Cameron v. The Ministry and another, 2024 BCHRT 248
Date Issued: August 27, 2024
File: CS-002010
Indexed as: Cameron v. The Ministry and another, 2024 BCHRT 248
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:
Robert Cameron
COMPLAINANT
AND:
The Ministry and Individual Respondent B
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section27(1)(c)
Tribunal Member: British Columbia Human Rights Tribunal
On their own behalf: Robert Cameron
Counsel for the Respondents: Lauren Witten
I INTRODUCTION
[1] Robert Cameron alleges that he was discriminated against regarding employment on the ground of physical disability contrary to s. 13 of the Human Rights Code. Specifically, Mr. Cameron alleges that when he applied for a job with the Ministry, Individual Respondent B refused to provide him with his original test and scoring guide to show that he scored low on a written assessment.
[2] The Respondents deny discriminating. They deny that Mr. Cameron being denied his original test and scoring guide is an adverse impact connected to his protected characteristic. They apply to dismiss the complaint under s. 27(1)(c) of the Code on the basis that there is no reasonable prospect that the complaint will succeed.
[3] For the following reasons, I allow the application and dismiss the complaint. I have considered whether there is no reasonable prospect Mr. Cameron will be able to prove that his protected characteristic was a factor in the Respondents refusing to give him his original test and scoring guide. I am persuaded based on the evidence that there is not. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
II BACKGROUND
[4] In July 2020, Mr. Cameron applied for a job with the Ministry. Part of the application was a timed written assessment.
[5] Individual Respondent B was the hiring manager for the competition. They designed the written assessment and the scoring guide.
[6] On July 24, 2020, Mr. Cameron was emailed the written assessment which he completed in the time allotted.
[7] Individual Respondent B marked the assessment. Mr. Cameron did not score high enough in the written assessment to proceed to the next stage in the competition.
[8] Individual Respondent B emailed Mr. Cameron to let him know his score on the written assessment and that he would not be proceeding in the competition.
[9] Mr. Cameron did not believe he had not scored highly enough to proceed in the competition. He asserted that the answers he provided in the assessment were correct. He accused Individual Respondent B of lying and demanded they provide him with his original test and the scoring guide. Mr. Cameron alleges that Individual Respondent B told him he was not allowed to see his original test and scoring guide because he is disabled.
III PRELIMINARY ISSUE – APPLICATION TO LIMIT PUBLICATION
[10] In a decision dated March 4, 2022, the Tribunal granted the Respondents’ application to limit publication of their names and identifying information. The Tribunal ordered that the individual Respondent would be referred to as “Individual Respondent B” and the institutional Respondent would be referred to as “the Ministry.”
[11] The Respondents now apply for an additional order limiting publication of any identifying information of employees of the Ministry, including those employees who have provided affidavit evidence for the dismissal application.
[12] Mr. Cameron has not filed a response to the application to limit publication.
[13] The Tribunal has discretion to limit publication of identifying information where a person can show their privacy interests outweigh the public interest in full access to the Tribunal’s proceedings: TribunalRules of Practice and Procedure [Rules], Rule 5(6); Stein v. British Columbia (Human Rights Tribunal), 2020 BCSC 70 at para. 64(a).
[14] When considering whether to grant an order limiting publication, the Tribunal may consider factors like the stage of the proceedings, the nature of the allegations, private detail in the complaint, harm to reputation, or any other potential harm: JY v. Various Waxing Salons, 2019 BCHRT 106at para. 30. It may also consider whether the proposed limitation relates to only a “sliver” of information that minimally impairs the openness of the proceeding: CS v. British Columbia (Workers’ Compensation Appeal Tribunal), 2019 BCCA 406 at para. 37.
[15] In my view expanding the order to limit publication of identifying information of Ministry employees is appropriate in the circumstances. First, there is already an order anonymizing the names of the Respondents. Expanding the existing order so that other employees of the Ministry are similarly anonymized minimally impairs the openness of the proceeding. My decision and my reasons can be read and understood without identifying the employees who provide evidence. Second, all of the persons who would be covered by the order are public servants acting in their professional capacity. The public trust is necessary for public servants to effectively perform their job and serve the public. I am persuaded that there is a risk of harm to the administration of public services if the employees who are not parties to the complaint are implicated in connection to Mr. Cameron’s unproven allegations. Third, there is evidence before me that throughout the Tribunal’s complaint process, Mr. Cameron has sent communications to people he believes are involved in his complaint. The evidence before me shows that Mr. Cameron has made repeated aggressive comments and has made accusations of criminal conduct, allegations of a conspiracy against him, and threats of litigation. Based on the materials I am persuaded that in addition to reputational harm to the employees there is a real risk of other harms to the Ministry’s employees if their identities are disclosed.
