A former employee of the District of Taylor who alleged sex discrimination in her job has had her request for reconsideration of an earlier decision rejected by the British Columbia Human Rights Tribunal.
The original complaint, filed under the Human Rights Code, alleged discrimination in employment based on sex. The worker — L.P. — claimed that the District of Taylor and one of her former co-workers, identified here as T.P., had discriminated against her. In an earlier decision, the tribunal dismissed all but one of L.P.’s allegations, and after a three-day hearing on the remaining issue, the tribunal concluded that L.P. had not proven discrimination.
Following that hearing, the tribunal ordered L.P. to pay the District $500 in costs for what it described as “improper conduct” during the complaint process.
Request for reconsideration bar high
In her request for reconsideration, L.P. argued that the tribunal ought to revisit its findings and set aside its original conclusions. The District opposed the application. The tribunal determined that it did not require further submissions from the District, and member Smith proceeded to consider L.P.’s application based solely on the written arguments presented.
The tribunal’s authority to reconsider its own decisions is defined by the Human Rights Tribunal’s Rules of Practice and Procedure. Specifically, Rule 36 provides that the tribunal may revisit a matter if it is in the interests of justice and fairness to do so. Drawing on existing case law, including Routkovskaia v. British Columbia (Human Rights Tribunal) and Grant v. City of Vancouver and others (No. 4), the tribunal emphasized that reconsideration is exercised only sparingly. The party seeking it bears the burden of proving that such an extraordinary step is warranted.
Not a forum for new evidence
Member Smith noted that reconsideration is not a forum for advancing new evidence that was previously available, nor is it a platform for reintroducing arguments that could have been raised at the original hearing. It also cannot be used to re-litigate issues already decided, simply to obtain a more favourable outcome.
L.P. relied on two primary arguments in her application: first, that the tribunal had failed to ensure T.P. answered a particular question during cross-examination; and second, that the tribunal had not properly accounted for her financial circumstances in ordering her to pay $500 in costs.
On the first issue, L.P. asserted that during cross-examination, she had asked T.P. a question along the lines of “why did you frame me,” but had not received an answer. According to L.P., the tribunal should have compelled T.P. to respond. L.P. contended that the failure to do so deprived her of a fair hearing.
In reviewing this claim, member Smith cited the narrow scope of the hearing and the irrelevance of L.P.’s question. The key issue before the tribunal had been whether the District’s response to L.P.’s complaint of workplace sexual harassment amounted to discrimination based on sex, as defined in section 13 of the Human Rights Code. The tribunal had previously clarified the scope of the complaint, focusing on a specific allegation rather than the broader claims L.P. attempted to reintroduce.
The tribunal member found the disputed question — “why did you frame me” — to be both irrelevant to the central issue and argumentative in nature. Member Smith noted that the tribunal had repeatedly reminded L.P. about the complaint’s limited scope. L.P.’s continued efforts to pursue lines of questioning outside that scope had been noted in the original decision, including in the tribunal’s analysis related to the costs award.
As such, the tribunal concluded that its decision not to require T.P. to answer the question did not amount to procedural unfairness or constitute a matter that the tribunal should have addressed but did not. Instead, the tribunal saw it as an exercise of appropriate adjudicative discretion.
$500 costs award
On the second issue, L.P. challenged the costs order, arguing that the tribunal had ignored her financial hardship and had relied on what she described as “perjured evidence” from the District’s witnesses. L.P. claimed she had lost her savings after her employment ended, was reliant on a food bank, and was a single parent. She had raised these financial issues previously, and the tribunal had already considered them in its analysis determining the $500 costs award.
In its original decision, the tribunal had addressed L.P.’s inability to pay and taken it into account when assessing the quantum. The tribunal also found no evidence to support L.P.’s allegations that the District’s witnesses had engaged in perjury. Member Smith noted that a reconsideration application is not an avenue for simply reiterating arguments that have already been presented and rejected. The fact that L.P. disagreed with the tribunal’s conclusions was not sufficient grounds to grant reconsideration.
The tribunal said that if L.P. believed the tribunal’s decision to be incorrect as a matter of law, the proper recourse would be judicial review by the B.C. Supreme Court, not a request for reconsideration before the tribunal itself. Since L.P. had not demonstrated any error warranting a departure from the principle of finality, the application was dismissed.
For more information, see Prosko v. District of Taylor (No. 3), 2024 BCHRT 319 (CanLII).
