Patsa obo others v. Fraser Health Authority, 2025 BCHRT 176
Date Issued: July 22, 2025
File: CS-006011
Indexed as: Patsa obo others v. Fraser Health Authority, 2025 BCHRT 176
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:
Eleni Patsa obo individuals who have been identified as higher-risk for severe COVID-19 et al
COMPLAINANTS
AND:
Fraser Health Authority
RESPONDENT
REASONS FOR DECISION
APPLICATION TO RECONSIDER A DECISION
Rule 36
Tribunal Member: Shannon Beckett
Counsel for the Complainants: Alison Moore
Counsel for the Respondent: Alon Mizrahi
I INTRODUCTION
[1] On June 10, 2025, the Tribunal reviewed this complaint in accordance with its Case Path Pilot [CPP], and assigned it to the submissions path [the CPP Decision]. In the CPP Decision, the Tribunal invited Fraser Health Authority [FHA] to file a dismissal application under s. 27(1)(b) and/or (c) of the Human Rights Code [Code]. Subsequently, FHA filed a Form 7.5 Request to File a Dismissal Application [the 7.5 Application]. In the 7.5 Application, FHA requested that in addition to s. 27(1)(b) and (c), it also be allowed to apply to dismiss the complaint under s. 27(1)(a) and (d)(ii) of the Code. The Tribunal granted the 7.5 Application in part, allowing FHA to file its dismissal application under s. 27(1)(d)(ii), but not under s. 27(1)(a) [the 7.5 Decision].
[2] FHA now applies to the Tribunal seeking reconsideration of the 7.5 Decision. I did not find it necessary to seek submissions from the Complainant to decide this application.
[3] For the following reasons, I deny FHA’s application. I find this is not an appropriate case in which to exercise the Tribunal’s limited jurisdiction to reconsider its decisions. Although the Tribunal may consider reconsideration requests within the CPP process, the circumstances in which reconsideration of a decision on a Form 7.5 Request to File Dismissal Application will be in the interests of justice and fairness will be exceedingly rare.
II BACKGROUND
[4] On May 6, 2022, the Tribunal issued the Case Path Pilot Practice Direction creating the CPP. The CPP is, as the name indicates, a pilot project launched in part to allow the Tribunal to examine alternate approaches to administering the Tribunal’s s. 27(1) discretion to dismiss complaints without a hearing. The Tribunal’s former practice was to allow respondents to elect whether to bring a dismissal application under s. 27(1) of the Code, subject to certain requirements in the Tribunal’s Rules of Practice and Procedure. Under the CPP, the Tribunal takes a more active role in administering its gatekeeping function by deciding whether to permit submissions under one or more of the grounds for dismissal set out in s. 27(1).
[5] The purpose of the CPP is to better ensure a proportionate allocation of Tribunal resources to applications under s. 27(1), and promote a more timely and fair resolution of complaints: see CPP Practice Direction. The CPP allows the Tribunal to bring its expertise to bear on individual complaints at an early stage, to determine which complaints should proceed directly to a hearing, and whether some complaints may be more fairly and efficiently disposed of, in full or in part, without an oral hearing.
[6] By way of example, it may be fairer and more efficient for a complaint to proceed directly to a hearing where there are factual disputes that will likely require the testing of evidence through cross-examination, even if some narrowing of the issues might be possible on a preliminary basis. There may also be circumstances where a short hearing may be a quicker, fairer process to resolve issues in a complaint than a s. 27(1) application process. This is in part because a s. 27(1) application may or may not dispose of a complaint, whereas a hearing necessarily will. The threshold for a complaint to proceed to a hearing is typically low and, if a s. 27(1) application is denied, a hearing is still required. Particularly in the current context of a significant backlog and delays at the Tribunal, a hearing may be the quickest most resource-efficient path to resolution.
[7] The Tribunal’s CPP review occurs after the complaint and the response to the complaint have been filed, and after the deadline for document disclosure has passed. At this stage, a Tribunal member reviews the complaint and response (including any amendments and/or screening decisions) to determine whether to assign a complaint to the hearing path or the submissions path. The hearing path is the default, and results in the complaint moving forward to be set down for a hearing. The submissions path results in the Tribunal permitting a respondent to file a dismissal application under one or more of the grounds set out in s. 27(1). A Tribunal member will permit submissions under s. 27(1) if they determine that doing so will further the fair and timely resolution of the complaint. As noted, while a hearing finally resolves a complaint in every case, a dismissal application under s. 27(1) can only finally resolve a complaint in favour of a respondent, meaning that a complaint continues to a hearing in any case where the dismissal application is unsuccessful in whole or in part.
