Uzama v. Board of Education of School District No. 36 and others, 2024 BCHRT 330
Date Issued: November 27, 2024
File: CS-008492
Indexed as: Uzama v. Board of Education of School District No. 36 and others, 2024 BCHRT 330
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:
Austin Uzama
COMPLAINANT
AND:
Board of Education of School District No. 36 (Surrey) and Mark Pearmain and Laurie Larsen
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DEFER A COMPLAINT
Section 25
Tribunal Member: Jonathan Chapnick
On his own behalf: Austin Uzama
Counsel for Respondents: Sari A. Wiens
I INTRODUCTION
[1] On December 15, 2022, Austin Uzama filed a human rights complaint against the Board of Education of School District No. 36 (Surrey) [ Board ] and Mark Pearmain and Laurie Larsen [collectively, Respondents ]. Dr. Uzama alleges discrimination in employment in contravention of s. 13 of the Human Rights Code and retaliation in contravention of s. 43. This decision is about whether Dr. Uzama’s complaint should be put on hold until the outcome of another proceeding.
[2] The Board terminated Dr. Uzama’s employment on June 21, 2023. His union, the British Columbia Teachers’ Federation/Surrey Teachers’ Association [ Union ], grieved his dismissal. The Respondents apply under s. 25 of the Code for an order to defer further consideration of Dr. Uzama’s human rights complaint until the conclusion of the dismissal grievance. Dr. Uzama opposes the Respondents’ application. He does not want his complaint put on hold.
[3] For the following reasons, the Respondents’ application to defer the complaint is denied.
II BACKGROUND
[4] The following information is set out here as background. It is drawn from the materials filed by the parties. I make no findings of fact.
[5] Dr. Uzama is a Black man from Africa with certain mental health conditions. He was employed by the Board as a teacher. He holds two Masters degrees and a PhD. Mark Pearmain is the Superintendent of Schools for the Board. Laurie Larsen is the Chair of the Board.
[6] Dr. Uzama’s human rights complaint is comprised of three complaint forms: the original form filed on December 15, 2022; a second form filed on January 18, 2023; and a third form, alleging retaliation, filed on July 5, 2023. He says the Respondents discriminated against him based on race, colour, and mental disability. Dr. Uzama was hired by the Board in 2018. He alleges discrimination throughout his employment. He also says race played a significant part in the Board not employing him before 2018.
[7] In his complaint, Dr. Uzama makes various allegations, including that: race was a factor in the Board not employing him between 2016 and 2018; the Respondents did nothing when he was assaulted by a white student’s parent in June 2019; in 2020, a white teacher told him not to enter her classroom because he was a distraction for the students, after which he received a letter of expectation; beginning in 2020, the Respondents repeatedly investigated him regarding conduct they knew was related to his mental disability; the Respondents refused to accommodate his mental disability; the Respondents did nothing to protect him from a white student’s parent who verbally insulted him in 2021; he applied for teaching positions at 10 different schools in the district in 2022, but in each case a teacher with less seniority, who was not Black, was selected for the job; he was disciplined in 2022 following an investigation of a bullying and harassment complaint filed against him; he was assigned to work at a different school when he returned from an extended sick leave in 2022; he was placed on extended administrative leave in October 2022 for conduct related to his mental disability; and the Board retaliated against him, in that it terminated his employment after being made aware of his human rights complaint.
[8] The Respondents deny Dr. Uzama’s factual allegations and say there is no basis for his discrimination and retaliation claims against them. The version of events described in their response and deferral application is very different from what Dr. Uzama says happened.
[9] The Union grieved Dr. Uzama’s dismissal [ Dismissal Grievance ]. The Respondents say the Dismissal Grievance alleges that the Board lacked just cause to terminate Dr. Uzama’s employment. They say the Board denied the Dismissal Grievance, and the parties have moved it through all the steps of the grievance process. They say the Union referred the matter to arbitration on October 24, 2023 and the parties have retained legal counsel. The Union’s letter referring the Dismissal Grievance to arbitration [ Referral Letter ] states the following regarding its subject matter and the remedies sought:
This Surrey case concerns the employer’s discipline of, and failure to accommodate, the grievor. The employer disciplined the grievor without just and reasonable cause and in any event, the discipline was excessive in the circumstances. Furthermore, the employer discriminated against the grievor and failed to satisfy its duty to inquire and duty to accommodate the grievor.
