COURT OF APPEAL FOR BRITISH COLUMBIA

Transcription

1 COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Between: And Francescutti v. Vancouver (City), 2017 BCCA 242 Joseph Francescutti City of Vancouver and Mike Zupan Date: Docket: CA43821 Respondent (Petitioner) Appellants (Respondents) And British Columbia Human Rights Tribunal Respondent Before: The Honourable Madam Justice Bennett The Honourable Madam Justice MacKenzie The Honourable Mr. Justice Hunter On appeal from: An order of the Supreme Court of British Columbia, dated June 29, 2016 (Francescutti v. Vancouver (City), 2016 BCSC 1191, Vancouver Docket S ). Counsel for the Appellants: Counsel for the Respondent Joseph Francescutti: Counsel for the Respondent British Columbia Human Rights Tribunal: Place and Date of Hearing: Place and Date of Judgment: G. Scorer D.P. Davison D. Cousineau Vancouver, British Columbia May 15, 2017 Vancouver, British Columbia June 23, 2017

2 Francescutti v. Vancouver (City) Page 2 Written Reasons by: The Honourable Madam Justice Bennett Concurred in by: The Honourable Madam Justice MacKenzie The Honourable Mr. Justice Hunter

3 Francescutti v. Vancouver (City) Page 3 Summary: The City and Mike Zupan appeal a judicial review decision setting aside the Human Rights Tribunal s dismissal of a complaint without a hearing on the basis that it had no reasonable prospect of success. The complaint was brought by a City employee whose employment was terminated after he took a jacket intended as an award for his good attendance, and lied to his employer about taking it. Mr. Francescutti claimed he was terminated because of his mental illness. The chambers judge found that the Tribunal s decision was patently unreasonable because it made findings of fact, including in crucial areas where credibility was at issue. Held: Appeal allowed. The chambers judge erred in his interpretation of s. 27(1)(c) of the Human Rights Code, in concluding that the Tribunal based its decision upon its own findings of fact, in finding that key issues of credibility required a hearing, and in failing to afford sufficient deference to the Tribunal. Reasons for Judgment of the Honourable Madam Justice Bennett: [1] Joseph Francescutti filed a complaint with the British Columbia Human Rights Tribunal ( Tribunal ) in relation to his dismissal as an employee of the City of Vancouver ( City ). His complaint also named his former supervisor, Mike Zupan. The complaint was dismissed by the Tribunal on the basis that it had no reasonable prospect of success. Mr. Francescutti brought an application for judicial review before the British Columbia Supreme Court. The application was allowed and the matter was referred back to the Tribunal. The City and Mr. Zupan bring an appeal of that decision. [2] In my view, the judge erred in finding that the Tribunal s decision was patently unreasonable. I would allow the appeal, set aside the decision of the chambers judge, and restore the Tribunal s decision. Background [3] Mr. Francescutti was a long-time employee of the City s sanitation department. In 2012, Mr. Francescutti had a perfect attendance record. All employees with perfect attendance were allowed to choose an award from a selection of clothing, other merchandise, or gift cards. He chose a jacket, which was ordered for him. On March 22, 2013, the awards arrived and were placed in the

4 Francescutti v. Vancouver (City) Page 4 Collections Superintendent s office awaiting distribution. Mr. Francescutti saw his jacket, which was labelled with his name, and took it without telling anyone. [4] The City conducted an investigation into the missing jacket. On two occasions, Mr. Francescutti asked his supervisor what was going on with the jacket, without revealing that he had taken it. The City s search revealed a video showing him holding the jacket, and on April 19, 2013, the City confronted Mr. Francescutti with video and screenshot evidence. He admitted to having taken the jacket, and was suspended. [5] On April 30, 2013, the City met with Mr. Francescutti and a representative from his Union. For the first time, Mr. Francescutti attributed his behaviour to mental illness. He provided a prescription pad note from Dr. Harmer, dated April 23, 2013, stating that he was taking medication for depression and anxiety. [6] Mr. Francescutti was terminated for cause on April 30, The summary of termination letter states: As a result of your misconduct on March 22, 2013 it has been determined that you cannot be relied upon to carry out your duties and conduct yourself with honesty and integrity, therefore we have made the decision to end the relationship and terminate your employment. [7] However, a grievance procedure followed the termination, and Mr. Francescutti was permitted to submit several medical reports to the City attesting to his mental illness. He noted that the City had known of his mental health issues in the past, as he had received workplace accommodations. [8] Dr. Rana, a consulting psychiatrist, saw him on June 12, 2013, and diagnosed depression, however, sought a follow-up. No follow-up report of Dr. Rana was submitted. [9] Dr. Wariach saw him on June 20, 2013 for a psychiatric consultation. Mr. Francescutti was diagnosed with significant depressive and anxiety symptoms, with a recommendation to continue his care with Dr. Rana.

