Clarke v. City of Vancouver and another (No.5), 2025 BCHRT 298
Date Issued: December 3, 2025
File: CS-007423
Indexed as: Clarke v. City of Vancouver and another (No.5), 2025 BCHRT 298
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:
Christopher Clarke
COMPLAINANT
AND:
City of Vancouver and Alan Dobbie
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section s. 27(1)(c)
Tribunal Member: Kathleen Smith
For the Complainant: Christopher Clarke
Counsel for the Respondents: Gabrielle Scorer and Andrew Peng
I INTRODUCTION
[1] Christopher Clarke is a City of Vancouver employee who identifies as Black and Caribbean. His complaint arises out of an incident at a job site in the summer of 2021. Mr. Clarke alleges that City Foreman Alan Dobbie attempted to intimidate and antagonize him and, in so doing, acted with racial bias. Mr. Clarke also asserts that he stood up to Mr. Dobbie who is white and following the altercation, the City disciplined him more harshly than Mr. Dobbie. Mr. Clarke alleges that all of the conduct amounts to discrimination in employment based on race and colour, contrary to s. 13 of the Human Rights Code.
[2] The Respondents deny discriminating. They dispute that the interaction with Mr. Dobbie occurred as alleged by Mr. Clarke and deny it was racially motivated. The City further asserts that it investigated the circumstances of the incident and concluded that Mr. Clarke had engaged in conduct that warranted discipline. In short, the City asserts that it responded reasonably and appropriately and imposed discipline solely because of Mr. Clarke’s misconduct.
[3] The Respondents apply to dismiss the complaint under s. 27(1)(c) of the Code. They argue that a recent decision of the Workers’ Compensation Appeal Tribunal [WCAT] contains factual findings which support a conclusion that the complaint has no reasonable prospect of success at a hearing. The Respondents ask the Tribunal to accept and apply the facts as determined by WCAT and dismiss the complaint. Mr. Clarke opposes the dismissal application and asks the Tribunal to allow his complaint to proceed to a hearing.
[4] For the following reasons, I am persuaded that the complaint has no reasonable prospect of success and dismiss it.
II BACKGROUND
[5] Mr. Clarke and Mr. Dobbie work in the City’s Sewers Operations Branch. Mr. Clarke is an Operations Worker II and Mr. Dobbie is a Working Foreman. The complaint arises out of an interaction between Mr. Clarke and Mr. Dobbie on August 4, 2021, when they were both deployed to a City worksite which involved paving of an intersection. The parties have different perspectives on what happened that day.
[6] Mr. Clarke’s description of events is brief. He says that Mr. Dobbie’s arrival at the job site caused a commotion and disrupted the work that was being done. Mr. Clarke says that he approached Mr. Dobbie to help resolve the issue so they could continue the work. According to Mr. Clarke, Mr. Dobbie went from “0 to 100” with anger and tried to intimidate him with words and physically. Mr. Clarke did not identify the words he says were intimidating. He further says that when he stood his ground, Mr. Dobbie kept coming towards him and divulged confidential information about Mr. Clarke’s previous complaints to antagonize him and push his buttons. By previous complaints, I understand Mr. Clarke to mean earlier complaints he had made about racial discrimination by his City co-workers. Mr. Clarke acknowledges that he called Mr. Dobbie a “Toby” during the interaction. He says that it refers a waterboy in soccer. In the complaint, Mr. Clarke says that the City suspended him for one day because he “finally retaliated and said something back.”
[7] Mr. Clarke alleges that the incident with Mr. Dobbie is part of a larger pattern of “repeated harassment, no resolutions, systemic condoning of this behaviour for 7+ years ongoing.” The complaint does not contain any details regarding the alleged 7+ years of ongoing harassment and discrimination. However, as I understand it, he alleges that co-workers have and continue to engage in racist conduct because City management condones the behaviour by not resolving it and sweeping it under the rug. I also observe that Mr. Clarke has filed other complaints with this Tribunal alleging racial discrimination during his employment with the City. One of those complaints was dismissed after a hearing, and another is at the early stages of the Tribunal’s process.
[8] The City provides a more detailed description of the incident from its perspective which I summarize next.
[9] The City says that when Mr. Dobbie arrived at the job site, he parked his truck near the intersection they were paving. The City says Mr. Dobbie was unaware the crew had not yet erected a “road closed” sign to notify the public of the closure.
