



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



Yuan
                v. British Columbia (Human Rights Commission),









2005 BCCA
            31




Date: 20050113




Docket: CA030762

In the Matter of the
Judicial
          Review Procedure Act
,
R.S.B.C. 1996, c. 241

Between:

Rex Yuan

Appellant

(
Petitioner
)

And

British
      Columbia Human Rights Commission

Her Majesty
      in Right of Province of British Columbia

As Represented
      by the Minister of Agriculture Fisheries

And Food,
      Al Helmersen and Doug Cherrington

Respondents

(
Respondents
)











Before:



The Honourable
            Chief Justice Finch





The Honourable
            Madam Justice Levine





The Honourable
            Mr. Justice Lowry




Oral Reasons for Judgment




R. Yuan



Appearing In Person





N. Iyer



Counsel for the Respondents





Place and
            Date:



Vancouver, British Columbia





January 13, 2005







Introduction

[1]

LEVINE,JA
: The appellant, Rex Yuan, filed a complaint
      with the B.C. Human Rights Commission in April 1996, alleging discrimination
      respecting his employment by the respondents, the Ministry of Agriculture,
      Fisheries and Food, his employer; Al Helmersen, his supervisor; and Doug
      Cherrington, the Ministrys director of personnel. After an investigation,
      the Commission decided in January 2001 not to refer the complaint to a
      human rights tribunal for hearing. That decision was confirmed in February
      2001. Mr. Yuan applied to the B.C. Supreme Court for judicial review of
      the decision not to refer his complaint for hearing. Mr. Justice Melvin
      dismissed the application for judicial review in March 2003 (2004 BCSC
      461). This is Mr. Yuans appeal from Melvin J.s order.

[2]

I
      note two matters concerning the applicable law.

[3]

First,
      the
Human Rights Code
, R.S.B.C. 1996, c. 210 was amended
      in 2002 (
Human Rights Code Amendment Act
, S.B.C. 2002, c.
      62). The provisions governing the procedure followed in this case, described
      in
Lee v. British Columbia Hydro and Power Authority
, 2004
      BCCA 457 at paras. 17-18, were repealed. The Commission and the investigative
      process it carried out no longer exists.  Complaints are now filed with
      the Human Rights Tribunal and dealt with by a panel or member of the Tribunal,
      which may dismiss all of part of a complaint for the reasons set out in
      s. 27 of the
Code
. The ground for dismissing Mr. Yuans complaint,
      that there is no reasonable basis to justify referring the complaint...to
      the tribunal for a hearing, is no longer part of s. 27. The principles
      applicable to this case were developed under the former version of the
Code
.

[4]

Second,
      s. 59 of the
Administrative Tribunals Act
, S.B.C. 2004, c.
      45 came into force on October 15, 2004. Section 59 sets out the standard
      of review to be applied in a judicial review proceeding to the decision
      of a tribunal where the tribunals enabling Act (in this case, the
Code
)
      has no privative clause. The parties did not raise and I have not considered
      the application of the
Act
to this appeal.

Background

[5]

Mr.
      Yuan alleged that he was discriminated against with respect to the terms
      and conditions of his employment and the refusal to continue his employment,
      on the basis of his race, colour, ancestry and/or place of origin, and/or
      because of a mental or physical disability. The relevant time period was
      from October 1991 to April 1996.

[6]

Mr.
      Yuan is of Chinese racial heritage. He was previously a resident of Hong
      Kong. He obtained a bachelors degree with a double major in Economics
      and Finance from Simon Fraser University in 1979. Mr. Yuan was employed
      by the Ministry from 1980 until November 1995, when his employment was
      temporarily interrupted until April 1996. From April 1996 until March 1997,
      Mr. Yuan held a temporary position with the Ministry, working for the B.C.
      Marketing Board. Since March 1997, he has been employed by the Ministry
      of Forests.

[7]

Mr.
      Yuan suffered from anxiety and depression from about 1992 to 1996.

[8]

Mr.
      Yuan alleged that the respondents were aware of his disability during the
      material time, but did not accommodate him by finding him meaningful work
      or allowing him to participate fully in the workplace. He claimed that
      his skills were underutilized; he did not receive meaningful work; his
      position was underclassified; he was denied secondment opportunities; he
      was subjected to discriminatory remarks; and his employment was terminated,
      contrary to s. 13 of the
Code
.

