Radheshwar v. Police Complaint Commissioner and others, 2025 BCHRT 233
Date Issued: September 16, 2025
File: CS-004708
Indexed as: Radheshwar v. Police Complaint Commissioner and others, 2025 BCHRT 233
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:
Sundar-Jovian Radheshwar
COMPLAINANT
AND:
Police Complaint Commissioner and Abbotsford Police Department and Randy Riehl
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Edward Takayanagi
On their own behalf: Sundar-Jovian Radheshwar
Counsel for the Respondent, Police Complaint Commissioner: Deborah K. Lovett, K.C.
I INTRODUCTION
[1] In this decision, I explain why I dismiss Dr. Sundar-Jovian Radheshwar’s complaint as against the Police Complaint Commissioner under s. 27(1)(c) of the Human Rights Code.
[2] Dr. Radheshwar made a complaint under the Police Act about members of the New Westminster Police Department to the Commissioner. Pursuant to their authority under s. 92 of the Act, the Commissioner directed that an external police force, the Abbotsford Police Department [APD], investigate the complaint. The APD appointed Sergeant Randy Riehl to conduct the investigation. Dr. Radheshwar filed a complaint against Sergeant Riehl. The Tribunal included the Police Complaint Commissioner and the APD as respondents to the complaint. Dr. Radheshwar alleges the Respondents discriminated against him in the area of services on the grounds of race, ancestry, colour, and place of origin contrary to s. 8 of the Human Rights Code in carrying out the investigation. Dr. Radheshwar says Sergeant Riehl’s investigation was biased and he incorrectly concluded that the New Westminster officers did not commit misconduct.
[3] The Commissioner applies to dismiss the complaint as against them under s.27(1) of the Code. They say Dr. Radheshwar has no reasonable prospect of proving a service-related adverse impact because the Commissioner does not employ Sergeant Riehl and Dr. Radheshwar does not allege any adverse treatment by the Commissioner or any of its staff. The APD and Sergeant Riehl take no position on the dismissal application.
[4] For the reasons that follow, I grant the Commissioner’s application and dismiss the complaint as against them. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
II BACKGROUND
[5] On July 27, 2020, Dr. Radheshwar, who describes himself as a racialized male with brown skin colour, was stopped outside of his apartment building by two officers of the New Westminster Police Department. They asked him if he was named Abdul, and Dr. Radheshwar said he was not. The officers engaged with Dr. Radheshwar about whether he was in fact Abdul before they concluded Dr. Radheshwar was not the person they were seeking and left.
[6] Later the same day, Dr. Radheshwar made a complaint to the Commissioner about the interaction alleging he was racially profiled. The Commissioner gave direction to the New Westminster Police Board, which subsequently dismissed Dr. Radheshwar’s complaint. The New Westminster Police Board’s handling of the complaint is the subject of a separate human rights complaint: Radheshwar v. Coté and others, 2025 BCHRT 83.
[7] On November 16, 2020, Dr. Radheshwar filed a second complaint with the Commissioner about the July 27, 2020, incident. The Commissioner accepted the second complaint and determined that an external police force should investigate the complaint. The Commissioner directed the APD to investigate Dr. Radheshwar’s complaint about the New Westminster Police Department. The Chief Constable of the APD appointed Sergeant Riehl to conduct the investigation. On July 8, 2021, Sergeant Riehl concluded his investigation and submitted his final investigative report to the APD Chief Constable. The APD Chief Constable concluded the officers of the New Westminster Police Department did not commit misconduct.
[8] Dr. Radheshwar requested a review of the APD’s decision to the Commissioner. The Commissioner, pursuant to their authority under s. 117 of the Act appointed a retired judge to review Sergeant Riehl’s report. The retired judge concluded that the allegations of misconduct by the officers of the New Westminster Police Department were unsubstantiated and upheld APD’s decision.
[9] Dr. Radheshwar filed a human rights complaint against Sergeant Riehl alleging he discriminated by conducting the investigation in a hostile and biased manner, incorrectly racializing him in the written report, and finding that the officers of the New Westminster Police Department did not commit misconduct.
[10] On February 29, 2024, the Tribunal accepted Dr. Radheshwar’s complaint. The Tribunal included the Commissioner and APD as respondents because they were “apparently responsible as employer of Randy Riehl”.
[11] In a decision of January 28, 2025, the Tribunal suspended the Commissioner’s disclosure obligation and allowed them to file an application to dismiss. The Tribunal limited the grounds of dismissal to those based on legal arguments that do not require reference to any disputed factual issues respecting which the Commissioner says they are precluded from disclosing relevant documents under s.51.03 of the Act.