[10] A member of the public who was driving behind Mr. Dobbie became upset when he stopped his truck and obstructed traffic. The individual exited his vehicle and yelled at Mr. Dobbie to move his truck. As Mr. Dobbie was interacting with the individual, the City says Mr. Clarke left his vehicle, approached Mr. Dobbie and interjected himself in the interaction. The City says Mr. Clarke told Mr. Dobbie to move his truck which further incited the individual.
[11] According to the City, Mr. Clarke’s interaction with Mr. Dobbie was “abusive” and attracted the attention of other City employees and members of the public. The City asserts that members of the work crew physically restrained Mr. Clarke and his direct supervisor instructed him to return to his vehicle. The City says Mr. Dobbie similarly instructed Mr. Clarke to return to his vehicle. The City asserts that notwithstanding the reasonable instructions from his supervisor and Mr. Dobbie, who was the Working Foreman, Mr. Clarke persisted. Eventually, Mr. Clarke returned to his vehicle and Mr. Dobbie moved his truck.
[12] The City says that during its investigation into the incident, it interviewed Mr. Clarke, Mr. Dobbie, and various witnesses who were present that day. The City says Mr. Clarke admitted that he made a demeaning comment by calling Mr. Dobbie a “Toby”, a term he says refers to a waterboy in soccer.
[13] As a result of the investigation, the City says it determined that Mr. Clarke had engaged in insubordinate and disrespectful behaviour that violated its Respectful Workplace Policy. The City imposed a one-day suspension on Mr. Clarke for his misconduct. The City says it imposed a verbal warning on Mr. Dobbie for failing to lead by example as a supervisor and to take proper steps to de-escalate the situation.
[14] Mr. Clarke filed this complaint on October 5, 2021, the same day the City imposed the suspension.
[15] Also, in October 2021, Mr. Clarke made a mental health injury claim to WorkSafeBC [WSBC] related to the incident. In July 2023, WSBC accepted the claim. The City requested a review of the WSBC decision, and a Review Officer confirmed the decision in February 2024. The City then appealed the Review Decision to WCAT and on April 30, 2025, WCAT issued its decision allowing the appeal and varying the Review Decision. The WCAT decision concludes that Mr. Clarke’s claim “does not meet the requirements for acceptance of a mental disorder arising out of and in the course of his employment.”
[16] The WCAT decision forms the basis of the Respondents’ dismissal application. The Respondents say that in the course of its decision regarding Mr. Clarke’s mental disorder claim, WCAT made factual findings concerning the same events that underpin this complaint. According to the Respondents, those findings support a conclusion that Mr. Clarke’s human rights complaint has no reasonable prospect of success at a hearing.
[17] The Tribunal permitted the Respondents to bring this dismissal application based on the WCAT decision which amounted to new information and circumstances. I pause to note that Mr. Clarke missed his response deadline and later filed an application to file a late response. In a letter decision dated October 29, 2025, the Tribunal permitted his late-filed response, and I have considered it in reaching my decision.
III DECISION
[18] The Respondents apply to dismiss Mr. Clarke’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c). 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. The onus is on the Respondents to establish the basis for dismissal.
[19] To prove his complaint at a hearing, Mr. Clarke would have to establish that he experienced an adverse impact connected to his race or colour as a result of the incident with Mr. Dobbie and the one-day suspension: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33.
[20] Here, the Respondents’ argument is twofold. They argue that the Tribunal ought to apply issue estoppel to prevent Mr. Clarke from relitigating relevant facts that were previously decided by WCAT. They further argue that applying the facts as determined by WCAT, Mr. Clarke has no reasonable prospect of proving that the incident with Mr. Dobbie amounts to discrimination within the meaning of the Code, or that his race or colour were factors in the suspension decision.
[21] I must therefore first decide whether to apply issue estoppel. Issue estoppel is a legal principle that prevents parties from re-litigating an issue of fact or law that has already been finally decided in a prior valid judgment between the same parties. Its purpose is to ensure finality, consistency, and judicial efficiency. If that issue is determinative of a person’s human rights complaint, the Tribunal may dismiss the complaint on the basis that it has no reasonable prospect of success: Krsmanovic v. Snowflake Trading, 2012 BCHRT 113 at paras. 24-26; Stein v. Keebler and others, 2015 BCHRT 79 at para. 101; Fox v Strata Plan KAS 1911 and others, 2018 BCHRT 259 at para. 32.
