Akinbiyi v. Community Builders Benevolence Group and another, 2024 BCHRT 287
Date Issued: October 9, 2024
File: CS-000354
Indexed as: Akinbiyi v. Community Builders Benevolence Group and another, 2024 BCHRT 287
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:
Oluwatobi Akinbiyi
COMPLAINANT
AND:
Community Builders Benevolence Group and Greg Last Name Unknown
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(b), 27(1)(c), and 27(1)(d)(ii)
Tribunal Member: Robin Dean
On his on behalf: Oluwatobi Akinbiyi
Counsel for the Respondent: Jennifer Kwok
I INTRODUCTION
[1] Oluwatobi Akinbiyi is a Black man who was staying at a temporary shelter operated by Community Builders Benevolence Group [CBG] when he says he was called the N-word by another of the shelter’s guests, a man I call D. [N-Word Allegation]. Mr. Akinbiyi alleges that three weeks after he reported the racial slur to CBG, CBG placed D. in a bed next to him [Bed Placement Allegation]. He also alleges that while he was a guest, a staff member named Greg, whom CBG says they cannot identify, harassed him “with the disparaging nickname Tyson (Mike Tyson)” and “repeatedly” called him “fuckface” [Disparaging Nicknames Allegation]. Further, Mr. Akinbiyi alleges that a group of shelter guests called him the N-word and chanted “white power” at him [Chanting Allegation]. Finally, he alleges that when he reported the Chanting Allegation to a staff member I call N., N. said “you’re not the only [B]lack person here” and walked away [Response to Complaint Allegation]. Mr. Akinbiyi claims that this conduct constitutes discrimination under s. 8 of the Human Rights Code on the ground of race.
[2] Mr. Akinbiyi also seeks to file further submissions and seeks costs against CBG.
[3] CBG denies discriminating and applies to dismiss Mr. Akinbiyi’s complaint in its entirety under ss. 27(1)(b), 27(1)(c), and 27(1)(d)(ii) of the Code .
[4] To make my decision, I must consider these issues:
a. whether fairness requires me to consider Mr. Akinbiyi’s further submissions;
b. under s. 27(1)(d)(ii), whether CBG remedied the N-word Allegation and the Bed Placement Allegation by temporarily banning D. from the shelter such that it would not further the purposes of the Code to proceed with these allegations;
c. under s. 27(1)(b), whether Mr. Akinbiyi has alleged facts related to the Chanting Allegation, the Response to Complaint Allegation, and the Disparaging Nicknames Allegation that could, if proven, contravene the Code ;
d. under s. 27(1)(c), whether the Bed Placement Allegation and Response to Complaint Allegation have no reasonable prospect of success; and
e. whether costs are appropriate at this stage of the proceeding.
[5] For the following reasons, I do not consider the further submissions. I dismiss the N-Word Allegation. However, I do not dismiss the claim about putting D. in the bed next to Mr. Akinbiyi three weeks after he called Mr. Akinbiyi the N-word. I dismiss the Disparaging Nicknames Allegation. I also dismiss the Chanting Allegation. I do not, however, dismiss the Response to Complaint Allegation.
[6] In summary, the Bed Placement and Response to Complaint Allegations will proceed.
[7] In terms of costs, I do not find it appropriate to consider a costs application at this juncture.
[8] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.
II PRELIMINARY ISSUE – APPLICATION TO FILE FURTHER SUBMISSIONS
[9] Generally speaking, the Tribunal’s application process involves three submissions: the application, the response, and the reply: Rule 28(2). The Tribunal may accept further submissions where fairness requires that a party be given an opportunity to respond to new issues raised in reply: Tribunal Rules of Practice and Procedure [ Rules ], Rule 28(5); Kruger v. Xerox Canada Ltd (No. 2), 2005 BCHRT 24 at para. 17; or address new information not available to the party when they filed their submission: Tribunal Rules of Practice and Procedure [ Rules ], Rule 28(6). The overriding consideration is whether fairness requires an opportunity for further submissions: Gichuru v. The Law Society of British Columbia (No. 2) , 2006 BCHRT 201, para. 21.
[10] Here, Mr. Akinbiyi has not explained why he could not have made the submissions or provided the additional evidence in his response to the application to dismiss. Neither has he argued that he needs the opportunity to address new information or evidence that was not previously available. Mr. Akinbiyi says that CBG attempted to “twist his words”, but he does not explain what was misconstrued or how. I am not convinced under these circumstances that fairness requires an opportunity for Mr. Akinbiyi to make further submissions.
