Beruflich Dokumente
Kultur Dokumente
File: 18093
Indexed as: Victor Mema v. City of Nanaimo, 2019 BCHRT 197
REASONS FOR DECISION
APPLICATION FOR DOCUMENT DISCLOSURE
Rule 23
Tribunal Member: Emily Ohler
On their own behalf: Victor Mema
Counsel for the Respondent: Lana Tsang and Karen Holloway
I INTRODUCTION
Victor Mema filed a complaint against the City of Nanaimo [City] alleging discrimination
on the basis of ancestry, place of origin, colour and race regarding employment contrary to
Mr. Mema said that his ancestry, place of origin, colour and/or race factored into a
complaint made by City employees alleging he had engaged in serious misconduct, which led to
the City Council suspending his employment. He further alleges that as a result of the
discrimination, he was forced to resign from a Board of Directors, was subjected to ridicule at
a professional conference, and was placed under investigation by a professional organization he
is a member of in Alberta.
Mr. Mema has submitted an application for an order of disclosure from the City in and
the City has submitted an application for an order of disclosure from Mr. Mema. The hearing of
this matter is currently scheduled for October 21 to November 1, 2019.
On August 28, 2019, the Tribunal convened a prehearing conference [PHC] by telephone
in respect of the Applications for Disclosure. Both parties were in attendance at the PHC and
made submissions in respect of each category of documents sought.
This decision deals solely with the Applications for Disclosure. I make no findings of fact
respecting the merits of the complaint.
II BACKGROUND
This background is compiled from the written materials filed with the Tribunal by the
parties to date.
In September 2015, the City hired Mr. Mema as Director, Financial Services. Mr. Mema
holds two professional designations as a chartered professional accountant [CPA] and certified
treasury professional [CTP].
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In 2016, through reorganization, Mr. Mema assumed additional responsibility and
his title changed to Chief Financial Officer. In 2017, he was promoted to assume additional
responsibilities still, with his title changing to Chief Financial Officer/Deputy City Manager.
In his complaint, Mr. Mema outlines various incidents of what he says are examples
of the City failing or refusing to properly consider black African candidates for City positions.
Among those examples, he says that in early January 2018 the position of Deputy Director of
Financial Services was filled for a six‐month term by “a qualified black African.” He alleges that
in a conversation with the Chief Administrative Officer, the Director of Human Resources said
that some of the human resources department staff had raised issue with the candidate, saying
that “it appeared wrong that a black African manager would hire another black African.”
He alleges that at an in‐camera meeting of Council in February 2018, a counsellor read out
many text messages from the president of a union urging for termination of the Deputy
Director of Financial Services as “members were unhappy that blacks were being hired in the
financial services department.”
The City denies Mr. Mema’s allegations and provides nondiscriminatory explanations
for the incidents that Mr. Mema outlines.
On March 2, 2018, the City suspended Mr. Mema from his employment on the basis
of allegations of serious misconduct against him contained in a complaint submitted to the
City Council by City employees. Mr. Mema alleges that the City undertook no investigation
however, nor did it provide him details of the allegations. The City contests this.
Mr. Mema says that while the Mayor issued news releases confirming Mr. Mema’s
suspension, saying that the allegations were very serious and that the City had ordered
a comprehensive independent investigation, in reality,
the city had no intention of investigating the allegations. It turned out
that my suspension was designed to [rescind an] employment offer to a
black African who had been offered a job as deputy director of financial
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services and to terminate another black African who had been hired on
an interim basis and set conditions for my eventual termination.
Mr. Mema alleges that his suspension “was a pretext to get rid of all black Africans employed
at the City” and points to other examples.
In the meantime, Mr. Mema says that as a result of the media coverage of his
suspension, CPA Alberta opened an investigation of him. Similarly, the directors of the Canadian
Association of Government Finance officers [CAGFO], of which he was a director, received
numerous inquiries from its members and the media about the public allegations forcing him
to resign. He also alleges that he was the subject of ridicule at a Government Finance Officers
Association of US and Canada [GFOA] conference in May 2018.
The City denies that any of these events flow from its actions and submitted that
Mr. Mema “is well aware of the basis for his suspension and subsequent termination”, which
was “based entirely” on his misconduct.
