Sun v. Vancouver City Savings Credit Union (No. 3), 2025 BCHRT 25
Date Issued: February 4, 2025
File(s): CS-009395
Indexed as: Sun v. Vancouver City Savings Credit Union (No. 3), 2025 BCHRT 25
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:
Mary Li Yee Sun
COMPLAINANT
AND:
Vancouver City Savings Credit Union
RESPONDENT
REASONS FOR DECISION
APPLICATION FOR DISCLOSURE
Rule 23
Tribunal Member: Ijeamaka Anika
On their own behalf: Mary Li Yee Sun
Counsel for the Respondent: James D. Kondopulos and Jaime Hoopes
I INTRODUCTION
[1] This is a decision about whether to order Mary Li Yee Sun to disclose documents during the screening stage of the Tribunal’s process.
[2] On April 6, 2023, Ms. Sun filed a retaliation complaint, alleging that Vancouver City Savings Credit Union [the Credit Union ] retaliated against her contrary to s. 43 of the Human Rights Code . The complaint is late filed, and so as part of its screening process the Tribunal invited submissions about whether it should exercise its discretion to accept the complaint past the time limit. In her reply submission, Ms. Sun raised a new argument about poor legal advice to explain her delay in filing. The Credit Union seeks to file a further submission in response to that argument but, instead of filing the further submission, has applied for disclosure relating to the legal advice and to extend the time to apply to file the further submission. I deal with that application in this decision.
[3] For the reasons that follow, I deny the application for disclosure. The Tribunal’s process does not incorporate disclosure obligations at the screening stage, including where the Tribunal has sought submissions on a timeliness issue. Given the nature of the Tribunal’s task and the overall concern for a timely and fair process, an applicant must persuade the Tribunal that exceptional circumstances exist that warrant a disclosure order at the screening stage. Here, the Credit Union has not persuaded me that the disclosure sought would further the just and timely resolution of the complaint.
[4] The Credit Union will have 14 days from the release of this decision to file a further submission. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
[5] I apologise to the parties for the delay in issuing this decision.
II BACKGROUND
[6] On January 16, 2024, the Tribunal accepted Ms. Sun’s late-filed retaliation complaint under s. 22(3) of the Code . The Tribunal’s reasons are indexed as Sun v. Vancouver City Savings Credit Union , 2024 BCHRT 9 [the Original Decision ].
[7] The particulars of Ms. Sun’s retaliation complaint are as follows:
a. She engaged in a series of discussions with the Credit Union following the termination of her employment in September 2020. At one such discussion, a representative of the Credit Union yelled at her and accused her of being “greedy”.
b. In April 2021 and May 2021, Ms. Sun told the Credit Union of her intention to file a human rights complaint. Shortly afterwards, a representative of the Credit Union suggested that Ms. Sun would regret her decision to pursue a complaint under the Code.
c. In the same month, Ms. Sun’s new employer turned hostile and issued her a verbal warning regarding her performance, despite the fact that she had started two weeks earlier and had been warmly welcomed. Ms. Sun says the only explanation for this behaviour was that she had stated to the Credit Union her intention to file a complaint under the Code.
d. In June 2021, Ms. Sun received a written warning related to her performance from her new employer and a few days later, her new employer recommended that she resign – ten weeks after she started that employment.
e. In September 2021, Ms. Sun filed the original complaint. She resigned from the new employment in October 2021.
f. In September 2021, while she was searching for alternative employment, an agent of a third company advised her that she would not be offered a job with that company because he remembered her from when they both worked with the Credit Union and that he was still in touch with his former colleagues at the Credit Union.
[8] Ms. Sun argues that the nexus in timing and lack of alternative explanations for the new employer’s actions suggests that the Credit Union retaliated against her by sabotaging her new employment. Further, Ms. Sun alleges that the Credit Union retaliated against her by advising the agent of the third company of their intention to file a complaint, causing her to be unsuccessful in her application to the third company.
