Union of BC Indian Chiefs v. Provincial Health Services Authority and others (No. 5), 2025 BCHRT 258
Date Issued: October 17, 2025
File: CS-001385
Indexed as: Union of BC Indian Chiefs v. Provincial Health Services Authority and others (No. 5), 2025 BCHRT 258
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:
Union of BC Indian Chiefs
COMPLAINANT
AND:
Provincial Health Services Authority and Vancouver Coastal Health Authority and BC Transplant Society
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO EXCLUDE EVIDENCE
Tribunal Member: Shannon Beckett
Counsel for the Complainant: Jason Gratl
Counsel for the Respondents: Alon Mizrahi and William Kunimoto
I INTRODUCTION
[1] The Provincial Health Services Authority, Vancouver Coastal Health Authority, and the BC Transplant Society [together, the Respondents] are responsible for managing and delivering liver transplants in the province. The Union of BC Indian Chiefs [UBCIC] has brought a class complaint against the Respondents on behalf of two classes of Indigenous people defined as:
i. Indigenous persons who have been adversely impacted by a policy requiring six months of abstinence from alcohol before a liver transplant [Abstinence Class]; and
ii. Indigenous persons with PBC1 who have been adversely impacted by the use of MELD-Na scores to determine their access to a liver transplant [MELD-Na Class]
[2] In the complaint, UBCIC alleges that the process to determine access to a liver transplant in this province discriminates against the Abstinence Class and MELD-Na Class, based on their race, ancestry, and physical disability, contrary to s. 8 of the Human Rights Code.
[3] This decision considers the Respondents’ application for an order excluding witness evidence relating to David Dennis from the upcoming hearing of this complaint.
[4] In 2019, Mr. Dennis filed a complaint similar to the within complaint. Unfortunately, in 2020 Mr. Dennis passed away before his complaint could be heard by the Tribunal. Now, in the present class complaint, UBCIC seeks to present evidence from Mr. Dennis’ spouse and family doctor about the application of a six-month alcohol abstinence policy to Mr. Dennis in the context of his referral for a liver transplant. The Respondents object to the admission of any such evidence based on the doctrine of issue estoppel, or, alternatively, based on issues of fairness they say relate to the admissibility of similar fact evidence.
[5] For the reasons set out below, I deny the Respondents’ application to exclude evidence.
II BACKGROUND
[6] In August 2019, Mr. Dennis filed a complaint against the Respondents and the Ministry of Health. In his complaint, Mr. Dennis alleged he was discriminated against through application of a policy requiring six months of abstinence from alcohol to be eligible for liver transplant. As set out above, this is one of the allegations that UBCIC brings in the present class complaint.
[7] UBCIC was originally listed as a complainant in Mr. Dennis’ complaint, but on November 26, 2019, the Tribunal rejected UBCIC as a complainant [the Screening Decision]. It provided UBCIC with an opportunity to provide further information about whether and how it could be an intervener or representative complainant, but at that time UBCIC did not provide any further information or otherwise contest the Screening Decision.
[8] In May 2020, Mr. Dennis passed away. Afterward, the Tribunal sought submissions on its jurisdiction to continue hearing his complaint. The Respondents and UBCIC provided submissions on the jurisdiction question. UBCIC also filed the within class complaint, as well as an application asking the Tribunal to (1) join the class complaint with Mr. Dennis’ complaint, and (2) reconsider the Screening Decision [the Joinder Application].
[9] On September 23, 2020, the Tribunal dismissed Mr. Dennis’ complaint for lack of jurisdiction: Dennis v. Ministry of Health and others, 2020 BCHRT 176 [the Jurisdiction Decision]. In its decision, the Tribunal held that because it no longer had jurisdiction over the Dennis complaint, UBCIC’s Joinder Application was moot.
[10] Thereafter, the UBCIC class complaint proceeded forward.
[11] On September 19, 2025, UBCIC provided will-say statements for two proposed witnesses, Carol McCarthy (Mr. Dennis’ spouse) and Dr. Christine Singh (Mr. Dennis’ family doctor). According to the will-say statements, Ms. McCarthy and Dr. Singh are expected to give evidence relating to the circumstances around Mr. Dennis’ referral for assessment for liver transplant eligibility, including evidence about the application of a six-month alcohol abstinence policy to Mr. Dennis.
