Pineau v. Federation of African Canadian Economics and another, 2025 BCHRT 92
Date Issued: April 16, 2025
File: CS-004479
Indexed as: Pineau v. Federation of African Canadian Economics and another, 2025 BCHRT 92
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:
Stephen Pineau
COMPLAINANT
AND:
Federation of African Canadian Economics and Vancouver City Savings Credit Union
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(d)(ii)
Tribunal Member: Andrew Robb
On his own behalf: Stephen Pineau
Counsel for the Respondent Federation of African Canadian Economics: Matthew Desmarais
Counsel for the Respondent Vancouver City Savings Credit Union: Hunter Parsons
I INTRODUCTION
[1] Stephen Pineau filed a complaint against Federation of African Canadian Economics [ FACE ] and Vancouver City Savings Credit Union [ Vancity ]. FACE and Vancity supported the administration of a loan program, created by the federal government, which aimed to support businesses owned by Black Canadians. Mr. Pineau does not identify as Black. He says the respondents discriminated against him, based on his race, by refusing to consider him for a loan, under the loan program.
[2] The respondents deny discriminating. FACE says its conduct in relation to the loan program is exempt from a finding of discrimination under s. 41 of the Human Rights Code . Vancity says the loan program cannot be found to be discriminatory because it is a special program within the meaning of s. 42 of the Code . Vancity also says it was not even involved in the administration of the loan program when Mr. Pineau filed the complaint—it only became involved later. Both respondents say they did not refuse to consider Mr. Pineau for a loan, because he never applied to the loan program. The respondents apply to dismiss the complaint because, they say, the allegations in the complaint do not contravene the Code , the complaint has no reasonable prospect of success, and proceeding with the complaint would not further the purposes of the Code .
[3] After the respondents filed their applications to dismiss, Mr. Pineau filed a response, by email. The email included an attachment consisting of his argument in response to the applications, and a link to another document that was apparently an affidavit in support of his argument. The Tribunal notified him that it cannot access links to documents, and asked him to re-send the affidavit as an email attachment, or by mail or courier. Mr. Pineau did not respond to the Tribunal, and the Tribunal never received the affidavit. I am satisfied that Mr. Pineau had a fair opportunity to provide it. I have considered his argument, but I have not seen his affidavit.
[4] Mr. Pineau’s complaint is in the area of services, under s. 8 of the Code . In his argument in response to the applications to dismiss, he says he wants to amend the complaint, to add the area of publications, under s. 7 of the Code . The respondents say the amendment should not be allowed, as it would expand the scope of the complaint in a way that is unfair to them.
[5] For the reasons set out below, I allow the respondents’ applications, and I dismiss the complaint. I find it would not further the purposes of the Code to proceed with the complaint, because doing so could deter other organisations from attempting to address racism. I find I do not need to decide whether to accept Mr. Pineau’s amendment because of my finding that it would not further the purposes of the Code to proceed with the complaint. This finding would apply regardless of whether the complaint is amended.
[6] To make this decision, I have considered all the information filed by the parties. As noted, the Tribunal did not receive Mr. Pineau’s affidavit. In these reasons, I only refer to what is necessary to explain my decision.
II BACKGROUND
[7] FACE is a non-profit organisation, created by a coalition of Black business and community organisations, which aims to remove systemic barriers and address racism in business. FACE describes itself as a business accelerator and incubator for Black entrepreneurs across Canada.
[8] FACE says it co-developed the Black Entrepreneurship Loan Fund [the Loan Fund ], including the eligibility criteria for the Loan Fund, with the Government of Canada, as part of Canada’s anti-racism strategy. The eligibility criteria include a requirement that individual applicants to the Loan Fund must self-identify as Black, and business applicants must be Black-led, meaning majority-owned by people who self-identify as Black.
[9] FACE’s application to dismiss includes publicly available information from the Government of Canada about the Loan Fund. This information appears to confirm the Loan Fund was created, in part, by the Government of Canada, and is meant to address systemic barriers faced by Black Canadian businesses.
