Wang v. Comox Valley Regional District, 2024 BCHRT 320
Date Issued: November 13, 2024
File: CS-001340
Indexed as: Wang v. Comox Valley Regional District, 2024 BCHRT 320
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:
Zhen Wang
COMPLAINANT
AND:
Comox Valley Regional District
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Andrew Robb
On his own behalf: Zhen Wang
Counsel for the Respondent: Carolyn MacEachern
I INTRODUCTION
[1] In May 2020, Zhen Wang filed a complaint against Comox Valley Regional District [CVRD] alleging discrimination based on race, contrary to s. 8 of the Human Rights Code.
[2] Mr. Wang is an architect. He says CVRD staff questioned his professional qualifications, treated him poorly, and required unnecessary building inspections in a construction project he was working on, all because he is Asian. He says CVRD’s actions delayed the project and created unnecessary expenses for him and his client. He says this put his income at risk, damaged his professional reputation, and negatively affected his health.
[3] CVRD denies discriminating. It says its staff did not question Mr. Wang’s qualifications or otherwise treat him poorly, and it followed its standard practices for residential construction projects in the project he was working on. It applies to dismiss Mr. Wang’s complaint under s. 27(1)(c) of the Human Rights Code, because Mr. Wang has no reasonable prospect of proving he experienced any adverse impacts or differential treatment by CVRD. Even if Mr. Wang did experience any adverse impacts in the services he received from CVRD, CVRD says he has no reasonable prospect of proving its conduct was connected to his race.
[4] After CVRD filed its reply submission, in the application to dismiss process, Mr. Wang filed an application to file a further submission. For the reasons set out below:
a. I find that fairness requires me to consider Mr. Wang’s further submission, and I have considered it in making my decision about the application to dismiss.
b. I allow the application to dismiss, and I dismiss the complaint. I find Mr. Wang has no reasonable prospect of proving a connection between his race and CVRD’s conduct.
[5] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
[6] I apologise to the parties for the Tribunal’s delay in making this decision.
II BACKGROUND
[7] CVRD is a regional district government. It offers building services through its Planning and Development Services Department, including issuing building permits for the construction of residential and commercial buildings, and conducting building inspections.
[8] Mr. Wang was hired by the owner of a property in CVRD [the Owner] to design and oversee the construction of two residential buildings on the property: a single-family dwelling and a carriage house [the Project].
A. Regulation of construction in CVRD
[9] The BC Building Code sets minimum standards for new construction in the province. The Local Government Act authorizes regional districts to regulate the construction of buildings. Pursuant to this statutory authority, CVRD enacted the Comox Valley Regional District Bylaw No. 142, 2011 [the Bylaw].
[10] Under the Bylaw, a property owner must apply for a building permit prior to starting construction of a residential building. The Bylaw authorises CVRD officials to conduct building inspections, in some circumstances, to determine whether all applicable requirements are met. CVRD says it provides a list of required inspections when it issues a building permit.
[11] CVRD says that under the Building Code and the Bylaw, some construction projects must be supervised by a co-ordinating registered professional, either an architect or an engineer. The co-ordinating registered professional must complete “letters of assurance”, setting out their responsibilities in relation to the project, and must carry out “field reviews” of the work at building sites, to ensure it complies with relevant plans and supporting documents. But CVRD says the requirement for a co-ordinating registered professional does not apply to all types of construction, and the involvement of a co-ordinating registered professional does not always replace inspections required by CVRD. It also says registered professionals are required to provide documentation of field reviews to CVRD on request.
[12] According to CVRD, only complex construction projects must have a co-ordinating registered professional, not single-family dwellings. CVRD says the Project did not require a co-ordinating registered professional. It accepted Mr. Wang’s letters of assurance for the Project, but it says this did not mean the Project was exempt from CVRD’s normal inspection procedures for the construction of single-family dwellings.
[13] CVRD says that even when a registered professional is involved in a project, its standard practice is to request copies of field reviews during construction, to ensure that construction complies with the Building Code and the Bylaw, and to conduct some building inspections itself. It says these inspections are scheduled so that CVRD building officials can inspect each aspect of construction before it is covered up, and it is the responsibility of the property-owner or their representative to request inspections at the appropriate times.
[14] Mr. Wang disputes CVRD’s interpretation of the Bylaw and the Building Code. He says that when there is a co-ordinating registered professional involved in a project, CVRD is required to rely on the professional’s supervision of the project, and CVRD is not authorised to conduct inspections or require field reviews.
