The Parent obo the Student v. Meadowridge School Society and another, 2025 BCHRT 29
Date Issued: February 5, 2025
File: CS-003519
Indexed as: The Parent obo the Student v. Meadowridge School Society and another, 2025 BCHRT 29
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:
The Parent on behalf of the Student
COMPLAINANT
AND:
Meadowridge School Society and Rhys Clarke
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Andrew Robb
Counsel for the Complainant: Mark Canofari
Counsel for the Respondent Rhys Clarke: Keith Mitchell
Counsel for the Respondent Meadowridge School Society: Lindsay E.W. Nilsson
I INTRODUCTION
[1] The Parent is the mother of the Student. The Student attended middle school at Meadowridge School Society [ Meadowridge ]. The complaint alleges that Rhys Clarke, a teacher at Meadowridge, sexually assaulted the Student during an incident in Mr. Clarke’s class, and Meadowridge failed to address the matter appropriately. The complaint says the Student was in a vulnerable position due, in part, to his Chinese ethnicity. The Tribunal accepted the complaint on the grounds of the Student’s race, ancestry, place of origin, and sex.
[2] The respondents, Meadowridge and Mr. Clarke, deny discriminating. They say Mr. Clarke rested or leaned his arm on the Student’s shoulder to get the Student’s attention, during the incident in question, and this did not amount to a sexual assault. Meadowridge says it investigated the incident appropriately, and found Mr. Clarke violated social distancing policies that were in place at the time, but he did not assault the Student.
[3] The respondents applied to dismiss the complaint under s. 27(1)(c) of the Human Rights Code . They say the Student has no reasonable prospect of proving Mr. Clarke assaulted him, and there is no evidence to support an inference that the Student experienced adverse treatment due to his race, ancestry, place of origin, or sex.
[4] For the reasons set out below, I allow the application, and I dismiss the complaint. I find the Student has no reasonable prospect of proving the incident in which he says Mr. Clarke assaulted him, or Meadowridge’s response, was connected to his race, ancestry, place of origin, or sex.
[5] 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.
II BACKGROUND
[6] Meadowridge is a private school with about 650 students, from kindergarten to grade 12. Mr. Clarke is employed by Meadowridge as a drama teacher.
[7] The complaint says that on October 7, 2020, the Student was attending Mr. Clarke’s class, and Mr. Clarke was very close to him, despite social distancing rules that were in place at the time. The Student told Mr. Clarke they should physically distance, and Mr. Clarke said, “I don’t have to.” Mr. Clarke then touched the Student’s shoulder and pressed firmly on it, and then touched the Student’s buttocks. The Student asked him to stop, and Mr. Clarke said, “you are so boring.”
[8] Other than the allegations in the complaint form, there is no evidence before me from the Student or the Parent.
[9] Mr. Clarke made a sworn statement in support of the application to dismiss. His evidence about the incident can be summarised as follows:
a. On October 7, 2020, during his class, his students, including the Student, were doing activities outdoors, under a large tent (30’ by 30’). The class had 18 students.
b. The Student and others were misbehaving, and not always listening to Mr. Clarke.
c. Mr. Clarke assembled the students in a line to give them instructions about a game they were going to play. He had the Student stand beside him to make sure the Student listened to him.
d. While Mr. Clarke was giving instructions to the students, the Student was not paying attention. In order to get the Student’s focus, Mr. Clarke rested his forearm on the Student’s shoulder, for less than five seconds. All the students then played the game until the end of class.
e. Mr. Clarke did not push, slap, or punch the Student, and did not touch the Student’s buttocks. He does not believe he said, “you are so boring,” or “I can do what I want.” He says he would not say such things to a student.
[10] The respondents provided a sworn statement made by the Student’s homeroom teacher. She says that on the day of the incident, she overheard the Student talking to his friends about what happened in drama class. He was telling his friends he had been punched by the teacher. She says she questioned him, and he said, “we were playing games and Mr. Clarke punched me. I asked him to stop but he didn’t listen.” The Student said he wanted to speak with the principal and call the police.
[11] Later that day, after he was told about the Student’s allegation, Mr. Clarke wrote an email to the Parent. The email said he “nudged [the Student] in the side with my finger to refocus him and rested my arm on his shoulder while I talked to the whole class.”
[12] The following day, October 8, the Parent wrote an email to the school principal. Her email said, “Mr. Clarke put his hand on my son’s left shoulder and put the weight of his entire body on my son’s shoulder. Because he’s so big, my son could not stand. Mr. Clarke later spanked my son.”