III DECISION
A. Issue Estoppel
[12] The test for issue estoppel has two steps. First, the Tribunal must determine whether the preconditions for the estoppel are met. Those preconditions are: (1) the same question has been decided; (2) the decision was final; and (3) the parties or their privies were the same in each proceeding: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para. 25. In the present case, the burden is on the Respondents to establish these preconditions: Danyluk at para. 33. If the preconditions are met, the Tribunal must then determine whether, as a matter of fairness, it should apply issue estoppel: Danyluk at para. 33; Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 at paras. 36-39; Gatica and another obo Temporary Foreign Workers from Guatemala v. Golden Eagle Blueberry Farm and others (No. 3), 2024 BCHRT 154 at para. 13.
[13] I find the doctrine of issue estoppel does not apply in this situation. The Respondents have not demonstrated that the first precondition – that the same question has been decided – has been met.
[14] The Respondents make interrelated arguments about what question arising from Ms. McCarthy and Dr. Singh’s proposed evidence is the “same question” that the Tribunal has already decided. First, they say that the Screening Decision held UBCIC could not be a complainant in the Dennis complaint. Second, they say the Tribunal decided UBCIC could not present Mr. Dennis’ experience when it held the Joinder Application was moot. Third, they say that the Jurisdiction Decision decided the Tribunal did not have jurisdiction to hear Mr. Dennis’ complaint.
[15] The Respondents say that together, these findings demonstrate the Tribunal has finally and conclusively decided that UBCIC cannot lead Mr. Dennis’ case. They characterize the proposed evidence of Dr. Singh and Ms. McCarthy as an attempt to relitigate the decision that UBCIC cannot lead Mr. Dennis’ case.
[16] I agree with the Respondents that the effect of the Jurisdiction Decision is that the Tribunal cannot make a finding that Mr. Dennis experienced discrimination. Human rights are personal rights, and when Mr. Dennis passed away, the Tribunal lost jurisdiction over his claim that his personal human rights had been infringed by the Respondents: British Columbia v. Gregoire, 2005 BCCA 585, leave to appeal denied, [2006] SCCA No. 23.
[17] However, I disagree that either or both of the Jurisdiction and Screening Decisions estops UBCIC from leading any evidence relating to Mr. Dennis in the class complaint. The proposed evidence of Dr. Singh and Ms. McCarthy has to do with the alleged existence and application of an alcohol abstinence policy. This is a key issue in dispute in the present class complaint. The fact that the witnesses’ evidence about the alleged policy may be in relation to Mr. Dennis is not enough to create an estoppel. I do not understand UBCIC to be asking the Tribunal, through this evidence, to adjudicate whether Mr. Dennis personally experienced discrimination. Rather I understand that UBCIC seeks to rely on this evidence to support its allegation about the existence and application of a six-month abstinence policy, which allegation is vigorously contested by the Respondents in the present class complaint.
[18] The Jurisdiction Decision did not make findings about any substantive issues in Mr. Dennis’ complaint, including findings about the existence or application of any alcohol abstinence policy. In fact, the Jurisdiction Decision expressly held that UBCIC’s class complaint would determine whether the Respondents have applied any six-month abstinence policy and whether any such policy led to systemic discrimination: at para. 15.
[19] Similarly, the Jurisdiction Decision’s finding that the Joinder Application was moot was not a determination on the merits of the Joinder Application. The Tribunal did not, as suggested by the Respondents, decide that UBCIC was not permitted to present any evidence about Mr. Dennis’ experience. On the contrary, the Tribunal observed that “the interests advanced in [the Joinder Application] can be addressed through the representative complaint”: at para 14.
[20] In my view, the question the Jurisdiction Decision answered was whether the Tribunal could continue to adjudicate Mr. Dennis’ individual complaint; that is, to proceed to decide whether Mr. Dennis personally experienced discrimination. Similarly, the question the Screening Decision answered was whether UBCIC was a proper complainant in Mr. Dennis’ individual complaint. Neither of these questions is implicated in the proposed evidence of Dr. Singh or Ms. McCarthy, even though their evidence will relate to Mr. Dennis’ experience. Simply because the Tribunal hears evidence that relates to Mr. Dennis’ experience with an alleged alcohol abstinence policy, that does not mean it is allowing UBCIC to present Mr. Dennis’ individual complaint. If the Tribunal were to hear the witness evidence and accept that Mr. Dennis’ family doctor applied a six-month alcohol abstinence policy to him, it would not be necessary for the Tribunal to adjudicate whether Mr. Dennis was personally discriminated against.
