the Marina, and the GVHA agreed not to penalize him for breaking his lease early. The GVHA estimates the value of that penalty to be about $4,500. There is no evidence that the parties discussed the possibility of Mr. Ethier filing a human rights complaint against the GVHA. Around September 30, Mr. Ethier left the Marina.
[37] I return now to GVHA’s dismissal application, beginning with its argument that Mr. Ethier’s complaint does not contain facts that, if proven, could contravene the Code:s. 27(1)(b).
[38] Section 27(1)(b) of the Code gives the Tribunal the discretion to dismiss all or part of a complaint if it does not allege facts that could, if proven, contravene the Code. Under s. 27(1)(b), the Tribunal only considers the allegations in the complaint and information provided by the complainant. It does not consider alternative scenarios or explanations provided by the respondent: Bailey v. BC (Attorney General) (No. 2), 2006 BCHRT 168 at para. 12; Goddard v. Dixon, 2012 BCSC 161 at para. 100; Francescutti v. Vancouver (City), 2017 BCCA 242 at para. 49. The threshold for a complainant to allege an arguable contravention of the Code is low:Gichuru v. Vancouver Swing Society, 2021 BCCA 103 at para. 56.
[39] Considering only Mr. Ethier’s materials, I am satisfied he has set out facts capable of proving the elements of his complaint:
a. Protected characteristics:Mr. Ethier says he has characteristics protected by the Code,namely race (Inuit), mental disability (traumatic brain injury and Major Depressive Disorder), and sex (male).
b. Adverse impact:Mr. Ethier has alleged facts – summarized above – that could prove he was pressured to leave the Marina following the July 5 incident with the American vessel. This could be an adverse impact in the GVHA’s services.
c. Connection:Mr. Ethier has alleged facts capable of proving a connection between his protected characteristics and the adverse impact:
i. Race : Mr. Ethier says he is visibly Indigenous. He alleges that the Director and Coordinator told others that he had a criminal record, invoking negative stereotypes about Indigenous people. He alleges this negative perception was a factor in their assessment that he should leave.
ii. Mental disability: Mr. Ethier alleges that his conduct in yelling at the Coordinator on July 6 was related to his mental disabilities, and was a factor in GVHA’s assessment that he should leave.
iii. Sex: Mr. Ethier alleges that the Coordinator was hostile towards him because he rejected her romantic advances.
Moore v. BC (Education), 2012 SCC 61 at para. 33.
[40] If proven, these facts could establish a contravention of s. 8 of the Code.I am satisfied that Mr. Ethier’s complaint surpasses the low threshold of s. 27(1)(b) and I decline to dismiss it under that section.
[41] I turn now to the GVHA’s application under s. 27(1)(c) of the Code, asking the Tribunal to dismiss Mr. Ethier’s complaint because it has no reasonable prospect of success. Under s. 27(1)(c), the Tribunal considers all 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 942at para. 77. If there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City), 2017 BCCA 242 at para 67.
[42] Again, the threshold to advance a complaint to a hearing is low. Mr. Ethier does not have to prove his complaint or show the Tribunal all the evidence he may introduce at a hearing. He only has to show that the evidence takes his complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.
[43] At this stage, there does not appear to be a dispute that Mr. Ethier has characteristics protected by the Codeand was required to leave the Marina under pressure from the GVHA. The dispute centres on whether Mr. Ethier has no reasonable prospect of proving that his protected characteristics were a factor in that adverse impact. Because there is no direct evidence that the GVHA targeted Mr. Ethier because of his protected characteristics, this is a connection that will have to be proven by inference.
[44] An inference of discrimination may arise “where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses”: Vestad v. Seashell Ventures Inc. , 2001 BCHRT 38 at para. 44. The question is whether an inference of discrimination is more likely than the GVHA’s non-discriminatory explanation for its decision. It is not necessary that GVHA’s decision be consistent only with the allegation of discrimination and not any other rational explanation. Like any case of discrimination, Mr. Ethier’s protected characteristics need only be one factor in the adverse impact: Québec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para. 52.
