Gary Lee Junior Smith Petitioner And: British Columbia Human Rights Tribunal Respondent, 2021 BCSC 331

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Smith v. British Columbia (Human Rights Tribunal), 2021 BCSC 331 Date: 20210226 Docket: S14545 Registry: Rossland In the Matter of Judicial Review Procedure Act , R.S.B.C. 1996, c. 241 Between: Gary Lee Junior Smith Petitioner And: British Columbia Human Rights Tribunal Respondent Before: The Honourable Mr. Justice G. C. Weatherill Reasons for Judgment The Petitioner, appearing on his own behalf by teleconference: G. Smith Counsel for the Respondent, appearing by teleconference: B. Korenkiewicz Place and Date of Hearing: Rossland, B.C.

February 9, 2021 Place and Date of Judgment: Rossland, B.C. February 26, 2021 Introduction [ 1 ] The petitioner seeks judicial review of a decision of the British Columbia Human Rights Tribunal (“Tribunal”) refusing to accept for filing his complaint against the Insurance Corporation of British Columbia (“ICBC”). At the core of the complaint is ICBC’s refusal to issue his BC Driver’s Licence/BC Services Card with a photograph of him wearing what he claims is his religious head covering.

Background [ 2 ] The petitioner identifies himself as a Pastafarian and member of the Church of the Flying Spaghetti Monster, who are known to wear either a pasta colander or a three-cornered hat known as a pirate’s tricorn on their heads. [ 3 ] On August 30, 2019, the petitioner attended the Trail Service BC Centre to renew his driver’s licence. The record before me does not disclose what form of head covering he was wearing for his photograph and the impugned photograph itself is not part of the record.

However, in response to a question from the court during the hearing, the petitioner advised that he was wearing a pirate’s tricorn hat. [ 4 ] The petitioner was issued a temporary licence with an expiry date of October 29, 2019, pending issuance of a permanent licence. [ 5 ] On October 4, 2019, the petitioner received a letter dated September 30, 2019 from the manager of ICBC’s Driver Licensing Integrity and Oversight Unit, advising that he would not be issued a driver’s licence because of the head covering he was wearing in his photograph. [ 6 ] On October 29, 2019, the petitioner attended the Grand Forks Driver Services branch to ask for an extension of his temporary driver’s licence pending the outcome of his intended complaint to the Tribunal.

His temporary licence was extended to December 29, 2019. [ 7 ] On December 17, 2019, the petitioner filed a complaint with the Tribunal under s. 8 of the Human Rights Code , R.S.B.C. 1996, c. 210 [ Code ] alleging religious discrimination against him. After describing the foregoing background, the petitioner wrote the following:

What is the adverse impact on you? My religious head covering is an expression of my beliefs. In being denied the ability to wear it for government issued identification, I am being denied the right to express myself in a manner afforded to members of other beliefs and other faiths, as afforded to citizens under Sections 2 (

a) and (

b) of the Charter or Rights and Freedoms. There is no test of faith that any government agency, including ICBC, can apply to judge whether or not a person earnestly believes what they profess when they ask to be photographed with a religious head covering. Ultimately, the form of expression and the frequency with which it is worn is a matter of personal choice, regardless of belief or faith, and is often to identify with a religious community.

Identity within a social group is arguably the principal reason for wearing religious headgear and cannot reasonably serve as evidence for the veracity of one’s claim to faith or belief.

Where exceptions can be made to allow religious heard-coverings of more recognized faiths, such as Sikhs, that do not interfere with the Facial Recognition Technology (FRT), limiting other faiths or belief systems seems arbitrary and disingenuous. … … As Pastafarians have been seeking to be photographed with their headgear on numerous occasions since 2014….this entire matter seems to be a glaring case of institutional discrimination utterly without merit: insofar as religious head coverings do not interfere with FRT, ICBC has no cause to question personal religious beliefs or make judgements based on answers it is unqualified to evaluate. … List the type of remedies you want: That ICBC allow qualified citizens who self-identify as Pastafarians, or as members of the Church of the Flying Spaghetti Monster, to wear religious headgear of a form and type of their choosing, insofar as such headgear does not interfere with FRT, for the purposes of obtaining either, or both, a Driver’s License and a BC Services Card.