[9]

The
      human rights officers investigation report is a compendious, detailed
      summary and analysis of Mr. Yuans allegations and the responses of the
      Ministry and the individual respondents. It considered the actions taken
      by Mr. Yuan and his employer to deal with his complaints during the years
      in question, including the involvement of Mr. Yuans Union, the Provincial
      Ombudsman, the Commissioner of Freedom of Information and Privacy, Government
      Employee Health Services, as well as Mr. Yuans doctors and a private vocational
      assessment firm. The human rights officer reviewed the records of Mr. Yuan
      and the respondents and interviewed other employees of the Ministry.

[10]

The
      investigation report was considered and the recommendation not to refer
      the complaint to a tribunal and to dismiss it was accepted by a Delegate
      of the Commissioner of Investigation and Mediation of the Human Rights
      Commission. Another Delegate refused Mr. Yuans request for reconsideration
      to dismiss his complaint.

Judicial Review

[11]

Mr.
      Justice Melvin summarized the issues raised in Mr. Yuans petition for
      judicial review as:

(a)   unreasonable findings of fact;

(b)   wrong tests concerning accommodation;

(c)   credibility assessments; and

(d)   an investigation that was not neutral.

Grounds of Appeal

[12]

With
      the exception of (d), Mr. Yuan raises the same issues on this appeal. I
      will deal with Mr. Justice Melvins reasons in the context of each of the
      grounds of appeal.

Unreasonable Findings of Fact

[13]

Mr.
      Yuans argument on judicial review focused on whether the Commission had
      unreasonably concluded that he was laid off, not terminated, in November
      1995. He claimed that such a finding may only be made by a tribunal at
      a hearing, not by the Commission.

[14]

Mr.
      Justice Melvin considered the evidence on that issue and concluded that
      as there was a body of evidence to support the Commissions conclusion,
      it was not patently unreasonable (at para. 11). He pointed out (at para.
      8) that although some of the documents referred to the termination of
      Mr. Yuans benefits, the evidence also showed that his employer was engaged
      in attempting to place Mr. Yuan in alternate employment throughout the
      five month period that he was unemployed. He said: In other words, the
      connection between the petitioner and government had not completely ceased....

[15]

Mr.
      Justice Melvin went on to consider whether, on all of the evidence, the
      Commissions decision to dismiss the complaint was patently unreasonable.
      That was the correct standard of review: see
MacKenzie v. Howe Sound
      School District No. 48
, [1997] B.C.J. No. 2271 at para. 35 (S.C.)(QL);
Lee
at
      para. 27, where Mr. Justice Donald for the Court said:

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. I do not think it can be said that the decision to dismiss the complaint
      was patently unreasonable.



[16]

The
      chambers judge pointed out that in deciding whether there was a reasonable
      basis to justify referring a complaint to a tribunal for a hearing (see
      s. 27(1)(c) of the
Code
, as it then read), the Commission
      must weigh or assess or evaluate the evidence in its entirety, citing
May
      v. British Columbia (Council of Human Rights)
, [1996] B.C.J. No.
      192 at para. 23 (S.C.)(QL); see also
Rogers v. British Columbia (Council
      of Human Rights)
, [1993] B.C.J. No. 698 at paras. 28-29 (S.C.)(QL);
Kratoska
      v. British Columbia (council of Human Rights)
, [1997] B.C.J. No.
      638 at paras. 8, 11 (C.A.)(QL);
Lee
at para. 26.

[17]

He
      concluded that the decision to dismiss was justified by the evidence and
      could not be considered patently unreasonable (at para. 12).

[18]

On
      appeal, Mr. Yuan argues, partly on the basis of evidence that was not before
      Mr. Justice Melvin and is the subject of a fresh evidence application in
      this Court, that Mr. Justice Melvin erred by concluding that he was laid
      off, not terminated. The evidence consists of government documents indicating
      that Mr. Yuans employment was terminated. Mr. Yuan claims that the documents
      that were before Mr. Justice Melvin, together with the documents obtained
      from his personnel file after the hearing in Supreme Court, show that he
      was singled out and not treated in accordance with the collective agreement.
      He maintains that these documents prove that he was discriminated against
      on the ground of his disability. It was patently unreasonable, he says,
      for the investigator and the Commission not to have obtained and considered
      these documents, undermining the decision not to refer the matter to a
      tribunal for a hearing.

