Female Softball Players (by Michael Sharpe) v. City of Victoria (No. 3), 2024 BCHRT 317
Date Issued: November 6, 2024
File(s): CS-000715
Indexed as: Female Softball Players (by Michael Sharpe) v. City of Victoria (No. 3), 2024 BCHRT 317
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:
Female Softball Players (by Michael Sharpe)
COMPLAINANT
AND:
City of Victoria
RESPONDENT
REASONS FOR DECISION
APPLICATION TO AMEND A COMPLAINT [RECONSIDERED]
Rule 24(4)(a) and (c), Rule 36
Tribunal Member: Robin Dean
Counsel for the Complainant: John S. Heaney
Counsel for the Respondent: Thea Hoogstraten
I INTRODUCTION
[1] On February 10, 2020, Michael Sharpe filed this human rights complaint on behalf of a class of people now defined as:
all female softball players registered with the Beacon Hill Baseball Softball Association who have played at Pemberton Park since the start of the 2019 season and/or currently play at Pemberton Park [thePlayers]
[2] In Female Softball Players (by Michael Sharpe) v. City of Victoria , 2024 BCHRT 307 [Original Decision], I denied the Players’ application to amend their complaint in part because I thought they had not filed a Form 3 specifying the amendments sought. After making that decision, it came to my attention that the Players had indeed filed a Form 3. It was not fair to make the Original Decision without considering all the information filed by the parties. To remedy this unfairness, I am reconsidering the Original Decision in light of the Form 3: Tribunal Rules of Practice and Procedure , Rule 36; Zutter v. British Columbia (Council of Human Rights) (1995), 1995 CanLII 1234 (BC CA), 122 DLR (4th) 665 (BCCA).
[3] The Form 3 contains a short description of the changes that the Players wish to make to the Complaint:
To amend style and bring allegations of continuing contravention into scope of the Complaint: “All female softball players registered with the Beacon Hill Baseball Softball Association who have played at Pemberton Park since the start of the 2016 season and/or currently play at Pemberton Park.
The Form 3 also attaches three pages of background information and argument.
[4] Even accepting that the Players’ submissions allege facts that, if proven, could be a contravention of the Code, it does not change my Original Decision not to allow the amendments. As I explained in my Original Decision, given the proximity to the hearing, permitting additional allegations back to 2016 and an expansion of the class by almost 100 people would not facilitate the just and timely resolution of the complaint. I deny the application to amend.
II RECONSIDERATION
[5] 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 at para. 10.
[6] The Tribunal may reconsider a decision where there has not been procedural fairness (Fraser Health Authority v. Workers’ Compensation Appeal Tribunal, 2014 BCCA 499 at paras. 160-161). Here, I did not consider all the Complainant’s submissions because of a Tribunal error. This is a clear case of an unfair process, which warrants reconsideration: see Seyed-Ali v. Central City Brewers and Distillers Ltd. (No. 2) , 2020 BCHRT 171.
[7] In this reconsideration, I have considered the Form 3 and its attachments. I also take into account all the evidence and argument that was before me when I made the Original Decision. For clarity, the following documents will inform my decision upon reconsideration (in the order in which they were filed):
a. Players’ Form 7.1 – General Application and attached argument;
b. Players’ Form 3 – Amendment Form and attachment;
c. Affidavit #2 of Michael Sharpe;
d. City’s Response to the Application to Amend;
e. Affidavit #1 of Zoe Jackson McGrath;
f. Players’ Reply;
I also consider the Players’ Response to the Application to Dismiss and the Affidavit #1 of Michael Sharpe, which were filed during the application to dismiss process and are referenced in the Players’ Reply submissions on the application to amend.
[8] Turning now to reconsider the amendment application, I reproduce the background section of my Original Decision with amendments as needed.
III Background
[9] The following background is largely taken from Vice Chair Cousineau’s Reasons for Decision denying the City’s application to dismiss, which are indexed at 2023 BCHRT 112:
[1] The Beacon Hill Baseball & Softball Association provides baseball and softball programs for children in the City of Victoria. It contracts with the City to use parks for its programming. In 2016, the Association decided to focus its softball program in Pemberton Park. It asked the City to approve and support work to change the baseball field at Pemberton Park into a softball field, and to upgrade the facilities. After phase one of those upgrades was completed, the process stalled at phase two. At this phase, the Association’s priority was to install a “skinned infield” and a batting cage. The City did not initially approve this work. For the 2019 and 2020 seasons, softball players played at Pemberton Park without a skinned infield and batting cage.
[2] All the Association’s softball players are girls. … Mr. Sharpe alleges that the City’s conduct in response to the Association’s requests related to Pemberton Park deprives the Players of opportunities to play softball at a competitive level and develop in a sport where Canadian women excel internationally. He says the conduct stands in contrast with the City’s approvals for upgrades and facilities used for baseball, a sport for which 96% of the Association’s players are boys. He alleges that the disparities, and the impacts on the Players, are discrimination based on sex, in violation of s. 8 of the Human Rights Code.
