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Spielberger v. Sofo Kitchens Ltd. (No. 2), 2025 BCHRT 6

Date Issued: January 8, 2025
Files: CS-004469

Indexed as: Spielberger v. Sofo Kitchens Ltd. (No. 2), 2025 BCHRT 6

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:

Violeta Spielberger

COMPLAINANT

AND:

Sofo Kitchens Ltd.

RESPONDENT

REASONS FOR DECISION
LATE FILED SUBMISSIONS AND APPLICATION FOR COSTS
Code at Section 37(4)
Tribunal Rules at Rules 2(2), 28(2), 28(3), 32(11) and 32(12)

Tribunal Member: Sonya Pighin

Counsel for the Complainant: David Brown

Counsel for the Respondent: Negrin Alavi

Date of Hearing: February 27 – 29, 2024 and March 14, 2024

Location of Hearing: Videoconference (Microsoft Teams)

Table of Contents

I INTRODUCTION

[1] In Spielberger v. Sofo Kitchens Ltd ., 2025 BCHRT 1, I found that Sofo Kitchens Ltd. discriminated against Violetta Spielberger, contrary to s. 13 of the Human Rights Code , when two of its employees made inappropriate comments about her being a woman, one of its employees used a sex-based slur toward her, and one of her supervisors did not take reasonably necessary steps to ensure her a discrimination-free workplace after they learned of one of the inappropriate comments that had been made about her. I dismissed the other parts of Ms. Spielberger’s complaint, which had to do with discriminatory bullying and harassment, a discriminatory reduction in wages, and a discriminatory termination of her employment.

[2] Sofo has now applied for an order that Ms. Spielberger pay it costs for improper conduct. First, Sofo has applied for an order that Ms. Spielberger pay it $5,000 in costs because she breached the Tribunal Rules when she failed to comply with:

a. Rules 20(2) and 20.2, which required her to promptly deliver to Sofo copies of any documents that may be relevant to the complaint; and

b. Rule 32(11), which required her to provide Sofo with a copy of any legal authority she intends to rely on at the hearing.

[3] Second, Sofo has applied for an order that Ms. Spielberger pay it $5,000 in costs because she made a material misrepresentation to the Tribunal about Sofo not telling her why it terminated her employment.

[4] Ms. Spielberger responded to Sofo’s costs application 16 hours past its deadline for doing so. Sofo objected to the Tribunal accepting that response because Ms. Spielberger had filed it late. Sofo also provided a reply to Ms. Spielberger’s late filed response.

[5] This decision addresses Sofo’s objection to the Tribunal accepting Ms. Spielberger’s late-filed response to its costs application. It also addresses the costs application.

II LATE FILED RESPONSE

[6] I start with the issue of the late-filed response. In accordance with my authority under Rule 2(2) of the Tribunal Rules , I accept Ms. Spielberger’s late filed response.

[7] When Sofo made its costs application, the Tribunal set a schedule in accordance with the Tribunal Rules for when Ms. Spielberger must file her response to that application: see Rule 28(2). The Tribunal Rules set out that if Ms. Spielberger required additional time to file her response, she must request an extension by notifying the Tribunal of the length of the extension requested, whether the other participants consent to the extension, and the reasons for the request: at Rule 28(3).

[8] Ms. Spielberger did not request that the Tribunal extend her time for filing a response. Nor did she advise the Tribunal of whether the other participants consent to an extension. However, she did explain to the Tribunal and to Sofo that she had mistakenly thought her deadline for responding was the same date as her deadline for filing a reply to Sofo’s response to the complaint. Upon learning of that mistake, the promptly filed her response to the costs application.

[9] The purpose of the Tribunal Rules is to facilitate the just and timely resolution of complaints: at Rule 1(1). The Tribunal may waive or vary the Tribunal Rules , and lengthen any time limits in the Tribunal Rules , as it considers appropriate in the circumstances: at Rule 2(2). I find it appropriate in the circumstances to vary the Tribunal Rules and accept Ms. Spielberger’s response 16 hours past her deadline for filing it because doing so facilitates the just and timely resolution of the complaint, which requires a just and timely resolution of the costs application.

