Sexual orientation does not excuse inappropriate conduct

The British Columbia Human Rights Tribunal in its recent decision in Colbert v. District of North Vancouver, confirmed that it will not allow an individual to use his or her sexual orientation as a shield against consequences for inappropriate conduct, including both conduct at issue in a complaint and conduct in the course of a complaint.

The complainant was a citizen of the Corporation of the District of North Vancouver. In 2010, the complainant became a vocal and active critic of the District's Council and several of its councillors. Since 2010, he wrote more than 635 communications to the District and members of its Municipal Council. Those communications included:

• referring to the mayor as an "old whore"
• congratulating a councillor "on the success of your breast augmentation surgery"
• referring to the District's manager of development as "unwashed, uneducated and unqualified"
• an email to the mayor referring to a "bulge in (the mayor's) trousers" during a public presentation to youth.

In 2015, the District determined that many of the complainant's communications were inappropriate, and developed a policy to restrict the manner in which such communication would be processed. That policy was then applied only to the complainant. Its application to the complainant was renewed after one year, in December 2016.

On Jan. 13, 2017, the complainant filed a human rights complaint, alleging that the District's action amounted to censorship and was based on the fact that he was a gay man who had actively advocated on behalf of the LGBTQ community. The complainant claimed that this was a violation of s. 8 of the B.C. Human Rights Code, which includes a prohibition against discrimination in the area of service customarily available to the public.

The tribunal found that there was nothing submitted that was capable of establishing a connection between the complainant's sexual orientation and the District's decision to apply the policy to him. To the contrary, the information provided unambiguously supported the District's characterization of the complainant's communications as inappropriate, harassing, and threatening. The tribunal acknowledged that the District had an obligation to provide its employees with a workplace free from harassment and that no one should be required to come to their workplace and endure the types of communications to which the complainant appeared to have subjected District council and staff. That, not the complainant's sexual orientation, was the reason for the policy. On that basis, the tribunal found that the complainant had no reasonable prospect of success and dismissed the complaint.

As he had prior to the complaint, after filing the complaint the complainant continued to send inappropriate correspondence to the District, and started to send inappropriate correspondence to legal counsel for the District, including the following:

• suggesting that legal counsel was "a junior partner" and that it was for that reason "you were likely assigned this matter because all junior partners are assigned the small claims, BCHRT, arbitration and mediation matters involving clients for whom the more important actions and proceedings etc including Supreme Court matters are the dominion of the senior partners"
• stating that legal counsel showed "extraordinary poor judgment" and that his conduct was "nothing less than vile if not utterly sublime"
• asserting that legal counsel was required to communicate with the complainant no matter the instruction of his client and that he could "tell it to the judge."

The tribunal concluded that the complainant had engaged in improper conduct which threatened the integrity of the tribunal's process, explaining there were two aspects of that improper conduct: first, his attacks and insults against the legal counsel for the District, and second, his threats to retaliate against the District if it did not engage in settlement discussions with him. On that basis, the tribunal ordered the complainant to pay costs to the District.

While the complainant, as a result of his sexual orientation, was a member of a protected group under the code, that membership did not give him a justification to engage in inappropriate conduct. The tribunal's decision confirms that while the Human Rights Code protects individuals against discrimination in certain areas, the tribunal will not allow an individual who is a member of a protected group to use the code as a shield against consequences for their inappropriate conduct.

For more information see:

• Colbert v. District of North Vancouver, 2018 CarswellBC 338 (B.C. Human Rights Trib.).

David G. Wong is a partner with the Labour, Employment and Human Rights Group with Fasken Martineau DuMoulin LLP in Vancouver, and the head of the Vancouver office Human Rights Group. He can be reached at (604) 631-4920 or [email protected]. This article was reprinted with the permission of Fasken. Fasken is one of the world's leading international business law and litigation firms. You can read Fasken's weekly bulletin, "The HR Space" here.