The union is seeking remedies, including but not limited to, a declaration of the violation, and order that the discipline be rescinded, an order that the grievor be made whole, and such further and other orders and remedies, appropriate in the circumstances.
Note that this précis is not intended to define the scope of the grievance. It is information provided as a courtesy in order to assist the district … to identify and understand the case. The union reserves the right to raise before the arbitrator any issue which was raised by the original grievance, in the grievance procedure, or any issue which is identified by counsel in preparing the case for arbitration.
[10] The Respondents say the next step in the grievance process is to appoint an arbitrator and schedule hearing dates.
III DECISION
[11] The Respondents apply under s. 25 of the Code for an order to defer further consideration of Dr. Uzama’s human rights complaint until the conclusion of the Dismissal Grievance. Under s. 25, the Tribunal can defer a complaint if it determines that another proceeding is capable of appropriately dealing with its substance. A grievance under a collective agreement is a “proceeding” for the purposes of this provision: Code , s. 25(1).
[12] In a deferral application, the burden is on the party seeking the deferral to establish that it should be granted: Copeland v BC Ministry of Public Safety and Solicitor General , 2006 BCHRT 383, at para. 17. The Tribunal’s power to defer a complaint under s. 25 arises out of the “legislative intention that the Tribunal’s resources should not be employed where to do so would result in the needless duplication of other adjudicative resources”: Young v. Coast Mountain Bus Company Ltd. , 2003 BCHRT 28 at para. 21.
[13] Deferral determinations under s. 25 are made on a case-by-case basis, considering relevant factors and circumstances in accordance with the principles and purposes of the Code : Young at paras. 18-27. To determine whether another proceeding is capable of appropriately dealing with the substance of a complaint, the Tribunal considers factors such as: the nature and subject matter of the other proceeding; the adequacy of the remedies available in the other proceeding; the status of the other proceeding compared to the status of the complaint; fairness to the parties; and the public interest: Young at para. 19.
[14] The Respondents say these factors favour a deferral of Dr. Uzama’s human rights complaint. They say the subject matter of the Dismissal Grievance is similar to that of the complaint, in that the grievance alleges that the Board did not have just cause to terminate Dr. Uzama’s employment after the investigation into his conduct. The Respondents also say that the grievance proceedings are capable of dealing with all the issues raised in the complaint, and Dr. Uzama can obtain remedies in the grievance proceedings that are similar to those available in the Tribunal’s process.
[15] In addition, the Respondents argue that fairness favours the deferral of the complaint. They say there is currently a very long delay between the filing of a human rights complaint and the conclusion of a hearing of the complaint. As a result, they say the arbitration of the Dismissal Grievance “would be expected to occur long before the Tribunal’s process would provide for any hearing.” They note that, in Villella v. City of Vancouver and others , 2005 BCHRT 6 and in O’Brennan v. K.L.M. Industries , 2005 BCHRT 95, the Tribunal deferred a complaint even though the parties had not yet appointed an arbitrator or set arbitration dates.
[16] Finally, the Respondents argue that it is not in the public interest to have duplicate proceedings, which would be the case if the Tribunal process continues at this time.
[17] Dr. Uzama opposes the Respondents’ deferral application for a number of reasons. Among other things, he says he has already waited a long time for his complaint to proceed, and deferring the Tribunal’s process could extend his wait by several years. He also says that arbitrators lack the authority to hear human rights cases. In addition, Dr. Uzama says the Dismissal Grievance is very different from his human rights complaint. He says the complaint is about all the discrimination he endured in his employment because of his protected characteristics. In contrast, he says the Dismissal Grievance was filed by the Union and is about whether it was “excessive to punish a teacher with … mental health challenges” without first inquiring into those challenges.
[18] I agree with the Respondents that certain factors favour a deferral of Dr. Uzama’s complaint under s. 25. Specifically, I agree that, like the Tribunal, labour arbitrators can interpret and apply the Code and order human rights remedies: Young at para. 24; see Tyler v. BC Ministry of Environment and Climate Change Strategy , 2024 BCHRT 1 at para. 14. On the materials before me, I also agree that there is some overlap between the subject matter of the complaint and the Dismissal Grievance. However, for the following reasons, I am not persuaded that the circumstances in this case, at this time, support the requested deferral.
