McDowell v. Motion Picture Production Industry Association of BC, 2024 BCHRT 351
Date Issued: December 20, 2024
File: CS-006759
Indexed as: McDowell v. Motion Picture Production Industry Association of BC, 2024 BCHRT 351
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:
Brett McDowell
COMPLAINANT
AND:
Motion Picture Production Industry Association of BC
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Jessica Derynck
On their own behalf: Brett McDowell
Counsel for the Respondent: Elizabeth Cordonier
I INTRODUCTION
[1] Brett McDowell filed a human rights complaint against the Motion Picture Production Industry Association of BC [ MPPIA ] alleging that MPPIA discriminated against him under s. 14 of the Human Rights Code because he is Métis. Section 14 of the Code says a trade union, employers’ organization, or occupational association must not discriminate against any person or member because of their Indigenous identity. He says MPPIA discriminated against him by preventing him from participating in its Equity & Inclusion Committee [ EIC ] after he made a complaint about the history of discrimination and stereotyping of Indigenous peoples in film in BC, including use of red-face to impersonate people who are Indigenous.
[2] MPPIA denies discriminating. MPPIA says it is not a trade union, employers’ organization, or occupational association, so s. 14 of the Code does not apply. MPPIA also says Mr. McDowell was asked not to continue participating in the EIC because he was seeking outcomes outside of MPPIA’s scope and mandate, and because of the frequency and tone of his communications, not because he is Métis. MPPIA applies to dismiss the complaint under s. 27(1)(a) and (c) of the Code .
[3] I find it is most appropriate to decide MPPIA’s application under s. 27(1)(c). I find that Mr. McDowell has no reasonable prospect of establishing that MPPIA is an occupational association as defined in the Code . In any case, I find that there is no reasonable prospect of Mr. McDowell establishing that he experienced an adverse impact in which his Indigenous identity was a factor.
II ISSUES
[4] To make my decision, I first consider that Mr. McDowell did not file a response to the application to dismiss and consider whether the process was fair to him. I find that the process was fair to Mr. McDowell because he had an opportunity to respond to the application and the Tribunal clearly communicated that opportunity to him. I also find that in the circumstances of this case I may consider submissions Mr. McDowell made in other parts of the Tribunal’s process that relate to the application to dismiss without any unfairness to MPPIA, so my decision includes an explanation for Mr. McDowell of why his case is not proceeding with reference to his position even though he did not respond to MPPIA’s application.
[5] Then I must decide whether there is more than no reasonable prospect that the Tribunal will find MPPIA to be an occupational association as defined in the Code . I find there is no reasonable prospect that the Tribunal will find that MPPIA is an occupational association, and I dismiss the complaint on this basis.
[6] Finally, I comment that even if MPPIA were an occupational association, or if Mr. McDowell had filed his complaint under another section of the Code that applied to MPPIA, I would find that the complaint has no reasonable prospect of success because there is no reasonable prospect of Mr. McDowell establishing that his being Métis was a factor in MPPIA’s decision to end his participation in the EIC.
III DECISION
A. Submission process and fairness to Mr. McDowell
[7] Mr. McDowell is self-represented in the Tribunal’s process. He did not file a submission in response to the application to dismiss, even though he communicated to the Tribunal in earlier submissions on other applications that he opposes the application and believes his complaint should proceed. He also suggests in his submissions on the other applications that the Tribunal’s process is not fair to him as an Indigenous complainant. In these circumstances, I found it necessary to consider whether Mr. McDowell had a fair opportunity to make submissions in response to the application to dismiss, and whether I may fairly consider submissions he made in applications that he filed.
[8] I find that the application to dismiss submission process was fair to Mr. McDowell because he had an opportunity to respond to the application, and the Tribunal clearly explained this opportunity to him.
[9] I also find that, in the circumstances of this case, I may consider submissions Mr. McDowell made in an application he filed for disclosure, and in an application he filed for reconsideration of a decision denying an application to add respondents to his complaint, without any unfairness to MPPIA. It is not strictly necessary to consider Mr. McDowell’s submissions on these other applications because he had an opportunity to respond to the application to dismiss and chose not to. However, some of his submissions are directly responsive to the application to dismiss, and I prefer to address them so Mr. McDowell may understand that I am dismissing his complaint only after considering his position and his submissions on the other applications. I find that I may do this without unfairness to MPPIA because Mr. McDowell’s submissions do not affect my decision to allow the application to dismiss.
[10] I start by briefly explaining Mr. McDowell’s participation in the complaint process.
[11] Mr. McDowell filed his complaint on April 28, 2022. The Tribunal notified the parties on August 30, 2022, that the complaint would proceed past the Tribunal’s screening stage. MPPIA responded to the complaint on October 17, 2022. The parties provided their document disclosure in February and March 2023.
[12] In a letter dated June 12, 2023, the Tribunal told the parties that MPPIA may file an application to dismiss the complaint under s. 27(1)(a) and/or (c) of the Code . Mr. McDowell subsequently sent the Tribunal several emails and letters objecting to the decision to allow MPPIA to file an application to dismiss. The Tribunal treated Mr. McDowell’s communications as a request to reconsider the decision.
[13] In a letter dated June 22, 2023, the Tribunal denied Mr. McDowell’s request to reconsider the decision allowing MPPIA to file an application to dismiss. The Tribunal set out the following schedule for MPPIA’s application and submissions:
· The Respondent has until August 21, 2023, to file a Form 7.2 Dismissal Application under s. 27(1)(a) and/or (c).
