Indexed as: Mallenby v. Malaspina University College and others, 2009 BCHRT 208

Date Issued: June 12, 2009 File: 6245 Indexed as: Mallenby v. Malaspina University College and others, 2009 BCHRT 208 B E T W E E N: A N D: IN THE MATTER OF THE HUMAN RIGHTS CODE R.S.B.C. 1996, c. 210 (as amended) Terry Mallenby AND IN THE MATTER of a complaint before the British Columbia Human Rights Tribunal COMPLAINANT Malaspina University College and Vancouver Island University and Patrick Ross RESPONDENTS REASONS FOR PRELIMINARY DECISION ACCEPTANCE OF COMPLAINT Tribunal Member: On his own behalf: Counsel for the Respondents: Lindsay M. Lyster Terry Mallenby D. Mark Gyton

I INTRODUCTION [1] On July 22, 2008, Terry Mallenby filed a complaint. He filed amendments to it on July 25, October 16 and October 27, 2008. The complaint centres on Dr. Mallenby s allegation that he was denied access to the campus of Malaspina University College because of his mental disability, which he identifies in his materials as PTSD etc.. Dr. Mallenby alleges that, as a result, he has been denied services at the University s Elder College. In one of his October 27, 2008 amendments, Dr. Mallenby also checked off the box on the Tribunal s form marked retaliation. [2] As set out in the Tribunal s letter to Dr. Mallenby, dated December 8, 2008, in his complaint and amendments, he named Patrick Ross, Ralph Nilson, Malaspina University College and Vancouver Island University as respondents, and alleged discrimination on the ground of mental disability in the area of services, and retaliation. He also sought to add his two adult children, Patricia and Jeremy Mallenby, as complainants. The Tribunal did not add them as complainants, because there were no allegations that they had been discriminated against on the basis of mental disability or retaliated against for filing a complaint. Dr. Mallenby s complaint was accepted, for the limited purposes of screening only, against Mr. Ross, Malaspina University College and Vancouver Island University. [3] In its letter, the Tribunal advised Dr. Mallenby that it was impossible, on the information he had filed, to determine the scope of his complaint or whether it was filed in time. The Tribunal advised Dr. Mallenby that it would notify the respondents of the complaint, and seek their input with respect to the timing of the alleged events. [4] Accordingly, on December 9, 2008, the Tribunal served the respondents with the complaint, and asked for the parties submissions with respect to timeliness. Submissions were received from Dr. Mallenby and the respondents on this issue, on January 14 and January 23, 2009. Following further correspondence, additional submissions on timeliness were asked for and received on April 17 and 21, 2009. While I do not refer to all of the parties submissions in this decision, I have considered them all. [5] This decision addresses whether Dr. Mallenby has filed a complaint which alleges a timely contravention of the Code. 1

II DECISION [6] For the reasons that follow, I have concluded that Dr. Mallenby s complaint fails to allege a contravention of the Code, timely or otherwise. It is therefore not accepted for filing. III BACKGROUND INFORMATION [7] In setting out the following information I am not making any findings of fact, except as indicated. [8] In 2004, Dr. Mallenby s two adult children were enrolled in classes at what was then known as Malaspina University College. The institution has since been renamed Vancouver Island University. I will refer to it as the University. [9] On September 13, 2004, Dr. Mallenby s children signed a proxy authorizing Dr. Mallenby to speak on their behalf in their dealings with the University. [10] Problems arose in the dealings between Dr. Mallenby and the University in his capacity as his children s proxy. In general terms, the respondents say that Dr. Mallenby was confrontational, and his conduct unacceptable. Dr. Mallenby characterizes all such assertions on the respondents part as outright lies. For the purposes of this decision, it is not necessary for me to make any findings in this respect. [11] As a result of those problems, Mr. Ross, in his then capacity as the University s Vice-President of Student Services, decided that it was necessary to terminate the proxy relationship and to revoke any invitation for Dr. Mallenby to attend on campus or communicate with University staff. Mr. Ross communicated this in a meeting with Dr. Mallenby and his two adult children on July 27, 2006, and in a letter dated August 1, 2006. [12] According to the respondents, Dr. Mallenby thereafter attended on campus on May 30 and 31, and November 19, 2007. Again according to the respondents, the May incidents involved Dr. Mallenby attending the Registration Centre with his son, the second time attempting to go through a barrier door. They say that Mr. Ross telephoned Dr. Mallenby after this incident, and reminded him he was not welcome on campus, and 2