B. The Project
[15] Mr. Wang says he and the Owner went to CVRD’s office on March 13, 2019, [1] and spoke to DM, CVRD’s manager of building services. Mr. Wang alleges that when he identified himself as the architect for the Project, DM asked if he was a real architect. Mr. Wang says this shocked him and the Owner. Mr. Wang did not provide any further details about his visit to CVRD’s office that day. DM says he does not recall meeting Mr. Wang before permits for the Project were issued, in June 2019, and he never had any reason to question Mr. Wang’s qualifications as an architect.
[16] In April 2019, the Owner applied for building permits for the Project. On June 11, 2019, CVRD issued two building permits, one for the single-family dwelling and one for the carriage house. The permits listed Mr. Wang as the co-ordinating registered professional and architect for the Project. CVRD says the permits included a list of required inspections, including a final inspection by CVRD, before it could issue an occupancy permit. There does not appear to be any dispute that Mr. Wang had copies of the building permits, including the list of required inspections.
[17] CVRD provided inspection reports showing it carried out at least eight inspections of the Project between July 8, 2019, and December 19, 2019. In the materials before me, Mr. Wang does not take issue with those inspections.
[18] In April 2020, a CVRD inspector, JF, drove past the Project. He says he noticed drywallers working on the Project site and he became concerned that inspections had been missed.
[19] JF says that when he got back to his office, he looked at CVRD’s files for the Project and noted that there had not been any recent building inspections. He says he notified DM about his concerns and DM directed him to contact the Owner about the missed inspections.
[20] On April 27, 2020, JF emailed the Owner. His email said some required inspections and field reviews had been missed, and he asked for an update on the status of the Project. The Owner’s response said an engineer and Mr. Wang had done the inspections, and the Owner thought CVRD did not need records of the inspections at that time.
[21] Mr. Wang says that under the Building Code, CVRD should have contacted him about the project, as the co-ordinating registered professional, instead of contacting the Owner. JF says his normal practice is not to contact the professional working on a project, but to contact the contractor listed on the permits. But in this case, he says the contractor on the Project had already changed twice and he had not yet communicated with the new contractor, so he decided to contact the Owner directly.
[22] On April 28, 2020, the Owner forwarded JF’s email to Mr. Wang, and Mr. Wang responded directly to JF. Mr. Wang’s email said he would provide the required field reviews and letters of assurance “when the buildings are ready”. In response, JF said work on the Project would have to stop until the required field reviews were submitted. Mr. Wang says there was no legitimate reason to stop work on the Project.
[23] On April 29, 2020, JF and another CVRD building official, GG, visited the Project site and spoke to the contractor about CVRD’s inspection requirements. After their site visit, DM spoke to the Owner and later emailed the Owner and Mr. Wang with a list of items that needed to be addressed. The list included requirements for field reviews to be submitted, and for some aspects of construction to be uncovered and inspected. Mr. Wang says this was unnecessary and CVRD did not have authority to request the field reviews.
[24] On the same day, April 29, 2020, Mr. Wang notified CVRD that he had concerns about how CVRD was handling the Project. He said he was not required to provide field reviews to CVRD, under the Bylaw, because he is a registered professional. Mr. Wang says he initially contacted SS, CVRD’s general manager of planning and development services, about his concerns, but SS did not return his calls until he contacted SS’s supervisor, CVRD’s general manager of corporate services. SS says he received one voicemail from Mr. Wang, and he intended to return Mr. Wang’s call, but the general manager of corporate services told him about Mr. Wang’s concerns before he had a chance to call Mr. Wang himself.
[25] On April 30, 2020, Mr. Wang says DM called the Owner and questioned the design of the stairs in the carriage house. Mr. Wang says his design of the stairs was consistent with the Building Code, and DM should not have questioned it. DM denies questioning the design of the stairs. He says he told the Owner that CVRD inspectors would inspect the stairs, but this was because of concerns about how the stairs were built, not how they were designed. He says the Building Code had recently changed, in relation to stairs, and CVRD found some builders were not aware of the changes, so it inspected the stairs in many building projects around that time.
[26] On May 1, 2020, SS spoke to Mr. Wang about CVRD’s requests for field reviews and inspections. SS says he did not understand why Mr. Wang was concerned about these requirements, because the same requirements applied to all residential construction projects in CVRD. Mr. Wang says that during this conversation, SS said, “I really want to know who is helping you.” He says this insinuated that he was “not sophisticated enough to deal with the issues”. SS denies saying this. He says he had no reason to question Mr. Wang’s qualifications. He says he might have talked about other professionals and tradespersons, such as engineers and plumbers, who were assisting with the Project. DM and SS say DM was in SS’s office during this call. DM denies that SS said, “I really want to know who is helping you.”