[13] The Parent later sent emails to other Meadowridge staff, in which she said Mr. Clarke “put his whole body weight on [the Student’s] shoulder with his arm, and hit his hip with his hand after that.”
[14] The respondents provided a sworn statement made by the school principal, who investigated the Student’s allegation. The principal’s evidence about what the Student said and what Mr. Clarke said can be summarised as follows:
a. The principal spoke with the Student at about 3:30 p.m. on October 7, 2020, the day of the incident. The Student said Mr. Clarke leaned his entire body weight on the Student, and slapped the Student on the bottom as hard as he could.
b. The principal then spoke to Mr. Clarke, who said he had rested his arm on the Student’s shoulder, and nudged him a couple times to get his attention, but did not put any weight on him, and did not slap him on the bottom.
c. On the following day, October 8, the principal spoke to the Student with the Parent present. The principal’s notes from the interview say the Student said, “Mr. Clarke put full force on my shoulder (points to top of shoulder)…and then slapped me on the butt (makes a gesture showing the action with his arm extended back).”
d. The principal then spoke to Mr. Clarke again. His notes from the interview show Mr. Clarke denied putting his weight on the Student or spanking his bottom, and said, “I put my elbow onto his shoulder to get him to pay attention,” and, “I poked him once in the side of his ribs to get his attention.”
e. On October 14, the principal met with the Student and the Parent again. His notes from the meeting show the Student said Mr. Clarke leaned on him with his forearm. The notes say that when asked to elaborate, the Student said, “He put all his weight on me with the right arm on my left shoulder.” When asked how long Mr. Clarke had his arm on the Student, the Student said, “approximately 2.7 seconds.” The notes say the Student said Mr. Clarke had slapped the Student’s butt, and the Student “kept reiterating the force of the slap.”
[15] The principal says he interviewed other students who were in the Student’s class at the time of the incident, on October 8 and 9, 2020. His sworn statement included his notes from the interviews. The notes show that some of the students observed Mr. Clarke putting his elbow on the Student’s shoulder, and two of the students said Mr. Clarke had kicked the Student in the back or bottom. They described this action as playful. None of the students suggested that Mr. Clarke slapped or spanked the Student’s buttocks.
[16] On October 15, 2020, the principal sent an email to the Parent saying Meadowridge had investigated the Student’s allegation, but was unable to verify that he had been slapped, punched, or hit on his bottom. The email said Mr. Clarke had rested his arm on the Student’s shoulder, and this should not have happened in light of social distancing rules, but there was no intent to cause harm. In the principal’s sworn statement in support of the application to dismiss, he says he found the Student’s allegations not to be credible, as his story repeatedly changed and was not corroborated by other students.
[17] Later that same day, October 15, 2020, the principal sent another email to the Parent, saying there had been problems with the Student, unrelated to the situation with Mr. Clarke. The email said the Student made serious but untrue accusations against other students and another teacher (not Mr. Clarke), and he had been rude and disrespectful when speaking to his teachers about this. The principal said he wanted to speak to the Parent and the Student again. The Parent soon responded, questioning the principal’s accusations against the Student, and saying she planned to get legal assistance. The principal’s reply said it would be in everyone’s interest for the Student to not attend school until the Student and the Parent could meet with the principal and the matter could be resolved.
[18] The Student came to school the next day, October 16, 2020. The principal says he called the Parent, but they were unable to agree about how to proceed, and the principal reiterated that it would not be in the Student’s best interest to be at school until the matter had been resolved. The Parent then came to Meadowridge and picked up the Student. The Student did not return to school at Meadowridge.
III DECISION
[19] The respondents apply to dismiss the complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c). 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. The onus is on the respondents to establish the basis for dismissal.
[20] 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. 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 .
[21] The threshold to advance a complaint to a hearing is low. In a dismissal application under s. 27(1)(c), 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 at para. 27 .
[22] 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.
[23] To prove his complaint at a hearing, the Student will have to prove he has a characteristic protected by the Code , he was adversely impacted in the services he received from the respondents, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33.
[24] The respondents do not deny that the Student has the protected characteristics of race, ancestry, place of origin, and sex. In particular they do not deny that the Student is of Chinese ethnicity. But they say the Student has no reasonable prospect of proving the respondents’ conduct had any connection to his protected characteristics.
[25] For the following reasons, I agree with the respondents. On the evidence before me, I find the Student has no reasonable prospect of proving that any adverse impact he experienced was connected to his race, ancestry, place of origin, or sex.