· If Mr. McDowell wants to request permission to make oral submissions in response, he must make the request within 3 days of the application being filed.
· Otherwise, Mr. McDowell will have until September 25, 2023, to file a written response.
· Any reply will be due by October 9, 2023.[14] Beginning in June 2023 Mr. McDowell began writing to MPPIA’s legal counsel to request disclosure of additional documents. He copied the Tribunal case manager on some of his emails to MPPIA’s legal counsel. On June 26, 2023, the Tribunal case manager wrote to the parties and told Mr. McDowell that he should ask MPPIA’s counsel for any documents he sought, and that if MPPIA was unwilling or unable to meet his request, he may file an application for disclosure with the Tribunal. The case manager also sent Mr. McDowell links to information on the Tribunal’s website about disclosure. The case manager reiterated this information to Mr. McDowell on June 28, 2023, sent him a link to the application form to use, and told him that if he made a disclosure application that the submission schedule for the application to dismiss would be put on hold and a schedule would be set for submissions on his application for disclosure.
[15] MPPIA provided Mr. McDowell with additional document disclosure on July 5, 2023. In response, Mr. McDowell sent an email to MPPIA’s counsel and the Tribunal requesting disclosure of documents related to MPPIA’s relationship and interactions with close to 20 other organizations or individuals. He did not file an application for disclosure. On July 10, 2023, the case manager told the parties that Mr. McDowell may file an application for disclosure if he chose to do so, but otherwise, he should not include the Tribunal in his emails to the respondent or others regarding disclosure and directed him to the Rules of Practice and Procedure , Rule 10(6).
[16] On July 7, 2023, Mr. McDowell emailed the Tribunal and MPPIA’s counsel to say he intended to include additional respondents in his complaint. On July 11, 2023, the case manager wrote to the parties and explained that Mr. McDowell needed to file an application if he wanted to seek an order adding respondents to his complaint. The case manager included links to information on the Tribunal’s website about how to do this.
[17] On July 25, 2023, Mr. McDowell filed an amendment form proposing to add seven additional respondents to his complaint. He did not file an application to amend his complaint to add the proposed respondents at this time.
[18] MPPIA filed its application to dismiss on August 17, 2023.
[19] Mr. McDowell filed his application to add additional respondents to his complaint on September 1, 2023. He did not file a response to the application to dismiss.
[20] On May 15, 2024, the case manager sent a letter to the parties telling them that the submission deadline for the application to dismiss had passed, the Tribunal would decide the application with the information it has, and if Mr. McDowell wished to file a late response he needed to apply to do so. The case manager also told the parties that the Tribunal would advise them if submissions were needed before deciding Mr. McDowell’s application to add respondents. The case manager also noted that Mr. McDowell had sent numerous emails to the Tribunal, some of which appeared to contain requests for document disclosure, and that if he was seeking disclosure of documents, he needed to make an application.
[21] Mr. McDowell filed an application for disclosure on May 16, 2024. In this application he also asked the Tribunal for a stay of proceedings, which the Tribunal refers to as a deferral, until the requested documents were delivered and he had time to review them.
[22] In a letter decision dated May 28, 2024, I denied Mr. McDowell’s application to add respondents to his complaint.
[23] Also on May 28, 2024, the Tribunal set a schedule for submissions on Mr. McDowell’s disclosure application, with a deadline of June 18, 2024, for MPPIA to respond and a deadline of June 25, 2024, for Mr. McDowell to reply.
[24] On June 6, 2024, Mr. McDowell filed his application for reconsideration of the decision denying his application to add respondents to his complaint.
[25] I denied Mr. McDowell’s application for reconsideration in a letter decision dated November 28, 2024. In another letter decision on the same date, I denied his application for disclosure and his request to defer his complaint pending his receipt and review of disclosure.
[26] I considered whether Mr. McDowell had a fair opportunity to respond to the application to dismiss because he asked the Tribunal to defer his complaint in his May 16, 2024, application, he may have expected that a deferral would give him an opportunity to file a late response to the application to dismiss, and his deferral request ultimately was denied. I considered that Mr. McDowell is self-represented and that some parties who do not have legal representation may find the Tribunal’s process challenging. I also considered submissions Mr. McDowell made based on his Indigenous identity. He says that the Tribunal’s process is biased against Indigenous ways of knowing and his efforts to address the issues in his complaint. He says the Tribunal should consider the importance of respecting and integrating Indigenous knowledge systems, cultures, and traditions, and consider legal principles that focus on communal well-being, interconnectedness, and holistic approaches to justice, to ensure a just and equitable resolution that honours Indigenous perspectives and values.
[27] The Tribunal takes steps to ensure that self-represented parties are not unfairly disadvantaged because they represent themselves, with consideration of the Canadian Judicial Council’s Statement of Principles on Self-Represented and Accused Persons : Bihari v. Deltec Electric Ltd. , 2019 BCHRT 114 at para. 23. Consistent with these principles, the Tribunal provides self-represented parties with information to help them understand what steps they need to take in their case and avoids making decisions that impact a self-represented party based on minor or technical issues. At the same time, self-represented parties are obligated to follow the Tribunal’s Rules and directions. The Tribunal may not take steps to assist a self-represented party with the process that may impact fairness to other parties.
