Cook B v. OPAL Development Limited Partnership (No.2), 2025 BCHRT 164
Date Issued: July 17, 2025
File: CS-000306
Indexed as: Cook B v. OPAL Development Limited Partnership (No.2), 2025 BCHRT 164
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:
Cook B
COMPLAINANT
AND:
OPAL Development Limited Partnership
RESPONDENT
REASONS FOR DECISION
APPLICATION TO RECONSIDER A SCREENING DECISION
Rule 36
Tribunal Member: Laila Said Alam
Counsel for the Complainant: Danielle Temple
Counsel for the Respondent: Andrea Raso
I INTRODUCTION
[1] This is an application by Cook B to reconsider the screening decision where the Tribunal did not allow the complaint to proceed based on colour.
[2] Cook B started working for OPAL Development Limited Partnership [the Respondent] on October 15, 2019. She was terminated during her probationary period in late November 2019. In her original complaint, Cook B alleged that she was discriminated against in employment by the Respondent, in part, on the basis of colour when it failed to consider her for a wok position and terminated her employment. The Tribunal did not allow the complaint to proceed on the ground of colour. However, in the course of the hearing, the Respondent led evidence that suggested a possible ground of discrimination based on colour.
[3] I was designated to hear and decide the complaint. I remain seized of the complaint. I adjourned the hearing to allow Cook B to file an application to reconsider the screening decision.
[4] The Respondent did not file any submissions in response to Cook B’s application. I am satisfied they had notice and an opportunity to do so.
[5] For the following reasons, I find that it is in the interest of fairness and justice to allow the application to reconsider the screening decision. The complaint is allowed to proceed on the basis of colour and race.
II BACKGROUND
[6] On December 31, 2019, Cook B filed a complaint with the Tribunal alleging discrimination in employment on the basis of gender identity or expression, family status, and colour. She alleged that the Respondent failed to consider her for a career opportunity (cooking at the wok station) and terminated her employment because of her protected characteristics. Specifically, Cook B alleged that, as a Black female, the Respondent held her to a different, higher, standard than her male co-workers who were predominantly Asian. She said the chefs would often speak in Cantonese or Mandarin about information that the staff needed to know, which was not translated into English. A coworker informed her that Chef Phillip Tam did not like her because she was Black and that Mr. Tam “had it in for her” and was watching her every move. She said the second round of hiring for the kitchen were all Asian individuals and predominantly men.
[7] On August 31, 2020, the Tribunal accepted the complaint for filing on the basis of family status and sex. The Tribunal determined that the complaint would not proceed based on colour.
[8] The complaint proceeded through the Tribunal’s process on the basis of family status and sex. I presided over an oral hearing on the merits over three days, on March 18-20, 2025.
[9] On March 20, 2025, Mr. Tam testified for the Respondent. On cross examination, Cook B’s counsel questioned Mr. Tam on the selection process for a potential candidate for the wok station. The following is the exchange, in relevant part:
Q: Did you remember looking at [Cook B’s] resume?
A: I do.
Q: As part of the wok position or as part of her initial interview?
A: Just for interview. And just the wok station is majorly on the Asian cuisine. Even for me – have 20 year experience, I cannot call myself as a Chinese cook, okay, and so I don’t think I would put [Cook B] in the wok station.
Q: Because she is a woman?
A: No.
Q: Because she’s not Asian?
A: Because she don’t know…Kind of.
Q: Kind of because she’s not Asian?
A: Yeah.
[10] At the end of the Respondent’s case, I expressed my concern that the evidence led by Mr. Tam disclosed a possibility that the Respondent had discriminated against Cook B because of her race, thereby contravening s. 13 of the Human Rights Code. I noted that Cook B had alleged discrimination based on colour, but the protected characteristic had been screened out of her complaint. Pursuant to Emcon Services Inc. v. British Columbia (Council of Human Rights), 1991 CanLII 13136 (BC SC)and Rule 36 of the Tribunal Rules of Practice and Procedure I ordered the hearing to be adjourned so that Cook B could consider filing an application to reconsider the screening decision based on new evidence.
[11] A submission schedule was set, and the parties received a copy of the Tribunal’s audio recording of the March 20, 2025 testimony. Cook B filed this application. The Respondent did not file a response.
