Mary-Helen Wright Law Corporation c.o.b. Pacific Law Group v. Mary-Helen Wright, 2018 BCSC 912

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Mary-Helen Wright Law Corporation v. British Columbia (Human Rights Tribunal) , 2018 BCSC 912 Date: 20180604 Docket: S176910 Registry: Vancouver IN THE MATTER OF the Judicial Review Procedure Act , R.S.B.C. 1996, c. 241; AND IN THE MATTER OF the Human Rights Code , R.S.B.C. 1996, c. 210: Between: Mary-Helen Wright Law Corporation c.o.b. Pacific Law Group and Mary-Helen Wright Petitioners And British Columbia Human Rights Tribunal and Kathleen Jenkins Respondents Corrected Judgment: The text of the judgment was corrected at paragraph 4 on August 10, 2018.

Before: The Honourable Mr. Justice Affleck Reasons for Judgment Counsel for the Petitioners: R. DeFilippi Counsel for the Respondent, British Columbia Human Rights Tribunal: K. Hardie Counsel for the Respondent, Kathleen Jenkins A. Schafer D. Poulin, Articling Student Place and Date of Trial/Hearing: Vancouver, B.C. April 19, May 11 and May 28, 2018 Place and Date of Judgment: Vancouver, B.C.

June 4, 2018 [ 1 ] These are reasons for judgment in the context of a judicial review application. [ 2 ] I will give a brief outline of the factual background so far as it is necessary to decide the matter before me. [ 3 ] The respondent Kathleen Jenkins was called to the bar of British Columbia in 2002 and thereafter began to practice law. In August 2014 she contacted a legal recruiting firm to seek a position as a senior litigation Counsel with a law firm in Metro Vancouver. Ms. Jenkins was successful in obtaining a position with the petitioner Pacific Law Group in November 2014. [ 4 ] In May 2015 Ms.

Jenkins was injured in a motor vehicle accident and on June 23, 2015, following a meeting with the petitioner Mary-Helen Wright, Ms. Jenkins’ position with Pacific Law Group was terminated. [ 5 ] In December 2015 Ms. Jenkins filed a complaint with the B.C. Human Rights Tribunal alleging her position with Pacific Law Group had been terminated because of her disability arising from the motor vehicle accident which termination was contrary to the B.C. Human Rights Code , R.S.B.C. 1996, c. 210. That question has not been adjudicated by the Tribunal.

Pending that determination the petitioners applied to the Human Rights Tribunal for an order requiring production of documents from Ms. Jenkins and from the legal recruiting firm and from Ms. Jenkins’ employer prior to the petitioner Pacific Law Group. The petitioners also sought an order that Ms. Jenkins undergo an independent medical examination. [ 6 ] On May 25, 2017 a member of the British Columbia Human Rights Tribunal gave extensive reasons deciding several applications of the petitioners.

I need not review those reasons in detail but will refer to two passages the first of which is at para. 90 of the reasons which reads: I will not order production from third parties until the Respondents [the petitioners] describe in detail, the documents sought from each

third party, how each document requested will further the just and timely resolution of the complaint; how the document requested may be relevant to an issue in the compliant, response to the complaint, or remedy sought; and given, the Respondents’ actions described below, any previous effort to obtain a copy of the document. [ 7 ] The second passage I will refer to in the reasons is at para. 131 which reads: I have concluded that the IME is not necessary.

Rule 21 [of the tribunal’s rules of practice and procedure] provides for the experts reports to be provided 90 days before the hearing (set to commence August 28, 2017) and Ms. Jenkins has stated that she will provide that information. It is then up to the Respondents to determine if they require the expert to testify in the hearing. Also, should the Respondents seek to respond to that report, a

summary report can be provided not later than 30 days after receiving the expert’s report. There is no reason for me to conclude that adherence to these Rules will not provide the Respondents with a way to challenge Ms. Jenkins’s expert’s evidence without the need to compel her to be subject to an IME. [ 8 ] Under the heading “Conclusion” the Tribunal member wrote: [133] 1. Concerning the Respondents’ application for disclosure of documents, if she has not done so already, Ms. Jenkins is ordered to provide within two weeks of the date of this decision, the following Documents:

a) Ms. Jenkins’ documents in the possession of the Legal Recruiter that concern mitigation of her damages; that is documents after June 23, 2015.

b) Concerning Ms. Jenkins’ Current Employment: (

A) any application for employment with her Current Employer by Ms. Jenkins and all accompanying documents; (

B) any document regarding any disabilities or limitations of which Ms. Jenkins informed her Current Employer (