[27] Also on May 1, 2020, the Owner emailed DM and asked if he could keep items of furniture in a storage locker in the carriage house, even though construction of the carriage house was not yet complete. DM said this was fine. Mr. Wang says DM should not have allowed this without consulting him, as the co-ordinating registered professional. He says DM’s decision to allow the Owner to store furniture in the carriage house, before an occupancy permit was issued, was contrary to the Building Code. DM says he allowed it, at the request of the Owner, because he understood the Owner had been paying to store the furniture, and he wanted to help the Owner to avoid this cost.
[28] On May 7, 2020, JF and GG visited the Project site again, to carry out inspections. Mr. Wang was there, but JF and GG did not speak to him. Mr. Wang says they made negative comments about him to people working there. He does not describe these comments. JF and GG deny making any negative comments about Mr. Wang or the Project.
[29] Mr. Wang says CVRD building inspectors made negative and misleading comments about him on an ongoing basis, during the Project, and these comments damaged his reputation and caused him to lose future clients. But he does not give any examples of when this happened, what the alleged comments were, or who made the negative comments, except his allegation about JF and GG on May 7, 2020.
[30] On May 14, 2020, SS and DM spoke to the Owner by phone about the Project. In an email on the same date, from DM to the Owner and Mr. Wang, DM listed the items that still needed to be addressed, including a requirement for field reviews and further inspections. The Owner replied on May 26, 2020, and said he was working to resolve the outstanding issues.
[31] On June 8, 2020, the Owner emailed DM, attaching field reviews and other documents that DM had requested.
[32] On June 15, 2020, when the carriage house was close to completion, SS emailed the Owner and Mr. Wang and said it was still necessary for CVRD to do a final inspection, before an occupancy permit could be issued. In Mr. Wang’s reply he said a final inspection by CVRD was not necessary because the Building Code and the Bylaw allow registered professionals to do such inspections. He complained that CVRD had never respected his professional opinion, and he notified SS that he had filed this human rights complaint.
[33] In response, SS suggested a meeting with CVRD’s senior administrators. On June 25, 2020, Mr. Wang and the Owner met with CVRD’s chief administrative officer, RD. In his response to the application to dismiss, Mr. Wang says that during this meeting, RD asked him to provide a reference from elsewhere in BC to prove he had designed similar projects before. Mr. Wang says this was humiliating and racist. RD denies asking for a reference regarding Mr. Wang’s qualifications as an architect. He says Mr. Wang told him that other jurisdictions have different inspection practices when letters of assurance are submitted by registered professionals, so he asked for examples of other projects Mr. Wang worked on, so that he could investigate whether to consider changes to CVRD’s practices.
[34] Mr. Wang says RD only stopped asking for a reference when a reporter contacted him about Mr. Wang’s concerns. RD acknowledges that a reporter asked him about Mr. Wang’s concerns in July 2020, but he says this had no influence on how he or CVRD responded to those concerns.
[35] On July 8, 2020, RD sent the Owner and Mr. Wang a letter confirming that a final inspection of the carriage house was required. The final inspection took place by video conference on July 15, 2020, and CVRD issued an occupancy permit for the carriage house on the same day. CVRD says it issued an occupancy permit for the main residence on November 26, 2020.
III DECISION
A. Preliminary issue: Mr. Wang’s application to file a further submission
[36] After CVRD filed its reply to Mr. Wang’s response to the application to dismiss, Mr. Wang filed an application to file a further submission.
[37] In general, the Tribunal’s application process involves three submissions: an application, a response, and a reply: Rule 28(2) of the Tribunal’s Rules of Practice and Procedure. The Tribunal may accept further submissions where fairness requires that a party be given an opportunity to respond to new issues raised in the reply submission: Rule 28(5); Kruger v. Xerox Canada Ltd. (No. 2),2005 BCHRT 24 at para. 17; Gichuru v. The Law Society of British Columbia (No. 2) , 2006 BCHRT 201 at para. 21.
[38] Mr. Wang’s application to file a further submission does not explicitly identify any new issue raised in CVRD’s reply, nor does he explain why fairness requires an opportunity for him to make a further submission. CVRD’s reply submission included new evidence from SD and DM, in response to new allegations in Mr. Wang’s response to the application to dismiss, which were not in his original complaint. Mr. Wang’s further submission replies to some of this new evidence.
[39] The further submission also includes new information explaining Mr. Wang’s failure to raise his concerns with CVRD sooner, an issue that arose in CVRD’s reply submission. I acknowledge that CVRD also referred to this issue in its application to dismiss, part-way through an extensive description of background facts. But it would be understandable if Mr. Wang, as a self-represented party, did not initially interpret this as a part of CVRD’s argument that he should respond to.
[40] In these circumstances, I am satisfied that fairness requires me to consider Mr. Wang’s further submission. I have considered the further submission, in reaching my decision about the application to dismiss.
