Prosko v. District of Taylor (No. 2), 2024 BCHRT 207
Date Issued: July 17, 2024
File: 18287/CS-001020
Indexed as: Prosko v. District of Taylor (No. 2), 2024 BCHRT 207
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Laura Prosko
COMPLAINANT
AND:
District of Taylor
RESPONDENT
REASONS FOR DECISION
Tribunal Member: Kathleen Smith
On their own behalf: Laura Prosko
Counsel for the Respondent: Debra Rusnak
Date of Hearing: June 13 to 15, 2023
Written Submissions Completed: January 11, 2024
Location of Hearing: Video conference
I INTRODUCTION
[1] Laura Prosko brought a human rights complaint against her former employer, the District of Taylor [the District], and one of her former co-workers, Ryan Nelson. In her initial complaint, Ms. Prosko alleged that Mr. Nelson sexually harassed her, the District did not respond appropriately when she reported it, and Mr. Nelson later influenced the District’s decision to terminate her employment. Ms. Prosko alleged that all the above conduct was discrimination in employment based on sex contrary to s. 13 of the Human Rights Code.
[2] The District and Mr. Nelson submitted a response to the complaint, denying discrimination. They subsequently applied to dismiss the complaint without a hearing. The Tribunal granted the application in part, dismissing the complaint against Mr. Nelson as a respondent and dismissing the allegations related to sexual harassment and the termination of employment: Proskov. The District of Taylor and another (No. 1), 2020 BCHRT 152 [Prosko No. 1]. The only remaining allegation was whether the District discriminated against Ms. Prosko by failing to adequately respond to her sexual harassment complaint. This is the only issue that proceeded to a hearing.
[3] I heard this case over three days. The issue I must decide is whether the District’s response to Ms. Prosko’s report of workplace sexual harassment amounts to discrimination based on sex contrary to s. 13 of the Code. For the reasons set out below, I conclude that there was no discrimination and dismiss the complaint.
[4] Following the hearing, the District filed an application seeking costs against Ms. Prosko for improper conduct during the course of the complaint. I address the costs application in this decision and explain why I have ordered Ms. Prosko to pay $500 to the District.
[5] I begin this decision with an overview of the evidence before me, then turn to the relevant legal principles and apply them to the facts of this case. The last part of the decision addresses the costs application.
II EVIDENCE
[6] I have reviewed and considered all the evidence admitted by the parties at the hearing, which includes witness testimony and documents. In this decision, I recount only that evidence required to explain my decision.
A. Witnesses and documents
[7] Four witnesses testified at the hearing. Laura Prosko was the only witness for her case. The District called three witnesses: the Districts’ Directors of Corporate Services and Operations, as well as the former Mayor.
[8] Ms. Prosko worked as the District’s Director of Community Services for approximately five years between September 2013 and July 2018. She reported to the District’s Chief Administrative Officer [CAO] until May 1, 2018. Following the departure of the CAO, Ms. Prosko reported to an interim management team for the remainder of her employment. Ms. Prosko was a member of the District’s Health and Safety Committee during her employment.
[9] Ryan Nelson works as the District’s Director of Operations. Mr. Nelson was at the centre of Ms. Prosko’s sexual harassment allegations and Ms. Prosko named him as a respondent in the original complaint. During Ms. Prosko’s employment, Mr. Nelson was a member of the District’s Health and Safety Committee. From May 1, 2018, until the end of Ms. Prosko’s employment, Mr. Nelson was one of three members of the interim management team.
[10] Tyla Pennell worked as the District’s Corporate Officer and Deputy Financial Officer during Ms. Prosko’s employment. She was also co-chair of the District’s Health and Safety Committee. From May 1, 2018, until the end of Ms. Prosko’s employment, Ms. Pennell was part of the interim management team with Mr. Nelson and one other District employee. Ms. Pennell continues to work for the District and currently holds the position of Director of Corporate Services.
[11] Robert Fraser was the District’s Mayor during Ms. Prosko’s employment. He is currently the mayor of another municipality.
[12] The parties admitted a number of documents into evidence, including copies of District policies and procedures, meeting minutes, correspondence, materials related to an external investigation, and personal notes.
B. Credibility and Reliability
[13] Where there was specific disagreement on the evidence, I set out my findings and reasons in this decision. Where necessary to do so, I have assessed credibility and considered factors such as the witness’ powers of observation, opportunity for knowledge, judgment, memory, and ability to describe clearly what they saw and heard. I have also considered whether each witness’ evidence was in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”: Faryna v. Chorny , [1952] 2 D.L.R. 354 (B.C.C.A.) at 357; Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186.
[14] In general, where the parties’ evidence differs, I have preferred the evidence of the District’s witnesses, particularly where it is supported by documentation. Ms. Prosko had a poor memory of events and her testimony tended to lack specificity including dates and locations. She also had difficulty recalling the sequence in which events occurred. While the District’s witnesses also had challenges remembering details, their evidence was consistent with each other, and they were more likely than Ms. Prosko to acknowledge when they did not remember something.
[15] Given the considerable passage of time since the relevant events, I have generally given additional weight to evidence that is supported by reliable and contemporaneous documentation in this case.
C. Background
[16] The District is a small municipality located in northeastern British Columbia. It is governed by a municipal council consisting of an elected Mayor and councillors. The elected council sets the strategic plan and goals for the District. The CAO is responsible for the administration of the District and leads the senior management team in implementing council’s vision.
[17] Ms. Prosko, Ms. Pennell, and Mr. Nelson were all members of the senior management team. When the CAO left her position suddenly in May 2018, the Mayor and council appointed an interim management team that was comprised of Mr. Nelson, Ms. Pennell, and one other member.
[18] The District has a Health and Safety Committee [the Committee]. Ms. Pennell, Ms. Prosko, and Mr. Nelson were all members of the Committee.
[19] The Committee developed a Workplace Harassment and Bullying Policy [Harassment Policy] for the District. When Ms. Prosko raised a concern about workplace sexual harassment, the 2016 version of the Harassment Policy was in place. The Harassment Policy prohibits workplace bullying and harassment, provides definitions, sets out roles and responsibilities, and contains a complaint and implementation process.
[20] I provide the above information about the Committee and Harassment Policy to situate the complaint allegations in the District’s organizational and reporting structure. The complaint before me is strictly about the District’s response to Ms. Prosko’s report of discrimination in the form of sexual harassment. For this reason, the remainder of this chronology focuses on the parties’ evidence about who, when and how Ms. Prosko reported her concerns, and what the response was.
