BC Human Rights Tribunal

I          INTRODUCTION

[1]               On November 17, 2022, Ashfaq Khan filed two complaints against the Society of Notaries Public of British Columbia [the Society], which the Tribunal later joined [the Complaint]. The Complaint concerns Mr. Khan’s 2020 application to the Notary Education Program [the NEP], administered by the Society. Mr. Khan alleges the Society discriminated against him because of his mental and physical disabilities, and his political beliefs when it denied him entry into the NEP, contrary to s. 14 of the Human Rights Code, which prohibits discrimination by associations. Mr. Khan also alleges the Society rejected his application because he filed a human rights complaint against it in 2016, and because he told the Society that he might file a claim in future if it discriminated against him. He says this is retaliation, prohibited by s. 43 of the Code.

[2]               The Society denies it discriminated against Mr. Khan. The Society says it denied Mr. Khan entry into the NEP for entirely non-discriminatory reasons, set out in a letter dated November 18, 2021 [Decision Letter]. Specifically, the Society says it denied Mr.  Khan entry into the NEP in 2020 because he did not complete a writing exercise requirement and based on the results of Mr. Khan’s interview with a panel of the Membership and Admissions Committee [the Committee]. The Society also denies it retaliated against Mr. Khan.

[3]               This decision deals with Mr. Khan’s application for the disclosure of seventeen documents, some of which are categories of documents. The Society opposes the application.

[4]               While I do not refer to it all in my decision, I have considered all the information filed in relation to this application. This is not a complete recitation of the parties’ positions, but only those necessary to come to my decision. I make no findings of fact.

[5]               For the following reasons, I deny the application with one exception.

II       Preliminary Issue

[6]               First, I explain why I am not persuaded by the Society that the application is premature and should not be considered.

[7]               Mr. Khan sent the Tribunal an application for disclosure on October 16, 2024. On October 17, 2024, the Tribunal wrote to Mr. Khan to tell him that his application was rejected for filing because it was filed before the Society’s disclosure deadline of November 19, 2024. In response, Mr. Khan wrote to the Tribunal to point out that the Society had already filed its disclosure form with the Tribunal. He then asked if he should wait until November 19, 2024 to refile his application or if he could file it again sooner. On November 4, 2024, the Tribunal informed Mr. Khan that if he had asked the Society for documents and it had informed him that they would not provide him the requested documents, he could file his application for disclosure. Mr. Khan filed his application for disclosure on November 8, 2024, and his disclosure form on November 19, 2024.

[8]               The Society asks the Tribunal to dismiss this application because it was brought before Mr. Khan had fulfilled his disclosure requirements. The Society says that it fulfilled its disclosure obligations by disclosing all relevant documents and filing its disclosure form with its response to the discrimination complaint and the retaliation complaint respectively, before they were joined. The Society also argues it was procedurally unfair for the Tribunal to accept Mr. Khan’s application for disclosure for filing after it had previously rejected it for filing. The Society refers to the Tribunal’s communication to Mr. Khan on November 4, 2024 as a “reconsideration” of its October 17, 2024 “decision.” The Society argues it should have been provided an opportunity to make submissions on the “reconsideration.”

[9]               First, Mr. Khan has now fulfilled his disclosure requirements. I find it would not be a good use of the Tribunal’s time to dismiss this application because he had not done so when it was filed. As I have noted, he filed the application on November 8, 2024, and his disclosure form on November 19, 2024.

[10]           Second, I am not persuaded by the Society’s procedural fairness argument. In my view, the Society’s argument is based on a mischaracterization of the background to this decision. The Tribunal’s registry allowing Mr. Khan to file this application is not a “reconsideration” of a previous decision as contemplated by Rule 36 of the Tribunal’s Rules of Practice and Procedure. As set out above, Mr. Khan sought to file an application for disclosure prior to the Society’s disclosure deadline. A case manager informed him when the appropriate point in the process would be for him to seek an order for document disclosure, and in what circumstances. That is, after the Society’s disclosure deadline (or after it had disclosed its documents), and if he had asked for certain documents and the Society refused. I see no procedural unfairness in allowing Mr. Khan to file this application without seeking submissions from the Society. There was no reconsideration pursuant to Rule 36.