Dr. Mallenby agreed not to return. In respect of this incident, Dr. Mallenby says that the Admissions Manager s statement that he became aggressive in tone and attempted to go through a barred door is a fabricated statement. He does not deny that he was on campus, saying that his children were present. Nor does he deny the subsequent conversation with Mr. Ross. [13] The respondents say that the November incident involved Dr. Mallenby sitting in his vehicle on campus, and that on that occasion, Mr. Ross told Dr. Mallenby to leave immediately. This is the same incident in which Dr. Mallenby alleges that, while he was sitting in his car waiting for his children to register, Mr. Ross banged on his window like some raving lunatic, an allegation Mr. Ross denies. [14] In their January 15, 2009 submission, the respondents said that the University has no record of Dr. Mallenby ever having applied to enrol as a student in any course or program offered by it. [15] Dr. Mallenby does not deny the respondents assertion that, to that date, he had never applied to enrol in any course or program offered by the University. However, in his January 20, 2009 submission, Dr. Mallenby stated that, to prove [respondents counsel] incorrect, I have this date sent in by Registered Mail an application to take the following Elder College course, namely, a course on Digital Cameras for Seniors. He also stated his intention to take other courses, stretching out for several years so [the respondents and others] will see me on campus for years to come. [16] On the parties materials, it is clear, therefore, that Dr. Mallenby had never applied to enrol in any course or program offered by the University until January 20, 2009. IV ANALYSIS [17] Section 22 governs the timeliness of complaints filed with the Tribunal: (1) A complaint must be filed within 6 months of the alleged contravention. 3

(2) If a continuing contravention is alleged in a complaint, the complaint must be filed within 6 months of the last alleged instance of the contravention. (3) If a complaint is filed after the expiration of the time limit referred to in subsection (1) or (2), a member or panel may accept all or part of the complaint if the member or panel determines that (a) (b) it is in the public interest to accept the complaint, and no substantial prejudice will result to any person because of the delay. [18] Prior to accepting complaints for filing, the Tribunal, in accordance with its Rules of Practice and Procedure, screens complaints to ensure, inter alia, that they appear to be within the Tribunal s jurisdiction, and to allege a timely contravention of the Code. The current decision arises within the context of that screening process, as the complaint has, to date, only been accepted for the limited purposes of screening it. [19] In order to be accepted for filing, a complaint must allege acts or omissions which, if proven, could contravene the Code, and those acts or omissions must have occurred within the time limits set out in s. 22(1) and (2). Alternatively, where a complaint alleges acts or omissions which, if proven, could contravene the Code, but it was filed after the six-month time limit, a Tribunal member has discretion to accept it in accordance with s. 22(3). [20] The crucial act alleged in this complaint is the respondents decision to ban Dr. Mallenby from campus. That decision was communicated to Dr. Mallenby on July 27, 2006. Dr. Mallenby submits, in essence, that continuing to be barred from campus constitutes a continuing contravention, which is timely under s. 22(2). The respondents, by contrast, submit that there is no continuing contravention after July 27, 2006, that Dr. Mallenby s right to file a complaint crystallized at that time, and that the complaint was therefore filed approximately two years after the last alleged contravention, or 18 months after the expiry of the six-month time limit in s. 22(1). [21] The determination of what constitutes a continuing contravention of the Code is sometimes difficult, and has been the subject of discussion in both Tribunal and Court decisions. In its March 9 and April 8, 2009 letters to the parties, the Tribunal noted a 4

number of these decisions, and requested their additional submissions about whether the complaint alleges a continuing contravention; the cases referred to in the Tribunal s correspondence were: Dove v. Greater Vancouver Regional District (No. 3), 2006 BCHRT 374; Paisley v. Kerry Park Hockey Association and others, 2007 BCHRT 218; and HMTQ v. McGrath, 2009 BCSC 180. I have reviewed and considered those cases, and additional ones discussed both therein and in the parties submissions, including Callaghan v. University of Victoria, 2005 BCHRT 589, aff d Callaghan v. University of Victoria et al, 2006 BCSC 1503; [2006] B.C.J. No. 2668; and Lynch v. B.C. Human Rights Commission, 2000 BCSC 1419. [22] As I have said, and as some of those cases reflect, the determination of whether a continuing contravention is alleged can be a matter of some difficulty, particularly in cases where what is alleged is, as discussed in Dove and McGrath, a continuing existence of a state of affairs such as impaired access to a building, or discriminatory denial of employment benefits. In such cases a kind of active dereliction is involved; and in such instances, the dereliction could correctly be seen as ongoing, obviating the need of ongoing futile attempts by the complainant to access the service : McGrath, para. 223. [23] The present case, however, does not turn on a consideration of the finer points of what constitutes a continuing contravention. That is because, in order to be a continuing contravention, there must be a contravention, and the burden lies on the complainant to establish both that the complaint alleges an arguable contravention, and that it is continuing: see Dove, paras. 11 and 21. [24] That there must be an alleged contravention in order for there to be a continuing contravention is apparent on the face of s. 22(2). In what remains the leading decision on continuing contraventions, Lynch, supra, the British Columbia Supreme Court adopted, at para. 35, the following statement from the Manitoba Court of Appeal s decision in Re The Queen in Right of Manitoba and Manitoba Human Rights Commission et al. (1984), 2 D.L.R. (4 th ) 759: To be a continuing contravention, there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination which could be considered as 5

