BC Human Rights Tribunal

Radheshwar v. Coté and others, 2025 BCHRT 83

Date Issued: April 2, 2025
File(s): CS-002765

Indexed as: Radheshwar v. Coté and others, 2025 BCHRT 83

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:

Sundar-Jovian Radheshwar
COMPLAINANT

AND:

Jonathan Coté and City of New Westminster (Office of the Mayor)
and New Westminster Police Board
RESPONDENTS

REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)

Tribunal Member: Robin Dean

Counsel for the Complainant: Aleem Bharmal, KC

Counsel for the Respondents: David T. McKnight and Naomi Krueger

I INTRODUCTION

[1] Dr. Sundar-Jovian Radheshwar says he was racially profiled by police when they stopped him outside his apartment building in New Westminster. This complaint is about the Respondents’ handling of Dr. Radheshwar’s complaint about the stop, which Dr. Radheshwar says was itself discriminatory. Dr. Radheshwar alleges that the Respondents discriminated against him based on race, ancestry, colour, and place of origin contrary to s. 8 of the Human Rights Code .

[2] The Respondents deny discriminating and apply to dismiss his complaint under s. 27(1)(c).

[3] The issue I must decide is whether Dr. Radheshwar has no reasonable prospect of proving a service-related adverse impact or a connection between his protected characteristics and a service-related adverse impact.

[4] For the following reasons, I dismiss Dr. Radheshwar’s complaint. 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 BACKGROUND

[5] On July 27, 2020, Dr. Radheshwar, who describes himself as a South Asian male with Brown skin colour, left his apartment building in downtown New Westminster to meet a friend for a coffee. Soon after he left the building, he heard police officers call after him. When he turned around, the officers approached him and asked him if he was “Abdul”. Dr. Radheshwar said he was not. Dr. Radheshwar and the officers engaged in a short dialogue about whether Dr. Radheshwar was in fact “Abdul” before one of the officers said, “it’s not him” and they left.

[6] After this encounter, Dr. Radheshwar made a complaint to the Office of the Police Complaint Commissioner, who determined it was a service and policy complaint [1] and directed the New Westminster Police Board to take one or more of the actions set out at s. 171(1) of the Police Act . Pursuant to s. 171(1) of the Police Act , the New Westminster Police Department Deputy Chief Constable recommended to the New Westminster Police Board that it dismiss Dr. Radheshwar’s complaint.

[7] On October 13, 2020, then-Mayor Coté, the chair of the New Westminster Police Board, wrote to Dr. Radheshwar to inform him that the New Westminster Police Board was dismissing his complaint, which Mr. Coté characterized as being about “the New Westminster Police Department’s perceived practice of racially profiling minority persons while conducting street checks.” The letter stated the following reasons for the decision:

On September 29, 2020, the Police Board reviewed this matter and determined that, while certainly an unfortunate incident, your interactions [with] the NWPD members did not constitute a “street check” under our policy, but rather an investigative detention, based on an honest, but mistaken belief that you were a person arrestable for criminal offences.

I should add that both NWPD policies are in compliance with relevant BC Provincial Policing Guidelines and current case law.

[8] Dr. Radheshwar responded to Mr. Coté’s letter on November 6, 2020, expressing his disappointment that Mr. Coté had not included “the fact that the police officers involved did not follow street check procedure” by telling Dr. Radheshwar that he was being detained.

[9] On November 13, 2020, Mr. Coté responded to Dr. Radheshwar’s correspondence, in part, as follows:

…In the case at hand, based on our review of the information provided by the NWPD Professional Standards Unit we did not feel that further investigation or changes were required. The officers involved were following relevant NWPD policy on Investigative Detention and the policy itself was appropriate in its nature, scope and compliance with the current case law.

In the situation involving yourself, it appears our officers saw you from a distance and mistakenly believed you may have been a suspect whom thy were actively looking for to arrest on serious matters. The officers did ask you to stop briefly but once they got closer and realized you were not the person they were looking for they allowed you to proceed. I think its important to note, that this situation does not fall into the category of a Street Check, which would be a “voluntary” interaction between yourself and the officers. In this situation, it is clear the officers’ actions were in fact an “investigative detention” based on a reasonable suspicion that you were the male they were looking for. While normally an “investigative detention” of any length would trigger a requirement for officers to inform you of your Charter Right to access a lawyer, in this situation the incident was so brief in nature that to have done so would have extended the detention unnecessarily and inappropriately. Again I say this not to minimize the impact it has had on yourself but to provide context on how the officers viewed the situation.

[emphasis added.]

[10] As I understand it, Dr. Radheshwar’s complaint is about the language Mr. Coté used in these letters, which Dr. Radheshwar says was an attempt to “cover up” what really happened that day: racial profiling. In particular, he takes issue with the word “male” instead of “Middle Eastern male”, which is how the suspect was described. He also says that the letter demonstrates that he was not provided with an unbiased review of the officers’ actions as Mr. Coté used “we” language and identified himself with the police.

III Decision

[11] The Respondents apply to dismiss Dr. Radheshwar’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.

[12] 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.

[13] 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 .

[14] 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 .

[15] To prove his complaint at a hearing, Dr. Radheshwar will have to prove that he has a characteristic protected by the Code , he was adversely impacted in services, 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 reasonable justification. If the impact is justified, there is no discrimination.

[16] The Respondents say that Dr. Radheshwar has no reasonable prospect of proving a service-related adverse impact or a connection between any adverse impact and his protected characteristics. They do not dispute that Dr. Radheshwar’s race, ancestry, colour, and place of origin are protected characteristics.

