Du (by Zheng) v. BC (Ministry of Attorney General – Sheriff Services) and another, 2025 BCHRT 123
Date Issued: May 15, 2025
File: CS-005338
Indexed as: Du (by Zheng) v. BC (Ministry of Attorney General – Sheriff Services) and another, 2025 BCHRT 123
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:
Xiaomei Du (by Bida Zheng)
COMPLAINANT
AND:
His Majesty the King in Right of the Province of British Columbia as represented by the Ministry of the Attorney General (BC Sheriff Services) and the Deputy Sheriff
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT AND LIMIT PUBLICATION
Section 27(1)(c), Rule 5
Tribunal Member: Devyn Cousineau
For the Complainant: No submissions
Counsel for the Respondents: Julia Roe
I INTRODUCTION
[1] This is a decision to dismiss Xiaomei Du’s human rights complaint without a hearing.
[2] Ms. Du was arrested at the Richmond Courthouse on October 13, 2021. In her complaint, she alleges that the Deputy Sheriff who arrested her had handcuffed and held her for two hours without reason. Her representative says that, four months earlier, he overheard the Deputy Sheriff and another sheriff talking and one of them said “this pandemic was made by Chinese people for sure”. Ms. Du alleges that she was treated badly during her arrest because she is Chinese and that this is discrimination in violation of s. 8 of the Human Rights Code.
[3] The BC Sheriff Services and Deputy Sheriff apply to dismiss the complaint without a hearing under s. 27(1)(b), (c), and (d)(ii) of the Code. Ms. Du did not respond to the application.
[4] I can most efficiently decide the application under s. 27(1)(c). For the following reasons, I am satisfied that Ms. Du has no reasonable prospect of proving that she was treated negatively during her arrest because of her race. The complaint is dismissed.
[5] The Deputy Sheriff applied to limit publication of his name in connection with this complaint: Rule 5. Given my conclusion that there is no foundation for Ms. Du’s allegation of racism, I agree that the Deputy Sheriff’s privacy interests outweigh any public interest in publishing his name. I order that:
a. no person may publish the Deputy Sheriff’s name in connection with this complaint; and
b. the Tribunal will redact the Deputy Sheriff’s name in any materials it may make available to the public.
II Decision
[6] Section 27(1)(c) of the Code allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[7] 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 .
[8] 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 .
[9] To prove her complaint at a hearing, Ms. Du must prove that she was treated or impacted negatively by the Respondents during her arrest, and that her race was a factor in that negative treatment or impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33. In my view, there is no evidence capable of supporting a connection between Ms. Du’s treatment during her arrest and her race. For that reason, the complaint has no reasonable prospect of success.
[10] The events giving rise to the complaint are largely undisputed.
[11] On September 14, 2021, the Provincial Court (Small Claims Court) issued a warrant of arrest ordering the BC Sheriff Service to arrest Ms. Du and promptly bring her before the court because she did not attend court, as required by a summons to a payment hearing. Ms. Du was given notice of the warrant and seven days to appear voluntarily in court. She says that she tried emailing the Court Registry and sending a friend. However, ultimately, she did not appear in Court.
[12] On October 7, the warrant was sent to the BC Sheriff Service for execution. The Deputy Sheriff was assigned to execute the warrant.
[13] On October 12, the Deputy Sheriff phoned Ms. Du and told her she was required to attend the courthouse under the warrant. Ms. Du said she would come the next day.
[14] On October 13, Ms. Du went to the courthouse. The Deputy Sheriff arrested her at about 9:30 am. In doing so, he followed the steps in the Sheriff’s Policy Manual, requiring him, among other things, to confirm Ms. Du’s identity, place her in handcuffs behind her back, and tell her the reason for the arrest and her right to counsel. He brought her before a Provincial Court judge. After the judge finished dealing with the matter, Ms. Du was brought to the holding cells while paperwork was completed. She was released at approximately 10:50 am, on a promise to appear for a payment hearing on December 16.
[15] As I understand her complaint, Ms. Du alleges that it was unnecessary to arrest and handcuff her, and then hold her for the morning. Her representative questions whether it was racism, asking: “Why that sheriff arrested Xiaomei Du she weas only one time payment hearing call in not getting through? Why the sheriff called her and know the [situation] but still arrest her? Which judge sign the arrest paper?” [as written]. He says that, if the Deputy Sheriff did nothing wrong, then “the legal system” may need to change.
[16] The evidence is clear that Ms. Du’s arrest was under a warrant issued by the Court, following the standard practice and procedures of BC Sheriff Services. This Tribunal does not have jurisdiction to review orders or warrants issued by the BC Provincial Court, or the “legal system” that gives rise to them. Aside from the usual distress at being arrested and held, there is nothing in the complaint or amendments filed by Ms. Du that suggests that the Deputy Sheriff treated Ms. Du negatively during the arrest. Most importantly, there is no evidence that could establish a connection between Ms. Du’s treatment during her arrest and her race.
[17] I understand that Ms. Du suspects that she was treated badly because of her race because of what her representative says he overheard in the courthouse a few months earlier, in June. The representative says that he overheard two sheriffs in the bathroom, and one of them said “this pandemic was made by Chinese for sure”. He says that one of these people was the Deputy Sheriff. The Deputy Sheriff denies ever saying anything like that. He says that it is against his personal values.
[18] The arrest happened in October 2021, during the COVID-19 pandemic. I acknowledge the rise in anti-Asian hate during the pandemic: Zhou v. C-Lovers Fish & Chips, 2023 BCHRT 149 at para. 20; British Columbia’s Human Rights Commissioner’s Report “From hate to hope: Report of the Inquiry into hate in the COVID-19 pandemic.” A comment that Chinese people are responsible for the pandemic is consistent with the type of discrimination that many Chinese people faced, especially during this time.
[19] However, in this case, even if the Tribunal accepted that the Deputy Sheriff was present for and/or made the comment, it is not evidence that could support a finding of discrimination against Ms. Du. Critically, there is no evidence that the Deputy Sheriff did anything during Ms. Du’s arrest other than execute a warrant issued by the Court, following standard procedures. There is nothing to suggest he had any discretion in the arrest or did anything to Ms. Du beyond what he was lawfully required to do. The alleged comment was made months before the interaction, and was not directed at or witnessed by Ms. Du. Even if the Deputy Sheriff said it or believed it – which he vehemently denies – there is no evidence to support that he treated Ms. Du badly because of anti-Chinese bias or hate.
[20] I am persuaded that there is no reasonable prospect that Ms. Du could prove she was treated badly during her arrest because she is Chinese. The complaint is dismissed.
III CONCLUSION
[21] The complaint is dismissed under s. 27(1)(c) of the Code.
Devyn Cousineau
Vice Chair
Human Rights Tribunal