[10] A just resolution of the costs application requires that the process for deciding it is procedurally fair to both parties and that the Tribunal has all relevant information before it. Accepting Ms. Spielberger’s late filed submissions facilitates a just resolution of the costs application because the Tribunal has all the information that is relevant to the application, and there is no resulting unfairness to Sofo. Sofo has provided no arguments about any unfairness or prejudicial effects it will experience if the Tribunal accepts Ms. Spielberger’s late filed submissions. Sofo has exercised its opportunity to be heard regarding Ms. Spielberger’s late filed submissions by providing a reply to them. In doing so, it did not raise any issue regarding the reduced length of time that it had to file that reply. If it had done so, the Tribunal could have extended its timeline for filing a reply to the costs application.

[11] A timely resolution of the costs application requires the process used to resolve it to be efficient. To be efficient, it must be as quick as possible without jeopardizing the integrity of the process. Accepting Ms. Spielberger’s late filed submissions also facilitates a timely resolution of the costs application without jeopardizing the integrity of the process. Ms. Spielberger did not have a blatant disregard for the Tribunal’s processes. While she filed her submissions 16 hours later than she was supposed to, only four minutes of those 16 hours were during business hours. When she realised, she had made a mistake about the filing deadline, she was prompt and apologetic in remedying it.

III THE COSTS APPLICATION

[12] I now move on to the costs application. First, I provide background information about costs under the Code . Then, I set out my decision and the reasons for that decision.

[13] Section 37(4) of the Code sets out that:

The member or panel may award costs

(a) against a party to a complaint who has engaged in improper conduct during the course of the complaint, and

(b) without limiting paragraph (a), against a party who contravenes a rule under section 27.3 (2) or an order under section 27.3 (3).

[14] The Code does not define costs. As I have explained in Pike v. Ooh La La Café and others (No. 3) , 2024 BCHRT 191 [ Pike No. 3 ] at paras. 13 to 17, I treat the term costs as a reference to:

a. An indemnification for the legal expenses and services that a person incurs because of a participant’s improper conduct; and

b. any amount that the Tribunal determines is sufficient to:

i. hold a participant accountable for their improper conduct,

ii. deter a participant from engaging in similar improper conduct in the future, or

iii. encourage a participant to carefully assess how they conduct themselves in the Tribunal’s proceedings.

[15] The Code also does not define improper conduct. As I have explained in Pike No. 3 , I treat the term improper conduct as any conduct that:

a. is a breach of the Tribunal Rules , or an order or direction of the Tribunal;

b. has a significant impact on the integrity of the Tribunal’s process; or

c. has a significant prejudicial impact on the party seeking the costs award: at paras. 18 to 25.

[16] I now turn to my decision.

IV Decision

[17] I deny Sofo’s application for an order that Ms. Spielberger pay it costs. In summary, I am not convinced that Ms. Spielberger engaged in improper conduct by failing to comply with Rule 32(11) of the Tribunal Rules , or by misrepresenting material facts to the Tribunal causing a significant prejudicial impact to Sofo. I am convinced that Ms. Spielberger engaged in improper conduct by failing to comply with Rules 20(2) and 20.2 of the Tribunal Rules . However, I do not find it appropriate in the circumstances to order that she pay Sofo costs regarding that improper conduct.

V Reasons for decision

A. Did Ms. Spielberger engage in improper conduct by failing to comply with Rule 32(11) of the Tribunal Rules ?

[18] I start by explaining why I am not convinced that Ms. Spielberger engaged in improper conduct by failing to comply with Rule 32(11), which required her to provide Sofo a copy of any legal authorities she intends to rely on at the hearing: Tribunal Rules at Rule 32(11). Neither the Tribunal Rules , nor the Tribunal’s practice direction on legal authorities, set out a timeframe for when Ms. Spielberger must do so.

[19] On February 27, 2024, the Tribunal commenced its first day of the hearing. I directed the parties to provide closing submissions in writing after we conclude the in-person virtual portion of the hearing, where the parties would provide me their evidence. On February 27, 28 and 29, 2024, I heard the parties’ evidence. I added March 14, 2024 as an additional hearing date so that Ms. Spielberger could complete the cross-examinations of two of Sofo’s witnesses.

