Rex Yuan Petitioner And: British Columbia Human Rights Commission Her Majesty in Right of the Province of British Columbia as represented by The Minister of Agriculture, Fisheries v. Food, Al Helmersen and Doug Cherrington, 2003 BCSC 461

IN THE SUPREME COURT OF BRITISH COLUMBIA In the Matter of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 Citation: Yuan v. British Columbia (Human Rights Commission), 2003 BCSC 461 Date: 20030326 Docket: 02 4511 Registry: Victoria Between: Rex Yuan Petitioner And: British Columbia Human Rights Commission Her Majesty in Right of the Province of British Columbia as represented by The Minister of Agriculture, Fisheries and Food, Al Helmersen and Doug Cherrington Respondents Before: The Honourable Mr. Justice Melvin Reasons for Judgment Counsel for the Petitioner: R. B.

Farvolden Counsel for the Respondents: R. W. Grant and M. S. Taylor Date and Place of Trial/Hearing: March 12, 2003 Victoria, B.C. [ 1 ] By his petition issued October 4, 2002, the petitioner seeks, pursuant to the Judicial Review Procedure Act , declarations concerning the dismissal of his complaint pursuant to the Human Rights Code .

Ultimately, the petitioner seeks an order remitting the issue of his complaint back to the Human Rights Commission for consideration. [ 2 ] The complaint in question was filed in April of 1996 relating to an allegation of discrimination by the respondents during the course of the petitioner's employment with the Province of British Columbia, and the Ministry of Agriculture, Fisheries and Food in particular. The petitioner had been employed by the Province of British Columbia in December of 1980, and in August of 1991 he was transferred to the subject Ministry and was employed there until November of 1995.

He then remained unemployed, being either terminated or laid off until April of 1996. At the relevant period of time, the petitioner suffered from stress and depression and it is accepted by all parties that he suffered from a mental disability within the terms of s. 13(1) of the Human Rights Code . [ 3 ] Pursuant to the legislation, a Commissioner of Investigation caused a Human Rights Officer to conduct an investigation.

That report, dated August 28, 2000, is very extensive, comprising 69 pages and takes into consideration the views of the petitioner and the views of the other employees in the Ministry where the petitioner was employed, as well as a perusal of the records of the petitioner and the respondents. [ 4 ] The basic allegation set forth in the Human Rights Officer's report is as follows:

The Complainant alleges discrimination with respect to terms and conditions of employment and refusal to continue to employ him because of his race, colour, ancestry, place of origin and/or because of a physical or mental disability, contrary to

Section 13 of the Human Rights Code (formerly

Section 8 of the Human Rights Act) of British Columbia. [ 5 ] In her conclusion, after considering all of the allegations advanced on behalf of the petitioner, the Human Rights Officer stated: Accordingly, considering the whole of the evidence, there is no reasonable basis to justify referring the complaint to tribunal for a hearing, and it is recommended that the complaint be dismissed pursuant to Section 27(1) of the Human Rights Code . [ 6 ] In November of 1995, the petitioner's employment with the Ministry concluded.

He alleges at that time that he was terminated as a result of the continued discrimination by the Ministry and that termination was a culmination of discrimination which had occurred over a period of time, and was in the main, as a result of his disability and his ancestry or race. The report of the Human Rights Officer was forwarded to the Commissioner of Investigation and Mediation, who delegated an individual to review, pursuant to s. 26 of the Code .

After reviewing the investigation report and submissions received from counsel for the petitioner and from the respondents, the Commissioner's delegate, in a report dated January 24, 2001, determined that "there is no reasonable basis to justify referring this complaint to the tribunal for a hearing". [ 7 ] It is from these decisions that the petitioner seeks relief and an order pursuant to the Judicial Review Procedure Act that the matter be remitted back to the Commission for consideration and a full hearing. In support of the submissions, counsel for the petitioner relies on basically four issues:

a) unreasonable findings of fact;

b) wrong tests concerning accommodation of the petitioner;

c) credibility assessments; and

d) an investigation that was not neutral. UNREASONABLE FINDINGS OF FACT [ 8 ] The main thrust of the petitioner's submission in this respect relates to the circumstances under which his employment ceased in November of 1995. The petitioner is of the view, and he alleges it is supported by documents, that he was terminated by his employer at that time based on discriminatory matters as alleged. In support of his position he referred to certain documents which were prepared by government staff which describe in documents such as Pension Termination Notice, "Employee's job redundant.