[28] The Tribunal also considers the recommendations made by Ardith Walpetko We’dalx Walkem KC (now Justice Walkem) in her report, Expanding Our Vision : Cultural Equality & Indigenous Peoples Human Rights (2020) [ EOV Report ]. These include developing a baseline of information and understanding of racism that Indigenous Peoples experience, and reducing procedural barriers that may make it difficult for Indigenous people to make complaints and proceed through the process. At page 33 the EOV Report says a review showed a series of cases brought by Indigenous People that failed not on merits, but on technicalities and structural and procedural barriers, and an Indigenous Justice Strategy must examine the need for broader systemic changes within the Tribunal to reflect Indigenous reality and foster active participation.
[29] Any steps the Tribunal takes to ensure that an Indigenous person’s case is considered and assessed on its merits and not in a way that sets up structural or procedural barriers must be procedurally fair to all parties in the process. In particular, a party must have an opportunity to respond to any issues or submissions raised before the Tribunal makes a decision that impacts that party.
[30] In this case, I find that the Tribunal gave Mr. McDowell a fair opportunity to respond to the application to dismiss in a manner that the case manager clearly communicated to him.
[31] Mr. McDowell filed his application for disclosure and deferral more than seven months after the deadline passed for him to respond to the application to dismiss. In that application Mr. McDowell sought an order for documents that he says are related to MPPIA’s application to dismiss the complaint on the basis that s. 14 does not apply to MPPIA. Mr. McDowell presumably sought a deferral to allow him time to review any further document disclosure so he could rely on those documents in response to the application to dismiss, even though the deadline to respond to the application had long passed.
[32] I find there is no unfairness to Mr. McDowell because he had an opportunity to respond to the application to dismiss, the Tribunal clearly communicated this opportunity to him, and three months before his deadline to respond the Tribunal clearly told him what he needed to do if he wanted to make an application for disclosure that would put the submission schedule on MPPIA’s application on hold. He did not make any disclosure application during this time period, which was his opportunity to seek disclosure before responding to the application to dismiss, and to ask the Tribunal to change the submission schedule on the application to dismiss pending the outcome of a disclosure application.
[33] I considered that in his submissions on his other applications, Mr. McDowell says that under the United Nations Declaration on the Rights of Indigenous Peoples, states must ensure that Indigenous Peoples can understand and be understood in administrative and legal proceedings. He says he has a right to be understood at the Tribunal and needs a contextual understanding of his Indigenous perspective and experiences. He does not explain, however, how requiring him to file submissions according to a schedule might impact his ability to understand the process or be understood. Indeed, the Tribunal’s process of requiring Mr. McDowell to respond to the application to dismiss according to a schedule would have allowed the Tribunal and MPPIA to better understand his position and any materials he wanted the Tribunal to consider if he had followed the process. It is harder for the Tribunal to understand what a party is asking it to do, and what the party wants the Tribunal to consider, if the party does not follow the Tribunal’s processes, Rules, and directions.
[34] Mr. McDowell made submissions in his applications for disclosure and reconsideration that set out his position on MPPIA’s application. His position is that s. 14 of the Code applies to MPPIA, and that there is a connection between his Indigenous identity and MPPIA’s decision to end his participation in the EIC. Procedural fairness does not require me to consider Mr. McDowell’s submissions on the other applications when he had a chance to respond to the application to dismiss and chose not to, but since I was aware of his position on the application to dismiss through his submissions on his other applications, I questioned whether and how I may fairly take them into consideration.
[35] I find that I may fairly consider Mr. McDowell’s submissions on his other applications, and that by doing so, I am able to provide him with more comprehensive reasons for the decision that his complaint will not proceed. This may avoid an impression that the complaint is dismissed solely for technical or procedural deficiencies that possibly could have been remedied in some way. I decided that considering Mr. McDowell’s submissions on the other applications is a good use of the Tribunal’s resources in these circumstances where he questions the fairness of the Tribunal’s process. I do not need to give MPPIA an opportunity to respond to Mr. McDowell’s submissions on the other applications because I allow the application to dismiss even after considering his submissions. I explain my reasons for this below.
B. Section 27(1)(c) – dismissal on the basis that there is no reasonable prospect a complaint will succeed
[36] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[37] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence ” : Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan , 2013 BCSC 942 at para. 77 .
[38] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority , 2021 BCSC 2176 at para. 20 ; SEPQA v. Canadian Human Rights Commission , [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 [ Hill ] at para. 27 .
[39] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia , 2008 BCSC 1026 at para. 34 . However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City) , 2017 BCCA 242 at para 67.
[40] There is no dispute that Mr. McDowell is Métis and that MPPIA told him that he was no longer welcome to participate in the EIC.
[41] The onus is on Mr. McDowell to prove that s. 14 applies to MPPIA, that is, that MPPIA is a union, employers’ association, or occupational association. If he were to do this, and assuming that ending his participation was found to be an adverse impact in an area protected under the Code , Mr. McDowell would need to establish that his being Métis was a factor in that adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33.
C. There is no reasonable prospect of the Tribunal concluding that s. 14 applies to MPPIA
[42] MPPIA applied to dismiss the complaint under s. 27(1)(a) on the basis that the Tribunal does not have jurisdiction to decide the complaint because MPPIA does not meet the definition of a union, employers’ association, or occupational association. I find it more appropriate to decide the application under s. 27(1)(c) because it is not apparent to me that MPPIA’s application raises a clear legal question of jurisdiction: HTMQ v. McGrath, 2009 BCSC 180 at para. 64 . The Tribunal has jurisdiction to determine whether Mr. McDowell has more than no reasonable prospect of establishing that s. 14 applies to MPPIA in his circumstances.
