govlogo.gif (2643 bytes)    BC Human Rights Tribunal

Indexed as: Nixon v. Rape Relief Society, 2000 BCHRT 32

IN THE MATTER OF THE HUMAN RIGHTS CODE
R.S.B.C. 1996, c. 210 (as amended)

AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal

 

 

B E T W E E N:

Kimberly Nixon

COMPLAINANT

A N D:

Vancouver Rape Relief Society

RESPONDENT

  

 

REASONS FOR PRELIMINARY DECISION

 

  

Tribunal Member:

Carol Roberts

Counsel for the Complainant:

barbara findlay

Counsel for the Respondent:

Gwen Brodsky

Counsel for the Deputy Chief Commissioner:

Deirdre Rice

 

Introduction

[1] This is an application by Kimberly Nixon [the "Complainant"] to amend her complaint to include an additional allegation of discrimination.

[2] The complaint was filed with the British Columbia Council of Human Rights [the "Council"] on August 30, 1995, and amended by the Council on March 6, 1996. The Complaint Information Form alleges that the Respondent discriminated against the Complainant with respect to a service and/or facility customarily available to the public and/or by refusing to employ her because of her sex, contrary to s. 3 and/or s. 8 of the Human Rights Act, S.B.C. 1984, c. 22 [the "Act"] (now s. 8 and s. 13 of the Human Rights Code, R.S.B.C. 1996, c. 210, as amended [the "Code"]).

[3] The Complainant applies to amend the complaint to include the allegation that "the current policy, or in the alternative, the then-current policy, of Rape Relief with respect to transgendered women who present in a manner which might cause staff or clients to believe that she is or has been a man is discriminatory against transgendered women on the basis of sex."

[4] The Complainant alleges in the Particulars of Allegation that she applied for volunteer training at the Respondent, and at the first training session, was asked by one of the trainers about her gender identity.

[5] She further alleges that the trainer asked her when she had "her operation", which the Complainant understood to be gender reassignment surgery. She alleges that the trainer told her that they [the Respondent] didn’t allow men into the group, that they didn’t allow gay men into the group, and that women must have been oppressed from birth to qualify to be in the group. The Complainant alleges that she felt extremely humiliated and upset, and left.

[6] The Complainant also alleges that she spoke to the other trainers, who told her that they agreed with the first trainer’s position, and that they did not want the Complainant returning to the group because they believed she was a man. The Complainant alleges that she explained to the trainers that she was a woman who suffered from a medical condition called gender dysphoria that could only be corrected by surgery.

[7] The complaint was investigated by the Council and its successor body, the B.C. Human Rights Commission [the "Commission"], and pursuant to s. 26 of the Code, referred to the Tribunal by the Commissioner of Investigation and Mediation ["CIM"] on September 20, 1999. The complaint was set for hearing commencing February 21, 2000.

[8] On December 13, 1999, the Respondent filed a judicial review application in B.C. Supreme Court, seeking an order prohibiting the Tribunal from proceeding in respect of this complaint on the grounds of undue delay, and that the complaint alleges discrimination on the grounds of gender identity, which is not an enumerated ground in the Code. The Respondent also sought an adjournment of the Tribunal hearing pending the determination of the Supreme Court. The Registrar granted a short adjournment, but indicated that she was not prepared to defer setting dates for the hearing pending the determination of the judicial review application.

[9] On February 21, 2000, the Registrar set the matter to be heard commencing July 10, 2000. On the same day, the Complainant made an application to amend the complaint. On March 15, the Respondent sought an adjournment of the amendment application pending the Supreme Court’s decision on the Respondent’s application for judicial review, contending that the Tribunal’s jurisdiction to amend a complaint was contingent on a valid referral from the Commission. On March 21, the Registrar confirmed that the matter would proceed on July 10, and on March 31, she dismissed the Respondent’s application to adjourn the amendment application.

[10] The Respondent’s judicial review application was heard by the Supreme Court April 10-14, 2000. At the hearing of that application, the Respondent also sought an interim stay of the Tribunal’s proceedings. The Court denied the application for an interim stay, saying that it was preferable to continue the complaint process, and indicated that a decision would be rendered in a reasonable time before the hearing was set to commence.

