The British Columbia Court of Appeal allowed the appeal of an employer (“BC Hydro”) and reinstated the decision of the Human Rights Commission (“HRC”) dismissing, at a preliminary stage, the complaint of an employee (“Lee”). The court held that the reviewing judge erred in failing to give due deference to the HRC by substituting her view of the evidence for the view of the HRC.

23. November 2004 0

Administrative law – Employment law – Appointment – Human rights complaints – Discrimination – Race – Decisions of administrative tribunals – Human Rights Commission – Evidenciary issues – Judicial review – Evidence

Lee v. British Columbia (Attorney General), [2004] B.C.J. No. 1851, British Columbia Court of Appeal, September 10, 2004, Finch C.J.B.C., Prowse and Donald JJ.A.

Lee is an engineer born in China who moved to Canada from Hong Kong in 1975. He acquired Canadian citizenship in 1980 and was hired by BC Hydro in 1981. By 1990, BC Hydro recognized him as one of the top 100 achievers in the company. Lee aspired to managerial positions but on several applications was not selected. In October 1996, Lee was appointed acting manager of a new department. Lee was confirmed as a permanent manager a year later. In May 2000, Lee was transferred involuntarily from his position as manager of Generation Operations to another division of BC Hydro. In April 2001, Lee submitted his complaint to the HRC. He alleged that BC Hydro had denied him advancement opportunities and had removed him from his management position on the basis of his race, ethnicity or place of origin.

The HRC appointed a human rights officer to investigate the complaint. She interviewed Lee and a number of witnesses of BC Hydro. The human rights officer commented on the declining relationship between Lee and senior management. She also commented on evidence disclosed by BC Hydro that another manager had been selected instead of Lee for the position of Manager of Integrated Operations because of particular qualities the other individual possessed including “people skills, communication skills, and being a team player”. On June 27, 2002, the HRC issued its decision that the complaint would not be referred to a hearing and was dismissed under section 27(1)(c) of the Human Rights Code, R.S.B.C. 1996, c. 210. The reasons cited were that Lee failed to provide “any evidence” that the decision not to appoint him Manager of Generation Operations was based on his race, ethnicity or place of origin.

Lee challenged the dismissal of his complaint on judicial review. A Supreme Court judge set aside the dismissal and referred the complaint back to the BC Human Rights Tribunal, the body which replaced the formerly separate HRC. BC Hydro appealed this decision.

The B.C. Supreme Court judge had held that the HRC had “miscast the issue and missed the essence of the complaint”. The Court of Appeal did not agree and noted that the Supreme Court judge did not consider the language of the decision in the context of the much more comprehensive investigation report. The Court of Appeal held that the HRC was entitled to a contextual review of its decision on the principle of curial deference and indicated it should not have been necessary for the HRC to recite everything that it considered in arriving at the result.

The Supreme Court judge also held that the HRC used the wrong test. This conclusion was based on a statement in the Decision indicating that the complainant had not provided “any evidence” that decisions were based on his race, ethnicity or place of origin. The Court of Appeal found that the Supreme Court judge gave too strict a reading of this aspect of reasons.

The Court of Appeal agreed that the use of the phrase “not any evidence” by the HRC was unfortunate and it would have been better to say there was “not sufficient evidence”. However, the Court of Appeal indicated that the Tribunal was assumed to know the law and therefore the HRC must be taken to have applied the correct test. The Court of Appeal indicated that the evaluation of a complaint at the gate-keeping stage attracts the highest degree of curial deference. It involves the assessment of evidence in a specialized area. In this case, the court found that it was open to the HRC to decide that there was nothing in the evidence that moved the allegation from speculation to inference. The Court of Appeal found that the reviewing judge failed to give due deference to the HRC by substituting her view of the evidence for the view of the HRC contrary to the approach set out in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226. In this case, the HRC’s decision was not patently unreasonable and should not have been disturbed.

In the result, the appeal of BC Hydro was allowed.

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