Not returning." The Government of Canada Record of Employment is marked "Not returning" and marked "Job redundant, employee laid off". There are other statements concerning termination of benefits, the benefits of course ceasing when employment ceased. The evidence before the investigator of this documentation, and the views of the petitioner in that respect, were countered by the evidence of the respondents which demonstrated that at the relevant period of time, the Ministry in question was undergoing a reduction of staff. The petitioner was not the only member of staff who was "laid off" at that time.

In addition, the evidence before the investigator was that, during the interval between November 1995 and April 1996 when the petitioner was re-employed by government, certain attempts were made to accommodate the petitioner's need for employment by the appropriate government agency in place at that time. In other words, the connection between the petitioner and government had not completely ceased; government was trying to place the petitioner in alternate employment.

Based on that and the statements of the respondents, the investigator concluded that the petitioner was laid off and not terminated by basis of any discrimination and this was confirmed by the Commissioner's delegate. [ 9 ] In that respect, one of the challenges advanced by the petitioner is that these findings of fact are unreasonable and findings of fact in this fashion should be for the tribunal and not for the investigator or the Commissioner's delegate. In that respect, I disagree. [ 10 ]

Section 26 of the Human Rights Code provides that after receiving a report of a Human Rights Officer the Commissioner of Investigation must refer to the tribunal or dismiss the complaint.

Pursuant to s. 27, the Commissioner may dismiss all or part of a complaint if that Commissioner determines that there is no reasonable basis to justify referring the complaint or part of the complaint to a tribunal. [ 11 ] In my opinion, in order to exercise that jurisdiction, to determine whether there is "no reasonable basis to justify referring the complaint", the delegate of the Commissioner must embark upon a consideration of the evidence.

In doing so, the Commissioner's delegate is not weighing the evidence as may be done by a court in determining whether the complaint has been established on a balance of probabilities. However, the Commissioner's delegate must, in order to consider the statutory obligation concerning no reasonable basis, weigh or assess or evaluate the evidence in its entirety (see May v. British Columbia (Council of Human Rights) , [1996] B.C.J. No. 192 ).

In this respect, in my opinion, the decision of the Commissioner's delegate was not patently unreasonable as there is a considerable body of reliable evidence to justify the conclusion that the petitioner was laid off as a result of the exigencies of the Ministry at the relevant period of time, rather than discrimination. [ 12 ] The petitioner's allegations of racial discrimination by Ministry staff were thoroughly investigated and found to be completely unwarranted.

The report of the investigator and the decision of the Commissioner's delegate are justified by the evidence, and in my opinion, cannot be considered patently unreasonable. I am satisfied that there is no error by the investigator or the Commissioner's

delegate in deciding there was no reasonable basis to justify referring the complaint.

WRONG TEST CONCERNING THE ACCOMMODATION OF THE PETITIONER'S NEEDS FOR EMPLOYMENT [ 13 ] In this respect, counsel for the petitioner refers to that portion of the Commissioner's delegate's report as set out at page 2: I concur with the investigator's findings that the employer accommodated the Complainant's disability in all instances where it was reasonable and they had a duty to do so. [ 14 ] In this respect, the petitioner submits that the test should have been whether or not the respondents accommodated to the point of undue hardship.

Assuming that duty, there is nothing in that sentence above-quoted which would indicate that the Commissioner's delegate was not alive to the duty alleged by counsel for the petitioner. The language used by the Commissioner's delegate is "where it was reasonable and they had a duty to do so". A duty to do so can and should encompass the duty imposed by law, such as described by the Supreme Court of Canada in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) , 1999 CanLII 646 (SCC) , [1999] 3 S.C.R. 868 ( Grismer ).