That ICBC rescind its policy on unfamiliar and non-traditional religious head coverings. In effect, remove the requirement to answer impertinent questions about personal beliefs or faith. Recognize that a profession of faith is enough to warrant the full exercise of constitutional rights.

That ICBC, if in refusing to comply with the above, fully rescind its policy on religious head covering so as to eliminate any accommodation for any person claiming special consideration for religious reasons. [ 8 ] By letter dated March 13, 2020, the Tribunal advised the petitioner that it would not accept the complaint for filing because it did not allege facts that, if proven, could violate the Code (“Decision”). The Decision stated, in part: For the purposes of the Code , religion includes adherence to the practices of a particular faith or genuinely held religious beliefs, and not having religious beliefs.

The information provided does not indicate a religion in how it is understood by the Supreme Court of Canada in Syndicat Northcrest v.

Amselem , 2004 SCC 47 at para. 46 : … freedom of religion consists of the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials.

You are a Pastafarian and member of the Church of the Flying Spaghetti Monster which mocks religious beliefs and certain religious practices. Pastafarians wear colanders as “religious” head gear. While the protection against discrimination on the ground of religion in the Code includes protecting the expression of non-belief and the refusal to participate in religious practice, the protection does not require accommodation of a practice satirizing religious practice in providing a service customarily available to the public.

It would not further the purposes of the Code to proceed with a complaint in these circumstances. For these reasons, your complaint is not accepted for filing and your file is now closed. [ 9 ] On March 14, 2020, the petitioner wrote to the Tribunal seeking a reconsideration of its Decision, alleging that it was biased, based upon arbitrary discrimination, and that the “accusation” that his organization mocks religious beliefs and certain religious practices was “insulting” and “unsubstantiated” within the context of his complaint and “an expression of an erroneous assumption made on your part”.

The petitioner pointed out that the word “colander” did not appear anywhere in his complaint.

He asserted that the Church of the Flying Spaghetti Monster of British Columbia is a duly constituted society and in good standing in the province, and that neither its constitution nor its bylaws mandates the mocking of religious beliefs or certain religious practices. [ 10 ] The petitioner included in his reconsideration request copies of his identification as a BC Marriage Commissioner and federal Firearms Possession and Acquisition Licence, each with a photograph depicting him wearing a pirate’s tricorn hat on his head. [ 11 ] By letter dated March 19, 2020, the Tribunal advised the petitioner that the purpose of a reconsideration was not to re-evaluate the Decision or provide an opportunity to re-state arguments or provide new ones.

It also advised the petitioner that the burden was on him to show that the interests of fairness and justice demanded a reconsideration, which he had not done. The petitioner’s application for reconsideration was dismissed. [ 12 ] On May 22, 2020, the petitioner filed his Petition, seeking an order setting aside the Decision. Applicable Law

[ 13 ] The Tribunal is a quasi-judicial body established under s. 31 of the Code to administer the province’s human rights complaints process. The Tribunal has no jurisdiction to deal with constitutional questions relating to the Canadian Charter of Rights and Freedoms : Code , s. 32(i); Administrative Tribunals Act, S.B.C. 2004, c. 45 [ ATA ], s. 45(1). [ 14 ] The purposes of the Code are set out in s. 3 : 3 The purposes of this Code are as follows: (

a) to foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia; (

b) to promote a climate of understanding and mutual respect where all are equal in dignity and rights; (

c) to prevent discrimination prohibited by this Code ; (

d) to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by this Code ; (

e) to provide a means of redress for those persons who are discriminated against contrary to this Code . [ 15 ] In Moore v. British Columbia (Education) , 2012 SCC 61 , the Supreme Court of Canada, held at para. 33, that a contravention of the Code is established where, absent a justification defence, a complainant proves:

a) that he/she has a characteristic protected from discrimination by the Code , such as religion or gender identity or expression;

b) that he/she has experienced an adverse impact in relation to an area protected by the Code , such as service customarily available to the public or employment; and

c) that the protected characteristic was a factor in the adverse impact, such that there is a nexus between them. [ 16 ]