[8] In deciding whether to invite submissions under s. 27(1), the Tribunal may consider a variety of intersecting factors, such as:
i. whether there are apparent jurisdictional issues (e.g., where a party may be federally regulated) (s. 27(1)(a)),
ii. whether the complaint may not set out an arguable contravention of the Code (s. 27(1)(b)),
iii. whether all or part of the complaint appears to be filed after the time limit (s. 27(1)(g),
iv. for possible applications to dismiss on the basis that there is no reasonable prospect of success (s. 27(1)(c)), considerations such as:
a. whether the complaint appears to lack merit,
b. whether the complaint and response raise foundational issues of credibility which are unlikely to be resolved in a dismissal application,
c. the likely length of the hearing, including, for example, whether the complaint raises a discrete issue that could be more efficiently resolved in a short hearing,
v. whether it is likely that after a dismissal application, a significant part of the complaint will proceed to hearing anyway,
vi. whether there may be a settlement agreement in place or the complaint may have been resolved in another proceeding (ss. 27(1)(d)(ii), (f)),
vii. whether it appears that it may not further the purposes of the Code for the complaint to proceed against an individual respondent, where an institutional respondent has been named (s. 27(1)(d)(ii)), and
viii. the needs of the particular parties, such as the need for accommodations in the Tribunal’s process, the extent to which a written process may be a barrier in respect of literacy or language, and trauma-informed considerations.
[9] Due to the highly variable nature of complaints before the Tribunal, the above list is not an exhaustive list of the factors the Tribunal may consider. Assignments under the CPP are made on a case-by-case basis.
[10] If a complaint is assigned to the hearing path, a respondent may request permission to file a dismissal application based on new information or circumstances not set out in the complaint or complaint response. Further, if a complaint is assigned to the submissions path, a respondent may request permission to file a dismissal application under a different part of s. 27(1) based on new information or circumstances not set out in the complaint or complaint response. In either case, a respondent must file a Form 7.5 Request to File Dismissal Application setting out:
i. what the new information or circumstances not set out in the complaint or complaint response are,
ii. why the complaint should be dismissed under the requested section(s) of 27(1),
iii. a description of the evidence it would rely on in support of its dismissal application, and
iv. how allowing submissions under s. 27(1) of the Code would further the just and timely resolution of the complaint.
[11] The Tribunal typically does not seek submissions from a complainant when reviewing a 7.5 Request to file Dismissal Application.
[12] In situations where a complaint is assigned to the submissions path, there is no formal application for a complainant to request that their complaint be assigned to the hearing path. The only recourse for a complainant in this situation is to request that the Tribunal reconsider its decision. As I explain below, the circumstances in which the Tribunal would reconsider such a decision are very rare.
III Analysis and DECISION
A. Whether to Accept Late-Filed Submission
[13] Rule 36(2) of the Tribunal’s Rules of Practice and Procedure sets a time limit to file a reconsideration decision: A party must apply to reconsider a decision within 14 days of the date on which the circumstances that form the basis of the application came to the party’s attention or could have come to the party’s attention if the party exercised reasonable diligence, whichever is earlier.
[14] In the present case, it is the 7.5 Decision that forms the basis for FHA’s reconsideration application, and the application was filed within 14 days of when the 7.5 Decision was issued. As such, the reconsideration application is timely. However, 35 days after the 7.5 Decision was issued, FHA filed an unsolicited further submission in support of its reconsideration application. The further submission does not appear to be based on any new circumstances arising since the 7.5 Decision was issued. As such, the further submission is not timely.