B. Section 27(1)(c) of the Human Rights Code
[41] CVRD applies to dismiss Mr. Wang’s complaint on the basis that it has no reasonable prospect of success: Human Rights Code,s. 27(1)(c). 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.
[42] 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.
[43] It is the responsibility of the parties to submit information they believe is necessary to enable the Tribunal to make a decision under s. 27(1).The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at a hearing: University of British Columbia v. Chan, 2013 BCSC 942at para. 77.
[44] 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 the evidence takes their complaint out of the “realm of conjecture”: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.
[45] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia, 2008 BCSC 1026 at para. 34. However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City), 2017 BCCA 242 at para 67.
[46] To prove his complaint at a hearing, Mr. Wang will have to prove he has a characteristic protected by the Human Rights Code, he was adversely impacted in the services he received from CVRD, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33.
[47] There is no dispute that Mr. Wang is Asian, and he is protected from racial discrimination under the Human Rights Code. CVRD does not deny that it delivers services to the public and has obligations to Mr. Wang under s. 8 of the Code. But it says he has no reasonable prospect of proving it treated him adversely, or that there is a connection between his race and CVRD’s conduct.
C. Is there no reasonable prospect Mr. Wang will prove he experienced an adverse impact in which his race was a factor?
[48] Although CVRD bears the burden in this application, Mr. Wang must show that the connection between his race and any adverse impacts he experienced is based on more than speculation or conjecture.
[49] When determining the likelihood of Mr. Wang proving his case at a hearing, I consider that complainants often face difficulty in proving discrimination based on race, because people seldom express biases, prejudices, and unconscious beliefs openly: Ochebiri v. Corrpro Canada, 2019 BCHRT 99at para. 66; Batson-Dottin v. Forensic Psychiatric Hospital (No. 2), 2018 BCHRT 246at para. 4. Typically, whether race is a factor in the adverse impact a complainant experienced “is gleaned from reasonable inferences drawn from all of the circumstances”: Ochebiriat para. 66. Despite the subtlety of racial prejudice, any inference of discrimination must be rooted in the evidence of a particular case: Campbell v. Vancouver Police Board (No. 4) , 2019 BCHRT 275 at para. 104.
[50] As I understand his argument, Mr. Wang says CVRD discriminated against him in the following ways:
a. Throughout the Project, CVRD repeatedly contacted the Owner about the Project, and ignored Mr. Wang, contrary to the Building Code;
b. CVRD acted outside the scope of its authority under the Building Code and the Bylaw, in the inspection and permitting procedures it applied to the Project;
c. JF told Mr. Wang and the Owner that work on the Project had to stop, for no good reason, in April 2020;
d. CVRD failed to reduce the Owner’s building permit fee, to reflect the fact that a registered professional was involved in the Project, as required by the Local Government Act;
e. CVRD staff made negative comments about Mr. Wang throughout the Project;
f. DM allowed the Owner to store furniture in the carriage house before an occupancy permit was issued, without consulting Mr. Wang, in May 2020;
g. CVRD questioned Mr. Wang’s design of the stairs in the carriage house, in April 2020;
h. SS insinuated Mr. Wang was not capable of addressing issues in the Project, when he said, “I really want to know who is helping you,” in May 2020;
i. SD requested a reference to prove Mr. Wang had relevant experience, in June 2020; and
j. DM questioned whether Mr. Wang was a real architect, in March 2019.
[51] In the following sections of this decision, I will review each allegation individually, in terms of whether Mr. Wang has a reasonable prospect of proving adverse treatment by CVRD, in which his race was a factor. I will then consider his allegations cumulatively, to address whether he has brought the connection between his race and CVRD’s conduct out of the “realm of conjecture”.
a. CVRD contacted the Owner about the Project, and ignored Mr. Wang
[52] Mr. Wang says the Building Code required CVRD to communicate directly with him about the Project, instead of the Owner, because he was the co-ordinating registered professional in charge of the Project. He says CVRD repeatedly broke this rule, and ignored him, because he is Asian.
[53] The email records provided by CVRD appear to confirm that CVRD sometimes communicated with the Owner directly. They show that when JF emailed the Owner and requested field reviews, on April 28, 2020, the Owner asked JF to speak to Mr. Wang and the Project engineer. After that, it appears that most CVRD emails were sent to both the Owner and Mr. Wang, and the Owner was sometimes the one to respond.
[54] I make no finding about whether this conduct by CVRD violated the Building Code. The issue I must decide is not whether CVRD complied with the Building Code or the Bylaw, but whether Mr. Wang has no reasonable prospect of proving a connection between CVRD’s conduct and his race.
