I’ve had a few people ask me lately about whether sexual assault or sexual harassment constitutes discrimination based on sex. It does! Complainants alleging sexual harassment at the BC Human Rights Tribunal need to prove the following: that the incident was of a sexual nature, that it was unwelcome, and that it detrimentally affected their work environment or led to adverse job-related consequences for them.
As held by the tribunal, the complainant was sexually assaulted by his supervisor while he was asleep in his room before a shift. They worked for a BC-based company installing carpets in cruise ships. During the period in which the assault occurred, the Complainant, the Respondent, and their team were docked in Nicaragua. One day, the Complainant’s roommate was off the ship and the Complainant was excited to be able to push two twin beds together to make a big bed for his nap. He was sleeping and woke to suddenly having the sensation of someone touching his genitals. He then felt the person pull his hand onto their genitals. He realized it was his supervisor. His supervisor had entered his room, got into bed with him, and woke him up with the touching. The supervisor put his head on the Complainant’s shoulder. The Complainant jumped up and left the room. He was stuck on board with his supervisor able to walk freely for the next few days.
This resulted in the Complainant being unable to continue working for the company and being unemployed for around 4 months. As such, he was awarded $8,333 for wage loss. Regarding damages for injury to dignity, feelings, and self-respect, Tribunal Member Emily Ohler held that the incident fell at the extreme end of the spectrum for this head of damages, since it was a sexual assault by a supervisor. The Complainant was awarded $25,000 damages for injury to dignity, feelings, and self-respect.
The decision was closed with the following at paragraph 45:
As a closing observation, I note that Mr. Ban made the point on various occasions that he was driven to pursue recourse primarily because he views himself as a strong person and recognizes that many other survivors or sexual assault may not be able to endure what the process of pursuing recourse requires. He said that he felt proud of himself for carrying on through the process. In my view, that pride is well earned. It takes courage to file a human rights complaint generally, and more particularly to file one that involves allegations of sexual assault as here. It requires a survivor to revisit a traumatic experience, and to lay that experience out for public view. Male survivors often face a unique stigma that discourages them from coming forward. I acknowledge Mr. Ban’s courage and perseverance.
In a decision issued on February 24, 2021, the BC Human Rights Tribunal held that the owner of Vancouver’s Toscani Coffee Bar discriminated against four complainant patrons based on their race when she refused one of them service and referred to him and his friends as “you Arabs.”
Each of the four complainants had previously immigrated from North Africa to Canada. They speak Arabic and identify as having Arabic ancestry. The coffee shop owner is a woman of colour who was raised in a Muslim family in Indonesia. One of the complainants told the owner’s Italian husband, who also works at the coffee shop, that they were unhappy with her service. The owner felt that a few of the complainants were disrespectful towards her in her own business.
On July 8, 2019, the store owner refused to serve one of the complainants, as she did not desire to serve someone who did not want to be served by her. The owner and complainant then spoke outside. Tribunal Member Devyn Cousineau accepted the complainant’s evidence about the conversation. According to him, the owner said “I don’t want you Arabs here, and you should tell your friends that I don’t want you here. You are not welcome anymore.” The tribunal accepted the owner’s explanation for refusing service as well, stating as follows:
[32] I accept Ms. Conforti’s explanation for why she told Mr. Haouas, Mr. Gharbi and Mr. Ben Maaouia that she would not serve them. She felt they had disrespected her in her own business. She understood that they had talked to others about not wanting her to serve them, and that she was simply granting their wish. She was frustrated that they did not recognize her authority in her own business and went around her to her husband for service or to complain about her. As an immigrant woman of colour raised in a Muslim household, running a business that serves immigrants from all over the world, I accept that Ms. Conforti did not refuse to serve the Complainants because they are Arab.
It was therefore accepted that the owner did not refuse service due to the complainants being Arab. That did not end the matter, however. Discrimination occurred nevertheless because a racial comment was connected to a negative effect on the complainants. The Tribunal held the following about this:
[34] In a discrimination complaint, it is not the respondents’ intention that matters but the effect of their behaviour: Code, s. 2. In this case, the effect of Ms. Conforti’s words was to connect the Complainants’ Arab ancestry to her communication that she would not serve them. The discriminatory words were “spoken at the very same time and place” as she told Mr. Haouas she would not serve him, and they were “inextricably linked” to that communication: Gichuru v. Purewal, 2019 BCSC 484 at para. 484. The effect was discrimination.
For injury to their dignity, feelings, and self-respect, the Tribunal awarded $1,000 to each of the four complainants.
On January 31, 2021, the Survivor Stories Project began sharing multiple stories of anonymous people claiming to have been sexually harassed, abused, or assaulted by a former employee at Chuck’s Burger Bar in Victoria. Thirteen accounts have now been published on the Survivor Stories Project instagram page. The stories allege that the Chuck’s Burger Bar employee acted in a predatory manor, coercing them into becoming highly intoxicated or drugged, or drugging their drinks. According to many of the accounts, the employee would then bring the women to his home and sexually assault them.
