Patrick v. BC Emergency Health Services (No. 3), 2024 BCHRT 318
Date Issued: November 6, 2024
File(s): CS-000332
Indexed as: Patrick v. BC Emergency Health Services (No. 3), 2024 BCHRT 318
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:
Nancy-Ann Margaret Patrick
COMPLAINANT
AND:
B.C. Emergency Health Services
RESPONDENT
REASONS FOR DECISION
APPLICATION TO RECONSIDER A DECISION
RULE 36
APPLICATION FOR COSTS
SECTION 37(4)
Tribunal Member: Robin Dean
On her own behalf: Nancy-Ann Margaret Patrick
Counsel for the Respondent: Kristal Low
I INTRODUCTION
[1] Nancy-Ann Margaret Patrick alleges sex discrimination in her employment by B.C. Emergency Health Services [BCEHS]. Ms. Patrick is an advanced care paramedic. She alleges that she has been singled out and treated differently than her male co-workers. Ms. Patrick’s allegations principally relate to BCEHS’s response to complaints about her workplace conduct, how BCEHS conducted its investigations into her conduct and its imposition of discipline. Ms. Patrick says that she was treated differently by BCEHS because she is a woman.
[2] Ms. Patrick applies for reconsideration of the Tribunal’s April 19, 2024 decision dismissing certain aspects of her complaint [ATD Decision]. She files this application for reconsideration some five months late. She also applies for costs against BCEHS.
[3] In these reasons, I must decide whether accepting Ms. Patrick’s late-filed application would further the just and timely resolution of the complaint and the purposes of the Code. In terms of costs, I must decide whether BCEHS has engaged in improper conduct during the course of the complaint.
[4] I have not found it necessary to seek submissions from BCEHS.
[5] For the reasons set out below, I do not accept Ms. Patrick’s late-filed application for reconsideration. The ATD Decision will stand. Further, I do not decide the costs application against BCEHS at this juncture because it involves determinations of credibility that cannot be decided through written submissions alone.
II ANALYSIS AND DECISION
A. Whether to Accept Late-Filed Application
[6] Rule 36(2) of the Tribunal’s Rules of Practice and Procedure sets a time limit to file a reconsideration decision: A party must apply to reconsider a decision within 14 days of the date on which the circumstances that form the basis of the application came to the party’s attention or could have come to the party’s attention if the party exercised reasonable diligence, whichever is earlier.
[7] The Tribunal has authority to waive or vary time limits set out in the Rules, as it considers appropriate: Rule 2(2). In exercising this discretion, the Tribunal considers that the purpose of the Rules is to “facilitate the just and timely resolution of complaints”: Rule 1(1). In MacLennan v. BC Ministry of Public Safety and Solicitor General,2018 BCHRT 214, the Tribunal identified factors that may be relevant in exercising its discretion to waive or vary the time limit in Rule 36(2):
In the context of a late-filed application for reconsideration, the Tribunal must – as in all cases – consider all of the circumstances to exercise its discretion in a manner that best furthers the fair and timely resolution of the complaint and the purposes of the Code. Because the authority to reconsider a final decision is based on considerations of fairness and equity, these will be guiding principles. In my view, relevant factors may include: whether there are serious grounds for reconsideration, the length of the delay, the explanation for the delay, and prejudice to any person. These factors are non-exhaustive. These are not statutory criteria so, unlike a late-filed petition, a person seeking to file a late reconsideration application does not need to satisfy each of the criteria to persuade the Tribunal to waive the time limit. Rather, the Tribunal considers all of the circumstances to determine whether to consider the late-filed application. This is a highly discretionary exercise.
[8] Below I consider each of the factors listed in MacLennan to determine whether all of the circumstances suggest that I consider Ms. Patrick’s late-filed application for reconsideration.
1. Grounds for reconsideration
[9] Ms. Patrick has not presented serious grounds for reconsideration. Ms. Patrick says that I should reconsider the ATD Decision for the reasons set out in her costs application – i.e. that BCEHS engaged in improper conduct during the ATD process, including submitting “lies, mistruths and misleading evidence,” all of which she says were central to the ATD Decision.
[10] The Tribunal has a limited jurisdiction to reconsider its own decisions: Rule 36. 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.
[11] 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 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 thinks the Tribunal made an error in its decision, the appropriate recourse is judicial review by the BC Supreme Court.
[12] Here, Ms. Patrick says that there were “lies” in BCEHS’s affidavits. However, she says that the 15-page limit on responses to applications to dismiss prevented her from raising the credibility issues at the time. She says she focused on the merits of the discrimination allegation and hoped that the Tribunal would connect the dots in the conflicting evidence, which she says necessitated a hearing.
[13] In my view, Ms. Patrick raises issues that could have been raised in her response to the application to dismiss, but were not. While she says that the page limit was restrictive, Ms. Patrick does not explain why she did not apply to the Tribunal to extend the page limit in this case. Further, there is no page limit on affidavit evidence. Because these issues could have been raised in the first instance, it is unlikely that the reconsideration application would be successful, and, therefore, I find that Ms. Patrick has not raised serious grounds for reconsideration. This factor weighs against reconsideration.
2. The length of the delay
[14] The length of the delay – given the 14-day time limit to apply for reconsideration – is substantial. Ms. Patrick waited five months to file her application, and I find that this factor also weighs against reconsideration.