[15] The Tribunal has authority to waive or vary time limits set out in the Rules, as it considers appropriate: Rule 2(2). In exercising this discretion, the Tribunal considers that the purpose of the Rules is to “facilitate the just and timely resolution of complaints”: Rule 1(1). In MacLennan v. BC Ministry of Public Safety and Solicitor General, 2018 BCHRT 214 [MacLennan], the Tribunal identified factors that may be relevant in exercising its discretion to waive or vary the time limit in Rule 36(2):
In the context of a late-filed application for reconsideration, the Tribunal must – as in all cases – consider all of the circumstances to exercise its discretion in a manner that best furthers the fair and timely resolution of the complaint and the purposes of the Code. Because the authority to reconsider a final decision is based on considerations of fairness and equity, these will be guiding principles. In my view, relevant factors may include: whether there are serious grounds for reconsideration, the length of the delay, the explanation for the delay, and prejudice to any person. These factors are non-exhaustive. These are not statutory criteria so, unlike a late-filed petition, a person seeking to file a late reconsideration application does not need to satisfy each of the criteria to persuade the Tribunal to waive the time limit. Rather, the Tribunal considers all of the circumstances to determine whether to consider the late-filed application. This is a highly discretionary exercise. [MacLennan at para.19]
[16] I have decided not to accept FHA’s late-filed submission in this case. FHA’s submission is significantly late, having been filed three full weeks past the deadline for filing the reconsideration application. Further, FHA has provided no reason for failing to include the content of the submission at the time it made its reconsideration application. It simply states that it should have included the submission in its initial application. This is not a sufficient explanation. The submissions process on applications before the Tribunal must have a defined end point to ensure complaints can proceed forward in a fair and efficient manner. It is not fair or efficient for parties to continue to add material to submissions previously filed without a reasonable explanation. This is particularly the case with respect to the CPP, which is meant to be an expeditious process.
[17] In any event, I do not find the further submission raises serious grounds upon which the 7.5 Decision ought to be reconsidered. The content of FHA’s additional submission does not appear to address or support the substance of the reconsideration application. The reconsideration application argues that FHA should be permitted to apply to dismiss the complaint for lack of jurisdiction under s. 27(1)(a) of the Code, but the further submission does not reference jurisdiction or make any arguments about whether FHA should be able to make submissions under s. 27(1)(a). Moreover, the further submission makes arguments about the extent to which a class complaint must identify the existence and scope of the class, and that issue was addressed directly in the 7.5 Decision. The 7.5 Decision explained that questions relating to the appropriateness of a complaint proceeding as a class complaint, including issues of class composition and identification, are properly addressed under s. 27(1)(d)(ii) of the Code. The 7.5 Decision has already permitted FHA to bring a dismissal application under s. 27(1)(d)(ii) in relation to its arguments about class member identification. As such, the further submission does not raise a serious ground upon which to reconsider the 7.5 Decision.
[18] For the above reasons I decline to accept the further submission in support of FHA’s reconsideration application. I next consider whether FHA’s timely reconsideration application persuades me that the 7.5 Decision ought to be reconsidered.
B. Whether to Reconsider the Decision
[19] The Tribunal has a limited jurisdiction to reconsider its own decisions. 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.
[20] The burden is on the party seeking to have a matter re-opened to show that the interests of fairness and justice demand such an order: Grant at para. 10.
1. FHA’s Position
[21] Citing British Columbia v. Gregoire, 2005 BCSC 154, appeal dismissed 2005 BCCA 585, leave to appeal denied 2006 CanLII 11838 (SCC), FHA argues that the Tribunal lacks jurisdiction over a complaint where there is no living complainant. It says the Tribunal has yet to rule on this jurisdictional question in the class complaint context where a representative complainant is not part of the defined class and no other class member has yet been identified. It says that allowing FHA to make submissions under s. 27(1)(a) will facilitate the just and timely resolution of the complaint, as the Tribunal has already permitted submissions on three other grounds, and adding a fourth would not unduly increase the resources or time involved in resolving the application. Finally, FHA characterizes the Tribunal’s 7.5 Decision as a “final” decision on the issue of jurisdiction, and says that fairness requires that the Tribunal reconsider its decision.
2. Should the Tribunal Reconsider the 7.5 Decision?
[22] To the extent that FHA says that the interests of fairness and justice require the Tribunal reconsider the 7.5 Decision, I disagree.
[23] In its 7.5 Application, FHA argued that it should be permitted to provide submissions on the Tribunal’s jurisdiction to hear the complaint under s. 27(1)(a), and on the question of whether proceeding with the complaint would further the purposes of the Code under s. 27(1)(d)(ii). On the jurisdictional question, FHA referenced the Class Proceedings Act and argued that in accordance with its provisions, the present complaint should be required to identify two or more class members in order to proceed. FHA argued that the representative complainant is not a class member, and without identification of any class members, the Tribunal lacks jurisdiction to hear the complaint.
