Moon v. IATSE Local 891 and others (No. 2), 2024 BCHRT 349
Date Issued: December 18, 2024
File(s): CS-000277
Indexed as: Moon v. IATSE Local 891 and others (No. 2), 2024 BCHRT 349
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:
Kelly Moon
COMPLAINANT
AND:
IATSE Local 891, Rod Haney, and James Fantin
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO RECONSIDER A DECISION
Rule 36
Tribunal Member: Jonathan Chapnick
Counsel for Complainant: Menachem Freedman
Counsel for Respondents: Allison Tremblay
I INTRODUCTION
[1] In 2020, Kelly Moon filed a human rights complaint against Local 891 of the International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States and Canada [ Local 891 ] and two of its elected representatives, Rod Haney and James Fantin [collectively, Respondents ]. From January 2008 to December 2019, Ms. Moon had worked for Local 891 in an elected position. Her human rights complaint related to events beginning in 2018 and culminating in her unsuccessful re-election bid in 2019. In her complaint, Ms. Moon alleged that the Respondents and others engaged in a disability-related smear campaign against her. More specifically, she alleged that she had a gambling addiction, and that the Respondents used their knowledge of her addiction to publicly call into question her integrity and suitability for her position, which ultimately led to her election loss.
[2] The Respondents applied to dismiss Ms. Moon’s complaint without a hearing under various sections of the Human Rights Code , including ss. 27(1)(b) and (c). In a decision on June 19, 2024, I granted their application and dismissed Ms. Moon’s complaint under s. 27(1)(c) on the basis that it had no reasonable prospect of success: Moon v. IATSE Local 891 and others , 2024 BCHRT 186 [ Original Decision ].
[3] The Original Decision turned on the lack of evidence before the Tribunal regarding the first element of Ms. Moon’s case – her alleged disability. During the dismissal application process, the Respondents disputed Ms. Moon’s ability to prove this element of her case if it went to a hearing. It was therefore up to Ms. Moon to file some evidence capable of proving she had a disability within the meaning of the Code . I found that she had not done so. On the whole of the evidence before the Tribunal, I decided that the information regarding Ms. Moon’s disability fell short of the low evidentiary threshold under s. 27(1)(c). The evidence allowed only for speculation that Ms. Moon had a disability, which was not sufficient for her complaint to continue forward.
[4] Shortly after the Original Decision was issued, Ms. Moon filed a timely application to reconsider it. Her application is primarily about procedural fairness. She argues that the dismissal application was decided based on a challenge to her case of which she had no notice and to which she had no opportunity to respond.
[5] The Respondents oppose Ms. Moon’s application.
[6] For the reasons that follow, I decline to reconsider the Original Decision. I am not satisfied that the interests of fairness and justice require the Tribunal to exercise its limited reconsideration power in this case. Ms. Moon’s application is denied.
II BACKGROUND
[7] Background information regarding Ms. Moon’s complaint is set out in the Original Decision: see paras. 6-14. I do not repeat it here.
[8] In the Original Decision, I dealt with not only a dismissal application but also a request for costs and a preliminary issue related to solicitor-client privilege. Ms. Moon’s application for reconsideration is not about the costs request or privilege issue. The present application relates only to my decision under s. 27(1)(c) of the Code .
III DECISION
[9] In general, once the Tribunal decides an issue, the decision is final. The Tribunal’s jurisdiction to consider the issue is “spent”: Fraser Health Authority v. Workers’ Compensation Appeal Tribunal , 2014 BCCA at para. 160, upheld on this point in 2016 SCC 25 [ Fraser Health ]. The decision “cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances”: Chandler v. Alberta Association of Architects , [1989] 2 SCR 848 at 861.
[10] This type of finality is fundamental in administrative tribunal processes: see Tuson v. The Board of Education of School District No. 5 (No. 5) , 2021 BCHRT 14 at para. 7. Administrative tribunals are meant “to facilitate the expeditious resolution of disputes”: British Columbia (Workers’ Compensation Board) v. Figliola , 2011 SCC 52 at para. 1 [ Figliola ] para. 27. Litigants want their legal issues resolved by an authoritative adjudicator in a way that is as fair and efficient as possible. Fairness requires that they be able to rely on the adjudicator’s decision as final and binding, subject only to rights of review or appeal: Figliola , 2011 SCC 52 at para. 1. Accordingly, the Tribunal’s power to reconsider a decision, once made, is necessarily very narrow: Tuson at para. 8. This narrowness not only furthers the principle of finality in administrative proceedings, but also serves to protect the Tribunal’s finite resources (and those of the parties) from the undue time and expense of potentially endless proceedings: MacLennan v. BC Ministry of Public Safety and Solicitor General , 2018 BCHRT 214 at para. 13. A party who disagrees with a Tribunal decision can seek judicial review, subject to which the parties should be able to count on the decision being final: Tuson at para. 8.