Based on that case, it would appear that the burden shifts once discrimination has been established on a balance of probabilities to the "employer" to demonstrate that the employer "cannot accommodate persons with the characteristics of the claimant without incurring undue hardship". [ 15 ] Based on this analysis, it would be essential for the petitioner to demonstrate that the respondents' conduct was discriminatory in the first instance, and then it might be necessary to justify the conduct of the respondents to demonstrate that they could not accommodate persons with the petitioner's characteristics without incurring undue hardship. [ 16 ] The difficulty with the petitioner's argument in this respect is that there must be a finding of discrimination in the first instance.

In this respect, there was no such finding; consequently, insofar as the language used by the Commissioner's delegate may be interpreted as indicating a duty other than undue hardship, in my view, it is not a relevant consideration. In short, if there is no discrimination, as in the case at bar, there is no need to accommodate to the point of undue hardship. Consequently, I reject this submission by counsel for the petitioner.

CREDIBILITY [ 17 ] The issue of credibility arose in a number of instances concerning the petitioner's conduct overall during the course of his employment as discussed in the investigator's report. In this respect, the submission of the petitioner is that matters of credibility should be matters for the tribunal at the hearing of the matter on the merits. However, in my view, the same comments above dealing with unreasonable findings of fact apply to matters of credibility.

One cannot determine whether or not there is a reasonable basis to justify a referral to the tribunal unless one considers matters of credibility of the complainant. [ 18 ] There were a number of reasons articulated by the investigator in the course of the investigation report as commented upon by the Commissioner's delegate, demonstrating that the complainant's credibility was seriously challenged. In my opinion, the investigator and the Commissioner's delegate were entitled to consider this in determining whether there should be a referral of the complaint to the tribunal.

The Commissioner's delegate, on reviewing the investigator's report is not merely a rubber stamp. That individual has a duty at law to determine whether or not a reasonable basis to justify referring the complaint exists. That must, of necessity, take into consideration matters of weight, evaluation of evidence, and the credibility of the parties from whom the investigator receives information. Were it otherwise, a complaint without any credibility whatsoever would have to be referred.

There is a suggestion, in the authorities, that the matter of credibility should not be addressed unless the evidence is overwhelming against the complainant. In the case at bar, there is the general issue as to credibility of the petitioner, but specifically, with reference to his allegations of racial prejudice, the evidence is overwhelming against the complaint made by the petitioner. Consequently, I find no basis to interfere with the decision not to refer. NOT NEUTRAL [ 19 ] This last heading seems to be based on the allegation that the investigation went too far.

The investigation, it is acknowledged, was thorough, but went beyond the immediate issues covered by the complaint; consequently, it is submitted there is an adverse impact on the neutrality of the investigation and subsequently, the Commissioner's delegate. What occurred in the case at bar was an extremely thorough and detailed investigation, covering a consideration of documents and witnesses' statements. There is nothing in the investigation, the report, or the Commissioner's delegate's evaluation report to justify any reasonable apprehension of bias on the part of either of the individuals in question.

On the face of the reports, it would appear that the investigator and the Commissioner's delegate approached these matters in a very professional and competent fashion, and dealt with all the issues that were raised by the petitioner through his complaint and submissions on his behalf by his counsel.

I can find nothing to indicate that the process undertaken by the investigator and the Commissioner's delegate was biased, nor is there any indication that the investigation was not neutral. [ 20 ] Consequently, I am satisfied under all the circumstances that the conclusion arrived at by the Commissioner's delegate, after a consideration of the Human Rights Officer's report, was appropriate, was supported by the evidence, and no legal error has been demonstrated. It cannot be said, in my opinion, that the findings of fact were patently unreasonable. Consequently, the petition is dismissed.

The respondents will recover their costs. “F.A. Melvin, J.” The Honourable Mr. Justice F.A. Melvin