Galbraith v. Precision Drilling Canada Limited Partnership and another, 2025 BCHRT 77
Date Issued: March 27, 2025
File(s): CS-005746
Indexed as: Galbraith v. Precision Drilling Canada Limited Partnership and another, 2025 BCHRT 77
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:
Jeffrey Galbraith
COMPLAINANT
AND:
Precision Drilling Canada Limited Partnership and Andre Richard
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Robin Dean
Counsel for the Complainant: Lian Kubisz
Counsel for the Respondent: Jason Kully
I INTRODUCTION
[1] This decision begins with a warning that it discusses alleged sexual assault and harassment.
[2] Jeffrey Galbraith alleges that he was discriminated against in employment based on sex and sexual orientation contrary to s. 13 of the Human Rights Code . He says that his colleague, Andre Richard, repeatedly told him “those are gay” and “those pants are for fags” when Mr. Galbraith began wearing a pair of Lululemon pants to the worksite. Then, one day, following a staff meeting, Mr. Galbraith alleges that Mr. Richard approached him from behind and pulled down his Lululemon pants and his underwear, exposing his genitals. Mr. Galbraith says that Mr. Richard called him a “faggot” and grabbed his penis, calling it “small and hairy” [the Incident ]. Mr. Galbraith says that as a result of the humiliation and embarrassment the Incident caused him, he became depressed and ceased working. He also says that he began taking anti-depressants, which meant that he could no longer work with heavy machinery, as he had before.
[3] Mr. Richard denies that the Incident occurred as Mr. Galbraith says it did. He says he may have “tugged” on Mr. Galbraith’s pants and made a comment about how Mr. Galbraith was not wearing coveralls as required by the dress code. He denies calling Mr. Galbraith any homophobic slurs or making comments about Mr. Galbraith’s penis. In short, it is the Respondents’ position that Mr. Galbraith fabricated what happened to him, and they apply to dismiss the complaint on the basis that it has no reasonable prospect of success: Code s. 27(1)(c).
[4] Issues of credibility at the foundation of a case should not be decided based on conflicting affidavits alone: Lewis v. Ministry of Public Safety and Solicitor General , 2024 BCHRT 125 at para. 29. Here, Mr. Galbraith’s recollection of events, as set out in his affidavit, conflicts with Mr. Richard’s affidavit. Because of the conflict in the evidence, which is foundational and cannot be resolved on a preliminary basis, I deny the application to dismiss. 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. I make no findings of fact.
II DECISION
A. Section 27(1)(c) – No reasonable prospect of success
[5] The Respondents apply to dismiss Mr. Galbraith’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c) The onus is on the Respondents to establish the basis for dismissal.
[6] 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.
[7] 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 .
[8] 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 .
[9] 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.
[10] To prove his complaint at a hearing, Mr. Galbraith will have to prove that he has a characteristic protected by the Code , he was adversely impacted in employment, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33. If he did that, the burden would shift to the Respondents to justify the impact as a bona fide occupational requirement. If the impact is justified, there is no discrimination.
[11] The Respondents agree that Mr. Galbraith’s sex and sexual orientation are protected characteristics under the Code . Therefore, the first element in the test set out in Moore is not in dispute.
[12] The Respondents argue that Mr. Galbraith has not suffered any adverse impact in his employment. They base this argument on the view that the Incident never happened. They say that Mr. Richard has “consistently and repeatedly denied in engaging in the alleged conduct.” They point to a July 2021 text message exchange between Mr. Galbraith and Mr. Richard, about six months after the incident and before the complaint was filed, where Mr. Richard denies the Incident occurred. They also say that because no witnesses have come forward to corroborate Mr. Galbraith’s claim, he is not to be believed. The Respondents say that Mr. Galbraith’s evidence is inconsistent because he was slow to tell the full story. They say that Mr. Galbraith has been known to “spin a good yarn”. Finally, they say that the Incident was investigated by Mr. Galbraith’s employer, Beyond Energy, by Precision Drilling itself, and by the RCMP, all three of whom concluded that the Incident did not occur. Finally, the Respondents say that it is not plausible that Mr. Richard would have engaged in such conduct given that he was a “respected supervisor” with a good relationship with Mr. Galbraith.
