Bighorn and others v. Vancouver Secondary Teachers’ Association, 2024 BCHRT 290
Date Issued: October 16, 2024
File: CS-005604
Indexed as: Bighorn and others v. Vancouver Secondary Teachers’ Association, 2024 BCHRT 290
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:
Jelena Bighorn and Preet Lidder and Oliver Kollar
COMPLAINANTS
AND:
Vancouver Secondary Teachers’ Association
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Edward Takayanagi
On their own behalf: Jelena Bighorn, Preet Lidder, Oliver Kollar
Counsel for the Respondent: Lindsay A. Waddell, Daniel McBain
I INTRODUCTION
[1] Jelena Bighorn, Preet Lidder, and Oliver Kollar are racialized educators who say they were discriminated against by their trade union, the Vancouver Secondary Teachers’ Association (VSTA) contrary to s. 14 of the Human Rights Code. They say the executive officers and members of VSTA discriminated against them based on their race, ancestry, colour, and Indigenous identity by running meetings in a way that prevented them from being able to speak, put forward motions, or be elected to executive positions.
[2] VSTA denies discriminating. It applies to dismiss the complaint against it under s. 27(1)(c) of the Code because there is no reasonable prospect the Complainants will establish that VSTA’s conduct has any connection to their race, ancestry, colour, or Indigenous identity.
[3] VSTA also applies to anonymize the identities of its individual officers and members. The Complainants oppose this application.
[4] While I do not refer to it all in my decision, I have considered all of the information filed by the parties in relation to the applications. This is not a complete recitation of the parties’ submissions, but only those necessary to come to my decision. I make no findings of fact.
[5] For the reasons that follow, I am persuaded that VSTA’s officers and members’ privacy interests outweigh the public interest in their identities and allow the application to anonymize.
[6] On the dismissal application, I find there is no reasonable prospect that the Complainants could establish that their protected characteristics was a factor in VSTA’s conduct. On all the evidence before me, I am persuaded that the Complainants’ allegations do not rise above the realm of conjecture and speculation. Therefore, I dismiss the complaint under s. 27(1)(c).
II PRELIMINARY ISSUE – APPLICATION TO LIMIT PUBLICATION
[7] VSTA applies to have the Tribunal limit publication of information which could identify its officers, and any other individuals allegedly involved in the events which give rise to the complaint.
[8] The Tribunal’s proceedings 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.
[9] 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: JY at 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).
[10] I find it is appropriate to anonymize the non-parties to the complaint for the following reasons. First, I do not find the public interest in an open process particularly engaged by naming individual officers and members of an institutional Respondent to the complaint. The officers and other individuals are not named as individual Respondents and are not parties to the complaint. Second, in this decision I dismiss the complaint because it has no reasonable prospect of success. This means the complaint and the allegations remain unproven. Third, I find the privacy interests of the individual officers and members, who are all educational professionals, and the risk to their professional reputation outweigh the public’s interest in knowing their identities. While I appreciate that the Complainants say the alleged conduct occurred during union meetings and their complaint does not include aspects of the officers’ conduct as teachers, a teacher’s conduct extends beyond the classroom, even when off duty: Ross v. New Brunswick School District No. 15 [1996] 1 SCR 825 at paras. 43-45. I find there is a risk to the individual officers’ reputation as educators from the unproven allegations. Finally, I find there is a risk to the professional reputation of the officers’ and their ability to represent members of the VSTA.
[11] I am satisfied that the privacy interests of the individual officers and members outweigh the public interest in their identity at this stage. Restricting publication of names minimally impacts the openness of this proceeding because it relates only to a sliver of information and the VSTA itself remains publicly named. The public will still be able to understand the complaint, and my decision, without knowing the names of the individual officers of the VSTA.
[12] Under the circumstances, I find it appropriate to order that the Tribunal not publish names and identifying information of VSTA’s officers.
III BACKGROUND
[13] The background facts are taken from the parties’ materials and are largely undisputed.