[21] The starting place for Ms. Prosko’s complaint is the cougar comment. There is no dispute that during a senior management meeting in September 2017, Mr. Nelson referred to Ms. Prosko as a cougar. In Prosko No. 1, the Tribunal took judicial notice that the term “cougar” – in this context – refers to a middle-aged woman who dates significantly younger men. The Tribunal concluded that the cougar comment did not rise to the level of sexual harassment under the Code and dismissed that part of the complaint.
1. Report and response to the cougar comment: CAO
[22] The parties agree that Ms. Prosko reported her concern about the cougar comment to the CAO. They disagree on whether the CAO took appropriate action in response. The CAO, who left the District in May 2018, did not participate in the hearing; therefore, I do not have any direct evidence from her.
[23] Ms. Prosko says that she talked to the CAO shortly after Mr. Nelson made the cougar comment but does not recall when that was. The District says that, based on the surrounding circumstances, the conversation between Ms. Prosko and the CAO would have occurred in November 2017, approximately two months after the incident. Nothing in this decision turns on the precise timing of the conversation. The evidence is clear that Ms. Prosko approached the CAO some days or weeks after the incident and told her she was upset about the cougar comment. Below, I summarize the parties’ evidence regarding the CAO’s response.
[24] There is no dispute that during the conversation, the CAO encouraged Ms. Prosko to raise her concerns directly with Mr. Nelson. Ms. Prosko testified that she interpreted the CAO’s response as unsupportive and putting the burden on her to deal with an uncomfortable situation. The Respondents say that the CAO’s approach was consistent with the first step of the complaint process set out in the Harassment Policy. For context, I reproduce Step 1 below:
Step 1: Bullying or Harassment has occurred and an attempt has been made to resolve the issue or concern.
The provisions for investigation listed below will not be implemented unless the following conditions have been met:
1. The complainant has asked the accused to stop the offending behavior; and
• If the complainant feels intimidated by the accused and unable to approach them, they must report the incident(s) to either your Supervisor or the Supervisor of the accused to ask that the Supervisor attempt to stop the unwelcome behavior as reported by the complainant.
2. The offending behaviour continues after the direct Supervisor of the accused has been informed of the reported incidents and has asked the accused to cease and desist.
[as written]
[25] The District’s evidence regarding the outcome of the conversation with the CAO came from Mr. Nelson. He testified that the CAO called him to a closed-door meeting to discuss the cougar comment in November 2017. He said that the CAO told him Ms. Prosko was upset, the comment was inappropriate, and he needed to address it with Ms. Prosko directly. According to Mr. Nelson, he told the CAO that he agreed he should not use this type of language and committed to talk to Ms. Prosko.
[26] Mr. Nelson testified that, based on the recommendation of the CAO, he approached Ms. Prosko in November 2017 to discuss the strain in their working relationship. His evidence was that he went to the building where Ms. Prosko worked, they met, and had a good conversation that ended well. According to Mr. Nelson, neither of them raised the cougar comment. He described it as the “elephant in the room.” Mr. Nelson testified that he did not apologize to Ms. Prosko at the time.
[27] Ms. Prosko agrees that she and Mr. Nelson had a conversation about the strain in their working relationship; however, she disputes that Mr. Nelson came to talk to her in November 2017. She says that they spoke about the cougar comment some months later in his office. At the same time, Ms. Prosko agrees that she does not have a good memory about when the various conversations took place or the sequence in which they occurred.
2. Email and Meeting with Tyla Pennell: December 2017
[28] The District produced a copy of an email that Ms. Prosko sent to Ms. Pennell concerning the cougar comment. Ms. Prosko did not initially recall when she sent it; however, when presented with a copy of the email, she agreed that she sent it on December 11, 2017, approximately two months after the cougar comment. The subject line of the email is “Health and safety question – confidential.” Below, I reproduce the body of the email:
During our strategic planning session (you were away sick that day) Ryan called me a cougar. It was very uncomfortable and inappropriate. I was upset by the fact we were working on strategic goals and something of this nature was said. (And said directed to me and the manager hosting the strategic planning session also heard and said nothing).
I don’t like to bring up these things as it’s something I hoped was a “joke”. But this type of joking came up again. Are these types of jokes appropriate? I’ve mentioned before we need respectful workplace courses. Perhaps that’s something you could look into for 2018 for the entire organization?
(As a side note, I don’t feel that he speaks nicely to [CAO] either).
What sort of recommendation (as the health and safety chair) do you have for addressing these types of comments? And given everything in the media about inappropriate behaviour on behalf of (some) men, do you think our organization should have a policy regarding sexist comments?
I would like this email to remain between me and you as I’m looking for your opinion. I’m not interested in documenting this or discussing it with anyone else. I know you’re taking HR courses so with reworking our on-boarding processes, there are issues that people can either shrug off or they can cause liabilities for an organization.
[29] The parties agree that Ms. Prosko and Ms. Pennell met either the next day or the day after to discuss the email. Ms. Prosko’s testimony about their conversation was general, focusing more on how she felt about it, rather than what was said. Ms. Prosko testified that she felt Ms. Pennell was dismissive and brushed off her concerns. Ms. Prosko did not recall any other details of the conversation. She also testified that, in her view, Ms. Pennell did not follow the Harassment Policy.
[30] Ms. Pennell had a much clearer recollection about her response to Ms. Prosko’s email, including the conversation they had about it. Ms. Pennell says she heard about the cougar comment for the first time when she received the email. The parties agree Ms. Pennell was not at the meeting when the comment was made. Ms. Pennell testified that she was concerned as soon as she saw the email, agreeing that the cougar comment was inappropriate. She said this was why she met with Ms. Prosko right away.
[31] Ms. Pennell described her response as offering support and encouraging Ms. Prosko to talk to Mr. Nelson directly. Ms. Pennell testified that she agreed with Ms. Prosko that the comment was inappropriate and suggested that Ms. Prosko have a conversation with Mr. Nelson to establish boundaries in their relationship and communication. She testified that she suggested this as a first step, but that she also told Ms. Prosko that she could file a formal complaint. According to Ms. Pennell, there was a container on the wall outside her office with the complaint forms and she recalled gesturing towards the wall outside her office. Ms. Pennell testified that she offered to help Ms. Prosko fill out the form but Ms. Prosko did not want to proceed with the formal reporting process.
[32] When Ms. Pennell was asked why she suggested that Ms. Prosko have a conversation with Mr. Nelson, she testified that there were two main reasons. First, because Ms. Prosko commented that she hoped the comment was a joke. Second, because Ms. Prosko and Mr. Nelson were peers. Ms. Pennell testified that she believed there was an opportunity to build up the relationship between them if they could agree on how to communicate, set boundaries, and address unwelcome behaviour. Ms. Pennell also explained that her response was consistent with the first step in the Harassment Policy, which is to ask the accuser to stop the offending behaviour.