[19]

Part
      of Mr. Yuans objection to the termination language with reference to
      his period of unemployment is that it implies, to him, that he was terminated
      for cause. It is important to note that there is nothing in the investigators
      report or the decision of the Commission that in any way suggests that
      Mr. Yuans employment was temporarily interrupted because of any fault
      on his part. The evidence of his employer was that it had to downsize,
      and three other employees with similar classifications were laid off at
      the same time. The documents to which Mr. Yuan objects deal with the termination
      of his
benefits
, which was consistent with the collective agreement
      as it then read.

[20]

The
      question for the Commission was whether Mr. Yuans conditions of employment
      and the continuation of his employment were affected by discrimination
      (see s. 13 of the
Code
, as it then read). Whether the discontinuance
      of Mr. Yuans employment in November 1995 was a termination or a lay off
      was, in a sense, a collateral issue; the question was whether the discontinuance
      occurred because he was discriminated against. The investigator found that
      there was insufficient evidence of
discrimination
to warrant a hearing
      before the tribunal, and on review, the Commissions Delegate agreed.

[21]

Mr.
      Justice Melvins approach to the question of whether Mr. Yuan was laid
      off or terminated, and its relevance to the issue before the Commission,
      was correct. His role was not to determine that question, but to determine
      whether the Commissions decision that there was no reasonable basis to
      refer the matter for a hearing was patently unreasonable. He considered
      not only the evidence on the issue of whether Mr. Yuan was laid off or
      terminated, but more broadly, what the Commission had to decide: that is,
      whether there was a reasonable basis to justify referring the complaint
      to a tribunal for a hearing. He reviewed the Commissions decision by applying
      the standard of patent unreasonableness to the whole of the evidence that
      was before the Commission.

[22]

The
      fresh evidence Mr. Yuan seeks to have admitted for the purposes of this
      appeal would not, in my opinion, have changed the conclusions of the investigator
      or the Commission. The issue of whether Mr. Yuans temporary cessation
      of employment was a termination or a lay off was not conclusive of the
      issue the Commission had to decide and the failure of the Commission to
      obtain and consider the fresh evidence does not render its decision patently
      unreasonable. I would therefore not admit the fresh evidence.

[23]

Mr.
      Justice Melvin applied the correct legal test in reviewing the decision
      of the Commission. Mr. Yuan has not identified any patently unreasonable
      finding on the part of the Commission, or any error on the part of Mr.
      Justice Melvin.

[24]

I
      would not accede to this ground of appeal.

Duty to Accommodate

[25]

Mr.
      Yuan claimed that the Commission applied the wrong legal test for the duty
      to accommodate when the Delegate stated:

I concur with the
      investigators findings that the employer accommodated the Complainants
      disability in all instances where it was reasonable and they had a duty
      to do so.





[26]

Mr.
      Yuan argued that the law requires that an employer accommodate an employee
      to the point of undue hardship; reasonable accommodation is insufficient.

[27]

Mr.
      Justice Melvins response to Mr. Yuans argument was that the Commissions
      statement indicated that it was not blind to the legal duty to accommodate
      to the point of undue hardship, but noted that the duty does not arise
      until a
prima facie
case of discrimination has been shown (see
B.C.
      (Superintendent of Motor Vehicles) v. British Columbia (Council of Human
      Rights) (Grismer)
, [1999] 3 S.C.R. 868 at para. 20).

Mr.
      Justice Melvin had already concluded, in response to Mr. Yuans argument
      that the Commissions decision to dismiss his complaint was unreasonable;
      that it was not patently unreasonable to conclude that there was insufficient
      evidence to support his allegations of discrimination. Thus, the duty to
      accommodate, in accordance with the legal test in
Grismer
,
      was not a relevant consideration for the Commission.

[28]

Mr.
      Justice Melvin correctly assumed that the Commission knew the law and was
      not blind to the undue hardship test and when it was applicable: see
Lee
at
      para. 26.

[29]

The
      respondents point out that the Commissions reference to the duty to accommodate
      summarizes the many interactions between Mr. Yuan and the Ministry over
      the period of his disability to attempt to meet his employment and medical
      needs, as described in detail in the investigation report. This was relevant
      evidence for the consideration of the Commission in deciding whether there
      was a reasonable basis to refer the matter to a tribunal for a hearing,
      but did not give rise to the obligation to consider the legal test for
      accommodation and whether it had been met.

