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Pooyan and others v. BC Ministry of Health and others, 2024 BCHRT 335

Date Issued: December 5, 2024
File: CS-001589

Indexed as: Pooyan and others v. BC Ministry of Health and others, 2024 BCHRT 335

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:

Navid Pooyan, Farhad Barazandeh Noveyri, Asal Vahabimoghaddam, Shailendra Singh, Vahid Nilfourushan

COMPLAINANTS

AND:

His Majesty the King in the Right of the Province of British Columbia as represented by the Ministry of Health, University of British Columbia, Canadian Resident Matching Service, Association of Faculties of Medicine of Canada, and the College of Physicians and Surgeons of British Columbia

RESPONDENTS

REASONS FOR DECISION
APPLICATION FOR RECONSIDERATION
Rule 36

Tribunal Member: Jessica Derynck

Counsel for the Complainants: Clea Parfitt

Counsel for the Respondent Ministry: Zachary Ansley and Joanne Kim

Counsel for the Respondent University of British Columbia: Kacey A. Krenn

Counsel for the Respondent Canadian Resident Matching Service: Michael Schalke

Counsel for the Respondent Association of Faculties of Medicine of Canada: Diana S. Hwang and Esher Madhur

Counsel for the Respondent the College of Physicians and Surgeons of British Columbia: Angela R. Westmacott, KC and Alandra Harlington

I INTRODUCTION

[1] This is an application for reconsideration of a decision to dismiss a complaint on the basis that the complainants failed to diligently pursue their complaint: Human Rights Code , s. 27.5.

[2] On June 8, 2020, Navid Pooyan, Farhad Barazandeh Noveyri, Asal Vahabimoghaddam, Shailendra Singh, and Vahid Nilfourushan [ Complainants ] filed their complaints against His Majesty the King in the Right of the Province of British Columbia as represented by the Ministry of Health [ Ministry ], University of British Columbia [ UBC ], Canadian Resident Matching Service [ CaRMS ], the Association of Faculties of Medicine of Canada [ AFMC ], and the College of Physicians and Surgeons of British Columbia [ College ] [ Respondents ].

[3] On April 29, 2024, the Complainants’ legal counsel did not attend a prehearing conference call [ PHC ] held to set a deadline for the Respondents to file applications to dismiss and a submission schedule for those applications. In the months that followed, the Tribunal directed the Complainants to answer a question related to an outstanding disclosure issue and confirm whether they intended to pursue their complaints against the Respondents. The Complainants’ counsel did not respond to the Tribunal’s correspondence. On July 22, 2024, the Tribunal gave the Complainants notice under Rule 4(5) of the Rules of Practice and Procedure [ Rules ] that if they did not confirm that they will diligently pursue their complaints and answer the outstanding disclosure question by August 12, 2024, the Tribunal may dismiss the complaints with no further warning [ Notice ]. Their counsel did not respond to the notice. I dismissed the complaints on August 22, 2024 [ Dismissal Decision ].

[4] For the reasons below I deny the Complainants’ application for reconsideration.

[5] I have reviewed the parties’ comprehensive submissions and evidence. I only refer to their submissions and evidence as is necessary to explain my decision.

II ISSUES

[6] The Tribunal has discretion to reconsider its decisions in the interests of fairness and justice: Rule 36(1); Gichuru v. Vancouver Swing Society , 2021 BCCA 103 [ Gichuru ] at para. 97.

[7] In an application for reconsideration the Tribunal first determines whether the interests of fairness and justice require it to exercise its jurisdiction to reconsider its decision: Routkovskaia v. British Columbia (Human Rights Tribunal) , 2012 BCCA 141 [ Routkovskaia ] at para. 104; Noel v. Board of Education , 2023 BCHRT 51 at para. 6. If the answer to this question is yes, then the Tribunal decides whether the application for reconsideration should result in any further order.

[8] To decide whether it is in the interests of fairness and justice to reconsider the Dismissal Decision I must answer the following questions:

a. Was the Dismissal Decision procedurally unfair to the Complainants because the Tribunal did not ask them for submissions on whether their complaints should be dismissed under s. 27.5 of the Code ?

b. Was the Dismissal Decision unfair to the Complainants because the determination that they were not diligently pursuing their complaints was based on a mistaken understanding of their efforts in the process to date?

c. Should the Tribunal reconsider the Dismissal Decision in the interests of fairness and justice because the decision was based on what turned out to be the Complainants’ counsel’s errors rather than their own actions? The Complainants ask me to consider factors including their efforts before April 2024, the importance of their complaints to them, and their position that dismissal was a disproportionate response to the process issues that arose.

[9] Below I set out the law on the Tribunal’s discretion to reconsider its decisions, explain the s. 27.5 dismissal process, then address the issues and explain why I find that it is not in the interests of fairness and justice to reconsider the Dismissal Decision.

III Analysis and decision

A. The Tribunal’s discretion to reconsider its decisions

[10] The Tribunal has an equitable or inherent jurisdiction to reconsider a decision dismissing a complaint if it is in the interests of fairness and justice to do so. This jurisdiction is consistent with the remedial purposes of the Code .

[11] In Zutter v. British Columbia (Council of Human Rights) , 1995 CanLII 1234 (BCCA) the Court of Appeal held that the Council of Human Rights had an equitable jurisdiction to reconsider its decisions to remedy unfairness. The complainant gave his counsel instructions to file a response to an investigation report summary. His counsel claimed to have responded according to his instructions, but the Council did not receive the response. The Court said there was no breach of procedural fairness as a result of the “unfortunate series of events” that deprived him of an opportunity to present evidence and make submissions, but from the complainant’s and any reasonable person’s point of view, “the result to him is unfair in the ordinary sense of that word” paras. 22 to 23.