III ANALYSIS AND DECISION
Mr. Mema and the City’s applications are brought under Rule 23, which provides:
1. An application for an order that a person deliver a copy of a document
must state:
(a) how disclosure of the document requested will further the just
and timely resolution of the complaint;
(b) how the document requested may be relevant to an issue in the
complaint, response to the complaint, or remedy sought; and
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(c) the participant's efforts to obtain a copy of the document.
The test to be applied in an application under Rule 23(1) is whether a document may be
relevant or arguably relevant, with the onus on the applicant to show some nexus between the
Following that course, the facts in issue in this case appear to be
1. whether Mr. Mema’s ancestry, race, colour or place of origin factored into
his suspension;
2. whether the City failed to properly investigate the allegations and complaint; and
3. if so, whether Mr. Mema’s ancestry, race, colour or place of origin factored into
that.
At issue as well is the basis for the remedies claimed by Mr. Mema in respect of what
he says the impacts of the alleged discrimination on him were.
I note that during the PHC, the City stressed its view that the complaint is “all about the
suspension”, arguing that even if Mr. Mema’s protected characteristics factored into the
conduct of City employees in bringing forward the complaint of misconduct against Mr. Mema,
the City is immunized if it conducted its investigation properly. I disagree with this assertion.
It is trite law that an employer is responsible for the actions of its employees. It may be the City
will argue that it did not and could not have known of the alleged conduct of its employees,
but the question of the employees’ conduct in making the allegations and complaint against
Mr. Mema and its relationship to the resulting suspension is, in my view, arguably relevant,
noting the low threshold that represents.
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A. Complainant’s Application
In Mr. Mema’s Application and during the PHC, the parties made the following
submissions with respect to the categories of documents sought by Mr. Mema. I note that
1. “All City of Nanaimo email system correspondence between Victor Mema and LM between
August 1, 2017 and October 30, 2017”.
Mr. Mema argued that one of the allegations that emerged related to the suspension
was that he had created the position of Manager, Treasury, to improperly staff it with a
particular person who was also a person of colour. Because it was in fact LM who developed
the position, however, he argued these emails would show that the allegation was baseless and
that the City’s putting the position on hold was improper and unnecessary, thereby supporting
an inference the City’s conduct was driven by a desire to block the hiring of another person of
colour into the role.
The City argued that the documents related to Mr. Mema’s suspension have all been
disclosed. It said that emails between him and the person reporting to him have no bearing on
the question of whether his protected characteristics factored into the City’s decision to
suspend him after receiving the allegations. The City said that this has no bearing on the City’s
decision to suspend Mr. Mema pending the outcome of the investigation.
It seems to me that there is arguable relevance to emails between Mr. Mema and LM
related to the development of the Manager, Treasury position. If it could be shown that
allegations of Mr. Mema misusing his hiring power were baseless or were driven in part by
seeking to block the hiring of another person of colour, it could work to support an inference
that Mr. Mema’s protected characteristics were factoring in. I also agree, however, with the
City that the request is too broad in scope for the purpose for which it is made.
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These documents should be focused on the specific issue of the development of the Manager,
Treasury position.
2. “All City of Nanaimo email system correspondence between JS, Victor Mema, JC (Financial
Mr. Mema’s approval of legal invoices was among the allegations giving rise to his
suspension. He argued that these emails will show he acted on advice that he had asked JS
to secure when he approved legal invoices. He said that when questions about their approval
arose, he asked JS to look into them, and that in the face of later allegations against him,
JS “deliberately did not disclose this information in her submission to Mayor & Council.”
He alleges that his protected characteristics factored into her omission.
The City argued that this is overly broad and all documents related to what the City
received about the serious misconduct allegations have already been disclosed. The City
asserted it has disclosed emails pertaining to the legal invoices that are relevant to Mr. Mema.
Mr. Mema asserted that while the invoices have been disclosed, the conversation where JS and
Mr. Mema discussed looking into them have not. The City explained that these emails will not
support a finding about whether or not the City’s decision was racially motivated. There is no
nexus, it asserted. They may show that he spoke with him about some of the invoices, which
may go to the issue of whether or not there is cause, but it is not relevant to whether the
Council’s decision was racially motivated. There is no allegation in the complaint that JS filed
the complaint because she was racially motivated, the City argued, the complaint is about
whether the Council’s decision to suspend was racially motivated.
