CS v. IATSE Local 891 (No. 3), 2024 BCHRT 297
Date Issued: October 23, 2024
File: CS-001380
Indexed as: CS v. IATSE Local 891 (No. 3), 2024 BCHRT 297
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:
CS
COMPLAINANT
AND:
IATSE Local 891
RESPONDENT
REASONS FOR DECISION
APPLICATION for reconsideration
Rule 36
Tribunal Member: Shannon Beckett
On their own behalf: CS
Counsel for the Respondent: Allison Tremblay
I INTRODUCTION
[1] CS filed a human rights complaint with the Tribunal alleging IATSE Local 891 [the Respondent ] discriminated against him in the area of Unions and Associations. In a decision dated September 11, 2024 [ Final Decision ], I dismissed CS’s complaint in its entirety. CS now applies for reconsideration of the Final Decision. He also asks that another Tribunal member be assigned to decide the reconsideration application because he says I am biased against him.
[2] I have not found it necessary to seek submissions from the Respondent.
[3] For the following reasons, I deny CS’s request to have another member decide the reconsideration application, and I also deny the reconsideration application.
[4] In this decision, I will first consider CS’s arguments about bias, which relate to both his request that another member decide the reconsideration application, as well as to the merits of the reconsideration application. Then I will consider the remainder of CS’s arguments about why the Final Decision should be reconsidered.
II BACKGROUND
[5] The background to CS’s complaint is set out in the Final Decision at paragraphs 16-56, and I will not repeat it here. At a high level, the Final Decision considers CS’s allegation that the Respondent discriminated against him based on his mental and physical disabilities when it removed him from a film production in September 2018.
III ANALYSIS AND DECISION
A. Reasonable Apprehension of Bias
[6] Reconsideration applications at the Tribunal are almost always decided by the member who made the original decision. That member is most familiar with the evidence and issues in the complaint, and best placed to efficiently determine whether there is a basis to reconsider the original decision: Karbalaeilali v. BC (Human Rights Tribunal), 2010 BCSC 1130 at para. 65; see also University of British Columbia v. University of British Columbia Faculty Assn., 2007 BCCA 210 at para. 84.
[7] An exception to this practice arises when the member who made the original decision excuses themself from deciding the reconsideration application because of what is known in legal terms as, “a reasonable apprehension of bias”. The Supreme Court of Canada set out the test for a reasonable apprehension of bias in Committee for Justice and Liberty v. National Energy Board , 1976 CanLII 2 (SCC), as follows (at p.394):
… what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would [they] think that it is more likely than not that [the decision maker], whether consciously or unconsciously would not decide fairly.
[8] All Tribunal members are presumed to be impartial in the exercise of their duties, and that presumption is not easily displaced: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General) , 2015 SCC 25, at para. 25. In the present case, CS bears a heavy burden to displace the presumption of impartiality, and the evidence of bias must be substantial: CS v. British Columbia (Human Rights Tribunal), 2017 BCSC 1268 at para. 155, upheld in 2018 BCCA 264.
[9] In support of his request that a different member decide the reconsideration application, CS points to my historical working relationship with counsel for the Respondent, and to parts of the Final Decision which he says demonstrate I am biased against him.
[10] CS says that because counsel for the Respondent and I used to work together at the same law firm, he questions “the credibility and reliability” of my decision-making in the Final Decision. He says that there was “collusion”, and that I am biased against him. In addition to expressly asking for a different member to reconsider the Final Decision, his submissions imply that the final decision should be reconsidered because it was made by a biased adjudicator.
[11] Article 22 of the Tribunal Member’s Code of Conduct [1] prohibits Tribunal Members from adjudicating any proceeding where a Member has (or has had within the past 12 months) a significant or close personal, professional, or business relationship with a party, party’s representative, or witness.
[12] I do not have a close personal, professional or business relationship with counsel for the Respondent, nor have I had any such relationship within the past 12 months. I ceased working at the law firm where counsel for the Respondent currently works in 2015, and have not had a significant relationship with counsel since that time. CS does not explain how he says “collusion” has happened between myself and counsel for the Respondent, but it has not.
[13] Additionally, a prior working relationship between a Tribunal member and a former law firm, on its own, does not give rise to a reasonable apprehension of bias: Chestacow v. School District No. 63 (Saanich) and another (No. 2), 2013 BCHRT 263, at para. 13. Even if I had an ongoing relationship with members of the firm where I formerly worked, that alone would not establish a reasonable apprehension of bias. On that point, the BC Court of Appeal has found:
The legal community and the public benefit from proper relationships between judges and members of the bar. Judges should not work in professional isolation or live in social isolation from lawyers. They do not leave existing friendships with lawyers behind them when they assume judicial office; nor are they prevented from forming new friendships. In a general way, professional and social interactions between judges and lawyers outside the courtroom with properly proscribed exchanges of ideas about substantive law and procedural law is a healthy thing. Personal relationships are often by-products of such exchanges and vice versa. A reasonable person assessing the present complaint should have this in mind.