[33] Ms. Pennell’s recollection of the conversation was that Ms. Prosko seemed receptive to having a conversation with Mr. Nelson and nothing arose during the conversation to suggest she was unable to do so. Ms. Pennell testified that the meeting ended in a respectful way, and she did not hear from Ms. Prosko about the cougar comment again until six months later, when she mentioned it in a June 2018 letter. Ms. Pennell testified that she honoured Ms. Prosko’s request to keep the email and conversation confidential and for that reason did not speak to anyone else about it.
[34] When it was put to Ms. Prosko in cross-examination that Ms. Pennell would say that she acknowledged the cougar comment was inappropriate, Ms. Prosko did not dispute this. When it was put to Ms. Prosko that Ms. Pennell encouraged Ms. Prosko to raise her concerns directly with Mr. Nelson, Ms. Prosko was uncertain. She testified that she could only remember that this was the advice the CAO had given her. When it was put to her that she and Ms. Pennell brainstormed about how to talk to Mr. Nelson, including about setting boundaries, Ms. Prosko denied it. Ms. Prosko specifically denied that Ms. Pennell would have used the word “boundaries” in their conversation. Similarly, Ms. Prosko denied the proposition that Ms. Pennell communicated that she was there to support Ms. Prosko. Ms. Prosko was adamant that Ms. Pennell never offered her support. When it was put to her, Ms. Prosko agreed that Ms. Pennell offered that talking with the CAO was an option. Ms. Prosko denies that Ms. Pennell told her she could file a complaint under the Harassment Policy and where to find the forms. Ms. Prosko specifically denies that Ms. Pennell gestured to the bulletin board where the forms are kept.
3. Meeting between Ms. Prosko and Mr. Nelson: May 2018
[35] In her testimony, Ms. Prosko recalled a conversation in Mr. Nelson’s office where they talked about their professional relationship, and he asked for a “do-over.” She could not recall when that conversation occurred. She thought that she went to talk to him after meeting with the CAO. Ms. Prosko was more certain in her evidence that Mr. Nelson did not apologize to her during the meeting, and, in general, she felt his response was not good enough.
[36] Mr. Nelson testified that Ms. Prosko came to his office on May 7, 2018, to discuss something else and the cougar comment came up. His evidence was that he apologized at least twice, they agreed to a “do-over,” and the conversation ended amicably. Mr. Nelson provided an excerpt from his day timer for Monday, May 7, 2018, with handwritten notes. The first two paragraphs of his notes refer to unrelated matters, and the last paragraph refers to a meeting with Ms. Prosko. Mr. Nelson wrote, “Had discussion w Laura about past occurrences (cougar comment). Apologized & found common ground to move forward.”
4. Letter to Ms. Pennell: June 2018
[37] The District produced a copy of a letter that Ms. Prosko delivered to Ms. Pennell. When Ms. Prosko was shown the letter at the hearing, she agreed that she wrote it, but did not remember how or when she sent it to Ms. Pennell.
[38] The letter relates to concerns Ms. Prosko had about the interim management team that was constituted after the CAO left the District in May 2018. The letter includes a reference to the cougar comment. I summarize the contents of the letter below.
[39] The letter is addressed to Ms. Pennell and signed by Ms. Prosko. In the letter, Ms. Prosko tells Ms. Pennell that she wants to exclude Mr. Nelson and the other member of the interim management team from any decisions about herself and her department . She writes that she is only comfortable dealing with Ms. Pennell. Regarding Mr. Nelson, Ms. Prosko writes that she wants to exclude him, “as he called me a ‘cougar’ and there have been other incidents where he makes me feel uncomfortable on both a personal and professional level. And after reporting this verbally, nothing was done.” Ms. Prosko did not provide information or details about any incidents other than the cougar comment. She closed her letter by stating that she is submitting the letter so there is a record of her concerns, but at this time, “I would like to keep this between me and you.”
[40] When asked about the letter, Ms. Prosko testified that she trusted Ms. Pennell at the time and thought she would “do the right thing” for her and act in her best interest. She did not explain further.
[41] When Ms. Pennell was asked about the letter, she testified that she received the letter from Ms. Prosko in June 2018. Ms. Pennell said that at the time she received the letter, she was not aware of any further situation or comments regarding Mr. Nelson after September 2017 when he made the cougar comment. She understood the point of the letter to be that Ms. Prosko did not want Mr. Nelson to be involved in any decisions relating to her and her program. She also testified that she understood Ms. Prosko simply wanted to document her concern. Ms. Pennell testified that she put the letter on Ms. Prosko’s confidential personnel file as requested.
5. Meeting with the Mayor: June 2018
[42] The parties agree that Ms. Prosko and Mayor Fraser had a meeting where she brought up the cougar comment. Ms. Prosko and Mayor Fraser both estimated that the meeting occurred in late June 2018. The parties disagree on whether the Mayor took appropriate steps following the disclosure of the cougar comment in the meeting.
[43] During her testimony about this meeting, Ms. Prosko described being in tears and telling the Mayor that “she could not take it anymore” and that she wanted to quit her job. She said that during the conversation she told the Mayor that Mr. Nelson had called her a cougar and asked her about contraceptives. She also testified that she told him Ms. Pennell had done nothing about it. In Ms. Prosko’s view, the Mayor was dismissive, and did not take her concerns seriously. According to Ms. Prosko, the Mayor responded by referring to Mr. Nelson as a “sewer rat.” Ms. Prosko testified that she expected the Mayor to look at the Harassment Policy and initiate an investigation but instead he did nothing.
[44] In his testimony, the Mayor agreed that Ms. Prosko raised the cougar and contraceptive comments although he said it was not the main reason for their conversation. His evidence was that it came up in the course of a lengthier conversation about other issues in the District following the departure of the CAO, including the interim management structure. The Mayor testified that the interim management team felt that Ms. Prosko was not supporting them, and the purpose of the meeting was to encourage her to support the team.
[45] The Mayor testified that when Ms. Prosko brought up the cougar comment he sensed this was an old complaint, he made a mental note to talk to senior management about it and did so early the following week. The Mayor testified that he spoke to Ms. Pennell soon after and she told him that senior management had been made aware of the cougar comment, had dealt with it at the time, and it had been resolved. With respect to the alleged sewer rat comment, the Mayor denied that he would have made such a comment. He testified that it would not have made sense for him to make a derogatory comment about a person who was part of the interim management team that he was asking Ms. Prosko to support.