[14] VSTA is a trade union representing teachers employed in secondary schools and is a local union of the British Columbia Teachers’ Federation (BCTF). It is governed by an elected Council consisting of members of the Executive Committee and representatives from each secondary school. The Council meets regularly to conduct the business of the VSTA.
[15] The Complainants are a group of three racialized teachers and non-Executive Committee members of the VSTA Council.
[16] The Complainants allege that VSTA conducted its meetings and elections in a discriminatory manner that marginalized their participation and impeded their efforts to be elected to Executive roles. Specifically, the Complainants allege the following events were discriminatory. VSTA does not dispute that the events occurred but disputes that the Complainants protected characteristics was a factor in the events.
[17] On September 23, 2021, at a Council meeting, Ms. Lidder ran for the role of co-chair for future meetings but was not elected.
[18] During a Council meeting on October 28, 2021, a motion Ms. Bighorn requested was placed last on the meeting agenda. Ms. Bighorn’s motion had not been discussed at the time the meeting was scheduled to end. The Council members voted on whether to extend the meeting time. The motion to extend the meeting did not obtain the two thirds majority required under the Council’s rules. After some discussion by the members, the Chair suspended the rules to allow Ms. Bighorn to proceed with her motion, but she declined to do so.
[19] During an Executive Committee meeting on November 4, 2021, the Committee discussed Mr. Kollar’s conduct during the October 28, 2021, meeting including interrupting speakers and yelling which was in contravention of the Council’s rules and policies. After a vote, the Executive Committee sent Mr. Kollar a letter on November 8, 2021, informing him that his behavior at the October meeting violated Council rules and he would not be permitted to attend future meetings until he was prepared to follow Council Rules and Policy. Mr. Kollar acknowledged that he would read and abide by the rules and policies. The Executive Committee sent a letter on November 23, 2021, welcoming him to attend future meetings.
[20] On March 10, 2022, VSTA held an orientation meeting for 20 delegates who would be attending an upcoming Annual General Meeting [AGM] of the BCTF. Ms. Bighorn and Ms. Lidder were in attendance as they were scheduled to attend the AGM. They were also running as candidates for the BCTF Executive Committee. VSTA did not endorse Ms. Bighorn, Ms. Lidder or any candidates running for the BCTF Executive.
[21] On March 15, 2022, VSTA did not immediately contact Ms. Lidder, who was the first alternate delegate for the BCTF AGM, when there was a vacancy to attend the BCTF AGM. VSTA learned there would be a vacancy on March 16, 2022, and Ms. Lidder was first contacted by the VSTA administrator on March 17, 2022, and informed she could attend the BCTF AGM.
[22] On May 12, 2022, the school representatives on the VSTA Council emailed staff members at their school with a list of candidates for an upcoming VSTA AGM stating for whom the VSTA representatives intended to vote. The list of candidates the representative intended to vote for included 16 individuals. Ms. Bighorn was not one of the candidates the representatives intended to vote for.
[23] On May 17, 2022, during the VSTA AGM Ms. Lidder was running against another candidate for the role of 2 nd Vice-President. Another member was nominated from the floor. After a vote was held, the candidate who was nominated from the floor was elected.
IV DECISION
[24] VSTA applies to dismiss the complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c) The onus is on VSTA to establish the basis for dismissal. 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.
[25] 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 942 at para. 77.
[26] 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.
[27] To prove their complaint at a hearing, the Complainants will have to prove that they have a characteristic protected by the Code , they were adversely impacted in their membership in the VSTA, and their protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33.
[28] VSTA’s primary argument is that there is no reasonable prospect the Complainants could establish at a hearing a nexus between their protected characteristics and any alleged adverse treatment. It says the Complainants’ allegation that their protected characteristics influenced how VSTA conducted its meetings and elections are nothing more than conjecture.
[29] Based on the information and materials before me, in my view there is no reasonable prospect the Tribunal would find after a full hearing that the Complainants’ protected characteristics was a factor in the adverse impacts.
