



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Edgewater Casino v. Chubb-Kennedy,









2015 BCCA 9




Date: 20150113

Docket: CA041688

Between:

Edgewater Casino

Appellant

(Petitioner)

And

Anita
Chubb-Kennedy and
The British Columbia Human Rights Tribunal

Respondents

(Respondents)




Before:



The Honourable Madam Justice Saunders

The Honourable Madam Justice Bennett

The Honourable Mr. Justice Willcock




On appeal from:  An
order of the Supreme Court of British Columbia, dated March 13, 2014 (
Edgewater
Casino v. Chubb-Kennedy
, 2014 BCSC 416,
Vancouver Docket No. S137857).




Counsel for the Appellant:



N. Mitha
S. McCann





Respondent Appearing In Person:



A. Chubb-Kennedy





Counsel for the Respondent,
BC Human Rights Tribunal:



M. Underhill





Place and Date of Hearing:



Vancouver, British
  Columbia

September 26, 2014





Place and Date of Judgment:



Vancouver, British
  Columbia

January 13, 2015





Written Reasons by:





The Honourable Madam Justice Saunders





Concurred in by:





The Honourable Madam Justice Bennett

The Honourable Mr. Justice Willcock






Summary:

This appeal is from the
dismissal of a petition for judicial review of a decision of the Human Rights
Tribunal declining to dismiss a human rights complaint prior to a hearing. The
reviewing judge held that the decision, a discretionary one made in the
exercise of the Tribunals gatekeeping function, was not patently unreasonable.
Held: appeal dismissed. The judge did not err in concluding the Tribunals
decision was not patently unreasonable. Section 27(1)(c) of the Human Rights
Code, R.S.B.C. 1996, c. 210 discussed.





Reasons for Judgment of the Honourable
Madam Justice Saunders:

[1]

Edgewater Casino appeals from dismissal of its petition for judicial
review of a decision of the British Columbia Human Rights Tribunal. The Human
Rights Tribunal, on Edgewater Casinos preliminary motion, had dismissed two
aspects of Mrs. Chubb-Kennedys complaint against Edgewater Casino but not
a third, a complaint that Edgewater Casino had discriminated against Mrs. Chubb-Kennedy
on the basis of race and ancestry. In its petition for judicial review Edgewater
Casino contended that the Tribunal erred in failing to dismiss the complaint
entirely. It takes the same position before us.

[2]

The complaint arises from Edgewater Casinos provision of a shuttle bus
service for its patrons to transport them to and from its casino in Vancouver,
British Columbia. Mrs. Chubb-Kennedy is a woman of First Nations descent.
She was a frequent patron of the casino and user of the shuttle bus. Mrs. Chubb-Kennedy
alleges in the complaint, and it is accepted by all, that on two occasions the
driver of the shuttle bus removed her from the bus and declined to transport
her from the casino. She alleges these actions contravened the
Human Rights
Code
, R.S.B.C. 1996, c. 210.

[3]

The evidence before the Tribunal was, in the main, filed by Edgewater
Casino. It includes a description of Mrs. Chubb-Kennedy on the first occasion
when she was removed from the shuttle bus as appearing to the driver to be
intoxicated or impaired by drugs or alcohol, and on the second occasion as
having attracted complaints from other passengers of smelling like alcohol. Mrs. Chubb-Kennedy
was, by the drivers account, loud, aggressive, and obnoxious on both occasions.

[4]

There was little material from Mrs. Chubb-Kennedy apart from her
complaint. She did file, however, a letter saying I have never gotten drunk on
the bus or at the Edgewater Casino. Before us, Mrs. Chubb-Kennedy asserted
that she does not consume alcohol, and she denies the unruly and disruptive
behaviour alleged by Edgewater Casino.

[5]

The Tribunal declined to dismiss the complaint of discrimination on the
basis of race and ancestry at the preliminary stage, saying that the
description of the complainants behaviour in the affidavits filed by Edgewater
Casino accuses Mrs. Chubb-Kennedy of behaviour stereotypical of persons
[of] First Nations descent. The Tribunal found this was enough to establish a
nexus between the behaviour complained of and the protection under the
Code
.

[6]

The issue before the reviewing judge was whether the Tribunals decision
was patently unreasonable. This patent unreasonableness, says Edgewater,
consists of the Tribunal giving undue weight to the evidence of the complainant
and in determining there was a sufficient nexus between the actions of
Edgewater Casino and the complainants race and ancestry so as to permit the
complaint to go forward to the next stage of the Tribunals process.

