The petition of a psychiatrist (“Bartman”) seeking judicial review of a decision by the British Columbia Human Rights Tribunal (the “Tribunal”) was dismissed where the court found that the conclusion of the Tribunal that Bartman had sexually harassed the Complainant was reasonable and well supported on the evidence

23. November 2004 0

Administrative law – Human rights complaints – Sexual harassment – Decisions of administrative tribunals – Human Rights Commission – Interpretation of Evidence – Judicial review – Standard of review – Reasonableness simpliciter – Patent unreasonableness

Bartman v. N.T., [2004] B.C.J. No. 1896, British Columbia Supreme Court, September 16, 2004, Holmes J.

The Complainant was Bartman’s medical office assistant from January 1990 until March 1997. The Complainant brought a complaint before the then existing British Columbia Human Rights Commission alleging that Bartman had sexually harassed her during 1996. This complaint was referred to the Tribunal for a hearing where the Tribunal found that the Complainant had established, on a balance of probabilities, that Bartman’s continued advances, starting at a Christmas party in 1995, constituted sexual harassment contrary to section 13(1)(b) of the Human Rights Code, R.S.B.C. 1996, c. 210.

The court reviewed the factors applicable to a determination of the appropriate standard of review with respect to the factual determinations of the Tribunal. The court stated that it would accord the Tribunal considerable deference with respect to its fact finding role and held that the applicable standard for factual determinations was patent unreasonableness. This standard requires a court not to interfere unless a tribunal’s decision was “clearly irrational” or, in the case of a finding of fact, based on no evidence. With respect to whether the Tribunal erred in determining that Bartman had sexually harassed the Complainant, the court noted that this was a question of mixed law and fact and that the parties agreed that the appropriate standard of review on such questions was reasonableness simpliciter. This is a middle ground of deference falling between patent unreasonableness and correctness.

The court reviewed the evidence before the Tribunal with respect to the finding of sexual harassment. The Tribunal found that Bartman had been overly attentive and complimentary to the Complainant, rubbing her leg and playing footsie with her at a office Christmas party in 1995. Bartman apologized to the Complainant the following day but continued to spend an excessive amount of time around her work area and made “love sick sighs” around her. In July 1996, Bartman’s advances became more overt and he invited the Complainant to lunch. The Complainant advised Bartman that his feelings were not reciprocated. The following day Bartman left a poem on the Complainant’s desk. He also exchanged post-it notes containing declarations of love for the Complainant. In August 1996, Bartman forwarded dictation tapes for transcription by the Complainant. These contained inappropriate comments of his feelings and expressions. Upon his return from vacation, Bartman again asked the Complainant out for lunch and recited another poem he had written earlier about his love for her. After the lunch, the Complainant was found by other staff members crying and when Bartman came into the office, the other employees gave him “a glowering look”. Bartman again invited the Complainant to lunch in August, which was refused.

After reviewing the evidence, the court held that the conclusion that Bartman sexually harassed the Complainant contrary to section 13 of the Code was reasonable and well supported. The court dismissed Bartman’s petition with costs.

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