[45] Above, I have briefly set out the facts that Mr. Ethier has presented to support an inference of discrimination. In response, the GVHA has presented evidence to support its non-discriminatory explanation for why it wanted Mr. Ethier to leave, namely his conduct which it says violated the Code of Conduct. It further says that its staff were not aware that Mr. Ethier was Inuk or had mental disabilities and so could not have discriminated against him on these grounds.
[46] In my view, there are conflicts in the parties’ evidence about foundational issue related to nexus that can only be resolved at a hearing: Francescuttiat para. 67. For example, there are conflicts in the evidence about:
a. Whether the Coordinator implied she wanted a romantic relationship with Mr. Ethier and whether her attitude towards him changed after he rejected her advance;
b. Whether Mr. Ethier engaged in the misconduct alleged by the GVHA and, if so, whether it violated GVHA’s Code of Conduct;
c. Whether Mr. Ethier was singled out for censure following the incident with the American vessel in circumstances where other residents had also questioned the boat and whether this differential treatment could support an inference of discrimination; and
d. Whether the Director and/or Coordinator told other residents that Mr. Ethier had a criminal record and whether this perception of Mr. Ethier intersected with his Indigeneity and factored into their assessment of his conduct.
[47] In addition, Mr. Ethier has produced medical evidence capable of proving a connection between his behaviour in the summer of 2020 and his Major Depressive Disorder. He has submitted notes from his doctor and counselor indicating that, during that period, Mr. Ethier was dealing with emotional trauma that affected his sleep, concentration, and mood and manifested in social, emotional, and physical problems.
[48] If Mr. Ethier can prove that his conduct in this period was connected to his mental disabilities, and formed the basis for GVHA’s assessment that he should leave, then the burden at a hearing would shift to the GVHA to justify its conduct under the test for a bona fidereasonable justification: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868. Within this framework, the GVHA must prove that it took all reasonable and practical steps to accommodate Mr. Ethier’s disability. In this application, the GVHA says it was not aware of Mr. Ethier’s disabilities and so could not have accommodated him. However, it is undisputed that the GVHA was aware that Mr. Ethier had recently endured a traumatic loss. At a hearing, the Tribunal could conclude that this knowledge was enough to trigger the GVHA’s duty to inquire about whether Mr. Ethier’s conduct may be related to a disability arising from that trauma before relying on that conduct to make decisions that negatively impacted his moorage.
[49] In sum, the GVHA has not persuaded me that Mr. Ethier’s complaint has no reasonable prospect of success. There are critical conflicts in the evidence that must be resolved at a hearing. The application to dismiss the discrimination allegations under s. 27(1)(c) is denied.
2. Retaliation complaint
[50] Section 43 of the Code protects people from negative consequences as a result of their participation in a human rights complaint. Although the word “retaliation” does not appear in this section, the term is frequently used as a shorthand to describe the conduct that it prohibits: Gichuru v. Law Society of BC, 2010 BCCA 543 at paras. 40-41. The purpose of s. 43 is to create safe conditions for people to bring forward issues of discrimination: Birchall v. BCS 61 Strata Corporation and another, 2018 BCHRT 29 at para. 68.
[51] Mr. Ethier alleges that, after he filed his human rights complaint, the GVHA refused to allow him to return to the Marina. He alleges that GVHA refused because he had filed a human rights complaint against them. Therefore, he says, this refusal was retaliation against him for filing a human rights complaint. The background to this allegation is as follows.
[52] In March 2021, Mr. Ethier reached out to GVHA to request that he be permitted to return to the Marina while he was waiting for a permanent spot somewhere else. The Inner Harbour Operations Manage [Manager] responded first, denying the request. The Manager cited “last summer’s incident coupled with a few we have had in the past”. Mr. Ethier asked her to reconsider. He acknowledged he had “handled things poorly” the previous year, and explained he was just trying to get past the “most terrible time in my life”. He asked whether they could speak about his request, and invited her to contact the marina manager at the location he had been staying. In an email dated March 30, 2021, the Manager declined.