[46] Ms. Pennell’s evidence was consistent with the Mayor’s. She testified that the Mayor approached her after he had met with Ms. Prosko and asked if she had heard about the cougar comment. She testified that she confirmed that she had, and told him that, to her knowledge, the issue had been resolved at the time. When asked what she meant by resolved, Ms. Pennell testified that she had not heard anything further from Ms. Prosko after they met in December, and no formal complaint had been submitted. Ms. Pennell also said she was aware there had been a conversation between Ms. Prosko and Mr. Nelson about working together respectfully and had seen them working together on a weekly basis. In short, Ms. Pennell interpreted the situation as resolved.
6. Investigation: October 2018
[47] The District terminated Ms. Prosko’s employment in July 2018. She subsequently submitted a complaint to WorkSafeBC regarding the termination of her employment.
[48] In response to that complaint, the District hired an external investigator [the Investigator]. The investigator was asked to answer the following questions:
Was Ms. Prosko subject to inappropriate conduct or comment by a person that the person knew or reasonably ought to have known would cause Ms. Prosko to be humiliated or intimidated?
If so, did the District of Taylor appropriately respond to this conduct or comment in accordance with its own Workplace Bullying and Harassment Policy and WorkSafeBC’s bullying and harassment policies?
[as written in the Investigator’s letter dated October 12, 2018]
[49] The Investigator interviewed five people: Ms. Prosko, Mr. Nelson, Ms. Pennell, the former CAO, and the Mayor. In addition, he considered a number of documents including text messages, emails, Mr. Nelson’s journal entries, the Harassment Policy, and Health and Safety Committee meeting minutes.
[50] The Investigator concluded that the cougar comment was bullying behavior but that the District responded appropriately. His key findings include the following:
a. The CAO cautioned Mr. Nelson on his use of language.
b. Mr. Nelson was aware that Ms. Prosko was offended by the cougar comment but did not apologize until much later.
c. The CAO and Ms. Pennell encouraged Ms. Prosko to speak with Mr. Nelson about her concerns but she did not do so until much later.
d. Ms. Pennell informed Ms. Prosko that she could file a complaint, but she “intentionally” chose not to.
[51] The report also included several recommendations to the District, including training and notice to employees about the Harassment Policy.
[52] In addition to the report, the parties put copies of Ms. Prosko’s interview notes into evidence at the hearing.
[53] Ms. Prosko filed her complaint with the Tribunal in August 2018.
III ANALYSIS AND DECISION
[54] The issue before me in this case is a narrow and specific one: Did the District discriminate against Ms. Prosko in her employment based on sex by failing to adequately respond to her report of sexual harassment (i.e., the cougar comment)?
A. Legal Principles
[55] I begin my analysis by setting out the relevant legal principles.
[56] The Code prohibits discrimination with a sufficient connection to a protected area, in this case employment: British Columbia Human Rights Tribunal v. Schrenk , 2017 SCC 62 [Schrenk] at para. 67. A complainant must prove an adverse impact regarding a protected area in which a protected characteristic is a factor, in this case sex: Moore v. British Columbia (Education) , 2012 SCC 61 [Moore] at para. 33. Employers are primarily responsible for ensuring a discrimination-free workplace for their employees: Schrenkat para. 56.
[57] The Tribunal has found that a failure to adequately or appropriately respond to an internal complaint of discrimination may itself amount to discrimination: Jamal v. TransLink Security Management and another (No. 2), 2020 BCHRT 146 at para. 106; Employee v. The University and another (No. 2),2020 BCHRT 12 at para. 272; and Beharrell v. EVL Nursery , 2018 BCHRT 62 at para. 21.
[58] These cases set out that the Coderequires a reasonable and appropriate response to a complaint of discrimination, considering factors such as whether the respondent had an anti-discrimination policy and complaint mechanism in place, whether the respondent treated the complaint seriously (i.e., dealing with it promptly and sensitively), and whether the resolution was reasonable in the circumstances. A failure to respond adequately may independently cause a complainant harm. Therefore, to set out a possible contravention of the Code, a complainant must identify arguable deficiencies in the respondent’s response to a complaint and the adverse impact of those alleged deficiencies: Mr. C. v. Vancouver Coastal Health Authority and another , 2021 BCHRT 22 at para. 119.
[59] In this case, Ms. Prosko argues that she has met all three parts of the Moore test, namely, she has a protected characteristic, she experienced an adverse impact, and her protected characteristic was a factor in an adverse impact. Much of Ms. Prosko’s final submission focuses on the adverse impacts related to the termination of her employment, including allegations that Ms. Pennell framed her, and that Ms. Pennell and Mayor Fraser colluded and plotted to get rid of her. Because the Tribunal dismissed the termination allegation in Prosko No. 1, I have not considered those parts of her argument.
[60] Ms. Prosko does not make specific arguments regarding an employer’s obligation under the Codeto investigate a complaint of discrimination. However, Ms. Prosko makes clear that, in her view, the evidence shows that she asked for help from several people and none of them helped or protected her. During the hearing, Ms. Prosko stated that she “expected more” from the CAO, Ms. Pennell, and Mayor Fraser. In her view, they did not follow the District’s Harassment Policy or Code of Conduct. As I understand Ms. Prosko, she expected the District to “stand up for her” by initiating an investigation into Mr. Nelson’s conduct, and the failure to do so amounts to discrimination.
[61] The District disagrees and argues that the evidence shows that it responded promptly, sensitively, and reasonably to Ms. Prosko’s concern about the cougar comment. Specifically, the District says that the CAO and Ms. Pennell responded in accordance with the Harassment Policy and provided Ms. Prosko with reasonable and appropriate options considering her position, the relationship between her and Mr. Nelson, and the nature of the incident. The District also argues that the Mayor acted reasonably in all of the circumstances, including his role, and that Ms. Prosko told him about the cougar comment approximately nine months after the incident, and after both the CAO and Ms. Pennell had already responded.
[62] In short, the parties disagree on whether there was any deficiency in the District’s response to Ms. Prosko’s complaint that could support a finding of discrimination. They also disagree on whether she experienced any adverse impacts flowing from the alleged deficiencies. The parties further disagree on whether there is a link between the alleged adverse impacts flowing from the alleged deficiency and Ms. Prosko’s protected characteristic of sex.
B. Did Ms. Prosko experience an adverse impact in her employment connected to her sex?
[63] As set out above, Ms. Prosko argues that the District failed to adequately address her concerns about sexual harassment when she raised them. Much of Ms. Prosko’s testimony on this issue focused on Ms. Pennell. For this reason, I begin with Ms. Pennell’s response to the complaint on behalf of the District.
[64] During her testimony, Ms. Prosko made it clear that, in her view, Ms. Pennell’s response was neither reasonable nor appropriate. She testified that, in her view, Ms. Pennell ought to have taken independent action based on the contents of her December 2017 email. She gave examples of action as including an investigation, mediation, or other steps.