5 Francescutti v. Vancouver (City) Page 5 [10] Dr. Khara saw him on July 8, 2013, at Vancouver General Hospital, at the request of the union s business agent. Dr. Khara s report summarized Mr. Francescutti s version of events. Mr. Francescutti acknowledged that his conduct was dishonest, but believed that firing him was a disproportionate response. He was unable to explain his behavior to Dr. Khara, other than to say that it was bizarro. Dr. Khara stated his opinion under the heading Impression : Impression This interview was based exclusively on Joe s description of events and timelines. No corroborating information (such as GP records) were available to me. Based on the history provided, Joe meets DSM IV criteria to make the diagnosis of major depressive disorder. He is being appropriately treated with Celexa, an SSRI though he would appear to be having a sub-optimal response to this medication. Treatment options would include changing this agent or adding an adjunctive medication. Individual or group therapy would also be advisable. It would appear that Joe s family physician has arranged for psychiatric assessment already and group counseling is due to begin imminently. At this time, no further therapeutic measures would seem to be required. Regarding the termination of Joe s employment, clearly it is conjecture as to how this illness (which appears to have been documented and treated prior to the incident in question) affected his behaviour. Depression can lead to poor judgement, difficulties concentrating and a variety of other symptoms. This may be a mitigating factor in this unfortunate event. Further assessment by a psychiatrist for the purposes of managing Joe and his illness would appear to be prudent. [11] He also saw Dr. Wittenberg, a neuropsychologist, for an independent evaluation of his cognitive and mood status. Dr. Wittenberg stated that Mr. Francescutti had the symptoms of a major depressive disorder. She noted that all of his test scores were within normal limits and generally average, with the exception of a small number of low scores that could be due to chance. Her assessment included tests for overall intellectual functioning, as well as language, perceptual-organizational, visuospatial, verbal memory, nonverbal memory, processing speed, attention, working memory, and executive functioning abilities. [12] The City obtained its own report from an occupational health physician, Dr. Stewart-Patterson. He was asked by the City, [i]s there a causal link between

6 Francescutti v. Vancouver (City) Page 6 the medical and Mr. Francescutti s ability to know the difference between right and wrong and the consequences of his actions? Dr. Stewart-Patterson concluded that there was no significant evidence of psychological impairment that would likely account for his behavior on March 22 nd 2013, and no evidence of a causal link. [13] Mr. Francescutti s explanation is found in his July 3, 2014, affidavit, wherein he deposes: I was fired by the City on 30 April 2013 after an incident with a jacket that I won for my year of perfect attendance. The City told me I had won a prize and they allowed me to pick from different items. I picked a jacket and they told me they would order it for me. About two months later, I was walking past a common, acting foreman s office. The door was open and I saw the jacket inside. It had a tag with my name on it and so I took it. It was mine and I guess I didn t think it was wrong, although my memory of exactly what I thought at the time is not clear. This was at a time when my medication did not seem to be the right medication for me because I was still suffering from depression and anxiety, mood swings and memory loss. I just know that I took the jacket. I have read the Respondents materials for their application and they say that on 22 March 2013 they told me the jacket was missing and they say that I said that the jacket must have been stolen. I believe that I did not say that. I don t have any recollection of anyone talking to me about the jacket at all on 22 March In the following days I do remember saying to Troy de Graaf What s the deal with the jacket? But don t believe I said that it had been stolen. The Respondents also say that I asked for another jacket to be ordered for me, but I never asked them to do this. I don t know why I didn t tell the City sooner that I had taken the jacket. I know it doesn t make sense and that because they thought the jacket was missing that they had to look for it and investigate, but I can t explain my actions, except to say that at the time it happened, my mind just wasn t right. My moods and my emotions and my memory were poor and I was under so much stress that I was making poor choices. I certainly never thought that I was stealing anything. It was my jacket. But I should have told my employer sooner that I had taken it. The Respondents say that on 19 April 2014 Troy de Graaf, Irina Buric, Mike Zupan, Alex Bruse (Union Shop Steward) and I met, that after being shown a picture from a security video showing me holding the jacket that I still denied taking it. This isn t true. When they showed me the picture I admitted taking the jacket. After that they did show me the security video, at the request of Alex Bruse, but I told them before that that I took the jacket.

7 Francescutti v. Vancouver (City) Page 7 On 30 April 2013, I went to a meeting with Mike Zupan, Troy de Graaf (superintendent), Irena Buric (Human Resources), Steve Varty (Union business agent), and Alex Bruse (Union Shop Steward). At the meeting, I told everyone about my problems with mental illness and I asked for help. I realized I couldn t explain why I didn t tell the truth about taking the jacket right away, but I was sure it was because of my depression and anxiety and the medication I was on that was not helping. I brought papers from my doctor to show to them. I knew that Mike Zupan knew already, but I thought that maybe they would want to see more medical proof, but they wouldn t listen. Mike Zupan just said to me that I was bringing this to him at the 11th hour and they dismissed me from the meeting. Later that day, Mike Zupan fired me. [14] The City maintained the termination on February 11, 2014, in a letter sent to him after the grievance procedure. Dr. Ballem, the City Manager, wrote: When the Grievor s deliberate misconduct and persistent misrepresentations are measured against his long and undistinguished employment record (enclosed) [Mr. Francescutti had a history of discipline issues and at least one, of not more prior suspensions], it becomes clear that this incident is, unfortunately, quite in character for the Grievor. Even in isolation, but particularly given the employment record, it is behavior that we cannot tolerate. [15] In October 2013, Mr. Francescutti filed a complaint against the City and Mr. Zupan with the Tribunal, alleging they discriminated against him in employment on the basis of a mental disability, contrary to s. 13 of the Human Rights Code, R.S.B.C. 1996, c. 210 [Code]. The Human Rights Tribunal Decision [16] In October 2014, the Tribunal allowed the City s application to dismiss Mr. Francescutti s complaint as having no reasonable prospect of success; the Tribunal s reasons are indexed at Francescutti v. City of Vancouver and another, 2014 BCHRT 236. As the complaint was dismissed in its entirety, the Tribunal found it unnecessary to address the City s alternative application to dismiss the complaint against Mr. Francescutti s supervisor (the Acting Manager of Sanitation Services) on the basis it did not further the purposes of the Code (s. 27(1)(d)).