[12] The Complainants submit that it may not be strictly proper to describe the Tribunal’s jurisdiction as “equitable” because the Tribunal is not a court, but in any case, the courts recognize the Tribunal’s jurisdiction to reconsider its decisions.

[13] The AFMC submits that an equitable or inherent jurisdiction to reopen dismissed proceedings does not accord with Chandler v. Alberta Association of Architects , 1989 CanLII 41 (SCC) [ Chandler ], in which the Supreme Court of Canada recognized the principle of finality in administrative legal proceedings. The College submits that it does not accept that Zutter remains good law or that the Tribunal can be said to have “equitable jurisdiction” as a matter of legal principle.

[14] The AFMC, the College, and UBC submit that the Tribunal is functus officio and may not reopen this closed case under any limited reconsideration power. UBC says the Tribunal has recognized the principle of finality set out in Chandler and confirmed that reconsideration is an extraordinary remedy: Grover v. CUPE Local 2011 (Saanich) and Corporation of the District of Saanich , 2020 BCHRT 205 at para. 36. AFMC submits that the Tribunal may not revisit a final decision subject only to four exceptions set out in Chandler : a “slip” in drawing up the decision, an error in expressing the decision maker’s manifest intention, indications in the enabling statute that a decision can be reopened to enable a tribunal to discharge the function committed to it by enabling legislation, or a failure to dispose of an issue fairly raised in the proceedings that necessitates the tribunal being allowed to complete its statutory task. The College also submits that the Tribunal is functus officio subject only to the narrow exceptions in Chandler , of which “the interests of fairness and justice” is not one.

[15] I am not persuaded Zutter is no longer good law. Whether we refer to it as equitable jurisdiction or inherent jurisdiction, it is clear that the Tribunal has a limited jurisdiction to reconsider a final decision if it is in the interests of fairness and justice to do so. The Court of Appeal reiterated this in Routkovskaia at para. 96 and in Gichuru at para. 97, referring to this power as “equitable jurisdiction” in both cases.

[16] The Tribunal’s limited jurisdiction to reconsider a final decision in the interest of fairness and justice is specific to the human rights context. In Zutter the Court addressed appellant submissions, relying on Chandler , that without an express power to do so set out in enabling legislation, a tribunal may only reconsider a “final” decision that amounts in law to a nullity, meaning no final decision has yet been made, so the tribunal is exercising its original jurisdiction and is not functus officio : paras. 18 to 20. After recognizing that the dismissal of the complaint was an unfair result in the ordinary sense of the word, the Court discussed the remedial nature of human rights legislation. The Court said, “it would be an unfortunate irony if the Council, whose very existence and remedial purpose is characterized by the fundamental values of fairness and justice, nonetheless lacked the jurisdiction to remedy that unfairness”: para. 23. At para. 28 the Court addressed the appellant’s argument that Chandler overruled the line of authority acknowledging administrative tribunals’ jurisdiction to reconsider decisions from which there is no appeal, and quoted the following passage from Chandler :

To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.

Accordingly, the principle should not be strictly applied where there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation. This was the situation in Grillas , supra.(p. 862, emphasis added)

[17] The Court of Appeal did not accept that the “equitable jurisdiction” of a tribunal to reconsider a decision is subservient to the doctrine of functus officio unless that jurisdiction is express in the enabling statute. Rather, the Court said the policy of finality in tribunal proceedings will necessarily govern the manner in which the jurisdiction to reconsider is exercised, ensuring its restrictive application: para. 31.

[18] In Gichuru the Court noted the previous recognition in Zutter and Routkovskaia of the “limited equitable jurisdiction” to reconsider a decision in the interests of justice and fairness: para. 97. The Court said that a reconsideration engages a discretionary aspect of decision-making power under which the Tribunal is to consider whether new evidence or circumstances result in a compelling reason to reopen a complaint, applying the test that is relevant to the underlying decision: paras. 107 to 108.

[19] In summary, the Tribunal’s inherent jurisdiction to reconsider its decisions goes beyond simply correcting breaches of procedural fairness, but this discretion must be exercised sparingly. The Tribunal will reconsider decisions when doing so is called for in the interests of fairness and justice, in the context of the principles of finality and the remedial purposes of the Code .

[20] The onus is on the Complainants to show that reconsideration is in the interests of fairness and justice: Grant v. City of Vancouver and others (No. 4) , 2007 BCHRT 206 at para. 10.

[21] In the next section of my decision, I explain the Tribunal’s process for dismissing complaints under s. 27.5 of the Code when the Tribunal has determined that a complainant is not diligently pursuing a complaint.

B. The Tribunal’s process for dismissals under s. 27.5

[22] Under s. 27.5 of the Code the Tribunal may dismiss a complaint at the request of another party or on its own initiative if it has given notice requiring the complainant to diligently pursue a complaint and the party fails to act on the notice within the time allowed.

[23] Rule 4(5) says that if a complainant fails to respond to communications from the Tribunal or otherwise fails to pursue a complaint, the Tribunal will notify the complainant that they must diligently pursue the complaint and that it may dismiss the complaint under s. 27.5 if the complainant does not respond to the notice within the time allowed.

[24] The Tribunal has a Policy on a complainant’s duty to communicate with the Tribunal [ Policy ], which is on the Tribunal’s website. The Policy describes the process that the Tribunal will use to dismiss complaints on its own motion when a complainant is not responding to communications from the Tribunal or maintaining communications with it. In this case Respondents wrote to the Tribunal and the Complainants’ counsel to raise the issue of whether the Complainants intended to diligently pursue their complaints, and one Respondent wrote to the Tribunal, copying the Complainants’ counsel, requesting dismissal when the Complainants did not respond to the Notice. This means the Dismissal Decision was not strictly on the Tribunal’s own motion, but the principles underlying the Policy are important to the Tribunal’s process and relevant in this case.