[22] The test for issue estoppel has two steps. First, I must determine whether: (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 [Danyluk]. If these preconditions are met, I must then determine whether I should use my discretion to apply issue estoppel as a matter of fairness and considering the strong policy factors that weigh against re-litigation of the same issues: Danyluk at para. 33; Wong v. Polynova Industries, 2024 BCHRT 70 at para. 10.
[23] The Respondents argue that the preconditions for issue estoppel have been met because:
a. WCAT decided the same factual issues that are now before the Tribunal, namely: the circumstances leading up to and during the incident; Mr. Clarke’s conduct in the incident; Mr. Dobbie’s conduct in the incident, how the City investigated the incident; and the imposition of discipline by the City on Mr. Clarke;
b. The WCAT decision was a final decision, subject only to judicial review; and
c. All the parties in this complaint were involved in the WCAT proceeding, and the claim was based on the same material facts as those that give rise to this complaint.
[24] There is no dispute that the WCAT decision was a final decision. Mr. Clarke did not apply for a judicial review of the WCAT decision and the deadline for doing so has long passed.
[25] Mr. Clarke disputes, however, that the other preconditions for estoppel are met. Specifically, he argues that WCAT did not decide the issue of discrimination, and he did not participate in the WCAT process.
[26] I begin with Mr. Clarke’s argument that issue estoppel should not apply because he did not participate in the WCAT process. Mr. Clarke’s submission on this issue is very brief. Essentially, he says that he did not participate at WCAT because he was self-represented, he found the process intimidating and confusing, and he was not aware of his deadline.
[27] In reply, the Respondents ask the Tribunal to reject this argument because Mr. Clarke had the opportunity to be heard, and notwithstanding his non-participation, WCAT considered evidence provided by him up to that point.
[28] I agree with the Respondents that Mr. Clarke’s arguments regarding this precondition are unpersuasive. First, it is apparent from the WCAT decision that Mr. Clarke had the opportunity to participate. At paragraph 5, WCAT writes, “WCAT invited the worker to participate in the appeal, but he did not indicate that he wished to do so.” Second, there is no dispute that WCAT had relevant evidence from Mr. Clarke before it, including evidence Mr. Clarke provided to the City during investigation meetings on August 5 and September 15, 2021; evidence that Mr. Clarke provided to a WSBC adjudicator during an interview on January 5, 2022; and evidence that Mr. Clarke provided to a registered psychologist during an assessment on February 9, 2023. Third, Mr. Clarke provides no details or evidence to support his assertion that he did not participate because he was confused and not aware of his deadlines. Given that he had already been through the Review process at WSBC, I would have expected him to say something more to support this explanation. I also observe that Mr. Clarke offered similar explanations for missing his deadline in this application process, and the Tribunal held:
I agree with the Respondents that most of Mr. Clarke’s explanations for not filing a timely response are unpersuasive. Mr. Clarke, like all parties, is required to comply with the Tribunal’s Rules, procedures, and deadlines. I also agree that he has an obligation to request clarification from the Tribunal if he is confused or uncertain about his obligations and timelines, and to seek any extension before his deadline has passed.
[29] In all these circumstances, I am persuaded that the parties were the same, and Mr. Clarke had the opportunity to be heard.
[30] Next, I turn to Mr. Clarke’s argument that WCAT did not decide the same question. There is no dispute that WCAT did not decide the legal issue of discrimination under the Code. However, there is also no dispute that the facts underpinning both claims are the same, i.e. the interaction between Mr. Clarke and Mr. Dobbie on August 4, 2021, and the City’s issuance of a one-day suspension on October 5, 2021. I agree with the Respondents that some of WCAT’s findings relate directly to issues that the Tribunal must decide in this complaint including the circumstances of the interaction between Mr. Clarke and Mr. Dobbie, and the circumstances of the suspension issued by the City.
[31] Where WCAT made specific findings related to the events at the heart of the complaint, I am satisfied that the preconditions for estoppel are established with respect to these factual issues. Mr. Clarke has also not persuaded me that there would be any unfairness from applying issue estoppel where his version of events was explicitly considered by WCAT. Paragraph 30 of the WCAT decision, which is approximately one page in the fourteen-page decision, specifically sets out Mr. Clarke’s account of events as recorded by the WSBC adjudicator on January 5, 2022. I also observe that Mr. Clarke says that he is not trying to re-argue or attack the WCAT decision, but rather he wants the Tribunal to determine whether the treatment he received amounts to discrimination under the Code. The task before me is to decide if Mr. Clarke has no reasonable prospect of proving discrimination under the Code. I find it would not be appropriate to permit Mr. Clarke to re-litigate the specific facts relevant to both the WorkSafe and human right claims. In all these circumstances, I apply issue estoppel. This means I am bound by the factual findings in the WCAT decision.