III DECISION
A. Section 27(1)(d)(ii) – Proceeding would not further the purposes of the Code
[11] Section 27(1)(d)(ii) allows the Tribunal to 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.
[12] CBG argues that it would not further the Code’s purposes for the complaints about D. using the N-word and the bed assignment to proceed because the underlying dispute has been resolved or remedied: Williamson v. Mount Seymour Park Housing Coop , 2005 BCHRT 334.
[13] Generally, where a complaint of discrimination has been appropriately resolved, proceeding with the complaint would not further the purposes of the Code because the discrimination has already been remedied: Williamson at para. 13. The Tribunal’s ability to fulfill the purposes of the Code is harmed when its resources are taken up with complaints that have already been adequately addressed, whether through settlement, unilateral respondent action or other proceedings: Williamson at para. 13.
[14] For the Tribunal to dismiss a complaint under s. 27(1)(d)(ii) on the basis that the respondent has appropriately addressed the alleged discrimination, the respondent must persuade the Tribunal that:
a. The respondent took the complainant’s discrimination claim seriously;
b. The respondent appropriately addressed the impact on the complainant; and
c. Where necessary, the respondent took appropriate steps to ensure the discrimination would not happen again: see, e.g., Horner v. Concord Security Corp , 2003 BCHRT 86; Williamson ; Aflakian v. Fraser Health Authority , 2011 BCHRT 170; Baker v. Brentwood College School and another , 2011 BCHRT 170.
[15] The Tribunal’s analysis under s. 27(1)(d)(ii) is contextual and case specific. Alongside the above requirements for dismissing a complaint on the basis that the alleged discrimination has been addressed, the Tribunal may also consider relevant contextual factors, such as: the seriousness of the alleged discrimination; the timeliness of the respondent’s response to the allegation; the nature of its response (e.g., whether the respondent investigated the allegation); whether the respondent acknowledged the discrimination; whether the complainant was compensated for their losses; whether the respondent has a discrimination policy; and the importance of encouraging parties to address allegations of discrimination in a timely and constructive manner: see Baker at para. 47. Not every factor listed is relevant to every case.
[16] CBG says that it took Mr. Akinbiyi’s complaint seriously, addressed it promptly when it was reported, and resolved it in a manner consistent with the Code by issuing D. a “time out” during which he could not return to the shelter for 12 hours. CBG says that it issues time outs “in instances of repeated or highly inappropriate behaviour…that jeopardize the safe, communal atmosphere of the Shelter”, including breaches of CBG’s policies. These policies include the right to be treated with respect regardless of race, status, gender, sexual orientation, age, religion, or beliefs. CBG says it expects its guests to respect the right of others to feel safe at the shelter. The longest time out it ever issues is 48 hours. CBG says that “the fact that ‘D’ was given a 12 hour Time Out for making the racial slur means that the client’s misconduct was assessed to be very serious.”
[17] While calling Mr. Akinbiyi the N-word is an allegation of a serious nature, I find that proceeding with this aspect of the complaint would not further the purposes of the Code because the alleged discrimination has been appropriately remedied. The shelter took prompt action in barring D. from the shelter for 12 hours, one of its harshest rebukes. Given the penalty imposed, I am satisfied CBG took the complaint seriously and acknowledged the comment had occurred. These factors weigh heavily in favour of dismissing the N-Word Allegation, and I dismiss it.
[18] However, I do not dismiss the Bed Placement Allegation under s. 27(1)(d)(ii). CBG argues that it had already remedied the issue before the bed reassignment occurred by barring D. from the shelter. While I agree for the reasons above that the shelter’s response to D.’s comment was appropriate under the circumstances, I cannot say the same for the bed placement on the materials before me. It does not follow that remedying the underlying comment remedies any harm that might arise from the bed placement. As detailed below, Mr. Akinbiyi says the bed placement caused him a great deal of further harm. Assigning D. a bed next to Mr. Akinbiyi three weeks after D. called Mr. Akinbiyi a heinous racial slur seems to have compounded the issue, and, as I describe below, may be found to have been discrimination in and of itself.
B. Section 27(1)(b) – No arguable contravention
[19] 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 a possible contravention of the Code is low: Gichuru v. Vancouver Swing Society , 2021 BCCA 103 at para. 56.
[20] In this case, Mr. Akinbiyi must set out facts that, if proved, could establish that he has a characteristic protected by the Code , he was adversely impacted in services, and his protected characteristic was a factor in the adverse impact : Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33.
