November 1, 2018 Via Email
British Columbia Human Rights Tribunal
170 — 605 Robson Street Vancouver BC V6B 513
Toll Free: 1-888-440-8844 http://www.bchrt.bc.ea
Allevato Quail & Worth
405 – 510 West Hastings St.
Vancouver, BC V6B 1L8
Crease Harmon LLP
800 – 1070 Douglas Street
Victoria, BC V8W 2C4
Re: Morgane Oger v. Bill Whatcott
(Case Number: 16408)
This letter addresses the following issues:
1. Ms. Oger’s application for costs
2. Mr. Whatcott’s request that I recuse myself on my own motion
3. The conduct of the Canadian Association for Free Expression [CAFE]
4. Mr. Whatcott’s witness list
5. The hearing panel
Application for costs
Ms. Oger applies for an award of costs against Mr. Whatcott for improper conduct during the course of this complaint: Human Rights Code [Code], s. 37(4)(a). The application concerns. Mr. Whatcott’s public comments that denigrate her, her counsel, the Tribunal, and me in my capacity as Tribunal Member managing the complaint. He made the impugned comments on his personal website and social media accounts, and in a podcast interview.
Mr. Whatcott opposes the application on the bases that his conduct was not improper and that, in any event, the Tribunal does not have jurisdiction to award costs for a party’s behaviour outside its process.
There is no question that Mr. Whatcott’s public comments are deliberately derogatory towards Ms. Oger. In many ways, his statements reflect those which have given rise to this complaint in the first place. He is also, in colourful terms, highly critical of the Tribunal and me personally,
and clear in his view that this process is a “kangaroo show trial”. He refers to Ms. Oger’s counsel as a “lesbian lawyer” and does not intend the phrase as a compliment.
The issue is whether these comments, made outside the Tribunal’s process but clearly related to it, can give rise to an order for costs under s. 37(4) of the Code.
Mr. Whatcott argues that the Tribunal’s jurisdiction to award costs is limited to instances where misconduct that impacts upon “practice or procedure in the proceeding itself”. He cites Routkovskaia v. British Columbia (Human Rights Tribunal), 2012 BCCA 141, where the Court of Appeal described the Tribunal’s discretion to order costs as limited to circumstances “when there is misconduct or breach of a BCHRT rule or order regarding practice and procedure”: para. 34.
This passage of Routkovskaia is not controversial. It merely summarizes what is apparent from the plain language of s. 37(4) itself. The discretion to award costs is not limited to circumstances where a party contravenes a rule or order. Rather, it also applies where a party has engaged in “improper conduct during the course of the complaint”. The phrase “during the course of” clearly signals that there must be a connection to a complaint. In that regard, I agree with Mr. Whatcott that the Tribunal does not have powers to punish a party’s conduct beyond what is conferred expressly by the Code and the applicable provisions of the Administrative Tribunals Act.
The issue in the application is whether Mr. Whatcott’s comments, made on social media and his website, are “during the course of the complaint”. Ms. Oger relies on Stone v. BC (Ministry of Health Services) and others, 2004 BCHRT 221 and Bakhitiyari v. BCIT (No. 6), 2007 BCHRT 320. In Stone, the costs award was based on more than Mr. Stone’s online comments alone. In Bakhitiyari, the complainant’s impugned conduct occurred both within and outside the Tribunal’s process. Neither case required the Tribunal to interpret “during the course of the complaint” in s. 37(4). Nor was the Tribunal in those cases called upon to consider Charter values in the exercise of its discretion: Dore v. Barreau du Quebec, 2012 SCC 12 at para. 24.
I do not have the benefit of legal submissions on the issue of whether the phrase “during the course of complaint” in s. 37(4) should be interpreted in light of Charter values or, alternatively, how Charter values may be relevant to the exercise of discretion under s. 37(4).
In my view, it will be most efficient to address Ms. Oger’s costs application at the conclusion of the hearing. At that point, the Tribunal will benefit from the submissions of all participants about the scope of Mr. Whatcott’s rights under ss. 2(a) and (b) of the Charter, and how those rights inform the interpretation of the Code. Within this framework, the Tribunal can interpret and apply s. 37(4) in a way that achieves its purpose of protecting the integrity of its process, and the vulnerable people who appear before it, and remains consistent with Charter values.
My decision on this application is therefore deferred to the conclusion of the hearing. I will allow all participants, including the intervenors, to make further submissions about the interpretation and application of s. 37(4) in light of the Charter.
Mr. Whatcott’s request that I recuse myself
Mr. Whatcott earlier applied to have me recuse myself because of a reasonable apprehension of bias. I denied that application and set out my reasons in Oger v. Whatcott (No. 3), 2018 BCHRT 183 at paras. 28-57.
Mr. Whatcott now says that he has learned more information about my past charitable, volunteer, and political affiliations that he says show conclusively that I am “hopelessly biased”. He says my failure to disclose those affiliations earlier “taints the integrity of the entire process”. He asks me to recuse myself “on my own motion”.
I do not intend to exhaustively address this argument again. I have set out the high bar for establishing a reasonable apprehension of bias in Oger (No. 3), and the law which makes clear that a judge’s “prior conceptions, opinions, or sensibilities” do not, on their own, operate to displace the weighty presumption that they are able to approach “each case with an open mind”: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25 at para. 34. Mr. Whatcott has not identified any new circumstances that would persuade “an informed person, viewing the matter realistically and practically — and having thought the matter through … that (I), whether consciously or unconsciously, would not decide fairly”: Committee for Justice and Liberty v. National Energy Board, 1976 Can1_112 (KC),  1 SCR 369 at 394.