[25] The Policy says complainants are required to pursue their complaints under the Code , including responding to communications with the Tribunal and maintaining communications with it, complying with the Rules and with orders and directions of the Tribunal, and attending to matters relating to the complaint in a complete and timely way. The Policy explains that if a complainant fails to diligently pursue their complaint it may be dismissed under s. 27.5 of the Code .

[26] The Policy sets out factors the Tribunal will consider when determining whether it appears a complainant is not diligently pursuing their complaint by failing to maintain communications with the Tribunal. These include the number of unsuccessful attempts to communicate with the complainant, the time elapsed since there was last contact with the complainant, and the nature of the defaults in the communication.

[27] The Policy explains that once the Tribunal has determined that it appears that a complainant is not diligently pursuing their complaint, it will give notice pursuant to s. 27.5 and Rule 4(5). In the notice the Tribunal will give the complainant a maximum of 30 days to respond to the notice and confirm they intend to pursue their complaint. If there is no response in the time period set out in the notice, the Tribunal will dismiss the complaint.

[28] The Policy also sets out factors the Tribunal will consider when a complainant applies for reconsideration of a decision to dismiss a complaint under s. 27.5:

1. The complainant’s explanation for failing to respond to the notice to diligently pursue, including whether the complainant received the notice required under s. 27.5 of the Code or received it in time to act upon it,

2. How long the complainant has been out of contact with the Tribunal or not responding to its communications,

3. The reason for the loss of communication with the Tribunal and whether that explanation is reasonable,

4. The complainant’s history of compliance since filing the complaint including timelines, and maintaining and responding to communications,

5. How quickly the complainant contacted the Tribunal after learning of the dismissal of their complaint,

6. Whether there has been any prejudice to the respondent as a result of the complainant’s default, and

7. Any other relevant factors arising in the circumstances of the particular case.

[29] These factors are relevant even though the Tribunal issued the Dismissal Decision after concerns raised by Respondents and not on its own motion. The underlying principles in the Policy are relevant to any dismissal under s. 27.5. I turn now to address the Complainants’ submissions, with consideration of these factors.

C. The s. 27.5 dismissal process was not procedurally unfair to the Complainants

[30] The Complainants submit that the Dismissal Decision was not procedurally fair because the Tribunal did not seek submissions from the parties on whether the complaint should be dismissed under s. 27.5. The Complainants’ counsel says she reasonably anticipated that there would be no dismissal without submissions from all parties because the Tribunal seeks submissions from complainants before dismissing a complaint under s. 27(1) of the Code , and she had not seen the Tribunal dismiss a complaint under the s. 27.5 process before.

[31] I find no procedural unfairness in the dismissal process. The Complainants had multiple opportunities to advise the Tribunal that they intended to diligently pursue their complaints. Their counsel received all of the Tribunal’s and Respondents’ communications on the complaint, including the Notice.

[32] I explain the reasons for the Complainants’ lack of communication with the Tribunal in more detail below in my analysis of whether those reasons warrant reconsideration. Briefly, when their counsel did not attend the PHC on April 29, 2024, and did not subsequently contact the Tribunal or Respondents about the missed call or outstanding disclosure obligations, some of the Respondents raised concerns about whether the Complainants intended to pursue their complaints. This included a letter from the Ministry dated June 6, 2024, asking the Tribunal to issue a notice to the Complainants under Rule 4(5), and a letter from the College on June 10, 2024, supporting the Ministry’s position. On June 11, 2024, the case manager emailed all of the parties acknowledging receipt of those letters and directing the Complainants and other Respondents to submit any response to the Ministry’s letter by June 17. The other Respondents responded by June 17 to support the Ministry’s request for a notice. The Complainants did not respond.

[33] In a letter to the parties on June 25, 2024, I suspended the Respondents’ deadlines for filing applications to dismiss and gave the Complainants an opportunity to respond by July 8, 2024, to advise that they intended to pursue their complaints. I set out a summary of the Complainants’ lack of communication to that point and explained why it was not clear whether they intended to pursue their complaints:

I am taking these steps because it is not clear at this stage whether or not the Complainants intend to diligently pursue their complaints. I am concerned about prejudice to the Respondents and impacts on the Tribunal’s process when the Complainants do not respond to the Tribunal’s correspondence and directions.

This is a case with many allegations against five Respondents. In my view, it would not be fair to the Respondents, and would not be a good use of the Tribunal’s resources, for the Respondents to apply to dismiss the complaints if the Complainants do not intend to pursue them. I am not concerned that the Complainants may be facing barriers in the process because they are represented by legal counsel.

…

The Ministry made an application for disclosure on November 24, 2023. The Complainants’ response to this application was that an order for disclosure was not required because the Complainants, with the exception of Dr. Vahabimoghaddam, had confirmed that they do not have any further documents that may be relevant. In a letter decision dated February 9, 2024, I directed the Complainants to update the Respondents on the status of Dr. Vahabimoghaddam’s document disclosure by February 23, 2024.

The Complainants have not complied with this direction.

On February 9, 2024, the case manager contacted the parties to schedule a case conference to discuss the next steps in the complaint process. The Complainants’ counsel provided her availability for a case conference. The case manager scheduled the case conference within her availability, on April 29, 2024. The case manager notified all parties of the case conference. Complainants’ counsel did not attend the case conference.

On April 29, 2024, I sent all parties a letter summarizing the case conference and setting out the schedule for submissions on applications to dismiss. In this letter I directed the Complainants to advise the Respondents as soon as possible whether or not Dr. Vahabimoghaddam has any potentially relevant documents to disclose, and if so, to promptly disclose those documents.

On May 8, 2024, the Ministry advised that the Complainants had not yet confirmed the status of Dr. Vahabimoghaddam’s document disclosure, raised a concern about whether the Complainants intend to pursue the complaints, and requested that the Tribunal give notice to the Complainants that if they fail to confirm their intention to pursue the complaints, they will be dismissed under s. 27.5.