[26] I do not find that the Student has no reasonable prospect of proving Mr. Clarke leaned heavily on him and made contact with his buttocks, during the incident on October 7, 2020. The evidence before me shows the Student was generally consistent in these allegations, in the days after the complaint. While there is no sworn statement or other evidence before me from the Student, this may be understandable given his young age at the time of the incident, and the fact that he is still a minor.
[27] There is evidence that Mr. Clarke may have acted inappropriately. The respondents admit that Mr. Clarke leaned or rested his arm on the Student’s shoulder, and this was against the school’s policies at the time. The principal’s notes from his interviews with the students who were present at the time of the incident indicate that Mr. Clarke may have also kicked the Student in the back or buttocks, in a playful way.
[28] The Tribunal can assess a party’s credibility in an application under s. 27(1)(c), on the basis of corroborative affidavits or contemporaneous documentary evidence: Evans at para. 37. But I am not persuaded that the respondents are reasonably certain to prove the Student’s allegations have no credibility. In particular I am not persuaded that the Student has no reasonable prospect of proving that Mr. Clarke slapped or spanked his buttocks. This does not mean I believe Mr. Clarke did so, but I cannot resolve this issue based on the documentary evidence before me.
[29] However, even if the Tribunal accepted the facts alleged in the complaint, on the evidence before me there is no reasonable prospect that the Student could prove a connection between the respondents’ conduct, or the impact that conduct had on him, and his race, ancestry, place of origin, or sex. For this reason, I find that the issue of his credibility is not a key or foundational issue that requires a hearing.
[30] Regarding the allegation that Mr. Clarke sexually assaulted the Student, I consider the full context of the incident. There is no dispute that it happened during class, with other students present, during a period of a few seconds. Spanking someone’s buttocks can be a sexual assault, but there is no evidence that Mr. Clarke’s actions, or the impact that his actions had on the Student, were connected to the Student’s sex.
[31] The materials filed by the Student do not explain how the incident was connected to his sex. Considering the undisputed evidence about the context of the incident, and the lack of relevant evidence or submissions from the Student, I find he has no reasonable prospect of proving any adverse impact arising from the events described in his complaint was connected to his sex.
[32] Regarding the allegation based on race, ancestry, and place of origin, the complaint alleges that the Student was vulnerable due to his Chinese ethnicity, and Mr. Clarke exploited that vulnerability. But the Student does not explain how his Chinese ethnicity made him vulnerable. The Student does not dispute Meadowridge’s evidence that approximately 50% of its students are of Asian descent. Nor does he offer any submissions, in response to the application to dismiss, about how Mr. Clarke’s actions, or Meadowridge’s subsequent conduct, were connected to his race, ancestry, or place of origin. There is no evidence before me that supports a connection to any of these grounds. In these circumstances, I am satisfied that the Student has no reasonable prospect of proving the connection.
[33] In his response to the application to dismiss, the Student says a hearing is necessary to determine whether Mr. Clarke’s contact with the Student was sexual in any way, or was connected to the Student’s nationality. In the circumstances of this case, I do not accept this as a basis for denying the application to dismiss. I have found, based on the evidence before me, that there is no reasonable prospect that the Student will prove such a connection. I cannot speculate about what additional evidence could be given at a hearing.
[34] The Student’s complaint says Meadowridge failed to address the incident appropriately, but it does not say what Meadowridge did that was inappropriate, or what should have been done differently. Meadowridge says it conducted an investigation into the Student’s allegations against Mr. Clarke in accordance with its policy for addressing complaints of alleged abuse in the school, and Mr. Clarke was relieved of his duties while the investigation was ongoing. Meadowridge provided evidence that it interviewed the Student, Mr. Clarke, and the other students who were present at the time of the incident, and that it involved the Student’s family in the investigation. Meadowridge also says the Parent filed a complaint about the same incident with the RCMP and the provincial government’s Teacher Regulation Branch, which both conducted investigations, and found no wrongdoing.
[35] The Student does not deny any of these assertions by Meadowridge. The Student’s response to the application to dismiss did not include any submissions about why Meadowridge’s response to the Student’s allegation was inadequate or inappropriate, or how it was connected to his protected characteristics. I am satisfied that the Student has no reasonable prospect of proving that Meadowridge’s response was discriminatory.
IV CONCLUSION
[36] The complaint is dismissed.
Andrew Robb
Tribunal Member