Executive Summary: Key Legal and Evidentiary Issues

• Mr. Shin alleged employment discrimination on grounds of age, ancestry, place of origin, race, and mental disability after his termination from correctional officer training.

• The BC Human Rights Tribunal dismissed the complaint under s. 27(1)(c) of the Human Rights Code, finding no reasonable prospect of success.

• Central to the dispute was whether the employer's language proficiency requirements and evaluation methods were discriminatory or connected to protected characteristics.

• Allegations of targeting, harassment, and falsified assessments by the employer were found to remain in the realm of speculation and conjecture.

• The petitioner argued the Tribunal failed to separately analyze two termination events (March and April 2017) and misapplied the legal test for accommodation.

• The Court applied a patent unreasonableness standard and found the Tribunal's decision was not patently unreasonable, rejecting all grounds for judicial review.

Background and employment circumstances

Steve Shin, originally from South Korea with Korean as his maternal tongue, was hired in May 2016 on a probationary basis as a Correctional Officer at the Okanagan Regional Correctional Centre. The respondent, Ms. Barkman, is an Assistant Deputy Warden at the OCC and was responsible for hiring, training, and labour relations. Mr. Shin's employment required successful completion of an Officer Training Program involving classwork, written examinations, and graded role-playing scenarios.

On March 6, 2017, Mr. Shin began training with Security Officer Training 6 (SOT6). During SOT6, he borrowed one of his classmate's notes. On March 9, 2017, Mr. Shin failed a written test, retook it and passed, then failed another test and passed the retest. On March 16, 2017, the employer terminated Mr. Shin after he failed a third test (the "March Termination"). However, on March 22, 2017, the employer decided not to proceed with terminating Mr. Shin, and he was allowed to join Security Officer Training 7 (SOT7).

Renewed training and subsequent termination

Mr. Shin began SOT7 on April 3, 2017, and again borrowed the notebook of his former classmate from SOT6. He passed written examinations during the first two weeks of SOT7. On April 18, 2017, the employer informed Mr. Shin that he was being investigated for dishonest behavior related to borrowing his former classmate's notes. In the third week of SOT7 training, Mr. Shin was required to do graded role-playing scenarios. The employer says Mr. Shin failed all the role-play scenarios; Mr. Shin disputes the bona fides of his evaluations. On April 24, 2017, the respondents rescinded their offer of employment to Mr. Shin (the "April Termination").

Human rights complaint and tribunal proceedings

On September 15, 2017, Mr. Shin filed a complaint against the respondents with the Tribunal, alleging discrimination in employment on the grounds of age, ancestry, place of origin, and race. On December 17, 2019, the Tribunal allowed Mr. Shin to amend his complaint to add the ground of mental disability. The disability alleged included that he became "extremely agitated, anxious and unstable," was not able to sleep at all or organize or control his thoughts and emotions, and began having panic attacks.

On July 11, 2018, the respondents filed an application to dismiss the complaint under s. 27(1) of the Human Rights Code. On June 21, 2021, the respondents filed an Amended Application to Dismiss.

The Tribunal's decision

On May 23, 2024, the Tribunal rendered its decision allowing the respondents' application to dismiss pursuant to s. 27(1)(c) of the Code on the basis that the petitioner had no reasonable prospect of success. The Tribunal found there was no reasonable prospect that the petitioner could establish that his protected characteristics were a factor in the respondents' decision to terminate his employment. The Tribunal noted that language is not, in and of itself, a protected characteristic under the Code, and that a requirement that an employee have a certain level of language skill is not inherently discriminatory.

The Tribunal found that Mr. Shin's assertion that the respondents took "a series of unusual, extraordinary measures to set up [Mr. Shin] to fail" and that individual assessors colluded and conspired to remove him from the training program was not supported by evidence. As such, the Tribunal found that Mr. Shin's assertion that the respondents targeted, harassed, and falsified materials as part of a concerted effort to remove him from his employment had not been taken out of the realm of speculation and conjecture.

Grounds for judicial review

Mr. Shin petitioned for judicial review, arguing the Tribunal's decision was patently unreasonable because: (a) the Tribunal failed to consider whether the March Termination was discriminatory; (b) the Tribunal failed to consider whether his protected characteristics were at least one factor in his April Termination; (c) the Tribunal failed to consider or dismissed evidence that he was targeted and harassed on the basis of his protected characteristics; (d) the Tribunal failed to address all steps of the legal test in respect of the allegation that the respondents failed to accommodate him; and (e) the Tribunal failed to consider an allegation of discrimination based on an imputed or perceived disability.

Court's analysis of the March and April terminations

The Court found it was not patently unreasonable for the Tribunal to address the March and April terminations together. The Court noted that the employer decided not to proceed with the March Termination and gave Mr. Shin an opportunity to restart the Officer Training Program. Given that the complaints with respect to SOT6 and SOT7 had considerable overlap, it was not patently unreasonable to address the complaints together. The Court noted that tribunals are entitled to deference in the interpretation of their own pleadings and proceedings. The petitioner did not demonstrate that the Tribunal's interpretation of the complaint was patently unreasonable nor that the Tribunal failed to consider an independent ground of the complaint.

Assessment of protected characteristics and targeting allegations

The Court distinguished this case from Byelkova, where the tribunal failed to consider whether the petitioner's protected characteristics could have played any role in the termination process. In the present case, the Decision squarely addressed whether it was possible that a protected characteristic played a role in the decision to terminate. The Tribunal concluded that language was not itself a protected ground, and that there was no evidence to establish a nexus between language and Mr. Shin's protected characteristics.

Regarding targeting allegations and evidence about role-play evaluations, the Court found the conflict in the evidence was not material. This was because Ms. Howard's uncontradicted evidence was that Mr. Shin's failures earlier in the week already meant that he would not be found competent in the overall communication module, and if he could not complete the communication module, he could not advance to the next module.

Accommodation and perceived disability claims

The Court rejected the argument that the Tribunal failed to address all steps of the legal test for accommodation for two reasons. First, with respect to the protected characteristics of race, ancestry, and place of origin, the Tribunal addressed the question of accommodation as an alternative to its primary finding that there was no evidence of a nexus between the language issues experienced by the petitioner and his protected characteristics. Even if its reasoning with respect to accommodation was flawed, that issue would not render the Decision as a whole patently unreasonable. Second, with respect to mental disability, the Tribunal determined that the petitioner's assertions were insufficient to establish that he had a disability for the purposes of the Code, and that he had no reasonable prospect of establishing that he had a mental disability which was either known or should have been known to the respondents during his employment.

Regarding perceived disability discrimination, the Court agreed with the respondents that the complaint did not articulate an allegation of discrimination based on an imputed or perceived disability. The Court also could not find that the issue was squarely raised in the Response to the Amended Application to Dismiss. While the RATD linked Ms. Barkman's evidence to an allegation of bias, it did not clearly distinguish between the allegation of discrimination based on actual mental disability raised in the complaint and the new ground of discrimination based on perceived mental disability put forward orally on judicial review.

Ruling and outcome

The Supreme Court of British Columbia rejected all five grounds for judicial review advanced by the petitioner. Justice Latimer found that the Tribunal's decision was not patently unreasonable. The Court noted that the "highest degree of deference" is extended to determinations made under s. 27(1)(c), even where a different outcome may reasonably have been open to the Tribunal. The petitioner bears the burden to establish that the decision to dismiss the complaint was patently unreasonable, and this burden was not met. No party sought costs at the hearing of the petition; the parties will bear their own costs.