As I have referenced already, it is not yet clear to me on the face of the materials filed
that the conduct of the involved City employees can so readily be extricated from the actions of
City Council in respect of the suspension in this complaint. As such, it seems to me that emails
between JS and Mr. Mema questioning certain legal invoices and dealing with how to address
those questions are arguably relevant to the allegation that Mr. Mema acted improperly in
respect of such invoices, which was one of the bases for his suspension. It seems to me that
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emails between JS and JC related to JS’s seeking advice from JC would be relevant for the
same reasons.
3. “Copies of all public procurement competitions handled and posted by the purchasing
Mr. Mema argued that the earlier issues regarding his use of the City credit card
were resolved and addressed in January 2018, and these documents would show that the
recommendations by an auditor who looked into the matter were implemented with his
oversight. This in turn, he said, would show that the later allegations that formed the basis of
his suspension were spurious, further supporting an inference that his protected characteristics
played a role.
The City argued that this category is overly broad and it is unclear how they would
advance the human rights claim rather than simply seek to reopen the Council’s termination
decision. The City again sought to narrow the issue to whether Mr. Mema’s protected
characteristics played a role in Council’s decision to suspend him. It again argued that there
is no allegation that the City conducted its investigation and terminated him because it was
racially motivated. “It’s about the suspension”, the City said, and even if the complaint was
racially motivated, that does not mean that the City was racially motivated in the suspension.
For the reasons I have already articulated above, I do not agree that the circumstances
surrounding the bringing of the allegations to the City Council are beyond the scope of this
complaint. I am satisfied that these documents, more properly focused on the implementation
of the auditor’s recommendations, are arguably relevant for the reasons Mr. Mema asserted.
4. “All draft, working and/or final copies of the City of Nanaimo City issued credit
card/purchasing card developed between January 1, 2018 and May 30, 2018”
Mr. Mema referred back to his argument that the credit card issue had been resolved in
January and as such asserted it should only have reemerged as an allegation of misconduct if
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there were new information, but there was not. He asserted that his request for these
documents was about showing “the absence of information”.
Mr. Mema was unable to articulate how showing an absence of information would
5. “All City of Nanaimo email system correspondence between JH, JR and TS regarding
changes to City of Nanaimo Purchasing Credit Card policy changes”
Similar to category 4 above, Mr. Mema asserted he sought to show an absence of
information. As above, it is not clear to me how these documents would assist in the just and
efficient resolution of this complaint in all the circumstances. I decline to order their disclosure.
6. “2017 City of Nanaimo audit management letter issued by [the auditor]”
Mr. Mema asserted that this letter would show that the external auditors did not find
any wrongdoing on his part. Mr. Mema explained that while the City has disclosed the 2018
audit report, the letter would provide context to that report which is important because the
City said the report in fact does show wrongdoing.
The City argued that the 2018 report deals with the relevant conduct and is sufficient.
It seems to me that this letter meets the arguably relevant threshold insofar as it may
serve to assist in interpreting the findings of the 2018 report over which there is a dispute,
and therefore should be disclosed.
7. “All City of Nanaimo email system correspondence between JH and Victor Mema between
October 1, 2017 and May 30, 2018”
Mr. Mema argued that the emails would show that the Director of Human Resources
was involved in all recruitment and appointment, and that Mr. Mema’s judgment was
questioned only when a black person was hired, speaking to his argument of systemic bias and
supporting an inference his protected characteristics factored into the conduct against him.
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The City argued that relevant documents have been disclosed, that this particular issue
was part of an overall review of whether Mr. Mema did his job properly in exercising his hiring
discretion, and that it is irrelevant to whether the City considered Mr. Mema’s protected
characteristics when it suspended him.
8. “All City of Nanaimo email system correspondence between JS, CS and Victor Mema
regarding TS’ legal invoices and other expenses between January 1, 2018 and May 30, 2018”
As with item 2 above, Mr. Mema argued that these emails would show his approval
of legal invoices was based on advice secured by JS on his behalf from CS.
The City reiterated essentially the same argument as with under item 2 above.
For the same reasons I have set out under item 2 above, I am persuaded these
documents are arguably relevant to issues raised in the complaint and should be disclosed.