[16] For the above reasons I order that the Tribunal will anonymize any reference to individual employees of the Ministry and will redact or otherwise anonymize any information which may identify the employees.
IV DECISION
[17] The Respondents apply to dismiss Mr. Cameron’s complaint on the basis that it has no reasonable prospect of success: Code,s. 27(1)(c) The onus is on the Respondents to establish the basis for dismissal.
[18] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[19] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan, 2013 BCSC 942 at para. 77.
[20] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority, 2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission , [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.
[21] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia, 2008 BCSC 1026 at para. 34. However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City) , 2017 BCCA 242 at para 67.
[22] To prove his complaint at a hearing, Mr. Cameron will have to prove that he has a characteristic protected by the Code, in this case a disability, he was adversely impacted in employment, and his disability was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33.
[23] The Respondents take no position on whether Mr. Cameron has a disability. Therefore, the first element is not at issue in this application. The Respondents say there is no reasonable prospect Mr. Cameron will be able to prove that not being provided his original test and scoring guide is an adverse impact or that the denial is connected to his disability.
[24] Based on the evidence before me I find there is no reasonable prospect the Tribunal would find after a full hearing that Mr. Cameron suffered an adverse impact or that his disability was a factor in the alleged adverse impact.
[25] First, while Mr. Cameron asserts that he was not provided his original test and scoring guide because of his disability, the evidence before me indicates that the Respondents do not provide the original test or scoring guide to any candidate. While Mr. Cameron asserts that being allowed to access his original test is an inalienable right under the Canadian Charter of Rights and Freedoms , the materials contradict that such a right exists. The Respondents say their practice is to provide feedback to applicants, rather than their original test or scoring guide, so that applicants are able to understand their performance without jeopardizing future competitions. The Respondents provide their assessment policies and procedures which support their position.
[26] Mr. Cameron does not say that he required his test and scoring guide as an accommodation for his disability. There is nothing in the materials before me to suggest that Mr. Cameron’s disability was a barrier preventing him from understanding the feedback he was provided by Individual Respondent B. He simply disagreed with the reported results of the assessment.
[27] In my view, because the evidence is that the Respondents, by denying Mr. Cameron his original test and scoring guide, did not deprive him of a disability-related accommodation or any inherent right, there is no reasonable prospect that Mr. Cameron will succeed in establishing that he experienced an adverse impact.
[28] Second, the parties disagree on whether Individual Respondent B told Mr. Cameron that he is not allowed to have his test and scoring guide because he is disabled. While the contradictory positions of the parties raise issues of credibility, I find the affidavit and contemporaneous documentary evidence is sufficient to resolve these credibility issues. Specifically, the parties agree that after one phone conversation on July 23, 2020, one day before the written assessment, all subsequent communications between Mr. Cameron and Individual Respondent B were by email. The materials before me contradict Mr. Cameron’s assertion that he was told he could not have his test and scoring guide because he is disabled. No mention of Mr. Cameron’s disability is made in the contemporaneous email correspondence from the Respondents denying Mr. Cameron’s request for his test and scoring guide.
[29] There is no record of Individual Respondent B mentioning Mr. Cameron’s disability as a basis for denying him his request for his original test and scoring guide. Individual Respondent B first informs Mr. Cameron that he will not be proceeding in the selection process in an email on July 31, 2020. The parties agree all subsequent communication was by email. The email correspondence between the parties does not make any mention of Mr. Cameron’s disability or cite is as a basis for denying him his request for his original test and scoring guide.
[30] Further, there is no contemporaneous record of Mr. Cameron alleging that Individual Respondent B made discriminatory remarks about him. Nowhere in the contemporaneous email correspondence does Mr. Cameron allege that Individual Respondent B made any comments about his disability. The only reference Mr. Cameron makes to his disability being a factor in being denied his original test and scoring guide is in an email of November 13, 2020, saying “your staff refused on 5 different occasions to give any test results and discriminated against me due to my disabilities.”
[31] Based on the materials I am persuaded that there is no reasonable prospect that Mr. Cameron could succeed in establishing that he experienced an adverse impact that is connected to his protected characteristic. As such, the complaint is dismissed under s. 27(1)(c).
V CONCLUSION
[32] I allow the application under s. 27(1)(c) and dismiss the complaint.
Edward Takayanagi
Tribunal Member