The British Columbia Human Rights Tribunal (“Tribunal”) rejected Respondents’, the Ooknakane Friendship Centre Society (“Centre”) and Grace Greyeyes (“Ms. Greyeyes”) application to dismiss the Complainant’s discrimination claim.

The Complainant, who identifies herself as a Caucasian woman of Western-European Ancestry was employed by the Centre, a not-for-profit society. She was originally hired as Program Director but subsequently became the Acting Executive Director. The Complainant was meant to hold the latter position until a new Executive Director was hired.

Accordingly, the Centre published a job posting for the position of Executive Director and indicated that “preference may be given to applicants of Aboriginal ancestry”. The Complainant applied for this position but later withdrew her application. The parties disagreed about how the withdrawal of the application occurred. The Complainant alleged that a Board Member told her she could not apply for the position. She also claimed that the Vice President asked her to withdraw her application because the Centre was seeking an “Aboriginal person” to fill the position. Conversely, the Respondents argued that the Complainant voluntarily withdrew her application and understood that the person for the position should be Aboriginal.

Additionally, the Complainant alleged that during the application process derogatory comments were made to her by the Respondent, Ms. Greyeyes, regarding people of Métis and Caucasian ancestry. Ms. Greyeyes denied making these comments.

The Complainant eventually took a paid leave of absence. She explained that this leave was due to the stress caused by the discriminatory comments and treatment she experienced at work. However, the Respondents stated that in the letter confirming the Complainant’s leave of absence there was no mention of the alleged discrimination and that the leave was due to the Complainant’s exhaustion and need to be closer to her mother, who was in and out of the hospital. The Respondents alleged that during her leave of absence, the Complainant attempted to complete tasks that had been delegated to others. Furthermore, the Respondents stated that the Complainant returned to the Centre before the end of her leave, became disruptive and challenged the new Executive Director’s authority.

Soon thereafter, the Complainant submitted a complaint to the Board regarding the treatment she had endured during the hiring process and later sought an apology. Subsequently, the Centre sent a letter to the Complainant terminating her employment.

The Complainant later filed a complaint with the Tribunal against the Respondents alleging that the Centre discriminated against her in her employment based on race, colour and ancestry, contrary to s. 13 of the British Columbia Human Rights Code (“Code”).  In response, the Respondents contested this allegation and applied to have the complaint dismissed. They argued that the allegations made in the complaint did not contravene the Code under s. 27(1)(b), and that pursuant to s. 27(1)(c) of the Code; the claim had no reasonable prospect of success.

The Tribunal, in rendering its decision, addressed the following two questions:

  1. Is there a contravention of the Code under s. 27(1)(b)?
  2. Is there no reasonable prospect that the complaint will succeed pursuant to s. 27(1)(c)?

Is there a contravention of the Code under s. 27(1)(b)?

As the Tribunal previously (by letter dated November 29, 2011) did not accept the complaint filed on the grounds of discrimination in employment advertisement (s. 11 of the Code) and in a publication (s. 7 of the Code), the Tribunal held the Respondents’ arguments to dismiss these parts of the complaint were moot and did not consider the arguments made by the Respondents under s. 27(1)(b) as they all related to the same grounds.

Is there no reasonable prospect that the complaint will succeed pursuant to s. 27(1)(c) of the Code?

Pursuant to s. 27(1)(c), the Tribunal had to determine if there was a reasonable prospect that the complaint would succeed based on the evidence before them.  This provision was described as follows by the Court of Appeal in British Columbia (Workers Compensation Appeal Tribunal) v Hill, 2011 BCCA 49:

That provision creates a gate-keeping function that permits the Tribunal to conduct preliminary assessments of human rights complaints with a view to removing those that do not warrant the time and expense of a hearing. It is a discretionary exercise that does not require factual findings. Instead, a Tribunal member assesses the evidence presented by the parties with a view to determining if there is no reasonable prospect the complaint will succeed. The threshold is low. The complainant must only show the evidence takes the case out of the realm of conjecture. If the application is dismissed, the complaint proceeds to a full hearing before the Tribunal.

In evaluating the prospect of the complaint, the Tribunal considered the exemptions listed in s. 41 of the Code.  This section states that:

If a charitable, philanthropic, education, fraternal, religious or social organization or corporation that is not operated for profit has as a primary purpose the promotion of the interests and welfare of an identifiable group or class of persons characterized by a physical or mental disability or by a common race, religion, age, sex, marital status, political belief, colour, ancestry or place of origin, that organization or corporation must not be considered to be contravening this Code because it is granting a preference to members of the identifiable group or class of persons.

The purpose of s. 41 of the Code was outlined in Gillis v United Native Nations Society, 2005 BCHRT 301:

(…) s. 41 serves the important object of ensuring that non-profit groups whose purpose is to promote the interests and welfare of an identifiable group characterized by one of the listed grounds can, in promoting that group`s interests and welfare, give preference to members of that group.

In order to determine if the complaint could succeed, the Tribunal had to examine the merits of the argument made by the Respondent for which s. 41 of the Code applied in the case at hand. As such, the Tribunal had to define the Centre’s primary purpose and decide if a rational connection existed between that purpose and the preference to employ an Aboriginal person.

The Respondents argued that the objective of the Centre was to provide programs and services to Aboriginal people and as such, they were permitted to give preference to applicants of Aboriginal ancestry.

Conversely, the Complainant argued that s. 41 did not apply as the Centre’s objective was not limited to providing programs and services to Aboriginal people. The Complainant supported that argument by raising the Centre’s mission statement, value statement, and vision statement which referred to “people of all nations”.

After considering both arguments, the Tribunal agreed with the Respondents and submitted that it would not be possible for the Complainant to demonstrate that the Centre’s objective was something other than to provide programs and services to Aboriginal people.

However, in examining the rational connection between the Centre’s objective and the preference to employ an Aboriginal person, the Tribunal was of the view that a trial was necessary to assess the merits of the conflicting evidence submitted by each party’s version of events. To support its decision, the Tribunal cited Keller v Canada West Promotions, 2006 BCHRT 553 in which it is stated that:

(…) where there are significant differences in the versions of events put forward by the parties on issues that are crucial to a determination of the matter, a hearing will often be necessary to test the conflicting evidence.

Furthermore, the Tribunal identified other issues raised by the initial complaint that it deemed crucial to the determination of the matter. First, the complaint raised the issue of competing rights between the Complainant’s right to not be removed from her employment as per s. 13(1) of the Code and the Respondents’ right to prefer an Aboriginal person for the position under s. 41. Second, the cause of the Complainant’s termination was also in question, specifically whether her termination was due to her own conduct or based on her race, colour, or ancestry. Finally, the nature of the alleged comments made by Ms. Greyeyes to the Complainant and determining whether those comments were or not discriminatory constituted a third crucial issue.

As such, the Tribunal dismissed the Respondents’ application and chose not to exercise its discretion under s. 27(1)(c) of the Code as it was unable conclude that the Complainant’s claim had no reasonable prospect of succeeding.

http://www.canlii.ca/en/bc/bchrt/doc/2012/2012bchrt388/2012bchrt388.pdf