C) any document regarding the reason Ms. Jenkins gave for leaving Pacific Law Group; (

D) all hours (both billable and non-billable) recorded by Ms. Jenkins; (

E) the dates and times Ms. Jenkins took time off “… for attendance at psychological, psychiatric, active rehabilitation, physiotherapy and other medical appointments ..”; (

F) the employment or other contract between Ms. Jenkins and her Current Employer; and, (

G) the ICBC billing rate for Ms. Jenkins for ICBC clients and the billing rate for Ms. Jenkins for non-ICBC clients to whom she has provided legal services from October 1, 2015, to the date of the order;

c) all documents from the files of ICBC pertaining to Ms. Jenkins’ MVA from May 7, 2015, to the date of the order;

d) all documents, government or otherwise, that show Ms. Jenkins’ income after June 23, 2015, whether or not it is a T4;

e) all communications passing between Ms. Jenkins, or on her behalf, and the CRA pertaining to her status as an employee or independent contractor during the period September 25, 2014, to June 23, 2015, with Pacific Law Group;

f) all documents and all records pertaining to the “ … loss of extended health benefits … prescription medications … extended health … travelling to and from job interviews … telephone … internet fees … gas/mileage … bridge tolls … legal fees and disbursements … costs of reports or other expenses … fees for therapists, mileage to and from therapists, to and from psychiatrist and family doctor …”, and the costs and expenses being claimed by Ms. Jenkins for these items;

g) all documents from the files of MSP for the period two (2) years prior to June 23, 2015, to the date of the order showing all medical attendances by and treatments of Ms. Jenkins;

h) the PharmaNet printout from the College of Pharmacists and all other records of prescriptions and drugs prescribed, purchased or taken by Ms. Jenkins for the period two (2) years prior to June 23, 2015, to the date of the order;

i) If not captured by the above order, produce documents concerning mitigation of her damages from June 23, 2015 to the present. 2. Documents from Third Parties [134] If , after a request from Ms. Jenkins, third parties refused to provide documents potentially relevant to the complaint, the Respondents can seek direction from me as to obtaining submissions from those their parties to determine whether production will be ordered. 3. IME [135] I have determined that I will not order Ms. Jenkins to submit to an IME. That part of the application is denied. 4.

Costs [136] I am prepared to entertain the submissions concerning costs at the hearing. [ 9 ] The respondent's application for judicial review reads:

1. The petitioners (collectively, “PLG”) apply for the following orders: (

a) that the decision of the British Columbia Human Rights Tribunal (the “Tribunal”) published May 25, 2017, and indexed as 2017BCHRT 116 (the “Decision”) be set aside insofar as: (

i) the Tribunal dismissed th application by PLG for an order that the respondent/complainant, Kathleen Jenkins (“Jenkins”), or theLegal Recruiter deliver copies of documents to PLG, being all documents from the files of the Legal Recruiter pertaining to Ms. Jenkinsfrom August 1, 2014, to the date of the order, including all notes of conversations with Ms. Jenkins, all documents provided by Ms.Jenkins to the Legal Recruiter, and all communications passing between Ms. Jenkins and the personnel of the Legal Recruiter; … (iii) The Tribunal dismissed the application by PLG for an order that Ms.

Jenkins or her Former Employer deliver copies ofdocuments to PLG, all documents from the files of her Former Employer pertaining to Ms. Jenkins from September 1, 2012, toSeptember 25, 2014, including the employee/independent contractor file while Ms. Jenkins was a lawyer at her Former Employer, or itspredecessor or successor, including the contract between Ms. Jenkins and her Former Employer, all hours (both billable and non-billable)recorded by Ms. Jenkins, the dates and times Ms.

Jenkins took time off “… for attendance at psychological, psychiatric, activerehabilitation, physiotherapy, and other medical appointments …” and any disabilities and/or symptoms she disclosed or of which theFormer Employer became aware; (iv) the Tribunal dismissed the application by PLG for an order that Ms. Jenkins attend at and participate in an independentpsychiatric/psychological examination with Dr. Roy O’Shaughnessy, forensic psychiatrist; (

b) the Decision be remitted to the Tribunal for reconsideration in accordance with the reasons of this Court; (

c) the proceedings pending before the Tribunal in Case No. 14683, including the hearing, be assigned to a different member of theTribunal … [10] The order requested that the proceedings go before a different member of the Tribunal is based on an allegation of a perceptionof bias. [11] The respondents have made various submissions resisting judicial review of the interlocutory decisions of a Tribunal member.One of those submissions is that the application is premature. [12] In Brady v. BC Human Rights Tribunal et al, 2005 BCSC 1403 Russell J. wrote: [20] In Vancouver (City) v.