I have narrowed the category in my Order below, however, to better reflect the purpose for
which Mr. Mema asserted their relevance.
9. “A copy of the 2018 Statement of Financial Information (SOFI) and breakdown of TS’s
expenses shown on the SOFI”
Mr. Mema argued that he would like to be able to reconcile which invoices were
determined to be legitimate business expenses because he is certain that those invoices are
the same as the invoices that the City said he should not have approved. He said he cannot
reconcile what is and is not included in the SOFI.
During the PHC, the City argued that approval of legal expenses was not an issue,
the issue was that as CFO he was only permitted to approve a certain, capped amount of legal
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expenses which he exceeded. The City also noted that details of expenses approved by Mr.
Mema and which formed the basis of the allegations against him have already been disclosed.
I agree with the City that a further breakdown of all of the legal expenses is overly broad
10. “All City of Nanaimo email system correspondence between NM and [the auditors] between
January 1, 2018 and May 30, 2018.”
Mr. Mema argued that these emails would show that NM “is a competent finance
professional who executed his work with competence and professionalism”, and that his only
performance issue is that “he is black and worked at the City of Nanaimo.” He said this goes to
the City’s assertion that Mr. Mema was hiring incompetent people of colour who had to be
removed after his departure.
The City said that the circumstances surrounding Mr. M’s departure from the City have
already been disclosed.
I agree with the City that the documents sought by Mr. Mema in this category are overly
broad and not arguably relevant to an issue in the complaint. It is unclear how emails between
NM and the auditors would show NM’s competence, nor how that would assist in resolving the
issues in dispute. I decline to order their disclosure.
B. Respondent’s Application
The City seeks a number of documents from Mr. Mema, arguing in its application that
the documents will “assist the Tribunal in determining whether there is any merit to the
allegations and remedy sought” and “provide a fair opportunity for the respondent to prepare
its case and to make full answer and defence to the allegations and remedy sought.” In this
respect, it noted that in Mr. Mema’s Form 9.4, Remedy Sought, he is seeking the following
remedies:
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a) wage loss of $324, 070.05;
b) expenses of $10,038.59; and
c) compensation of $75,000.00 for injury to dignity,
feelings and self‐respect.
1. Documents relating to his mitigation efforts including, but not limited to:
any correspondence or applications seeking employment, records of employment,
employment agreements, income, benefits and compensation received or earned by
the Complainant post‐termination and 2018 Tax Return and Notice of Assessment.
The City argued that these are relevant to the remedy Mr. Mema is seeking. It noted
Mr. Mema has disclosed some of these documents in July but not all. What remains
outstanding is Mr. Mema’s tax return and supporting documents.
Mr. Mema argued that there is no difference between the CRA Notice of Assessment
and the actual return itself. The City noted that some information contained in the return as
to other income does not always show itself in the Assessment. This information may alert the
City as to whether Mr. Mema is being truthful about his mitigation efforts. Mr. Mema
responded that the CRA Assessment notice and all supporting sources of income are all there
and he did not understand what else he needs to submit.
I agree with the City that Mr. Mema’s full tax returns and supporting documents are
relevant to his claim for wage loss. The Notice of Assessment is only a high level summary and
in any event if it is arguably relevant so are the underlying documents.
2. Documents relating to the Complainant's claim of health deterioration and depression,
including, but not limited to: medical files, reports, records and notes from the
Complainant's treating physicians and/or specialists.
The City noted that Mr. Mema disclosed one medical report but it does not align with
his various allegations regarding the health impacts he has experienced, and it also notes that
while a doctor is listed on Mr. Mema’s witness list, there is no document from that doctor.
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The City noted there is medical documentation that goes to the issue of whether the health
impacts Mr. Mema alleges stemmed from the suspension were in fact pre‐existing.
Mr. Mema explained that the doctor listed as a witness has nothing to do with his
I am persuaded by the City’s argument and am satisfied that the documents sought
by the City are arguably relevant to the various impacts Mr. Mema alleges he has experienced
and the remedy he seeks.
3. Documents relating to the alleged forced resignation of the Complainant as a Board
Member of the CAGFO
The City argued that the arguable relevance arises from Mr. Mema’s allegations
regarding the impacts he experienced and the remedy he seeks. Mr. Mema asserted that
he has disclosed the only document in his possession and control on this issue. The City did
not press forward, and I make no order in this regard.