[11]           I now turn to the substantive issues before me. I start by providing some background information as context for my decision on the requested documents.

III     Decision and analysis

A.    Background

[12]           The Society regulates non-lawyer notaries in the province. To practice as a non-lawyer Notary, a person must be a member in good standing of the Society. To be admitted as a member, a person must:

a.      Complete a Master of Arts in Applied Legal Studies at Simon Fraser University [MAALS];

b.      Complete the NEP; and

c.       Take a statutory admissions examination. 

[13]           The Committee considers applications for admission to the NEP. An interview panel made up of members of the Committee considers individual applications and conducts interviews with applicants.  

[14]           Mr. Khan completed the MAALS in December 2019. He applied for entry into the NEP on January 1, 2020. Upon initial review, the Society determined Mr. Khan had not met its writing requirement. The Society communicated this to Mr. Khan.

[15]           In response, Mr. Khan says he wrote to the Society on February 13, 2020, asking it to accommodate him by waiving the writing requirement. Mr. Khan says that he has disabilities that make him slow when responding to and performing tasks.

[16]           The Society says it informed Mr. Khan that it would not waive the writing requirement in a letter dated March 11, 2020. It says it offered to accommodate Mr. Khan while he performed the writing exercise, for example by providing him access to a computer. The Society also says it asked Mr. Khan to provide it a list if additional accommodations for it to consider but he did not respond to its request.

[17]           Next, the Society says it allowed Mr. Khan to complete the Panel interview although he had not yet completed the writing exercise. Mr. Khan’s interview took place on March 13, 2020.

[18]           Mr. Khan disputes the assertion that he did not reply to the Society’s letter denying his request for it to waive the writing requirement. He says he wrote to the Society on March 23, 2020 and asked the Society for information about how to file for a review of the March 11, 2020 letter, in which it said it would not waive the writing requirement. He also says he “vigorously” pursued his application for accommodation.

[19]           The Society denied Mr. Khan’s application into the NEP and informed Mr. Khan of its reasons for doing so on November 18, 2021 in the Decision Letter. The Society says that in the Decision Letter, it explained to Mr. Khan that he had been denied entry because he had not completed the writing exercise and based on the results of the interview on March 13, 2020.

[20]           Mr. Khan says the interview only lasted 30 minutes. He says that based on that interview, the Panel members advised the Committee that he should not be admitted to the NEP because he had demonstrated an inability or unwillingness to follow a process and/or comply with established procedures. Mr. Khan further states the panel members concluded that he was a determined advocate with a predilection for adversarial processes.

B.     Legal Principles

[21]           Under Rules 20 and 20.2 , the Society must disclose to Mr. Khan all documents in its possession or control that are arguably relevant to his complaint, the response to the complaint, and the remedy sought: Brar v. British Columbia Veterinary Medical Association, 2008 BCHRT 396 at para. 5.

[22]           Under Rule 23, an application for disclosure must state:

(a) how disclosure of the document requested will further the just and timely resolution of the complaint;

(b) how the document requested may be relevant to an issue in the complaint, response to the complaint, or remedy sought; and

(c) the participant’s efforts to obtain a copy of the document.

[23]           The burden is on the party seeking disclosure.

[24]           Disclosure should, like all aspects of the Tribunal’s process, serve the goals of efficiency and fairness in the administration of justice: Employee v. Overwaitea Food Group Ltd (No.2), 2018 BCHRT 84 at para. 10. Proportionality is an important consideration: Johar and others v. College of Veterinarians of BC and another, 2020 BCHRT 179. The Tribunal may decline to order disclosure of arguably relevant documents which are “unnecessary to a just and timely resolution of the complaint”: Smith v. Provincial Health Services Authority and another (No.2), 2015 BCHRT 112 at para. 53.

[25]           Arguable relevance is not a high threshold; there must be some connection between the documents and a fact in issue: Ringham v. Vancouver Island Health Authority and others, 2023 BCHRT 14 at para. 36.