In a letter dated May 9, 2024, I advised the parties that notice under s. 27.5 of the Code was not warranted at that time. I also said:

At this time, I direct the Complainants to update the Tribunal and Respondents by May 23, 2024, on (1) whether they intend to pursue their complaint, and (2) whether or not Dr. Vahabimoghaddam has any further potentially relevant documents to disclose.

If the Complainants require more time to confirm whether Dr. Vahabimoghaddam has any documents to disclose, they may request more time with an explanation for their request and how much time they are requesting.

If any Respondents wish to seek an extension to the ATD deadline of June 28, 2024, based on when the Complainants respond to this direction, they may contact the case manager to make that request.

If the Complainants do not respond as directed, the Tribunal may give them notice that it may dismiss the complaint.

The Complainants have not complied with the direction in my May 9, 2024 letter.

The Complainants have not corresponded with the Tribunal since February 23, 2024 when their counsel provided her availability to attend a case conference. At this stage it is not clear whether they intend to pursue their complaints. If the Complainants confirm that they do intend to pursue their complaints, I will reset the submissions schedule for applications to dismiss based on input from the Respondents at that time.

[34] The Complainants’ counsel did not respond to this letter. On July 22, 2024, I issued the Notice under Rule 4(5). It said the Tribunal may dismiss the complaints against all Respondents under s. 27.5 if the Complainants did not respond by August 12, 2024, to confirm that they will diligently pursue their complaints, and answer the outstanding question about Dr. Vahabimoghaddam’s disclosure.

[35] The Complainants do not dispute that they received all correspondence from the Tribunal and Respondents on the complaints. They say it was not consistent with the Tribunal’s established processes or their reasonable expectations for the Tribunal to dismiss the complaints without seeking submissions from them on whether it should do so. They compare the s. 27.5 notice and dismissal process to the process for applications to dismiss a complaint under s. 27(1) of the Code , which includes an opportunity for written submissions from all parties. They say the Tribunal did not have a full picture of the efforts they made in the complaint because they did not have an opportunity to make submissions.

[36] The Tribunal is not required to seek submissions from a complainant about whether it ought to dismiss a complaint under s. 27.5. Rather, the Tribunal’s Policy is that it must tell the complainant that they are required to diligently pursue their complaint and that if they do not do so it may be dismissed under s. 27.5 of the Code . The Tribunal must give a complainant notice and the complainant must have an opportunity to respond.

[37] In this case the Complainants’ counsel had notice and had an opportunity to respond, but she did not. There was no breach of procedural fairness.

[38] Further and in any event, I do not accept that it was reasonable for counsel to expect the Tribunal would set a submission schedule here because it does so under s. 27(1). These sections of the Code address markedly different circumstances and there are different principles underlying them.

[39] Under s. 27(1) the Tribunal may dismiss a complaint at any time after it is filed, with or without a hearing, on several bases, including that the complaint is not within the jurisdiction of the Tribunal, does not allege a breach of the Code , has no reasonable prospect of success, or its substance has been appropriately dealt with in another proceeding.

[40] Rule 28 gives the Tribunal discretion to decide whether a submission schedule is warranted on any application. When a respondent applies to dismiss a complaint under s. 27(1), procedural fairness normally requires an opportunity for the complainant to respond to the application and make submissions about whether the Tribunal ought to exercise its discretion to dismiss the complaint under a particular subsection on the basis under which the respondent applies.

[41] Section 27.5, on the other hand, allows the Tribunal to exercise its discretion to dismiss a complaint based on the principles underlying the Policy. The Tribunal’s letter of June 25, 2024, clearly set out the concerns behind the Tribunal’s direction to the Complainants to confirm their intention to pursue their complaints, which were that it would not be fair to the Respondents, and would impact the Tribunal’s process, if applications to dismiss were filed on complaints that the Complainants no longer wished to pursue. After the Complainants failed to respond to the Notice to confirm their intention, it would defy logic to set a submission schedule and give the Complainants yet another opportunity to fail to respond when the Legislature has empowered the Tribunal to address this issue with dismissal under s. 27.5.

[42] I address the issue of it being the Complainants’ counsel, not the Complainants themselves, who received the Notice in my analysis of the third issue below. First, I address the Complainant’s submission that the Dismissal Decision was based on an erroneous understanding of their efforts in the complaint process.

D. The Dismissal Decision was not based on a misunderstanding of the Complainants’ efforts to pursue their complaint before April 2024

[43] The Complainants submit that the determination that they had not diligently pursued their complaints was not a reasonable finding of fact because it was not based on a full picture of their efforts to date.

[44] The Complainants say they have pursued the complaints through multiple complex steps and made significant strides towards hearing readiness. They say they made a pragmatic decision not to make an application for document disclosure because that would cause delay, and that the next significant step in the process was for the Respondents to make their applications to dismiss. They note that one Complainant is involved in a parallel process responding to an action of the Ministry seeking repayment under a return of service agreement that they claim to be part of the Ministry’s discriminatory conduct, which is evidence of an intention to pursue the complaints.

[45] I find that it is not in the interests of fairness and justice to reconsider the Dismissal Decision on this basis. The Dismissal Decision was not based on an assessment of the Complainants’ actions up to April 2024 and whether their earlier efforts indicated an intention to pursue their complaints. Rather, it was based on whether the Complainants still intended to pursue their complaints after February 2024 when their counsel fell out of contact with the Tribunal and the Respondents about their complaints, and the failure to confirm that they did intend to pursue them when the Tribunal asked for this confirmation and gave them several opportunities to respond.