SUBMISSIONS

Complainant

[11] The Complainant’s counsel, Ms. findlay, contends that the amendment falls within the test set out in Bartlett v. Dover Corporation (Canada) Ltd. (1993), 34 C.H.R.R. D/151:

In light of Emcom and Renaud, it is apparent that an amendment to a complaint by adding a ground or an allegation under another section of the Code is a procedural matter if the amendment merely brings the form of the complaint into conformity with the substance of the complaint as revealed during the proceedings before the Tribunal. (at para. 37)

[12] Ms. findlay contends that the proceedings referred to in the passage above include any pre-hearing matters, including the process before the Council or the Commission and a judicial review application before the Supreme Court.

[13] Ms. findlay states that the amendment application arises out of material filed by the Respondent with the Council or Commission prior to the referral to the Tribunal, and on the judicial review application.

[14] Ms. findlay contends that the question of whether and how not only the Complainant, but all transgendered women, can or should participate in women’s organizations is a human rights issue of great importance. She argues that the issues raised by this case should enable the Tribunal to come to a considered decision of what actions women-only organizations may take with respect to transgendered women or masculine looking women, that does not turn solely on a particular set of facts. She submits that the purpose of the amendment is to test the policy or justification put forth by the Respondent rather than deal solely with the situation of the Complainant.

[15] Ms. findlay also argues that while the Tribunal’s decision in Sheridan v. Sanctuary Investments (No. 3) (1999), 33 C.H.R.R. D/467 addressed the question of discrimination against a person with an atypical gender history with respect to a public facility, it did not address such discrimination in broader contexts such as social interactions or a feminist service such as the Respondent.

Respondent

[16] The Respondent’s counsel, Ms. Brodsky, objects to the application. She argues that the Complainant’s application is an attempt to 1) refresh a stale complaint, and 2) make the complaint look like a complaint of sex discrimination made on behalf of non-transgendered women rather than an individual complaint of gender identity discrimination brought by a person who is a male to female transsexual. Ms. Brodsky contends that the amendment request is calculated to try and bring the substance of the complaint into conformity with its form, which is an allegation of sex discrimination.

[17] Ms. Brodsky argues that the issue for the Tribunal is whether the amendment would bring the form of the complaint to conformity with its substance, not the other way around. She submits that the Tribunal’s jurisdiction to amend is limited to amendments that are procedural in nature. (Bartlett)

[18] She contends that the Tribunal does not have jurisdiction to amend the complaint, since the request to amend amounts to a separate and additional complaint. The Respondent contends that the amendment sought is, in reality, a new complaint, based on a different time frame, different subject matter, a different issue, and in respect of people other than the Complainant.

[19] The Respondent submits that the amendment, which complains of the alleged current discrimination by the Respondents, does not relate to the original complaint, which arises out of events that occurred four and one half years ago. Thus, the Respondent argues, the amendment lacks a grounding in the substance of the originating documents. (Hughson v. Town of Oliver, 2000 BCHRT 24).

[20] Ms. Brodsky says that the time limit for filing a complaint under the Act was six months, and that the complaint was amended after six months had passed. She submits that it would not be in accordance with principles of natural justice for the Tribunal to permit a further amendment unrelated to the original complaint, at this stage.

[21] Ms. Brodsky also says that the amendment, which seeks to allege discriminatory conduct in the form of a policy, is a different matter from the singular incident complained of in the originating documents and lacks a grounding in the substance of the originating documents.

[22] Furthermore, Ms. Brodsky argues, the Complainant alleges that the Respondent has a policy that it does not have. The Respondent contends that it has an exemption justified at law, and that justification does not entitle a complainant to reformulate the complaint at this stage of the process.

[23] The Respondent objects to the Complainant’s reliance, in support of the application, on selected documents of the Respondent, which were provided to the Commission, but which, it contends, do not form part of the record before the Tribunal. It says that the Tribunal should only look to the Complaint and particulars of the complaint.