[55] Even if CVRD’s communications with the Owner were inconsistent with the Building Code, on the materials before me, I am not satisfied that Mr. Wang has taken the allegation that this was connected to his race out of the realm of conjecture. The evidence suggests CVRD staff normally communicated with contractors and owners of properties under construction, rather than registered professionals. Mr. Wang says this was against the Building Code, but he does not suggest it is untrue, and he does not refer to any evidence that CVRD communicated directly with registered professionals in other construction projects.
[56] The email records provided by CVRD show that in some cases the Owner encouraged CVRD to contact him directly, by sending questions to CVRD by email, and responding directly to CVRD’s emails. I find CVRD is reasonably certain to prove it communicated with the Owner, instead of, or in addition to, Mr. Wang, for non-discriminatory reasons.
[57] I find Mr. Wang has no reasonable prospect of proving his allegation that CVRD staff ignored him. The evidence before me shows DM and SS copied Mr. Wang on their emails to the Owner, including emails attaching inspection results. Mr. Wang’s complaint says CVRD ignored his requests for confirmation of inspection results in June 2019, but it appears the building permits for the Project were not issued until June 11, 2019, and there is no evidence that any inspections took place before July 2019, so it is unclear what this allegation refers to. Mr. Wang does not give any more information about this allegation, or any specific examples of his requests for confirmation of inspection results.
[58] For these reasons I find there is no reasonable prospect that the Tribunal could find, after a hearing, that CVRD ignored Mr. Wang, or that CVRD staff communicated with the Owner, instead of Mr. Wang, because of Mr. Wang’s race.
b. CVRD’s inspection and permitting procedures
[59] Mr. Wang says CVRD acted outside the scope of its authority under the Building Code and the Bylaw, in the inspection and permitting procedures it applied to the Project. He says CVRD applied procedures that should not apply when an architect is involved as the co-ordinating registered professional for a project. CVRD says the scale of the Project did not require an architect or a co-ordinating registered professional, under the Bylaw, and CVRD followed the same inspection and permitting procedures that it would have applied if there had not been a registered professional involved.
[60] Again, I make no finding about whether CVRD’s conduct complied with the Building Code or the Bylaw. CVRD has satisfied me that it is reasonably certain to prove it treated Mr. Wang no differently than other registered professionals.
[61] Mr. Wang denies that CRVD treated him in accordance with its standard practices. He says CVRD treated him differently because he is Asian. But he does not give examples of CVRD treating any other architect or professional differently than it treated him. He says there is no evidence that CVRD subjected any white professionals to the same “standard practices” as him, but this is not correct. CVRD provided sworn statements from a building contractor and an architect who have experience working on projects in CVRD. The architect says she been the co-ordinating registered professional on construction projects in CVRD. Both the architect and the contractor describe their experience with CVRD’s inspection and permitting procedures, and their descriptions appear to be consistent with the procedures CVRD followed in relation to the Project. In particular, the architect says CVRD required field reviews and inspections by CVRD staff, in projects where she was the co-ordinating registered professional.
[62] Mr. Wang says the contractor who provided evidence for CVRD previously worked on the Project, until Mr. Wang got him fired for incompetence, so he is biased against Mr. Wang. I consider that the evidence of both the contractor and the architect is untested. But Mr. Wang does not dispute the architect’s evidence, and he does not provide any evidence that CVRD treated him differently than other architects, or that it treated the Project differently from other projects involving architects.
[63] I find Mr. Wang has no reasonable prospect of proving CVRD treated him or the Project differently than it treated other architects, or other projects, in CVRD’s inspection and permitting procedures. On this basis I find he has no reasonable prospect of proving a connection between his race and the procedures CVRD applied to the Project.
c. JF said work on the Project must stop
[64] The email records before me show that in April 2020, JF told Mr. Wang and the Owner to stop work on the Project until field reviews were provided. There is also evidence that CVRD considered issuing a formal stop work order, but did not do so. Mr. Wang says there was no valid reason for CVRD to request, or order, a stop to construction on the Project.
[65] This allegation appears to be related to CVRD’s application of its inspection and permitting procedures. The evidence before me suggests CVRD required documentation of field reviews, even when there was an architect involved as the co-ordinating registered professional on a residential construction project. Once again, I make no finding about whether this complied with the Building Code or the Bylaw. But even if it did not, this does not necessarily mean it was connected to Mr. Wang’s race, or that CVRD treated Mr. Wang differently than non-racialised architects.
[66] Again, I consider the evidence of the architect who made a sworn statement on behalf of CVRD. She says CVRD required building inspections and collected field reviews throughout the projects she worked on. Her evidence is untested, but Mr. Wang does not deny it, and he does not point to any evidence that could suggest other projects were not subject to the same rules and requirements that CVRD applied to the Project.