C.     Positions of the Parties

[26]           Mr. Khan says the Society has only disclosed documents that help their case. He argues the documents he seeks are relevant and/or necessary for him to argue his case. He seeks seventeen documents, some of which are categories of documents. The documents include documents from his application to the NEP, Society Rules, Policies and Guidelines, and documents containing information about other applicants to the NEP in 2020. He also seeks information about several topics, which are described in more detail below.

[27]           The Society opposes the application. It says the requested documents are either: (1)already disclosed and/or in Mr. Khan’s possession or control; (2) not arguably relevant and/or would not further the just and timely resolution of the Complaint; and/or (3) do not exist.

1.      Documents already disclosed

[28]           The Society submits it has already disclosed several of the requested documents and/or the requested documents are not in its possession or control. With one exception, explained below, I accept the Society has already met its disclosure obligations with respect to the following requested documents.

Document 1: The Complainant’s Application File

[29]           Mr. Khan seeks a copy of his complete application/admission file for 2020, including any communication from the Membership and Admissions Committee regarding how they reached their November 18, 2021 decision to:

a.    Refuse his application for admission into the Notary Education NEP; and

b.    Disqualify him from ever becoming a Notary Public in BC. [Application File]

[30]           Mr. Khan submits the Application File contains 3 categories of documents: (1) his preliminary application with attachments; (2) his enrolment application, with attachments; and (3) other documents, such as his references, a criminal record check, financial records and background check, bankruptcy check, court records check and other documents relevant to his application.

[31]           Mr. Khan acknowledges that the first two categories of documents are in his possession. He created those documents. He only seeks the third category of documents. Mr. Khan says the third category of documents in his Application File will help him prove his case that the Society discriminated against him and retaliated against him when it refused him admission and disqualified him from ever becoming a Notary Public.

[32]           The Society submits it provided Mr. Khan all documents from the Application File that are relevant to this proceeding. It further argues that to the extent that Mr. Khan thinks the third category of documents in the Application File are relevant to his case, it is within his power to submit these documents to the Tribunal. I am not persuaded by this argument.

[33]           Broadly speaking, Mr. Khan’s Complaint is that the Society discriminated against him based on his physical and mental disabilities, and his political beliefs, when it denied him admission to the NEP in November 2021. The Society has neither disputed that this so-called third category of documents exists nor that it has a copy of the documents in this third category. In my view, Mr. Khan’s entire Application File, including any documents submitted to the Society by third parties, is arguably relevant to the Complaint and must be disclosed. If, after reviewing those documents, Mr. Khan believes there are missing documents, he should contact the Society and request them.

Documents 4, 4A, and 4B: Membership, Admissions and Credentials Rules and Policy Guidelines

[34]           Mr. Khan lists three requests that are about the Society’s Membership, Admissions and Credentials Rules and Policy Guidelines [Admission Rules].

[35]           First, he asks for:

Disclosure of the Rule(s), along with the approval of the Board, conferring power on the Interview Panel to do subjective interpretation of an Applicant’s/Complainant’s information, and making a subjective decision on their admission application by assessing their characteristics, and further disqualifying them on the basis of their “attitude”; for them being a determined advocate with a predilection for adversarial processes; and for reasons of their disposition being of adversarial nature. [as written]

[36]           Second, he asks for disclosure of the “Interview Guidelines document”, as provided at the end of Section 5 of the Admission Rules on page 188 of the 357-page document of the Society, filed as part of their disclosure.

[37]           Third, he asks for disclosure of the correct provision/application of Section 4 of the Admission Rules.

[38]           Regarding the first request, the Society submits: (1) it explained the subjective nature of the interview process to Mr. Khan throughout the application process; and (2) it referred Mr. Khan to the rules it followed in the Decision Letter, which it has already disclosed.

[39]           For the second request, the Society says it has now disclosed the Interview Guidelines.

[40]           On the third request, the Society confirmed that it provided Mr. Khan with the correct provision of Section 4 of the Admission Rules and there is no information missing.