A. Service customarily available to the public

[17] The Respondents say that Dr. Radheshwar has not identified a “service” the Respondents provided to him. They say they were simply directed by the OPCC to respond to Dr. Radheshwar’s service and policy complaint, and they did so as a matter of procedural fairness as required by the Police Act .

[18] Dr. Radheshwar does not respond to this argument. Nevertheless, I cannot agree with the Respondents that Dr. Radheshwar has no reasonable prospect of proving that the New Westminster Police Board provides a service customarily available to the public.

[19] Section 8 of the Code prohibits a person, without a bona fide and reasonable justification, from denying or discriminating against a person or class of persons regarding “any accommodation, service or facility customarily available to the public” because of a protected characteristic. To fall under s. 8, there must be a public relationship between the accommodation, service, or facility provider and the user: University of British Columbia v. Berg , 1993 CanLII 89 (SCC), [1993] 2 SCR 353 at p. 384.

[20] “Service” is not defined in the Code ; however, it must not be interpreted too narrowly. In Ismail v. British Columbia (Human Rights Tribunal) , 2013 BCSC 1079, the British Columbia Supreme Court confirmed that a broad range of activities have been defined as “service”:

A definition of “service” that has been frequently cited in Tribunal decisions is “something of benefit provided to one person by another”: Nixon v. Vancouver Rape Relief Society , 2002 BCHRT 1 at para. 78. The benefit does not have to be enjoyed by the person directly affected by the service. For example, as per British Columbia v. Crockford , 2005 BCSC 663 at para. 23, rev’d on other grounds, 2006 BCCA 360:

A person being arrested or questioned by the police, or a person against whom charges are approved by Crown Counsel, will not generally perceive that act as being “of benefit” to themselves personally. However, viewed in the larger context, the police provide a range of services which are a benefit to the general public, as do Crown Counsel.

The case law on s. 8(1) services is as inclusive as the Nixon definition. In Gould v. Yukon Order of Pioneers , supra , La Forest J. noted in his concurrence that a broad range of activities had been found by the courts to qualify as a “service” for the purpose of the Code (para. 59).

[21] In my view, the Respondents’ argument diminishes the powers and responsibilities of the New Westminster Police Board, which, as I understand from the materials before me, provides oversight of the New Westminster Police Department. I am not satisfied there is no reasonable prospect of proving that the Respondents are providing a service, which is of benefit to the person who lodges a complaint about police policy as well as to society as a whole.

[22] This conclusion is supported by the words of the statute. Under the Police Act , if a service and policy complaint is made, the Police Complaint Commissioner must by statute forward it to the board of the municipal police department, here the New Westminster Police Board. After that occurs, under s. 171(1) of the Police Act , the New Westminster Police Board must take one or more of the following actions:

a. request a chief constable of that municipal police department to investigate and report on the complaint;

b. initiate a study concerning the complaint;

c. initiate an investigation into the complaint;

d. dismiss the complaint on any of the grounds set out in subsection (2.1);

e. take any other course of action the board considers necessary to respond adequately to the complaint.

[23] It seems from the language of the Police Act , that a wide range of possibilities were open to the New Westminster Police Board when it received Dr. Radheshwar’s complaint, and it had to decide which action to take. I cannot find that there is no reasonable prospect that Dr. Radheshwar will establish that the New Westminster Police Board provides something which is “of benefit” to the residents of the New Westminster, and therefore that, in receiving and processing complaints, the Board is providing a “service”. Further, I cannot find that there is no reasonable prospect that Dr. Radheshwar will prove that the New Westminster Police Board provides a service that is customarily available to the public. Indeed, it appears to me that the New Westminster Police Board is directly accountable to the public for its oversight function. Its role is public facing.

B. Adverse Impact

[24] As I understand it, Dr. Radheshwar says the adverse impact he experienced was the allegedly discriminatory investigation itself. He says that the investigation was conducted in a racially-motivated manner. He says that the words used in Mr. Coté’s letter demonstrate the attempt to obfuscate what happened to him in order to deflect accountability for the initial discrimination. Dr. Radheshwar says the Respondents “misled” him and “stifled the matter” so that he would be discouraged from holding the police officers to account, thus compounding the discrimination he originally experienced.

[25] I am satisfied that Dr. Radheshwar has not taken this aspect of his complaint out of the realm of speculation and conjecture.

[26] The only evidence I have before me to evaluate whether Dr. Radheshwar has taken his complaint out of the realm of speculation and conjecture are the words of Mr. Coté’s letters. The Respondents say that an inference cannot reasonably be drawn just because Mr. Coté said “male” rather than “Middle Eastern male” in his second letter. I agree. I am satisfied that there is no reasonable prospect that Dr. Radheshwar could prove discrimination based on the materials before me. It is speculative to suggest that the investigation was a racially motivated cover up meant to shield the police from accountability based on Mr. Coté’s statement alone. Because Mr. Radheshwar’s complaint is founded only on his subjective belief, speculation, and conjecture, he has not met the low bar required to proceed to a hearing.

[27] Further, while there may be an obligation on the part of service-providers to respond reasonably and appropriately to complaints of discrimination, I am satisfied that the Respondents did so here. I understand that Dr. Radheshwar is unhappy with the results of the investigation and that the response from Mr. Coté made him feel stifled and discouraged. However, just because the investigation of the complaint did not lead to the outcome Dr. Radheshwar desired does not mean that the investigation was discriminatory. I am persuaded on the materials before me that there is no reasonable prospect that Dr. Radheshwar could prove that the investigation was discriminatory.

IV CONCLUSION

[28] I dismiss Dr. Radheshwar’s complaint. The complaint will not proceed.

Robin Dean

Tribunal Member