[20] On March 5, 2024, Sofo asked Ms. Spielberger to give it copies of any authorities she intends to use in her closing submissions. Ms. Spielberger advised Sofo that she would do so when she makes her closing submissions.

[21] On March 6, 2024, Sofo applied to the Tribunal for an order that Ms. Spielberger give it copies of all authorities she intends to rely on in her closing submissions.

[22] On March 14, 2024, the Tribunal commenced the last day of the in-person portion of the hearing. I discussed Sofo’s March 6, 2024 application with the parties. I asked Sofo how much time it would need, after receiving Ms. Spielberger’s closing submissions and list of authorities, to adequately respond to her closing submissions. Sofo provided me a timeline that it believed would be fair. Sofo also advised me that after it receives Ms. Spielberger’s closing submissions, it could need more time depending on how many authorities Ms. Spielberger relies on and how much time it may need to research those authorities and respond to her arguments.

[23] I exercised my power to give any directions and make any orders that I consider necessary for the just and timely resolution of the complaint: Code at s.27.3(1) and (3); Tribunal Rules at Rule 32(12). I directed Ms. Spielberger to provide Sofo copies of the legal authorities she wishes to rely on at the hearing when she makes her closing submissions. I gave Sofo directions on when to provide its response to Ms. Spielberger’s submissions. Those directions aligned with the amount of time that Sofo said it would need to research Ms. Spielberger’s authorities and respond to her arguments. I also advised Sofo that if it required more time to complete its response arguments, due to the volume of authorities it receives from Ms. Spielberger or otherwise, it could ask the Tribunal for additional time to do so.

[24] Ms. Spielberger did not fail to comply with my directions about when she must provide Sofo copies of the legal authorities she intended to rely on. I also note that Sofo did not contact the Tribunal seeking more time to reply to Ms. Spielberger’s submissions.

B. Did Ms. Spielberger engage in improper conduct by making material misrepresentations to the Tribunal?

[25] Next, I explain why I am not satisfied that Ms. Spielberger engaged in improper conduct when she misrepresented material facts to the Tribunal. As I understand it, Sofo argues that in Ms. Spielberger’s complaint she made material misrepresentations to the Tribunal about Sofo not telling her the reasons for its termination of her employment, and that her doing so has resulted in Sofo experiencing a significant prejudicial impact.

[26] I accept that Ms. Spielberger made a material misrepresentation to the Tribunal. In her February 21, 2021 complaint, she stated that Sofo never provided her a reason for why it had terminated her employment. At the hearing, Sofo provided the Tribunal a copy of a September 10, 2020 email that it had sent to Ms. Spielberger. In that email Sofo set out its reasons for having terminated her employment. Ms. Spielberger admitted to having received the email and did not challenge the authenticity of it.

[27] I also accept that Ms. Spielberger’s material misrepresentation to the Tribunal on this point had an impact on Sofo. However, I am not convinced that the impact was a significant prejudicial impact. First, in support of Sofo’s argument about this allegation, it has pointed the Tribunal to Wells v. UBC and others (No. 5) , 2011 BCHRT 176, where the Tribunal ordered a complainant pay to a respondent $5,000 in costs. The Tribunal had allowed the complainant’s complaint to proceed, despite her having filed it seven months after the six-month time limit for doing so: Wells v. UBC and others , 2006 BCHRT 205 [ Wells ]. The complainant had convinced the Tribunal that, due to medical issues, she was not capable of taking the necessary steps toward filing a human rights complaint, and that it wasn’t until December 2005 when she was able to retain legal counsel to represent her: Wells at para. 15. The respondent challenged the Tribunal’s decision to allow her complaint to proceed late-filed, and eventually succeeded in having the Tribunal’s decision reversed. In large part, the Tribunal reversed its decision because the complainant had initially consulted legal counsel in August 2005. She had misrepresented the facts about when she first reached out to legal counsel: Wells v. UBC and others (No. 3) , 2009 BCHRT 284. After the Tribunal reversed its decision, the respondents applied for an order of costs against the complainant. The Tribunal found that the complainant’s misrepresentation of her ability to take the necessary steps toward filing a human rights complaint had a significant impact on the integrity of the Tribunal’s processes, and a significant prejudicial impact on the respondents: Wells v. UBC and others (No. 4) , 2010 BCHRT 100 at para. 107. I note that the Tribunal did not provide details about what it considered to be the significant prejudicial impact the respondents had experienced. So, I do not find that case helpful in deciding whether Sofo experienced a significant prejudicial impact because of Ms. Spielberger’s conduct, making it improper conduct.