[21] The Respondents say that even though the merits of the Dennis complaint were never adjudicated, issue estoppel should nevertheless apply in the present case. In support, they point to the Tribunal’s decision in Glynnis Kirchmeier and Glynnis Kirchmeier obo others v. University of British Columbia, Case Number: CS-001093 /14965 (unreported), issued July 24, 2024 [Kirchmeier].
[22] Kirchmeier was about whether the Tribunal’s decision dismissing allegations by an individual complainant as untimely, estopped that complainant from raising those same allegations in the context of a related class complaint. The Tribunal held that it did.
[23] In particular, the Tribunal held that Stephanie Hale, who brought an individual complaint against UBC alleging sex discrimination, was precluded from joining the Kirchmeier class complaint which raised some of the same allegations against UBC. Ms. Hale filed her individual complaint against UBC around the same time as Ms. Kirchmeier filed the class complaint, and through the course of adjudicating Ms. Hale’s individual complaint, the Tribunal issued a decision dismissing certain allegations from 2015 as untimely. Those 2015 allegations met the class definition in the Kirchmeier complaint, and in Kirchmeier, the Tribunal was asked to determine whether Ms. Hale was allowed to be a class member. The Tribunal held Ms. Hale was estopped from taking part in the Kirchmeier class complaint because the Tribunal had already decided that the 2015 allegations, which brought her within the class definition, were untimely.
[24] I do not find Kirchmeier helpful to the analysis in the present application. Kirchmeier dealt with a situation where a complainant was seeking to re-litigate, through her participation in a class complaint, allegations of discrimination the Tribunal had already dismissed while adjudicating her individual complaint. In the present case, the Tribunal did not adjudicate any of Mr. Dennis’ allegations of discrimination in the Jurisdiction Decision. Further, the proposed evidence of Dr. Singh and Ms. McCarthy is not being proffered to support Mr. Dennis’ individual allegations of discrimination as a means of re-litigating his dismissed complaint.
[25] The Respondents emphasise that the Tribunal’s decision that Ms. Hale’s 2015 allegations were untimely was not a decision on the merits of her complaint, and yet the Kirchmeier decision still held the first pre-condition of estoppel had been met. However, the timeliness decision in Ms. Hale’s individual complaint was a substantive decision about the 2015 allegations. The Tribunal considered the allegations, decided they were untimely, and dismissed them. That is very different from the Tribunal deciding, as it did in the Jurisdiction Decision, that it lost jurisdiction to consider the substantive issues raised in the complaint. Further, Kirchmeier also considered that Ms. Hale went on to have her individual complaint adjudicated on its merits, which is clearly not the case here.
[26] On balance, I find the Respondents have not demonstrated that the proposed evidence of Dr. Singh and Ms. McCarthy will decide the same question as the Tribunal has addressed in either or both of the Screening and Jurisdiction decisions. Therefore, they have not proved the pre-conditions necessary for a finding of estoppel.
[27] I acknowledge the Respondents’ reference to well established case law which cautions against an overly formalistic application of issue estoppel. However, I note that the mischief those cases caution against is unnecessary litigation. Here, allowing Dr. Singh and Ms. McCarthy to testify about Mr. Dennis’ experience in relation to a six-month abstinence policy in the within class complaint would not duplicate litigation or possibly lead to findings contrary to those made in a previous decision. In short, their evidence would not result in unnecessary litigation.
[28] Even if I were to find that the pre-conditions of estoppel were met, I would find it unfair to apply the estoppel in this case. I agree with UBCIC that although Mr. Dennis’ death deprived him of the ability to have his individual complaint adjudicated, his death should not hold negative repercussions for the class members in the present complaint who seek to establish the existence and application of an alcohol abstinence policy which they say systemically discriminates against them.
[29] For the above reasons, I deny the Respondents’ application to exclude the evidence of Dr. Singh and Ms. McCarthy on the basis of issue estoppel. I move on to consider the Respondents’ arguments about similar fact evidence and overall fairness.
B. Similar Fact Evidence and Other Fairness Concerns
[30] Similar fact evidence is a subcategory of character or propensity evidence. It is evidence of a person’s past conduct that is similar to, or the same as, the person’s impugned conduct in a given case. Under the strict rules of evidence, similar fact evidence is inadmissible if its only purpose is to demonstrate a person’s propensity to act in a certain way. However, if the similar fact evidence is relevant and shows strong similarities/patterns in relation to impugned conduct in a given case, then the evidence may be admissible as a narrow exception to the rule against admitting character or propensity evidence.