[65] Although Ms. Prosko was not explicit in her final submission about the adverse impact, I understand her to say that she felt unsupported and unprotected.
1. Did the District act reasonably and appropriately when Ms. Prosko emailed and met with Ms. Pennell in December 2017 regarding the cougar comment?
[66] Ms. Prosko has not persuaded me that there was any deficiency in how Ms. Pennell responded to the December 2017 email and meeting. On the contrary, I find that she acted reasonably and appropriately in all of the circumstances by presenting options and offering support. Key aspects of the circumstances at the time include Ms. Prosko’s request for confidentiality, Ms. Prosko’s role, including as a member of the senior management team and the Committee that developed and revised the Harassment Policy, and the terms of the Harassment Policy itself.
[67] I begin with the policy. I do not accept Ms. Prosko’s assertion that Ms. Pennell failed to follow the District’s Harassment Policy. As set out above, the first step in the process requires a complainant to ask the accused to stop the offending behaviour. If the complainant feels intimidated or unable to approach the accused, they must report the incident to their supervisor or the supervisor of the accused. Here, Ms. Pennell encouraged Ms. Prosko to speak to Mr. Nelson directly about his behaviour. Ms. Prosko testified that she felt uncomfortable to speak to him directly; however, there is no evidence from which to conclude that she was unable to speak to him due to intimidation or another reason, or that she expressed any such apprehension to Ms. Pennell. I also accept that Ms. Pennell gave Ms. Prosko the option of talking to the CAO who was Ms. Prosko and Mr. Nelson’s supervisor, and to file a formal report.
[68] There is no dispute that, under the Harassment Policy, the provision for an investigation will not be implemented unless the conditions of Step 1 have been met. If a complaint moves to Step 2, the process requires a complainant to submit a Bullying and Harassment Reporting form to either their direct Supervisor, Human Resources, a senior manager, or the CAO for investigation. Step 3 is where an investigation team is established.
[69] There is no dispute that Ms. Prosko requested Ms. Pennell to keep her email and concern confidential. The subject line of the email contains the word “confidential” and the email closes with Ms. Prosko stating that she would like the email to remain between the two of them. I can find nothing inappropriate with Ms. Pennell maintaining the confidentiality Ms. Prosko requested.
[70] Ms. Prosko did not make a formal report under the Harassment Policy that could have triggered an investigation. During the hearing, Ms. Prosko repeatedly stated that she did not think she had to file a formal complaint, and that she expected somebody else to do that, including the Committee. In her view, the December 11 email should have prompted a formal investigation. For the following reasons, I do not accept these arguments.
[71] As I understand Ms. Prosko’s position, Ms. Pennell had the option to initiate an investigation under the District’s Code of Conduct and/or take other steps without the need for a formal complaint. In fact, Ms. Prosko referred to the District’s Code of Conduct several times during the hearing as another avenue of recourse. However, I did not find this persuasive. The Harassment Policy is the specific workplace policy aimed at preventing discrimination, personal harassment and bullying in the workplace. In fact, the Code of Conduct makes specific reference to the Harassment Policy as the avenue for recourse where the unacceptable conduct is harassment of a fellow employee.
[72] Ms. Prosko has not asserted that the Harassment Policy was flawed or incapable of handling and resolving her sexual harassment complaint. She has also not argued or produced evidence to suggest that the District’s Harassment Policy was ineffective or inappropriate in the circumstances of her complaint against Mr. Nelson. Ms. Prosko asked Ms. Pennell to keep her concern about the cougar comment confidential and declined to file a complaint under the Harassment Policy. She did not raise the cougar comment with Ms. Pennell again until June 2018, more than six months later. She also did not report any further incidents of sexual harassment.
[73] The evidence shows Ms. Prosko was a member of the Committee and participated in the process where the Harassment Policy was revised in 2016, the year before the cougar comment. She also would have reviewed the changes as a member of the senior management team. The District provided minutes from two Committee meetings that show Ms. Prosko attended meetings where they specifically discussed relevant aspects of the Harassment Policy.
[74] The minutes from the May 12, 2016, meeting show that the Committee discussed the Harassment Policy and recommended that a complainant should be able to report the incident to their own supervisor and/or to the supervisor of the accused.
[75] The minutes from the June 9, 2016, meeting indicate that management supports the updates to the Harassment Policy, including that third parties cannot submit a report on behalf of someone else but can support and encourage an individual who is subject to bullying or harassment to submit a formal report.
[76] Finally, I find it significant that when Ms. Prosko was asked about it during cross-examination, she acknowledged that she knew she could request a formal investigation by filing a report form but did not do so.
[77] In all these circumstances, I do not accept Ms. Prosko’s assertion that Ms. Pennell and the District did not investigate her concern as required by the Harassment Policy. I also do not accept that Ms. Pennell and the District failed to advise her of the option to file a formal complaint that could trigger an investigation. Rather, I find that Ms. Pennell presented all of the options to Ms. Prosko as set out in the Harassment Policy starting with the suggestion to speak to Mr. Nelson to address the conduct directly, but also that she had the option to file a formal complaint and/or bring her complaint to the CAO who was the supervisor for both Ms. Prosko and Mr. Nelson.
[78] Of course, the Tribunal’s task is not to determine whether the District followed its own policies. The Tribunal’s task is to determine whether the District breached the Code by failing to respond appropriately to Ms. Prosko’s complaint. There could be circumstances where following a harassment policy was inappropriate and perpetuated discrimination. This is not such a case. Here, not only did Ms. Prosko know the steps set out in Harassment Policy – because she was involved in developing them and Ms. Pennell reminded her of her options – but she has not suggested any reason why the steps should have been altered in her specific circumstances.
2. Did the District act reasonably and appropriately in June 2018 when Ms. Prosko mentioned the cougar comment to the Mayor?
[79] As set out above, Ms. Prosko brought up the cougar comment during a meeting with the Mayor.
[80] In my view, the Mayor responded reasonably and appropriately considering his role as an elected official and not a member of the District’s management team. The Mayor testified that he promptly brought the issue to Ms. Pennell, a member of the interim management team, who assured him that it had been dealt with at the time Ms. Prosko raised it. Considering Ms. Pennell’s role and the timing of the conversation, I can find nothing deficient in Ms. Pennell’s response and the Mayor accepting that response. Ms. Prosko has not adduced any evidence to persuade me otherwise. As mentioned earlier, Ms. Prosko appears to be more concerned with the role the Mayor and Ms. Pennell played in the termination of her employment, which is not an issue before me.