[24] The 7.5 Decision considered FHA’s argument that it should be permitted to apply to dismiss the complaint based on lack of jurisdiction under s. 27(1)(a), and rejected it. The Tribunal held that the issue raised by FHA was not properly an issue of jurisdiction, but rather it was an issue pertaining to the appropriateness of the complaint proceeding as a class complaint. As noted above, the Tribunal held that the appropriateness of a class complaint, which encompasses issues such as class composition and identification, is properly considered under s. 27(1)(d)(ii) of the Code. Thus, the Tribunal allowed FHA to provide submissions under s. 27(1)(d)(ii), in addition to the other grounds set out in the original CPP Decision. In accordance with the 7.5 Decision, FHA remains able to advance its arguments about the lack of identified class members under s. 27(1)(d)(ii).
[25] FHA’s reconsideration application repeats the jurisdictional argument it made in its 7.5 Application. Further, it expands on the argument by referencing caselaw which it did not provide in the 7.5 Application, and by making more detailed submissions about the Tribunal’s jurisdiction over class complaints where there is no identified class member. These arguments do not raise a proper basis on which to reconsider the 7.5 Decision. The Tribunal will not reconsider a decision to address arguments that could have been made in the first instance but were not, or to hear a party reargue its case: Ramadan v. Kwantlen Polytechnic University and another (No. 2), 2018 BCHRT 56 at para. 13. In this, I have considered that the Form 7.5 provides limited space, but sufficient space to identify relevant caselaw.
[26] Moreover, the CPP process is a preliminary process, which, contrary to FHA’s submission, does not typically result in “final” decisions on any substantive questions. In fact, the CPP process is quite the opposite of a final decision – it exercises the Tribunal’s procedural discretion as to the administrative vehicle through which substantive decisions will be reached. The only time the CPP process results in a final decision is where, instead of permitting a s. 27(1) application, the Tribunal itself puts the complainant on notice that it may dismiss the complaint.
[27] Although the 7.5 Decision used language expressing the view that the lack of compliance with the Class Proceedings Act and the apparent lack of identification of specific class members did not deprive the Tribunal of jurisdiction to hear the complaint, that language must be understood in light of the nature of the Tribunal’s decision. A 7.5 decision involves the Tribunal deciding the fairest and most efficient path forward for a particular complaint. In this context, the Tribunal’s language does not express any findings or final conclusions on the issue of jurisdiction; rather, the language indicates that FHA’s submissions did not persuade the Tribunal that it would be fairer or more efficient to allow FHA to bring a dismissal application under s. 27(1)(a). The Tribunal’s decision not to permit FHA to bring a dismissal application under s. 27(1)(a) does not mean the Tribunal has finally decided it has jurisdiction over the complaint. It is a procedural decision which sets out that after consideration of the pleadings, FHA’s submissions on the 7.5 Application, and the Tribunal’s usual approach to class complaints, the fairest and most efficient way forward for the complaint is for the Tribunal to permit submissions on whether the complaint should be dismissed under s. 27(1)(b), (c), and/or (d)(ii) of the Code.
[28] Finally, although not exactly the same process, the 7.5 Request to File a Dismissal Application is, in essence, a reconsideration of the initial CPP decision; albeit one where the respondent does not need to first satisfy the Tribunal that it is in the interests of justice and fairness to reconsider the decision. FHA already had the opportunity to provide submissions about why the Tribunal should re-evaluate its original decision to allow a dismissal application on only two grounds. It made submissions in its 7.5 Application, and was successful, in part, in persuading the Tribunal to reconsider its original CPP Decision. Following the Tribunal’s 7.5 Decision, it is not now appropriate for FHA to use the Tribunal’s broader reconsideration process to flesh out its submissions about jurisdiction and try, again, to persuade the Tribunal to change its decision. This runs counter to the principle of finality in decision-making, and undermines one of the key purposes of the CPP, which is to streamline the complaint resolution process and make it more efficient.
[29] In my view, given the purpose and structure of the CPP process, and given that decisions issued within the CPP process are typically not final decisions on the merits of any substantive issue, the interests of fairness and justice will be engaged less frequently with respect to CPP decisions as compared with other types of Tribunal decisions. As such, reconsideration of decisions within the CPP process will be rare. With respect to 7.5 applications in particular, only in exceptionally rare circumstances will it be in the interests of fairness and justice for the Tribunal to consider, for a third time, which path is appropriate in the circumstances of the case.
IV Conclusion
[30] For the above reasons, I decline to reconsider the 7.5 Decision.
Shannon Beckett
Tribunal Member