Singh v. Kane Shannon & Weiler Management Corp.

2014 BCSC 1043 Singh v. Kane Shannon & Weiler Management Corp.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Singh v. Kane Shannon & Weiler Management Corp., 2014 BCSC 1043 Date: 20140612 Docket: S124496 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: Ashita Singh Petitioner And Kane Shannon & Weiler Management Corp. and the British Columbia Human Rights Tribunal Respondents Before: The Honourable Mr. Justice Funt Reasons for Judgment Counsel for Petitioner: F. Wynne Counsel for Respondents: E.A. Reid Place and Date of Hearing: Vancouver, B.C. May 27, 2013 Place and Date of Judgment: Vancouver, B.C. June 12, 2014 I. Introduction [1] The petitioner was employed as a legal assistant by Kane Shannon & Weiler Management Corp. ("KSW"), a management corporation for a law practice. She says KSW discriminated against her, including terminating her employment in January 2011, because she is of the East Indian race. [2] On February 1, 2011, the petitioner filed a formal complaint with the British Columbia Human Rights Tribunal ("Tribunal"). On March 30, 2011, after receiving comments from the Tribunal respecting the content of her complaint, the petitioner amended her complaint. [3] On July 26, 2011, KSW filed its response to the petitioner's complaint and, on July 27, 2011, applied to have the complaint dismissed on a

preliminary basis under section 27 of the Human Rights Code, R.S.B.C. 1996, c. 210 (the "Code"). On April 24, 2012, the Tribunal dismissed Ms. Singh's complaint: Singh v. Kane Shannon & Weiler Management Corp., 2012 BCHRT 139. [4] The petitioner now applies for judicial review of the April 24, 2012 Tribunal decision. She says the tribunal, in reaching its decision to dismiss her claim, did not act fairly. [5] For the reasons that follow, the Court will dismiss the petitioner's application. II. Standard of Review [6] The Tribunal dismissed the petitioner's complaint on the basis that there was "no reasonable prospect that the complaint will succeed": section 27(1)(c) of the Code. [7] As Justice Griffin notes in Kirk v. Burnaby (City), 2014 BCSC 155, the standard of review is provided by section 59(5) of the Administrative Tribunals Act, S.B.C. 2004, c. 45, which reads: Questions about the application of common law rules of natural justice and procedural fairness must be decided having regard to whether, in all of the circumstances, the tribunal acted fairly. [8] Our Court of Appeal in Workers' Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 (at para. 27) describes the purpose of section 27(1)(c) of the Code: That provision creates a gate-keeping function that permits the Tribunal to conduct preliminary assessments of human rights complaints with a view to removing those that

do not warrant the time and expense of a hearing. It is a discretionary exercise that does not require factual findings. Instead, a Tribunal member assesses the evidence presented by the parties with a view to determining if there is no reasonable prospect the complaint will succeed. The threshold is low. The complainant must only show the evidence takes the case out of the realm of conjecture. If the application is dismissed, the complaint proceeds to a full hearing before the Tribunal. If it is granted, the complaint comes to an end, subject to the complainant's right to seek judicial review: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95, 223 B.C.A.C. 71 at paras. 22-26, leave to appeal ref'd [2006] S.C.C.A. No. 171; Gichuru v. British Columbia (Workers Compensation Appeal Tribunal), 2010 BCCA 191, 285 B.C.A.C. 276 at para.

31. III. Background [9] The Tribunal sets forth the background at paragraphs 6 to 23 of its Reasons. For ease of reference, I will repeat paragraph 17 and then describe the procedural history in greater detail. Paragraph 17 of the Tribunal's Reasons reads: [17] In her response to the application to dismiss, Ms. Singh says she was "racially mistreated and humiliated" by Ms. Weber-Harvey [Ms. Singh's supervising lawyer] "on several occasions", and says she is "confident that Ms. Weber-Harvey initiated my dismissal on racial grounds". Specifically, she alleges that, on an unspecified date in September 2010, Ms. Weber-Harvey said, "I know you are from India, but you need to pay attention!". Ms. Singh says she was shocked and degraded by this comment. Further, Ms. Singh alleges that, on an unspecified date in October 2010, Ms. Weber-Harvey said, "This is Canada, not India, and you should be able to handle dealing with the public". Ms. Singh says she was shocked and embarrassed. There is no reference to any such statements in the original complaint, or the amendment to it, and Ms. Singh did not apply to further amend her complaint to include these allegations. [10] In her February 1, 2011 complaint to the Tribunal, Ms. Singh completed the standard form of complaint as provided by the Tribunal, including Section E. To elicit details from a complainant, the Tribunal's Complaint Form in Section E states (in part): Start with the first thing that happened. For each incident, give the day, month, and year it happened, if possible. If something happened over a period of time, give the period of time. For each date or period of time, answer these questions: 1. What happened?