[28] Second, as I explained in Pike No. 3 at para. 31, a party experiences a prejudicial impact when another participant’s conduct results in that party experiencing a negative effect regarding fairness in the proceedings. Without limiting the types of negative effects that may arise regarding fairness, they include experiencing:

a. An impaired ability to present their own case to the Tribunal because the other participant’s conduct interferes with their ability to present their own evidence, question their witnesses, keep track of what evidence has been put before the Tribunal, raise and respond to evidentiary objections, keep track of the hearing proceedings, conduct an effective cross-examination, make decisions around their litigation strategy, or maintain their own record of what has occurred at the hearing.

b. Timing prejudice, which is when another participant’s conduct consumes an undue amount of time, reducing the impacted party’s available opportunity to present their case to the Tribunal.

[29] As I understand it, Sofo argues that Ms. Spielberger wasted time at the hearing giving evidence about Sofo’s termination of her employment, and it wasn’t until Sofo cross-examined her that she admitted Sofo had emailed her with reasons for its termination of her employment. Sofo says this had a significant prejudicial impact on its ability to put forward two witnesses who it had expected would appear before the Tribunal on February 28, 2024.

[30] I am not convinced by Sofo’s argument on this point. All of Sofo’s witnesses had an opportunity to give their evidence. None of them missed that opportunity because of the approximate one hour that Ms. Spielberger spent, on February 28, 2024, providing testimony in direct and cross-examination about Sofo’s termination of her employment.

[31] Sofo further argues that for most of the day, which I treat as meaning most of the day that Ms. Spielberger was testifying on, one of Sofo’s employees waited in the lobby for his turn to testify, resulting in a financial loss to Sofo in the amount of $505.75, which it had to pay him in wages while he waited. As I understand it, Sofo says these financial losses are a significant prejudicial impact that it has experienced because of Ms. Spielberger’s material misrepresentation about its termination of her employment.

[32] I am not convinced by Sofo’s argument on this point. As I have mentioned, Ms. Spielberger spent approximately one hour giving her evidence about Sofo’s termination of her employment. This included Sofo confronting Ms. Spielberger with the email in which it explained to her the reasons for its termination of her employment. Sofo would have experienced losses for its payment of one hour of wages to the witness who was waiting to testify. While this is a prejudicial impact that Sofo experienced, I do not consider it to be a significant prejudicial impact.

[33] Sofo has provided no further arguments or evidence about any other significant prejudicial impact it experienced because of Ms. Spielberger’s material misrepresentation of the facts surrounding its termination of her employment.

C. Did Ms. Spielberger engage in improper conduct by failing to comply with Rules 20(2) and 20.2 of the Tribunal Rules ?

[34] Next, I explain why I am satisfied that Ms. Spielberger engaged in improper conduct when she failed to comply with Rules 20(2) and 20.2 of the Tribunal Rules , which required her to promptly deliver to Sofo copies of any documents that may be relevant to the complaint.

[35] On the morning of Thursday, February 29, 2024, Ms. Spielberger was cross-examining one of Sofo’s witnesses. In doing so, she sought to admit a document that contained screenshots of that witness’s Twitter posts. Sofo objected to the Tribunal’s admission of the Twitter posts on the basis that Ms. Spielberger had not disclosed them to Sofo. In responding to that objection, Ms. Spielberger advised the Tribunal that on the evening of Tuesday, February 27, 2024, when she was preparing for cross-examination, she became aware of the Twitter posts depicted in the document, but at the time she did not know whether they would be relevant to the complaint. She provided no details about when she took screenshots of the Twitter posts converting them into the document that she sought to put before the Tribunal.