[10] Vancity is a credit union. On or about July 22, 2021, FACE and Vancity entered into an agreement to issue loans to successful applicants to the Loan Fund. Under the agreement, FACE is responsible for assessing whether applicants meet the Loan Fund’s eligibility criteria, and Vancity is responsible for assessing whether applicants who meet the eligibility criteria also meet certain adjudication criteria. Vancity says the adjudication criteria include a minimum credit score, and submission of a business plan, financial income projections, and other requirements.
[11] FACE says its assessment of the eligibility criteria does not involve any investigation into applicants’ heritage, ancestry, or race, other than asking applicants to confirm that they self-identify as Black, or Black-led in the case of businesses. The agreement between Vancity and FACE provides that when FACE determines an applicant meets the eligibility criteria, and Vancity determines they meet the adjudication criteria, Vancity will issue a loan.
[12] Mr. Pineau’s complaint was brief. It says he was looking for funding for his small business, and he heard about the Loan Fund, and he called FACE to inquire about it, on July 14, 2021. The complaint says he was told he was not eligible to receive a loan from the Loan Fund, and Vancity would only lend to people with 100% Black ancestry. The complaint goes on to say FACE told him his application would not be considered due to his “white blood”.
[13] Mr. Pineau’s complaint says he is “mostly white”. A different part of the complaint form indicates he is Indigenous. In his response to the application to dismiss, Mr. Pineau says he has some Black ancestry, but he does not know if it is enough to identify as Black.
[14] FACE provided copies of emails it received from Mr. Pineau on July 6 and 14, 2021. The July 6 email asks if he would be eligible for a loan if he has some Black ancestry, and if so, “what percentage do I have to be?” The July 14 email asks for confirmation that “white businesses” would not qualify. FACE says it has no record of responding to either email, and no record of any other communications with Mr. Pineau.
[15] There is no dispute that Mr. Pineau did not apply to the Loan Fund.
III DECISION
A. Proposed amendment to the complaint
[16] Mr. Pineau’s complaint form says the respondents discriminated against him in the area of services. In his response to the applications to dismiss, he seeks to amend the complaint to add the area of discriminatory publications. He says the respondents’ ongoing advertising of the Loan Fund indicates an intention to discriminate against businesses that are not Black-owned. He did not apply to amend his complaint.
[17] In their reply submissions, both respondents argue that Mr. Pineau’s allegation about a discriminatory publication is beyond the scope of the complaint. They say it would be unfair for the Tribunal to consider this allegation, since they had no previous notice of it.
[18] A complainant who wants to amend their complaint during an outstanding application to dismiss must apply to do so: Tribunal Rules of Practice and Procedure , Rule 24(4)(b). The purpose of this rule is to ensure that a respondent who files an application to dismiss a complaint does not face a moving target: Pausch v. School District No. 34 and others , 2008 BCHRT 154 at paras. 28-29. Respondents are entitled to know the allegations against them to assess whether, or on what basis, to bring their application to dismiss the complaint: Purdy v. Douglas College and others , 2016 BCHRT 117 at paras. 35-37.
[19] In this case I do not find it necessary to decide whether Mr. Pineau’s allegation about a discriminatory publication is within the scope of the complaint, or whether it would be unfair to the respondents if I considered it. My reasons for dismissing the complaint apply to Mr. Pineau’s allegation about a discriminatory publication as well as his allegation about discrimination in services. Even if I allowed the amendment to Mr. Pineau’s complaint, I would still allow the applications to dismiss his complaint, because proceeding would not further the purposes of the Code .
B. Section 27(1)(d)(ii) – Proceeding would not further the purposes of the Code
[20] The respondents apply to dismiss the complaint under s. 27(1)(b), 27(1)(c), and 27(1)(d)(ii) of the Code . I find I can address the applications most efficiently under s. 27(1)(d)(ii).
