BC Human Rights Tribunal

Female Softball Players (by Sharpe) (No. 4), 2025 BCHRT 76

Date Issued: March 27, 2025
File(s): CS-000715

Indexed as: Female Softball Players (by Sharpe) (No. 4), 2025 BCHRT 76

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:

Female Softball Players (by Michael Sharpe)
COMPLAINANT

AND:

City of Victoria
RESPONDENT

REASONS FOR DECISION
APPLICATION FOR DISCLOSURE
Rule 23

Tribunal Member: Robin Dean

Counsel for the Complainant: John S. Heaney

Counsel for the Respondent: Thea Hoogstraten

I INTRODUCTION

[1] This decision is about document disclosure.

[2] By way of brief introduction, on February 10, 2020, Michael Sharpe, acting as representative, filed this human rights complaint alleging that the City of Victoria discriminated against a class of people now defined as:

all female softball players registered with the Beacon Hill Baseball Softball Association who have played at Pemberton Park since the start of the 2019 season and/or currently play at Pemberton Park [the Players ].

[3] The Beacon Hill Baseball & Softball Association provides baseball and softball programs for the City’s children. The Complainant says 100% of the Association’s softball players are female. The Association contracts with the City to use parks for its programming. In 2016, the Association decided to focus its softball program in Pemberton Park. It asked the City to approve and support work to change the baseball field at Pemberton Park into a softball field, and to upgrade the facilities. After phase one of those upgrades was completed, the process stalled at phase two. At this phase, the Association’s priority was to install a “skinned infield” and a batting cage. The City did not initially approve this work. For the 2019 and 2020 seasons, the Association’s softball players played at Pemberton Park without a skinned infield and batting cage.

[4] The Complainant alleges that the City’s conduct in response to the Association’s requests related to Pemberton Park deprives the Players of opportunities to play softball at a competitive level and develop in a sport where Canadians excel internationally. He says the conduct stands in contrast with the City’s approvals for upgrades and facilities used for baseball, a sport for which he says 96% of the Association’s players are male. He alleges that the disparities, and the impacts on the Players, are discrimination based on sex, in violation of s. 8 of the Human Rights Code.

[5] In the present application, the Players apply for an order to compel the City to disclose broad categories of documents under the Tribunal’s Rules of Practice and Procedure. The City opposes the application and says that it has met its document disclosure obligations in this proceeding.

[6] For the following reasons, I order that some classes of documents be disclosed, specifically text messages, memos, meeting minutes, and budget development working papers. I have reviewed and considered all the materials submitted by the parties but reference only those parts necessary for my decision. This decision deals solely with the disclosure application before the Tribunal. I make no findings of fact respecting the merits of the complaint.

II DECISION

[7] The Tribunal governs disclosure under Rules 20 to 23. The City is required to disclose all documents in its possession or control that may be relevant to the complaint or response to the complaint, except for any documents over which privilege is claimed: Rule 20(3). The obligation to disclose relevant documents is a key component of ensuring both the fairness and efficiency of processes before the Tribunal by allowing parties to prepare their case and make full answer and defence: Smith v. Provincial Health Services Authority , 2014 BCHRT 223 para. 18.

[8] The obligation to disclose is ongoing, a feature that considers both the manner in which cases may evolve over time as well as the practical realities of the availability and accessibility of documents. The possible prejudice that may flow to parties because of incomplete disclosure is acknowledged in Rule 22, which provides that if a participant fails to disclose any document, that document may not be introduced as evidence at a hearing without the permission of the Tribunal.

[9] The Complainant has applied under Rule 23(1). That Rule provides that an application for disclosure must state how disclosure of the documents requested will further the just and timely resolution of the complaint, and how the documents requested may be relevant to an issue in the complaint, response, or remedy sought. The applicant must also set out their own efforts to obtain copies of the documents.

[10] When deciding whether to order disclosure, the Tribunal must consider whether a document may be relevant or arguably relevant. This is not a high threshold; there must be some connection between the documents and a fact in issue: Ringham v. Vancouver Island Health Authority , 2023 BCHRT 14 at para. 36. At the same time, disclosure should serve the goals of efficiency and fairness: Employee v. Overwaitea Food Group Ltd. , 2018 BCHRT 84 at para. 10. Consistent with this principle, disclosure should be proportionate to the issues the Tribunal is called upon to resolve: Patron v. Landmark Cinemas LP , 2020 BCHRT 127 at para. 11. The process of document disclosure is not meant to be a “fishing expedition”, and the nature of the case as well as the rights at issue will assist the Tribunal in determining the nature and breadth of document disclosure: Tannis et al. v. Calvary Publishing Corp and Glen Robbins , 2000 BCHRT 26 at para. 44.