3. Did the District act reasonably and appropriately in June 2018 when Ms. Prosko mentioned the cougar comment in a letter to Ms. Pennell?
[81] I also considered Ms. Prosko’s reference to the cougar comment in her June letter to Ms. Pennell. As mentioned above, Mr. Prosko asked Ms. Pennell to keep her concerns confidential. I do not find anything inappropriate or unreasonable in Ms. Pennell following Ms. Prosko’s request to put it on Ms. Prosko’s personnel file. The uncontradicted evidence before me is that Ms. Pennell honoured that request. I also find it relevant that Ms. Pennell’s uncontradicted evidence is that Ms. Prosko did not raise any further concerns or incidents with her in the six months following their December 2017 meeting, and that she had observed them working together respectfully on a regular basis.
4. Summary
[82] Ms. Prosko has not persuaded me that there was a deficiency in the District’s response to her report of sexual harassment. In these circumstances, I am unable to conclude that she experienced an adverse impact flowing from a deficient process. As I see it, any adverse impact Ms. Prosko says she experienced based on the District’s failure to initiate a formal investigation process is a direct result of her decision not to follow the steps set out in the Harassment Policy, which included approaching her supervisor, the CAO, and/or filing a formal report. Ms. Prosko knew the steps set out in the policy, Ms. Pennell reminded her about them, and Ms. Prosko has not provided any basis on which the Tribunal could conclude that the steps ought to have been altered in her specific circumstances.
[83] The District argues that even if Ms. Prosko had filed a formal complaint there is nothing to suggest the outcome would have been different given the “complaint and implementation process” and “possible results” under the Harassment Policy. I find that it would require speculation to reach this conclusion. However, in determining that there was no deficiency in the process amounting to discrimination, I also found it significant that the uncontradicted evidence before me is that the CAO addressed the issue directly with Mr. Nelson making it clear that the comment was not appropriate and that he needed to address it with Ms. Prosko.
[84] In all of these circumstances, I find that the District did not discriminate against Ms. Prosko on the basis of her sex through deficiencies in its response to the cougar comment. I am satisfied, on a balance of probabilities, that the District took prompt, appropriate, and reasonable steps, starting with the CAO who addressed the issue directly with Mr. Nelson, and including Ms. Pennell’s offer of support and options, consistent with the Harassment Policy.
[85] For all of these reasons, Ms. Prosko has not met her burden to prove a violation of s. 13 of the Code.
IV THE DISTRICTS’ COSTS APPLICATION
[86] On November 23, 2023, the District filed an application under s. 37(4) of the Code seeking an award of costs against Ms. Prosko for improper conduct. The District argues that $3000 is an appropriate amount in costs given the “serious” and “prolonged nature” of Ms. Prosko’s conduct. Ms. Prosko denies engaging in improper conduct and opposes the application.
[87] Section 37(4) of the Codegrants the Tribunal discretion to award costs against a party who has engaged in improper conduct during the complaint process. Improper conduct 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”: McLean v. British Columbia (Ministry of Public Safety and Solicitor General) (No. 3),2006 BCHRT 103 at para. 8. The purpose of a costs award is punitive: Terpsma v. Rimex Supply (No. 3), 2013 BCHRT 3 at para. 102. A costs award serves to not only sanction a party who engages in improper conduct, but to deter others from engaging in similar conduct.
[88] To succeed in its application for costs, the District must establish that Ms. Prosko engaged in improper conduct during the course of the complaint and/or that she violated a rule, decision, order, or direction of the Tribunal: Rule 4(3).
[89] The District argues that Ms. Prosko has engaged in the following categories of improper conduct:
a. Failing to comply with the directions and deadlines of the Tribunal.
b. Failing to adhere to the scope of the complaint.
c. Making scurrilous attacks on the District’s witnesses.
[90] In support of the costs application, the District attached four affidavits with extensive documentation. The attached documents include letters issued by the Tribunal and correspondence between the parties during the period of March 2022 to June 2023. The timeline of alleged improper conduct runs from July 2021, when the Tribunal adjourned the original hearing dates, to July 2023 when Ms. Prosko filed her closing submission. In its reply to the costs application, the District alleges that Ms. Prosko repeated the improper conduct in her response to the costs application, further justifying a costs award.
[91] Ms. Prosko’s main arguments in response to the costs application are as follows:
a. She has spoken the truth about the District and its witnesses.
b. It was the District that engaged in improper conduct, not her.
c. She was respectful of the Tribunal’s timelines and process.
d. She does not have the ability to pay the amount sought by the District.
[92] Ms. Prosko also makes serious accusations against the District and its witnesses throughout her response to the costs application, including accusations of deception; unethical conduct; lying, including lying under oath; corruption; collusion, retaliation, perjury, gaslighting, misleading the Tribunal; and “coaching” witnesses. I will return to these accusations in my analysis below.
A. Did Ms. Prosko engage in improper conduct?
[93] I begin my analysis with the alleged categories of improper conduct.
1. Compliance with Tribunal directions and deadlines
[94] The District argues that, during the course of the complaint, Ms. Prosko repeatedly failed to comply with the Tribunal’s direction and deadlines concerning the disclosure of documents necessary to prepare for the hearing. In the application, the District provides a chronology that sets out times when Ms. Prosko missed deadlines, and the Tribunal granted her extensions and directed her to comply with the new deadlines. The District also sets out the extensive efforts it undertook to address the outstanding documents, including by filing two applications with the Tribunal. The District says that Ms. Prosko’s failure to comply with the Tribunal’s deadlines and directions resulted in the hearing being adjourned twice.
[95] In response to this part of the costs application, Ms. Prosko says that she respects the Tribunal’s timelines and schedules and that she did not “misuse” time or dates. At the same time, she does not dispute that she missed multiple deadlines as set out in the application. She also does not dispute that her failure to meet those deadlines resulted in the District and the Tribunal expending additional resources, and significantly delaying her complaint moving forward. Indeed, the hearing of this matter was originally scheduled for July 2021, but it was not heard until July 2023. The only explanation Ms. Prosko offered is a general statement that she faced challenges in the Tribunal’s process due to the impacts of the alleged poor treatment by the District, including the termination of her employment.
[96] Having considered the whole of the evidence regarding Ms. Prosko’s failure to meet the Tribunal’s deadlines prior to the hearing, I am satisfied that it amounts to improper conduct. Ms. Prosko’s failure to comply with the Tribunal’s deadlines, without reasonable explanation, resulted in significant delay and unnecessarily used up time and resources of the Tribunal and the District. Even when the Tribunal granted Ms. Prosko an extension, she often missed the new deadline, and at times offered vague or no reasons at all.