[21] Section 27(1)(d)(ii) allows the Tribunal to dismiss a complaint where proceeding with it would not further the purposes of the Code . These purposes are set out at s. 3 of the Code and include preventing discrimination, identifying and eliminating persistent patterns of inequality, and fostering a society in which there are no impediments to full and free participation in economic and social life. Deciding whether a complaint furthers those purposes is not only about the interests in the individual complaint. It may also be about broad public policy issues, like the efficiency and responsiveness of the human rights system, and the expense and time involved in a hearing: Dar Santos v. UBC , 2003 BCHRT 73 , at para. 59 , Tillis v. Pacific Western Brewing and Komatsu , 2005 BCHRT 433 at para. 15, Gichuru v. Pallai (No. 2) , 2010 BCHRT 125, at paras. 113-118.
[22] The respondents say the Code ’s purposes are furthered by efforts to create opportunities for people of diverse backgrounds, and those efforts must be encouraged: Miller v. Union of BC Performers , 2020 BCHRT 133 [ Miller ] at para. 27, affirmed in Miller v. The Union of British Columbia Performers , 2022 BCCA 358. The respondents say the Loan Fund creates space and opportunities for Black people, who have historically faced disadvantage, including in business. As in Miller , they say a hearing of this complaint could deter service-providers from such initiatives, and this would run counter to the Code ’s purposes.
[23] In response to the respondents’ arguments under s. 27(1)(d)(ii), and related arguments about ss. 41 and 42 of the Code , Mr. Pineau argues that the Loan Fund does not, in fact, create opportunities for Black businesses or individuals. He says the evidence shows that Vancity applies its normal lending guidelines to applications to the Loan Fund, and does not provide, for example, looser credit requirements or more favourable loan terms to successful applicants. On this basis he says the Loan Fund does not actually address systemic barriers faced by Black businesses. He refers to articles in the media expressing concerns about the Loan Fund, including concerns about a lack of transparency and government oversight, as well as a low success rate and long delays in processing loan applications. Apparently copies of these articles were attached to his affidavit, but I have not seen his affidavit.
[24] Based on the media articles, Mr. Pineau argues that if the Loan Fund does not lead to meaningful change, it is more likely to cause resentment among communities that were supposed to benefit from it, which would undermine the purposes of the Code .
[25] In its reply submission, FACE argues that if the Tribunal considered Mr. Pineau’s arguments about the effectiveness of the Loan Fund, it could deter parties from even attempting to promote the interests of Code -protected groups, on the basis that if their attempts failed they could be subject to human rights complaints. In any event, FACE says Mr. Pineau’s argument misunderstands the purpose of the Loan Fund, which is not to create better lending terms than a financial institution would typically offer, but to help support Black businesses to access the same terms and opportunities that non-Black businesses have historically received, which have been systematically denied to Black businesses.
[26] I agree with FACE’s reply submission. In the circumstances of this case, I do not consider Mr. Pineau’s arguments about the effectiveness of the Loan Fund to be relevant to whether proceeding with his complaint would further the purposes of the Code .
[27] Mr. Pineau’s complaint is essentially that he, as a person who does not identify as Black, faces discrimination as a result of measures intended to address anti-Black racism. Although he does not use the term, this is a form of “reverse racism” argument. Such arguments are based on the misconception that taking proactive measures to address racism against one group that has experienced historical racism is racist against other groups: Brar and others v. B.C. Veterinary Medical Association and Osborne , 2015 BCHRT 151 at para. 724.
[28] I accept that proceeding with Mr. Pineau’s complaint could deter other organisations from attempting to address racism, and could discourage efforts to promote opportunities for people who have historically been excluded from those opportunities. I am satisfied that this would not further the purposes of the Code .
IV CONCLUSION
[29] I dismiss the complaint under s. 27(1)(d)(ii) of the Code .
Andrew Robb
Tribunal Member