Chuck’s Burger Bar has made two posts on it’s social media regarding the allegations and has received many negative comments in response. Most recently, Chuck’s stated publicly that they have terminated the employee.
In a decision released on January 28, 2021, Francis v. BC Ministry of Justice, 2021 BCHRT 16, the BC Human Rights Tribunal ordered that the BC Ministry of Justice compensate a former corrections officer over $964,197 plus interest following racial discrimination in his employment. The award was for past and future wage loss, and included the highest award the tribunal has ever made in its history for injury to dignity, feelings, and self-respect. The Complainant, Mr. Francis previously worked for the North Fraser Pre-Trial Centre in Port Coquitlam. His colleagues and supervisors made racist comments to him, about him, and about other coworkers.
that the complainant was stereotyped as “slow” when opening doors in control when there was no credible basis for his colleagues to conclude that he was
that someone at work said to the complainant, “because you’re Black” as a sarcastic remark because he was aware that the complainant had, in the past, alleged that he was being picked on because he is Black.
that one supervisor said to another supervisor about the complainant, words along the lines of “maybe if you turn on the lights you can see him,” because of the complainant’s skin colour
that a colleague, while telling a story about a former fellow officer who had the appearance of a Black-skinned person, used the N word slur
that the complainant was singled out and treated differently than other employees
that someone called the complainant a “Toby” at work, which carries the same connotation as slave
that one colleague called the complainant an “LBM,” referring to a “Lazy Black Man”
that a colleague circulated a photo to the complainant of an African warlord accompanied by a news article about killing inmates
that a colleague stated to another colleague something like “sorry you have to work with that [N word]” in relation to the complainant
that the complainant was called a “rat” and told he had a “target on his back” after complaining about the above behaviour
Ultimately, the complainant left his position and, understandably, did not go back. The BCHRT found that he had been subjected to a poisoned work environment. When there is a poisoned work environment, departing may be the only reasonable option.
In the recent decision regarding a remedy for this discriminatory conduct, the BC Human Rights Tribunal made the highest award for injury to dignity, feelings, and self-respect in its history. Previously, the tribunal’s highest award under this heading was for $75K. However, in the precedent-setting decision, Mr. Francis was awarded $176,000 under this heading after it was reduced from $220,000 by a 20% contingency.
The reasons for the Tribunal’s relatively high award are set out by the Tribunal as follows:
[216] The Contraventions amounted to an exceptionally damaging affront to Francis’ dignity. The evidence presented to this effect was abundant, clear, and compelling. The nature of the discrimination was serious. This is not a case where the connection to Francis’ race and colour was subtle. The comments and actions of his coworkers and supervisors struck at the core of Francis’ identity and feelings of self-worth and emotional well-being. What Francis experienced encompasses virtually the entire spectrum of racial discrimination and harassment in the workplace, escalated into retaliatory behaviour, and resulted in a poisoned work environment, necessitating a significant award of compensation. Francis was particularly vulnerable because of the nature of his job. His physical safety was threatened and compromised by the discriminatory and retaliatory behaviour of officers and supervisors who he needed to count on to be safe at work. He had a genuine fear that if something dangerous were to happen at work, he could not count on his colleagues for help. The impacts on Francis were extreme, and as Dr. Macdonald observed, his mental illness has become more deeply rooted over time. As Dr. Smith observed, Francis is “seriously ill from a psychiatric point of view”. Not only did Francis lose his employment, but he has also lost his ability to work. His wife feels sickened by how this case has impacted her husband — “it has destroyed him as a human”. That is what happened to Francis and, as such, he is entitled to an award commensurate with that loss of security and dignity.
The Tribunal stated the following about whether the Complainant was too sensitive and over reactive:
[161] Francis experienced “everyday racism” in the form of racialized comments and slurs. The Respondent seeks to minimize the severity of four of these comments on the grounds that Francis was not present when the “nigger” and “turn on the lights” comments were made, the supervisor apologized after directing Francis to do something “because you’re black”, his Control partner stopped calling Francis a “Toby” after he made clear that he did not like the name. Regardless of the view taken by the Respondent, all of these comments and slurs were found in the Liability Decision to amount to racial discriminatory harassment in contravention of the Code. That Francis was not present when two of them were made does not detract from the finding that the cumulative effect of the Contraventions was profound on Francis: Liability Decision, para. 336. Attempts to trivialize the impact of racialized comments and slurs on Francis plays into the myth and misconception that, as a racialized person, Francis was too sensitive and overreactive: Liability Decision, para. 289.