[46] I find the Complainants’ earlier efforts to be a relevant consideration in my analysis of whether fairness and justice require reconsideration because the dismissal was a result of their counsel’s errors and not their own actions. I say more about their efforts below. Reconsideration is not warranted on this basis, however, because I did not misunderstand the Complainants’ efforts to pursue their complaints prior to April 2024. Rather, the Dismissal Decision did not turn on them.

E. It is not in the interests of fairness and justice to reconsider the Dismissal Decision because it was based on counsel’s errors

[47] The Complainants submit that it is unfair to them to have their complaints dismissed because of their counsel’s errors. They say this is especially the case considering the level of effort they have put into preparing their complaints and the importance of their complaints to them and to the broader community. They also say that dismissal was a disproportionate response to the process issues that arose with their complaints.

[48] I considered the Complainants’ submissions in the context of the finality principle and the remedial purposes of the Code . I considered all of the information and evidence from the Complainants – in particular, the information that four of the five Complainants intended to proceed and were not aware that the Tribunal sought this confirmation – to decide whether there is a compelling reason to reopen the complaints in the circumstances. I am not persuaded that reconsideration is in the interests of fairness and justice.

[49] The Complainants say their counsel did not send them copies of the Tribunal’s communications for several months until she advised them on August 27, 2024, that the complaints were dismissed. I accept that the Complainants themselves were not aware that the Tribunal sought confirmation of their intention to pursue their complaints until after the Dismissal Decision.

[50] I appreciate that the result in this case appears unfair to the Complainants in the ordinary sense of the word. I have considered this, and considered letters from the four Complainants who wish to proceed explaining why the complaints are important to them and why they want the Tribunal to reconsider the Dismissal Decision. In all the circumstances of this case, however, I find that the resulting unfairness to the Complainants is an issue for them to address with their counsel, not a basis for reconsideration.

[51] Of the factors set out in the Policy, I find the Complainants’ counsel’s explanation for the loss of communication with the Tribunal and for failing to respond to the Notice to be the most significant in this case. I address the explanation in some detail below. Briefly, the explanation includes that counsel was focused on giving Dr. Vahabimoghaddam more time to determine whether she wanted to pursue her complaint, did not put relevant dates and deadlines in her calendar, was busy with hearings and submissions in other matters, and did not understand the significance of the Notice.

[52] Two considerations that are essential to the integrity of the Tribunal’s process underlie my decision that counsel’s explanation is not compelling and is a significant factor in the circumstances.

[53] The first consideration is that complainants must diligently pursue their complaints and meet their duty to communicate with the Tribunal. All parties to a complaint must appropriately conduct themselves in the Tribunal’s process, including responding to the Tribunal’s communications, and complying with the Rules, deadlines, orders and directions. Complainants, however, are the parties who decide to bring their allegations forward in this process and decide the scope of the complaints they will file. If respondents fail to participate in the process, in many cases, this is at their own peril, but the process will continue without their participation. However, if a complainant fails to take the steps required for their complaint to proceed the complaint stalls. This impacts respondents to the complaint and impacts the Tribunal’s resources.

[54] If, for any number of reasons, a complainant decides not to pursue their complaint at some point in the process, respondents and the Tribunal will have expended resources that it turns out they did not need to expend. This is not inherently a problem; rather, it is a necessary and common part of the complaint process. Among other things, it is important that parties are encouraged to make efforts to resolve matters before a hearing. It is similarly important that parties have opportunities to change their positions as they learn more about other parties’ positions throughout the process. This is one reason, however, why it is essential for complainants to communicate with the Tribunal to respond to inquiries, directions, and notices related to whether they intend to diligently pursue their complaints. It is important for the Tribunal to be able to manage its process so if a complainant files a complaint that they fail to diligently pursue, the Tribunal has the ability to limit unfairness to respondents and an unnecessary drain on its own resources.

[55] It is also important for complainants to maintain contact with the Tribunal and diligently pursue their complaints in the context of the relatively low-barrier process of filing complaints. There is no fee to file a complaint at the Tribunal and no costs awarded against complainants as a matter of course if their complaints are not successful or they withdraw; costs are only awarded against a party if the Tribunal finds they have engaged in improper conduct. This lack of financial barriers in the form of filing fees or costs is important for access to justice, but also underscores the importance of complainants diligently pursuing their complaints and responding to the Tribunal’s communications so the Tribunal may manage its process.

[56] The second essential consideration is that when a party to a complaint has legal counsel, other parties and the Tribunal expect and depend on counsel to represent their client’s interests, including by communicating with other parties and the Tribunal on their client’s behalf. It would not be appropriate for parties or the Tribunal to question whether a party’s counsel truly represents their position or to communicate directly with the party instead of their counsel in any circumstance. Indeed, counsel representing parties are subject to standards of professional conduct that include limits on contacting parties who are represented by counsel, and doing so could breach those standards. I say more about this as I address the Complainants’ submissions below.

[57] This decision has nothing to do with the potential merit of the complaints, which I have not assessed at any point. In denying the application for reconsideration I am not suggesting that it is fair in a general sense of the word for the Complainants to have lost out on the opportunity to pursue their complaints. I recognize that this is an unfortunate result for them and one the Tribunal does not make lightly.

[58] In this application for reconsideration, the Complainants’ counsel essentially asks for an exception to the Tribunal’s requirement that complainants maintain communication with the Tribunal in circumstances where they were represented by experienced but busy counsel. The Complainants’ counsel unreservedly apologizes for conveying a lack of concern and respect for the Tribunal and its processes. At the same time, she asks the Tribunal to consider that she was busy with hearings and submissions on other matters, including one with the same Tribunal case manager as these complaints. This argument implies that the Tribunal should have applied its Rules – and s. 27.5 of the Code – differently, or perhaps not at all, to these complaints based on who represented them. I considered that if a self-represented complainant applied for reconsideration of a s. 27.5 dismissal decision after failing to respond to a dismissal notice, the absence of a compelling explanation for failing to respond to the notice would likely weigh heavily against finding reconsideration to be in the interests of fairness and justice. It is not in the interests of fairness and justice, or the integrity of the Tribunal’s process, to grant exceptions to parties represented by experienced counsel that likely would not be granted to others.