III DECISION
[12] The Commissioner applies to dismiss Dr. Radheshwar’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c) The onus is on the Commissioner to establish the basis for dismissal.
[13] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[14] 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 adduced at the hearing: University of British Columbia v. Chan,2013 BCSC 942 at para. 77.
[15] 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.
[16] To prove his complaint at a hearing, Dr. Radheshwar will have to prove that he has a characteristic protected by the Code, he was adversely impacted in services, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33.
[17] The Commissioner does not dispute that Dr. Radheshwar’s race, ancestry, colour, and place of origin are protected characteristics. The Commissioner say that Dr. Radheshwar has no reasonable prospect of proving a service-related adverse impact. It says that under its enabling legislation the service it offers to the public is narrow and there is no reasonable prospect that Dr. Radheshwar will be able to prove there was discrimination in the service the Commissioner provided to him under the Act. It says there is no reasonable prospect that the Commissioner will be held responsible for the discrimination alleged.
[18] Dr. Radheshwar alleges that the investigation by Sergeant Riehl was discriminatory. He says Sergeant Riehl was accusatory and hostile when interviewing him, incorrectly identified his race in the written report, and the APD incorrectly concluded that the New Westminster officers did not commit misconduct. Dr. Radheshwar says the service the Commissioner provides to the public is investigating complaints of police misconduct, and this service was provided in a discriminatory manner.
[19] For the Tribunal to find that discrimination occurred, contrary to s. 8 of the Code, it must find that the alleged discrimination occurred regarding a service customarily available to the public: British Columbia v. Crockford, 2006 BCCA 360 at para. 78. In cases where the respondent disputes that the complainant’s allegations have to do with a service customarily available to the public, the Tribunal must identify the service in question, keeping in mind that not all the activities of a service provider are necessarily subject to scrutiny under the Code just because some are: Bond and Bond v. The Owners, Strata Plan NW 2671, 2024 BCHRT 21 at para. 74.
[20] The issue before me is whether there is no reasonable prospect that the Tribunal would find that the Commissioner offers investigative services or decisions about complaints of misconduct as alleged. I am satisfied based on all the information before me that there is not.
[21] The Commissioner derives their authority from the Act. The Commissioner is an independent officer of the Legislature who is appointed under s. 47 of the Act. They are responsible for “overseeing and monitoring complaints and investigations” involving municipal police: Act, s. 177(1).
[22] Part 11 of the Act empowers the Commissioner to deal with allegations of misconduct. The section has been described by the court in Florkow v. British Columbia (Police Complaint Commissioner), 2013 BCCA 92 at para. 6 as:
… dense, complicated and often confusing. Its provisions are hedged round with exceptions, qualifications and limitations that are often located in other sections not in close proximity. One must frequently follow cross-references to other sections, and few provisions can be said to stand alone. It is not a model of clarity. …
[23] The Commissioner has oversight responsibilities but does not directly involve themselves in deciding misconduct complaints or allegations on their merits. Instead, the Commissioner is tasked with carrying out a gatekeeping role of ensuring that complaints are investigated: Florkow at para. 2.
[24] When a complaint is received the Commissioner determines whether the complaint is admissible. A complaint is admissible if: the conduct alleged would, if substantiated, constitute misconduct; the complaint was made within the time limit for making complaints; and is not frivolous or vexatious: Act, s. 82(2). The decision on admissibility is not an adjudication on the merits of the complaint, but rather a screening determination on whether the alleged conduct, if substantiated, would constitute misconduct: Elsner v. British Columbia (Police Complaint Commissioner), 2018 BCCA 147 at para. 60.
[25] If the Commissioner determines that a complaint is admissible, they forward a copy of the complaint to the chief constable and the board of the municipal police department that is the subject of the complaints: Act, s. 170(c).
[26] Section 93 provides the Commissioner with the authority to order an investigation if, at any time, information comes to their attention concerning the conduct of a police officer which, if substantiated, would constitute misconduct. Their statutory power is to direct than an investigation be conducted by an investigating officer who may be appointed by the commissioner: Act, s. 93(b)(ii).
[27] In addition, if the Commissioner determines that it is in the public interest, they may direct that an investigation of the admissible complaint be conducted by an external police service, not connected to the police department that is the subject of the complaint: Act, s. 92.
[28] The conduct of investigations is governed by ss. 98 to 110 which set out timelines for periodic reporting, investigation powers, members’ duties to cooperate with investigations, the taking and use of statements, and the mandatory contents of a final investigation report.