[13] Many of the Respondents arguments appear to be rooted in myths and stereotypes about how a victim of sexual assault should behave in order to be believed. These stereotypes include that the victim of sexual assault should be visibly traumatized: Employee v. Employer , 2020 BCHRT 4 at para. 81, and that victims of sexual assault should report it right away: Basic at para. 104. Often these stereotypes are relied upon to argue that a complainant is lying: See e.g., Jamal v. TransLink Security Management and another (No. 2) , 2020 BCHRT 146.
[14] It can take victims of sexual assault some time to tell anyone the details about what happened to them, either in full or in part because it often takes time to be psychologically prepared to report it: R. v. L. (W.K.) , 1991 CanLII 54 (SCC), [1991] 1 SCR 1091 at p. 1101. For that reason, the Tribunal has said with reference to time limits that “sexual assault allegations deserve special consideration in relation to the time it takes to bring an allegation forward”: Mr. C. v. Vancouver Coastal Health Authority and another , 2021 BCHRT 22 at para. 74.
[15] In setting out these general considerations, I am not deciding what happened here. I only note the social context within which Mr. Galbraith’s complaint may be considered if it goes to a full hearing. This includes the context in which the Respondents’ defences may be assessed.
[16] Turning back to the credibility issues surrounding the Respondents’ argument that there is no reasonable prospect Mr. Galbraith will prove adverse impact, I find that the credibility issues here are central to the complaint—indeed they go directly to the heart of whether Mr. Galbraith suffered an adverse impact in his employment. However, the fact that a complaint raises issues of credibility central to the complaint does not mean the Tribunal must deny an application under s. 27(1)(c). A Tribunal member may be able to resolve credibility issues by other means. Usually corroborative evidence is required: Monnette v. BC (Ministry of Justice) , 2017 BCHRT 34 at para. 34.
[17] Here, there is no corroborative evidence, only competing versions of events from the respective parties. These competing versions are mirrored in the investigation materials before me.
[18] The Respondents say Mr. Galbraith has contradicted himself in his evidence because he initially reported that “everyone” knew about the Incident and now says that there only “may” have been witnesses. I do not find these statements to necessarily be contradictory. There are other ways for “everyone” to have found out about the Incident besides directly witnessing it. Further, I disagree with the Respondents that this is not a “he said, he said” case because no witnesses have come forward. There could be many reasons why no witnesses have come forward, particularly in the employment context where the alleged perpetrator is a “respected supervisor.”
[19] Finally, I am not persuaded that I can resolve the conflict in the Respondents’ favour because the other investigations have determined that the Incident did not occur. While the Tribunal can make use of the findings of an investigation, those findings are not dispositive of whether the complaint should be dismissed under s. 27(1)(c): Horner v. Concord Security Corporation , 2003 BCHRT 86 at para. 24. My determination depends on a global assessment of all the application to dismiss materials: Horner at para. 29.
[20] Upon a global assessment, including the consistency of not only Mr. Richard’s denials, but also Mr. Galbraith’s allegations, I am not satisfied that I can resolve the conflict in the evidence. The question of whether the Incident occurred can only be resolved by testing all the evidence and making findings of fact after a hearing of the matter. I decline to exercise my jurisdiction to dismiss the complaint under s. 27(1)(c).
III CONCLUSION
[21] I decline to dismiss Mr. Galbraith’s complaint. The complaint will proceed to a hearing. In the meantime, I encourage the parties to make efforts to settle this matter, including by making use of the Tribunal’s mediation services.
Robin Dean
Tribunal Member