[59] I turn now to address the Complainants’ submissions in some detail, beginning with the reasons for the failure to respond to the Tribunal’s communications and the Notice.

[60] The Complainants’ counsel says she had difficulty getting instructions from Dr. Vahabimoghaddam on whether she had documents to disclose or whether she wished to continue with her complaint. To some extent, this is a reasonable explanation for why counsel did not fully address the issue of the outstanding disclosure with the Respondents or the Tribunal. It does not explain, however, a complete lack of communication and response to the Tribunal’s communications. In my letter of May 9, 2024, I directed the Complainants to confirm their intention to proceed, and to address the outstanding disclosure issue, but I also said if the Complainants needed more time to address the disclosure issue, they could say so. Even if counsel did not want to disclose that this one complainant’s intention to proceed was not certain, she could have responded to say that she needed more time or that the complaint process should carry on, and any late disclosure could be addressed under Rule 22. The complaints were not dismissed because of the outstanding disclosure issue but were dismissed because there was no confirmation that the Complainants intended to proceed and no response to the Notice. Counsel’s difficulty getting instructions from one Complainant is not a compelling explanation for the total lack of response, including but not limited to after receiving the Notice.

[61] The Complainants’ counsel explains that she inadvertently did not attend the April 29, 2024, PHC because she did not have this date in her diary. She says she had hearings on five different matters in May 2024 as well as deadlines for final submissions in other matters. She says she did not see the Tribunal’s June 25, 2024, letter suspending the Respondents’ deadlines for filing applications to dismiss and directing the Complainants to advise of their intention to proceed by July 8, 2024. She does not say why she did not see the June 25 communication but does not say that she did not receive it. She says she received the July 22, 2024, Notice. She says she expected to be able to respond to it in good time, but did not make careful note of the deadline, and did not understand that the Tribunal intended to act without further notice to the Complainants because she had not seen s. 27.5 used in this way before. She says she was in the middle of a hearing at the Tribunal at that time with the same case manager as these complaints, and had multiple deadlines in August related to another matter.

[62] These explanations are not compelling in light of a complainant’s responsibility to diligently pursue a complaint. This responsibility called for some form of response to the Tribunal’s communications, especially the s. 27.5 Notice, which is clear on its face:

This is a notice under Rule 4(5) of the Rules of Practice and Procedure that the Tribunal may dismiss the complaints against all Respondents under s. 27.5 of the Human Rights Code if the Complainants do not take the steps set out below by August 12, 2024.

Notice to the Complainants: You must diligently pursue your complaints. If you do not act on this notice, the Tribunal may dismiss your complaints under s. 27.5 of the Human Rights Code .

By August 12, 2024 , you must write to the Tribunal and Respondents as follows:

  • Confirming that you will diligently pursue your complaint
  • Advising whether or not Dr. Vahabimoghaddam has any documents that may be relevant, and if so, disclosing those documents to the Respondents

If you do not take these steps by August 12, 2024 , the Tribunal may dismiss your complaint with no further warning to you.

[63] Any one missed PHC or missed deadline would not lead to dismissal of a complaint under s. 27.5. Indeed, it did not in this case when the Ministry raised the prospect of the Tribunal issuing a s. 27.5 notice in May 2024. But there was no communication at all from the Complainants’ counsel in response to the following Tribunal correspondence:

a. April 29, 2024, letter advising that counsel missed the PHC that day and directing the Complainants to update the Respondents about the outstanding disclosure issue as soon as possible;

b. May 9, 2024, letter advising that a s. 27.5 notice was not warranted at that time, but that confirmation of the Complainants’ participation was warranted, and directing the Complainants to update the Tribunal and Respondents by May 23, 2024, on whether they intend to pursue their complaint and on the outstanding disclosure issue;

c. June 11, 2024, email from the case manager advising the parties that if they wished to respond to the Ministry’s letter of June 6, 2024, they may do so by June 17;

d. June 25, 2024, letter suspending the deadlines for applications to dismiss, setting out the Complainants’ failures to respond to the Tribunal’s directions that may form the basis for a s. 27.5 notice under Rule 4(5), and giving the Complainants an opportunity to respond by July 8, 2024, to advise of their intention to pursue their complaints; and

e. The July 22, 2024, Notice that the Tribunal may dismiss the complaints under s. 27.5 if they did not confirm their intention to pursue their complaints by August 12, 2024.

[64] Counsel’s reasons for her lack of communication do not include a reasonable explanation for why she could not have sent even a brief letter or email to the Tribunal and Respondents. The Tribunal will always consider a party’s requests for extensions or adjournments, with submissions from other parties on how any requests may impact them. But the Tribunal cannot speculate about a party’s reasons for their lack of communication or about what they may need in the absence of any communication. This is as true and important when a complainant is represented by counsel with other matters at the Tribunal as when complainants are self-represented. The Tribunal must be able to count on counsel’s communication, or lack of it, as representing the Complainants. It would not be fair or appropriate for the Tribunal to consider a counsel’s activities on other files when deciding an issue on a complaint, or to consider any information other than parties’ submissions and communications on that complaint. It would not be any more appropriate to consider counsel’s known activities on other files than it would be to gather information outside of the complaint process about a self-represented party and consider that information to make a decision.

[65] In this case the Tribunal could not speculate that a lack of response on these complaints might be because counsel was busy on other files. It also would not have been appropriate to speculate that since counsel was active on other Tribunal files, the lack of communication on this one might mean that the Complainants did not intend to proceed. This case underscores the importance of complainant counsel maintaining communications with the Tribunal on a complainant’s behalf, and the importance of the Tribunal and other parties to a complaint relying on counsel as representing their clients.