Section 21 of the Code provides that “[a]ny person or group of persons that alleges a person has contravened the Code may file a complaint with the tribunal in a form satisfactory to the tribunal.” It is incumbent on a person doing so to allege in the complaint facts that, if proven, could be a contravention of the Code : Rule 12(2) of the Tribunal’s Rules of Practice and Procedure ; McCulloch v. British Columbia (Human Rights Tribunal) , 2019 BCSC 624 at para. 43 ; Goddard v.

Dixon , 2012 BCSC 161 at paras. 81 and 100 . [ 17 ] The Tribunal screens complaints and has the authority to decline to accept for filling any complaint which, in its discretion, fails to set out an arguable contravention of the Code : Code s. 27(1) (b); Gichuru v. Vancouver Swing society , 2019 BCSC 402 at paras. 47 and 50–51 , 63 [the appeal of this decision has been heard and the decision of the Court of Appeal is pending]; Shilander v.

BC Human Rights Tribunal , 2005 BCSC 728 at para. 11 . [ 18 ] On an application for judicial review of the Tribunal’s discretionary decision not to accept a complaint for filing, the court must not reweigh the evidence or set the decision aside because it would have reached a different conclusion. Rather, the court is only permitted to intervene if it determines that the Tribunal’s exercise of its discretion was patently unreasonable : ATA, s. 59(3) ; Code , s. 32(q). [ 19 ] Section 59(4) of the ATA stipulates that a discretionary decision is patently unreasonable if it:

a) was exercised arbitrarily or in bad faith;

b) was exercised for an improper purpose;

c) was based entirely or predominantly on irrelevant factors; or

d) failed to take statutory requirements into account. [ 20 ] A patently unreasonable decision is one that is “clearly irrational” or “evidently not in accordance with reason” or “so flawed that no amount of curial deference can justify letting it stand”: Francescutti v. Vancouver (City) , 2017 BCCA 242 at para. 45 , citing Law Society of New Brunswick v. Ryan , 2003 SCC 20 at para. 52 . [ 21 ] A decision by the Tribunal to accept or reject a complaint for filing is fundamental to the Tribunal’s role as gatekeeper of its process. In British Columbia (Ministry of Public Safety and Solicitor General) v.

Mzite , 2014 BCCA 220 , the Court of Appeal described the deference that must be shown to the Tribunal with respect to its gatekeeping functions, at para. 49: [49] …, the Tribunal is entitled to a contextual review of its decisions on the principle of curial deference. The reviewing judge ought not to engage in an overly close reading of the Tribunal’s decision. The Tribunal has been assigned the role of gatekeeper by the legislature. The legislation requires preliminary assessments of cases and the exercise of judgment with respect to whether a matter merits the time and expense of a full hearing.

As the court noted in Lee , the threshold that must be met by a complainant before the gatekeeper is not particularly high. The Tribunal is assumed to know the law and must be taken to apply the appropriate test … [ 22 ] A decision by the Tribunal regarding whether a human rights complaint alleges facts that, if proved, could contravene the Code attracts a high level of deference by the court: Edgewater Casino v. Chubb-Kennedy , 2015 BCCA 9 at para. 19 . Analysis

[23] Here, the Tribunal considered whether the petitioner’s complaint against ICBC alleged facts which, if proven, could constitute acontravention of the Code. It considered whether, by identifying himself as a member of the Church of the Flying Spaghetti Monster, thepetitioner had shown he was a member of a religious practice that required accommodation in the context of a service customarilyavailable to the public that was protected from discrimination under the Code.