[43] Deciding the application under s. 27(1)(c), I may rely on MPPIA’s affidavit evidence to decide whether Mr. McDowell has more than no reasonable prospect of establishing his case.
[44] Section 14 of the Code applies to a trade union, employers’ organization, or occupational association. Each of these is defined in s. 1 of the Code :
“trade union” means an organization of employees formed for purposes that include the regulation of relations between employees and employers;
“employers’ organization” means an organization of employers formed for purposes that include the regulation of relations between employers and employees;
“occupational association” means an organization, other than a trade union or employers’ organization, in which membership is a prerequisite to carrying on a trade, occupation or profession;
[45] The Tribunal must take a broad, liberal and purposive approach to interpreting the Code , keeping in mind the underlying purposes in s. 3, including to foster a society in BC in which there are no impediments to full and free participation in economic, social, political, and cultural life, to prevent discrimination, provide a means of redress for those who experience discrimination, and to identify and eliminate persistent patterns of inequality associated with discrimination. However, the Tribunal may not ignore the words of the Code in order to prevent discrimination wherever it may be found. I must give the Code a liberal and purposive construction, but without reading out limiting words in the relevant definitions: University of British Columbia v. Berg , 1993 CanLII 89 (SCC).
[46] MPPIA relies on affidavits from a member and the current chair of MPPIA [ MPPIA Chair ], and a member of MPPIA and co-chair of the EIC [ EIC Co-Chair ] at the times relevant to the complaint. They explain that MPPIA is a member-based, non-profit society established in April 2002 to grow, diversify, and promote a competitive and sustainable motion picture production industry in BC. Their evidence is that MPPIA’s membership is voluntary and is made up of industry leaders from each sector of BC’s production industry, including both unions and employers.
[47] There is no reasonable prospect of the Tribunal concluding that MPPIA meets the definition of a trade union or employers’ organization under the Code . There is no suggestion that MPPIA represents either employees or employers for purposes including regulation of relations between those two groups. Rather, there is no dispute that it includes both unions and employers in its membership.
[48] I also find that there is no reasonable prospect of the Tribunal concluding that MPPIA is an occupational association because there is no evidence that membership in MPPIA is a prerequisite to carrying on any trade, occupation or profession.
[49] In Bartram v. Okanagan University College Students’ Assn. (Kelowna) , 2005 BCHRT 174 at para. 11, the Tribunal decided that a student association was not an occupational association for the purposes of the Code :
The term “occupational association” is normally used to describe bodies which represent the members of a single occupation, trade or profession, such as the Law Society of British Columbia or the College of Nurses. Such organizations typically have the authority to set requirements for accreditation and the right to set and enforce standards of professional conduct for their members. The Students’ Association has no such power. It cannot affect the relationship between a student and OUC. It serves to advance the interests of its members but not in respect of any particular trade or calling and not with any power over their access to employment activities.
[50] The MPPIA Chair and EIC Co-Chair explain that MPPIA serves to advance the interests of its members, but not in respect of any particular trade or calling, and not with any power over its members’ access to employment activities. On this basis, I find there is no reasonable prospect of the Tribunal concluding that it meets the definition of occupational association in s. 14 of the Code .
[51] In his application for disclosure, Mr. McDowell sought documents from MPPIA related to its relationships and interactions with numerous other organizations. He submitted that the documents he requested were relevant to determining MPPIA’s “employment related activities”. In a letter to the Tribunal and MPPIA’s counsel dated June 12, 2023, which he submitted in support of his disclosure application, Mr. McDowell said that MPPIA’s influence within the film industry effectively impacts his trade or profession, and makes it comparable to the types of organizations listed in s. 14 of the Code . He says, “any entity having a substantial influence on a profession can be viewed as an occupational association under the right circumstances.” He requested disclosure of documents including any related to a tragic death on a film set in 2017, and minutes of meetings with government organizations.
[52] In his June 12, 2023, letter, Mr. McDowell also said:
In my case, while it is correct that the MPPIA is not a trade union, employer’s association, or occupational association as per the definitions set out in section 1 of the Code, the authority and influence it wields within the film industry in BC can indeed be compared to such entities, effectively impacting my trade or profession. Moreover, the respondent’s argument that MPPIA does not have authority to set requirements for accreditation or enforce standards of professional conduct for its members should not be the only determining factor for establishing jurisdiction.
[53] Mr. McDowell effectively asks the Tribunal to take a broad reading of s. 14 and find that MPPIA is close enough to the types of organizations listed to find discrimination in his circumstances.
[54] I find that there is no reasonable prospect of the Tribunal applying s. 14 to MPPIA as Mr. McDowell suggests, even taking a broad, liberal, and purposive approach to the Code . There is no suggestion that membership in MPPIA is “a prerequisite to carrying on a trade, occupation or profession”. Even if MPPIA has authority and influence in the film industry and effectively impacts Mr. McDowell’s profession, there is no reasonable prospect of the Tribunal applying s. 14 to his circumstances. Doing so would require reading out the requirement that membership in MPPIA be a prerequisite to carrying on a trade, occupation, or profession, rather than having a more general effect on the industry.
