Prosko v. District of Taylor (No. 3), 2024 BCHRT 319
Date Issued: November 13, 2024
File: 18287/CS-001020
Indexed as: Prosko v. District of Taylor (No. 3), 2024 BCHRT 319
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:
Laura Prosko
COMPLAINANT
AND:
District of Taylor
RESPONDENT
REASONS FOR DECISION
APPLICATION TO RECONSIDER A DECISION
RULE 36
Tribunal Member: Kathleen Smith
For the Complainant: Laura Prosko
Counsel for the Respondent: James Yardley
I INTRODUCTION
[1] Ms. Prosko filed a human rights complaint against her former employer, the District of Taylor, and one of her former co-workers. She alleged discrimination in employment based on sex contrary to s. 13 of the Human Rights Code. The Tribunal dismissed all but one of the original allegations in Prosko v. The District of Taylor and another (No. 1) , 2020 BCHRT 152. The Tribunal heard the remaining allegation over three days and issued a decision on July 17, 2024: Prosko v. District of Taylor (No. 2) , 2024 BCHRT 207 [Decision]. Ms. Prosko did not prove discrimination, and the Tribunal dismissed the complaint. The Tribunal also ordered Ms. Prosko to pay $500 in costs to the District for her improper conduct during the course of the complaint.
[2] Ms. Prosko now applies for reconsideration of the Decision. The District opposes the application. I determined that it was not necessary to seek submissions from the District.
[3] I deny the application and do not reconsider the Decision. This means that the Decision stands. Below are my reasons.
II BACKGROUND
[4] The background to the complaint is set out at paragraphs 16 to 53 of the Decision. I will not repeat it here.
III ANALYSIS AND DECISION
[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 [Grant] at para. 10.
[6] The party making the application bears the burden to show that reconsideration is in the interests of fairness and justice: Grantat para. 10; Rule 36(1).
[7] Reconsideration is not an opportunity for a party to enter new facts that were available in the first instance, make arguments that could have been made in the first instance, or to reargue issues that were already argued in an attempt to achieve a different result: Ramadan v. Kwantlen Polytechnic University and another (No. 2), 2018 BCHRT 56 at para. 13.
[8] Ms. Prosko applies for reconsideration on two bases. I will review each in turn.
A. Question not answered in cross-examination
[9] During her cross-examination of Tyla Pennell, Ms. Prosko asked a question to the effect of “why did you frame me.” As set out in the Decision at paragraph 111, the Tribunal advised Ms. Prosko at the time that her line of questioning was inappropriate. Ms. Pennell did not answer the question.
[10] Ms. Prosko now argues that Ms. Pennell was required to answer the question, and the Tribunal ought to have directed her to do so. As I understand Ms. Prosko, she asserts that she was deprived of procedural fairness when the Tribunal did not require the witness to answer her question. On this basis, she asks the Tribunal to reconsider the Decision.
[11] To the best of my understanding, Ms. Prosko seeks the opportunity to have Ms. Pennell answer the question. In support of this part of her application, Ms. Prosko relies on the information guide published on the Tribunal’s website that states the Tribunal can reconsider a decision to deal with a question the Tribunal should have dealt with but didn’t. [Information Guide GA15: Reconsider a decision].
[12] I deny this part of the application for the following reasons.
[13] The issue to be addressed at the hearing was a narrow and specific one: whether the District’s response to Ms. Prosko’s report of workplace sexual harassment amounted to discrimination based on sex contrary to s. 13 of the Code.”: Prosko No. 1at paragraphs 71 to 72, and Decisionat paragraph 3.
[14] The Tribunal made a ruling about the relevance and appropriateness of the question. The question “why did you frame me” was not relevant to a matter that needed to be proved and decided, in addition, it was argumentative. Ms. Prosko’s ongoing claims of collusion, fabrication, and scheming relate to the termination of her employment, which was not an issue before the Tribunal at the hearing. Prior to asking this question, the Tribunal had reminded Ms. Prosko several times about the scope of her complaint, including during the cross-examination of Ms. Pennell. Ms. Prosko’s ongoing failure to adhere to the scope of the complaint was an issue raised in the costs application and was addressed by the Tribunal in paragraphs 108 to 110 of the Decision .
[15] In the circumstances of this complaint and hearing, Ms. Prosko has not persuaded me that the failure to require a witness to answer an irrelevant and argumentative question amounts to procedural unfairness. Moreover, I am not satisfied that there was a question or issue that the Tribunal should have dealt with but did not.
B. The Costs Order
[16] In the Decision, the Tribunal found that Ms. Prosko had engaged in improper conduct during the course of the complaint. The details of the conduct and the Tribunal’s findings are set out at paragraphs 94 to 114 of the Decision. I will not repeat them here other than to state that the Tribunal concluded $500 was an appropriate amount in all the circumstances. The Tribunal’s analysis about quantum is set out at paragraphs 115 to 122 of the Decision.
[17] Ms. Prosko asks the Tribunal to reconsider the decision to order $500 in costs against her. As I understand her argument, she says that the Tribunal failed to consider her evidence regarding her ability to pay and instead relied on the perjured evidence of the District’s witnesses.
[18] In this part of the application, Ms. Prosko repeats arguments that she made in her response to the costs application, i.e., that she lost all of her savings when she lost her employment at the District, that she uses the food bank, and that she is a single parent. The Tribunal considered all of those factors when reaching its decision on the quantum: Decision at para. 120. The Tribunal also found no evidence to support allegations of perjury: Decisionat para. 113.
[19] An application for reconsideration is not an opportunity to repeat arguments that have already been considered and decided. It appears that Ms. Prosko disagrees with the Decision. When a party disagrees with a decision of the Tribunal because they believe the Tribunal was wrong, the appropriate recourse is to seek judicial review in the BC Supreme Court.
[20] For all of the above reasons, I am not satisfied that Ms. Prosko has met her burden of showing that it would be in the interests of fairness and justice to reconsider the Decision.
IV Conclusion
[21] I deny the application for reconsideration.
Kathleen Smith
Tribunal Member