[9] The Credit Union applied for reconsideration of the Original Decision on the basis that Ms. Sun raised new arguments in her Form 5 – Time Limit Reply submission to which the Credit Union did not have an opportunity to respond. The Credit Union argued that in her reply, Ms. Sun argued for the first time that her retaliation complaint was late filed because of factors beyond her control, namely poor advice from her previous legal counsel. The Tribunal allowed the application for reconsideration on the basis that the Credit Union acted on a mistake of counsel about the Tribunal’s practice and procedure, in reasons indexed Sun v. Vancouver City Savings Credit Union (No. 2) , 2024 BCHRT 206 [the Reconsideration Decision ].
[10] As a result, the Tribunal said it would revisit the Original Decision, giving the Credit Union the opportunity to apply to make further submissions. There is no dispute that Ms. Sun’s reply included the following new submissions:
a. She informed her first counsel on several occasions between June and September 2021 that the Credit Union had sabotaged her new employment, and her employment was ultimately terminated on October 28, 2021.
b. Despite her first counsel knowing about her retaliation allegations, they remained silent about it and did not advise her on the issue.
c. The first counsel advised her to file a wrongful dismissal action without explaining the effects it may have on her complaint at the Tribunal. Consequently, she felt rushed to file the wrongful dismissal without fully understanding the consequences of doing so and sought a second legal opinion from another law firm.
d. The second counsel advised her to file a retaliation complaint as soon as possible. She then approached the first counsel who filed the initial complaint to file a retaliation complaint. She says that counsel resisted filing the retaliation complaint, in part, because to do so would be admitting a failure to advise her of the provisions of s. 43 of the Code .
e. She consistently encountered delays and resistance in getting answers to her questions from the first counsel who would often ignore her questions entirely.
[11] On July 30, 2024, the Tribunal provided the Credit Union with a deadline of August 16, 2024, to apply to file a further submission “in respect of timeliness.” Instead, the Credit Union made this application.
[12] The retaliation complaint remains at the screening stage, where the issue before the Tribunal is whether to accept the late-filed retaliation complaint under s. 22(3) of the Code .
III DECISION
A. Disclosure
[13] The Credit Union seeks orders that Ms. Sun produce all documents relating to any legal advice she received from any counsel referred to in her reply submission,
including, without limitation, e-mails exchanged with current or past legal counsel or other professional legal advisors (she has been represented in this proceeding and matters related to it by at least two different lawyers), letters with counsel or such advisors, legal opinions, legal memorandums and other similar or related documents from September 28, 2020 to April 6, 2023 (together, the “ Requested Documents ”).
[14] The Credit Union argues that it has met the requirements for document disclosure under Rule 23 of the Tribunal’s Rules of Practice and Procedure [ Rules ] : (1) disclosure of the documents will further the just and timely resolution of the complaint; (2) the documents are arguably relevant to an issue in the complaint; and (3) the Credit Union first requested Ms. Sun to produce the documents.
[15] I agree with the Credit Union that the Rules regarding pre-hearing disclosure “are designed to ensure that the parties are fully prepared for the hearing on the dates set, and that the hearing proceeds in a timely and efficient manner, so that the resources of both the parties and the Tribunal are used efficiently”: Ghinis v. Crown Packaging Ltd. (No. 2) , 2002 BCHRT 38 at para. 32. While the Credit Union’s arguments assume that it is entitled to document disclosure at this stage, that is not the case. The Tribunal’s Rules regarding pre-hearing disclosure are not engaged at the screening stage of the Tribunal’s process. This includes Rule 20 which the Credit Union relies on. Indeed, none of the case law the Credit Union relies on relates to complaints in the screening stage and, for this reason, is generally unhelpful.