[53] On May 13, 2021, the Tribunal gave notice to the GVHA that Mr. Ethier’s human rights complaint was proceeding.
[54] About two weeks later, on May 28, 2021, GVHA’s Director wrote to Mr. Ethier as follows:
I was forwarded your request for temporary moorage below [referring to Mr. Ethier’s emails with the Manager] and we also received your Human Rights complaint at the same time. This makes the situation complicated and so I would like to understand where you would like to go with this.
[55] Mr. Ethier says that he understood this email meant that the GVHA “would not give me moorage unless I abandoned my complaint.” He responded to the Director, explaining that it had “always been my intention to have my full-time moorage at Wharf St marina reinstated” but that, at that time, he felt it was best “to allow the mediation process to move forward in order to have a neutral party assist in a resolution”. The Director did not respond.
[56] Mr. Ethier says he emailed the GVHA again in September 2021 to request moorage, but did not receive a response.
[57] To prove that the GVHA retaliated against him contravened s. 43 of the Code, Mr. Ethier must show:
a. The GVHA was aware that he had made, or might make, a human rights complaint. There is no dispute that the GVHA was aware of the human rights complaint after May 13, 2021.
b. The GVHA denied Mr. Ethier’s request for moorage at the Marina. Again, this is not currently in dispute.
c. There is a sufficient connection between the denial of service and the complaint. This connection can be established by proving that the GVHA intended to retaliate against Mr. Ethier, or could reasonably be perceived to have retaliated against him. The element of reasonable perception is assessed from the point of view of a reasonable complainant, apprised of the facts, at the time of the impugned conduct. This is the element in dispute. GVHA argues on this application that this aspect that the complaint does not allege facts that, if proven, could establish a sufficient connection, and in the alternative, that Mr. Ethier has no reasonable prospect of establishing a sufficient connection.
Gichuru v. Pallai, 2018 BCCA 78 at para. 58
[58] Turning to the GVHA’s dismissal application, I begin with an assessment of Mr. Ethier’s retaliation allegations under s. 27(1)(b).
[59] I am satisfied that Mr. Ethier has alleged facts capable of proving a violation of s. 43. I have set out the facts supporting the first two elements of the retaliation analysis above. Regarding the third element – a sufficient connection between the denial of service and the complaint – Mr. Ethier has pointed to the Director’s May 28 email, which appears to expressly refer to his human rights complaint as a factor “complicating” his request for moorage. This email could support a finding that the GVHA did not want to offer him service at least in part because of his human rights complaint. Without considering any explanation presented by the GVHA, that is enough to surpass the low threshold of s. 27(1)(b). I decline to dismiss the retaliation allegation under s. 27(1)(b) of the Code.
[60] Turning to s. 27(1)(c), I am also not persuaded to dismiss the complaint because it has no reasonable prospect of success.
[61] In his affidavit, the Director says that the reference to the “human rights complaint” in his May 28 email was notabout Mr. Ethier’s human rights complaint. Rather, he says it was about the parties’ “settlement agreement over the complaint”, meaning their agreement in August/September 2020 that Mr. Ethier would leave the Marina and the GVHA would not penalize him for breaking the lease. The GVHA says that the only reason that they would not allow Mr. Ethier to return was “his past breaches of the moorage agreement, including his disrespectful conduct, in breach of the code of conduct, and his early termination of the lease”. Mr. Ethier disagrees, and argues that the Director’s email is the “smoking gun” capable of proving his retaliation complaint.