The Tribunal determined that he had not done so. [24] The petitioner says that the Decision raised a reasonable apprehension of bias against him, in that it was based upon the falseassumption that the Church of the Flying Spaghetti Monster mocks religious beliefs and practices. [25] The petitioner’s written submissions to the court on the petition comprised a plethora of dissertations, statements and hearsay thatwere not part of the record before the Tribunal and are therefore inadmissible: Albu v. The University of British Columbia, 2015 BCCA41 at paras. 33–40.

The petitioner explained that he felt the need to correct what he perceived to be the inaccurate assumptions that weremade by the Tribunal regarding the satirical nature of his “religion”. In his written submissions the petitioner compared his religion toothers: …A person does not have to look far past one’s own nose to appreciate that all religions are mutually incompatible to varying degreesand that members of each regularly mock, satirize, and criticize the beliefs of others.

Consider the three Abrahamic religions; Judaism,Christianity, and Islam: while all three have a common origin and worship the same god, a non-Jew is a gentile, a non-Christian is aheathen, and a non-Muslim is an infidel. When one considers the millions of gentiles, heathens and infidels who met with a gruesomeend for not believing in the “right” religion, it may be considered high time that a religion that values humour, self-deprecation andsilliness is the vessel sailing to calmer seas.

And should it be posited that Pastafarians are simply atheists rocking he boat of religiositywe would counter that the diversity of belief is far greater than anyone might realistically account for. Ultimately, we are atheistic to allgods other than the one we believe in. [26] While the foregoing views may offer a degree of intellectual and thought-provoking insight into the complexities of religionsgenerally, they fall short of establishing that the Tribunal’s Decision was either biased or based upon false assumptions.

If anything, thepetitioner’s submissions buttress the Tribunal’s determination that the petitioner’s “religious practices” were, at least in part, satirical andthat nothing was alleged that, if proven, could contravene the Code. [27] It is worthy of note that, in his March 14, 2019 letter seeking reconsideration of the Decision, the petitioner does not deny thathis purpose is to satirize religions.

Rather, he simply points out that neither the constitution nor the bylaws of the Church of the FlyingSpaghetti Monster of British Columbia contain “a mandate or instruction to mock religious beliefs and certain religious practices”.

Indeed, during his submissions to the court, the petitioner conceded that “there may be some elements of satire” in his practices andthose of the “religion” he purportedly follows. [28] Canadian courts have previously observed that the practices followed by “Pastafarians” are satirical in purpose: Narayana c.Société de l’assurance automobile du Québec, 2015 QCCS 4636 at paras. 23–25; Unrau v.

National Dental Examining Board, 2019ABQB 283, at para. 177, citing Narayana. [29] While the Decision may have been based upon evidence of the satirical purposes of Pastafarians and the Church of the FlyingSpaghetti Monster that the petitioner considers to have been deficient, a decision based upon insufficient evidence is not patentlyunreasonable: United Steelworkers, Paper and Forestry, Rubber, Manufacturing, Energy (Allied Industrial and Service WorkersInternational Union, Local 2009) v. Auyeung, 2011 BCSC 220 at para. 63, aff’d 2011 BCCA 527, citing Toronto (City) Board ofEducation v.

O.S.S.T.F., District 15, (SCC), [1997] 1 S.C.R. 487 at para. 44. [30] The Tribunal determined that accepting the petitioner’s complaint for filing “would not further the purposes of the Code”, one ofwhich is to “promote a climate of understanding and mutual respect where all people are equal in dignity and respect”. In my view, theTribunal’s Decision was neither clearly irrational nor so flawed that no amount of curial deference can justify letting it stand. Accordingly, it cannot be said to have been patently unreasonable.

Conclusion [31] The Petition is dismissed. [32] As the Tribunal does not seek an order as to costs, there will be no such order. “G.C. Weatherill J.”