[11] The Court of Appeal has identified two very narrow exceptions to this finality: (1) where the Tribunal makes a non-substantive “slip” or mistake, and (2) where the Tribunal fails to exercise the jurisdiction given to it: Fraser Health at para. 141; see Tuson at para. 9. The second exception includes circumstances where there has not been procedural fairness: Fraser Health at para. 161. The Tribunal also has an equitable jurisdiction to re-open a decision where the interests of justice and fairness require it to do so, which is reflected in Rule 36(1) of the Tribunal’s Rules of Practice and Procedure : see Zutter v. British Columbia (Council of Human Rights) (1995), 122 DLR (4 th ) 665 (BCCA). This power is meant to be exercised carefully and restrictively in deference to the principle of finality: Zutter at para. 31.
[12] Ms. Moon’s reconsideration application is not about non-substantive mistakes. It is primarily about procedural fairness. The Original Decision centered on a challenge under s. 27(1)(c) to her prospects of proving the first element of her case at a hearing. Ms. Moon argues that she was not given notice of, or an opportunity to respond to, this challenge. She says there was “an entirely vague allusion to it,” or no allusion at all, in the Respondents’ initial written arguments. Further, she says it was only raised in a vague way in the Respondents’ reply submission [ Reply ], which was an inappropriate expansion of their dismissal application. She says she did not have an opportunity to argue against its form or its substance.
[13] I acknowledge that Ms. Moon raises fundamental procedural fairness concerns that could support reconsideration. However, I am not persuaded that her concerns are substantiated.
[14] In my view, the submissions process leading to the Original Decision allowed Ms. Moon to know the Respondents’ case for dismissing her complaint under s. 27(1)(c), and to respond to it and put forward evidence in support of her position: R. v. Nahanee , 2022 SCC 37 at para. 55. The process began with the Respondents filing their written arguments and materials in support of the dismissal application. Next, Ms. Moon made written arguments in response to the application [ Response ], and filed evidence in support of her position. Last, the Respondents filed their Reply.
[15] The Respondents made their case for dismissal on various grounds, including s. 27(1)(b) and s. 27(1)(c). There is some analytical overlap between these two provisions. However, determinations under them are materially different: Francescutti v. Vancouver (City) , 2017 BCCA 242 at para. 49. Section 27(1)(b) is about the sufficiency of the facts alleged in the complaint; it is not about all the evidence before the Tribunal. In contrast, s. 27(1)(c) is about the whole of the evidence before the Tribunal and the complainant’s prospects of proving the elements of their case. In their Reply, the Respondents’ made it clear that they were challenging Ms. Moon’s prospects of proving her alleged disability under s. 27(1)(c).
[16] The Reply began with submissions regarding the facts and evidence put forward in the Response. At paragraph 5, the Respondents asserted that Ms. Moon was aware they had “put the existence of her disability in dispute in this proceeding,” but she had “submitted no evidence establishing a disability other than her bare assertion.” They then directly addressed Ms. Moon’s sworn statement, which had accompanied the Response. They said she had not attached any evidence to her statement to prove her disability. These challenges to the sufficiency of Ms. Moon’s evidence regarding the first element of her case are properly considered under s. 27(1)(c), where the Tribunal assesses whether a complaint has no reasonable prospect of success based on all the evidence before it: Workers’ Compensation Appeal Tribunal v. Hill , 2011 BCCA 49 at para. 27; Francescutti at para. 50.
[17] At paragraph 10, the Respondents went on to assert that Ms. Moon’s “failure to provide any evidence of her disability is sufficient to dismiss her complaint in its entirety.” I appreciate that this assertion was made in the s. 27(1)(b) part of the Reply. However, it was more properly considered under s. 27(1)(c) and was followed by further submissions regarding the evidence before the Tribunal, after which the Respondents stated the following in the first paragraph of the s. 27(1)(c) part of the Reply:
To the extent that there is overlap between subsections (b) and (c), we submit that it is available for the Tribunal to make its decision under (c) on the basis of the arguments under (b).
[18] For convenience, I will refer to this as the “ Statement .” Ms. Moon argues that the Statement was vague and ambiguous. I disagree. It was a clear declaration of the Respondents’ position. They confirmed they had made s. 27(1)(c) arguments in the s. 27(1)(b) parts of their submissions, and they submitted that the Tribunal should consider those arguments. I also disagree with Ms. Moon’s assertion that this was an inappropriate attempt to expand the dismissal application. In my view, it was more in the nature of a clarification, which was directly responsive to Ms. Moon’s narrow expression, in the Response, of the s. 27(1)(c) case against her. In any event, Ms. Moon had an opportunity to respond to the Reply.
[19] The Tribunal’s Rules of Practice and Procedure [ Rules ] allow a party to request that the Tribunal consider a further submission to address a new issue raised on reply. To do so, the party must file an application under Rule 28(5), attaching their further submission and stating why fairness requires that the Tribunal consider it. Ms. Moon could have applied under this rule to file a further submission in response to any new issues she says were raised in the Reply. She did not.