[97] The District wrote to the Tribunal on several occasion asking the Tribunal to issue Ms. Prosko a warning under s. 27.5 of the Code and filed two applications for the sole purpose of addressing Ms. Prosko’s failure to comply with the Tribunal’s deadlines and directions. The Tribunal advised Ms. Prosko that she must comply with the Tribunal’s Rules, timelines, and directions. The Tribunal warned her about the consequences of non-compliance, and she continued to miss deadlines without reasonable explanation. The Tribunal specifically warned Ms. Prosko that the potential consequences she could face included delay, adjournments, the Tribunal upholding objections to evidence at the hearing, or ordering her to pay costs to the District for improper conduct. In circumstances where Ms. Prosko did not change her behaviour in the face of warnings, I agree that an award of costs is justified.
[98] In reaching this conclusion, I specifically contemplated Ms. Prosko’s status as a self-represented litigant throughout the Tribunal’s process. However, I am not persuaded that the lack of legal representation justifies or explains her repeat and ongoing failure to meet deadlines and comply with the Tribunal’s directions. On the contrary, my assessment of the communications before the hearing shows that the Tribunal provided Ms. Prosko with ample information and opportunity regarding her obligations and the potential consequences for failure to meet them and that she understood what was required of her.
2. Adherence to the scope of the complaint
[99] The District says that the Tribunal communicated to Ms. Prosko on numerous occasions that she needed to limit her case to the narrow issue of the District’s response to her report of sexual harassment. It says that despite the Tribunal’s direction, Ms. Prosko repeatedly attempted to put forward claims about the termination of her employment and treatment by Mr. Nelson.
[100] The District provides the following three key examples of direction from the Tribunal on the scope of the complaint.
[101] In a March 24, 2022, letter following a case conference with the parties, the Tribunal wrote:
At the conference call, I told the parties that my role is to ensure they have a fair process and that Tribunal’s resources are used efficiently. The reasons why I initially set a deadline for Ms. Prosko to file will-say statements and time estimates, and to amend her remedy forms if she wanted to, were to help her prepare her case and ensure that the focus of the hearing would be on the only allegation in her complaint that is proceeding to a hearing, namely her allegation that the District failed to investigate her complaint of sexual harassment. The other two allegations in the complaint – that she was sexually harassed and that her sex was a factor in the termination of her employment – were dismissed in the Tribunal’s July 28, 2020 decision on the District’s application to dismiss the complaint.
[102] On September 7, 2022, the Tribunal issued a decision on the District’s first application for a s. 27.5 notice. In that letter, the Tribunal wrote the following:
Ms. Prosko, you must review the Tribunal’s July 28, 2020 decision dismissing parts of your complaint. It is clear from this decision which part of your complaint is proceeding to hearing: the allegation that the District discriminated on the basis of sex by failing to adequately respond to your complaintthat Mr. Nelson called you a “cougar” on September 14, 2017. Mr. Nelson is not a respondent. The remaining part of your complaint is about the District’s conduct when you raised concerns about Mr. Nelson.
[emphasis in the original]
[103] In a November 28, 2022, letter following a case conference with the parties, the Tribunal wrote:
I remind Ms. Prosko that the part of her complaint proceeding to hearing is her allegation that the District discriminated against her on the basis of sex by failing to adequately respond to Ms. Prosko’s report of Mr. Nelson’s “cougar” comment.
…
However, I told Ms. Prosko that I reviewed her particulars and list of proposed documents, and it looks like she intends to introduce a lot of evidence that is not relevant. This includes evidence about the termination of her employment (that part of her complaint was dismissed), and an allegation about Ryan Nelson listening to an ambulance call (Mr. Nelson is not a respondent to the complaint, and this does not appear to be relevant to the issue in the complaint).
[104] The District referred to other correspondence from the Tribunal including letters dated August 11, 2022, September 29, 2022, June 5, 2023, and June 6, 2023. I have reviewed these letters and agree that they also provide specific directions to Ms. Prosko regarding the scope of her complaint, the issues to be addressed at the hearing, and what evidence will be relevant.
[105] The District also points to materials disclosed by Ms. Prosko prior to the hearing, including particulars and will-say statements. I agree that they contained information about the termination of her employment and allegations against Mr. Nelson notwithstanding the Tribunal’s directions and reminders. In addition, the District highlights that two out of three witnesses Ms. Prosko intended to call successfully applied to have their orders to appear set aside.
[106] Lastly, the District says that despite the Tribunal ruling that evidence regarding the termination and treatment by Mr. Nelson is irrelevant and inadmissible, Ms. Prosko repeatedly attempted to introduce evidence related to those allegations at the hearing. I agree with the District that despite my rulings and reminders during the hearing about the narrow scope of her complaint, Ms. Prosko persisted in asking questions and attempting to introduce evidence about matters that were clearly outside the scope of the complaint.
[107] In her response to the costs application, Ms. Prosko does not dispute the claim that she knowingly and repeatedly attempted to advance issues outside the scope of her complaint. She also does not argue or even suggest that she did not understand that her complaint was limited to a discrete issue.
[108] The materials before me confirm that Ms. Prosko continued to attempt to put forward irrelevant evidence and arguments in her closing arguments, and later in her response to the costs application. As set out earlier in the decision, the most frequent irrelevant issue Ms. Prosko attempted to put forward was about the termination of her employment.
[109] Having considered the whole of the evidence regarding Ms. Prosko’s failure to adhere to the scope of her complaint, I am satisfied that it amounts to improper conduct. The Tribunal made extensive efforts to explain, remind, and emphasize to Ms. Prosko the scope of her complaint. The Tribunal provided explicit verbal and written communications about what allegations would not be considered at the hearing. The Tribunal also summarized and directed her to review Prosko No. 1. Notwithstanding multiple communications in advance of the hearing, Ms. Prosko listed documents, witnesses, and particulars that were outside the scope of the complaint. When the Tribunal advised her that those materials contained irrelevant and inadmissible content that would not be considered at the hearing, she nevertheless attempted during the hearing to give evidence and question witnesses about those irrelevant matters. As set out above, she continued this pattern throughout the submissions process, both in her closing submission and her response to the costs application. Ms. Prosko’s refusal to adhere to the scope of her complaint required the Tribunal to expend additional scarce resources over a lengthy period of time in an attempt to keep the hearing focused on the issues to be decided. In these circumstances, I agree that an award of costs is justified.