[7]

The reviewing judge observed that the finding of potential for a nexus
was an inference connecting the behaviour complained of and Mrs.
Chubb-Kennedys status as an Aboriginal woman. The judge identified the issue
before him as whether that inferentially-driven conclusion of the potential
for a nexus between the drivers removal of Mrs. Chubb-Kennedy from the
bus and the protection provided by the
Human Rights Code
could be
characterized as patently unreasonable (the standard of review under s. 59
of the
Administrative Tribunals Act
, S.B.C. 2004, c. 45). He found
that the decision of the Tribunal was somewhat surprising but not patently
unreasonable, saying:

[63]      I suspect that if many members of the community
were presented with the situation, they might well find the conclusion to be at
least somewhat difficult to understand. It does not scream logical. In the
vernacular, the drawing of that conclusion seems to draw a long bow. However,
in order to assess it for the purpose of the present application, I am obliged
to recognize that there is some element of specialization to the task which the
Tribunal had to perform. Implicit in the conclusion is that the Tribunal
applied some element of specialized knowledge to reach the conclusion it
reached and I am required to bear in mind the standard of review which is
applicable.

[64]      From the petitioners perspective, I believe the
result is particularly disconcerting because it essentially takes the evidence
which was tendered by the petitioner, tendered Im sure in an honest and
sincere way, and uses that evidence to support a conclusion quite adverse to
the petitioner. For the petitioner, the most obvious meaning of its evidence,
that the Complainant was acting irrationally and actually seemed to be under
the influence at the time, appears to have been swept aside in favour of
another more obscure and, for the petitioner, sinister interpretation. Quite
naturally, a sense of frustration is engendered.

[65]      In the final result, while I consider the
conclusion drawn by the Tribunal to be somewhat surprising, I must also
recognize that this Court is obliged to accord a reasonable measure of
deference to decisions of specialized tribunals.

[66]      There is also the fact that the Tribunals decision
was made at a time before the evidentiary record had been properly developed.
The Tribunal was not being asked to conclude that the discriminatory act had
been proven, but rather to decide whether there was some reasonable possibility
that it might be proven in the circumstances of a full hearing.

[67]      While I am not without
some reservation as to the correctness of the Tribunals decision, that is not
the test to be applied. The threshold for the decision to survive is a low one:
unless that decision is one which is properly characterized as patently
unreasonable, this Court will not interfere. I find the threshold for survival
has been met.

[8]

The question for us is whether the reviewing judge erred in concluding
the Tribunals decision was not patently unreasonable.

[9]

Edgewater Casinos application to the Tribunal for dismissal of the
complaint was made under s. 27(1)(c) of the
Human Rights Code
,
which provides discretion to the Tribunal in these terms:

27   (1) A member or panel may, at any time after a complaint is filed
and with or without a hearing, dismiss all or part of the complaint if that
member or panel determines that any of the following apply:



(c) there is no reasonable prospect that
the complaint will succeed;

[10]

That section accords the Tribunal a gatekeeping function, intended to
allow the complaint process to be abbreviated so that parties are not embroiled
in the expenditure of time and money on complaints, and the Tribunal is not
engaged in hearing cases, that are not realistic candidates for a remedial
order.

[11]

The approach to the Tribunals s.27(1)(c) function is found in jurisprudence
developed for a former articulation of the gatekeeping power, s. 14(1)(a) of the
Human Rights Act
, S.B.C. 1984, c. 22. As that section allowed the then
Human Rights Council to order that the proceedings be discontinued but did
not describe the criteria the Council should consider in making such a
determination, the Supreme Court of British Columbia addressed the question in
a series of cases, including in
Cook v. British Columbia Council of Human
Rights
(1988), 26 B.C.L.R. (2d) 52, and
Onischak v. British Columbia
(Council of Human Rights)
(1989), 38 Admin. L.R. 258. In
Cohen v.
British Columbia Council of Human Rights
(1990), 72 D.L.R. (4th) 306
(B.C.S.C.),  Mr. Justice Lysyk relied upon this passage of Mr. Justice
Wood in
Cook
:

When considering whether or not
to discontinue proceedings under s. 14(1)(a), it is my view that the
council must employ an objective standard. The one that comes readily to mind
is that to which the common law has frequently resort[ed], namely, a standard
which invokes a test of reasonableness.
I conclude that when considering a
complaint the council must determine whether there is any evidence upon which
either a board of inquiry under s. 16, or a designated member of council
under s. 14(1)(d), acting reasonably, could find the complaint to be
proved on a balance of probabilities
. [Emphasis added at 315-316.]

Mr. Justice
Lysyk in
Cohen
concluded with these comments:

The Act does not require Council members to be legally
trained and it may be doubted whether the legislature intended the Council to
perform its filtering function, contemplated by s. 14(1)(a), by applying a
sophisticated legal formula in the manner of a court of law.  In
S.E.P.Q.A.
v. Canadian Human Rights Commission
, [1989] 2 S.C.R. 879, 11 C.H.R.R. D/1,
consideration was given to principles governing exercise of the commissions
authority under the relevant provisions of the
Canadian Human Rights Act
to
dismiss a complaint, after investigation, without appointing a tribunal to
conduct a hearing. Mr. Justice Sopinka, writing the majority reasons, made the
following observations concerning this function of the commission (at
p. 428):

It is not intended that this be a determination where the
evidence is weighed as in a judicial proceeding but rather the Commission must
determine
whether there is a reasonable basis in the evidence for proceeding
to the next stage
. It was not intended that there be a formal hearing
preliminary to the decision as to whether to appoint a tribunal. [Emphasis added
in
Cohen
.]