[66] The Complainants’ counsel also says she could not have responded with a brief communication because she understood that the Respondents and the Tribunal were demanding a full answer about Dr. Vahabimoghaddam’s documents and production of those documents. She says the Respondents and Tribunal would not have been satisfied if that was not provided. She also submits that the next significant step in the complaint process was for the Respondents to file any applications to dismiss and that they contributed to the delay by asking for extensions to the deadline set on the PHC.

[67] Respectfully, these are not compelling explanations in light of the Tribunal’s and the Respondents’ communications. It is clear in the letters that the Tribunal sought confirmation that the Complainants intended to proceed. The issue about the Complainants’ intentions arose in the first place because counsel did not attend the PHC and did not respond to communications after the PHC. It was clear that the Tribunal sought confirmation of the Complainants’ intention to proceed before the Respondents and Tribunal expended significant resources on applications to dismiss.

[68] Aside from their counsel’s explanations, the Complainants also make submissions related to the remedial purposes of the Code . They submit that it is not fair to them to have their complaint dismissed because of their counsel’s failures when four of them have never wavered in their intention to diligently pursue their complaints. They say that they and other community members have spent hundreds if not thousands of hours assembling and organizing the relevant documentary record. They say they have invested time in reviewing the Respondents’ disclosure in detail, requesting many categories of additional documents from all Respondents, and preparing letters explaining their rationale for their document requests and providing particulars. They say dismissal is unfair and disproportionate in light of all of this work, especially since the issue of the outstanding disclosure was a minor one involving documents relevant to only one complainant.

[69] It is regrettable that the Complainants have put a great deal of work into their complaints and have lost the opportunity to pursue them, but I do not find this to be a reason that fairness and justice require reconsideration in these circumstances. I considered that the Tribunal’s reconsideration power is specific to the human rights context and the remedial purposes of the Code . However, the finality principle means that this power must have a restricted application and that the onus is on the Complainants to persuade the Tribunal to reconsider the Dismissal Decision.

[70] I considered that it is complainants who determine the scope of complaints they wish to pursue and how to pursue them. In their application the Complainants say that the Respondents were not forthcoming with disclosure, but they chose not to make an application for disclosure to avoid further delays in the process. This means that the Tribunal did not make any decisions about the relevance of the scope of disclosure they sought, and I do not make any assessments of this in this decision. I do consider the extensive scope of their disclosure requests, the fact that they are the parties in control of the scope of their complaints and their disclosure requests, and that the scope of their requests underscore the importance of a complainant’s responsibility for communicating with the Tribunal and diligently pursuing their complaints. The Complainants submitted copies of their letters to the Respondents requesting additional disclosure with their application for reconsideration, and it is apparent that they made broad requests for documents dating as far back as 1993. It is the Complainants who chose to pursue their complaints in this manner. I cannot find that the amount of work they have put into their complaints means fairness and justice requires overturning the Dismissal Decision when their counsel does not have a reasonable explanation for failing to maintain communications in a complaint process involving significant resources from multiple Respondents.

[71] I also do not find that dismissal was disproportionate. I have explained that the complaints were not dismissed because of the outstanding disclosure issue, but because the Complainants’ counsel did not confirm their intention to continue to pursue their complaints. Dismissal was the next step to take. For over three months and at a significant juncture in the complaint process, it was not clear whether the complainants intended to pursue their complaints. They failed to respond to several Tribunal communications, including the Notice saying the complaints might be dismissed without further warning if they did not respond. In these circumstances, I do not agree that dismissal was disproportionate.

[72] The Complainants also submit that the Ministry was aware that they intended to pursue their complaints. They base this argument on submissions Dr. Pooyan made in two actions against him by the Ministry between March 2021 and April 2023. They say it was clear to the Ministry that Dr. Pooyan intended to pursue his complaint and relied on it to address the Ministry’s efforts to recover funds from him for breach of a return of service agreement, which the Complainants argue in their complaint was discriminatory. The Complainants’ counsel is also retained to act for Dr. Pooyan in those proceedings. Those proceedings were stayed pending the outcome of this complaint. The stay was continued on May 29, 2023. Dr. Pooyan’s position is that the Ministry’s attempts to collect on the return to service agreement while his complaint is underway is an ongoing abuse of process, and the Ministry’s action against Dr. Pooyan took time and attention away from the Complainants’ work on the complaints.

[73] For its part, the Ministry says it has been uniquely prejudiced by delays in this complaint process because Dr. Pooyan is raising the Code as a shield to defend against its contract claim related to the return to service agreement.

[74] Dr. Pooyan’s position in response to the Ministry’s contract claim is not a basis for reconsideration of the Dismissal Decision. Even if the Tribunal had more information about this action at the time of the Dismissal Decision, it would not have been appropriate to speculate about the Complainants’ current intentions based on Dr. Pooyan’s position or counsel’s representation of him in that separate process, which was stayed over one year before the Tribunal issued the Notice.

[75] The Complainants also ask the Tribunal to consider the importance of their complaint to them and to international medical graduates in Canada generally. In their complaints they allege that each of the five Respondents has a part in the system for licencing international medical school graduates to practice medicine in Canada. They say that the system discriminates against graduates of international medical schools by requiring them to complete a residency program and prioritizing graduates of Canadian medical schools for residency positions. They allege that this system is discriminatory on the basis of protected characteristics including race and place of origin.

[76] The Complainants say they have each suffered significant interference with their ability to move forward with their medical careers and lives in Canada because of the alleged discrimination. They say the loss of the opportunity to describe their experiences is a significant harm to them going to the heart of who they are and their participation in Canadian society, Further, they say, that addressing the issues in their complaints would benefit other international medical graduates and the broader community.

