In Colbert v District of North Vancouver (2018 BCHRT 40) the British Columbia Human Rights Tribunal confirmed that it will not allow an individual to use their sexual orientation as a shield against the consequences of inappropriate conduct, including both conduct at issue in a complaint and conduct in the course of a complaint.

Facts

The complainant was a citizen of the Corporation of the District of North Vancouver. In 2010 the complainant became a vocal and active critic of the district's council and several of its councillors. From 2010 he wrote more than 635 communications to the district council and members of its municipal council, which included:

  • referring to the mayor as an "old whore";
  • congratulating a councillor "on the success of your breast augmentation surgery";
  • referring to the district council's manager of development as "unwashed, uneducated and unqualified"; and
  • emailing the mayor with reference to a "bulge in [his] trousers" during a public presentation to young people.

In 2015 the district council determined that many of the complainant's communications were inappropriate and developed a policy to restrict the manner in which such communication would be processed. The policy was then applied only to the complainant and was renewed after one year, in December 2016.

On 13 January 2017 the complainant filed a human rights complaint, arguing that the district council's action constituted censorship and was based on the fact that he was a gay man who had actively advocated on behalf of the lesbian, gay, bisexual, transgender and queer community. The complainant claimed that this violated Section 8 of the Human Rights Code, which prohibits discrimination in the area of service customarily available to the public.

Decision

The tribunal found that there was nothing submitted that was capable of establishing a connection between the complainant's sexual orientation and the district council's decision to apply the policy to him. To the contrary, the information provided unambiguously supported the district council's characterisation of the complainant's communications as inappropriate, harassing and threatening. The tribunal acknowledged that the district council was obliged to provide its employees with a workplace free from harassment and that no one should be required to attend their workplace and endure the types of communication to which the complainant appeared to have subjected the district council and staff. The tribunal held that the policy was based on these grounds and not the complainant's sexual orientation. As such, it found that the complainant had no reasonable prospect of success and dismissed the complaint.

After filing the complaint, the complainant continued to send inappropriate correspondence to the district council and began to send inappropriate correspondence to the district council's legal counsel, which included:

  • suggesting that legal counsel was "a junior partner" and for that reason:

likely assigned this matter because all junior partners are assigned the small claims, [British Columbia Human Rights Tribunal], arbitration and mediation matters involving clients for whom the more important actions and proceedings etc including Supreme Court matters are the dominion of the senior partners;

  • stating that legal counsel showed "extraordinary poor judgment" and that his conduct was "nothing less than vile if not utterly sublime"; and
  • asserting that legal counsel was required to communicate with the complainant no matter the instruction of his client and that he could "tell it to the judge".

The tribunal concluded that the complainant had engaged in two aspects of improper conduct, which threatened the integrity of the tribunal's process:

  • first, his attacks and insults against legal counsel for the district council; and
  • second, his threats to retaliate against the district council if it did not engage in settlement discussions with him.

On that basis, the tribunal ordered the complainant to pay costs to the district council.

Comment

Although the complainant was a member of a protected group under the Human Rights Code due to his sexual orientation, such membership did not give him justification to engage in inappropriate conduct. The decision confirms that while the Human Rights Code protects individuals against discrimination in certain areas, the tribunal will not allow an individual who is a member of a protected group to use the code as a shield against the consequences of their inappropriate conduct.

For further information on this topic please contact David G Wong at Fasken by telephone (+1 604 631 3131) or email (dwong@fasken.com). The Fasken website can be accessed at www.fasken.com.

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