[41]           I have no reason to doubt the Society’s submissions and accept that it has disclosed all arguably relevant documents in its possession that set out its rules, guidelines and policies for admission to the NEP. For Mr. Khan’s first request, he appears to be asking the Society to prove it did not violate its own Admission Rules when it denied him entry into the NEP. The Society is not required to explain its actions or inactions on the merits of the Complaint in the disclosure process. It is only required to disclose all arguably relevant documents it has in its possession or control. If Mr. Khan wants to make arguments on the Society’s interpretation and application of its own Admission Rules, or the Society’s authority to make decisions on certain bases, he will have an opportunity to do so at a later stage of this proceeding.

[42]           I decline to order further disclosure in connection with the Admission Rules.

Documents 10, 11 and 17: The Society’s offers to admit the Complainant to the NEP

[43]           Mr. Khan seeks disclosure of the letter advising him that the May 11, 2022, admission offer remained open and he could join the NEP any time without reapplication. The Society submits it has already provided Mr. Khan with this letter. The Society also explains that Mr. Khan appears to have misunderstood paragraph 34 of its response to the Complaint and provides Mr. Khan with additional information to ensure he understands its position.

[44]           Mr. Khan also seeks disclosure of the Society’s “numerous offers, made to the Complainant, for admission into the NEP and extensions of these offers” [as written]. Mr. Khan also asks for disclosure of the document showing the Complainant was “admitted” into the NEP. In response to these two requests, the Society directs Mr. Khan to pages 354 to 356 of the documents it has already disclosed. 

[45]           I accept that the Society has disclosed all relevant documents regarding its offer to admit Mr. Khan into the NEP. I decline to order further disclosure. To the extent that Mr. Khan disputes assertions of fact in this request or wishes to present alternative interpretations of the letters disclosed, he will have an opportunity to do so at a later stage in this proceeding.

Document 13: Accommodations offered to the Complainant with respect to admission requirements

[46]           The Society submits it has already disclosed documents with this information and lists those documents for clarification in its submission on this application. I accept that the Society has met its disclosure obligations in this regard. Mr. Khan again appears to be seeking additional information or argument from the Society on its response to the Complaint. As I have already said, this sort of request does not fall within the document disclosure stage of the proceeding.

Document 15: The rejection letter of the Complainant sent to the Respondent

[47]           Mr. Khan is seeking disclosure of a letter he says he sent to the Society in which he “voluntarily rejected” admission into the NEP. The Society says it included this letter in its disclosure documents.

[48]           I decline to order disclosure of the letter Mr. Khan sent to the Society following its admission offer into the NEP. I accept the Society has already disclosed a copy of that letter to Mr. Khan. It appears from the request that Mr. Khan is also asking the Society to agree with his interpretation of this letter. That is not a proper use of the disclosure process.

2.      The Documents are Arguably Relevant and Proportionate

[49]           The parties dispute the relevance and proportionality of two of the seventeen categories of documents before me. I address those requests first. I then address the remaining requests, which primarily concern disputes over whether documents exist and/or have already been disclosed.  

[50]           Mr. Khan asks for copies of the following two categories of documents, listed as documents 5 and 6 in the application:

a.    Document 5: The evaluation forms of all selected applicants interviewed and assessed by the Panel/Committee for admission to the NEP in 2020; and

b.    Document 6: The qualifications of all applicants for the 2020 batch who proceeded to the interview, as per the assessment and approval of the Committee.

[51]           The Society submits it is not obligated to disclose these documents because: (1) they are not relevant; (2) even if relevant, they are not proportionate; and (3) they contain the private information of third parties. I agree.

Document 5: Evaluation Forms of all selected applicants interviewed and assessed by the Panel/Committee for admission to the NEP in 2020

[52]           Mr. Khan says he requires these documents to ascertain whether the Panel’s comments, marking and assessment of him as compared with others was fair, reasonable, rational and consistent with the written submissions because the questionnaire is designed to be an objective framework for evaluating applicants.

[53]           The Society says these documents are not relevant to Mr. Khan’s allegation of discrimination based on disability. I agree. The central issue in the disability discrimination allegation before the Tribunal is whether Mr. Khan’s disability was a factor in the Society’s reason not to admit him to the NEP in 2020. It is not whether the process, as compared with others, was fair, reasonable, rational and consistent.