[3] The City denies discriminating. It says that it is the Association, and not the City, that has chosen to focus its softball program at Pemberton Park. It says there are other softball fields in the City that the Association could apply to use, and/or that the Association could run its softball program at the same park as its baseball program, as it had done before 2016. It says that its decisions about Pemberton Park were made according to its usual processes, accounting for all the diverse needs of the community.
[10] The Tribunal denied the City’s application to dismiss in August 2023.
[11] On September 11, 2024, the Players applied to amend the complaint. The hearing in this matter is scheduled for two weeks during January 2025.
IV Analysis and decision
[12] A complainant must apply to amend a complaint if the hearing date is less than four months from the date the amendment is filed: Tribunal’s Rules of Practice and Procedure[Rules], Rule 24(4)(c). The overarching purpose of the Rules is to facilitate the just and timely resolution of complaints. The requirement that a party must apply to amend their complaint in the circumstances set out under Rule 24(4), is generally aimed at ensuring fairness between the parties and within the Tribunal’s complaint process.
[13] The Players have applied to amend the complaint less than four months before the hearing is scheduled to commence. I must therefore decide whether it would facilitate the just and timely resolution of the complaint to permit the amendments. For the following reasons, I find that it would not.
[14] In Christensen v. Caretenders Financial Services Inc. , 2023 BCHRT 205, the Tribunal expanded on the general principle of fairness that underlies Rule 24 and explained how it applies in the context of an application to amend a complaint that was made less than four months before the start of the hearing:
Procedural fairness requires that a party affected by a decision must know the case against them and be provided a meaningful opportunity to respond to it. The closer to a hearing an application to amend is filed, the closer the parties are to having completed all the pre-hearing steps, such as disclosing all arguably relevant documents, contacting and arranging witnesses to give evidence about specific elements of the complaint, and preparing their written argument and questions for the other side’s witnesses.Where a hearing date is within four months and parties have completed much of their pre-hearing preparation, allowing an amendment has the potential of creating a moving target, and could result in a party not having the time or resources to meaningfully respond. This potential unfairness will be more acute where the amendment is more substantial and removed from the allegations in the original complaint. Similarly, the closer to the hearing date, the greater the potential for unfairness. (para. 12) [emphasis added]
[15] In Christensen, the Tribunal denied the complainant’s application. The Tribunal found that the amendment provided an alternative theory of the complaint and sought to add an allegation of retaliation less than three weeks before the hearing. The Tribunal said that if the application were granted, the hearing would likely have to been adjourned because the respondents would not have sufficient time to meaningfully consider and respond to the new allegations: at para. 21. Another relevant factor was the absence of an explanation by the complainant as to why she did not file her application sooner.
[16] Here, upon a global review of the submissions filed with the Tribunal, including the Form 3, I am satisfied that the Players allege facts from 2016 to 2018 that could, if proven, contravene the Code.
[17] However, even if the submissions are clear on what allegations the Players seek to add to the complaint, I deny the application to amend because of the effects that the amendment would likely have on the Tribunal’s complaint process. It is too late to add 95 class members and new allegations stretching back 8 years. As set out at para. 17 of the Original Decision:
… This is already a complex matter involving two weeks of hearing time. At this point, parties should be preparing for the hearing. The amendments would likely take away from this preparation. If the amendments are allowed, it would likely require an application for particulars as well as an amended response to the complaint. Further disclosure might be necessary. The amendment would likely result in the addition of witnesses to the witness list and would in all likelihood result in an application for an adjournment of the hearing. At the very least, it would likely require more hearing days, which could slow down the hearing process – and complaint resolution – significantly. While we do not know exactly what would occur as a result of the amendments, I am satisfied that some additional steps would have to be taken, putting the hearing dates in jeopardy.
[18] Finally, a note on remedy. The Players say that if the amendments are not allowed, it will deny justice to some 95 players from the 2016-2018 season and remove from proper scrutiny the conduct of the elected and non-elected officials of the City over three years. However, if the Players complaint is found to be justified, they will be entitled to remedies under the Code. The Players seek a declaration that the conduct complained of is discriminatory, a cease and desist order, and an order that key softball amenities at Pemberton Park be improved or installed. These remedies, if awarded, would benefit all softball players at Pemberton Park, not just the class members. While the Players do seek an individual remedy in the form of an injury to dignity award, the amount sought per player is modest. I am not persuaded that this is a reason to allow the amendments.
[19] For these reasons, I am satisfied that the amendments would not facilitate the just and timely resolution of this complaint, and I deny the amendment application.
V Conclusion
[20] I deny the amendment application.
Robin Dean
Tribunal Member