[55] I dismiss the complaint on this basis.
[56] This means I do not need to consider MPPIA’s other submissions in its application. However, I address those submissions below so Mr. McDowell is aware that I would have dismissed the complaint even if I had found there was more than no reasonable prospect of the Tribunal applying s. 14 to MPPIA in his circumstances.
[57] I considered that Mr. McDowell is a self-represented complainant and that a dismissal based solely on the prospect of whether s. 14 applies may seem to be a technical reason that his complaint will not proceed. For this reason, I include an explanation in my decision that I would have dismissed his complaint under s. 27(1)(c) in any event.
[58] To be clear, I do not suggest that the Tribunal may have decided that another section of the Code applies to MPPIA in Mr. McDowell’s circumstances if he had filed his complaint under a different section. It would not be appropriate to do so without MPPIA having an opportunity to make submissions on that issue. I only provide these comments so Mr. McDowell may be aware that the hurdle of establishing that s. 14 applies is not the only issue that would have prevented his complaint from proceeding to a hearing.
D. There is no reasonable prospect of the Tribunal concluding that Indigenous identity was a factor in the decision to end Mr. McDowell’s participation in the EIC
[59] I find that there is no reasonable prospect that Mr. McDowell would prove that his being Métis was a factor in MPPIA deciding that he may no longer participate in the EIC. Rather, MPPIA is reasonably certain to establish that it ended his participation for non-discriminatory reasons. The non-discriminatory reasons are that Mr. McDowell demanded the committee take on advocacy activities beyond its mandate, and in doing so, communicated with committee members in a manner that made some of them uncomfortable and interfered with the committee’s work. I find there is also no reasonable prospect of the Tribunal concluding that Mr. McDowell’s Indigenous identity is a factor in his demands of MPPIA or how he communicated with the EIC.
[60] In an email to MPPIA’s counsel dated August 22, 2023, which Mr. McDowell submitted in support of his disclosure application, he raised a question about the credibility of MPPIA’s affidavits. He submitted on the disclosure application that any information or documentation related to the affidavits should be disclosed.
[61] On the disclosure application I found that the documents Mr. McDowell sought were not relevant to his complaint or MPPIA’s response to his complaint.
[62] On this application I find that there is no basis to question the credibility of MPPIA’s affidavits, and no issues of credibility that would require the complaint to proceed to a hearing. The evidence in the affidavits is largely based on documentary evidence. The EIC Co-Chair’s affidavit is largely based on email exchanges with other EIC members, and on some email exchanges with Mr. McDowell, which he does not dispute.
[63] To explain why I find Mr. McDowell has no reasonable prospect of establishing the required connection, I start by setting out the extent of his involvement with MPPIA and the EIC.
[64] MPPIA says Mr. McDowell is not a MPPIA member, and Mr. McDowell does not claim to be a member. In fall 2001 MPPIA invited Mr. McDowell to participate in the EIC as a guest. On October 27, 2021, Mr. McDowell emailed the EIC Co-Chair, the other EIC co-chair, and others from MPPIA. He said a family member had recently faced discrimination in another province and through that situation he realized that he found film to be a safer space for Indigenous people because of the understanding and openness he has seen in the industry. He said “I am hoping that a holistic BC based approach to onboarding [Indigenous] talent, creatives and labour would best address the unique challenges facing [Indigenous] people in BC. I look forward to getting a chance to be acquainted.”
[65] Mr. McDowell attended three EIC meetings between November 2021 and February 2022.
[66] In December 2021, MPPIA hosted a Christmas party. The EIC Co-Chair explains in her affidavit that MPPIA intended to invite Mr. McDowell to the party, but he did not receive his invitation because of a typo in his email address. An exchange followed in which Mr. McDowell emailed several members of MPPIA stating that it was racist not to invite him to the party, MPPIA members told him he was always intended to be invited and that the missed invitation was a result of a typo. The EIC Co-Chair apologized and offered to have a facilitated discussion with Mr. McDowell to explore and learn from the incident, and Mr. McDowell declined the offer. I explain below that Mr. McDowell’s communications on this issue are relevant to the EIC’s decision to end his participation.
[67] On March 11, 2022, Mr. McDowell emailed the EIC with the subject line “Indigenous Erasure”. He included a photo of three well-known film actors and said everyone in the photo had engaged in Indigenous erasure or appropriation targeting women. He said a popular film franchise could have addressed the genocide of missing and murdered Indigenous women, girls, and two spirit people and the failure to stop a serial killer targeting Indigenous women, but it did not. He said “Does white make right or will we finally stand for the girls that have been raped and silenced? So I ask everyone of you, do indigenous women matter to you? Or are you going to stand there and do nothing as white men who have profited off the erasure of indigenous people continue to avoid accountability? We can end this genocide if you stand up now. ” [as written]
[68] On March 14, 2022, Mr. McDowell sent the EIC another email about a MPPIA social media post, which he said MPPIA was posting without addressing the racism he had raised, or that a local Asian composer had brought up in another complaint. He said, “White makes right eh?”
[69] Another EIC member responded to Mr. McDowell’s March 14 email without copying the rest of the EIC. She thanked Mr. McDowell for keeping her in the loop, and said she had looked through everything he had shared. She said she considered that the productions Mr. McDowell referenced were years old, and she was trying to anticipate how others would respond to his concerns. She asked Mr. McDowell how he would respond to a counter-point that those films were made years ago and in a different time, but there have been improvements since then.