separate contraventions of the Act, and not merely one act of discrimination which may have continuing effects of consequences. (emphasis added) [25] This principle has been applied by the Tribunal on a number of occasions, perhaps most often in determining when the last alleged contravention occurred, and in particular whether it occurred within six-months of filing, and thus whether an alleged continuing contravention is timely. In such cases, the Tribunal will determine whether the alleged events could, if proven, constitute a contravention of the Code, in order to determine when the last alleged contravention occurred: see, for example, Strickland v. City of Surrey and McKinnon, 2008 BCHRT 406, paras. 7 11; and Lebedick v. Shaw, 2009 BCHRT 137, paras. 7-15. [26] The cases in which the Tribunal has stated that the reiteration of a previous allegedly discriminatory decision does not constitute either a new or a continuing contravention of the Code are to similar effect: Rai v. Annacis Auto, 2003 BCHRT 31, paras. 7-9; and Wesley v. Canadian Auto Workers Union, Local 3000, 2003 BCHRT 84, paras. 19 21; and Callaghan (BCHRT), supra, para. 9, aff d Callaghan (BCSC). [27] In the present case, Dr. Mallenby points to the respondents decision in July 2006 to ban him from campus, a ban which continued in place as of the date he filed his complaint in July 2008, as the beginning of the continuing contravention. The difficulty for Dr. Mallenby is that the July 2006 decision cannot be construed as an even arguable contravention of the Code. By the same token, the continuing presence of the ban cannot be construed as an even arguable contravention of the Code. If neither the initial ban nor its continuing presence can be construed as an even arguable contravention of the Code, then it is not a contravention, continuing or otherwise. [28] In order to allege an arguable contravention of the Code, a complainant must, at minimum, allege an act or omission having adverse consequences for them, related to a prohibited ground of discrimination, in an area covered by the Code. Here, Dr. Mallenby relies on the decision to ban him as the initial act, mental disability as the prohibited ground, and services as the area. Banning is an act which may have adverse consequences for a person. Dr. Mallenby says that he has PTSD etc.. While I note that the respondents say there were unaware of any alleged mental disability until they 6

received this complaint, I am prepared to assume, for the purposes of this decision, that Dr. Mallenby has a mental disability. The insurmountable hurdle which Dr. Mallenby faces, however, is that at the time the ban was imposed, and at least until he says he applied to enrol in a course in January 2009, the respondents were not in a service relationship with him. As a result, no area covered by the Code is engaged. [29] In order to come within s. 8 of the Code, which is the provision prohibiting discrimination in services, a number of criteria must be met. First, the respondent must provide a service. Second, the service in question must be one customarily available to the public. Third, the complainant must be a member of that public. Where these criteria are met, the respondent and the complainant will be in a service provider relationship, and s. 8 of the Code will be engaged. Universities, for example, customarily provide services to that sub-set of the public made up of their students, and a person alleging discrimination, either with respect to the application to them of a University s entrance requirements, or in the provision of services to them as a student, may have a complaint under s. 8: University of British Columbia v. Berg, [1993] 2 S.C.R. 353. [30] Dr. Mallenby, however, was not a student of the University at the time he was banned, nor, so far as the materials before me show, has he ever been a student or sought admission to the University. The only exception is the application he says he made in January 2009. Dr. Mallenby said that he made that application to prove the respondents wrong. He did so substantially after this complaint was filed in July 2008, in order to meet an argument made by the respondents that they had never discriminated against Dr. Mallenby with respect to a service customarily available to the public. Dr. Mallenby s January 2009 application, and whatever the respondents may have done in response to it, does not form part of the complaint before me. It does not assist Dr. Mallenby in establishing that he was, or sought to be, in a service relationship with the respondents at any time relevant to the complaint. [31] So far as the materials before me show, the involvement Dr. Mallenby did have with the University during the times potentially relevant to the complaint consisted of being the proxy for his adult children, attending with one of them at the Registration Centre, and sitting in the car waiting for them while they registered. None of those 7