[30]

Mr.
      Justice Melvin made no error in dealing with the issue of the duty to accommodate.
      I would not accede to this ground of appeal.

Credibility

[31]

Mr.
      Yuan argued that the Commission should not have made findings of credibility,
      but should have left those questions to a tribunal hearing the complaint
      on its merits. Mr. Justice Melvin found that the Commission must consider
      the credibility of the evidence in order to determine whether there was
      a reasonable basis to justify referring the complaint to a hearing. He
      said (at para. 18):

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.





[32]

Mr.
      Yuan argues that Mr. Justice Melvin imposed a restrictive credibility
      requirement on human rights complainants, contrary to the intention of
      human rights legislation to encourage victims of discrimination to come
      forward with their complaints.

[33]

Mr.
      Justice Melvins analysis of the burden of credibility is consistent with
      the authorities: see in particular,
Lee
at para. 26, where
      Mr. Justice Donald for the Court said:

The scheme of the
      statute involves a screening process so that only complaints with sufficient
      merit will proceed to a hearing. The HRC [Commission] 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:
Onishchak
      v. British Columbia (Council of Human Rights)
, (1989), 38 Admin.
      L.R. 258 at 266 (B.C.S.C.)
per
Huddart J. (as she then was), followed
      by Shaw J. in
Rogers v. British Columbia (Council of Human Rights)
(1994),
      21 C.H.R.R. D/67, [1993] B.C.J. No. 698 (QL) at para. 18 (B.C.S.C.), which
      in turn was applied by this Court in
Kratoska v. British Columbia
      (Council of Human Rights)
(1997), 88 B.C.A.C. 241, [1997] B.C.J.
      No. 638 (QL) at para. 11.





[34]

The
      authorities suggest that although the Commission should not generally decide
      questions of credibility when there is a dispute, it has to assess and
      evaluate the evidence to determine whether to dismiss a complaint or refer
      it for a hearing. The Commission had to determine if the complaint was
      more than conjecture; whether there was any reasonable chance it would
      succeed; whether the evidence was overwhelmingly against what the complainant
      said: see
Rogers, May, Kratoska
and
Lee
. All
      of these are examples of how the Commission could approach its review of
      the evidence, which of necessity required at least a preliminary assessment
      of credibility.

[35]

In
      my opinion, Mr. Justice Melvin was correct to find that the Commission
      properly assessed the evidence as a whole in this case.

[36]

I
      would not accede to this ground of appeal.

Crucial Piece of Evidence

[37]

Mr.
      Yuans final ground of appeal is that Mr. Justice Melvin erred in disregarding
      what Mr. Yuan regards as a crucial piece of evidence: a letter dated March
      5, 1996. He says this letter was the most significant direct evidence
      in support of his complaint. The letter was not mentioned in the investigators
      report or in Mr. Justice Melvins reasons for judgment.

[38]

In
      this letter, Mr. Cherrington suggests that the position of Statistics Officer
      in the Aquaculture and Commercial Fisheries Branch may not be suitable
      for Mr. Yuan because of the stress levels that are part of the position
      and Mr. Yuans potential reaction to these stresses because of his historic
      pattern of medical concerns.

[39]

Mr.
      Yuan argues that this letter was evidence that Mr. Cherrington considered
      and refused to continue to employ Yuan because of his perception of Yuans
      disability, contrary to s. 13(1) of the
Code
, which is
prima
      facie
discriminatory. He says the letter shows that the goal was to
      exclude him from employment in the public service on the basis of perceived
      disability.

[40]

The
      facts are that Mr. Yuan did receive temporary placements in the public
      service commencing in April 1996, and has been permanently employed in
      the Ministry of Forests, apparently successfully, since 1997. The letter
      was written in the context of his employers active search for suitable
      employment for Mr. Yuan after his employment was interrupted in November
      1995.

[41]

The
      facts refute Mr. Yuans claims that the letter by itself proves discrimination
      on the grounds of disability. Its existence does not render the Commissions
      decision patently unreasonable, and Mr. Justice Melvin did not err in not
      expressly considering it.

[42]

I
      would not accede to this ground of appeal.

Conclusion

[43]

I
      would dismiss the appeal with costs to the respondents.

[44]

FINCH,
        C.J.B.C.:
I agree.

[45]

LOWRY,
        J.A.:
I agree.

[46]

FINCH,
        C.J.B.C.:
The appeal is dismissed.



The
      Honourable Madam Justice Levine