[20] Ms. Moon says she did not understand the Statement to be “a valid invitation for the Tribunal to determine which s. 27(1)(b) arguments made in the [dismissal application] could overlap with possible arguments under s. 27(1)(c) and then to assess those arguments.” In my view, if she understood the Statement to be invalid, or if she perceived a potential impropriety or unfairness arising from the Reply, it was incumbent on Ms. Moon to raise her concerns with the Tribunal by applying to make further submissions: see Sun v. Vancouver City Savings Credit Union (No. 2) , 2024 BCHRT 206 at para. 18. If she believed that fairness required the Tribunal to give her an opportunity to respond to the Reply, then it was her responsibility, under the Rules, to say so. The Rules do not require the Tribunal to seek further submissions on its own motion: Sun at para. 24. Nor does the Code impose such a requirement. I accept that the purposes of the Code and the principles of procedural fairness could, in exceptional cases, impose such a requirement. But not in this case, where Ms. Moon was represented by experienced legal counsel and had been put on notice of the case for dismissal she had to meet.
[21] I acknowledge Ms. Moon’s argument that it is unfair for a respondent to move the goal posts on reply. However, if she believed the Reply did so, she should have applied to make further submissions. That is what the parties did in most of the cases Ms. Moon cited in support of her application for reconsideration: see Prasad v. Sunwood Drugs and others , 2011 BCHRT 165 (respondent objected to complainant’s reply submissions, stating they were improper and should be disregarded or respondent should be allowed to file sur-reply); M v. The Residence , 2017 BCHRT 135 (complainant objected to respondent’s reply submissions and sought to file further submissions); Stein v. Vancouver Coastal Health Authority and another (No. 3) , 2015 BCHRT 180 (respondents argued that complainant’s reply was improper and should be disregarded or respondents should be permitted to make further submissions); Lovado v. BC Ministry of Public Safety and Solicitor General , 2019 BCHRT 167 (after respondent filed reply, complainant applied under Rule 28(5) to file further submissions).
[22] Ms. Moon notes that the submissions schedule for the dismissal application included an opportunity for her to file a final submission in response to the Reply for the limited purpose of addressing the privilege issue. In her application for reconsideration, she argues that, because the submissions schedule limited the permissible scope of her final submission, she would have needed to apply to the Tribunal to reconsider the submissions schedule in order to file a further submission regarding her concerns about the Reply. I disagree. Nothing in the submissions schedule precluded Ms. Moon from applying to file a further submission under Rule 28(5). She did not need to apply for reconsideration of the submissions schedule.
[23] Ms. Moon cites Siebert v. McDonald’s (Abbotsford) , 2024 BCHRT in support of her application for reconsideration. In that case, the respondent filed its dismissal application under s. 27(1)(b), but all of its arguments related to the analysis under s. 27(1)(c). In the circumstances of that case, the Tribunal decided the dismissal application under only s. 27(1)(b).
[24] Siebert does not stand for the proposition that the Tribunal cannot consider s. 27(1)(c) arguments made in the s. 27(1)(b) part of a dismissal application. Nor does Siebert establish that, when a party raises a new issue on reply, the Tribunal must either seek further submissions or disregard the new issue. The requirements of procedural fairness are context-specific: Nahanee at para. 53. What is fair and just in a particular case will always depend on the circumstances.
[25] I acknowledge that, in the s. 27(1)(c) parts of the Respondents’ submissions, they focused their arguments on the question of whether the alleged discrimination occurred in the area of employment. They argued that Ms. Moon was not employed by Local 891, and so her complaint had no reasonable prospect of success. In her reconsideration application, Ms. Moon asserts that the Respondents deliberately argued their case this way. She says there is no reason to think the Respondents mistakenly put their arguments regarding her alleged disability in the s. 27(1)(b) part of their submissions, or mistakenly failed to make their arguments under the proper subsection. She asserts that the Original Decision “erred by finding otherwise.” I made no such finding in the Original Decision. In any event, if Ms. Moon sees errors in the Original Decision, her recourse is to seek judicial review: Cameron v. Burrardview Housing Co-Operative (No. 4) , 2022 BCHRT 93 at para. 10.
[26] I do not agree with Ms. Moon’s assertion that she was “deprived of the opportunity to make further submissions” in response to the Respondents’ s. 27(1)(c) arguments regarding her alleged disability. As I have explained, the Respondents’ challenge to her prospects of proving the first element of her case was made clear in the Reply. She had an opportunity to meet this challenge by applying to put forward additional evidence and arguments under Rule 28(5). She did not do so.
[27] For all of the above reasons, I am not satisfied that the interests of fairness and justice require the Tribunal to reconsider the Original Decision. Ms. Moon’s application for reconsideration is denied.
IV CONCLUSION
[28] The Original Decision was not meant to minimize what Ms. Moon says she experienced, nor to condone the Respondents’ alleged conduct. Similarly, in denying Ms. Moon’s request for reconsideration, I make no comment about whether the Respondents treated her respectfully or fairly.
[29] Ms. Moon’s application to reconsider the Original Decision is denied.
Jonathan Chapnick
Tribunal Member