8 Francescutti v. Vancouver (City) Page 8 [17] Tribunal Member Tyshynski expressly stated she was not making findings of fact, but rather summarizing the information provided by the parties (at para. 6). She set out the background of Mr. Francescutti s employment with the City, the City s policy for awarding perfect attendance, and the dispute that arose surrounding the jacket. She then summarized Mr. Francescutti s and the City s respective versions of what the chambers judge termed the jacket incident, namely, the disappearance of the jacket, the interactions between City staff and Mr. Francescutti about it, and Mr. Francescutti s termination over his apparent dishonesty. Some of the basic facts and timeline differ between the two versions of events, including the date Mr. Francescutti raised his mental health issues in relation to the incident, the City s immediate response to his disclosure, and how the City later dealt with information about Mr. Francescutti s mental health. The City initially denied having prior knowledge of Mr. Francescutti s mental health issues; however, documents discovered through a freedom of information request demonstrated that they were aware of these issues at least as early as [18] The Tribunal noted that s. 27(1)(c) of the Code gives the Tribunal discretion to dismiss a complaint if it determines that the complaint has no reasonable prospect of success (at para. 14). She cited both Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95, and Gichuru v. British Columbia (Workers Compensation Appeal Tribunal), 2010 BCCA 191 as authority affirming this approach. She noted that the Tribunal, when addressing s. 27(1)(c) applications, performs a gate-keeping function by assessing the evidence of both parties and determining whether there is a reasonable prospect of success, such that the time and expense of a hearing is warranted (at para. 15, citing Workers Compensation Appeal Tribunal v. Hill, 2011 BCCA 49). She noted that the threshold to proceed to a hearing is low, and requires only that the complainant show the evidence takes the case out of the realm of conjecture (at para. 15). [19] Some of Mr. Francescutti s material was unhelpful in assessing the application before the Tribunal, as it related to other incidents of alleged unfairness or discrimination (at para. 17). The Tribunal was also conscious of Mr. Francescutti s

9 Francescutti v. Vancouver (City) Page 9 emphasis on the apparent inconsistencies in the City s materials, but she noted that the test on a s. 27(1)(c) application relates to the whole of the material filed, and that credibility is not necessarily determinative (at paras , referring to Bell v. Dr. Sherk and others, 2003 BCHRT 63). [20] The core portion of the Tribunal s reasoning related to the question of whether there was a nexus between Mr. Francescutti s termination and his mental health issues. The City emphasized he was terminated because he lied, leading to an irreparable loss of trust in the employer-employee relationship. The Tribunal noted that Mr. Francescutti admitted to having lied (at para. 20). She also noted that Mr. Francescutti admitted certain relevant facts and that he [did] not know why he did not tell the City he took the jacket (at para. 21). The Tribunal focused on the timeline of Mr. Francescutti s disclosure of his mental health issues. She highlighted that he only admitted he had taken the jacket at the investigative meeting where he was confronted with evidence and put on notice he might be terminated (at para. 22). He only raised a connection between his mental disability and the incident at the later meeting where he was terminated for just cause (at para. 23). She noted Mr. Francescutti s perfect attendance and lack of disciplinary issues in 2012, and that he had not informed human resources of any mental disability or need for accommodation in at least the past year (at para. 24). Finally, she noted the City had permitted Mr. Francescutti to provide medical reports and assessments showing a nexus between his mental disability and the incident, and that he failed to file any medical evidence that specifically linked his mental disability to his lying to the City (at para. 26). [21] Having made these observations, the Tribunal concluded the City had provided a detailed, reasonable, non-discriminatory explanation for the termination, and that there was no reasonable prospect of Mr. Francescutti succeeding at a full hearing (at para. 26). She therefore dismissed his complaint pursuant to s. 27(1)(c) of the Code. [22] Mr. Francescutti petitioned for judicial review of this decision.