2. Where did it happen?

3. What did each respondent do on that date? Make sure it is clear who they are and what they did or said.

4. How is what happened connected to the area(s) you checked in section C?

5. How is what happened connected to the ground(s) you checked in section D? [11] For sections C and D, Ms. Singh checked the appropriate boxes for employment and race respectively. [12] In describing her January 28, 2011 employment termination, Ms. Singh stated (in part): "I felt like a junior staff member because of my RACE." (Ms. Singh's emphasis) [13] In a letter dated March 23, 2011, the Tribunal told Ms. Singh it could only proceed with her complaint if further information were to be provided. The Tribunal's case manager explained: Link to grounds of the complaint: The Tribunal can only accept complaints against respondents who are alleged to have acted in a way that could be found to be a breach of the BC Human Rights Code. This means that you must set out facts that show how your race was related to how your employer treated you. You do not show a link between your race and your treatment by the respondents. It is not enough to say that you are of a particular race and were paid below market expectations, or that you had more education than was required for your job but were still laid off. You have to be able to say what the respondent did or said that would suggest that their treatment of you was related to your race. On the enclosed Amendment Form 1E please provide further information saying what it was the respondent said or did to make you believe their treatment

of the complainant was influenced by your race. Please tell us: · What is your race? · For each event: describe what happened that you think was discrimination. What was the date, who was there, and what did they do or say that you think was discrimination? · For those events: what was it that the respondent said or did that led you to believe their treatment of you was influenced by your race and not by other factors? It is not enough to say you are of a particular race and treated adversely in some way. · Why do you believe your race was a factor in your 2011 layoff, given that you had been previously laid off and then recalled in 2009? [14] Ms. Singh, in her March 30, 2011 amendment to her complaint, states (in part): In summary, is this not discrimination that I was laid off, in the first incident, in order to save a Caucasian member from being laid off as well, and then being dismissed [fired] in favour of hiring a Caucasian to replace me? [15] In her complaint as amended, Ms. Singh does not refer to Ms. Weber-Harvey's alleged statements and does not to make any allegations with respect to Ms. Weber-Harvey. As noted, Ms. Weber-Harvey was Ms. Singh's supervising lawyer. [16] In its July 26, 2011 response, KSW addresses in detail the allegations in Ms. Singh's complaint (as amended). [17] In its July 27, 2011 application to dismiss, KSW sets forth its argument for dismissal.

Mr. Samson Chow, KSW's administrator, and Ms. Weber-Harvey swore affidavits in support. [18] On October 28, 2011, Ms. Singh filed her response to KSW's application to dismiss. (A response had been previously submitted on August 22, 2011, but was revised to remove information and materials related to a settlement conference.) [19] On January 20, 2012, KSW replied to Ms. Singh's October 28, 2011 response. [20] On January 25, 2012 Ms. Singh tried to submit further materials. The Tribunal returned to Ms. Singh these materials. In a letter accompanying the returned materials, the Tribunal told Ms. Singh it would not consider her further submissions because the Tribunal's Rules of Procedure do not include a right to surreply. The Tribunal directed her to Rule 24(7) of the Tribunal's Rules of Practice and Procedure which allows a complainant (or other participant) to make a request to submit further materials where new issues are raised. Ms. Singh did not make a request. [21] In the further materials Ms. Singh tried to submit, which the Tribunal rejected as impermissible surreply, Ms. Singh stated (in part): Ms. Harvey's racial comments did not take place on the dismissal day (January 28, 2011), therefore, were not mentioned in the initial complaint. I must, however, mention that indeed it was discussed on the settlement meeting of June 17, 2011. Again, I was asked to not include