[70] Mr. McDowell replied and said the careers of the individuals in the photo he sent on March 11 “were built on an ‘Indian Graveyard’” and they had made no massive improvements. He said the experience of another individual who he knows “demonstrates racial protectionism to maintain that benefit” and that the film franchise he referred to in his March 11 email turned a character from “a bad ass ninja with autonomy” into “a Kawaii sex doll.” He said the member should wait to see the next document he had coming out. Mr. McDowell then sent this member two further emails about the issue.
[71] The EIC Co-Chair responded to Mr. McDowell’s March 14 email, copying the EIC, on March 22, 2022. She said the EIC would put the issues he had raised in his emails and social media DMs at the top of the next scheduled meeting on April 13, and she looked forward to a respectful and transparent discussion between all participants. She said the EIC is a volunteer group of industry representatives who gather to work together to contribute to positive change for a more representative and equitable industry, within the scope of the association’s mandate and capacities. Mr. McDowell replied to her email and said, “There is more to come very soon.”
[72] In her affidavit the EIC Co-Chair says the EIC was understanding of the causes Mr. McDowell wished to champion, but they are not within the EIC’s mandate. She says the committee does not lobby for certain content within the film industry in BC but works to find ways to increase diversity of those working in the industry. She attached an EIC vision and mandate statement dated October 2021 to her affidavit, which says the EIC’s objective is to develop and/or contribute to strategies and programs that lead to increased and ongoing employment for equity-seeking groups.
[73] The EIC Co-Chair says she sent her March 22 email to Mr. McDowell in an effort to be respectful, but after she sent it, other EIC members expressed concerns to her about the tone of Mr. McDowell’s communications.
[74] Several EIC members emailed the EIC Co-Chair after her email to Mr. McDowell. One said:
Personally, I would like to have a code of conduct for those participating on MPPIA committees as we all come from varied backgrounds and have different roles within the industry. But as I understand it, when we come to an [sic] MPPIA committee, we are collectively undertaking to work in an effort to improve and promote the BC film and tv industry. I think it would be good if those agreeing to serve on a committee come in with a common understanding regarding our roles and responsibilities.
I have no desire to stifle discussion or to shy away from hard conversations. But we should set out expectations regarding how best to have those conversations.
I hope you don’t mind me tossing in my 2 cents. Participating on this committee is making me increasingly uncomfortable. And being uncomfortable can be good for really digging into issues but this discomfort is not about that. We seem to be the target for Brett’s anger over what he believes are industry slights and that is not a good place to be.
[75] Another EIC member emailed the EIC Co-Chair, copying others from MPPIA, including the MPPIA Chair. This member said he was concerned that Mr. McDowell was going to use MPPIA as his own platform to amplify his views based on his experiences, and this would not help a group of members who were trying to make progress in building equity and inclusion, but it was much more likely that members would not continue to participate in a toxic environment. He said, “I know this is a real challenge for the committee but we need to find a way to manage it.”
[76] The EIC Co-Chair says another EIC member, Ms. O, told her that she felt threatened by Mr. McDowell’s communications towards her and felt that his accusations of racist behaviour were directed towards her. As well as being on the EIC, Ms. O is an independent contractor working as a coordinator for MPPIA and is the person who sent out the email invitations for the Christmas party. Mr. McDowell emailed Ms. O on December 10, 2021, and said, “I feel it was racist that you did not invite me to the Christmas party.” Ms. O responded and said the invitation was sent to his email address on November 23 and she was sorry that he missed seeing it. He responded to say “I don’t see it. It’s not in my inbox or spam folder. Fuck [name of well-known film actor]. He then emailed again and said, “ Honestly this is racist. ”
[77] A member of MPPIA, Ms. B, responded to Mr. McDowell and explained that she had discovered a clerical error in his email address in MPPIA’s database. Ms. B said the intention was to have him at the gathering, but the error meant the invite did not make it to him, and she said MPPIA truly apologized. Ms. B said, “In the spirit of what was intended, you were absolutely meant to be there.” She offered to connect with Mr. McDowell, and said:
In this committee, we have dedicated colleagues, allies, folks with lived experience and folks who are at all different levels of knowledge and learning on their equity, diversity, inclusion and anti-racism journey. Authentically hearing and engaging with colleagues, self-reflecting and taking action to advance anti-racism are all actions we take to forward the efforts of this committee, and for the larger change that’s needed.
We share the desire to make things better and each of us maintains a level of respect for one another, shoulder to shoulder, no matter what position we hold in the industry.
[78] Mr. McDowell responded and asked Ms. B to excuse him if he was somewhat harsh, but details like an “error” are used against Indigenous activists all the time. He described an experience where an Indigenous friend was not hired for a job, while he was hired because he has a white father. He said many Indigenous people stop participating because they are constantly suspicious of double handedness. Ms. B replied and said she heard how incredibly hurtful this was and would still like to connect with him.
[79] The EIC Co-Chair then emailed Mr. McDowell on December 14, 2021, and said she and her co-chair met with the MPPIA board to share their concerns for the impact on him. The EIC Co-Chair said she acknowledged that none of them could truly view the situation from Mr. McDowell’s perspective. She said they realized there was a need to open themselves up to points of view outside of their own and ensure everyone involved is heard and understood. She suggested a guided conversation with a facilitator.