10 Francescutti v. Vancouver (City) Page 10 The Decision on Judicial Review [23] The chambers judge set aside the Tribunal s decision and remitted the matter to the Tribunal for reconsideration: 2016 BCSC [24] The judge first set out the three elements Mr. Francescutti would have to prove to be successful in his complaint before the Tribunal: (1) he suffered a mental disability at the time his employment was terminated, (2) he suffered adverse treatment, and (3) his mental illness was a factor in his dismissal (at para. 5). The judge noted that only the third element was at issue before the Tribunal and on judicial review (at para. 6). [25] Next, the judge turned to the nature of the Tribunal s inquiry under s. 27. He noted that the Tribunal does not make findings of fact. Instead, it assesses all the evidence to determine whether it raises the claim out of the realm of conjecture (at paras. 7 8, citing Chiang v. British Columbia (Human Rights Tribunal), 2014 BCSC 1859 at para. 11; Gichuru at para. 26; Hill at para. 27). [26] The judge then reviewed the events leading up to Mr. Francescutti s termination. He noted that the City eventually acknowledged it had been aware of Mr. Francescutti s mental illness up to and including 2011, but the evidence was contradictory as to whether the City or Mr. Zupan was aware of Mr. Francescutti s continuing mental illness up to the time of his termination (at para. 12). Mr. Francescutti relied on Tribunal decisions speaking of a duty to inquire before terminating where an employer has reason to suspect an employee s medical condition may be affecting their ability to work (Gardiner v. Ministry of Attorney General, 2003 BCHRT 41 at para. 162) (at para. 17). Mr. Francescutti said the City was aware of his ongoing mental health challenges; had a duty to inquire about how this affected his work, and in particular the jacket incident; and failed to discharge that duty despite being provided with medical evidence (at paras ). The City disputed this, saying that it did not have a duty to investigate, but that it had nonetheless reviewed the medical information and retained Dr. Stewart-Patterson,

11 Francescutti v. Vancouver (City) Page 11 and then maintained Mr. Francescutti s termination once this assessment was complete (at paras ). [27] Next, the judge summarized the Tribunal proceedings and set out in detail the evidence before the Tribunal. Mr. Francescutti s evidence addressed the onset and progression of his mental illness, the City s awareness of his mental illness, and his belief in a connection between his mental illness and his conduct during the jacket incident. He provided medical evidence from four doctors. The judge emphasized the evidence of Dr. Khara, who noted it was conjecture as to how this illness affected his behaviour, but acknowledged that [d]epression can lead to poor judgement, difficulties concentrating and a variety of other symptoms, and that this might be a mitigating factor in the jacket incident (at para. 30). [28] The judge noted the City had resiled from its position taken at the time of termination that it did not know of Mr. Francescutti s mental illness once Mr. Zupan s evidence on this subject was shown to be incorrect. Instead, the City emphasized it had fulfilled its duty to accommodate, noting in particular the evidence of Dr. Stewart-Patterson. The judge emphasized that even based on Dr. Stewart- Patterson s evidence, it was possible to infer, based on the doctor s use of the term significant to qualify the nature of the evidence, that he must have found some evidence of a causal connection (at para. 41). He also highlighted that the doctor did not interview Mr. Francescutti or review a statement from him about the events, nor did he refer to Mr. Francescutti s mental health history or to some of the medical reports he submitted. [29] Turning to the issue of the Tribunal s decision to dismiss the complaint on the basis it had no reasonable prospect of success, the judge noted the parties were in agreement that the standard of review was patent unreasonableness pursuant to the Administrative Tribunals Act, S.B.C. 2004, c. 45, s. 59(3) [ATA]. Mr. Francescutti contended the Tribunal s decision was patently unreasonable. The judge set out the statutory conditions for a patently unreasonable decision in s. 59(4) of the ATA. He also noted that a s. 27 decision will be patently unreasonable where the Tribunal

12 Francescutti v. Vancouver (City) Page 12 made findings of fact, used the wrong standard, or ignored evidence (at para. 46, citing Yaremy v. British Columbia (Human Rights Tribunal), 2013 BCSC 2386, aff d 2015 BCCA 228). [30] After noting the Tribunal carries out a gate-keeping function under s. 27(1)(c) in dismissing complaints that do not merit a full hearing, the judge noted that the highest degree of curial deference was owed to the Tribunal s exercise of discretion to dismiss a complaint pursuant to s. 27(1)(c) of the Code (at paras ). The judge agreed that the City s knowledge of Mr. Francescutti s mental illness was only disclosed to the Tribunal by his own diligence, but concluded it was unnecessary to inquire into whether the City had acted mala fide (at para. 52). [31] The judge summarized Mr. Francescutti s position, noting the main thrust of his argument was that Mr. Zupan s testimony was suspect, and yet the Tribunal relied on it to refute his own evidence of a nexus between his mental illness and the jacket incident (at paras ). The judge concluded Mr. Francescutti had met the low burden of bringing the case out of the realm of conjecture, and thus the Tribunal had erred in concluding otherwise (at para. 58). The judge also found the Tribunal erred by making findings of fact (namely by preferring the City s evidence to Mr. Francescutti s) that were crucial to its decision in areas where credibility was at issue. On that basis, the judge held that the Tribunal s decision was patently unreasonable (at para. 58). The crucial portions of the judge s reasoning are: [59] The Tribunal grounded its decision on the basis that Mr. Francescutti did not provide medical evidence specifically linking his conduct to his mental illness. In respect of the City s case, [the Tribunal] concluded: In my view, the City has provided a detailed, reasonable, nondiscriminatory explanation for the termination of Mr. Francescutti s employment. [60] Yet, on its face, and without considering the contradictory effect of the evidence tendered in the respondents case, the totality of the evidence tendered on behalf of Mr. Francescutti meets the threshold question of whether Mr. Francescutti s complaint has a reasonable prospect of success. When looked at solely on its own, without considering the prospect of contradiction through cross-examination and without the contradictory evidence of the respondents, the combination of: (a) Mr. Francescutti s evidence about his condition and symptoms and its connection to the jacket incident together with his request for help when he proffered a doctor s note