[32] Next, I turn to Mr. Clarke’s allegations and consider whether, given the findings in the WCAT decision, they have no reasonable prospect of success.
A. The interaction between Mr. Clarke and Mr. Dobbie
[33] Mr. Clarke alleges that his race and colour were a factor in how Mr. Dobbie interacted with him on the day of the incident. Specifically, he alleges that Mr. Dobbie flew off the handle when Mr. Clarke approached, then tried to intimidate and antagonize Mr. Clarke physically and with words, including by talking about how Mr. Clarke had caused problems and made trouble when he previously raised concerns about racism at work. Mr. Clarke says that Mr. Dobbie called him “lazy”, a racial stereotype that is used against Black people.
[34] There is no dispute that Mr. Clarke is Black and that his race and colour are protected characteristics under the Code. The Respondents argue, however, that Mr. Clarke has no reasonable prospect of showing that he experienced an adverse impact as contemplated by the Code as a result of the incident and/or that his race and color factored into Mr. Dobbie’s actions.
[35] The Respondents rely on the following facts as determined by WCAT in support of their position:
a. Mr. Clarke chose to get out of his truck, became involved in the traffic dispute between Mr. Dobbie and a member of the public, and instigated his interaction with Mr. Dobbie without any provocation by Mr. Dobbie: paras. 48 and 50;
b. There was no compelling evidence from the witnesses that Mr. Dobbie wanted to fight Mr. Clarke, and Mr. Dobbie did not explicitly challenge Mr. Clarke to a fight: paras. 48 and 52;
c. Mr. Clarke’s encounter with Mr. Dobbie was neither excessive in intensity and/or duration from what Mr. Clarke would likely have experienced in the normal pressures or tensions of his employment: para. 50;
d. There was likely a degree of interpersonal conflict between Mr. Dobbie and Mr. Clarke, owing to Mr. Clarke’s concern that Mr. Dobbie was a supporter of Mr. Trump: para.52;
e. Mr. Dobbie called Mr. Clarke a “lazy truck driver” in response to Mr. Clarke calling him a “Toby”, which means a water boy: paras. 52;
f. Mr. Clarke himself characterized the incident as a “small issue”: para. 25.
[36] For the following reasons, I am persuaded that Mr. Clarke has no reasonable prospect of showing that the interaction with Mr. Dobbie amounts to discrimination for the purposes of the Code.
[37] As the Respondents point out, not every negative or undesirable interaction at work attracts the protection of the Code: Hadzic v Pizza Hut, 1999 BCHRT 44 [Hadzic] at paras. 32-34; Clarke v City of Vancouver and another, 2024 BCHRT 298 [Clarke] at para. 62; Brito v Affordable Housing Society, 2017 BCHRT 270; and Francis v BC Ministry of Justice (No. 3), 2019 BCHRT 136, citing Hadzic at para. 314.
[38] It is also well established that in the analysis of whether a negative comment rises to the level of discrimination under the Code, context is critical. The Tribunal will consider all of the circumstances. In this case, WCAT concluded that Mr. Clarke was the aggressor and confronted Mr. Dobbie without provocation. While this does not mean that Mr. Dobbie could not have discriminated against Mr. Clarke by way of his response, it weighs against Mr. Clarke’s prospects for success, particularly where WCAT found that no racial slurs were used as had occurred in the past. Lastly, Mr. Clarke’s own evidence does not support a conclusion that the incident attracts the protections of the Code where he described the incident as a “small issue” during the employer’s investigation. In all these circumstances, I am persuaded that even if I accept that the use of the word “lazy” invokes a harmful racial trope; the single comment in the context of an altercation instigated by Mr. Clarke is not so egregious or virulent to attract the protections of the Code.
[39] In addition, I considered that Mr. Clarke did not offer anything further in his response submission to explain why the Tribunal ought to permit this allegation to proceed to a hearing given the WCAT findings about his conduct that day. Rather, Mr. Clarke states that there are witnesses who were not part of the City’s evidence but who can support what he is saying. However, Mr. Clarke does not provide any details or evidence regarding those witnesses. It is well established that the Tribunal must consider the information before it, and not speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan,2013 BCSC 942. It is up to the parties to give the Tribunal the information necessary for it to make a decision: Bell v. Dr. Sherk and others, 2003 BCHRT 63 at paras. 25‐26.