[21] With respect to the Chanting Allegation, CBG says that it cannot be held liable for the discriminatory remark of its guests as it has no control over what its guests say to one another.
[22] I agree that CBG cannot be held liable under the Code for the comments of its guests, and I therefore dismiss the Chanting Allegation. Section 44(2) of the Code says:
An act or thing done or omitted by an employee, officer, director, official or agent of any person within the scope of the person’s authority is deemed to be an act or thing done or omitted by that person.
CBG’s guests are not its employees, officers, directors, officials, or agents operating under the control or designated authority of CBG. It therefore follows that CBG cannot be held liable under the Code for the words of its guests, even though they may be egregious.
[23] However, I do not dismiss the Response to Complaint allegation. Mr. Akinbiyi says that CBG’s reaction to the virulent comments allegedly made by the group of guests was to do nothing. Nicole allegedly responded that Mr. Akinbiyi was not the only Black guest at the shelter and walked away. These are facts, that, if proven, could lead to a finding that the Code was breached. The failure to investigate a complaint of discrimination can independently cause harm, and therefore, can independently be a discriminatory breach under the Code : Employee v. The University and another (No. 2) , 2020 BCHRT 12 at para. 272. The Code requires that service providers respond to complaints of discrimination in a manner that is reasonable and appropriate: Jamal v. TransLink Security Management and another (No. 2), 2020 BCHRT 146 at para. 106.
[24] In terms of the Disparaging Nicknames Allegation, I am not satisfied that these allegations, even if proven, could lead to a finding that the Code was contravened. While name calling by staff may have been inappropriate under the circumstances, Mr. Akinbiyi does not allege that his race was a factor in Greg calling him “fuckface”. And while he does allege that “Tyson” was a reference to Mike Tyson, a well-known Black man, “not every negative comment that is connected to a protected characteristic will be discriminatory harassment contrary to the Code ”: Brito v. Affordable Housing Societies and another , 2017 BCHRT 270 at para. 41. As the Tribunal said in Brito :
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.
[25] In assessing whether a comment rises to the level of discrimination within the meaning and scope of human rights legislation, the Tribunal considers a variety of factors, including: the egregiousness or virulence of the comment, the nature of the relationship between 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.
[26] Here, as a staff member, Greg was in a position of power relative to Mr. Akinbiyi. Additionally, Mr. Akinbiyi is a member of a group that has historically been discriminated against. However, while Mr. Akinbiyi says he felt disparaged by the nickname Tyson, the egregiousness and virulence of the comment is on the low end of the spectrum. Calling someone a nickname might not be professional behaviour, particularly if the nickname is meant to disparage the recipient. But I do not have any information about the context in which the comment here was made. Under these circumstances, calling Mr. Akinbiyi Tyson does not rise to the level of discrimination such that state intervention is required.
[27] Considering the relevant factors, I am satisfied that Greg calling Mr. Akinbiyi Tyson, if proven, could not contravene the Code . Therefore, I dismiss this aspect of his complaint.
C. Section 27(1)(c) – No reasonable prospect of success
[28] CBG applies to dismiss the Bed Placement Allegation and the Response to Complaint Allegation on the basis that they have no reasonable prospect of success: Code, s. 27(1)(c). The onus is on CBG to establish the basis for dismissal.
[29] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[30] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal 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 942at para. 77.
[31] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority , 2021 BCSC 2176at 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 [ Hill ] at para. 27.
[32] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia , 2008 BCSC 1026 at para. 34. However, 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.
[33] To prove his complaint at a hearing, Mr. Akinbiyi will have to prove that he has a characteristic protected by the Code , he was adversely impacted in accommodation or services, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33. If they did that, the burden would shift to CBG to justify the impact as a bona fide reasonable justification. If the impact is justified, there is no discrimination.
[34] CBG says that there is no reasonable prospect Mr. Akinbiyi will be able to prove that the Bed Placement Allegation was adverse treatment connected to his race.
[35] Mr. Akinbiyi says that CBG assigned D. to the bed next to Mr. Akinbiyi three weeks after D. called Mr. Akinbiyi the N-word, an egregious and virulent slur. He says that when the shelter did this, it made him feel worthless and discriminated against. He says he felt unsafe. The gist of Mr. Akinbiyi’s evidence is that the bed reassignment made him feel uncomfortable in his living environment. Considering this evidence, I am not satisfied there is no reasonable prospect that Mr. Akinbiyi could prove that he was adversely impacted when CBG assigned D. the bed next to him.