III DECISION
[12] I first consider whether Mr. Tam’s evidence warrants reconsideration of the screening decision in the interests of fairness and justice.
A. Whether to Reconsider the Screening Decision
[13] The Tribunal has a limited jurisdiction to reconsider its own decisions: Rule 36. Specifically, the Tribunal may reconsider a decision if it is in the interests of justice and fairness to do so: Routkovskaia v. British Columbia (Human Rights Tribunal), 2012 BCCA 141 at para. 23. The Tribunal exercises this power sparingly, giving due consideration to the principle of finality in administrative proceedings: Grant v. City of Vancouver and others (No. 4), 2007 BCHRT 206 [Grant] at para 10.
[14] The burden is on the person seeking to have a matter re-opened to show that the interests of fairness and justice demand such an order: Grant at para. 10.
[15] The Tribunal may reconsider a decision where there is new evidence that was not available at the time the party made its submission: Gichuru v. Vancouver Swing Society and others, 2018 BCHRT 18 at para. 22. Relevant factors include whether the new evidence could affect the result, and whether reconsideration would result in prejudice: Gichuru at paras. 22, 43.
[16] Cook B argues that, like the circumstances in Emcon, the Respondent cannot defend discrimination at the hearing by invoking another protected characteristic that is not before the Tribunal. Cook B says it would create an unfair and unjust result should the Tribunal not permit Cook B to amend the complaint to include race or colour, in light of Mr. Tam’s evidence: Dhaliwal v. B.C. Timber Ltd. (No. 1), 1983 CanLII 4681 (BC HRT).
[17] I find Cook B’s argument persuasive. Mr. Tam was involved in deciding who would have the opportunity to work on the wok station. His evidence suggested that her sex was not a factor in his decision not to give her the opportunity to work the wok station, but that her colour or race was. This evidence was not available at the time Cook B filed her complaint. Nor was it available when the application to dismiss was decided. Mr. Tam did not give evidence in the application to dismiss this complaint: Cook B v. OPAL Development Limited Partnership, 2024 BCHRT 243. The evidence only became available during his sworn testimony at the hearing. It is new evidence that was not available to Cook B previously. This weighs heavily in favour of allowing the application. The Respondent did not file a response to this complaint and therefore has not pointed to any specific or tangible prejudice. I accept Cook B’s argument that there is no prejudice to the Respondent in reconsidering the screening decision.
[18] I am satisfied that the interests of fairness and justice favour reconsidering the screening decision. I reopen the screening decision and allow the complaint to proceed on the basis of colour. For the following reasons, I also allow it to proceed on the basis of race.
[19] I referred to allegations of racial discrimination at the hearing. In fact, as set out above, the protected characteristic Cook B relied on in her complaint was colour. The Tribunal said in C.S.W.U. Local 1611 v. SELI Canada and others (No. 8), 2008 BCHRT 436, paras. 237 and 238:
The grounds of race, colour, ancestry and place of origin may be combined to define, in a comprehensive way, ethnic identity as a basis of discrimination. As stated by the Board in Espinoza, these four grounds “are often combined as a kind of wide net to get at certain complex discriminatory conduct”. A similar point is made by Tarnopolsky and Pentney, when they state that attempts to define “race” or “colour” are somewhat irrelevant in human rights law, “as the real concern is not with the ‘race’ or ‘colour’ or other hereditary origin of the individual who has been discriminated against, but rather with what the respondent perceives the complainant to be”: p. 5-19 […]
[238] In other words, these grounds intersect in a complex way to describe a set of characteristics which may result in discrimination. The concept of “intersectionality” has been discussed in a number of human rights decisions, including Radek v. Henderson Development (Canada) and Securiguard Services (No. 3), 2005 BCHRT 302. The concept recognizes the reality that a person may be subject to compound discrimination, as a result of the combined disadvantaging effect of a number of prohibited grounds: paras. 463-465.
[20] In my view, in this instance, the protected characteristics of colour and race are inextricably intertwined. I see no unfairness to the Respondent to allowing the complaint to proceed on the basis of both colour and race (as well as sex and family status). I allow the application to amend the complaint to include both race and colour.
IV CONCLUSION
[21] For the foregoing reasons, the application for reconsideration is allowed. I grant the relief sought, and order Cook B’s complaint be amended to include the grounds of colour and race.
Laila Said Alam
Tribunal Member