How to bury the evidence

Shortly after a person files a human rights complaint, the other party, which inevitably has more money and can likely afford a lawyer, can file an application to dismiss.

The purpose of this application is to try to prove that there is no reasonable probability of success. Generally they can establish this by saying there’s no evidence that sexism, or racism or disability or whatever the alleged discrimination was, ever crossed the mind of the person doing the discriminating.

In most questions they would be right because no one in their right mind would openly tell someone that they are firing them due to their race, gender or disability.

In this regard, the complainant is at a substantial disadvantage. They don’t have access to the evidence they gathered in the workplace because they were fired. They can’t interview the witnesses, because those witnesses are likely employees who don’t want to be fired. They don’t have access to emails that passed between employees or management.

As well, there is no way they could get this information because an application to dismiss is a preliminary motion.

There may very well be relevant information that is hidden for view that would come out during a hearing, but this is prevented by the application to dismiss.

It doesn’t have to be that way. In the past, there would be an investigation and people would actually say things like, “We felt threatened by his dark, brooding appearance,” or “Women take too much time off compared to men.” If nothing of this sort came forward, the investigator could then advise the Tribunal that there wasn’t enough evidence to proceed.

Without an investigation, and without access to evidence, the complainant is extremely limited in what they can prove in response to an application to dismiss.

In my case, I could prove that the new publisher was openly contemptuous of me and I was soon replaced by a male reporter with only six months of experience, but from there the Chair of the Tribunal Bernd Walter just let his imagination run wild, and made a completely unsubstantiated allegation that I couldn’t even defend myself against because the respondent hadn’t even put it forward.

It’s highly unlikely that this would have been an issue if there were a fair preliminary investigation into my complaint, and I wonder how many complainants have, in the absence of documented evidence, been treated the same way.

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Evidence need not apply

The way a tribunal works is different than the way a court works in that rules of evidence don’t apply. In other words, a tribunal can and will make decisions without evidence and even when the evidence presented doesn’t support the decision.

If this sounds problematic it should. When we toss the evidence out the window and choose to accept that a competent editor can and should be fired for failing to deliver newspapers, then we boil everything down to “credibility.”

And as for credibility, anything goes. You can be described as not credible because the Chair didn’t like you, you wrote a letter complaining about the process, you were nervous on the day of the hearing, your outfit wasn’t expensive enough, the list goes on.

I read many decisions written by the Human Rights Tribunal and disliked the way they deliberately quoted people talking about their work skills in a way that made them sound arrogant, or quoted people using words awkwardly or trying to use more erudite phrasing. Often these people were not native speakers and the way their quotes were selected and used made them sound less credible in the eyes of the reader.

I attempted to access some of the actual complaints to see if the way these people were portrayed, matched the way that they described their complaint in their file. However, this required me to make Freedom of Information requests and explain why my right to know was more important than the privacy of the people complaining.

This seems odd to me because the Tribunal picks and chooses what they will report about individuals and the individual has no say whatsoever in what gets published.

However, I’ll continue to research these cases as I proceed with this blog and if anyone can point me in the direction of exemplary cases, I’ll be more than happy to pursue the Freedom of Information route.

The truth or something that sounds good

Many people think that when a judge or a chair of a tribunal has released a decision, it means they have examined the evidence to ensure that it is factual. Thus, the impression is that there is no questioning the wisdom of the decision; it was “proven” in a court of law… or something like that.

The truth is a judge or a tribunal member is worse than a journalist. At least a journalist has an obligation to be fair. Yes, there are journalists who cover the news in a rather biased fashion. Christie Blatchford comes to mind. Why bother covering an ongoing court case when you’ve already found the person guilty?

But, for the most part, the people working at the bottom rungs of the hierarchy are trying to tell both sides of the story and not get anything wrong.

Not so at a tribunal. A tribunal can dismiss a case by discrediting one party without examining the facts or even reporting them accurately.

It’s not that difficult to discredit women in our society and to portray them as arrogant is the magical secret sauce. It immediately and viscerally speaks to the male chauvinist. What? She was a woman who was focused on the duties of her position and didn’t submit to random and bizarre orders with a “big smile on her face?” What? She objected to being told to do something outside her job with a “big smile on her face.” Why, surely we should hang her from the public square.

If it was true, sure, why not? This is how we treat female politicians. But, was it proven to be true, or did Bernd Walter, chair of the Human Rights Tribunal, just say it and, therefore, it was?

In 2010, Black Press bought a host of small town newspapers from its competitor Glacier Media. One of those papers was the Grand Forks Gazette, where I was editor. The associate publisher told me that Chuck Bennett, who had been appointed Regional Publisher, wanted me to do a paper route on Carrier Appreciation Day and then someone would take my picture and it would be published to show “appreciation” for the carrier, and the money would be donated to charity.

Imagine for a moment if you were an administrative assistant working for a company and your boss told you to take Administrative Assistant Appreciation Day off, because he was going to take a picture of himself doing your job and donate your salary to charity. Then he would publish his picture to show his appreciation for you. Would you not at this moment ask him politely to shove his picture up his… but I digress.

I suggested maybe I should just go with the carrier, do a little personal interview with him or her, get a picture taken with the carrier, and everyone would be happy.