[40] In all these circumstances, I am persuaded to dismiss this allegation under s. 27(1)(c) of the Code as having no reasonable prospect of success.
B. The one-day suspension
[41] Mr. Clarke alleges that his one-day suspension constitutes discrimination based on race and colour because, as a Black man, he received a harsher discipline than Mr. Dobbie, the white Foreman.
[42] The Respondents argue that, on the facts as determined by WCAT, there is no reasonable prospect of establishing at a hearing that Mr. Clarke’s race or colour were a factor in the suspension decision.
[43] The Respondents rely on the following facts as determined by WCAT in support of its position:
a. The City’s October 5, 2021, letter to Mr. Clarke stated that he was in violation of the employer’s respectful workplace policy, and his misconduct, warranted discipline. The employer, in essence, said Mr. Clarke had overstepped his bounds by shouting at Mr. Dobbie with respect to a traffic problem. Moreover, Mr. Clarke, by calling Mr. Dobbie a Toby, or a water boy, was considered to be disrespectful and demeaning towards Mr. Dobbie’s position as a working foreman: para. 65;
b. The City’s letter stated that while Mr. Clarke was a valued employee, should this or any other inappropriate behaviour occur again, he may be subject to further discipline: para 65;
c. The City did not communicate the suspension to Mr. Clarke in a threatening or abusive manner: para. 66; and
d. The City’s decision to impose the suspension fell within the employer-decision exclusion under section 135(1)(c) of the WCA as a decision related to discipline: para. 67.
[44] For the following reasons, I am persuaded that Mr. Clarke has no reasonable prospect of showing that his race or colour were a factor in the one-day suspension.
[45] As set out above, WCAT concluded that Mr. Clarke instigated the altercation with Mr. Dobbie, refused to return to his truck when directed, and called Mr. Dobbie a “Toby.” In this way, WCAT accepted the City’s conclusion from the investigation that Mr. Clarke initiated the heated exchange and referred to Mr. Dobbie as a water boy, which Mr. Dobbie understood to mean all he did was put up signs for the crews.
[46] The Respondents argue that the WCAT findings support a conclusion that the City had legitimate reasons to conduct the investigation and issue the one-day suspension for insubordinate and disrespectful behaviour.
[47] The Respondents ask the Tribunal to consider during its analysis that the social context of anti-Black discrimination in Canada is not enough, on its own, to prove racism. They rely on the case, Zhou v. Copper Mountain Mine (BC), 2017 BCHRT 22 at para. 5 where the Tribunal held that the subtlety of prejudice, and the availability of inference, does not create a presumption of discrimination. They also rely on Clarke at para. 102 where the Tribunal dismissed an earlier complaint by Mr. Clarke and stated that,
… the fact that he is Black and had negative interactions at work does not mean he was discriminated against. An inference of discrimination must be drawn “reasonably and logically … from a fact or group of facts established by the evidence”: Smith v. Mohan (No. 2), 2020 BCHRT 52 at para. 188; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para. 88.
[48] In summary, the Respondents argue that the fact Mr. Clarke is Black and received the suspension is not enough, on its own, to prove discrimination. Moreover, the Respondents argue that where WCAT has accepted the City’s reasonable explanation for the suspension, there is no reasonable prospect that Mr. Clarke will be able to establish at a hearing that his race or colour was a factor.
[49] In response, Mr. Clarke relies solely on the fact that he is Black and received harsher discipline than Mr. Dobbie who is white. He does not address the WCAT findings including that he instigated the event and acted without provocation, and that his co-workers tried to get him to return to his truck. He also does not dispute that Mr. Dobbie was the Working Foreman and that it was disrespectful and demeaning to call him a “Toby,” or waterboy. In circumstances where Mr. Clarke does not challenge the Respondents’ position that Mr. Clarke and Mr. Dobbie received different discipline for different conduct, I am persuaded that this allegation has no reasonable prospect of success.
IV CONCLUSION
[50] The complaint has no reasonable prospect of success. I dismiss it under s. 27(1)(c) of the Code.
Kathleen Smith
Tribunal Member
Human Rights Tribunal