13 Francescutti v. Vancouver (City) Page 13 just before he was to be terminated; (b) the evidence of his union representative who attended the April 30 termination meeting; (c) the reports of his four medical doctors; and (d) the City s documents showing its longstanding knowledge of his mental illness, is sufficient to prove the nexus between his mental illness and his conduct that resulted in his dismissal. [61] It is the contradictory evidence submitted by the respondents, including their evidence surrounding the termination meeting and the report from Dr. Stewart-Patterson, which casts doubt on the strength of Mr. Francescutti s complaint. [62] In addition to relying on the evidence they tendered before the Tribunal, the respondents assert that Dr. Khara s opinion is nothing more than speculation or conjecture and cannot be relied upon to establish a nexus between Mr. Francescutti s mental illness and the jacket incident. Yet, given Dr. Khara s limited involvement with Mr. Francescutti, it is not surprising that Dr. Khara could not say anything more in the circumstances. Moreover, Dr. Stewart-Patterson s opinion does not, on its face, contradict Dr. Khara s opinion or the evidence concerning nexus provided by Mr. Francescutti; In all, it is up to the tribunal hearing the complaint to determine if Mr. Francescutti s testimony concerning his reported symptoms of mental illness and their connection with the jacket incident is credible in light of the medical testimony describing the manifestations of mental illness. [63] In reaching its decision, the Tribunal weighed the evidence and made findings as to credibility of the evidence adduced in Mr. Francescutti s case. [64] With respect, it is not open to the Tribunal to make findings of fact and make determinations of credibility, especially in key areas of conflict, on a s. 27 application. [69] Thus, in addition to making findings and preferring the respondents evidence where there is conflicting evidence, the Tribunal did not assess whether, if the evidence and allegations advanced in Mr. Francescutti s case were proven true, his complaint had a reasonable prospect of success. [32] The judge found the case of Salvo v. Shoppers Drug Mart Store #222, 2012 BCSC 1789, to be strongly parallel to the case before him (at paras , 77). In Salvo, the Tribunal s decision was found to be patently unreasonable because it made findings of fact in rejecting the complainant s evidence. There was no medical evidence before the Tribunal in Salvo, but the complainant attested to a nexus between his mental health and the incident. [33] The judge in the case at bar then distinguished Ryan v. Canada Safeway and Ramponic (No. 2), 2008 BCHRT 12, on the basis that in that case, the employer s medical evidence directly refuted any connection between the employee s impugned

14 Francescutti v. Vancouver (City) Page 14 conduct (stealing funds) and her alcoholism, whereas in the present case, the judge concluded the medical evidence indicated symptoms which could explain Mr. Francescutti s behaviour was due to his mental illness (at paras ). [34] The judge in this case found the Tribunal s decision patently unreasonable because it made findings of fact, including in crucial areas where credibility was in issue (at para. 76). He therefore allowed the judicial review petition and remitted the matter to the Tribunal for reconsideration (at para. 77). Issues [35] The City raises four grounds of appeal. It says the judge erred in his interpretation of s. 27(1)(c) of the Human Rights Code; that he erred in finding that the Tribunal made findings of fact; that he erred in finding that there were key issues of credibility that required a hearing; and that he erred in failing to afford the Tribunal sufficient deference. Legal Framework [36] Mr. Francescutti brought his complaint under s. 13 of the Code: Discrimination in employment 13 (1) A person must not (b) discriminate against a person regarding employment or any term or condition of employment because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age. [37] It is common ground that Mr. Francescutti s diagnosis of depression and anxiety is a mental disability. [38] The framework upon which discrimination is determined is set out in the recent decision of Stewart v. Elk Valley Coal Corp., 2017 SCC 30, at paras : To make a claim for discrimination under the Act, the employee must establish a prima facie case of discrimination. If this is established, the onus

15 Francescutti v. Vancouver (City) Page 15 then shifts to the employer to show that it accommodated the employee to the point of undue hard-ship. To make a case of prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact : Moore, at para. 33. Discrimination can take many forms, including indirect discrimination, where otherwise neutral policies may have an adverse effect on certain groups: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789, at para. 32. Discriminatory intent on behalf of an employer is not required to demonstrate prima facie discrimination: Bombardier, at para. 40. [39] It is also common ground that Mr. Francescutti has a mental disability, and that he was terminated from his employment; and the third factor, whether Mr. Francescutti s mental disability was a factor in his termination, was the only live issue before the Tribunal. [40] The application by the City and Mr. Zupan to dismiss the complaint was brought under s. 27(1)(c). As s. 27(1)(b) is also engaged in this appeal, both are set out below: Dismissal of a complaint 27(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: Standard of Review (b) the acts or omissions alleged in the complaint or that part of the complaint do not contravene this Code; (c) there is no reasonable prospect that the complaint will succeed; Judicial review of the Tribunal s Decision [41] The parties agreed that the standard of review on judicial review is patent unreasonableness as the decision to dismiss is discretionary pursuant to s. 27(1)(c) of the Code (s. 59 of the Administrative Tribunals Act, S.B.C. 2004, c. 45 ( ATA )). Sections 59(3) and (4) of the ATA provide:

16 Francescutti v. Vancouver (City) Page 16 Standard of review without privative clause 59 (3) A court must not set aside a discretionary decision of the tribunal unless it is patently unreasonable. (4) For the purposes of subsection (3), a discretionary decision is patently unreasonable if the discretion (a) is exercised arbitrarily or in bad faith, (b) is exercised for an improper purpose, (c) is based entirely or predominantly on irrelevant factors, or (d) fails to take statutory requirements into account. [42] The Courts apply the highest of curial deference on review of decisions made under s. 27(1)(c). In Lee v. British Columbia Hydro and Power Authority, 2004 BCCA 457, this Court discussed the gate-keeping function performed by the Tribunal at para. 26: [26] The HRC s use of the phraseology: not any evidence was infelicitous; it would have been better to say there was not sufficient evidence. As other judges have observed, there will almost always be some evidence of the possibility of discrimination when a member of a minority group is passed over in favour of a member of the majority group. But a mere possibility surely cannot be enough to require a hearing. The scheme of the statute involves a screening process so that only complaints with sufficient merit will proceed to a hearing. The HRC was assigned the role of gate keeper. Thus the HRC had to assess this case in a preliminary way and make a judgment whether the matter warranted the time and expense of a full hearing. The threshold is not particularly high: whether the evidence takes the case out of the realm of conjecture : Onischak v. British Columbia (Council of Human Rights) (1989), 38 Admin. L.R. 258 at 266 (B.C.S.C.) per Huddart J. (as she then was), followed by Shaw J. in Rogers v. British Columbia (Council of Human Rights) (1994), 21 C.H.R.R. D/67, [1993] B.C.J. No. 698 (QL) at para. 18 (B.C.S.C.), which in turn was applied by this Court in Kratoska v. British Columbia (Council of Human Rights) (1997), 88 B.C.A.C. 241, [1997] B.C.J. No. 638 (QL) at para. 11. As the tribunal is assumed to know the law, the HRC must be taken to have applied this test. [43] And with respect to a review of a decision made under s. 27(1)(c), the Court said this, at para. 27: [27] In my view the evaluation of the complaint at the gate keeping stage attracts the highest degree of curial deference. It involves the assessment of evidence in a specialized area. I do not think it can be said that the decision to dismiss the complaint was patently unreasonable. Mr. Lee said racism influenced BC Hydro s decisions relating to his career. BC Hydro said racism

17 Francescutti v. Vancouver (City) Page 17 played no part in the matter. It was open to the HRC to decide that there was nothing in the evidence that moved the allegation from speculation to inference: see Jacques v. British Columbia (Council of Human Rights) (1998), 51 B.C.L.R. (3d) 111, 161 D.L.R. (4th) 137 at para. 25 (C.A.). Before us, Mr. Lee was unable to bring out anything that takes the case over the line in an obvious way so that it can be said that the dismissal of his complaint was patently unreasonable. As I said in my introductory remarks, the reviewing judge appears to have substituted her own view of the evidence for that of the HRC contrary to the approach set out in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19 at para. 42. It is clear that the legislature intended the screening to be done by the HRC, not the courts. [44] This Court in Berezoutskaia affirmed this approach at paras [45] A patently unreasonable decision is one that is clearly irrational or evidently not in accordance with reason or so flawed that no amount of curial deference can justify letting it stand. See Law Society of New Brunswick v. Ryan, 2003 SCC 20 at para. 52. [46] In Stewart v. Elk Valley Coal Corp., 2017 SCC 30, the Court held, at para. 20: Reviewing courts generally approach the decisions of tribunals under human rights statutes with considerable deference. It is the tribunal s task to evaluate the evidence, find the facts and draw reasonable inferences from the facts. And it is the tribunal s task to interpret the statute in ways that make practical and legal sense in the case before them, guided by applicable jurisprudence. Reviewing courts tread lightly in these areas. [47] The reviewing court does not reevaluate the evidence before the Tribunal. Even if the court would have come to a different conclusion on the evidence before the Tribunal, this does not mean that the decision is patently unreasonable. Nor is the tribunal s decision analyzed line-by-line ; it is reviewed based on the whole of the decision. See: Routkovskaia v. British Columbia (Human Rights Tribunal), 2012 BCCA 141 at para. 29; Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 at para. 54. [48] The standard of review in this Court for whether the chambers judge identified the appropriate standard of review and properly applied it is correctness. See: Baharloo v. University of British Columbia, 2016 BCCA 277 at para. 58.