[54]           Mr. Khan also seeks disclosure of the evaluation forms in connection with his allegations of retaliation. He says reviewing these forms will assist him in determining whether the Committee “was biased against [him] because he had challenged it at the Tribunal in the past.” He has not provided any factual basis to suggest this was the case. Rather, at best, it is his belief that the Committee may have been biased against him because of his previous complaint.

[55]           In my view, this request amounts to a fishing expedition and would not further the just and timely resolution of the Complaint. I decline to order disclosure of the short-listed applicants’ evaluation forms.

Document 6: Disclosure of qualifications of all applicants for the 2020 batch who proceeded to the Panel interview, as per the assessment and approval of the Committee

[56]           As I understand it, Mr. Khan takes the position that the Society interviewed the other applicants who proceeded to the interview stage of the admissions process to gauge their competence/ability to take the MAALS program after their interview. He says that his application was “completely different” from the rest of the applicants because he had already completed the MAALS. He argues the writing exercise was designed as an “entry” test for admission to the MAALS program and, by inference, not the NEP. For this reason, Mr. Khan asserts the writing exercise did not apply to him. He also says disclosure of the other applicants’ qualifications is relevant and necessary because the Society says it based its decision on objective criteria.

[57]           It appears that in making this request, Mr. Khan wants to know whether any other applicants already had a MAALS degree. Mr. Khan appears to argue that the other people being interviewed were applying to the MAALS and not the NEP. He also takes the position that the writing requirement was not a bona fide occupational requirement for entry into the NEP for applicants who had already completed the MAALS.

[58]           The Society submits the requested information is not relevant to issues to be decided in the disability discrimination part of the Complaint. It also states that to fulfill this request, it would have to pull files, sort through files, and compile evaluation forms into one document.

[59]           I start by noting that Mr. Khan’s allegations about the writing exercise arise in connection with the disability discrimination allegation only. In my view, the credentials of other short-listed applicants are not arguably relevant to an issue that must be decided in connection with what Mr. Khan must prove to make out his case. Whether Mr. Khan experienced an adverse impact in connection with his disabilities requires an individualized assessment. The Society’s response to the Complaint of disability discrimination is that it offered to accommodate Mr. Khan by asking him to provide it with suggestions for accommodations. This also requires an individualized analysis. The accommodation process focuses on the individual being accommodated and the specific context in which the need for accommodation arises. Mr. Khan has provided no basis to suggest that the qualifications of other applicants are arguably relevant to that analysis.

[60]           Second, even if the qualifications of other applicants were arguably relevant, I agree with the Society that it would not further the just and timely resolution of the Complaint for me to order disclosure of the other applicant’s qualifications in this instance. To do so, the Society would be required to conduct a significant search of its documents, redact all the personal information in each application, except for each applicant’s credentials. Alternatively, the Society would be required to report on the applicants’ credentials. From what I gather, such a report does not already exist. In sum, I do not agree that the documents sought are arguably relevant and unless a report that lists the number of applicants to the NEP who have already obtained a MAALS already exists, I am not convinced it would further the just and timely resolution of the Complaint to order disclosure of this information.  

3.      The documents do not exist

[61]           The Society submits several of the requested documents or categories of documents do not exist. I accept their submissions and dismiss the following requests.

Document 2: Simon Fraser University’s [SFU] recommendation for the addition of a writing requirement for admission to the NEP

[62]           Mr. Khan seeks a copy of any letters and/or proposals, created by Simon Fraser University recommending the Society include a writing requirement in its admissions criteria. The Society submits it is not aware of any such document. In any event, if such a document exists, it did not originate with the Society.

[63]           In reply, Mr. Khan says the Society’s response is “untenable,” referring to the following statement:

…at a recent faculty meeting, SFU indicated that the quality of writing by candidates is really quite poor. After discussion it was agreed that by including a basic comprehension and writing requirement, we would be better able to identify applications who may benefit from writing development.

[64]           In my view, this quoted passage does not undermine the Society’s submission. The quoted passage suggests attendees at a meeting discussed adding a writing requirement. This quote does not state a letter or proposal regarding a writing requirement exists and I accept that the Society is not in possession of such a document.