[36] Ms. Spielberger must have converted the witness’s Twitter posts into a document before she sought to have that document admitted as evidence at the hearing. I treat her conversion of those Twitter points into a document as evidence that when she converted them, she knew they may be relevant to the complaint. Promptly after converting them, the Tribunal Rules required her to provide Sofo with a copy of the document. She did not do so, which was a breach of the Tribunal Rules .

D. Is a costs award is appropriate regarding Ms. Spielberger’s improper conduct?

[37] Last, I turn to whether a costs award is appropriate in the circumstances. Section 37(4) of the Code states that the Tribunal may awards costs, but not that it must do so. This means it does not have to orders costs after a finding of improper conduct. When the Tribunal finds that improper conduct occurred, it has discretion on whether to order costs and, if so, on the amount to order: Fougere v. Rallis and Kalamata Greek Taverna (No. 3), 2003 BCHRT 56 at paras. 11 and 12 ; Downtown Vancouver Business Improvement Association v. Pivot Legal Society , 2010 BCSC 807 at para. 42 .

[38] I will now explain why a costs award is not appropriate regarding Ms. Spielberger’s non-compliance with the Tribunal Rules . First, Ms. Spielberger’s improper conduct in doing so is on the very low end of the seriousness spectrum. At most, she disclosed the Twitter posts less than two days after she was required to do so.

[39] Second, there is no evidence that Ms. Spielberger’s failure to comply with the Tribunal Rules resulted in Sofo experiencing any significant prejudicial impact in the hearing process. If it had then I would have considered that to be an aggravating factor pointing in favor of a costs award. Sofo had two weeks to consider the late-disclosed Twitter posts, and it had an opportunity to question the witness who made the Twitter posts.

[40] Third, Sofo argues that the Tribunal should order costs against Ms. Spielberger for her failure to follow the Tribunal Rules because it has resulted in Sofo experiencing wasted legal costs. It points the Tribunal to its legal costs associated with Sofo’s legal counsel sending emails to Ms. Spielberger seeking her permission on applications, and preparing applications for various orders, including to re-examine the complainant, have the complainant produce a book of authorities, and this costs application. As I understand it, Sofo also argues that none of the additional costs having to do with this costs application would have been necessary if Ms. Spielberger had followed the Tribunal Rules .

[41] I am not convinced by this part of Sofo’s arguments. Sofo has not explained how Ms. Spielberger’s failure to comply with these Tribunal Rules has anything to do with its applications to re-examine her or have her produce a book of authorities to it. I accept that Sofo must have experienced legal costs regarding this costs application, and that Ms. Spielberger’s failure to comply with the Tribunal Rules contributed to Sofo’s decision to make this costs application. However, Sofo has provided no evidence about the amount of legal costs it incurred regarding this part of its costs application. Without such information, I am unable to conclude that those losses to Sofo warrant a costs order against Ms. Spielberger.

[42] Last, Sofo argues that the Tribunal should award costs because Ms. Spielberger’s failure to comply with the Tribunal Rules forced it to spend time finding the Twitter posts at issue, identifying the contexts within which those Twitter posts were made, and researching what some of the Twitter posts that were in Romanian mean in English, which its says it had to do without discussing the Twitter posts with the witness who made them.

[43] This part of Sofo’s arguments does not convince me that Ms. Spielberger’s failure to disclose the Twitter posts to it in accordance with the Tribunal Rules warrants the Tribunal making a costs award against her. Sofo has not established that, had Ms. Spielberger promptly disclosed the Twitter posts to it, it would not have had to take these steps. Assessing the other party’s evidence is a part of the responsibilities of every party before the Tribunal. Sofo would have had to do this even if Ms. Spielberger had promptly disclosed the Twitter posts to it. At most, it would have had two more days to do so. If Sofo needed more time than that to consider how it may respond to the Twitter post evidence, it also could have asked the Tribunal for more time. It did not do so.

VI CONCLUSION

[44] I deny Sofo’s costs application.

Member Sonya Pighin

Tribunal Member
BC Human Rights Tribunal