Wellesley Lake Trophy Lodge Inc. v. BLD Silviculture Ltd., 2006 BCCA 328, at para. 18 [ Wellesley Lake ]
[14] I understand the above discussion in Wellesley Lake, to stand for the proposition that more than the mere existence of a personal relationship between a judge and a lawyer must be established in order to give rise to a reasonable apprehension of bias. In my view, the same reasoning can be applied to Tribunal members and the people who appear before them. In the Tribunal context, personal relationships between adjudicators and individuals who appear before the Tribunal may be even more common, as people selected to adjudicate matters in a particular area of expertise are often drawn from a smaller pool of individuals and colleagues practising in the same area.
[15] Considering that something more than the mere existence of a prior relationship is necessary in order to rebut the strong presumption of impartiality, I move on to consider CS’s arguments about the Final Decision evidencing bias. In that regard, CS argues that in my reasons I was “hostile” to Mr. Seed, which shows that I had “an agenda to push” in the decision. CS contrasts my findings about Mr. Seed, with my findings in relation to Ms. Moon, and implies my findings were tainted by bias in favour of either Ms. Moon, the Respondent, or counsel for the Respondent. CS further questions my consideration of Ms. Robinson’s evidence, stating that Ms. Robinson “is not a person that can be trusted with telling the truth”.
[16] With respect, my reasons set out detailed explanations for why I preferred certain witnesses’ evidence over others. That CS disagrees with those reasons, or otherwise characterizes them as evidencing bias, does not displace the presumption of impartiality. To the extent CS takes issue with the substantive findings of the Final Decision, the proper forum for reviewing those findings is judicial review at the BC Supreme Court.
[17] Ultimately, CS’s evidence and arguments do not persuade me that a reasonable and informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude that I did not adjudicate CS’s complaint fairly, or would not adjudicate his reconsideration application fairly.
B. Do the Interests of Fairness and Justice Otherwise Require that the Final Decision be Reconsidered?
[18] 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 specific 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.
[19] The burden is on CS to show that the interests of fairness and justice demand such an order: Grant at para. 10.
[20] Aside from his arguments about bias, CS says the decision should be reconsidered because he “had new evidence that could not be given earlier”. CS does not specify what evidence he had that could not be given earlier, but I note in particular that he provides submissions about the nature and extent of his epilepsy, depression and anxiety which he did not raise at the hearing. He further submits that his “chronic diagnosed disabilities” caused the “behaviour issues” and “insubordination” that was discussed in the Final Decision.
[21] The information CS now provides about the nature and extent of his disabilities, and how he says they caused certain behaviours on his part, is evidence and argument that could have been, but was not, raised at the hearing. Although 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), the evidence CS seeks to introduce about his physical and mental health conditions now, was available at the time of the hearing. Similarly, the arguments that CS raises about how his physical and mental health conditions caused certain behaviour, could have been, but were not made at the time of the hearing. The Tribunal will not reconsider a decision to address arguments that could have been made in the first instance but were not: Ramadan v. Kwantlen Polytechnic University and another (No. 2) , 2018 BCHRT 56 at para. 13.
[22] In addition to the specific arguments about his disabilities, CS also provides lengthy arguments about why he says the Final Decision is “false” or “wrong” on certain points. CS’s arguments relate variously to:
- hours he says he worked as “Union days”;
- experiences he says had with WorkSafe BC which he says show he was a permittee;
- references to work on previous shows where he says his “start packs” indicated he was a permittee;
- allegations that Ms. Robinson lied at the hearing;
- Labour Relations Board proceedings involving him, the Respondent and counsel for the Respondent;
- allegations that Ms. Moon lied at the hearing;
- events from 2017, which pre-date the allegations of discrimination that were accepted by the Tribunal; and
- allegations that Ms. Bronswyk lied at the hearing.
[23] Some of CS’s above arguments are the same as, or variations of, arguments he made at the hearing. Others, appear to be new arguments CS is making in response to specific findings in the Final Decision. In support of these arguments, CS has appended almost 120 pages of documents to his submissions. CS does not clearly identify which appended documents (or parts of documents) relate to each of his arguments, and it appears that many of the appended documents were not before the Tribunal at the time of the hearing.
[24] CS’s above arguments about why the findings in the Final Decision are false, or why the decision is otherwise wrong focus on the substantive elements of the Final Decision. CS’s arguments make clear that he does not agree with the analysis or ultimate disposition. This is not a basis upon which the Tribunal may reconsider a decision. The Tribunal does not have authority to reconsider a decision based on an argument that the decision was substantively wrong or unreasonable: Fraser Health Authority v. Workers’ Compensation Appeal Tribunal , 2014 BCCA 499 [ Fraser Health ] at paras. 135 and 160. When a party simply disagrees with a Tribunal decision, the appropriate recourse is judicial review by the BC Supreme Court.