[80] Mr. McDowell replied on December 15, 2021. He said the issue is just double-checking email invited for BIPOC and others, the invitation issue is critical because it is a weapon that has been used for many years, and even if these things happen earnestly, there is no way to tell. He said, “It is not a perspective thing, it is just a ‘don’t do it’”. The EIC Co-Chair responded to say Mr. McDowell made some great points but it is not always possible to identify all of the groups he mentioned. She said she understood that he did not want to engage with MPPIA’s leadership on the issue any further, but she still felt there was value in the discussion with the board about invitations to committee members as a learning exercise. She suggested adding a brief discussion of the issue to the next EIC agenda if Mr. McDowell was good with that, because the EIC members were copied on the initial emails about the issue but not the discussions that had happened since. Mr. McDowell replied to say, “Fair enough. But Indigenous people on the EDI committee are pretty easy to identify.”
[81] The EIC Co-Chair says that when Ms. O told her that she felt threatened and felt that Mr. McDowell’s accusations of racist behaviour were directed towards her, she was concerned and felt responsible for Ms. O’s well-being and feelings of personal safety.
[82] On March 23, 2022, the EIC Co-Chair emailed her co-chair and another member of the committee and raised concerns about Mr. McDowell’s communications. She said “We can’t continue to allow him to use the contact list of our committee as a soapbox. Especially not in a borderline threatening / intimidating manner.” She suggested telling Mr. McDowell that his communication style was inappropriate and that he must follow a code of conduct to continue participating, but expressed a concern that he would accuse them of “tone policing”. She said it would not be tone policing to set standards when you are responsible to create a safe space in which people can open up to do the EIC’s work. The other member responded to say Mr. McDowell had no intention of working with them but would only continue his “troll behaviour” and that it was time to move on. The other co-chair responded and agreed. She said multiple people, including her, felt that the EIC was no longer a safe space, and that should not happen.
[83] In her affidavit the EIC Co-Chair says she and other members of the EIC decided that they would request that Mr. McDowell no longer participate. On March 24, 2022, the EIC Co-Chair emailed Mr. McDowell and said:
As an invited and welcomed guest to our E & I Committee, we understood you to be interested in working with us on the priorities we set out to achieve each year, with the tools within our means. Respectful communication is the lifeblood of any objective that we achieve together.
In that same spirit, we respect your mission, and we share concern for the issues that you are raising. However, the MPPIA E & I Committee must carry out its work within the scope of the Association.
MPPIA itself is a virtual, non-profit, volunteer-driven Industry Association that supports this, as well as a range of other priorities. Our committee work, initiatives, events, communications and social media all reflect these activities across the broadly represented interests of member organizations and individuals.
While we’re unable to take part in your tactics for change, we wish you all the best with your endeavours. However, we do not expect that your participation in the MPPIA Committee will be [sic] mutually viable path going forward.
[84] MPPIA submits that the complaint has no reasonable prospect of success because there is no connection between Mr. McDowell’s Indigenous identity and the decision to end his participation in the EIC. MPPIA says it ended his participation because his conduct was upsetting to several participants and created an environment that did not feel safe to many, his conduct was disruptive to the EIC’s work, and his causes, while important, could not be advanced through the EIC pursuant to its mandate.
[85] In his letter to the Tribunal and MPPIA’s counsel dated June 12, 2023, which he submitted in support of his disclosure application, Mr. McDowell said:
I’d like to address the notion that there is no reasonable prospect of success for my complaint under section 27(1)(c) of the Code. I strongly assert that my Métis identity has directly informed both my conduct and the issues I raised within the E & I committee as are my requirements under Métis customary law and that the matters being Indigenous related fell under this jurisdiction. My experiences and perspectives as a Métis person are not separate from my identity, but rather they are integral and guide my actions and views. These should be recognized and valued within an Equality and Inclusion committee.
[86] To decide whether Mr. McDowell’s complaint would have proceeded if not dismissed based on the issue of s. 14’s application, I considered his complaint in the context of the types of discrimination and stereotypes that Indigenous people face.
[87] Most complaints of anti-Indigenous discrimination will turn on an inference because it is not common for people to openly express prejudices, which they may not even recognize themselves: Campbell v. Vancouver Police Board (No. 4) , 2019 BCHRT 275 [ Campbell ] at para. 102. An inference of discrimination may arise “where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses”: Campbell at para. 103.
[88] The Tribunal may draw an inference based on its understanding of discrimination against Indigenous peoples, including anti-Indigenous stereotypes, or from circumstantial evidence, including differential treatment compared to non-Indigenous people, or unusual or unexplained treatment. For example, if an Indigenous person is singled out for excess scrutiny, critique, rudeness, or apathy, the Tribunal could infer Indigeneity was a factor: Smallboy v. Grafton Apparel , 2021 BCHRT 15 at paras. 27-29; Campbell at paras. 132-139; Radek v. Henderson Development (Canada) and Securiguard Services (No. 3) , 2005 BCHRT 302 at paras. 469-487; H arris v. Amaranth Financial Services Inc. dba Speedy Cash Payday Advances , 2023 BCHRT 190 at paras. 27-29.
[89] I also consider that the context of anti-Indigenous discrimination, including systemic discrimination, is not determinative of the outcome of a particular complaint. Each complainant bears the burden of proving the elements of their case: Broersma v. Fraser Health Authority , 2024 BCHRT 26 at para. 29.