[77] I accept that the issues the Complainants sought to address in their complaints are important to them and may have some importance to their broader community. However, this does not persuade me that reconsideration is in the interests of fairness and justice in all the circumstances of this case. The Complainants submit that their efforts underscore their commitment and that it is clear that they have diligently pursued their complaints to the best of their ability. I accept that four of the five Complainants intended to pursue their complaints and that they did not know that the Tribunal was seeking confirmation that this was the case. The difficulty with learning this only after the complaints were dismissed is that this result did not occur because of any unfairness in the Tribunal’s process. Consequently, I do not find that it is in the interests of fairness and justice for the Tribunal to remedy it when this would require exercising the narrow reconsideration discretion to give an exception to complainants with legal counsel in the absence of a reasonable explanation.

[78] In short, it is not the Complainants’ fault that their intentions were not conveyed to the Tribunal, but neither is it the result of any unfairness in the Tribunal’s process. The Complainants suggest that if the Dismissal Decision were reconsidered and the dismissal reversed, some of the Complainants themselves or an advocate could be added to the Tribunal’s email distribution list to avoid any future communication delays. This would not be consistent with the important requirement that the Tribunal and Respondents be able to rely on the Complainants’ counsel to represent them. Further, it is easy to imagine that doing so would likely create confusion and inefficiency. Above I explained how the Complainants essentially sought an exception to the Rules based – ironically – on the fact that they have experienced counsel. The proposal to add some of the Complainants or an advocate to the email list is, in effect, a request for another exception – one that would have the effect of the Tribunal and Respondents being unable to rely on their counsel’s communications as representing them. Creating these exceptions is not in the interests of fairness and justice.

[79] I considered that the Complainants’ counsel wrote to the Tribunal and Respondents within hours of the Tribunal issuing the Dismissal Decision. Counsel’s explanation for this is that she had a hearing scheduled on that date that adjourned early in the day, so she was available to respond to the Dismissal Decision.

[80] Counsel’s diligence in contacting the Tribunal and Respondents about the Dismissal Decision does not persuade me that reconsideration is in the interests of fairness and justice in all of the circumstances. This timing allowed the Complainants to submit a thorough application for reconsideration within the timeline for doing so. However, I have already explained why counsel’s explanations and the integrity of the Tribunal’s process are the most significant considerations on the application. Her prompt response to the Dismissal Decision does not convince me otherwise.

[81] I considered the Complainants’ submission that there would be no significant prejudice to the Respondents in setting aside the Dismissal Decision. They say the Respondents’ efforts in the s. 27.5 process were limited to brief letters to the Tribunal, and they were relieved of the deadline to submit applications to dismiss.

[82] For their part, the Respondents each submit that they are prejudiced by the Complainants’ failure to adhere to the Tribunal’s Rules and directions, especially in the context of some issues in the complaints going back decades, and the Complainants’ extensive requests for document disclosure.

[83] I considered that the Respondents did not need to file complex or extensive submissions in the s. 27.5 process, and that if the application for reconsideration were allowed, and the complaints were reopened, by this point in time the process will have added a delay of about seven months after the deadlines for applications to dismiss were initially set in April 2024.

[84] I cannot accept that there is no significant prejudice to the Respondents in these circumstances. When one party to a complaint does not follow the Tribunal’s Rules and directions, and does not respond to the Tribunal’s communications, it is likely that the resulting delays and lack of clarity will prejudice the other parties. In this case, the Complainants’ failure to confirm their intention to proceed would have added an unnecessary delay of several months even if they had responded to the Notice, and since they did not, the delay in the process if the complaints were reopened at this stage would be significant.

[85] Even if the prejudice to the Respondents were less significant, this would not persuade me to reconsider the Dismissal Decision. I consider the impact on the Tribunal’s process to be a more significant consideration than the level of prejudice to the Respondents in all of the circumstances of this case.

[86] Finally, I address the parties’ submissions on the facts in Zutter , which initially set out the Tribunal’s reconsideration discretion. I recognize that in Zutter there was an issue between the complainant and his counsel that factored into the decision that the result of his complaint being dismissed was not fair to him in the general sense of the word. Although all of the facts are not clear from the Court’s decision, the decision does say that the complainant’s lawyer did submissions and sent them, but the Council did not receive them. It appears that some unfairness may have existed in the process between the Council and the complainant’s counsel.

[87] In this case I have found there was no unfairness in the Tribunal’s process, including in how the Tribunal communicated with the Complainants’ counsel and her opportunities to respond. There is no issue here of counsel having done submissions or attempting to send communications that were not received because of some technical error or other compelling explanation. This is why the result in this case is different from the result in Zutter .

F. Costs

[88] The AFMC seeks costs of this application under Rule 4(2)(a). It says this application was necessitated by the complainants’ failure to comply with the Tribunal’s directions. The College seeks costs on a similar basis, and submits that the Complainants’ counsel’s failure to comply with the Tribunal’s directions resulted in the need for this application.

[89] The Tribunal may award costs only against a party who has engaged in improper conduct in the course of a complaint, or has otherwise contravened the Rules or an order of the Tribunal: Code , s. 37(4). The College and AFMC do not submit that the Complainants engaged in improper conduct. In any case, an award for costs at the Tribunal is punitive, not compensatory, and is meant to serve as a deterrent to prevent similar conduct: Asad v. Kinexus Bioinformatics Corp. , 2008 BCHRT 293 at para. 1003. The Complainants have had their complaints dismissed because their counsel did not tell them that the Tribunal sought confirmation of their intention to proceed and did not respond to the Tribunal. This clearly has a significant impact on the Complainants. An order for costs against them would not serve any punitive or deterring purpose in the circumstances.

[90] I do not order the Complainants to pay costs against any Respondent.

IV CONCLUSION

[91] The Application for reconsideration is denied.

Jessica Derynck

Tribunal Member