[110] In reaching this conclusion, I again contemplated Ms. Prosko’s status as a self-represented party. The Tribunal commonly gives self-represented parties leeway in advancing their complaints to ensure that there is no unfair disadvantage. In this case, I am satisfied that that the Tribunal provided Ms. Prosko with considerable leeway and guidance in the process of advancing her complaint. Despite the Tribunal’s ongoing efforts to convey the scope of the complaint and what evidence would be permitted at the hearing, Ms. Prosko repeatedly and continually attempted to bring forward evidence and arguments that were not relevant. In her response to the costs application, Ms. Prosko does not deny or provide any explanation for her conduct. Rather, she repeats the conduct at issue including by referring to irrelevant matters throughout her submission and attaching irrelevant documents. In my view, Ms. Prosko understood her obligation to confine her evidence and arguments to the issue before the Tribunal. I am also satisfied that she was aware of the potential consequences for failure to meet her obligations.
3. Attacking the District and its witnesses
[111] The District says that Ms. Prosko engaged in scurrilous attacks on its witnesses during the hearing and in her closing submissions. The District highlights that Ms. Prosko persisted in asking Ms. Pennell a question to the effect of “why did you frame me” despite being directed about the inappropriate nature of her cross-examination. The District also notes that Ms. Prosko’s closing statement is full of unfounded and unsupported character attacks, providing fifteen specific examples.
[112] In her response, Ms. Prosko does not dispute the words and phrases attributed to her in the application. Instead, she defends her statements about the District and its witnesses. As I understand her position, she says the statements are justified because they are true. Her position includes the questions she asked Ms. Pennell during the hearing. Specifically, she says that her question “why did you frame me?” was fair because she wanted to know the answer.
[113] I agree with the District that Ms. Prosko’s attacks on the District and its witnesses are serious, as well as unsupported and unfounded. I will not address all of the attacks; however, I will emphasize that there is simply no evidence before me that could support allegations such as dishonesty, deception, and perjury. No witness should be subject to that kind of baseless attack and in this case, those attacks amount to improper conduct. The Tribunal has held that attacking another party or their counsel, or otherwise engaging in inappropriate communications can constitute improper conduct: Stopps v. Just Ladies Fitness (Metrotown) Ltd. and D, 2007 BCHRT 125.
[114] In summary, I find that Ms. Prosko engaged in improper conduct in the following ways:
a. Repeatedly failing to follow the deadlines and directions of the Tribunal regarding pre-hearing disclosure.
b. Repeatedly disregarding the Tribunal’s direction to limit her case to the remaining allegation following Prosko No. 1. This includes the pre-hearing, hearing, and post-hearing periods.
c. By making baseless attacks on the personal and professional character of the District’s witnesses at the hearing and in her written submissions.
B. What is the appropriate quantum of costs?
[115] In many cases where respondents have sought costs and the Tribunal has dismissed a complaint, the Tribunal has concluded that the dismissal itself is a sufficient remedy for the improper conduct. However, in the circumstances of this case, I am persuaded that an award of costs is warranted.
[116] The amount of a costs award should be sufficient to signal the Tribunal’s condemnation of the party’s improper conduct, serve the punitive purpose of the award, and deter others from engaging in similar conduct: Ma v. Dr. Ianin G. M. Cleator and another, 2014 BCHRT 180 at para. 285.
[117] The circumstances of the particular case should guide the Tribunal’s assessment of quantum, including a party’s ability to pay. A just punishment in response to improper conduct should be proportionate: Harvey v. Toby’s Liquor Store and others, 2024 BCHRT 129 at para. 41.
[118] I begin with the nature and seriousness of the conduct. Ms. Prosko repeatedly failed to abide by the Tribunal’s timelines and directions. This is a serious impropriety that had a direct impact on the Tribunal’s process, including two adjournments. Ms. Prosko persisted in raising issues that she knew were outside the scope of the complaint. This is a serious misuse of party and Tribunal resources. Ms. Prosko also used the Tribunal’s process to abuse and insult the District and its witnesses. Not only does this kind of conduct impact the persons under attack, but it seriously impacts the integrity of the Tribunal’s processes, including by undermining the public’s confidence in the institution. In short, Ms. Prosko has engaged in all of the types of behaviours that warrant a costs award.
[119] In determining the appropriate amount to award in this case, I considered whether there were mitigating factors, including an inability to pay, or contributing factors, like illness or disability. There is no evidence before me to suggest that disability or illness contributed to Ms. Prosko’s improper conduct. I am also not persuaded that Ms. Prosko’s repeat and ongoing conduct in the circumstances of this case can be explained or justified based on her status as a self-represented litigant. Therefore, I have only considered Ms. Prosko’s submission about her ability to pay as a mitigating factor.
[120] Ms. Prosko submits that she “lost everything” when she lost her employment at the District, including her savings, and ended up at the food bank. She also says that five years later she still lives “paycheque to paycheque,” does not have a dime, cannot afford to pay $3000, and that if she had to pay $3000, she would become homeless. As an example of her financial situation, Ms. Prosko states that she could not afford to pay for a notary and that is why she attached unsworn statements to her submission.
[121] The District argues that Ms. Prosko has not provided any evidence beyond her statement that she does not have the money to pay a costs award. It says, for example, Ms. Prosko does not claim to be unemployed.
[122] I agree with the District that an award of $3000 may be reasonable and warranted in circumstances where there are multiple forms of repeat and sustained conduct (e.g. Dr. A v. Health Authority and another (No. 3) , 2023 BCHRT 10). At the same time, I have also considered Ms. Prosko’s individual circumstances which includes the fact that I have dismissed her complaint. I also considered that although she did not provide specific evidence of her inability to pay, there is no dispute that she lost her employment, is a single parent, and ended up relocating her family away from the District after she lost her job. In all these circumstances, I am satisfied that an award of $500 appropriately serves the purpose of sanctioning Ms. Prosko’s conduct and deterring others from engaging in similar types of behaviours in the future. Under Rule 4(4), costs are payable immediately.
[123] Before concluding this decision, I pause to note that on May 29, 2024 (more than a year after the hearing), Ms. Prosko filed a seventeen-page application for an award of costs against the District. She filed the application two days after the Tribunal declined her request to amend her statement of remedy. In her application, Ms. Prosko repeats many of the same arguments that were included in her closing submission as well her response to the costs application, including information irrelevant to a costs application, and attacks on the District and its witnesses. The District wrote to the Tribunal stating its position that Ms. Prosko’s application is improper and an abuse of process. In circumstances where Ms. Prosko’s application for costs is a repetition of the conduct that I have deemed improper, I have not considered her application further.
V CONCLUSION AND ORDER
[124] For the reasons set out above, I find Ms. Prosko has not made out her complaint. I dismiss the complaint under s. 37(1) of the Code .
[125] I grant the District’s application for costs under s. 37(4) of the Code. I order Ms. Prosko to pay costs to the District in the amount of $500.
__________________________________
Kathleen Smith, Tribunal Member