[16] For instance, in Employee v. Overwaitea Food Group (No. 2), 2018 BCHRT 84, the complaint was proceeding to hearing and the Respondent’s dismissal application had been denied. The request for disclosure was for documents that went to an issue in the substantive complaint rather than legal advice received in the process of filing the complaint. The same goes for Brady v. Interior Health Authority , 2005 BCHRT 200. In Gill v. B.C. (Ministry of Justice) and others , 2016 BCHRT 32, the Tribunal considered whether the Respondents were entitled to the Complainant’s medical records which were arguably relevant to the issue of whether the Respondents met their duty to accommodate the Complainant. In Metcalfe v. International Union of Operating Engineers, Local 882 and others (No. 7) , 2005 BCHRT 165, the application for disclosure was brought during the hearing of the complaint.
[17] The Credit Union did not point to any case addressing disclosure at the screening stage and I am aware of none.
[18] There are good reasons why the screening stage of the complaint process – including circumstances where the Tribunal seeks time limit submissions – does not incorporate a document disclosure process. First, disclosure at the screening stage would add delay to the screening process, and thus would not, in general, support the timely resolution of complaints. Second, as I explain below, given the nature of the Tribunal’s screening function – including in relation to s. 22(3) of the Code – only rarely will disclosure be necessary to further the just and timely resolution of a complaint. As a result, an applicant must persuade the Tribunal that exceptional circumstances exist that warrant a disclosure order at the screening stage.
[19] I turn then to the nature of the screening function and, specifically, the nature of the Tribunal’s task under s. 22(3). I begin by reviewing what our Court of Appeal has said about the Tribunal’s task under s. 22(3) in British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite, 2014 BCCA 220 and The Parent obo the Child v. The School District , 2020 BCCA 333.
[20] The Tribunal’s task under s. 22(3) is to determine whether to accept a late filed complaint. The Tribunal may do so if it is satisfied that it is in the public interest to accept the complaint, and no substantial prejudice will result to any person because of the delay: s. 22(3). In considering the public interest, the Tribunal considers a non-exhaustive list of factors, including the length of the delay, the reasons for the delay, and the public interest in the complaint itself: Mzite at para. 53. The explanation for the delay is but one factor to be considered by the Tribunal in deciding whether to accept the late-filed complaint and the reason for the delay is not necessarily the paramount consideration in that determination: Mzite at para. 55. Put another way, while the explanation for delay is considered under s. 22(3), the Code does not require a complainant to establish a reasonable excuse for their delay as a prerequisite for a complaint to proceed: Mzite at paras. 59 and 55.
[21] The Court of Appeal also recognized in Mzite that the decision to permit a late-filed complaint to proceed does not require the Tribunal to make findings of fact at a full hearing but, rather, mandates a review of the complaint and consideration of the reasons for delay in the course of the exercise of discretion: para. 51.
[22] In addition to Mzite, the Court of Appeal’s decision in The Parent is also relevant. In that case, the Court of Appeal provides guidance on the Tribunal’s task under s. 22(3), and what is (or is not) required when a complainant alleges their late-filed complaint was due to erroneous legal advice. Importantly, in The Parent , the Court of Appeal found that it was an error of law for the Tribunal to require that certain preconditions be met by a complainant before a complainant can rely on erroneous legal advice under s. 22(3) as a reason for delay. Rather, The Parent identifies what the Tribunal’s case law expects – and what it does not require – when a complainant relies on legal advice error as a reason for late filing. The Court of Appeal explained its conclusion in this way (at para. 49):
In summary, neither Adolphs nor the Tribunal’s jurisprudence establish mandatory requirements that a complainant must meet in order to rely on erroneous legal advice as a reason to accept a late-filed complaint. The jurisprudence does not require identification of the lawyer, confirmation of the erroneous nature of the advice, or an explanation as to how the error occurred as necessary prerequisites in order for erroneous legal advice to engage the public interest under s. 22(3). Further, the authorities do not require a complainant to show that the advice received was, in fact, wrong. These are simply factors to be considered, among others, when determining whether to accept a late-filed complaint for public interest reasons. Rather, the case law requires that the complainant obtain legal advice in a timely way, provide some evidence about the nature of the advice and their detrimental reliance thereon, and demonstrate diligence in filing despite that advice. While identification of the lawyer is not essential, it would usually be prudent for a complainant seeking an extension of time to provide as much information as possible about the advice received including the identity of the lawyer and how the advice factored into the timing of the complaint.
