Mind Your Manners: B.C. Human Rights Tribunal Orders Complainant to Pay $3,000 in Punitive Costs for Improper Conduct in the Complaint Process
January 10, 2024
January 10, 2024
Previously printed in the LexisNexis Labour Notes Newsletter.
In Dr. A. v. Health Authority, 2023 BCHRT 10, the B.C. Human Rights Tribunal ordered the complainant, Dr. A, to pay $3,000 in punitive costs for contravening the rules and orders of the Tribunal and also for engaging in improper conduct during the complaint process.
Dr. A. had filed a complaint against the respondents alleging discrimination in employment on the grounds of race, ancestry and place of origin. He alleged that his ethnicity was a factor in negative feedback he had received from his supervisors, and complained that the respondent health authority had withdrawn its sponsorship of him.
In the pre-hearing stages of the proceeding, Dr. A. received at least five warnings from the Tribunal. He repeatedly used foul and offensive language in his communications, including, for example, by:
- calling the Tribunal and the Tribunal Member “corrupt and incompetent” and “pathetic”;
- threatening to cause legal counsel and the respondents “unimaginable humiliation”;
- referring to the Tribunal and the other parties and their counsel with terms like “petty circus”, “scumbags”, “evil liar”, “corrupt incompetent waste of time circus”, “fascists and Nazis and their facilitators”, “scumbag racist” and “mockery of justice”; and
- stating “my so-called threats of exposing the Tribunal to [the] public are actually a reality and the Tribunal will one day have to deal with public scrutiny over its affairs and conduct”.
Dr. A. also repeatedly ignored and refused to comply with the Tribunal’s order for him to disclose certain documents and its subsequent order which prohibited him from communicating with the Tribunal by way of e-mail. In response to the Tribunal’s order around the method of communication, Dr. A. declared that he did not consider himself bound by the order and would continue to communicate using e-mail.
The respondent health authority made an application for costs under Rule 4 of the Tribunal’s Rules of Practice and Procedure. Rule 4 provides that participants must comply with the rules and orders or directions of the Tribunal and, if a participant fails to comply with the rules or a decision, order or direction made under the rules, the Tribunal may order costs against that participant under section 37(4) of the B.C. Human Rights Code.
Under section 37(4), the Tribunal has the discretion to award costs against a party that has engaged in “improper conduct” during the complaint process. This includes “any conduct which has a significant impact on the integrity of the Tribunal’s processes, including conduct which has a significant prejudicial impact on another party”. The purpose of a costs award is punitive and serves to sanction a party engaging in improper conduct. It also serves to deter others from engaging in similar conduct.
The Tribunal found that Dr. A. failed to comply with the order around document disclosure and his repeated refusal to comply constituted improper conduct. The Tribunal was satisfied that Dr. A. was sufficiently aware of his disclosure requirements under the order and the consequences of failure to comply. Further, his ongoing failure to disclose all arguably relevant documents in his possession or control had interfered with the Tribunal’s process.
The Tribunal also found that Dr. A.’s rude and disrespectful communications constituted improper conduct and were contrary to Rule 7(4) of the Rules of Practice and Procedure. Rule 7(4) requires participants to treat others with courtesy and respect. Dr. A. had continued to attack the Tribunal and others, including legal counsel, in spite of multiple warnings that his communications were inappropriate.
The Tribunal held a costs award of $3,000 to be appropriate in all the circumstances.
This case demonstrates that an application for costs can be a useful tool for employers that are dealing with a difficult complainant who refuses to comply with the Tribunal’s orders and insists on engaging in improper conduct.
While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.