Document 3: Communications by the Society informing the Complainant that the Panel’s recommendation for admission to the NEP was based on subjective criteria of character and “attitude”

[65]           Mr. Khan says the Society never informed him that his “attitude” would be considered in the admission process. He asks for documents in which the Society communicated this subjective criterion to him. The Society says the Panel informed Mr. Khan at the start of their interview of this criterion. It also says it informed Mr. Khan in the November 18, 2021 admissions decision letter, which was provided to Mr. Khan.

[66]           From the Society’s submission, I infer that it takes the position that the Panel members informed Mr. Khan of this criteria orally and not in writing. I accept the Society has no further documents to disclose on this topic. Moreover, Mr. Khan has not said how such a document relates to a fact in issue and therefore I am unable to find it is arguably relevant.

Documents 7 and 9: Application/admission requirements that the Complainant did not meet for admission to the NEP in 2020

[67]           In response to this request, the Society points out that Mr. Khan received an explanation in the Decision Letter, already provided to Mr. Khan.

[68]           I agree with the Society that no further disclosure on this issue is required. Mr. Khan appears to be asking the Society to justify or further explain its decision not to admit him. The Society is not required to create documents to provide Mr. Khan with this kind of information.

Document 8: SFU’s requirements for admission into the mandatory MAALS for 2015-2016, not fulfilled by the Complainant

[69]           Mr. Khan submits this document is necessary because the Society has claimed that he did not meet admission requirements in 2015-2016. Mr. Khan says that he did fulfill the requirements of entry into the MAALS at SFU and that contrary to the Society’s position, he fulfilled and even exceeded those entry requirements. He argues disclosure will help to verify who “is speaking the truth.” 

[70]           I decline to order disclosure of this information. First, if it exists, such a document – would be in the possession of SFU not the Society. Second, I agree with the Society that the criteria fulfilled or not fulfilled by Mr. Khan in 2015-2016 for the MAALS is not arguably relevant to the Complaint.

Document 12: the Society’s responses to letters the Complainant sent to the Society on: March 23, 2020, November 24, 2021, November 26, 2021, and December 3, 2021

[71]           The Society says these communications are outside its knowledge and, if they exist, they would be in his possession. I infer from this submission that the Society did not respond to Mr. Khan’s letters in writing or if it did respond, it has already disclosed those documents.

[72]           Mr. Khan argues the Society’s response to this request is “untenable” and states the Society must substantiate its claim by disclosing responses to his four letters. I am not persuaded by this argument. The disclosure process is not where a party is meant to substantiate its position. This request again appears to be a request for the Society to create a document setting out how it plans to prove its case. The Society is not required to do so. I note, the Society’s evidence may also come in through witness testimony and Mr. Khan will have an opportunity to test that evidence at a hearing through cross-examination if the Complaint proceeds to a hearing.

Document 14: Remedy-related documents

[73]           Mr. Khan asks for disclosure of “remedies as sought by the Complainant in his Complaint, and granted by the Respondent, including, but not limited to, compensation for injury to dignity, feelings, and self respect, lost wages et al.” He says this is necessary because the Society has claimed that he will “gain no benefit from the proceeding at the Tribunal.” Mr. Khan disagrees. The Society submits it has no such documents.

[74]           I decline to order disclosure of these documents. This request is not relevant to any issue in dispute.

Document 16: Supreme Court Decision or Settlement Agreement on the Complainants Judicial Review Application

[75]           Mr. Khan asks the Society to produce a Supreme Court decision or a Settlement Agreement on a judicial review application initiated by Mr. Khan. The Society submits that Mr. Khan is well-aware that there is no decision or settlement agreement on his judicial review application.

[76]           I decline to order disclosure of these documents for the straightforward reason that they do not exist. Mr. Khan has not provided any basis to suggest otherwise, and I caution him that this request is not a proper use of the disclosure process.

IV    Costs

[77]           The Society seeks costs. It has not pointed to any caselaw or principles to support this request. As such, I decline to order costs.

V       CONCLUSION

[78]           For the above reasons, I dismiss the application with one exception.

VI    Order

[79]           The Society must disclose a copy of the Application File within two weeks of receiving this decision.

 

Kylie Buday

Tribunal Member