Routkovskaia v. Human Rights Tribunal (B.C.) et al., 2012 BCCA 141

• Judge: Low, Frankel and Garson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 16, 2012
• Jurisdiction: British Columbia
• Citations: 2012 BCCA 141;(2012), 319 B.C.A.C. 81 (CA)

Routkovskaia v. Human Rights Tribunal (2012), 319 B.C.A.C. 81 (CA);

    542 W.A.C. 81

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. AP.001

Olga Routkovskaia (Ront) (appellant/petitioner) v. British Columbia Human Rights Tribunal, FPI Fireplace Products International Ltd., and Deborah Millichamp (respondents/respondents)

(CA038863; 2012 BCCA 141)

Indexed As: Routkovskaia v. Human Rights Tribunal (B.C.) et al.

British Columbia Court of Appeal

Low, Frankel and Garson, JJ.A.

March 30, 2012.

Summary:

Routkovskaia filed a complaint with the British Columbia Human Rights Tribunal (BCHRT) against her former employer, FPI Fireplace Products International Ltd. (FPI) and her supervisor, Millichamp, on the grounds that FPI discriminated against her by terminating her employment because she was pregnant. FPI applied pursuant to s. 27(1) of the Human Rights Code for dismissal of the complaint without a hearing on the ground that there was no reasonable prospect that the complaint would succeed. The BCHRT dismissed the complaint. Routkovskaia applied to the BCHRT for reconsideration of its decision. The BCHRT dismissed her application for reconsideration. Routkovskaia applied for judicial review.

The British Columbia Supreme Court, in a decision reported at [2011] B.C.T.C. Uned. 144, held that the standard of review was patent unreasonableness and the decisions of the BCHRT were not patently unreasonable. The court dismissed the application and awarded costs against Routkovskaia. Routkovskaia appealed.

The British Columbia Court of Appeal dismissed the appeal with one set of costs to FPI and Millichamp, offset by $1,670.42 for the cost of the transcript.

Administrative Law - Topic 2528

Natural justice - Effect of denial of - Errors which may be remedied on appeal or review - The British Columbia Human Rights Tribunal (BCHRT) dismissed Routkovskaia's discrimination complaint pursuant to s. 27(1) of the Human Rights Code on the ground that there was no reasonable prospect that it would succeed - The BCHRT also dismissed Routkovskaia's application for reconsideration of its decision - Routkovskaia applied for judicial review - The chambers judge dismissed the application and awarded costs against Routkovskaia - Although the judge had said that she would allow Routkovskaia to make submissions as to costs, she did not do so - On appeal, both parties submitted that if there was a breach of procedural fairness, costs should be reconsidered by the court under s. 9(1)(a) of the Court of Appeal Act - At the conclusion of the appeal hearing, the court permitted the parties to file supplementary submissions on costs - Routkovskaia said that because she had to pay almost $10,000 in costs and appeal materials, she was not now able to afford a lawyer to assist her with her costs submission - She submitted that had she been afforded that opportunity at trial, she may have been able to (with the assistance of a lawyer) persuade the judge that costs should not be awarded - The British Columbia Court of Appeal stated that "Considering Ms. Routkovskaia's affidavit and her arguments on appeal regarding costs, I am not satisfied that there is any likelihood that the result could have been different had additional submissions regarding costs been heard by the chambers judge. In my view, any procedural unfairness caused by the chambers judge's oversight was remedied in this Court" - See paragraphs 31 and 44.

Civil Rights - Topic 987

Discrimination - Employment - On the basis of sex - On June 18, 2007, Routkovskaia began her employment at FPI Fireplace Products International Ltd. (FPI) - On August 20, 2007, she disclosed to her supervisor, Millichamp, that she was pregnant - On February 21, 2008, FPI terminated Routkovskaia's employment - Routkovskaia filed a complaint with the British Columbia Human Rights Tribunal (BCHRT) against FPI and Millichamp, on the grounds that FPI discriminated against her by terminating her employment because she was pregnant - Routkovskaia claimed that on August 20, 2007, Millichamp had expressed to her that she would have difficulty with work if she were to become a single parent - FPI applied pursuant to s. 27(1) of the Human Rights Code for dismissal of the complaint without a hearing on the ground that there was no reasonable prospect that the complaint would succeed - The BCHRT dismissed the complaint - The BCHRT found little evidence of discrimination in the August 20, 2007, meeting, even by Routkovskaia's account - It also noted the lack of temporal proximity between the alleged discrimination and Routkovskaia's employment termination on February 21, 2008 - Routkovskaia applied to the BCHRT for reconsideration of its decision - The BCHRT dismissed her application for reconsideration - Routkovskaia applied for judicial review - The application was dismissed - The chambers judge held that the standard of review was patent unreasonableness and the decisions of the BCHRT were not patently unreasonable - The British Columbia Court of Appeal dismissed Routkovskaia's appeal - There was no error in the chambers judge's conclusion - See paragraphs 21 to 30.

Civil Rights - Topic 988

Discrimination - Employment - On the basis of family, civil or marital status - [See Civil Rights - Topic 987 ].

Civil Rights - Topic 7069

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Complaints - General - [See Civil Rights - Topic 987 ].

Civil Rights - Topic 7078

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Reconsideration of decisions (incl. reopening of hearings) - [See Civil Rights - Topic 987 ].