[23] Considering the principles articulated in Mzite and The Parent, the Credit Union has not satisfied me that the exceptional relief sought is appropriate in the circumstances.
[24] To the extent that the Credit Union’s argument is premised on the assumption that the Tribunal makes findings of fact about the legal advice sought and obtained by Ms. Sun, and whether her factual assertions are true on a balance of probabilities, I find it unhelpful. As I have noted above, the Court of Appeal has said that a determination under s. 22(3) does not require the Tribunal to make findings of fact. Rather, the Court has emphasized that the task under s. 22(3) is a discretionary one, which “mandates a review of the complaint and consideration of the reasons for delay in the course of the exercise of discretion”. A complainant’s explanation for the delay is but one factor in assessing the public interest criterion and is not necessarily paramount.
[25] In the specific context of legal advice error, the Court of Appeal in The Parent said that it is not necessary for the Tribunal to make findings under s. 22(3) about the legal advice received or whether it was in fact wrong. Rather, the Court affirmed that in considering lawyer error as an explanation for the late filing of the complaint, the focus should be on the complainant’s understanding of the legal advice, rather than the legal advice itself: paras. 36-37. The Court cited the BC Supreme Court’s earlier decision in The Parent citing Adolphs v. Boucher Institute of Naturopathic Medicine, 2014 BCSC 298 , where that court reasoned that the public interest is not only engaged where the legal advice in question is shown to be wrong: para. 36. A complainant may also rely on lawyer error where the complainant honestly, but mistakenly, believed something different: The Parent at para. 37.
[26] As such, to the extent the Credit Union seeks disclosure to investigate and test Ms. Sun’s claims about the legal advice given to her, I do not find this submission persuasive given that the Tribunal is not required to make findings about that issue under s. 22(3), in any event.
[27] Moreover, I am concerned that granting the relief sought is inconsistent with The Parent . As set out above, the Court of Appeal identified what the Tribunal’s case law expects of a complainant relying on legal advice error. First, they have sought legal advice in a timely way. Second, they provide some evidence about the nature of the advice and their reliance on it. Third, they show diligence in filing despite that advice. To the extent that the Credit Union seeks disclosure to investigate or test Ms. Sun’s evidence (or lack of evidence) about the identity of the lawyers involved, to confirm the erroneous nature of the advice, or to explain how the error occurred, the Court of Appeal has said these are not prerequisites. Requiring disclosure from a complainant about these issues risks undermining the Court’s caution about placing undue emphasis on these considerations.
[28] With this context in mind, I turn to the Credit Union’s arguments about why disclosure would further the just and timely resolution of the complaint that are not premised on an entitlement to disclosure under Part 6 of the Rules or on principles related to the fairness of a hearing on the merits of a complaint. The Credit Union argues that, without the disclosure, it is prejudiced in its ability to prepare its application to file a further submission and to respond to Ms. Sun’s position. It says that, as a matter of fairness, where Ms. Sun has relied on legal advice as a reason for late filing, it must be able to explore how the legal advice could have contributed to the late filing.
[29] I explained above how Mzite and The Parent do not, in general, support this argument. An applicant for disclosure at this stage must identify the exceptional circumstances that, in the interests of fairness and timeliness, compel disclosure. Here, the Credit Union has not persuaded me that the dismissal of this application would prejudice their ability to apply to make a further submission or to make that further submission. I note that the Credit Union did not raise this disclosure issue in its reconsideration application. If disclosure was required to ensure that the Credit Union has a fair opportunity to respond to the new argument raised by Ms. Sun in her reply, one would have expected the Credit Union to raise the issue at that time, where the issue of fairness was squarely before the Tribunal.
