April 4, 2011

Reasons must address unsworn evidence being preferred on central issues

Administrative Law
Professional Regulation

While administrative tribunals are not bound by strict rules of evidence, evidence must still be reliable to some extent, and a tribunal must at least explain how it can accept unsworn testimony, or hearsay, over sworn evidence on a central issue. This is illustrated in White v. Roxy Cabaret Ltd., 2011 BCSC 374, a case where a court reversed a summary dismissal of a human rights complaint.

In that case, a complainant of First Nations ancestry was denied admission into the Roxy Cabaret while carrying a golf club. She left, attended shortly thereafter without the golf club, but was again denied entry. She was told she was denied entry because she was wearing moccasins, and no issue existed that the cabaret had no such policy, and that such words were said to the complainant. The cabaret owner’s legal counsel asserted, however, the comment was merely a pretext, and the “real” reason for her being denied entry was her prior conduct involving the golf club.

The Human Rights Tribunal dismissed the complaint for lack of reasonable prospect of success. A tribunal member found the complainant failed to take her case out of the realm of conjecture. Under the Human Rights Code and the Administrative Tribunals Act (the “ATA”), the standard of review was patent unreasonableness. The complainant sought judicial review, however, based on breach of natural justice. The B.C. Supreme Court concurred with the complainant, and overturned the summary dismissal.

In the face of the complainant’s affidavit evidence showing an arguably overtly discriminatory declaration, the Roxy asserted but did not provide sworn evidence that the moccasin comment was a pretext for the real unexpressed reason, i.e., the complainant’s earlier conduct. The court noted “[26] …many references to what must be submissions of counsel in the reasons as there is no other material supporting this position.”  Although s.27.2(1) of the Code permits a member or panel to receive and accept “on oath, by affidavit or otherwise, evidence and information…. whether or not the evidence or information would be admissible in a court of law,” and although the Tribunal could also accept unsworn evidence, and even prefer unsworn assertions over sworn evidence [33], the tribunal itself had previously noted that, “administrative tribunals remain concerned that hearsay evidence have sufficient reliability to be useful in the fact-finding process.  Hearsay from unidentified sources is unlikely to be sufficiently reliable to be useful.  It is little more than rumour.” [34] In this case, the respondents provided only “evidence” in the form of submissions of counsel.

The court found that the tribunal failed to provide adequate reasons on how the evidence of an overtly discriminatory statement was overridden by contested “evidence” of such a statement merely being a pretext. “[43]  In this case the reasons do not address the evidentiary issue at all. So the court is unable to determine how the Tribunal grappled, if at all, with dealing with the submissions of counsel in the information assessing process.  Viewing the decision of the Tribunal one is unable to see the process or reasoning by which the Tribunal arrived at its finding given the evidentiary issue. The reasons are functionally inadequate in that respect.“ (emphasis added) Accordingly, the member breached the duty of procedural fairness by failing to provide adequate reasons. The court remitted the matter to be reconsidered by another tribunal member.

White v. Roxy Cabaret Ltd., 2011 BCSC 374