[36] CBG says that it did not deny Mr. Akinbiyi accommodation therefore Mr. Akinbiyi will not be able to prove adverse impact. While I agree that there is nothing in the materials before me that suggests that Mr. Akinbiyi was denied accommodation, adverse treatment can be broader than the denial of a service or accommodation: see Code , s. 8(b). And while CBG also says it “denies any purposeful act done with the intention to demean or humiliate Mr. Akinbiyi on the basis of his race.” Discrimination does not have to be intentional: Code , s. 2. Human rights law is about impact, not intentions: Fenech v. PNI Media Inc. and another , 2023 BCHRT 120 at para. 61.
[37] Further, I am satisfied that Mr. Akinbiyi has taken his complaint about the connection between the bed reassignment and his race out of the realm of conjecture. Mr. Akinbiyi need not show that CBG moved D. because of Mr. Akinbiyi’s race. The connection that Mr. Akinbiyi alleges to the bed move is not about CBG’s intentions, but the impact of the move on him relating to his race. Given his race and his previous dealing with D., he says that he felt unsafe with D. next to him. These feelings of emotional and physical unsafety arose, he says, because D. had called him the N-word, a slur inherently connected to Mr. Akinbiyi’s race. Under these circumstances, I do not think it mere speculation that Mr. Akinbiyi’s race was a factor in the bed move. This is so even though there was a three-week lapse of time between D.’s comment and the bed reassignment. To the extent that CBG is suggesting that three weeks is sufficient time to disrupt the connection between Mr. Akinbiyi’s race and the adverse impacts he says he experienced, I am satisfied that the Tribunal could still find a connection even though three weeks had passed given the lingering effects of such a hateful word.
[38] CBG says there is no evidence that Mr. Akinbiyi’s physical safety was threatened by the bed move. Rather, they say that the evidence shows that D. never posed a physical threat to Mr. Akinbiyi, and they question Mr. Akinbiyi’s actual feeling that he was unsafe next to D. They base this skepticism on a statement Mr. Akinbiyi made that D. is “incapable of having heated arguments” and that Mr. Akinbiyi tried to speak to D., but D. was non-responsive. CBG then speculates based on these statements that Mr. Akinbiyi was not actually afraid for his physical safety. I do not find that this speculation is a reason to dismiss Mr. Akinbiyi’s complaint. Further, feeling unsafe in response to a discriminatory comment can encompass physical and emotional unsafety.
[39] Finally, CBG says that Mr. Akinbiyi himself has said that he believes the bed reassignment was done in “retaliation” for other complaints he had made against shelter staff. Mr. Akinbiyi says that “[t]he tribunal and the Respondent need to realize there is more than one reason or motive behind the bed switch but I have always believed … the bed switch was done because of my race.”
[40] I am satisfied that this is not a reason to dismiss Mr. Akinbiyi’s complaint. Mr. Akinbiyi’s race need only be one factor in the adverse impacts he says he experienced. It need not be the sole or even overriding factor: Armstrong v. British Columbia (Ministry of Health) , 2010 BCCA 560 at para. 21. A complainant need prove only that their protected characteristic was one factor in the adverse impact they experienced. There is room in the analysis for other factors to have been at play.
[41] With respect to the Response to Complaint Allegation, CBG has not shown that this aspect of Mr. Akinbiyi’s complaint has no reasonable prospect of success. CBG says only that N.’s comment, “you’re not the only Black person here”, did not rise to the level of discrimination. However, as I read Mr. Akinbiyi’s complaint, he takes issue with N.’s inaction regarding the group of guests calling him the N-word and shouting “white power” at him. CBG does not dispute that nothing was done about these comments. As stated above, such inaction can be discrimination in and of itself. I am satisfied based on the materials before me, this allegation warrants a hearing as Mr. Akinbiyi has taken this aspect of his complaint out of the realm of conjecture.
IV APPLICATION FOR COSTS
[42] Mr. Akinbiyi filed an application under s. 37(4) of the Code seeking an award of costs against CBG for improper conduct. I decline to consider the costs application at this time. If Mr. Akinbiyi chooses to pursue the application, in my view it would be more efficient for the issue to be addressed at a hearing on the merits.
V CONCLUSION
[43] I grant the application to dismiss in part. Only the Bed Placement and Response to Complaint Allegations will proceed.
Robin Dean
Tribunal Member
Human Rights Tribunal