[67] On the evidence before me, I am satisfied that CVRD is reasonably certain to prove JF treated Mr. Wang no differently than JF would have treated any other architect, in telling Mr. Wang and the Owner to stop work on the Project. I find Mr. Wang has no reasonable prospect of proving this was connected to his race.
d. The Owner’s building permit fee
[68] Mr. Wang says CVRD failed to reduce the Owner’s building permit fee, to reflect the fact that a registered professional was involved in the Project, and this violated the Local Government Act. He made this allegation for the first time in his response to the application to dismiss. CVRD did not object to this, and responded to the allegation in its reply submission.
[69] CVRD denies that it failed to reduce the permit fee. Its reply submission includes invoices showing it reduced the building permit fee it charged to the Owner because a registered professional was involved in the Project. Mr. Wang does not address this allegation in his further submission in response to CVRD’s reply submission.
[70] Based on the invoices provided by CVRD, and without any evidence from the Owner, I find Mr. Wang has no reasonable prospect of proving CVRD failed to reduce the permit fee it charged to the Owner.
e. Negative comments about Mr. Wang
[71] Mr. Wang says CVRD staff made negative or derogatory comments about him at various times during the Project. He does not provide any details of this allegation, such as who made the comments, or when, or what they said, with one exception: he says JF and SS made negative comments about him when they visited the Project site on May 7, 2020. CVRD denies this. Its evidence includes sworn statements by JF and SS in which they deny making any negative comments.
[72] Mr. Wang does not describe the comments allegedly made by JF and SS on May 7, 2020, or any other negative comments about him by CVRD staff. Nor does he explain how his race was a factor in these alleged comments.
[73] Mr. Wang does not claim to have heard JF, or SS, or any other CVRD staff make negative comments about him, and he does not explain how he learned about the alleged comments or what the comments were. There is no evidence before me that anyone heard JF, or SS, make negative comments about Mr. Wang, nor is there evidence about the content of the alleged comments.
[74] I can only consider the evidence before me, and cannot speculate about other evidence that may support this allegation. Without more information about the allegation, I find Mr. Wang has no reasonable prospect of proving JF and SS, or any other CVRD staff, made negative or derogatory comments about him.
f. DM allowed the Owner to store furniture in the carriage house
[75] There is no dispute that DM allowed the Owner to store furniture in the carriage house in May 2020, before an occupancy permit was issued. DM says he did this as a favour to the Owner, who would otherwise have had to pay for storage.
[76] Mr. Wang says CVRD was obligated to consult him about this, under the Building Code. He says it may have compromised his client’s protection under Mr. Wang’s insurance on the Project. But he does not explain how DM’s failure to consult him was connected to his race.
[77] The evidence before me shows that the Owner requested DM’s permission to store furniture in the carriage house. There is no evidence that DM allowed the Owner to do this for any reason other than to help the Owner save on storage costs. Mr. Wang has not brought the connection between his race and this decision by DM out of the realm of conjecture. I find he has no reasonable prospect of proving this connection.
g. DM’s concern about the stairs
[78] Mr. Wang says that on April 30, 2020, in a phone call with the Owner, DM said Mr. Wang’s stair design did not comply with the Building Code. He made this allegation for the first time in his response to the application to dismiss. CVRD did not object to this, and responded to the allegation in its reply submission.
[79] DM denies questioning the design of the stairs. He says he notified the Owner that CVRD planned to inspect the stairs, but this was to ensure the construction of the stairs was compliant. He says he had no issues with the design.
[80] Other than Mr. Wang’s report of what DM said to the Owner, there is no evidence before me that DM questioned the design of the stairs. Mr. Wang was apparently not on the call between DM and the Owner, and there is no evidence from the Owner. The only direct evidence before me regarding the call is from DM. Without any evidence from the Owner about what DM said, and considering DM’s sworn statement explaining why CVRD planned to inspect the construction of the stairs, I find Mr. Wang has no reasonable prospect of proving that DM questioned his design of the stairs.
h. SS asked who was helping Mr. Wang
[81] Mr. Wang says that during his phone call with SS on May 1, 2020, SS said, “I really want to know who is helping you.” In his complaint, Mr. Wang says this statement suggested he was “not sophisticated enough to deal with the issues”, and this was connected to his race.
[82] SS and DM deny that SS made the statement. SS says that during his call with Mr. Wang, they discussed other professionals and tradespersons working on the project, including an engineer and a plumber, and he may have asked about these other workers.
[83] In his complaint, Mr. Wang does not provide any further information about, or context for the alleged statement, such as what issues he believes SS was referring to, or what they were discussing at the time. In his response to the application to dismiss, he does not refer to this statement at all, or to his phone call with SS on May 1, 2020.
