Nov 9, 2019

Meritorious discrimination complaint may be dismissed if brought for improper purposes

Yaniv v. Various Waxing Salons (No. 2), 2019 BCHRT 222 (CanLII)

Summary: Meritorious discrimination complaints may be dismissed if brought for improper purposes under the BC Human Rights Code

Facts: The complainant, a transgender woman, had sought and had been refused waxing services from each of the seven respondents. In each case, the complainant identified herself to the respondent as a transgender woman. Each respondent refused to provide waxing services to the complainant.

The complainant brought discrimination complaints against each of the seven respondents on the basis of the denial of a service customarily available to the public.

In two of the complaints, which are the primary focus of discussion in this post, the complainant had sought only waxing of her arms or legs. In both cases, the Tribunal concluded that the complainant’s gender identity was at least a factor in the respondents’ decisions to refuse services to the complainant. As a result, a prima facie case of discrimination was made out against these two respondents.

Ordinarily, the burden would then shift to the respondents to establish a bona fide reasonable justification for the denial of services. Instead, however, the Tribunal went on to consider whether the complaints had been made for improper purposes and, if so, whether the complaints should be dismissed on that basis.

At Issue: Should a meritorious discrimination complaint be dismissed if it is brought for improper purposes?

Decision: The Tribunal dismissed both of the complaints with respect to arm and leg waxing on the basis that they were brought for improper purposes. Had it not been for this finding, the Tribunal noted that at least one of the two complaints likely would have been accepted as discrimination.

Section 27(1)(e) of BC’s Human Rights Code provides the Tribunal with the power to dismiss a complaint that is brought for improper purposes:

A member or panel may, at any time after a complaint is filed and with or without a hearing, dismiss all or part of the complaint if that member or panel determines that any of the following apply…the complaint or that part of the complaint was filed for improper motives or made in bad faith.

Before applying the facts to the case, the Tribunal summarized the relevant principles, stating that section 27(1)(e) will be applied only rarely:

In Stopps v. Just Ladies Fitness (Metrotown) and D. (No. 2), 2005 BCHRT 359, the Tribunal explained:

A complainant may be found to have filed a complaint for improper motives or in bad faith where, for example, the complainant is motivated by a purpose not consistent with that of the Code, or the complaint was not prompted by an honest belief that a contravention of the Code has occurred, but by some ulterior, deceitful, vindictive, or improper motive. The question of bad faith or improper motive must be judged by an objective standard, since it will seldom be possible to know the mind of the complainant. ... [at para. 13]

This is a high bar, and the Tribunal rarely dismisses complaints on this basis. The focus of the inquiry is on the complainant’s motives in filing their complaint, and not their conduct subsequent to that filing: Gichuru v. WCAT, 2007 BCHRT 189 (CanLII) at para. 59. However, the Tribunal may infer a complainant’s motives in filing the complaint from their subsequent conduct: Gichuru at para. 59.

In deciding to dismiss the complaints, the Tribunal considered the following factors:

a. The volume of similar complaints and the profile of the Respondents

The Tribunal noted a high number of complaints in a short time span, most of which were made against South Asian women, finding that this demonstrated an animus towards a certain minority group:

I am satisfied that the pattern is deliberate and motivated by [the complainant’s] animus towards certain, non-white, immigrants to Canada and, in particular, members of South Asian and Asian communities.

b. The complainant’s use of deception to manufacture some of these complaints

The Tribunal concluded that the complainant had “deliberately manufactured the conditions for each of her complaints” and persisted in her communications with the respondents until she had obtained sufficient evidence to make a discrimination complaint. It was determined that the complainant was "setting the stage for a human rights complaint and the anticipated financial settlement that she hoped would follow" rather than genuinely seeking waxing services from the respondents.

c. The complainant’s efforts to punish the Respondents

In addition to seeking “penalties” through the human rights complaint process, the Tribunal found that the complainant initiated a variety of other complaint processes to punish the respondents:

[The complainant] reported [MD] to Facebook and told her employer that she should not be working with children, complained to Groupon about [SB], reported [MN] to its landlord, and threatened to report [JT] to the City. In this context, it is difficult to see [the complainant’s] human rights complaints as separate from her apparent desire to inflict punishment on the Respondents. The Code is intended to promote a climate of understanding and mutual respect, not to punish or shut down small businesses.

d. The complainant’s stated desire to resolve all of her complaints for a financial settlement and her pattern of withdrawing complaints in the face of opposition

Based on the complainant’s pattern of making complaints, and on certain occasions withdrawing complaints when faced with opposition, the Tribunal concluded that the complaints were partly financially motivated:

Overall, [the complainant’s] comments about settlement and her behaviour throughout the process supports that she targeted small businesses, manufactured the conditions for a human rights complaint, and then leveraged that complaint to pursue a financial settlement from parties who were unsophisticated and unlikely to mount a proper defence.

e. The complainant’s animus toward certain racial, religious, and cultural groups

Finally, the Tribunal determined that the complaints were specifically targeted at a certain set of minority groups which she perceived to be generally bigoted:

…I cannot avoid the finding that [the complainant] is using many of these complaints to fulfil her promise to “expose” the “bigotry” of South Asian and other immigrant or racialized women who would not serve her.

[SH] falls squarely within the category of Respondents who are the subject of [the complainant’s] racial ire. She is a first generation Canadian, and a member of the Indian community with close cultural and family ties to India. Although I have very little information about [HM’s] ethnicity, I note that her name is not an English one. It should go without saying that human rights complaints underlain by a racist agenda are antithetical to the Code’s purposes…

The Tribunal concluded that “one of the [complainant’s] motives in filing these complaints was a genuine grievance about discrimination” and at least one of the arm and leg waxing complaints would have been justified.

But this good faith motivation was overtaken by the complainant’s improper motives in bringing the complaints. Rather than advancing the cause of LGBTQ+ people, the Tribunal determined that endorsing the complainant's conduct would threaten the Tribunal's integrity and its mission to foster an equitable, tolerant, and respectful society.

On the one hand, the Tribunal's decision may be viewed as a stern warning to any complainant that seeks manufacture conditions of discrimination in order to justify a complaint. However, the Tribunal was careful to stress that the circumstances will be rare, and that none of the above-mentioned factors would have been enough on its own to persuade the Tribunal to dismiss the complaints.

Author: Brendan Harvey is an employment lawyer in Vancouver, BC practicing on the North Shore with Yeager Employment Law.