Lafayette v. Municipality of Saanich Police Department and others (No. 2), 2025 BCHRT 97
Date Issued: May 1, 2025
File(s): CS-000189
Indexed as: Lafayette v. Municipality of Saanich Police Department and others (No. 2), 2025 BCHRT 97
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:
Faye LaFayette
COMPLAINANT
AND:
Municipality of Saanich Police Department and Sukhdeep (Deep) Atwal and Mathew Jones
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO RECONSIDER A DECISION
RULE 36
Tribunal Member: Ijeamaka Anika
On their own behalf: Faye LaFayette
Counsel for the Respondent: Marcia McNeil
I INTRODUCTION
[1] Faye LaFayette filed a human rights complaint alleging discrimination by the Municipality of Saanich Police, Constable Atwal, and Constable Jones [together the Respondents ]. Ms. LaFayette alleges discrimination based on race, colour, and mental disability contrary to s. 8 of the Human Rights Code . She says that the Respondents failed to address her complaints of harassment by her neighbours adequately and that the Respondents themselves harassed her because of her race, colour, and mental disability.
[2] The Respondents applied to dismiss the complaint. In my previous decision, I denied the application to dismiss: LaFayette v. Municipality of Saanich Police Department and others , 2024 BCHRT 222 [ Original Decision ]. While I found that a valid settlement existed between the parties, I determined that it did not further the purposes of the Code to dismiss the complaint.
[3] The Respondents now apply for reconsideration of the Original Decision pursuant to Rule 36(1) of the Tribunal’s Rules of Practice and Procedure. They argue that I did not provide procedural fairness to the Respondents before rendering the Original Decision.
[4] In light of the Respondents’ arguments, I sought submissions from the parties on the reconsideration application.
[5] For the following reasons, I deny the reconsideration application.
II BACKGROUND
[6] Ms. LaFayette alleges that the Respondents discriminated against her from 2012 to 2016. She claims that the Respondents failed to address her harassment complaints against her neighbours and that Constable Atwal and Constable Jones engaged in discriminatory conduct toward her.
[7] The relevant history to the Respondents’ dismissal application is set out in paragraphs 7-19 of the Original Decision. In brief, the parties participated in an early settlement meeting [ mediation ] facilitated by a Tribunal mediator. At the mediation, Ms. LaFayette was represented by an articling student under the supervision of legal counsel and the Respondents were represented by legal counsel. The parties’ legal counsel agreed to settlement terms after the mediation. The settlement agreement was never formalized or signed. Ms. LaFayette disputed that she had agreed to the settlement terms. The Respondents filed the dismissal application on the basis that the parties had reached a binding settlement and that allowing the complaint to proceed would not further the purposes of the Code.
[8] The issue before me in the Original Decision was whether the parties had reached a valid settlement and, if so, whether it furthered the purposes of the Code to allow the complaint to proceed. I concluded that while a valid settlement existed, it did not further the purposes of the Code to dismiss the complaint. I found I could not resolve the parties’ dispute about the circumstances giving rise to the settlement. I denied the dismissal application.
III ANALYSIS AND DECISION
[9] The Tribunal has a limited jurisdiction to reconsider its own decisions: Rule 36 of the Tribunal’s Rules of Practice and Procedure . 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. The Tribunal exercises this power sparingly, giving due consideration to the principle of finality in administrative proceedings: Grant v. City of Vancouver and others (No. 4), 2007 BCHRT 206 [ Grant ] at para 10.
[10] The Tribunal does not have the authority to reconsider a decision based on an argument that the decision was wrong or unreasonable or because of a change of circumstances: Fraser Health Authority v. Workers’ Compensation Appeal Tribunal , 2014 BCCA 499 at paras. 135 and 160. The Tribunal will not reconsider a decision to address arguments that could have been made in the first instance but were not, or to hear a party reargue its case: Ramadan v. Kwantlen Polytechnic University and another (No. 2) , 2018 BCHRT 56 at para. 13. When a party disagrees with a Tribunal decision, the appropriate recourse is judicial review by the BC Supreme Court.
[11] The Tribunal may reconsider a decision where there has been a denial of procedural fairness: Fraser Health Authority at para. 161. The Tribunal may also 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.
[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, Rule 36(1).
A. The Respondents’ Grounds for Reconsideration
[13] The Respondents argue that the interests of justice and fairness require that I reconsider the Original Decision on the following grounds:
a. I did not provide them with a meaningful opportunity to make submissions and test the relevant evidence before concluding that Ms. LaFayette’s former legal counsel misapprehended her instructions regarding the settlement terms which then formed the basis of the Original Decision.
b. I did not consider or weigh the public interest considerations relevant to their position, instead deciding the public policy analysis based on legal principles and evidence they did not have a meaningful opportunity to test.
c. I made an error with respect to the evidence and submissions on the record regarding the events that occurred during the mediation, which seriously prejudiced the Respondents.
