Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human rights complaints – Discrimination – Judicial review – Procedural requirements and fairness – Evidence – Failure to provide reasons
Gichuru v. Law Society of British Columbia,  B.C.J. No. 2390, 2010 BCCA 543, British Columbia Court of Appeal, December 2, 2010, C.A. Ryan, S.D. Frankel and H. Groberman JJ.A.
The appellant, Mokua Gichuru, practiaed law as a legal researcher with the Workers’ Compensation Appeal Tribunal. In the course of his employment, he became embroiled in a dispute with his supervisor, and submitted a complaint to the Law Society in 2006. The Law Society dismissed the complaint summarily. However, Mr. Gichuru had filed a human rights complaint against the Law Society in 2004, and that complaint remained unresolved at the time of his complaint against his supervisor. He attributed the Law Society’s dismissal of his 2006 complaint to animosity that the Law Society harboured against him as a result of his 2004 complaint against it. He therefore brought a complaint against the Law Society before the Human Rights Tribunal pursuant to s. 43 of the Human Rights Code, alleging that the Law Society had discriminated against him in retaliation for his earlier complaint against it. The human rights complaint was summarily dismissed on the basis that it did not have a reasonable prospect of success. This is an appeal of the judicial review upholding that summary dismissal.
The appellant argued that the tribunal member, in her written reasons, had failed to refer to an inconsistency in the evidence with respect to the appellant’s job description at the Workers’ Compensation Appeal Tribunal, and that this failure amounted to a denial of procedural fairness.
The court reasoned that the failure by a tribunal to address a fundamental issue in its reasons is not always a denial of procedural fairness. Where a tribunal’s failure to deal with a critical issue leaves the tribunal’s reasoning unclear or interferes with the ability of a reviewing court to assess the tribunal’s decision, the error can be characterized as a failure to provide adequate reasons. Such a failure is a breach of the duty of procedural fairness and will be reviewable on the standard applicable to such breaches. On the other hand, where the tribunal’s reasoning is clear notwithstanding its failure to mention a piece of evidence or a particular argument, the issue is not one of adequacy of reasons or procedural fairness. Rather, the question is whether the omission is indicative of a substantive error by the tribunal.
Here, the tribunal’s reasons were sufficient. They set out the background of the dispute and they were clearly articulated. Although the tribunal member did not specifically refer to the evidence with respect to Mr. Gichuru’s employment status, she did not have to. This was merely one piece of evidence for her to consider. Further, this did not amount to a substantive error. The evidence was not central or vital to the issue before the tribunal member. It was, at best, a single, rather inconsequential piece of evidence.
The Court of Appeal upheld the tribunal’s decision summarily dismissing the human rights complaint.
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