4. Documents relating to the Complainant's attendance at the GFOA of US and Canada
conference in St. Louis
The City argued that what has been disclosed in relation to the remedy Mr. Mema seeks
on this point references enclosures that were not, in turn, disclosed. Mr. Mema argued that the
letter from the President of GFOA confirms his attendance. He asserted there are no other
documents. The City did not press forward, and I make no order in this regard.
5. Documents relating to the alleged investigation of the Complainant by CPA in Alberta
The City argued that what has been disclosed in relation to the remedy Mr. Mema seeks
on this point references enclosures that were not, in turn, disclosed. The letter also allows
Mr. Mema to provide a response to the letter which he has not disclosed. The City seeks the
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enclosures and any response from Mr. Mema, together with any subsequent correspondence,
together with a copy of any decision rendered.
Mr. Mema argued that the enclosures cannot be disclosed because the CPA Alberta
I agree with the City and am satisfied that the documents sought are arguably relevant
to allegations at issue in this complaint and as such should be disclosed.
6. Privileged document
The City noted that Mr. Mema has disclosed, at item 16 of his Form 9.1, a copy of a
letter that is subject to solicitor‐client privilege. The City wrote to Mr. Mema asserting privilege
and asking that he remove it from his list and destroy all copies in his possession. It is a letter
from external counsel to the City that should not have come into Mr. Mema’s possession or
control, and the City does not know how it did.
Mr. Mema acknowledged the City’s right to protect its position but refused to
voluntarily remove it or destroy the letter. He did not dispute that the document is subject
to solicitor/client privilege.
Solicitor‐client privilege “commands a unique status within the legal system.
The important relationship between a client and his or her lawyer stretches beyond the parties
and is integral to the workings of the legal system itself. The solicitor‐client relationship is a
part of that system, not ancillary to it”: R. v. McClure, [2001] 1 S.C.R. 445 at para. 31. While
there are certain circumstances in which such privilege will yield, Mr. Mema gave no reasons as
to why it should do so here.
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IV ORDER
Mr. Mema’s application for disclosure of documents is granted in part as follows:
The City is ordered to provide to Mr. Mema by two weeks from the date
a. All City of Nanaimo email system correspondence between Victor Mema and LM
between August 1, 2017 and October 30, 2017 related to the development of the
position of Manager, Treasury.
b. All City of Nanaimo email system correspondence between JS and Victor Mema,
between January 1, 2018 and May 30, 2018, regarding questions about TS legal
invoices where those legal invoices formed part of the allegations against Mr.
Mema.
c. Copies of all public procurement competitions handled and posted by the
purchasing department on behalf of the Finance Department and the City Manager’s
office between January 1, 2018 and May 30, 2018 arising from recommendations
made in the 2018 Forensic Audit Report.
d. The 2017 City of Nanaimo audit management letter issued by [the auditor].
e. All City of Nanaimo email system correspondence between JH and Victor Mema
between October 1, 2017 and May 30, 2018 related to recruitment and hiring
processes that Mr. Mema participated in during the time Mr. Mema was Acting City
Manager.
f. All City of Nanaimo email system correspondence between JS, CS and Victor Mema
regarding questions about and how Mr. Mema should proceed in respect of TS’ legal
invoices and other expenses between January 1, 2018 and May 30, 2018, where the
subject legal invoices or other expenses formed part of the allegations against Mr.
Mema.
The City’s application for disclosure of documents is granted in part as follows:
Mr. Mema is ordered to provide to the City by two weeks from the date
of this Order the following:
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a. Documents relating to his mitigation efforts including, but not limited to: any
correspondence or applications seeking employment, records of employment,
employment agreements, income, benefits and compensation received or earned by
the Complainant post‐termination and 2018 Tax Return and Notice of Assessment.
c. Documents relating to the alleged investigation of the Complainant by Charter
Professional Accountants ("CPA") in Alberta.
In addition to the above, Mr. Mema is ordered to remove document 16 from his Form
9.1 Complainant’s Document Disclosure, destroy any copies of that document in his possession,
and provide to the Tribunal and the City a revised Form 9.1 and confirmation that the privileged
document has been destroyed by two days from the date of this Order.
__________________________________
Emily Ohler, Tribunal Member
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