[11] As I understand it, the issues in this complaint centre on discrimination and justification.

[12] First, to make out his case, the Complainant will have to prove that the Players experienced adverse impacts in services provided by the City and that those adverse impacts related to the Players’ sex: Moore v. BC (Education) , 2012 SCC 61 at para. 33. At issue between the parties is whether any adverse impact is attributable to the City and whether the Players’ sex – rather than their sport – was a factor in any adverse impact they experienced.

[13] Second, if the Complainant proves the elements of the discrimination complaint, then the City bears the burden of justifying its conduct as a bona fide reasonable justification. If the impact is justified, there is no discrimination. In its defence, the City references concerns about capital and maintenance costs as well as countervailing considerations such as its obligations to other users of Pemberton Park.

[14] These issues, which again are related to discrimination and justification, establish the scope of documents that may be relevant and subject to disclosure.

[15] The Complainant is concerned that the City did not list or produce all documents in its possession and control that may be relevant to the complaint or response to the complaint. He says that there are classes of documents he would have expected to have seen in the City’s Form 9.2 or 9.7, including:

a. texts;

b. internal emails;

c. other councillor-staff communications;

d. memos;

e. minutes;

f. briefing notes;

g. other notes;

h. budget development working papers;

i. budget documents placed before council or council committees;

j. any other documents related to this matter placed before council or council committees; or

k. other documents recording council or council committee decisions related to this matter.

[16] The Complainant further says that he has compelling evidence that the City’s production is incomplete. He points to a 2019 text message between the City’s Chief Administrative Officer [ CAO ] and the vice president of the Association, which he says is relevant and producible. The text message from the CAO to the vice president of the Association reads in part:

I totally understand the situation and unfortunately there’s no quick fix. With all the competing priorities at Council it’s hard to see where this issue will land. Having said that, it’s the budget townhall this Thursday so there’s an opportunity to pitch this to Council directly.

[17] The Complainant says that the existence of this text raises the question of what other documents the City has failed to list and produce. He says that since he discovered the 2019 text, he has identified further emails, which he says are relevant and should have been listed and produced, including:

a. a November 25, 2019 email a city councillor sent to the CAO saying that he is hoping to set up a meeting with the CAO and to provide her with Association documents “that I brought up in camera a month or two ago and discuss potential paths forward”;

b. a November 25, 2019 email that the same city councillor sent to Mr. Sharpe apologizing to Mr. Sharpe for not returning his phone calls, informing him that discussions have taken place and will take place with city staff, and that Council would need to have a larger discussion about the infrastructure upgrades within the context of the City’s budget;

c. a December 29, 2019 email from Mr. Sharpe to various City employees discussing a potential meeting with Mayor and Council about the Association’s request for funding the infrastructure upgrades;

d. a December 30, 2019 email from the Mayor to various city employees saying she does not have the “whole story” and the best case scenario would be that the request is addressed in the 2021 budget; and

e. a response from the City’s Manager of Executive Operations to the Mayor offering to brief the Mayor so she could decide whether to meet with the Association.

[18] Below I set out the Complainant’s requests, and my determination of their relevance. Where I have identified a category of documents as relevant, those documents must be disclosed, subject to any claim for privilege.

1. Texts

[19] To date, the City has not disclosed any copies of text messages, including the CAO’s text message, which was brought to the Tribunal’s attention on this application [the Text Message ]. The Complainant says the Tribunal may reasonably infer from the Text Message that other, relevant text messages exist between elected and non-elected officials that have not yet been disclosed. The City has not made any specific representations regarding whether it has searched for relevant text messages and found none.

[20] The City says that the substance of the Text Message is not arguably relevant to determining whether the City discriminated against the Players. The Complainant says that the Text Message raises a number of questions, including those surrounding the City’s justification defence. I agree with the Complainant that the Text Message meets the low threshold of arguable relevance, in particular with regards to justification. The Text Message and the questions that it raises may assist in the orderly resolution of the Complaint: Dove v. GVRD (No. 5) , 2006 BCHRT 582 at para. 50.

