INTRODUCTION
[1] Jennifer Chan filed a complaint alleging that Beth Haverkamp, David Farrar, Jon Shapiro, Robert Tierney and the University of British Columbia (collectively the “Respondents”) discriminated against her with respect to the appointment of the David Lam Chair in Multicultural Education in the Faculty of Education at the University of British Columbia (the “Lam Chair”) on the basis of race, colour, ancestry, and place of origin, contrary to s. 13 of the Human Rights Code. The Respondents deny there has been any such discrimination and apply to dismiss the complaint pursuant to ss. 27(1)(b), (c),(d)(ii) and (f), which provide:
(1) 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:
(b) the acts or omissions alleged in the complaint…do not contravene this Code;
(c) there is no reasonable prospect that the complaint will succeed;
(d) proceeding with the complaint or that part of the complaint would not:
…
(ii) further the purposes of this Code.
(f) the substance of the complaint … has been appropriately dealt with in another proceeding.
[2] The Respondents, in the alternative, apply to dismiss the complaint against the individual respondents.
Excerpts of the decision:
[50] Further, it strikes me that it would be fundamentally unfair to allow UBC’s application on this ground. A faculty member may rely on the Policy in determining the preferred route for redress. To allow UBC to set out an appeal process in its Policy and then deny it through an application to dismiss, on this basis, essentially pulls the rug out from under that faculty member.
[51] I decline to dismiss Dr. Chan’s complaint as appropriately dealt with under the Policy.
[72] The issues raised in this complaint are of significance to the UBC community as a whole. I am alive to the difficulties expressed in Lee in identifying racism and related offensive behaviour. I am also alive to the low hurdle which the complainant needs to overcome on a s. 27(1)(c) application. In the circumstances of this case, I am of the view that, only after a full hearing, is it possible to determine whether the Committee’s process was tainted by prohibited motivations. Ultimately all Tribunal decisions under s. 27(1)(c) of the Code are discretionary decisions. I am not persuaded that there is no reasonable prospect that the individual complaint will succeed.
[77] Rather, the complaint appears to cast the Committee’s process and resultant decision as being the product of subtle racial bias and stereotyping, including the failure to apply employment equity principles. Whether or not UBC was bound by its Employment Equity Plan to apply such principles as contended by Dr. Chan will not be dispositive of the issues in this complaint – they are cast far broader than that. While I recognise that s. 27 of the Code contemplates that a part of a complaint may be dismissed on application, I also recognise that a failure to apply employment equity may be rooted in racial bias.
[79] If the evidence supports that the Committee was influenced by improper considerations as alleged (but which the Respondents clearly deny) the selection would constitute a violation of the Code. On the material before me, a hearing will be required to ascertain whether discrimination has occurred. I am not prepared to dismiss the complaint on the basis that the acts alleged do not contravene the Code.
IX CONCLUSION
[90] As stated above, I decline to dismiss Dr. Chan’s personal complaint against UBC. The systemic complaint is dismissed. I also dismiss the complaints against Dr. Haverkamp, Dr. Farrar, Dr. Shapiro and Dr. Tierney.
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