[12]

In
Lee v. British Columbia (Attorney General)
, 2004 BCCA 457, 32
B.C.L.R. (4th) 1, Mr. Justice Donald discussed a former version of the current
provision, drawing on the jurisprudence of the
Human Rights Act
:

[26]       there will almost always be some evidence of the
possibility of discrimination when a member of a minority group is passed over
in favour of a member of the majority group. But a mere possibility surely
cannot be enough to require a hearing.
The scheme of the statute involves a
screening process so that only complaints with sufficient merit will proceed to
a hearing
. The HRC was assigned the role of gate keeper. Thus the HRC had
to assess this case in a preliminary way and make a judgment whether the matter
warranted the time and expense of a full hearing.
The threshold is not
particularly high: whether the evidence takes the case out of the realm of
conjecture
: [Citations omitted.]

[27]      In my view
the evaluation of the complaint at
the gate keeping stage attracts the highest degree of curial deference
. It
involves the assessment of evidence in a specialized area.

[Emphasis
added.]

[13]

In
Berezoutskaia v. British Columbia (Human Rights Tribunal)
,
2006 BCCA 95, 51 B.C.L.R. (4th) 4, Mr. Justice Smith referred to these passages
of
Lee
, and confirmed that these same considerations apply in reviewing
a decision made under the current s. 27(1)(c):

[26]      Although there is now a single tribunal, the scheme
has not changed in its essence. The discretion to dismiss a claim that, on a
preliminary assessment, does not warrant a full hearing has passed from the
former Human Rights Commission to a panel or a member of the Tribunal under the
current s. 27(1).
The nature of this gate keeping function has not changed. In
my view, the approach set out by Mr. Justice Donald to a gate keeping decision
of the Human Rights Commission is equally applicable to a gate keeping decision
made by a panel or a member of the Tribunal
.

[Emphasis
added.]

[14]

Before us Edgewater Casino says the reviewing judge erred in failing to
find the decision was patently unreasonable for the same two reasons advanced
before the judge: first, the Tribunal gave undue weight to the evidence of Mrs. Chubb-Kennedy,
and second, the material before the Tribunal did not support the nexus referred
to by the Tribunal between the behaviour complained of and Mrs. Chubb-Kennedys
race and ancestry. Edgewater Casino says the complaint is so unlikely to
succeed it should be dismissed at the preliminary stage.

[15]

As is apparent from the authorities I have referred to, consideration of
a complaint at the gatekeeping stage does not involve the weighing of evidence.
Rather the Tribunal performs a preliminary assessment of all the material filed
to that point. Thus I would not accede to Edgewaters submission that the Tribunal
erred in respect to the weight given to the complainants statement.

[16]

Nor do I consider that the judge erred in his view that the Tribunal was
not patently unreasonable in holding that the information before it laid enough
by way of groundwork to justify the complaint advancing to adjudication.

[17]

Edgewater Casino says it produced ample evidence of its policy of
refusing service to disruptive riders, and of Mrs. Chubb-Kennedys behaviour as
loud and disruptive consistent with intoxication by alcohol, to establish that
no credit could be given to a complaint of discrimination. It says the
complaint has no reasonable prospect of success because a connection between the
behaviour of its driver which founds the complaint and the prohibited head of
discrimination is simply not apparent on the material that was before the
Tribunal. In its submission, both the Tribunal and the reviewing judge erred in
failing to recognize this. But one may ask, if Mrs. Chubb-Kennedy testifies
at the hearing, and is believed, that she was not intoxicated and had not
consumed alcohol, is it outside the realm of conjecture to consider that she
was the recipient of stereotypical assumptions based simply on her presentation
and if so, was the
Human Rights Code
violated?

[18]

The case at this stage, of course, is far from establishing the finding
just described, but these are early days. It is, in my view, important to view the
limits of the Tribunals finding. The decision does not say that the necessary
connection for a finding of prohibited discrimination
is
established,
but rather that considering what may be known of stereotypical behaviour, proof
of the complaint was not out of the realm of conjecture:
Lee
at para. 26;
Berezoutskaia
at

para. 26.

[19]

The reviewing judge held that it could not be said the Tribunal was
patently unreasonable in allowing the complaint to proceed to completion on the
allegation of discrimination on the basis of race or ancestry. I agree. The
nature of the particular question addressed by the Tribunal engages its
expertise and the answer given by the Tribunal is one that attracts the courts
highest deference. Having reviewed the materials filed, it seems to me it was
open to the Tribunal, applying a relatively low merits threshold, to decline
to abbreviate the natural complaint process so as to allow this aspect to
proceed to an adjudication.

[20]

As I do not consider that the reviewing judge erred in concluding that the
Tribunals refusal to dismiss this aspect of the complaint under s. 27(1)(c)
was not patently unreasonable, I would dismiss the appeal.

The Honourable Madam Justice Saunders

I agree:

The
Honourable Madam Justice Bennett

I agree:

The Honourable Mr. Justice
Willcock


