Cook B v. OPAL Development Limited Partnership (No.3), 2025 BCHRT 191
Date Issued: August 14, 2025
File: CS-000306
Indexed as: Cook B v. OPAL Development Limited Partnership (No.3), 2025 BCHRT 191
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
[RECONSIDERED]
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 Tribunal can reconsider a decision to fix a mistake or problem that makes the process unfair, or to deal with a question the Tribunal should have dealt with, but did not. The Tribunal exercises this power sparingly.
[5] The Tribunal has reconsidered its decision in situations where it failed to consider a party’s submission due to Tribunal error: Seyed-Ali v. Central City Brewers and Distillers Ltd. (No. 2), 2020 BCHRT 171 at para. 9.
[6] Because I failed to consider the Respondent’s response and the Complainant’s reply in Cook B v. OPAL Development Limited Partnership (No. 2), 2025 BCHRT 164 [the Reconsideration Decision]this is an appropriate case for the Tribunal to reconsider its decision, to ensure the parties receive a fair process.
[7] I have reconsidered the Reconsideration Decision in light of the response and reply, however I still come to the same conclusion: 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
[8] The background of this complaint is set out in paragraphs 6 to 10 of the Reconsideration Decision.
[9] A submission schedule was set for the application to reconsider the screening decision. The parties received a copy of the Tribunal’s audio recording of the March 20, 2025 testimony.
III DECISION
[10] 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
[11] 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. Given the importance of finality in administrative decision-making, reconsideration of a Tribunal’s decision is an extraordinary measure: Grant v. City of Vancouver (No. 4), 2007 BCHRT 206, para. 10. The Tribunal exercises this power sparingly, giving due consideration to the principle of finality in administrative proceedings: Grant at para. 10.
[12] 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.
1. Does Cook B’s allegation against Mr. Tam meet the low threshold of the Arguable Contravention Test?
[13] 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 para. 22.
[14] The Respondent says, as a threshold issue on this application, Mr. Tam’s evidence does not constitute new evidence because the new statements do not suggest actions which, if proven, would contravene the Code. In particular, the Respondent says even if Mr. Tam’s statement could support an inference that he improperly relied on Cook B’s colour in assessing her abilities for the wok position, her colour was not a factor to the alleged adverse impact she experienced, as required in Moore v. British Columbia (Education), 2012 SCC 61 at para. 33.
[15] The Respondent says Mr. Tam’s evidence is being afforded too much weight in the circumstances and should not be considered as new evidence that could affect the result. They point out that Mr. Tam is not a native English speaker, and say I ruled that he must answer in English and only use the translator if he felt he needed it. They say in the context of a fast-paced cross-examination in English, he made comments under pressure, while not necessarily understanding fully the questions he was answering. They say the language barrier, and not being able to explain himself more fully prejudiced his ability to convey the truth. The Respondent submits that Mr. Tam’s statement “was attempting to convey that the culture and experience of the Complainant were relevant, but her sex and race were not.”
[16] Further, the Respondent submits that to support an arguable contravention of the Code, Mr. Tam’s statement must indicate that Mr. Tam’s opinions affected the treatment Cook B received in the hiring process. They say such a conclusion would be unfounded because the evidence points to Mr. Mok – and not Mr. Tam – as the individual who made the decision not to hire Cook B for the wok position.
[17] Cook B says Mr. Tam’s direct evidence demonstrates a clear link between Cook B’s protected characteristic and her allegations that the Respondent overlooked her for the wok position, satisfying the arguable contravention test. Here, Cook B alleges that her colour was a factor in not being considered for the wok position, and it can be reasonably inferred from Mr. Tam’s evidence he was part of the decision-making process, and Cook B’s colour was a factor in excluding her from consideration for the employment opportunity.
[18] The threshold for a complainant to allege a possible contravention of the Code is low: Gichuru v. Vancouver Swing Society, 2021 BCCA 103 [Vancouver Swing Society] at para. 56. In applying the arguable contravention test, I only assess the new evidence with a view to determine whether it could support the allegations of discrimination; I do not assess or weigh the evidence with a view to find facts: Vancouver Swing Society at para. 109.
[19] Respectfully, the Respondent mischaracterizes my ruling on Mr. Tam’s use of the interpreter. During my introductory remarks, I told him we had a Cantonese interpreter on the line, and he could access her at any time. At no point during his testimony were limitations placed on his use of the interpreter. When he needed an interpretation, it was provided to him. I am satisfied he understood the questions asked of him, and that he comprehended his responses.
[20] Mr. Tam’s evidence supports the possibility that he was involved in the decision not to consider Cook B for the wok position, and that he did not consider her for the wok position because she was not Asian. The Respondent’s submission in response to this application is that Mr. Tam’s statement was attempting to clarify that Cook B’s culture and experience was relevant, but her sex and race were not. In my view, this all supports a finding that the allegation meets the low threshold of the arguable contravention test that the Respondent did not consider Cook B for an employment opportunity because of her race.
[21] Cook B says this evidence was not available at the time Cook B filed her complaint. Nor was it available when the application to dismiss was decided, as 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.
[22] 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). Cook B argues that, like the circumstances in Emcon Services Inc. v. British Columbia (Council of Human Rights), 1991 CanLII 13136 (BC SC), the Respondent cannot defend discrimination at the hearing by invoking another protected characteristic that is not before the Tribunal.
[23] I find Cook B’s argument persuasive. I am satisfied, on the low threshold of the arguable contravention test, that Mr. Tam’s statement constitutes new evidence that is capable of supporting a “reasonable inference” that the adverse treatment was related to the prohibited ground of discrimination.”: Schnurr v. Douglas College and Greathouse, 2007 BCHRT 40 at para. 23. As such, “it would likely follow that a reconsideration of a screening decision would be in the interests of justice and fairness”: Gichuru at 109.
[24] This weighs heavily in favour of allowing the application.
2. Will reconsideration of the screening decision result in prejudice to any person?
[25] The Respondent says reconsideration at this stage would cause it significant prejudice and would undermine the principles of fairness, finality and the efficient administration of justice. They say Cook B has not provided an explanation for the four and a half year delay in filing the reconsideration decision. They submit that reopening the complaint years after it was screened would prejudice the Respondent through loss of evidence, faded memories, unavailable witnesses, financial and emotional strain, reputational harm, disruption of settled expectations, and the erosion of legal certainty and finality.
[26] I accept Cook B’s argument that the Respondent will not experience prejudice in granting the application to reconsider the screening decision. As previously stated, the four and a half year delay is explained by the new evidence that arose on the last day of the hearing. The Respondent has not provided examples of loss of evidence, faded memories, unavailable witnesses, financial and emotional strain, reputational harm, disruption of settled expectations, and the erosion of legal certainty and finality. I accept Cook B’s submission that many of the reasons listed by the Respondent are rebutted in the context of this complaint. The testimony that constitutes new evidence in this case was called from a witness for the Respondent at the hearing, nor would it further the purposes of the Code to accept the Respondent’s argument that it will cause reputational harm or financial and emotional distress in the unique circumstances where the new evidence may support a finding of discrimination.
[27] I am satisfied that the interests of fairness and justice favour reconsidering the screening decision.
IV CONCLUSION
[28] 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.
[29] 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.
[30] In my view, in this instance, the protected characteristics of colour and race are inextricably intertwined. I see no unfairness to the Respondent to allow 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.
[31] 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