British Columbia (Assessment Appeal Board) (1996), (BC CA), 135 D.L.R. (4th) 48,this point was discussed as follows by Williams J.A.: [25] A question which presented itself to this court but which does not appear to have been dealt with in the court below is whetherVancouver's petition for judicial review ought to have been entertained by the court before the board had come to a final decision. [26] The general rule seems clear in both criminal and civil proceedings. A tribunal should be permitted to complete its process and torender its final decision before judicial review is entertained.

This rule is founded in the time-honoured principle that a tribunal, such asthe board in this case, is established to fulfill the statutory functions it is assigned. The board should be seen as the master of its ownprocess, and that process should not be interfered with by the courts until a final decision is rendered, lest there be one court applicationafter another which would clearly frustrate the board's mandate and its legislative purpose. [27] Boards were established to deal with specialized problems requiring expertise not necessarily possessed by the courts.

The courtshave become increasingly reluctant to interfere with them. Although a board in the course of its hearing may make errors, it should beaccorded the benefit of doubt until its final decision has been rendered.

This principle has manifested itself in a number of cases (list ofauthorities omitted here). [28] The general rule is not an absolute one, in S.A. de Smith, de Smith's Judicial Review Of Administrative Action, 4th ed, (London:Stevens & Sons, 1980) at 577, the author remarks that a court's "discretion to issue final declarations in interlocutory proceedings is veryrarely exercised". ... [31] There are then circumstances, rare though they may be, where the courts will and should permit interim judicial review of adecision by a board of tribunal.

There may be certain interlocutory decisions which violate the Charter, clearly exceed jurisdiction, ordeny natural justice, in which the court will hear an application before the board has concluded its process. … [13] The Supreme Court of Canada cautioned against early judicial intervention administrative tribunal proceedings. In Halifax(Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10 at para. 36 there is the following: While such intervention may sometimes be appropriate, there are sound practical and theoretical reasons for restraint: D. J.

Mullan,Administrative Law (3rd ed. 1996), at §540; P. Lemieux, Droit administratif: Doctrine et jurisprudence (5th ed. 2011), at pp. 371-72.Early judicial intervention risks depriving the reviewing court of a full record bearing on the issue; allows for judicial imposition of a“correctness” standard with respect to legal questions that, had they been decided by the tribunal, might be entitled to deference;encourages an inefficient multiplicity of proceedings in tribunals and courts; and may compromise carefully crafted, comprehensive

legislative regimes: see, e.g., Szczecka v. Canada (Minister of Employment and Immigration) (1993), (FCA), 170N.R. 58 (F.C.A.), at paras. 3-4; Zündel (1999), at para. 45; Psychologist Y v. Board of Examiners in Psychology, 2005 NSCA 116, 236N.S.R. (2d) 273, at paras. 23-25; Potter v. Nova Scotia Securities Commission, 2006 NSCA 45, 246 N.S.R. (2d) 1, at paras. 16 and 36-37; Vancouver (City) v. British Columbia (Assessment Appeal Board) (1996), (BC CA), 135 D.L.R. (4th) 48(B.C.C.A.), at paras. 26-27; Mondesir v. Manitoba Assn. of Optometrists (1998), (MB CA), 163 D.L.R. (4th) 703(Man.

C.A.), at paras. 34-36; U.F.C.W., Local 1400 v. Wal-Mart Canada Corp., 2010 SKCA 89, 321 D.L.R. (4th) 397, at paras. 20-23;Mullan (2001), at p. 58; Brown and Evans, at paras. 1:2240, 3:4100 and 3:4400.

Thus, reviewing courts now show more restraint inshort-circuiting the decision-making role of the tribunal, particularly when asked to review a preliminary screening decision such as thatat issue in Bell (1971). [14] I cannot detect any basis on this application to depart from the usual rule and thus I am satisfied that the application for judicialreview is premature. [15] On the question of an apprehension of bias I note that this issue has not been taken up with the Tribunal member who made thedecision of May 25, 2017.

It would be inappropriate for this Court to adjudicate on the question of bias without the petitioners firstmaking a complaint of bias to the Tribunal member. If that complaint is made the Tribunal member may or may not decide to disqualifyherself.

If she declines to disqualify herself it is to be presumed she will give a reason for doing so and in that event the question of biasmay come before the Court. (See: International Assn. of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 97 v.British Columbia (Labour Relations Board), 2011 BCSC 614). [16] The judicial review application of the petitioners is dismissed with costs. “The Honourable Mr. Justice Affleck”