3. The explanation for the delay
[15] Ms. Patrick explains that her application for reconsideration is late because the ATD Decision sent her “into a tailspin of depression and despair.” She also explains that during the first half of 2024, she was under investigation at work, receiving a suspension from work on May 16, 2024. This, she says, is “right around the time frame in which I could put in for a review.” Ms. Patrick describes the stress of going through the Tribunal’s process, particularly where the Respondent is still her employer. She says, “I was under a significant amount of stress, distress, feeling also depressed and anxious that is still significant for me today.” She says that she was and still is under extreme duress.
[16] The significant distress experienced by Ms. Patrick at the time of the ATD Decision is supported by a letter from her counsellor, stating:
When she received her decision in April of 2024, however, her mental health and functional ability declined significantly and led to impairments in cognitive functioning, decision making, concentration and focus, motivation, and severely depressed mood. Ms. Patrick had intended to appeal this decision, but it is my assessment that the state of her mental health at the time prevented her from being able to meet the deadline for appeal.
While I appreciate the evidence of Ms. Patrick’s impairments, which weigh in favour of reconsideration, I also have to acknowledge that Ms. Patrick says her distress is ongoing. Because I do not have evidence regarding what has changed to allow her to file the reconsideration, it may be that Ms. Patrick could have filed the reconsideration earlier but did not. I therefore find that this factor is neutral.
4. Prejudice to BCEHS
[17] The hearing of this complaint is scheduled to begin on February 18, 2025. In regard to prejudice, while BCEHS has not been provided an opportunity to identify any prejudice, there is an inherent prejudice in allowing a late-filed reconsideration application so close to the hearing. Reconsidering the ATD Decision could sweep in a large number of allegations against BCEHS, which BCEHS thought for several months had been dismissed. Reconsidering the decision might impact the hearing schedule, for example, by requiring additional documentary evidence and witnesses. I find under these circumstances, this factor weighs against reconsideration.
5. Conclusion on Application for Reconsideration
[18] Considering all the circumstances here, I do not exercise my discretion to accept Ms. Patrick’s late-filed application. Ms. Patrick’s application does not present serious grounds for reconsideration, and the length of the delay – five months – is significant. Given that the hearing is just four months away, the prejudice to BCEHS could be substantial. I am sensitive to the reasons for the delay, which are supported by evidence from Ms. Patrick’s counsellor. However, the other factors weigh heavily against permitting the reconsideration. I deny the reconsideration application.
B. Application for costs
[19] Section 37(4) of the Code grants the Tribunal discretion to award costs against a party who has engaged in improper conduct during the complaint process. Improper conduct includes “any conduct which has a significant impact on the integrity of the Tribunal’s processes, including conduct which has a significant prejudicial impact on another party”: McLean v. British Columbia (Ministry of Public Safety and Solicitor General) (No. 3) , 2006 BCHRT 103 at para. 8. The purpose of a costs award is punitive: Terpsma v. Rimex Supply (No. 3), 2013 BCHRT 3 at para. 102. A costs award serves to not only sanction a party who engages in improper conduct, but to deter others from engaging in similar conduct.
[20] To succeed in her application for costs, Ms. Patrick must establish that BCEHS engaged in improper conduct during the course of the complaint and/or that it violated a rule, decision, order, or direction of the Tribunal: Tribunal’s Rules of Practice and Procedure, Rule 4(3).
[21] Ms. Patrick says that the affidavits submitted by BCEHS in the ATD process were full of lies and mistruths. She points to portions of the affidavits calling her “angry”, “yelling”, “unprofessional”, and “disrespectful” and disagrees with these characterizations. In her affidavit to support the costs application, she details parts of BCEHS’s affidavits which she says are untrue and provides her own version of events. Ms. Patrick says that these lies and mistruths were used to discredit her in front of the Tribunal. She says that the affiants colluded in doing so and deprived her of her day in court since the Tribunal dismissed some aspects of her complaint. I take Ms. Patrick’s argument to be that the ATD would have been decided differently if BCEHS’s affiants had not perjured themselves.
[22] Many complaints involve significant disputes with respect to the circumstances relating to the complaint. And there is a difference between perjury and honest disagreement arising from differences in perception. These are matters that the Tribunal must sort through in order to make findings of fact: Stein v. Keebler and another (No. 3), 2015 BCHRT 193 at para. 13.
[23] Much of Ms. Patrick’s arguments seem to centre around differences in opinion and perspective. Some of her arguments point out how she wishes things had been handled differently at the time of the disciplinary actions taken by BCEHS. To the extent that any of these disputes are central to the ultimate issues in the case, Ms. Patrick will have an opportunity to test BCEHS’s evidence through cross-examination and will be able to put forward her own version of events through her witnesses. In other words, Ms. Patrick will have her day in court.
[24] If Ms. Patrick still believes at the end of the hearing that BCEHS has engaged in improper conduct, including during the ATD process, she can apply for costs then. It is inappropriate for me, at this juncture, to determine credibility without hearing the evidence from both parties.
III Conclusion
[25] I deny the application for reconsideration. The application for costs will be deferred to the end of the hearing process.
Robin Dean
Tribunal Member