[62] In my view, this allegation warrants a hearing. On the face of the Director’s email, he refers to the “human rights complaint”. There is no evidence before me that the parties discussed or contemplated a human rights complaint in their 2020 agreement. Further, the timing of the Director’s email, immediately following service of the complaint, could support a connection between the two. At a hearing, it would open to Mr. Ethier to cross-examine the Director about his reasons for denying him moorage. Even aside from the direct evidence from the Director about his intent, it would be open to Mr. Ethier to argue that, based on the entirety of the evidence, the Director could reasonably be perceived to have retaliated against him. Finally, the GVHA has offered no explanation for why it did not respond to Mr. Ethier’s request to return in September 2021. While the Director refers to an email he wrote to Mr. Ethier’s counsel on “November 6, 2021”, the actual email submitted appears to be from November 6, 2020. The burden is on the GVHA in this application and they have not satisfied me that the allegation should be dismissed.
[63] On balance, Mr. Ethier’s allegation of retaliation surpasses the realm of conjecture. I decline to dismiss it under s. 27(1)(c) of the Code.
D. Would not further the purposes of the Code
[64] Finally, the GVHA argues that it does not benefit Mr. Ethier or further the purposes of the Codeto allow Mr. Ethier’s complaint to proceed in circumstances where the parties entered a settlement agreement to resolve their disputes, citing s. 27(1)(d).
[65] Under s. 27(1)(d)(i) of the Code, the Tribunal may dismiss a complaint if proceeding with the complaint would not benefit the complainant. The Tribunal will not dismiss a complaint where proceeding with the complaint may give the complainant access to remedies under the Code: D.D. v. The Hotel and others, 2020 BCHRT 109at para. 69.
[66] Under s. 27(1)(d)(ii) of the Code,the Tribunal may dismiss a complaint where proceeding with it would not further the purposes of the Code. These purposes include both private and public interests: s. 3. Deciding whether a complaint furthers those purposes is not only about the interests in the individual complaint. It may also be about broad public policy issues, like the efficiency and responsiveness of the human rights system, and the expense and time involved in a hearing: Dar Santos v. UBC, 2003 BCHRT 73, at para. 59, Tillis v. Pacific Western Brewing and Komatsu, 2005 BCHRT 433 at para. 15, Gichuru v. Pallai (No. 2), 2010 BCHRT 125, at paras. 113-118.
[67] Though not set out directly, I understand the GVHA’s argument to be that the parties have already entered into an agreement intended to resolve the disputes between them, such that there is no further purpose served by a hearing. Respectfully, I disagree.
[68] In some cases, the Tribunal may dismiss a complaint under s. 27(1)(d)(ii) where the parties have settled the complaint: see e.g.: Thompson v. Providence Health Care, 2003 BCHRT 58 at para. 38-46. The first step in this analysis requires the respondent to establish that a valid settlement agreement exists and that it was intended to release the respondent from further liability in a human rights complaint: Thompson at para. 46. The GVHA has not done so.
[69] The evidence before me is that the parties met on August 5, 2020, to discuss certain issues regarding Mr. Ethier’s boat and moorage. Their discussions were subsequently summarized in a letter from Mr. Ethier’s lawyer dated September 8, 2020. The outcome of the meeting was that Mr. Ethier agreed to leave the Marina, and the GVHA agreed not to penalize him for the early termination of his lease agreement. Even accepting this constituted a settlement agreement of a kind, there is no evidence that the parties discussed or intended to resolve Mr. Ethier’s human rights complaint, or release the GVHA from future claims under the Code. In this situation, there is no basis to conclude that the Code’spurposes have been adequately fulfilled through a resolution negotiated by the parties.
[70] If Mr. Ethier’s human rights complaint is successful, he will benefit from the remedies available under s. 37(1) of the Code. This will further the Code’spurposes of providing Mr. Ethier with a means of redress, and preventing further similar discrimination in the future: Code,ss. 3(c) and (e). I decline to dismiss the complaint under s. 27(1)(d).
III CONCLUSION
[71] The application to dismiss Mr. Ethier’s complaint is denied. The complaint will be scheduled for hearing.
Devyn Cousineau
Vice Chair