BC Court of Appeal Restores Human Rights Tribunal Decision to Dismiss Complaint

October 2017

Article by: Sarah Dickson

Previously printed in the LexisNexis Labour Notes Newsletter.

In Francescutti v. Vancouver (City), 2017 BCCA 242, the British Columbia Court of Appeal restored a human rights tribunal decision to dismiss a complaint brought by a former City of Vancouver employee.  The decision provides useful support for the ability of a respondent to succeed on an application to dismiss a complaint, despite the presence of some conflicting facts raising issues of credibility.

Mr. Francescutti was a long-service employee of the City. In 2012, Mr. Francescutti had a perfect attendance record and was awarded a jacket as a token of recognition.  A few weeks later, the jacket arrived and was stored in the office of the Collections Superintendent.  Mr. Francescutti saw the jacket.  It had a label with his name on it and he took it.  The City believed the jacket had been stolen and commenced an investigation.  Mr. Francescutti did not tell anyone he had taken the jacket, and even asked his supervisor on two occasions what was happening.

The City discovered video surveillance evidence that showed Mr. Francescutti holding the jacket. It held an investigation meeting and confronted him with the evidence.  He finally admitted to having taken the jacket.  The City suspended him from employment pending the conclusion of its investigation.

At a second investigation meeting, Mr. Francescutti produced a medical note attributing his behaviour to mental illness and depression and anxiety in particular. The City discharged him from employment for just cause based on his dishonesty and the breach of trust in the employment relationship.

Mr. Francescutti filed a complaint with the BC Human Rights Tribunal alleging discrimination in employment based on mental disability. The City was successful in an application to dismiss the complaint under section 27(1)(c) of the Human Rights Code, based on the Tribunal’s finding that the complaint had no reasonable prospect of success.  The Tribunal member made it clear that she was not making findings of fact in her written decision and simply summarizing the evidence provided by the parties.  The City had obtained its own medical opinion from an occupational health physician who concluded that there was no evidence of a causal link between Mr. Francescutti’s medical documentation and his ability to know the difference between right and wrong and the consequences of his actions.

The Tribunal held that there was no nexus between the termination of Mr. Francescutti’s employment and his mental health issues. The City provided a reasonable non-discriminatory explanation for the termination.  Mr. Francescutti had lied and breached the trust in the employer-employee relationship.  He had admitted to taking the jacket and lying, and stated that he did not know why he did not tell the City he took it.  He did not raise his mental illness until after the City confronted him with the evidence about his theft and gave him notice he may be discharged.  The Tribunal dismissed his complaint pursuant to section 27(1)(c) of the Code.

BC Supreme Court

Mr. Francescutti applied to the BC Supreme Court for judicial review.

The reviewing judge set aside the Tribunal’s decision and remitted the matter to the Tribunal for reconsideration, finding its decision to be patently unreasonable: 2016 BCSC 1191.

The judge concluded that the Tribunal was wrong in holding there was no nexus between the termination of Mr. Francescutti’s employment and his disability. The judge held the Tribunal erred when it relied on the City’s evidence as opposed to Mr. Francescutti’s and made findings of fact which were crucial to its decision in areas where credibility was at issue.  The judge stated that the Tribunal made an error by not considering whether Mr. Francescutti’s evidence, considered in the absence of the City’s contradictory evidence, met the threshold question of whether the complaint had a reasonable prospect of success.

BC Court of Appeal

The City appealed the judicial review decision to the BC Court of Appeal.

The Court of Appeal held that the reviewing judge erred in concluding that the Tribunal based its decision on findings of fact, in finding that key issues of credibility required a hearing, and in failing to provide sufficient deference to the tribunal.

The Court noted that it is not for the reviewing court to “re-evaluate the evidence before the Tribunal”, and stated that “[e]ven if the court would have come to a different conclusion on the evidence before the Tribunal, this does not mean that the decision is patently unreasonable”.

The Court identified the appropriate standard of review of the judicial review decision as correctness and determined the reviewing judge had made several errors.

According to the Court, the judge applied the wrong test under section 27(1)(c) of the Code in suggesting that “the Tribunal did not assess whether, if the evidence and allegations advanced in Mr. Francescutti’s case were proven true, his complaint had a reasonable prospect of success”.

Under section 27(1)(c), the Tribunal was not required to assess the allegations made and evidence put forward by Mr. Francescutti in the absence of other evidence. The Tribunal is required to assess the whole of the evidence provided by the parties to determine if there is a reasonable prospect the complaint will succeed.  This was precisely what the Tribunal member did.

The reviewing judge also made an error in holding that the Tribunal member incorrectly made findings of fact. The Court held that the Tribunal considered the evidence presented by the parties, none of which established a basis, beyond the realm of conjecture, to support a nexus between Mr. Francescutti’s mental health issues and his discharge.  The Tribunal member was entitled to assess the evidence and conclude there was no reasonable possibility that Mr. Francescutti could establish the requisite nexus.  In coming to her conclusion, she did not rely on any of the disputed facts.  Rather, she relied on admitted facts including the fact that Mr. Francescutti took the jacket, lied about his misconduct for approximately a month and only admitting to it when confronted with the video evidence.

As well, the reviewing judge erred in holding that the Tribunal could not weigh credibility at the dismissal stage, and in finding that there were key credibility issues which required a hearing. The Court held that there was no conflict in the medical evidence.  The only conflict was the relevance of Mr. Francescutti’s view that his conduct was related to his mental health, and none of the medical evidence supported that contention.  The Court stated:

As noted in Bell, almost every complaint will invoke a credibility question, and the gate-keeping function under s. 27(1)(c) requires an assessment of evidence.  If there are foundational or key issues of credibility, then the matter must go to a hearing.  The reviewing judge here, however, erred in making his own assessment of whether the evidence demonstrated key credibility issues.

Finally, the Court concluded that the reviewing judge did not accord the Tribunal’s decision the high degree of deference it deserved. Instead, the judge reweighed the evidence, drew inferences from the evidence, and substituted his view for the Tribunal’s.  That was not right.