[30] In support of its application VSTA submitted copies of its rules and policies, contemporaneous correspondence between VSTA executives and the Complainants, meeting minutes, and affidavits from VSTA members. VSTA asserts that all of its conduct was in accordance with its rules and policies governing how meetings and elections are run. It denies that the Complainants’ protected characteristics was a factor in how they ran meetings, elections, or treated the Complainants.
[31] The Complainants do not dispute that VSTA has rules and policies governing how meetings and elections are run and that these rules and policies were enforced. The Complainants argue that the rules and policies were utilized in a manner that marginalized them and created barriers for racialized members to participate in the process. They say the rules were applied differently to them than non-racialized members. They say how VSTA governs and conducts its meetings demonstrates a pattern of harassment and bias that is discrimination based on their protected characteristics. They ask the Tribunal to draw an inference based on the fact that the meeting rules of order and governance policies resulted in their silence, exclusion, and inability to be elected to roles sought.
[32] Human rights jurisprudence has consistently recognized that a decision that the Code has been contravened may be based on circumstantial evidence, and on inferences that are reasonable to draw from that evidence: Hill v. Best Western and another, 2016 BCHRT 92 at para. 28. However, there must be some evidence that takes the complaint outside the realm of conjecture.
[33] While it is clear from the materials that the Complainants believe VSTA treated them adversely because of their protected characteristics, the documentary material before me is inconsistent with the assertion that the Complainants were treated differently than other members. Both parties submitted affidavit evidence, however, the Complainants materials consist of the affiants’ beliefs, interpretation of facts, speculation, and opinion. There are no specific facts alleged or evidence to ground an inference of nexus. VSTA provided its rules and policies, contemporaneous correspondence between the Complainants and its members, and meeting minutes. The materials support VSTA’s position that it had clear rules and policies governing how meetings and elections are run and the acceptable conduct of members.
[34] The materials support VSTA’s position that it conducted its meetings in accordance with its rules including its selection of meeting chairs through elections, and placing new business raised by Ms. Bighorn on the agenda. The materials also support that VSTA has the ability to suspend rules, such as when VSTA extended the October 28, 2021, meeting time to discuss Ms. Bighorn’s proposed motion or during a September 23, 2021, meeting when VSTA allowed a member who was not audible due to technological issues to later run for the role of co-chair after nominations was closed. While the Complainants allege that VSTA did not apply its rules and policies uniformly and selectively applied its rules of conduct to marginalize and silence them because of their protected characteristics, the evidence does not support such an assertion.
[35] In my view the examples cited by the Complainants does not support an inference that the rules were selectively applied to members based on their protected characteristics. Extending the meeting time on October 28, 2021, was for the benefit of Ms. Bighorn so that her proposed motion could be heard and discussed during the meeting. The September 23, 2021, meeting where a member was allowed to run for election after nominations closed was due to technological issues. Further, the evidence is that the member who was allowed to run for election was racialized, which does not support the Complainants’ assertion that the rules were selectively applied against racialized members. The materials support VSTA’s position that it applied its rules and policies to all members and where it waived the rule, it did so to allow members to participate.
[36] Next, while the Complainants say it was discriminatory for VSTA to reprimand Mr. Kollar and ask him not to attend meetings until he agreed to abide by VSTA’s rules, the documentary materials including the minutes and video recording of the October 28, 2021, meeting, VSTA’s rules, and the correspondence supports VSTA’s assertion that its decision was based solely on Mr. Kollar’s conduct at the October 28, 2021, meeting.
[37] Similarly, the evidence shows that Ms. Lidder was contacted by the VSTA administrator to attend the BCTF AGM as the alternate delegate when a representative was unable to attend. The evidence shows that the VSTA administrator received an email dated March 15, 2022, on March 16, 2022, and emailed Ms. Lidder on March 17, 2022, to advise her that she could attend the BCTF AGM. While the Complainants allege that the delay in informing Ms. Lidder is due to discriminatory reasons, the documentary material including the alphabetized list of alternate delegates, and the contemporaneous correspondence supports VSTA’s assertion that any delay was caused by the administrator confirming who is the appropriate alternate delegate. In light of this evidence, I cannot say the Complainants’ assertion that Ms. Lidder was not immediately contacted due to discriminatory reasons has been raised beyond the realm of conjecture.