[21] In terms of the general request for other texts, I agree with the Complainant that I may infer the existence of additional, arguably relevant text messages. This is particularly so in the absence of any representation by the City that it has made a search of text messages. Therefore, the City must search its records and disclose any arguably relevant text messages from July 2016, which is when the Players first asked for improvements to Pemberton Park, to the present, except those text messages protected by privilege. I order that this process be completed within three weeks of this decision. The parties can extend this deadline by consent, or the City can request an extension, if necessary, from the Tribunal.

2. Internal emails

[22] Similarly, the Complainant says that I can infer the existence of other, arguably relevant internal emails from the existence of the emails brought to the Tribunal’s attention on this application. Unlike the situation with the text messages, however, counsel for the City has identified a number of internal emails that have been disclosed to date and indicates that there are no further internal emails to disclose. Where counsel for the City has asserted that disclosure of certain records is complete, I accept that representation.

[23] Again, disclosure is an ongoing obligation, and if the City does find more arguably relevant internal emails, it should disclose them forthwith. It remains open to the Complainant to cross-examine the City’s witnesses related to documents he believes have not been properly disclosed, and to seek costs in the event of improper conduct.

3. Other councillor-staff communications, briefing notes, and budget documents placed before council or council committees

[24] The City says it has disclosed councillor-staff communications, briefing notes, and budget documents. I rely on this representation and make no orders regarding further disclosure of these categories of documents. I repeat the cautions above with regards to ongoing disclosure obligations and costs.

4. Memos and Minutes

[25] The City has not disclosed any internal memos or meeting minutes in this proceeding. The Complainant says that it strains credulity that there would be no relevant memos or minutes and asks the City to say clearly on the record that no such memos or minutes exist. In its response to the disclosure application, the City does not do so but says that the Complainant’s request that it disclose all memos and minutes is not proportionate. The City relies on a now moot argument about the winter holidays being a busy time with many people taking leave from work. [1]

[26] I agree with the Complainant that given the City’s engagement with the Association’s request over many years, one would expect to see memoranda and meeting minutes in the disclosure. Under the circumstances here, where the City has made some representations that certain documents do not exist but has not done so with respect to memoranda and meeting minutes, I order that the City search its records and disclose any arguably relevant memoranda and meeting minutes if they exist. I order that this process be completed within three weeks of this decision unless extended by consent of the parties or by order of the Tribunal.

5. Other notes and any other documents related to this matter placed before council or council committees

[27] The Complainant seeks disclosure of other notes and any other documents related to this matter placed before council or council committees. He says that if no such notes or documents exist, the City should say so on the record. The City does not do so but says the request is not proportionate. I agree. The challenge with the Complainant’s catch-all requests is that it is very broad with no parameters, and no evidentiary basis to suggest documents exist that have not been disclosed. Document disclosure is not meant to be a fishing expedition. Given the overbroad nature of the requests, I decline to order the disclosure of other notes or any other documents related to this matter placed before council or council committees.

6. Budget development working papers

[28] The Complainant seeks budget development working papers that discuss whether funding would be made available for the Association’s requests related to Pemberton Park. The Complainant says that although most of the final budgets produced by the City contain no funding for the requests, given the City’s engagement with the requests it is reasonable to infer that there were working papers written where the requests were costed and potential timelines for their implementation discussed.

[29] The City says that this request is not relevant or proportionate. I disagree.

[30] The documents sought, if they exist, are arguably relevant to issues in this proceeding, particularly justification, and they may also be relevant to discrimination. Further, the request is proportionate to the issues in the complaint; it is limited in both subject matter and temporal scope. I order that the City search its records and disclose any arguably relevant budget development working papers. I order that this process be completed within three weeks of this decision unless extended by consent of the parties or by order of the Tribunal.

7. Other documents recording council or council committee decisions related to this matter

[31] Finally, the Complainant seeks disclosure of any other documents recording council or council committee decisions related to this matter. In my view, this catch-all request, which again is quite broad, is captured by the Complainant’s request for meeting minutes, which I have ordered the city to disclose. I do not order further disclosure of other documents recording council or council committee decisions related to this matter. I am not satisfied that making such an order would facilitate the just and timely resolution of this complaint.

III CONCLUSION

[32] I order the City to disclose any text messages dated from July 2016 to the present, which are in its possession or control relevant to discrimination or justification except those protected by privilege. I also order the City to disclose any relevant, non-privileged memos, meeting minutes, and budget development working papers. The City must comply with this order within three weeks of this decision, unless that date is extended by consent or by further order.

Robin Dean

Tribunal Member