[19] First, while they may overlap, I am not satisfied that the complaint and the Dismissal Grievance are sufficiently similar in scope and subject matter to justify a deferral of the Tribunal’s process. According to the Respondents, the Dismissal Grievance is about whether the Board had just cause to dismiss Dr. Uzama in June 2023 following the 2022-2023 investigation into his conduct. The Respondents also say, and the Referral Letter reflects, that allegations of discrimination related to those matters will be addressed if the grievance goes to arbitration. The complaint, however, is much broader in scope. It alleges discrimination dating back to 2018 and earlier. It alleges racial discrimination in hiring processes over several years. It alleges that Dr. Uzama’s dismissal was retaliation in contravention of s. 43 of the Code . It includes allegations about the conduct of white parents in 2019 and 2021, and by a white colleague in 2020, and it claims the Respondents failed to deal with this alleged conduct. I appreciate that the Respondents deny these allegations, argue that some of them are untimely, and argue that some of Dr. Uzama’s claims lack any connection to his protected characteristics. I also acknowledge that the Referral Letter leaves room for an arbitrator to consider issues outside of Dr. Uzama’s dismissal and the investigation that preceded it. At this point, however, all of Dr. Uzama’s allegations remain part of the complaint before the Tribunal, and they extend far beyond the Respondents’ description of the scope and subject matter of the Dismissal Grievance. As a result, I cannot conclude that the grievance proceedings will address the substance of the various aspects of Dr. Uzama’s complaint.
[20] Second, I am not satisfied that the status of the grievance proceedings favours a deferral of the complaint for fairness reasons. The Dismissal Grievance was referred to arbitration over a year ago. I have no information about what has happened since that time. It is not clear when an arbitrator might be appointed, when a hearing might be scheduled, or how far in the future hearing dates might be set. I acknowledge that the Tribunal continues to experience unprecedented case volumes, resulting in delays in our process. However, on the materials before me, the Respondents’ assertion that the Dismissal Grievance “will be heard and dealt with prior to any determination of the Complaint by the Tribunal” is speculative.
[21] I do not find the decisions in Villella and O’Brennan helpful to my analysis of the Respondents’ deferral application. The circumstances in those cases were different than the situation before me. In each of those cases, arbitration dates were to be set “in the very near future,” and the complainant agreed (or did not dispute) that the subject matter of both proceedings was the same (or substantially similar): Villella at paras. 11 and 19; O’Brennan at paras. 8 and 10. In contrast, in the case before me, there is no indication of when arbitration dates might be set, and Dr. Uzama asserts (and I agree) that there are significant differences between the scope and subject matter of the complaint and those of the grievance proceedings.
[22] Finally, at this time, I am not satisfied that continuing the Tribunal’s process will result in duplicative proceedings or the inefficient use of public or private resources. The Dismissal Grievance was referred to arbitration over a year ago. It is not clear whether there has been any movement on that front since then. In the meantime, the next step in the complaint process involves the Tribunal providing free mediation services to the parties. I understand that a mediation was scheduled for November 18, but the Respondents chose not to participate given their outstanding deferral application. In my view, moving forward with a mediation of the complaint could result in efficiencies for both the Tribunal and the parties.
[23] If the complaint is not resolved in mediation, it will move on to the disclosure stage, during which the parties will exchange relevant documents. I see no inefficiency in them doing so. On the contrary, disclosure in the Tribunal’s process can help the parties prepare their cases in both proceedings. After the disclosure stage, the complaint will be placed in the queue for a “case path” determination under the Tribunal’s Case Path Pilot Practice Direction . From there, a hearing will be scheduled or the Respondents will have an opportunity to file a preliminary application to dismiss the complaint or a part of it if the Tribunal determines that a dismissal application could further the complaint’s just and timely resolution.
[24] The purpose of the deferral power under s. 25 is to protect against the unnecessary duplication of adjudicative resources. On the materials before me, I see no imminent risk of any such duplication. For now, then, it is fair and reasonable for the parties to continue moving forward through the Tribunal’s process. In the future, if circumstances change and the Respondents have new information showing the appropriateness of a deferral, they may apply again, at which time the relevant factors and circumstances may support a different outcome. At this stage, however, I am not persuaded that it is appropriate to exercise my discretion under s. 25 to defer the complaint. It would not be fair to Dr. Uzama and would inject unnecessary, indeterminate delay into a Tribunal process that is already slow.
[25] For these reasons, the application to defer the complaint is denied.
IV CONCLUSION
[26] The Respondents’ application to defer the complaint is denied. The complaint will continue to move forward. The case manager will contact the parties regarding next steps.
Jonathan Chapnick
Tribunal Member