[84] Neither party produced any notes or records of what was said during the call. However, I find that even if SS made the alleged statement, Mr. Wang has not taken the connection between this statement and his race out of the realm of conjecture. He does not explain what either party said leading up to the alleged statement, or why he believes the statement was intended to cast doubt on his qualifications. It is undisputed that the purpose of the call was to discuss CVRD’s requirements for inspections and field reviews, which related, in part, to the work performed by other professionals and tradespersons who worked on the Project. In this context, it would not be surprising if SS asked about the identity of other people who were helping with the Project.
[85] On the evidence before me, I find Mr. Wang has not brought the connection between his race and SS’s alleged statement out of the realm of conjecture. I am satisfied that he has no reasonable prospect of proving this connection.
i. SD’s request for a reference
[86] This allegation refers to statements made by SD during a Zoom meeting involving SD, Mr. Wang, and the Owner, on June 25, 2020. Mr. Wang alleges that during that meeting, SD asked him to get a reference from another jurisdiction in BC to prove he had previously designed a similar project as a registered architect in the province. Mr. Wang says this request was racist, humiliating, and made him uncomfortable. He followed up by email the next day, asking SD why he suggested that Mr. Wang was not qualified to work on the Project.
[87] Mr. Wang made this allegation for the first time in his response to the application to dismiss. CVRD did not object to this, and responded to the allegation in its reply submission. Mr. Wang does not address this allegation in his further submission in response to CVRD’s reply submission.
[88] SD denies that he questioned Mr. Wang’s qualifications. His evidence is that during the meeting, Mr. Wang advised that other jurisdictions have different practices when letters of assurances are submitted by registered professionals. SD says he wanted to know more about this, so he asked Mr. Wang for examples of other projects he had worked on. He says the purpose of the request was to determine whether there were any problems with CVRD’s practices, and whether changes should be considered.
[89] CVRD provided an audio recording of the meeting. I understand that Mr. Wang created the recording and disclosed it to CVRD under the Tribunal’s rules about disclosure of evidence. It is not clear whether SD knew the meeting was being recorded.
[90] I have listened to the recording, and I am satisfied CVRD is reasonably certain to prove that SD’s request was for the purpose of reviewing CVRD’s practices, not to check up on Mr. Wang’s qualifications.
[91] The recording lasts for about 38 minutes. Around the 34-minute mark, SD asks the Owner and Mr. Wang, “Do either of you have a circumstance, meaning a house that was built previously, that demonstrates your um, your, your, your description of what should be happening here?” In response, Mr. Wang says, “I am a professional architect, what do you think?” SD then asks for an example of a home he has built in another jurisdiction, so that SD can pull the file and determine “what you are talking about”.
[92] The recording shows that SD’s request for an example of another home Mr. Wang has built was part of a discussion regarding the Owner and Mr. Wang’s objections to CVRD’s application of the Building Code and the Bylaw. The Owner had argued that CVRD was operating outside the scope of its authority. The Owner and Mr. Wang said that as the registered professional in charge of the Project, Mr. Wang was responsible for all inspections, and that if CVRD exceeded its authority and undertook those inspections, it would assume liability and Mr. Wang’s insurance would no longer cover the Project. In other parts of the recording, SD clearly states that he was not questioning Mr. Wang’s background, skills, or abilities. He acknowledges that Mr. Wang’s experience as an architect is “phenomenal” and says to Mr. Wang, “you have worked for a lot of good people and I am not questioning that at all.”
[93] Based on the recording, I find CVRD is reasonably certain to establish that SD’s request for a reference to a house that Mr. Wang previously worked on was related to how permitting and inspection processes worked in other jurisdictions, and not to Mr. Wang’s qualifications as an architect. I find Mr. Wang has no reasonable prospect of proving that SD asked him for a reference as a way to check his qualifications, or that SD’s statements were connected to his race.
j. DM asked if Mr. Wang was a real architect
[94] Mr. Wang says he first met DM when he went to CVRD’s office with the Owner on March 13, 2019, and when he identified himself as an architect, DM said, “You? A real architect?” DM denies saying this. He says he does not recall meeting Mr. Wang before the building permits were issued, in June 2019. Even if they did meet before that, DM says he would not have questioned whether Mr. Wang was an architect. He says he had no reason to doubt Mr. Wang’s qualifications.
[95] Mr. Wang says he was shocked by the statement, but he does not say why. He does not explain, in his complaint or his response to the application to dismiss, how DM’s alleged statement, questioning whether he was a real architect, was connected to his race. I understand Mr. Wang’s allegation to be that DM did not believe he could be a real architect because he is Asian. I consider this in the context of Mr. Wang’s evidence that all CVRD staff he worked with were white.