[29] Final investigation reports from such investigations are provided to a discipline authority, normally the chief constable of the police department conducting the investigation: Act, s. 76. The discipline authority must review the report and evidence and records referenced and determine whether the evidence referenced in the report appears to substantiate the allegation and requires the taking of disciplinary or corrective measures: Act, s. 112(2). The discipline authority’s decision about whether the complaint appears to constitute misconduct is not open to question or review by a court: Act, s.112(5).
[30] The only avenue for a review of the discipline authority’s decision is if there is a reasonable basis to believe the decision is incorrect. In that case, the Commissioner may appoint a retired judge to review the final investigation report and make a decision on the matter: Act, s.117(1). This power is only triggered if the discipline authority finds the impugned conduct does not constitute misconduct. The retired judge’s decision on review of the report is final and conclusive and not open to question or review by a court: Act, s. 117(11).
[31] The Commissioner is protected from legal proceedings for anything done in the good faith performance of powers and duties under the Act pursuant to s.51.03(2).
[32] Against this legislative background, I turn to the specific allegations of this complaint. The subject of Dr. Radheshwar’s human rights complaint is that Sergeant Riehl conducted a discriminatory investigation and the ultimate decision made by the discipline authority is incorrect.
[33] The Commissioner says the only services they provide to the public are those defined in the Act. Specifically, they argue that, in the context of Dr. Radheshwar’s human rights complaint, their role was limited to determining that the complaint about the New Westminster police department was admissible, determining that the complaint should be investigated by an external police force, directing the APD to conduct an investigation of the complaint, and appointing a retired judge to review Sergeant Riehl’s investigative notes to determine if misconduct occurred. They deny they have any role in the investigation of a complaint or making a decision about whether misconduct occurred.
[34] Based on the materials before me, I am satisfied that Dr. Radheshwar’s complaint as against the Commissioner has no reasonable prospect of success. The specific language of the Act supports that the Commissioner’s role was limited to making a determination about whether the complaint was admissible and directing the APD to conduct an investigation. Dr. Radheshwar’s complaint does not allege adverse treatment with respect to these services.
[35] Regarding the allegations that the investigation was conducted in a discriminatory manner by Sergeant Riehl and that the decision finding no misconduct is incorrect, I am persuaded that there is no reasonable prospect the Commissioner could be found liable for these allegations. The Act is clear that the Commissioner’s powers relating to this investigation were limited to directing that an investigation be conducted by an external police department, requiring updates on the progress of the investigation, and appointing a retired judge to review Sergeant Riehl’s final investigation report: Act, s.92(1), 97(1), 117(1). The cumulative effect of the provisions of the Act is to limit the ability of the Commissioner to direct the conduct of an investigation. The Commissioner relies on the Tribunal’s decision in Farrell and Farrell obo others v. Hanahreum Mart and others (No. 2), 2007 BCHRT 160 at para. 13 where the Tribunal said that to establish liability against a respondent, that respondent must be “responsible, independently or in concert with others, for the discrimination alleged.” Based on the language of the Act, and the information before me, I am satisfied that there is no reasonable prospect the Tribunal would find the Commissioner had a role in Sergeant Riehl’s investigation. I am therefore satisfied that there is no reasonable prospect that the Tribunal would find the Commissioner responsible for the discrimination alleged.
[36] Dr. Radheshwar argues that the Commissioner is vicariously liable for the conduct of Sergeant Riehl under s. 44(2) of the Code.
[37] Section 44(2) provides that:
An act or thing done or omitted by an employee, officer, director, official or agent of any person within the scope of the person’s authority is deemed to be an act or thing done or omitted by that person.
[38] The Commissioner argues that their relationship to Sergeant Riehl is not captured under the Code and therefore they cannot be held vicariously liable for his conduct. I agree. Under the Act, the Commissioner’s role is to direct that an investigation be conducted and to require that an investigating officer provide progress reports. Here, the Commissioner determined that the complaint should be investigated by an external police force and directed the APD to investigate the complaint. The Commissioner has no role under the Act in the selection of the investigating officer. The appointment of Sergeant Riehl to conduct the investigation was made by the APD. There is nothing more which indicates a level of control or dependency which characterizes an employment-like relationship or a relationship of agency.
[39] In these circumstances where the Act defines and limits the role of the Commissioner in investigations so that Sergeant Riehl is neither an employee nor an agent of the Commissioner, I am persuaded that there is no reasonable prospect that the Commissioner will be held to have been responsible for the discrimination alleged. Accordingly, I find the complaint against the Commissioner has no reasonable prospect of success and I dismiss it under s. 27(1)(c).
IV CONCLUSION
[40] I allow the application and dismiss the complaint as against the Police Complaint Commissioner under s. 27(1)(c).
Edward Takayanagi
Tribunal Member