Although when I got to Bennett’s office he was not happy about being questioned in the wisdom of his decision making at all and advised me that I was going to “deliver papers with a big smile on my face.” Mr. Bennett provided an affidavit to the Human Rights Tribunal stating that he did not fire me over this incident.

I provided a letter to the Tribunal where I had complained about the way Bennet had spoken to me and stated that I offered to deliver the papers with the carrier.

But it didn’t matter. When one is looking for a reason to dismiss a case, one looks for ways to dismiss the credibility of one party, and the story had the magical secret sauce. Look at this arrogant woman who thinks she’s so above everyone that she can’t even deliver newspapers to show her appreciation.

If I hadn’t had some bizarre notion that the truth should carry some weight in the quasi-judicial realm of the Tribunal it would have ended there, but instead I pursued it and attracted the attention of the salivating chauvinist and his uncritical thinking followers. Unfortunately, his story, that I was the arrogant self-aggrandizing female, was far more attractive than my story, that I was a hardworking person who was just doing her job.

This is how I came to relate the tribunal itself with the mocking sense of superiority with which media has been covering human rights issues in BC, and how I came to want to investigate it further. As you can see, the story is tied up in my own personal experience, but as I read about it, I saw many parallels with other people’s experiences, which I hope to explore in this blog as I continue.

What is an administrative tribunal?

On the face of it an administrative tribunal is a good idea. The courts can’t deal with every issue, nor can every litigant afford to access the courts.

The government passes legislation to protect people at work or wherever they access goods and services from things like discrimination, failure to pay wages, poor working conditions, etc. There are limits to what they can protect you from. For example, they can’t help you if you were overcharged for a haircut, but theoretically they could help you if you were charged more for the same haircut as someone else because you were a woman.

Also there are many other benefits. In most cases they can make decisions quicker than the courts, a self-represented person is more likely to succeed than they would be at the courts, the adjudicators are supposed to have more knowledge of the legislation, it’s cheaper for everyone and they usually offer some kind of mediation.

However, they also have a very high degree of say in what gets heard and what doesn’t and what information gets out and what doesn’t. The oversight is in the courts and if an applicant receives discriminatory treatment at an administrative tribunal, the courts are very unlikely to listen.

In this blog, I’m not suggesting that administrative tribunals are a bad thing and that we should get rid of them, but I do think there’s a lack of oversight that results in a lack of accountability in many cases, which I’ll be exploring in future posts.

Talking to your demons

You can run from your demons, but they will chase you. That advice, delivered by author Jeannette Wells in a talk at the University of British Columbia, stayed with me for years.

Wells was talking about growing up in an impoverished environment, which she wrote about in a memoir called The Glass Castle.

I knew that I was carrying my own demons. It was something that I was afraid to talk about, because talking about it just seemed to make it worse.

It was like having a criminal record when you’ve nothing wrong. A year ago, I was sitting on my counsellor’s couch. We had come to the end of our time together. There wasn’t much she could do for me. I was experiencing bullying at work and we had examined my coping skills from every angle. At the end of the day, “Haters gonna hate,” as they say.

“Where do you want to go from here?” she asked.

“I want to write about it,” I said.

I knew by telling my story I could help others. I knew that what I experienced was systemic and not just something that happened.

I was working as the editor of the Grand Forks Gazette. By all accounts I was a success. People complimented me all the time. There were some people who disliked me, but that’s what happens when you cover politics in a small town.

Everything was going well, until Black Press bought the paper.

They came in with suspicion. One employee reported that she heard one of their executives say, “You can tell who is on side and who isn’t,” as they prowled the office shaking hands without making eye contact.

I was toast and I was replaced with a substantially less qualified male. Then, I learned that qualifications, accomplishments and hard work meant very little in the world I was about to enter.

A year ago I talked to my counsellor about writing a book. I wanted to expose how people are treated when they try to access their rights through administrative tribunals, like the BC Human Rights Tribunal. Basically, the goal seems to be to bring up whatever mud can be brought up to toss the case without a fair hearing of evidence. Discrediting the complainant is just something that has to be done, like taking out the trash.

However, life got in the way and the book idea got shelved. I tried to run from my demons by reading blogs about how to bury negativity on the Internet. Basically they said create your own publishing house (more or less) and keep putting information out there. I wrote numerous blog posts about writing tips and other online skills that people want to learn, but it was useless.

The other day I was gripped in fear because someone threatened me with another public shaming and that’s when I decided to stop running from my demons.

I do want to publish this blog as a book in the future. This blog won’t be all about me, and my perspective. I intend to do my due diligence (unlike a certain anonymous “reporter”). I plan to look at the history of these administrative tribunals and how they got this way. I want to look at human rights backlash and how it’s been used to limit the rights of others, not to mention publicly shame people who try to exercise them.

I also want to look at the legal system and how it disadvantages those who can’t afford lawyers.

I hope you’ll bear with me and I hope that I can use my own experience to shine light on the situation as it stands today. My deepest goal is to help those less fortunate than I who may be experiencing their own problems with the process.

I am approaching this from the standpoint of a personal story, but also as a journalist. So point me in the direction of resources, or help me by telling your story.

I hope other people who have been disadvantaged by the process will have the faith to put their trust in me. I know it seems horrible some days, but the silence makes it worse.