Mr. Whatcott’s energy would be better spent making arguments about the scope of s. 7 of the Code in light of the Charter rights to freedom of religion and expression. Indeed, I observe that the highest purpose of protecting free expression is to encourage “the exchange of opposing views”: Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11 [Whatcott] at para. 117. There is no merit to an argument that a judge must share the views of a speaker in order to impartially adjudicate a claim engaging their right to express those views.
I decline Mr. Whatcott’s invitation for me to recuse myself.
The conduct of the Canadian Association for Free Expression [CAFE]
CAFE was granted leave to intervene in this complaint on September 8, 2017: Oger v. Whatcott, 2017 BCHRT 195. In that decision, Tribunal Member Rilkoff set out several conditions that applied to its participation, including that its role would be “limited to making oral and written submissions in regard to … whether the two flyers violated s. 7 of the Code.” Member Rilkoff was clear that “CAFE does not have standing to take part in any procedural matters before the Tribunal unless the Tribunal asks them for submissions”: at para. 30.
Notwithstanding these conditions, CAFE has repeatedly made unsolicited submissions in respect of the parties’ interim applications.
In a letter to all the participants dated August 10, 2018, I wrote:
I remind the intervenors that they do not have standing to make submissions or take positions in respect of the procedural matters that may arise, or applications that may be brought by the parties, unless their participation is invited. Their role is restricted to legal arguments — and possibly the introduction of evidence — at the hearing. [emphasis in original]
The Tribunal did not seek submissions from the intervenors on Ms. Oger’s application for costs. Notwithstanding this clear direction about the scope of its participation, CAFE filed another unsolicited submission in response to Ms. Oger’s costs application. The submission is 25 pages of dense text. Ms. Oger quite properly did not respond to it.
I have not read the entire submission because it was submitted contrary to the Tribunal’s direct, and repeated, instruction that intervenors not file submissions on interim applications unless they are invited to do so. This is important because the role of the intervenor is to help the Tribunal with the substantive issues presented by the complaint. In doing so, they are not to descend into the fray or take the litigation away from the parties. It would be unfair to Ms. Oger to allow CAFE to act as a second respondent alongside Mr. Whatcott and require her to expend time and resources addressing arguments against a party she did not name and which is not directly involved in the complaint.
I am concerned, therefore, that CAFE has demonstrated a pattern of disregard for the Tribunal’s clear instructions, and a persistent misunderstanding about its role in these proceedings. Although I did not read the full submission, I read enough to develop additional, more significant, concerns about its content. In the submission, CAFE directly attacks Ms. Oger based on her gender identity and her decision to bring forward this complaint. it argues that Mr. Whatcott’s comments about her are “true”, that she cannot produce “evidence of being actually a woman”, refers to Ms. Oger’s name as a “fantasy name”, and calls her a “transvestite… with tyrannical tendencies” and a “cruel or terrifying person”. And it goes on.
These submissions, though unsolicited, have been made to the Tribunal in the context of an application before it. As such, the concerns that I have identified about Mr. Whatcott’s speech — which has occurred outside the process —do not apply here. In my view, CAFE’s comments about Ms. Oger are completely improper and could fairly be the subject of a costs award if made by a party: Stone at para. 61; Colbert v. District of North Vancouver, 2018 BCHRT 40 at para. 54.
The circumstances are, in my view, more egregious because they come from an intervenor who is a participant in the process by invitation of the Tribunal. The role of the intervenors in this case is to assist the Tribunal with the substantive question of law. These types of submissions are not helpful and, more importantly, are inflammatory, derogatory, disrespectful and inappropriate. No person should be subjected to that kind of treatment while bringing forward or defending a complaint.
I hereby put CAFE on notice that if this type of behaviour is continued, I will revoke its status as intervenor in these proceedings. In future, it must only make submissions when invited —namely at the hearing. Those submissions should focus on how s. 7 of the Code should be interpreted in light of ss. 2(a) and (b) of the Charter. It should refrain from personal attacks against Ms. Oger, or further attempts to prove the truthfulness of Mr. Whatcott’s statements. I will not tolerate further such conduct in this proceeding.
Mr. Whatcott’s witness list
Mr. Whatcott was required to submit a copy of his witness’s will-say statements by October 25, 2018. Aside from his summary of Dr. Gutowski’s proposed testimony, he has not done so.
If Mr. Whatcott intends to call witnesses other than Dr. Gutowksi, he is required to give notice to Ms. Oger and file will-say statements forthwith. If he does not do so, he may be precluded from introducing such evidence at the hearing.
As I have repeatedly observed, this complaint raises the important issue of how s. 7 of the Code is to be interpreted in light of the Charter and, in particular, the Supreme Court of Canada’s decision in Saskatchewan (Human Rights Commission) v. Whatcott, 2013 5CC 11.
Because of the novel legal issue at stake, I have asked the Chair of the Tribunal to appoint a three-person panel to hear the complaint. She has agreed to do so. As a result, I will hear and decide this matter along two other members of the Tribunal.
The panel will hear further submissions about whether and how s. 37(4) should be interpreted in light of Charter values or, alternatively, how Charter values may be relevant to the exercise of discretion under s. 37(4). It will decide the application after the hearing.
• I decline to recuse myself from this complaint.
• CAFE is cautioned that its conduct in respect of Ms. Oger’s costs application was improper, and that I will revoke its intervenor status if its attacks on Ms. Oger continue.
• If Mr. Whatcott intends to call witnesses aside from Dr. Gutowski, he must give notice of who he intends to call forthwith, along with a summary of the subject matter of their evidence.
• This complaint will be heard by a panel of three members of the Tribunal.
cc: Paul Fromm
Lindsay A. Waddell