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B.C. Human Rights Tribunal rejects complaint by gay lawyer

|Written By Jennifer Brown

A British Columbia Human Rights Tribunal has dismissed a complaint filed by a Vancouver lawyer who alleges his former employer asked him not to bring his male partner to a firm social event, and that he remove references in his online firm bio to involvement in the Canadian Bar Association’s Sexual Orientation and Gender Identity group.  

Ellen Low, partner at Whitten & Lublin in Toronto, says complaints are best heard soon after incidents occur.
On July 6, 2016, Brian Yuen filed a complaint against Direction Legal LLP and one of its partners, Bonnie O.Y. Teng, alleging discrimination in employment on the basis of sexual orientation, marital status and race, contrary to s.13 of the Human Rights Code. The allegations were related to events Yuen said occurred in July 2014.

The tribunal indicated to both Yuen and Direction Legal that the complaint was filed outside the six-month time limit in B.C. and requested submissions on its timeliness. The Code provides that a complaint must be filed within six months of the alleged contravention.

In determining whether acceptance of a late-filed complaint is in the public interest, the tribunal considers whether there is anything “particularly unique, novel, or unusual about the complaint that has not been addressed in other complaints.”

“Where a complaint raises a novel issue on behalf of a vulnerable group, for example, that is a factor that may be considered in weighing the public interest in accepting the complaint,” the decision states.

In a decision issued Dec. 13 by tribunal member Barbara Korenkiewicz, the complaint was dismissed, rejecting Yuen’s reasons for delay in filing the complaint, saying they “do not weigh in favour of acceptance of the complaint in the public interest.”
 
Yuen alleged discrimination occurred on or about July 21, 2014 when he says Teng told him he should remove certain references from the Chinese version of his bio that appeared on the firm’s website, such as that he serves as national co-chairman of the CBA’s Sexual Orientation and Gender Identities Conference. He also claimed Teng told him on or about July 28, 2014 that he should not bring his male partner to the firm’s summer social event.

Yuen claims Teng said Chinese clients would not understand his being gay.

He described feeling “degraded, ashamed and worthless.” He ultimately resigned and left Direction Legal on Nov. 18, 2015.

When contacted by Legal Feeds, Teng stated in an email response: “Mr. Yuen’s allegations are unproven. We dispute such allegations. There was neither the need nor the opportunity to respond to same because of the tribunal member’s dismissal of his application for an extension of the deadline for filing a complaint.”

Yuen said he feared that if he filed the complaint while still employed by the firm he would be dismissed. He also stated that he delayed in filing, in part, because he had only recently learned that he could have filed a complaint.

Direction Legal argued that Yuen’s claim in that regard was not credible given that he is actively involved with SOGIC and has practised law in British Columbia for the past eight years.

“Ignorance of the Code, or the time required to become aware of one’s rights, is generally not an acceptable reason, on its own, for the delay in filing,” noted the BCHRT decision. “Mr. Yuen has provided no additional information, and there is nothing in the materials to suggest, why he should be exempt from the application of this general rule.”

Yuen also said he delayed in filing the complaint, in part, following his departure from the firm because he was attempting to negotiate a settlement of outstanding issues between him and the firm. While the parties were ultimately able to resolve certain issues between them via an agreement reached on June 30, 2016, his discrimination complaint was not resolved.

The decision states that: “The Tribunal has held that it is in the public interest to encourage parties to enter into settlement discussions before having recourse to the Tribunal’s processes. In cases where parties were engaged in settlement discussions that commenced within the six-month time for filing, this might be considered a relevant factor when determining whether to accept a late-filed complaint.

“In this case, however, Mr. Yuen did not commence settlement discussions regarding the discrimination allegations until May 12, 2016, nearly 22 months after the alleged incidents occurred.”

Yuen argued further that he was employed by a law firm and that the firm should be held to a higher standard of conduct because they are all lawyers, and that lawyers “have an ethical duty to uphold the law and are leaders in society.”

But the BCHRT disagreed.

“In my view, a lawyer or law firm that is an employer has the same duties and responsibilities under the Code as any other employer —no more and no less,” wrote tribunal member Korenkiewicz, citing Asna-Ashari v. British Columbia (Attorney General), 2010; and Bola v. B.C. (Ministry of the Attorney General and others), 2007 BCHRT.

“This is a complaint concerning discrimination in employment on the grounds of sexual orientation, marital status and race. The Tribunal has frequently dealt with complaints of this nature on each of these grounds. There is nothing in the materials to suggest that the complaint raises an issue that has not already been addressed in other complaints before the Tribunal. Thus, I am not persuaded that the novelty of this complaint outweighs the lengthy delay in filing.”

Yuen says the tribunal should have accepted his complaint based on the reasons he cited. He told Legal Feeds he is still exploring other avenues regarding his complaints.

“As officers of the court, with a duty to uphold the law, lawyers should be held to a higher standard when dealing with issues of discrimination, especially at the workplace,” he said in an email.

He also notes limitation periods for human rights tribunals vary across the country.

However, Ellen Low, partner at Whitten & Lublin in Toronto, says that while the variation in limitation periods can be confusing, especially when the limitation period under the Canadian Human Rights Act is one year, complaints are best heard soon after incidents occur.

“There is an argument that allegations of this nature, which call for remedial action, are best served by a short limitation period so they can be addressed/redressed while the injury is fresh and not over a year after an allegedly discriminatory event,” says Low.

Ryan Edmonds, a labour and employment lawyer in Toronto, agrees that shorter limitation periods are not a bad thing, but he says he sees this case from both the employer and employee perspective.

“When someone is discriminated against or marginalized it’s a pretty significant thing, so to sit on something like that for two years is questionable,” he says. “The applicant here raises the age-old ‘I was afraid for my job,’ but it raises the question that if it happened and two years passes without further incident is it relevant anymore?”

He notes human rights tribunals receive so many claims they need to focus on cases that are “timely” and more “closely connected to an incident worth investigating.”


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