The B.C. Human Rights Tribunal has dismissed a complaint filed by a former councillor and firefighter against the Village of Pemberton and its fire chief. The complainant alleged discrimination based on sexual orientation.
David MacKenzie, a gay Pemberton resident, alleged that a published interview in Pique Newsmagazine with Fire Chief Russell Mack, as well as the village’s decision not to reinstate him as a firefighter in 2008, were discriminatory and came in retaliation to a previous complaint that was settled prior to the hearing.
Tribunal member Enid Marion disagreed in her 107-page decision delivered Aug. 30, nearly two full years since hearings for the case ended. In the ruling, Marion found that neither the village nor Mack had breached sections of the Human Rights Code related to publication, employment or retaliation.
“We are glad to put this behind us,” said Pemberton Mayor Jordan Sturdy.
In reaching her conclusion, Marion accused MacKenzie of being “prone to exaggeration” and noted that she “preferred the evidence of reliable witnesses over his evidence.”
Although the complaint under consideration by the tribunal covered only three incidents taking place in the fall of 2008, Marion’s ruling provided an extensive description of events leading up to them based upon testimony from MacKenzie and a number of current and former village employees.
The original complaint suggested MacKenzie was passed over for a promotion because he is gay, and was subjected to homophobia while working at the fire hall. MacKenzie had alleged that Mack told a joke using the word “cocksucker” in his presence on multiple occasions. The settlement agreement stemming from those allegations, signed in 2007, saw MacKenzie receive $5,000, while both sides agreed not to speak further about the complaint.
The interview considered by Marion was published in the Nov. 6, 2008 issue of Pique Newsmagazine. The article ran less than two weeks before that year’s municipal election, in which MacKenzie was running against Sturdy for mayor. In the interview, Mack spoke openly about the original complaint and questioned MacKenzie’s character as a mayoral candidate.
MacKenzie testified that, after the article was published, he was subjected to homophobic remarks, threats and aggressive gestures while campaigning in the community. Although Marion wrote that Mack had breached the settlement agreement by providing the interview, she determined that MacKenzie’s sexual orientation was already a matter of public record.
“To the extent he received any negative comment about his sexual orientation during his campaign, this is regrettable,” wrote Marion. “The evidence does not support a finding, however, that any negative comment was because of the article.”
Mack testified that he did the interview because he was concerned for his employment, as he believed MacKenzie would fire him if elected mayor, and because he never had a chance to publicly respond to the allegations made against him in the original complaint. Marion concluded that MacKenzie had been actively working to get Mack fired during his tenure as councillor.
Mack also testified he only agreed to do the interview if he could see a draft of the article before publication, a deal he claimed the reporter agreed to but did not follow through on. Marion ultimately did not find the interview to be retaliatory in nature.
Marion also ruled that MacKenzie was not denied reinstatement as a firefighter due to discrimination or retaliation by the Village of Pemberton, but rather because he did not follow proper process when re-applying for the position.
MacKenzie had originally been suspended from the fire service in 2007 for failing to submit documents such as a driver’s abstract and criminal record check when the department was updating its personnel records. He chose not to submit the documents while the original complaint was being dealt with, eventually providing them in May 2008. However, acting on a legal opinion, council had determined that it was no longer appropriate for MacKenzie to serve as a councillor and firefighter simultaneously.
Once his council term was over in December 2008, MacKenzie again applied for reinstatement to the fire service, but submitted his application directly to then-Chief Administrative Officer Lori Pilon. MacKenzie testified he thought Mack would “basically rip it up” and not reinstate him given the tension between the two.
Pilon testified that, under council’s direction, she returned the application to MacKenzie to be submitted to Mack, and that Mack was told there was no reason not to reinstate him. Since MacKenzie was no longer a councillor at that time, it was council’s belief that the appropriate course for him to gain reinstatement was to apply through the fire department directly.
Marion concluded that if MacKenzie had submitted his application directly to Mack as directed, he would have been reinstated as per the wish of council.
Marion also denied applications for costs by both parties. MacKenzie, who did not respond to a request for comment, has 60 days to appeal the ruling.