[25] To the extent that in the context of these arguments CS is trying to offer new evidence or arguments, again, I will not consider his arguments and evidence here. CS submits that the reason he could not give his new evidence earlier, was because he did not know that Ms. Moon and Ms. Robinson would be testifying at the hearing. He says his mental and physical health was negatively impacted by their testimony about him, and he was unable to “pivot and respond” to their evidence during the hearing. These arguments do not persuade me that CS could not have provided specific evidence or arguments at the time of the hearing, or that I should otherwise allow him to provide new evidence or arguments at this stage.
[26] Ms. Robinson was listed on the Respondent’s witness list at least as far back as August 8, 2022, and so, CS did have significant notice she could be participating at the hearing. Further, the main allegation of discrimination that was accepted by the Tribunal in relation to CS’s complaint was specifically about Ms. Moon’s conduct in relation to removing CS from the production in 2018, and in making comments about him afterwards. It is reasonably foreseeable that Ms. Moon would be called to testify at the hearing about the key complaint of discrimination, and I was surprised that neither party originally included her on their witness list. The reason Ms. Moon was eventually called as a witness after the start of the hearing, was because CS sought to enter documentary evidence on a key issue in the hearing from Mr. Seed, whom he had not called as a witness. As a matter of fairness, the Respondents asked that Mr. Seed be called as a witness so his evidence could be tested through cross-examination. The Respondents then sought to be able to call Ms. Moon as a matter of fairness, so that she could respond to Mr. Seed’s evidence on the key issues underlying the complaint. Notably, CS agreed that both witnesses should be called to the hearing so that the full extent of his complaint could be explored.
[27] That CS found the hearing difficult to process and manage as a self-represented person without legal training is understandable. Nevertheless, that a hearing is difficult to manage or emotionally difficult for a person, is not a sufficient basis on which to allow new evidence and arguments to be put forward after a final decision has been made. There must be finality to administrative proceedings. The just and timely resolution of complaints at the Tribunal is undermined where parties attempt to use the analysis set out in a final decision as a basis on which to make new arguments they could have made before the decision was rendered.
[28] Beyond the substantive elements of the decision, CS’s final argument has to do with alleged improper conduct by counsel for the Respondent in relation to disclosure issues and her conduct in proceedings outside of the Tribunal proceedings. I have considered these allegations in the context of hearing fairness.
[29] CS submits that counsel for the Respondent engaged in improper conduct as follows:
Separately, the respondent council Allison Tremblay has acted with improper conduct. She behaved improperly by not giving full disclosure, multiple topics were mentioned at cross examination, such as the topic relating to my education, in the decision by Member Beckett, including statements made that I lied in my application not allowing me to provide evidence to respond to these false claims. (Please see attached documents). Allison Tremblay has made conflicting statements in other platforms such as WSBC, PAC, WCAT, and LRB. (Please see attached documents).
[30] With respect to CS’s allegation about “conflicting statements”, the alleged conduct of counsel for the Respondent outside of this Tribunal proceeding (e.g. at the Labour Relations Board or at WorkSafe BC) is outside of the scope of this reconsideration application. Further, if CS was of the view that the information about counsel for the Respondent’s statements in other fora was material to his complaint at the Tribunal, the proper time to raise the issue was before or at the hearing.
[31] With respect to CS’s allegations about disclosure, I do not understand from CS’s submissions what disclosure CS says the Respondent did not provide, or what is meant by the allegation that counsel for the Respondent did not “allow” him to provide evidence to respond to the claims against him. The adjudicator is the only person who has the power to admit or refuse to admit documentary evidence into a Tribunal proceeding. Further, if CS had questions or concerns about disclosure of documents or additional evidence, the proper time for him to have raised those issues was at the hearing. Nothing in CS’s submissions or the appended documents persuades me that the hearing Final Decision should be reconsidered on the basis of unfair disclosure issues.
[32] In the present case, the hearing was CS’s opportunity to provide the Tribunal with any and all evidence in support of his complaint. The record before me at the hearing is what I based my decision on, and it would be procedurally unfair and undermine the hearing process to allow CS to adduce new evidence or make new arguments at this late stage. In all the circumstances, CS has not persuaded me that it would be in the interests of fairness or justice to reconsider the Final Decision.
IV CONCLUSION
[33] CS’s request to have his application for reconsideration decided by a different member is denied, and his reconsideration application is dismissed.
Shannon Beckett
Tribunal Member
[1] https://www.bchrt.bc.ca/tribunal/codes-of-conduct/members/ – as retrieved on October 3, 2024.