B. Reconsideration of Decision
[14] Regarding the first ground, the Respondents argue my conclusion that Ms. LaFayette’s former counsel misapprehended her instructions was raised on my own volition, and I did not give the Respondents an opportunity to make submissions on the issue.
[15] I must consider whether the Tribunal did not provide the Respondents with a fair process. In this instance, procedural fairness required that the Tribunal give the Respondents an opportunity to respond to Ms. LaFayette’s arguments.
[16] I disagree with the Respondents that I raised the issue of whether Ms. LaFayette’s former legal counsel misapprehended her instructions. Ms. LaFayette argued in her response to the dismissal application that she did not instruct her former legal counsel to accept the settlement terms on her behalf. Instead, she only agreed to review a draft settlement agreement and understood she could accept or reject the proposed draft terms. In response to the dismissal application, Ms. LaFayette argued that she had told her former legal counsel she was unwilling to settle the complaint following the mediation. She argued she communicated her position to her former legal counsel before their communication with the Respondents. She provided the Tribunal and Respondents with evidence of the correspondence between her and her former legal counsel.
[17] The Respondents had the opportunity to address all the arguments in Ms. LaFayette’s response to the dismissal application in their reply submissions. In reply, the Respondents argued that Ms. LaFayette fully participated in the mediation and the settlement was reflected in the email exchange between Ms. LaFayette and the Respondents’ legal counsel. The Respondents made submissions concerning the email from legal counsel informing Ms. LaFayette that there had been an offer and acceptance of the settlement terms communicated on her behalf. The Respondents made no submissions regarding Ms. LaFayette’s arguments that she had earlier told her former legal counsel that she was generally unwilling to settle the complaint. Further, the Respondents could have requested disclosure of documents related to communications between Ms. LaFayette and her former legal counsel or made submissions regarding the weight the Tribunal should place on Ms. LaFayette’s arguments. On this point, I also note that in their reply to the dismissal application, the Respondents argued that Ms. LaFayette had waived solicitor-client privilege by disclosing some of these communications, but they did not pursue further disclosure.
[18] Based on the evidence before me, I determined that the former legal counsel misapprehended Ms. LaFayette’s instructions regarding the settlement. The materials and arguments forming the basis of my decision were provided to the Respondents, who had the opportunity to respond as thoroughly as they considered appropriate. The Respondents’ submissions in the reconsideration application aim to strengthen their submissions in the dismissal application in the hopes of obtaining a different result, which is not the purpose of the reconsideration process. As noted in Ramadan para. 13, disagreement with how evidence was interpreted is an argument more appropriate for judicial review, which the Respondents have already commenced.
[19] Next, the Respondents argue that the Original Decision failed to consider and weigh public policy considerations implicit in allowing Ms. LaFayette to resile from the settlement. Respectfully, this is not a basis on which I can properly reconsider the Original Decision.
[20] In the Original Decision, I concluded, on the evidence before me, that the misapprehension of instructions was a significant public interest factor that weighed in favour of allowing the complaint to proceed. The Respondents argue that I did not account for the time and expense that would be incurred if the parties were required to proceed to a hearing and made no effort to balance these factors against the possibility that former legal counsel acted without Ms. LaFayette’s instructions. The Respondents could have raised the public policy concerns (which they now argue) in their initial reply to the dismissal application but did not do so.
[21] In addition, the Respondents’ argument about the substance or quality of reasons challenges the reasonableness of the Original Decision, which is a matter for judicial review rather than reconsideration. As stated above, the Tribunal does not have the authority to reconsider a decision based on an argument that the decision was wrong or unreasonable: Fraser Health Authority at paras. 135 and 160.
[22] Finally, I turn to the Respondents’ argument that I erroneously concluded there was no evidence before me regarding what the parties agreed to at mediation. They reiterate their position that Ms. LaFayette agreed to the settlement terms during mediation.
[23] In the Original Decision, I accepted that the parties reached a settlement agreement based on communication between the Respondents and Ms. LaFayette’s former legal counsel following the mediation. However, I determined that the evidence of communication between Ms. LaFayette and her former legal counsel did not demonstrate Ms. LaFayette’s agreement to settle the complaint with the Respondents during the mediation.
[24] I could not resolve what happened in the mediation on the evidence before me in the Original Decision due to the absence of evidence and information regarding what the parties agreed to during the mediation. I remain unable to resolve it in the reconsideration application as the Respondents have provided no new evidence that was not available when the parties made their submissions. Further, alleged errors of fact cannot be addressed in a reconsideration.
[25] For these reasons, the Respondents’ application for reconsideration is denied. I am not persuaded that it would be in the interests of fairness and justice to reconsider the Original Decision. The Respondents’ arguments represent disagreement with how I weighed the evidence and applied the legal principles in the Original Decision, which are matters more appropriately addressed through judicial review.
IV Conclusion
[26] I dismiss the application for reconsideration.
Ijeamaka Anika
Tribunal Member