[31] Section 27.2(1) of the Code provides the Tribunal with discretion to admit evidence it considers necessary and appropriate, whether or not the evidence would be admissible in a court of law. As a result, the rules of evidence applied by the courts in determining the admissibility of similar fact evidence in criminal and civil cases are not necessarily applicable by the Tribunal. However, the Tribunal has taken guidance from the rules that apply to similar fact evidence when determining whether to exercise its discretion under s. 27.2(1) to admit the evidence as necessary and appropriate.
[32] The Tribunal’s usual approach to assessing whether to admit similar fact evidence is first, to determine whether the evidence is properly characterized as similar fact evidence, second to determine whether the evidence is relevant to a fact in dispute in the complaint, and third, to determine whether the probative value of the evidence outweighs its prejudicial effect: Neumann v. Lafarge Canada (No. 4), 2008 BCHRT 303, at paras 10 and 22.
1. Is the proposed evidence similar fact evidence?
[33] In the present case, the Respondents do not clearly explain why they say the proposed evidence of Dr. Singh and Ms. McCarthy is similar fact evidence. They simply say that evidence about Mr. Dennis’ experience with the liver transplant system is similar fact evidence because he is not a class member/complainant in the class complaint.
[34] UBCIC did not provide submissions in response to the Respondents’ submissions about similar fact evidence or other fairness issues.
[35] I disagree that the proposed evidence of Dr. Singh and Ms. McCarthy is similar fact evidence.
[36] The proposed evidence is about whether a six-month alcohol abstinence policy existed and was applied to Mr. Dennis. The existence and application of any such policy after May 2019 are issues in dispute in the present complaint. Whether or not an abstinence policy existed or was applied to Mr. Dennis does not suggest any kind of propensity in relation to the Respondents in this case. Admission of the evidence will not influence the Tribunal to consider that the Respondents are the “type” of organizations that would apply such a policy, which is the kind of reasoning that underlies the rationale for the exclusion of similar fact evidence adduced for the purpose of showing propensity. The questions the proposed evidence relates to are questions of fact; the policy either existed or did not, it was either applied or was not. That Mr. Dennis is not a class member does not mean that the proposed evidence is similar fact evidence, it is simply evidence.
2. Other fairness issues
[37] Given my finding that the proposed evidence of Dr. Singh and Ms. McCarthy is not similar fact evidence, it is unnecessary for me to consider the other elements of the similar fact evidence analysis. However, it is clear from the Respondents’ submissions on both similar fact evidence and issue estoppel, that they view any evidence relating to Mr. Dennis as inadmissible. They argue variously that it is irrelevant, untimely, has no probative value, and would be prejudicial if it were to be admitted.
[38] Specifically, the Respondents make the following arguments about the fairness of admitting evidence relating to Mr. Dennis:
i. There has been limited disclosure of Mr. Dennis’ medical records and it is not clear whether UBCIC has authorization to disclose additional records. As a result, it would be substantially unfair to allow UBCIC to lead incomplete evidence relating to Mr. Dennis’ pathway through the BC liver transplant system.
ii. As Mr. Dennis has passed away, the Respondents will be deprived of cross-examining him on crucial evidentiary issues that would arise in “UBCIC’s direct”.
iii. Any evidence about Mr. Dennis is irrelevant and not probative of any issues in dispute in the present complaint.
iv. Some of the proposed evidence may be untimely.
[39] In my view, these arguments are outside of the scope of this application. I do not have an application for disclosure before me, which would be the appropriate method by which to decide issues relating to insufficient disclosure. Nor do I have specific submissions on how and why some of the evidence might be untimely, and what the Tribunal should do as a result. To the extent that the Respondents do not seek further disclosure and simply object to the admissibility of this evidence because of insufficient disclosure, timeliness, or on some other basis, I find the objection is premature. A more appropriate time to make this objection will be at the hearing, where the Tribunal can review the specific evidence to be considered for admissibility, and can hear from both parties on the substance of the objection.
IV CONCLUSION
[40] For the above reasons, I dismiss the Respondents’ application to exclude evidence.
Shannon Beckett
Tribunal Member