[38] The Complainants allege that VSTA failed to endorse Ms. Lidder and Ms. Bighorn for elected roles at BCTF’s AGM due to their protected characteristics. The Complainants argue that the failure of VSTA to ensure that its elected representatives reflect the diversity of its membership is evidence of systemic racism.
[39] In light of the evidence before me, I am not satisfied that the Complainants’ assertion that their protected characteristics was a factor in their not being endorsed at the has been taken out of the realm of conjecture. The materials show that VSTA did not endorse any candidate and that this is consistent with its past practice. VSTA says it has not traditionally endorsed candidates but supports individuals by making financial resources available to them. The evidence supports VSTA’s position that it did not endorse any candidate and that it informed Ms. Lidder and Ms. Bighorn that funds are available to use for campaigning. Therefore, I find it is speculative to say that VSTA not endorsing Ms. Lidder and Ms. Bighorn has a nexus with their protected characteristics.
[40] I next turn to the allegation that VSTA breached the Code when Council members emailed members at their school about how the Council members intended to vote at the VSTA AGM. The Complainants say this was discriminatory because the members did not endorse Ms. Bighorn. The Complainants assert that Ms. Bighorn’s exclusion is based on her race, colour, and ancestry. I am persuaded that the Complainants’ allegation that the correspondence was discriminatory has no reasonable prospect of success.
[41] The evidence contradicts the Complainants’ assertion that Ms. Bighorn was singled out by the Council members. The Council members excluded many candidates and only listed 16 candidates for whom they intended to vote. Further, the 16 candidates endorsed includes candidates of colour and did not include some white candidates. The Complainants have failed to provide evidence on which the Tribunal could, after a full hearing, draw a reasonable inference that the Council members’ endorsements had a nexus with Ms. Bighorn’s protected characteristics.
[42] Finally, I consider the allegation that Ms. Lidder losing the election has a nexus with her protected characteristics. VSTA says, and I am persuaded, that there is no reasonable prospect the Complainants could prove that Ms. Lidder losing the election has a nexus with her protected characteristics. The Complainants say that a candidate being nominated from the floor during the VSTA AGM, and being elected is evidence that VSTA discriminated. VSTA’s evidence is that there are specific rules and procedures governing elections at AGMs allowing candidates to be nominated from the floor. The evidence shows that VSTA followed their procedures throughout the AGM for the election of all roles. The minutes of the AGM show Ms. Lidder was running against another candidate for a role. The chair of the meeting called for nominations from the floor, as they did for every elected position, and a candidate was nominated from the floor. The evidence does not support the Complainants’ assertion that VSTA applied the rules in a way that was discriminatory or that the rules were applied differently to Ms. Lidder. Based on the materials I cannot say that the Tribunal could, after a full hearing, draw an inference of that a candidate being nominated from the floor and being elected has a nexus with Ms. Lidder’s protected characteristics.
[43] On the whole of the evidence, I am not persuaded that the Complainants’ allegations of discrimination have been taken out of the realm of speculation and conjecture. I cannot say that the Tribunal could, after a full hearing, draw a reasonable inference that the Complainants’ protected characteristics was a factor in how VSTA conducted its meetings or election of officers because the documentary evidence contradicts the assertion that the Complainants were treated differently. VSTA is reasonably certain to prove at a hearing that the meetings and elections were conducted in accordance with its rules and policies which were uniformly applied to all of its members. In this context, the assertion that the Complainants’ protected characteristics was a factor in how they were treated in meetings and elections has not been taken out of the realm of mere conjecture. As such, the complaint is dismissed under s. 27(1)(c).
V CONCLUSION
[44] For the above reasons, I allow the application and dismiss the complaint under s. 27(1)(c).
Edward Takayanagi
Tribunal Member