[90] In this case, I find that if this complaint were not dismissed on the basis that there is no reasonable prospect of the Tribunal applying s. 14 to the circumstances, I would nevertheless decide that it would not proceed to a hearing because there is no reasonable prospect that Mr. McDowell would establish a connection between his Indigenous identity and the EIC ending his participation.
[91] I have explained that although Mr. McDowell raises questions of credibility about MPPIA’s affidavits, there is no basis on which to question their credibility. The EIC Co-Chair’s affidavit attaches email communications as exhibits, which are consistent with her explanation for the decision to end Mr. McDowell’s participation.
[92] I find that MPPIA is reasonably certain to establish at a hearing that it ended Mr. McDowell’s participation in the EIC not because he is Métis, but because he insisted that the committee support him in advocacy on issues that were not within its mandate, and in doing so, communicated to the EIC in a manner that was upsetting to some members and was disruptive to the EIC’s work.
[93] The perspectives the EIC Co-Chair and other EIC members expressed to each other in their email exchanges appear to be reasonable in light of Mr. McDowell’s communications. Mr. McDowell asked the EIC to address issues related to content of films from years earlier and to implicate well-known film actors, and told EIC members that otherwise, Indigenous women did not matter to them and they were avoiding accountability. Regardless of how EIC members personally felt about the issues Mr. McDowell raised, addressing those issues was not within the EIC’s mandate. Mr. McDowell’s communications to the EIC about the missed party invitation also demonstrated a lack of willingness to participate in meaningful or productive discussions about that issue. The Tribunal is reasonably certain to find that it was reasonable for the EIC to require Mr. McDowell to communicate respectfully to work on issues within its mandate, reasonable to conclude that he was not likely to do this, and reasonable for the EIC Co-Chair to take on concern about Ms. O’s perspective following the communications about the missed invitation.
[94] I find that there is no reasonable prospect of the Tribunal drawing an inference that any underlying anti-Indigenous stereotypes impacted MPPIA’s decision. The emails attached to the EIC Co-Chair’s affidavit are evidence that the EIC invited Mr. McDowell to join the committee because they wanted to hear Mr. McDowell’s perspective as a Métis person, and when deciding to remove him from the committee, did so because his communications were related to issues outside of the committee’s mandate, and had a negative impact on the committee. There is no evidence that any MPPIA member took issue with the issues Mr. McDowell raised and that were important to him. Rather, MPPIA members expressed difficulties with the manner in which he raised the issues, and whether MPPIA was the right place to try to address them.
[95] Based on MPPIA’s evidence, the EIC Co-Chair and other EIC members appeared to be genuinely interested in Mr. McDowell’s experience as a Métis person, and MPPIA tried to engage with him on the issue of his missed invitation to the party in a way that demonstrated an understanding of his perspective and the impact on him in the context of anti-Indigenous discrimination. This does not preclude that EIC members engaged stereotyping on a conscious or unconscious level when they asked Mr. McDowell to leave the committee. However, the evidence before me would not support an inference of stereotyping, and for the Tribunal to find an inference, there would have to be some evidence on which to rely. On all the evidence before the Tribunal, I find that there is no reasonable prospect of Mr. McDowell establishing an inference of anti-Indigenous stereotyping or discrimination.
[96] I find that there is no reasonable prospect that the social context of pervasive anti-Indigenous discrimination and stereotyping alone would be enough of a basis for an inference in this case. This is because the EIC’s email communications are evidence that the individuals involved had some understanding of anti-Indigenous discrimination, were interested in Mr. McDowell’s perspective, and this is why they invited him to the EIC in the first place. The emails are also evidence that MPPIA only decided to end his participation after he sent unhelpful communications.
[97] Finally, I find Mr. McDowell would have no reasonable prospect of establishing that his being Métis was a factor in his conduct that led to his removal from the EIC. He submits that a connection exists because his Métis identity directly informed his conduct and the issues he raised with the EIC. He says his experiences and perspectives as a Métis person are not separate from his identity but are integral and guide his actions and views.
[98] Assuming the Tribunal were to accept that Mr. McDowell’s Métis identity is one factor in his advocacy and his strong interest in the issues he raised with the EIC, it does not follow that his Indigenous identity was a factor in how he communicated to the EIC, or his insistence that the EIC works outside of its mandate to address issues that are important to him personally. In this particular case I find there is a nuanced difference between Mr. McDowell’s Indigenous identity informing his interest in the issues that are important to him, and his expectation that the EIC address those issues. The context, including MPPIA’s purposes as an organization and the EIC’s mandate, is important. Mr. McDowell’s Indigenous identity does not explain why he appears to have felt entitled to insist that the EIC address issues that were personally important to him even though that is not what the EIC does. His identity also does not explain the accusatory nature of his communications, for example, when he told the EIC that if they did not work on issues outside of their mandate, this meant they did not care about Indigenous women and girls.
[99] In short, there is no reasonable prospect of Mr. McDowell establishing that his being Métis was a factor in his assumption that the EIC was obligated to go outside of its mandate to do work that was important to him personally, or his manner of communicating his views.
[100] I would dismiss the complaint on this basis if I had not dismissed it on the basis that Mr. McDowell has no reasonable prospect of establishing that s. 14 applies to the circumstances underlying his complaint.
IV CONCLUSION
[101] The complaint is dismissed under s. 27(1)(c) of the Code .
Jessica Derynck
Tribunal Member
Human Rights Tribunal