18 Francescutti v. Vancouver (City) Page 18 Did the Reviewing Judge Err in his Consideration of s. 27(1)(c)? Discussion [49] Determinations under s. 27(1)(b) and (c) are materially different. A dismissal under s. 27(1)(b) is made only based on the allegations in the complaint, without reference to any evidence offered by the respondents. See: Bailey v. British Columbia (Ministry of Attorney General) (No. 2), 2006 BCHRT 168 at para. 12. [50] On the other hand, under the gate-keeping function of s. 27(1)(c), the Tribunal must consider the whole of the evidence. This Court set out the nature of a s. 27(1)(c) application in Hill at para. 27: [27] It is useful to describe the nature of an application under s. 27 of the Code to provide context for the appellants arguments. That provision creates a gate-keeping function that permits the Tribunal to conduct preliminary assessments of human rights complaints with a view to removing those that do not warrant the time and expense of a hearing. It is a discretionary exercise that does not require factual findings. Instead, a Tribunal member assesses the evidence presented by the parties with a view to determining if there is no reasonable prospect the complaint will succeed. The threshold is low. The complainant must only show the evidence takes the case out of the realm of conjecture. If the application is dismissed, the complaint proceeds to a full hearing before the Tribunal. If it is granted, the complaint comes to an end, subject to the complainant s right to seek judicial review: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95, 223 B.C.A.C. 71 at paras , leave to appeal ref d [2006] S.C.C.A. No. 171; Gichuru v. British Columbia (Workers Compensation Appeal Tribunal), 2010 BCCA 191, 285 B.C.A.C. 276 at para. 31. [51] In his reasons, the reviewing judge held, at para. 69: [T]he Tribunal did not assess whether, if the evidence and allegations advanced in Mr. Francescutti s case were proven true, his complaint had a reasonable prospect of success. [52] In my view, this is a clear error by the reviewing judge. This approach encompasses the test under s. 27(1)(b). The Tribunal, under s. 27(1)(c), was not required to assess the evidence and allegations put forward by Mr. Francescutti in the absence of other evidence. The Tribunal was, as noted in Hill, to assess the evidence presented by the parties to determine if there was a reasonable prospect

19 Francescutti v. Vancouver (City) Page 19 the complaint would succeed. It is clear that this is the analysis the Tribunal performed. [53] The reviewing judge also appeared to be of the view that the Tribunal cannot consider credibility. While the tribunal does not make findings of fact at this stage, it is entitled to weigh credibility when assessing whether there is a reasonable prospect that the complaint will succeed: Berezoutskaia at para. 9, citing Bell: In my view, the fact that a complaint raises issues of credibility is not, in and of itself, sufficient reason to deny an application to dismiss. Credibility is a factor in virtually every human rights complaint. Tribunal members, however, when considering the information which is before them in an application to dismiss, are not making findings of credibility per se, but rather are evaluating all the information before them in order to determine whether there is a reasonable prospect the complaint will succeed. This evaluation or weighing of the evidence for the purpose of determining whether there is a reasonable prospect the complaint will succeed is not of the same nature as that which occurs at a hearing before a tribunal, where the tribunal would make an assessment of the evidence on the balance of probabilities. The weighing or assessing at the s. 27 stage should relate solely to the question of whether there is a reasonable prospect that the complaint will succeed: Rogers v. British Columbia (Council of Human Rights) (1993), 21 C.H.R.R. D/67 (B.C.S.C.) at paras (See also Yuan [Yuan v. British Columbia (Human Rights Commission), 2003 BCSC 461], where the Court states that the Commissioner s delegate (by analogy, now, the Tribunal) must, in order to consider the statutory obligation concerning no reasonable basis [now, no reasonable prospect the complaint will succeed] weigh or assess or evaluate the evidence in its entirety. ) (paras. 28 and 29) [54] In my view, the reviewing judge erred in his approach by applying the wrong test and by concluding that the Tribunal could not weigh credibility on a s. 27(1)(c) application. Did the Judge Err in Concluding the Tribunal Based its Decision on its own Findings of Fact? [55] The reviewing judge found that in order to dismiss the complaint, the Tribunal must have made findings of fact and rejected Mr. Francescutti s evidence in favour of the City s and Mr. Zupan s. [56] He concluded that the decision was patently unreasonable on this basis.

20 Francescutti v. Vancouver (City) Page 20 [57] The Tribunal member stated that she was not making findings of fact, and was alive to the Bell decision that sets out the scope of her review, noted above. [58] Mr. Francescutti had to show on the evidence that there was some basis, beyond the realm of conjecture (and beyond a mere possibility) on which to find a nexus between his mental health issues and his termination. Mr. Francescutti speculated that a nexus existed; however, none of his evidence (or the City s or Mr. Zupan s) supports this speculation. In reaching the same conclusion, the Tribunal member did not make findings of fact; she considered the evidence, as she was entitled to do, and concluded that there was no reasonable possibility that Mr. Francescutti could establish the nexus. [59] There is no question that Mr. Francescutti has depression, and there was evidence that depression can lead to poor judgment. Mr. Francescutti blamed his conduct on his depression; however, no medical opinion supported a connection between his mental illness and his termination. This case is quite different from Salvo, relied on by the judge. [60] Salvo was an unusual case. Mr. Salvo attended a Shoppers Drug Mart in Surrey, B.C. in order to fill a prescription for an anti-depressant medication. He gave the subscription to the pharmacist, and waited for it to be filled. He was wearing a hooded sweatshirt, known as a hoodie, with the hood up, over his head. A store manager, Ms. Pang, approached Mr. Salvo and asked him to remove his hood, and he refused. Mr. Salvo and Ms. Pang then told different versions of what occurred. [61] Mr. Salvo complained to the British Columbia Human Rights Tribunal. In his complaint to the Tribunal, he said, wearing a hood is part of my mental sickness. The Tribunal member who heard and allowed the application to dismiss the complaint under s. 27(1)(c) said he was not finding facts, however, he dismissed the application based on the evidence of Ms. Pang, which was contradicted by Mr. Salvo. As well, the Tribunal member concluded that there was no reasonable prospect of establishing a connection between his hood and his depression.