[30] In any event, in her reply, Ms. Sun has provided a description of her understanding of the legal advice and how it impacted the filing of her retaliation complaint. The Credit Union may respond absent disclosure.
[31] For instance, and without commenting on the merits of such arguments, the Credit Union may address whether, in its view, Ms. Sun has met her burden of establishing that it is in the public interest to accept the late-filed retaliation complaint. In this regard, the Credit Union may make submissions on the weight the Tribunal ought to give to Ms. Sun’s statements, made in reply, that the late-filed retaliation complaint was due to erroneous legal advice. It may also make arguments about whether Ms. Sun has provided what is required or what would be prudent of her to provide in the circumstances: The Parent at para. 49. It is not apparent to me why, in this case, disclosure is required for the Credit Union to advance such arguments.
[32] Finally, the Credit Union argues that the issue of whether Ms. Sun’s delay in filing is attributable to erroneous legal advice is a foundational or key question for the Tribunal to decide under s. 22(3). It says the requested documents are relevant or arguably relevant to this key issue, and as such should be disclosed. Assuming that the legal advice she received is a material component of Ms. Sun’s explanation for the delay in filing, it is one factor within the list of non-exhaustive factors that the Tribunal considers in its multi-faceted analysis of whether to accept a late-filed complaint in the public interest. The reason for the delay and the length of the delay are factors, along with others, that the Tribunal considers in determining whether it was in the public interest to accept the late-filed complaints: Ashrafinia v. Koolhaus Design , 2007 BCHRT 241 at para. 10; The Parent at para. 40. As I noted above, in conducting its analysis, the Tribunal is not required to find facts, but instead must exercise a discretion after weighing a range of considerations. Identifying one consideration as key or foundational is not enough on its own to constitute an exceptional circumstance warranting disclosure at this stage. A s. 22(3) analysis will often include one or more key or foundational components.
[33] Whether it is in the public interest to accept the complaint, and how Ms. Sun’s explanation of how legal advice contributed to her delay in filing, is a matter for another day. However central Ms. Sun’s explanation for the delay may end up being to the Tribunal’s decision, the Credit Union has not satisfied me that it requires disclosure for it to investigate and test her assertions for the purpose of the Tribunal’s s. 22(3) analysis. I am not persuaded that a disclosure order would further the just and timely resolution of the complaint.
[34] Lastly, while I appreciate the parties’ submissions concerning whether Ms. Sun waived solicitor-client privilege in her new submissions on the timeliness issue, I do not need to consider these arguments to decide this application.
[35] I reiterate that the relief sought here – an order for disclosure at the screening stage – is exceptional. Further, the onus is on the applicant, here the Credit Union, to satisfy the Tribunal that the Tribunal should exercise its discretion to grant such relief. As I have explained, the Credit Union wishes to obtain disclosure so that it can generally investigate, and test Ms. Sun’s claims regarding poor legal advice and how she says that contributed to the late filing of her retaliation complaint. However, the relief sought and the basis for it, are not supported by the principles outlined by our Court of Appeal in Mzite and The Parent , regarding the nature of the Tribunal’s task under s. 22(3) and the legal principles it must apply. This is not to say that the Tribunal would never make orders for disclosure at the screening stage, but simply to say that the Credit Union has not satisfied me that such an order is appropriate here.
[36] For all of these reasons I decline to order disclosure of the requested documents.
B. Extension
[37] The Credit Union applies for an order that its deadline for submitting its application to file a further submission be suspended until 21 days after receiving the requested documents or some other reasonable timeframe.
[38] I have denied the application for disclosure. In the circumstances, I will extend the time for the Credit Union to apply to make a further submission, together with its further submission by 14 days. It should not be assumed, however, that the Tribunal will automatically extend deadlines because a party has applied for disclosure.
IV CONCLUSION
[39] The application for disclosure is denied. The Credit Union will have 14 days from the release of this decision to apply to file a further submission.
Ijeamaka Anika
Tribunal Member