[96] There is no evidence before me from the Owner. Nevertheless, in light of the conflicting evidence, I cannot find Mr. Wang has no reasonable prospect of proving DM made the alleged statement. The issue I must decide is, assuming the statement was made, whether Mr. Wang has no reasonable prospect of proving it was connected to his race.
[97] Based on Mr. Wang’s account of DM’s alleged statement, it appears this was the first time DM met Mr. Wang. Mr. Wang does not give any other details about what happened during the meeting. He does not explain why he believes the statement was connected to his race, in the context of an initial meeting with a CVRD building official who had never met him before.
[98] I acknowledge that racialised people experience microaggressions and are more likely to have their qualifications questioned. But there is no presumption of discrimination: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center) , 2015 SCC 39 at para. 88. To bring this allegation out of the realm of conjecture, Mr. Wang must provide some basis for an inference that DM’s statement was connected to his race. Mr. Wang has not explained any basis for this inference, and I cannot find one, in the evidence before me.
[99] In previous decisions, the Tribunal has been assisted by social context evidence about stereotypes, myths, and misconceptions about specific groups: Campbell at para. 37; Smith v. Sysco Canada Inc. and another , 2024 BCHRT 114 at para. 82. Racism and stereotyping are an undeniable reality, but Mr. Wang has not referred to or provided evidence of patterns of discrimination, stereotypes, or myths specific to those who are similarly situated to him. He says that everyone he worked with at CVRD was white, and CVRD does not deny this, but in my view this fact, on its own, is insufficient to take the connection between Mr. Wang’s race and DM asking if he was a real architect out of the realm of conjecture.
[100] Without more information about why Mr. Wang believes DM’s alleged statement was connected to his race, and without any evidence that could support an inference of such a connection, I find Mr. Wang has no reasonable prospect of proving this connection at a hearing.
k. Mr. Wang’s allegations considered cumulatively
[101] I have considered Mr. Wang’s allegations separately. I now consider them cumulatively, to determine whether, on all the evidence before me, there is no reasonable prospect that he will prove a connection between CVRD’s conduct and his race. In particular, I consider his allegations about DM questioning whether he was a real architect, CVRD’s direct communications with the Owner, DM’s decision to allow the Owner to store furniture in the carriage house, SS allegedly saying “I really want to know who is helping you”, and the allegation that CVRD’s inspection and permitting processes did not comply with the Building Code or the Bylaw. I focus on these allegations because I have found that Mr. Wang has no reasonable prospect of proving the facts underlying his other allegations.
[102] Even considering these allegations cumulatively, I still find Mr. Wang has no reasonable prospect of proving a connection between his race and CVRD’s conduct. In each allegation other than the one about DM questioning whether Mr. Wang was a real architect, CVRD provided credible, non-discriminatory explanations for the alleged conduct. Mr. Wang has not provided any evidence that could contradict those explanations. Nor has he provided any evidence supporting his suggestion that DM questioned whether he was a real architect because of his race.
[103] Mr. Wang concludes his submissions in response to the application to dismiss by suggesting CVRD’s inspection and permitting procedures, in relation to the Project, were a form of racism, consistent with other examples of racism in Canadian history. He appears to suggest that a connection between his race and CVRD’s alleged non-compliance with the Building Code and Bylaw can be inferred from CVRD’s questioning his qualifications.
[104] For the purpose of this decision I have assumed, despite CVRD’s denials, that DM questioned whether Mr. Wang was a real architect, and SS asked who was helping him. But even accepting that these statements were made, on the whole of the evidence before me, I am not persuaded that the alleged questions about his qualifications are sufficient to take the connection between Mr. Wang’s race and CVRD’s alleged non-compliance with the Bylaw and the Building Code, out of the realm of conjecture. As described above, even if CVRD did not comply with the Building Code and the Bylaw, there is no evidence that it treated the Project differently than any other construction project involving a registered professional. Even if CVRD’s staff were unreasonably skeptical about Mr. Wang’s professional qualifications, I find he has no reasonable prospect of proving this was a factor in the permitting and inspection procedures that CVRD applied to the Project.
[105] Considering Mr. Wang’s allegations cumulatively, I find he has no reasonable prospect of proving his race was a factor in CVRD’s conduct.
IV CONCLUSION
[106] CVRD’s application to dismiss is granted. I dismiss the complaint under s. 27(1)(c).
Andrew Robb
Tribunal Member
[1] On his initial complaint form Mr. Wang said this happened on March 13, 2018, but in his response to the application to dismiss he says it was March 13, 2019. I have assumed that the later date is the one Mr. Wang relies on, but nothing in my decision turns on the date of the incident.