Civil Rights - Topic 7108

Federal, provincial or territorial legislation - Practice - Costs - Routkovskaia filed a discrimination complaint with the British Columbia Human Rights Tribunal (BCHRT) against her former employer (FPI) and her supervisor (Millichamp), on the grounds that FPI terminated her employment because she was pregnant - The BCHRT dismissed the complaint pursuant to s. 27(1) of the Human Rights Code on the ground that there was no reasonable prospect that it would succeed - The BCHRT also dismissed Routkovskaia's application for reconsideration of its decision - Routkovskaia applied for judicial review - The chambers judge dismissed the application and awarded costs against Routkovskaia - On appeal, Routkovskaia argued that she should not be liable for costs at the Supreme Court or in the Court of Appeal - She argued, inter alia, that: for policy reasons, judicial review of a decision of the BCHRT should not attract awards of costs; costs should not be awarded against poor litigants or without consideration of the losing party's ability to pay; her financial circumstances were strained as a direct consequence of FPI's conduct in terminating her employment - She asked that each party bear their own costs in the judicial review and the appeal - She also said that the respondents should pay the cost of the transcript of the Supreme Court hearing ($1,670.42) because respondents' counsel ought to have informed her it was only necessary to order the last page of the transcript at most to prove that the judge had said she would hear further submissions on costs - The British Columbia Court of Appeal dismissed the appeal - The principle that sympathy for a litigant's financial plight was not a reason to deprive a successful litigant of their costs was clearly enunciated in Zelenski Estate v. Fairway - The chambers judge had Routkovskaia's affidavit describing her difficult financial circumstances and attributing them to the wrongful conduct of FPI - She then went on to award costs against Routkovskaia - It was clear that she was not satisfied that the usual rule as to costs ought not to apply - The court also did not accede to the additional grounds of argument advanced on appeal, including the public policy grounds - The court therefore dismissed the appeal with one set of costs to FPI and Millichamp - However, the court held that Routkovsjaia should not bear the cost of the transcript, which should be offset from the costs assessable in the Court of Appeal - See paragraphs 31 to 45.

Civil Rights - Topic 7108

Federal, provincial or territorial legislation - Practice - Costs - Section 37(4) of the Human Rights Code addressed the ability of the British Columbia Human Rights Tribunal (BCHRT) to award costs - The BCHRT's discretion to order costs could only be exercised when there was misconduct or breach of a BCHRT rule or order regarding practice and procedure - In essence, the appellant argued that the same policy considerations which presumably underlay the statutory limitation on costs at the BCHRT should apply on judicial review of the BCHRT's decisions - The British Columbia Court of Appeal stated that "I am not aware of authority for such a proposition. The normal rules concerning costs apply" - See paragraphs 33 to 37.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - [See Civil Rights - Topic 987 ].

Cases Noticed:

Workers' Compensation Appeal Tribunal (B.C.) v. Hill et al. (2011), 299 B.C.A.C. 129; 508 W.A.C. 129; 16 B.C.L.R.(5th) 142; 2011 BCCA 49, refd to. [para. 15].

Berezoutskaia v. Human Rights Tribunal (B.C.) et al. (2006), 223 B.C.A.C. 71; 369 W.A.C. 71; 51 B.C.L.R.(4th) 4; 2006 BCCA 95, refd to. [para. 15].

Karbalaeiali v. Human Rights Tribunal et al., [2010] B.C.T.C. Uned. 1130; [2010] B.C.W.L.D. 7458; 2010 BCSC 1130, refd to. [para. 15].

Zutter v. Council of Human Rights (B.C.) et al. (1995), 57 B.C.A.C. 241; 94 W.A.C. 241; 122 D.L.R.(4th) 665; 3 B.C.L.R.(3d) 321 (C.A.), refd to. [para. 23].

United Steelworkers, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 2009 v. Auyeung et al. (2011), 314 B.C.A.C. 172; 534 W.A.C. 172; 2011 BCCA 527, dist. [para. 24].

Board of School Trustees of School District No. 44 (North Vancouver) v. Jubran et al. (2005), 211 B.C.A.C. 161; 349 W.A.C. 161; 2005 BCCA 201, refd to. [para. 38].

Scott v. CPAC (Crescent Gardens) Inc. et al., [2003] B.C.T.C. 222; 50 Admin. L.R.(3d) 213; 2003 BCSC 222, refd to. [para. 38].

Carter v. Travelex Canada Ltd. et al. [2008] B.C.T.C. Uned. B46; 81 B.C.L.R.(4th) 170; 2008 BCSC 405, affd. (2009), 269 B.C.A.C. 216; 453 W.A.C. 216; 310 D.L.R.(4th) 39; 2009 BCCA 180, refd to. [para. 38].

Downtown Vancouver Business Improvement Association v. Pivot Legal Society et al., [2010] B.C.T.C. Uned. 807; 2010 BCSC 807, refd to. [para. 38].

Workers' Compensation Board (B.C.) v. Human Rights Tribunal (B.C.) et al., [2009] B.C.T.C. Uned. 377; 95 B.C.L.R.(4th) 170; 2009 BCSC 1165, refd to. [para. 39].

Zeleniski Estate et al. v. Fairway (1998), 114 B.C.A.C. 270; 186 W.A.C. 270; 60 B.C.L.R.(3d) 76 (C.A.), refd to. [para. 41].

Robinson v. Lakner (1998), 107 B.C.A.C. 64; 174 W.A.C. 64; 159 D.L.R.(4th) 191 (C.A.), refd to. [para. 41].

Statutes Noticed:

Administrative Tribunals Act, S.B.C. 2004, c. 45, sect. 59 [para. 22].

Human Rights Code, R.S.B.C. 1996, c. 210, sect. 13, sect. 27 [para. 21]; sect. 37(4) [para. 33].

Counsel:

Olga Routkovskaia acted on her own behalf;

M.H. Korbin, for the respondents, FPI Fireplace Products and D. Millichamp.

This appeal was heard on January 16, 2012, at Vancouver, B.C., before Low, Frankel and Garson, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Garson, J.A., on March 30, 2012.