Worker J v. Workplace K and another (No. 2), 2024 BCHRT 280
Date Issued: October 3, 2024
File: CS-002449
Indexed as: Worker J v. Workplace K and another (No. 2), 2024 BCHRT 280
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:
Worker J
COMPLAINANT
AND:
Workplace K and LX
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO LIMIT PUBLICATION
RULE 5
APPLICATION TO RECONSIDER A DECISION
RULE 36
Tribunal Member: Robin Dean
Agent for the Complainant: Wife
Counsel for the Respondent: Paul Pulver
I INTRODUCTION
[1] Worker J filed a complaint of employment discrimination based on race, colour, place of origin, and religion. In an earlier decision, I found the complaint was untimely, and I was not persuaded it was in the public interest to accept it. I dismissed the complaint under s. 27(1)(g) on that basis [ATD Decision]: Worker J v. Workplace K and another , 2024 BCHRT 201.
[2] Worker J now applies to have the Tribunal reconsider the dismissal decision. He has also filed an application to limit publication of any names connected with the complaint. The Respondents take no position on the anonymization application.
[3] For the reasons that follow, I allow the application to limit publication, and I deny the application for reconsideration. I do not reconsider my decision, and the decision stands.
II APPLICATION TO LIMIT PUBLICATION
[4] Complaints at the Tribunal are presumptively public: Mother A obo Child B v. School District C, 2015 BCHRT 64 at para. 7. This openness serves four main goals: maintaining an effective evidentiary process, ensuring that Tribunal members act fairly, promoting public confidence in the Tribunal, and educating the public about the Tribunal’s process and development of the law: Edmonton Journal v. Alberta (Attorney General), [1989] 2 SCR 1326 at para. 61; JY v. Various Waxing Salons, 2019 BCHRT 106 at para. 25. These goals align with the purposes of the Code, which include fostering a more equitable society and identifying and eliminating persistent patterns of inequality: Code, s. 3. The main way that the Tribunal furthers these purposes is through its public decisions: A. v. Famous Players Inc., 2005 BCHRT 432 at para. 14.
[5] The Tribunal has discretion to limit publication of identifying information where a person can show their privacy interests outweigh the public interest in full access to the Tribunal’s proceedings: TribunalRules of Practice and Procedure [Rules], Rule 5(6); Stein v. British Columbia (Human Rights Tribunal), 2020 BCSC 70 at para. 64(a). The Tribunal may consider factors like the stage of the proceedings, the nature of the allegations, private detail in the complaint, harm to reputation, or any other potential harm: JYat para. 30. It may also consider whether the proposed limitation relates to only a “sliver” of information that minimally impairs the openness of the proceeding: CS v. British Columbia (Workers’ Compensation Appeal Tribunal), 2019 BCCA 406 at para. 37. It is not enough to just assert that a person’s reputation may be tarnished: Stein at para. 64(c).
[6] Worker J says that anonymization is appropriate in this case due to the personal and sensitive information that is and will be contained in the ATD Decision and this reconsideration decision. He says his mental stability would be put at further risk were his name published. He also says that he has a young child, whose reputation and future could be damaged if Worker J is identified in connection with his complaint.
[7] I make my decision to anonymize based on the potential harm to Worker J, which is borne out by the materials before me on this reconsideration application. Although the difficulties that Worker J has experienced in his mental health as a result of the alleged discrimination have not been discussed in great detail in the ATD or reconsideration decision, I am satisfied that the publication of names in the decisions would cause significant mental distress to Worker J. Because he seeks only a “sliver” of information be withheld from the public, and because the complaint will not proceed from this stage in the process, I find that the privacy interest here outweighs the public interest.
[8] I order that the Tribunal will not publish or make available to the public any names in connection with this complaint. I further order that no person may publish any names in connection with this complaint.
III WHETHER TO RECONSIDER THE DECISION
[9] The Tribunal has a limited jurisdiction to reconsider its own decisions: Rule 36 of the Tribunal’s Rules of Practice and Procedure . 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.
[10] 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.
[11] Worker J submits that I made “significant mistakes” in the decision. He says these mistakes would not have been made had the Tribunal not “lost” some of the medical records he submitted, which he says shows that he was “mentally impaired” between March 2020 and September 2020. This period is relevant because I determined in the ATD decision that there was no medical evidence to demonstrate that he was unable to file his complaint during this time.
[12] 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.
[13] Here, Worker J says that I was wrong in my decision because we lost the evidence that was relevant to the reasons for the delay in filing his complaint. He submits the evidence he says was missing with his reconsideration application. Worker J says this missing evidence shows he was dealing with serious mental health issues during the entire one-year time period for filing his complaint. However, Worker J has not presented evidence that he submitted the documents with his response to the application to dismiss. The Tribunal suggested that he submit such evidence with his reconsideration application, but he did not. I therefore have no evidence before me that the Tribunal lost or overlooked materials that were previously given to us. As a result, I treat the additional documents he submitted with this reconsideration application as new evidence.
[14] 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.
[15] Upon review of the new evidence, the documents are from 2020. The response to the application to dismiss was filed with the Tribunal on October 20, 2022. Given this, I am not persuaded that these documents could not have been produced with the response to the application to dismiss. Because the information was available at the time that Worker J made his submission, reconsideration is not appropriate on this basis.
[16] Finally, Worker J says that I made “unfair” and “unexpected” comments in the part of my decision where I considered the public interest in the complaint. He says that these “derogatory comments” were damaging to him given his disabilities. These comments, he says, can be found at paras. 19 and 20 of the ATD Decision. Paragraph 19 sets out the law on the public interest in a late complaint. Paragraph 20 reads:
I find there is little public interest in the complaint itself. Worker J’s complaint involves allegations of discrimination and harassment in the workplace based on his race, colour, place of origin, and religion. This alleged discrimination includes derogatory comments on the part of his employer. While I acknowledge that Worker J says that this alleged discrimination caused him significant distress, the Tribunal routinely deals with cases involving derogatory comments about various personal characteristics in the employment context. I am not persuaded that his complaint is sufficiently novel or unique to attract the public interest.
[17] I acknowledge that my decision was upsetting to Worker J, which is understandable given that I dismissed his complaint. This is a difficult process to undergo, and I accept Worker J’s statements that it was particularly difficult for him to hear my decision given his disabilities. However, Worker J’s disagreement with my public interest decision does not form a basis for reconsideration. Again, if he disagrees, the proper channel is to apply for judicial review at the BC Supreme Court.
IV CONCLUSION
[18] I allow the application to limit publication, and I deny the application for reconsideration. I do not reconsider my decision, and the decision stands.
Robin Dean
Tribunal Member
Human Rights Tribunal