[24] In the alternative, the Respondent submits that if the Tribunal is prepared to consider some of the documents submitted to the Commission, it must review the Commission’s entire record of proceedings, including the 1998 investigative report and the 1999 reasons of the CIM for referral, which makes no reference to a discriminatory policy.

[25] The Respondent further contends that the content that the proposed amendment seeks to give to the alleged policy of the Respondent requires a fundamental alteration in the complaint that is neither reflected in the substance of the complaint nor warranted by the justification arguments presented by the Respondent to the Council or Commission. The Respondent contends that this is an attempt to alter the substance of the complaint, which the Tribunal lacks the jurisdiction to do.

[26] Finally, the Respondent argues that the proposed amendment seeks to extend the complaint beyond the individual complainant to "transgendered women or women" generally, which requires a fundamental alteration in the substance of the complaint.

DCC

[27] The Deputy Chief Commissioner [the "DCC"] submits that it is appropriate to allow the amendment application. He contends that the amendment will clarify the nature and scope of the complaint, and, if the policy is found discriminatory, will ensure that a remedy that provides clear direction regarding the policy can be issued.

[28] The DCC submits that the amendment will bring the complaint into conformity with its subject matter and will facilitate a full and fair inquiry into the practices of the Respondent.

ISSUE

[29] At issue is whether the Tribunal ought to allow the Complainant to amend her complaint to add an allegation of discrimination regarding the Respondent’s policy with respect to transgendered women.

DECISION

[30] Section 35 of the Code provides that the Tribunal may determine the practice and procedure for the conduct of hearings before the Tribunal. Included in those powers is the power to amend complaints. (See Renaud v. School District No. 23 (Central Okanagan) (1987), 8 C.H.R.R. D/4255 (B.C.C.H.R.); aff’d [1992] 2 S.C.R. 970; Emcon Services Inc. v. British Columbia (Council of Human Rights) (1991), 20 C.H.R.R. D/193 (B.C.S.C.); and Fowler v. Flicka Gymnastics Club (1998), 31 C.H.R.R. D/397 (B.C.H.R.T.).

[31] The factors the Tribunal will consider in exercising that power have been outlined in Bartlett and Fowler.

[32] If there are no new facts in issue, the amendment is a procedural, rather than substantive matter. (Bartlett, Renaud) Additional allegations can be added where they are intrinsically related to a complaint already referred to the Tribunal. (Fowler)

[33] In Bartlett, the Tribunal Member said that the Tribunal does not have jurisdiction to add an allegation based on facts extraneous to the original complaint; rather, the amendment must be grounded in the substance of the original complaint.

[34] The Tribunal may amend a complaint where to do so merely brings the form of the complaint into conformity with the substance of the complaint. In my view, an allegation that the Respondent had a policy underlying its treatment of the Complainant and that the policy is discriminatory, is grounded in the substance of the original complaint, and is intrinsically related to the complaint that was referred to the Tribunal. The issue is whether the Respondent discriminated against the Complainant based on her sex. That alleged discrimination may well have been based on a policy of the Respondent. Confirmation of that possibility lies in the material presented by the Respondent to the Council or Commission at the investigative stage and to the Supreme Court on the judicial review application. Indeed, Ms. findlay says that her amendment application arose out of that material.

[35] I find that the material that motivated the application was revealed during the proceedings before the Tribunal. In Emcom, the respondent’s evidence in defence of the complaint revealed another possible contravention of the Code. In Renaud, the additional allegation was based on the same incident. The facts of this application appear to fall squarely within the facts of those decisions. In this regard, I agree with the decision of the Tribunal Member Iyer in Crozier v. City of Richmond (1998), 34 C.H.R.R. D/157; aff’d. C.U.P.E., Local 394 v. Crozier (1999), 34 C.H.R.R. D/161 (B.C.S.C.) where she said:

Turning to criteria set out in Bartlett, the first question is whether the "allegations of fact on which the original complaint was based or the evidence in relation to them" reveals that the Unions may have contravened the Code. In my view, allegations of fact relied upon to support the addition of a party are not confined to the allegations in the original particulars of allegation; what is required is that the allegation fall within the scope of the complaint as framed, and as understood in its context. That context may be understood in light of facts revealed or allegations made subsequent to the filing of the complaint. Particulars are not pleadings. Moreover, it is not necessary to an application to add a party to adduce the evidence that will be relied upon at the hearing of the complaint. In my view, the reference to "evidence" in Bartlett does not mean evidence in the technical sense, but refers to information surrounding the complaint which has been brought to light through the investigation process. (at para. 17)

[36] The application, to the extent it is based on the Respondent’s policy, if it had one at the time of the alleged discrimination against the Complainant, merely seeks to raise an additional issue based on the original particulars of allegations and facts already known to the Respondent. It does not alter the nature of the complaint. The reasons for the Respondent’s treatment of the Complainant will be at issue in the hearing. There is no evidence that further investigation would be required. It is unlikely that the Respondent will be required to call witnesses that would not have been called in any event.

[37] The particulars of allegation refer to the Respondent’s refusal to permit the Complainant to volunteer her services at the Respondent. Whether that refusal was based on policy, as the material filed by the Respondent in the judicial review application suggests, or not, is a matter that should be considered by the Tribunal as part of the hearing. Consequently, the issue of whether the policy is part of the Respondent’s rationale for its actions is properly a matter to be put before the Tribunal at the hearing of the complaint.

[38] The addition of an allegation in respect of the Respondent’s policy, at the time of the events in question, is consistent with the nature of the original complaint and arises out of facts that form the basis of that complaint. I find that such an amendment will facilitate a full and fair inquiry into the practices of the Respondent.

[39] The Respondent, while arguing a breach of natural justice, has not alleged or established any prejudice that would result if the amendment were to be allowed. The amendment does not appear to put the Respondent at a disadvantage. It appears from the submissions that a significant amount of the material has already been prepared for the Council or Commission. There are no new facts. The reasons for the alleged denial of the opportunity for the Complainant to volunteer appear to have been at issue throughout the investigation process. Consequently, the granting of the application may put the Respondent to some disadvantage in terms of preparation, but in my view, based on the submissions, that will not be significant. The Respondent has the right to seek an adjournment to prepare for any additional preparation time, should that be necessary, once the decision of the Supreme Court has been rendered.

[40] As noted in Fowler, it is desirable that the complaint proceed as amended. If the application is not granted, the Complainant would be required to file a new complaint, and the Tribunal could either adjourn the present hearing pending the CIM’s determination in that complaint, or proceed to hearing on this complaint aware of the possibility that a subsequent hearing could be required to deal with the same policy.

[41] I find that the amendment is consistent with the nature of the complaint, the Code, and the principles of natural justice, and have concluded that the amendment would be procedural in nature. The amendment would not alter the substance of the allegations the Respondent must meet. There are no new parties. There is no reason to believe the amendment would impact on the conduct of the hearing.

[42] It is evident that a narrowly framed complaint will have an impact on the Tribunal’s ability to order appropriate relief, if the complaint is found to be substantiated, that will transcend the circumstances of the particular individual complainant, or to ameliorate the effects of any discriminatory practice.

[43] However, I conclude that an allegation that the Respondent’s current policy is discriminatory falls outside the scope of the complaint, and as such, cannot be contemplated. The allegation is of discrimination that occurred in 1995. That is the relevant time-frame contemplated by the allegation.

[44] The Complainant’s application to amend her complaint is allowed in part. The Complaint is therefore amended to include the following allegation:

The Respondent’s policy with respect to transgendered women or women who present in a manner which might cause staff or clients to believe that she is or has been a man, in effect when the Complainant sought to volunteer, is discriminatory against transgendered women on the basis of sex.


_______________________________
Carol Roberts, Tribunal Member      

 Victoria, British Columbia
Date: May 25, 2000

 

HTML versions of B.C. Human Rights Tribunal documents and Decisions are not official versions. 
Copyright 1998   British Columbia Human Rights Tribunal
Last modified: October 31, 2000