activities places Dr. Mallenby in a service relationship with the respondents. Dr. Mallenby was not in receipt of, nor did he seek to receive, any service customarily provided by the respondents to the public at any time relevant to this complaint. [32] The Court s decision in McGrath highlights the fact that, in order to have a complaint under s. 8, continuing or otherwise, there must be a service customarily available to the public. In that case, which involved the judicial review of two Tribunal decisions on a number of grounds, the Court held that, in one of the two decisions under review, the Tribunal had erred in deferring consideration of whether the complaint involved a service customarily available to the public: para. 53. The Court held that no evidence was necessary in that case in order to make a decision about whether there was a service customarily available to the public, as sufficient foundational facts were before the Tribunal: para. 64. In those circumstances, the Court held that the question of whether there was a service customarily available to the public was a legal question, which the Tribunal could and should have answered on a preliminary basis: para. 64. The Court said that, in those circumstances, it makes no sense for a complaint respondent to go to the very considerable time, trouble and expense of a full hearing on a complaint the tribunal had no jurisdiction to hear in the first place : para. 64. Such a case is to be distinguished from one in which additional jurisdictional facts may be necessary in order to decide if there is a service customarily available to the public: British Columbia v. Crockford, 2006 BCCA 360, paras. 93 94; and Barker v. Hayes, 2008 BCCA 148, paras. 30 35. [33] In this case, I have sufficient information to enable me to determine whether the respondents decision to ban Dr. Mallenby constituted an arguable contravention of s. 8. No further evidence is necessary to decide if the University and Dr. Mallenby were, at any relevant time, in a service provider relationship. If the University and Dr. Mallenby were not in the necessary service provider relationship, then the respondents decision to ban Dr. Mallenby from campus was not an arguable contravention of s. 8. In these circumstances, I can and I should decide whether Dr. Mallenby s complaint discloses an arguable contravention of the Code, continuing or otherwise. Because if it does not, then it makes no sense for any of the parties, or the Tribunal, to go to the very considerable time, trouble and expense of a full hearing. 8

[34] For the reasons I have given, I conclude that Dr. Mallenby and the University were not in a service provider relationship. Dr. Mallenby was not a member of the public to which the University customarily provides a service at any time relevant to this complaint. Therefore, the complaint fails to allege a contravention of s. 8, timely or otherwise. [35] In light of this conclusion, there is no basis for me going on to consider whether to exercise my discretion under s. 22(3) to accept the s. 8 complaint for filing. The problem is not that the complaint was filed late; it is that it is not a human rights complaint at all. It could never be in the public interest to accept such a complaint for filing, as it would not further the purposes of the Code to accept for filing a complaint which cannot succeed: Gray v. Northwest Community College and others, 2009 BCHRT 26, para. 17. Certainly, Dr. Mallenby has not discharged the burden of showing that it would be in the public interest to do so: Chartier v. School District No. 62, 2003 BCHRT 39, para. 12. [36] Dr. Mallenby s s. 8 complaint is therefore not accepted for filing. [37] Finally, in the introduction, I mentioned that Dr. Mallenby amended his complaint on October 27, 2008 to add an allegation of retaliation, contrary to s. 43 of the Code. Dr. Mallenby did not, however, amend his complaint to add any allegations of fact which could constitute retaliation against him for filing his complaint. The references to retaliation in Dr. Mallenby s materials all refer to allegations of retaliation against his children. As explained in the Tribunal s December 8, 2008 letter, Dr. Mallenby s children are not complainants in this complaint, and have not been retaliated against for filing a complaint, because they have not filed one. [38] Dr. Mallenby s complaint fails to allege retaliation against him contrary to s. 43. This part of his complaint is therefore also not accepted for filing. 9

V CONCLUSION [39] For the reasons given, I conclude that Dr. Mallenby has failed to allege acts or omissions, which, if proven, could contravene either s. 8 or s. 43 of the Code. His complaint is therefore not accepted for filing. Lindsay M. Lyster, Tribunal Member 10