these comments. I was extremely emotional and upset during the meeting. I had mentioned it to the mediator prior to receiving Ms. Harvey's affidavit which came as a shock to me at the time. [22] In its April 24, 2012 Reasons, the Tribunal did not consider Ms. Singh's allegations with respect to Ms. Weber-Harvey in deciding to dismiss Ms. Singh's complaint. The Tribunal stated: [35] However, the materials filed by the parties do not tend to show any connection, beyond the bare allegation, between any adverse treatment Ms. Singh experienced, and her race. She speculates that KSW underpaid her, denied her raises and bonuses, and twice dismissed her because of her race, but the available information all either does not support that speculation, or points in the opposite direction. Particularly striking is the fact that both her replacement, and her replacement's replacement, were East Indian women, which does not support her allegation that she was dismissed, "because the employer wanted a Caucasian woman to replace me". [36] The only exception to this pattern is Ms. Singh's allegation about Ms. Weber-Harvey's comments referring to her Indian origins. I do not think these allegations can be considered as part of Ms. Singh's complaint, because they were not raised in it or in the amendment, they were not the subject of an application to amend the complaint, and they cannot be

regarded as mere particulars of the allegations there. Rule 25(4)(b) requires an application to amend a complaint where an application to dismiss is pending, in order to prevent a complainant from presenting the respondent with a "moving target": Pausch v. Abbotsford School District No. 34, 2008 BCHRT 154. IV. Ms. Singh's Arguments [23] Ms. Singh says that she has not been treated fairly because the Tribunal ignored the alleged racial commentary and also did not consider the surreply. She says that the Tribunal viewed the alleged racial commentary as a "new" allegation, rather than as "response evidence" arising in response to KSW's application to dismiss. [24] With respect to the alleged racial commentary, the Tribunal's Reasons at paragraph 36 are clear that the alleged racial commentary was acknowledged but then rejected. Accordingly, the commentary could not "be considered as part of Ms. Singh's complaint". [25] The Tribunal's gatekeeper role is exercised in the context of the Rules of Practice and Procedure which use an adversarial model of complaint and response with the Tribunal as a neutral arbiter. Within this context, paragraphs 35 and 36 of the Tribunal's Reasons meet the test in section 59(5) of the Administrative Tribunals Act. [26] The Court further notes that the Tribunal, by its March 23, 2011 letter, gave Ms. Singh a "helping hand". The Tribunal told her what

was required for her complaint, and encouraged her to explain specifically what her employer " said or did that led you to believe their treatment of you was influenced by your race". [27] As the Tribunal notes in paragraph 36, Ms. Singh did not further apply to amend her complaint. Nothing prevented her from making such an application. The Court rejects Ms. Singh's assertion that the Tribunal failed her by not advising her of the applicable rules. [28] With respect to the "surreply", by its January 25, 2012 letter, the Tribunal treated Ms. Singh fairly in directing her to the relevant Rule by quoting the Rule in its entirety. [29] At the hearing before the Court, Ms. Singh also argued that the Tribunal did not act fairly because it preferred Ms. Weber-Harvey's sworn statements over Ms. Singh's unsworn statements. Ms. Singh says that the Tribunal had advised her that she should write a letter but then dismissed her complaint partly on the basis that she failed to file an affidavit: [37] Even if the Tribunal were to consider these new allegations as part of Ms. Singh's complaint, I do not think they would give it a reasonable prospect of success for three reasons: · They are not referred to in either the original or amended complaint. If these comments had been made as alleged in September and October 2010, and had caused the degradation and humiliation Ms. Singh claims, I would

have expected them to be referred to in her February 2011 complaint, or the March 2011 amendment, not raised for the first time in her October 2011 response to the application to dismiss. · They are not supported by affidavit or other evidence, or any other witness. · They are countered by unequivocal affidavit evidence from Ms. Weber-Harvey. [30] The Court agrees that, in the stated circumstances, it would have been unfair for the Tribunal to consider Ms. Singh's allegations and then discount them solely because they were unsworn. However, given the opening words of paragraph 37 of the Tribunal's reasons, "Even if", it is clear that this aspect was not the basis of the Tribunal's decision. Accordingly, any error is of no moment. V. Conclusion [31] The petition is dismissed. ____ "Funt J."____ Funt J.