21 Francescutti v. Vancouver (City) Page 21 Mr. Salvo had filed submissions that connected his wearing of a hood with his illness. [62] On judicial review, the Court found that the Tribunal member s decision was patently unreasonable because there was a connection on the material before him that would demonstrate a reasonable prospect of establishing a connection between the adverse treatment he alleged, and his illness. The matter was remitted to the Tribunal for reconsideration, indexed at 2012 BCSC No appeal was taken from this decision. As an aside, the same result was reached after the reconsideration. [63] The Tribunal in this case did not rely on any of the disputed evidence in coming to her conclusion. She relied on the admitted facts, that Mr. Francescutti took the jacket, and then continued to lie about that fact for almost a month, admitting it only when faced with incontrovertible evidence that he took it. [64] In my opinion, the judge erred when he concluded that the Tribunal embarked on fact-finding. It did not. Did the Judge Err in Finding there were Key Credibility Issues Requiring a Hearing? [65] The reviewing judge found that there were a number of credibility issues that needed to be resolved, and as such, the case needed to be aired at a full hearing. The evidence presented by Mr. Francescutti, the City, and Mr. Zupan is certainly not completely in accord. However, as noted by the reviewing judge, none of this matters for this complaint before the Tribunal, unless Mr. Francescutti can establish a nexus between his mental health and the conduct that led to his dismissal (at para. 52). [66] The crux of the medical evidence provided by Mr. Francescutti, Dr. Khara, Dr. Wittenberg, Dr. Harmer, Dr. Rana, Dr. Waraich and Dr. Stewart-Patterson is set out above. Mr. Francescutti admitted he took the jacket, and more importantly, that he lied about taking the jacket. None of the medical evidence filed supports his

22 Francescutti v. Vancouver (City) Page 22 contention that his conduct was related to his mental health, or more importantly, that his termination was related to his mental health. There was no conflict in the medical evidence. The only conflict of any relevance was between Mr. Francescutti s view that his conduct was related to his mental health and the lack of support from the medical professionals. [67] As noted in Bell, almost every complaint will invoke a credibility question, and the gate-keeping function under s. 27(1)(c) requires an assessment of evidence. If there are foundational or key issues of credibility, then the matter must go to a hearing. The reviewing judge here, however, erred in making his own assessment of whether the evidence demonstrated key credibility issues. Did the Judge Fail to Afford Sufficient Deference to the Tribunal s Decision? [68] The reviewing judge correctly stated that the standard of review was patent unreasonableness. Mr. Francescutti says that the judge carefully and completely reviewed the reasons and correctly found errors made by the Tribunal, and he says the evidence amply supports his complaint proceeding to a hearing. [69] Rather than apply the high degree of deference required by the patently unreasonable test, the reviewing judge reweighed the evidence, drew different inferences from the evidence, and substituted his view for the Tribunal s. See, for example, paras and 68: [41] By using significant to qualify the nature of the evidence, it is possible to infer that Dr. Stewart-Patterson must have found some evidence of a causal connection. [42] Dr. Stewart-Patterson did not interview Mr. Francescutti. He did not have a statement from him or his account of events and his account of the purported connection between his mental illness and the jacket incident. Dr. Stewart-Patterson did not refer to the reports or assessments from Drs. Khara and Wittenberg, nor did he, as the other doctors did, provide any review of Mr. Francescutti s mental health history. [68] In my opinion, that analysis applies to the circumstances of this case as well. These examples immediately come to mind. There are significant issues of credibility surrounding the termination meeting and the termination letter. The conflict arising from the face of the reports prepared by Drs. Khara

23 Francescutti v. Vancouver (City) Page 23 and Stewart-Patterson needs to be resolved, as well as the reliability of the latter s report in the absence of meeting with or having a statement from Mr. Francescutti. The impact of Mr. Zupan s affidavit evidence on Mr. Francescutti s evidence is also something that needs to be resolved. While credibility issues alone will not save a complaint that has no prospect of success, it is not appropriate to determine credibility issues that bear on the issues in dispute on the type of dismissal application brought by the respondents. [70] The issue for the judge was whether the Tribunal s decision was patently unreasonable, see Stewart, para. 27. The Tribunal was clear that Mr. Francescutti was not terminated because of his mental health, he was terminated because he lied to his employer, a fact he did not dispute. She concluded that the medical evidence filed did not specifically link his mental disability to his conduct. There was ample evidence to support her conclusion that there was no reasonable prospect that Mr. Francescutti could establish at a hearing that his mental disability was linked to his termination, and thus could not establish a prima facie case for discrimination. This conclusion was not patently unreasonable. Conclusion [71] In my view, the reviewing judge erred when he set aside the Tribunal s decision as patently unreasonable. His approach to the review was not in accordance with the correct administrative law principles referred to above. He erred in his application of the standard of review, and therefore he erred in law. [72] I would set aside the decision of the reviewing judge and restore the decision of the Tribunal. I agree: The Honourable Madam Justice Bennett The Honourable Madam Justice MacKenzie I agree: The Honourable Mr. Justice Hunter