The past and future wage loss amounts awarded by the tribunal reflected that Mr. Francis lost his employment and likely his ability to ever work again as a result of the discrimination. The amounts were based on economist reports and reduced by a 20% contingency to reflect that about 80% of the losses Mr. Francis experienced flowed from the discriminatory conduct that the province was held responsible for. The past loss of earnings award was $262,060, the future loss of earnings award was $431,601, and the pension loss award was $65,881.
“Birth alerts” in BC refer to the controversial practice where social workers flag expectant parents to hospital staff without their consent when they believe the expectant parent poses a risk to the newborn. The birth alert directs hospital staff to alert the social worker when the baby is born. Ministry of Children and Family Development (“MCFD”) records from 2019 show that birth alerts result in the removal of a newborn from their parents “approximately 28% of the time.” Indigenous families are disproportionately affected by the birth alert system. According to MCFD’s records, 58% of parents impacted by birth alerts in 2018 were Indigenous. Birth alerts have been referred to in a report by the National Inquiry Into Missing Indigenous Women and Girls as “racist and discriminatory” and a “gross violation of the rights of the child, the mother, and the community.” Former Representative for Children and Youth Mary Ellen Turpel-Lafond stated the following to IndigiNews about the practice:
“Apologies and amends are necessary, as there has been harm done, including promoting the stereotypes that Indigenous families require intense surveillance because they cannot safely care for their own children,”
On May 6, 2019, the BC Attorney General’s office sent a memo to the MCFD confirming that:
“the use of hospital alerts, and other activities involving the disclosure of information without the consent of expectant parents is both illegal and unconstitutional.”
However, the practice was not banned by the BC government until September 16, 2019.
If a newborn has been traumatically removed from your family shortly after birth, you may not even know yet that the removal resulted from a birth alert. According to MCFD, it has not advised families that their privacy rights have been breached with the issuance of birth alerts.
One spokesperson for MCFD claimed in a statement to IndigiNews that this was because MCFD did not want to “retraumatize” affected families by providing notifications of past birth alerts. In my view, this response only reinforces that the MCFD takes a discriminatory and paternalistic approach in its interactions with Indigenous families. The baby alert approach promoted a stereotype that Indigenous families are not capable of safely caring for their own children. The comment from the MCFD about retraumatization again reinforces a stereotype that Indigenous families are not capable of deciding what is best for them.
The MCFD should notify families that their privacy was breached by the issuance of a birth alert and then the families can decide for themselves whether they wish to potentially face retraumatization by going through a process of seeking an apology and amends. MacIsaac and Company is currently investigating potential claims regarding this matter.
TL;DR: Racism is widespread in BC, as evidenced by cases heard at the Human Rights Tribunal, and there is a better way forward.
The violent death of George Floyd under the knee of police officer Derek Chauvin in Minneapolis triggered mass protests in the United States and calls for action to address systemic racism worldwide. In what is now known as British Columbia (BC), citizens, activists, politicians, and lobbyist groups have been rallying for change within our own systems. These calls to action have been dismissed by some who claim that racism either does not exist in BC or is not as big of an issue in BC as it is in the United States. For example, on June 17, 2020, Jagmeet Singh (leader of the New Democrat Party of Canada and Member of Parliament (“MP”) for the Riding of Burnaby South), was ordered out of the House of Commons (the “House”) after he refused to apologize for calling Bloc Quebecois MP Allain Therrien racist. Singh made a motion asking the House to recognize that there is systemic racism within the Royal Canadian Mounted Police (“RCMP”) force, he asked that the RCMP release all “use of force reports and the associated settlement costs,” and he called for an “increase in non-police investments in non-violent intervention, de-escalation, and mental health and addictions supports,” among other things. Therrien rejected the motion, so it was not passed, and that is when Singh called him racist.
Writer, activist, and comedian Baratunde Thurston, in his April, 2019 TED Talk, “How to Deconstruct Racism, One Headline at a Time,” provides a framework for analyzing how to deconstruct racism in a way that is inclusive, rather than discriminatory or dismissive. He examines the “phenomenon of white Americans calling the police on black Americans who have committed the crimes of … eating, walking or generally ‘living while black.'” He breaks down news headlines in relation to this phenomenon and reveals that each one is defined by a 1) subject, 2) action, 3) target, and 4) activity. This is the structure to white supremacy. For example, the following can be broken down as follows: White Woman [subject]Calls Police On [action]Eight-Year-Old Black Girl [target]Selling Water [activity]. This headline is real, by the way. Thurston argues that we need to “level up” and change the action. For example, for the story to look more inclusive, the headline would read: White Woman [subject]Buys All Inventory From [action] Eight-Year-Old Black Girl [target]Selling Water [activity]. When we level-up and change the action, we change the story, which “changes the system that allows those stories to happen” and we “write a better reality for us all to be a part of.”
Therrein’s rejection of a motion partly to recognize that there is systemic racism within the RCMP is just one example of calls to action against systemic violence being dismissed in Canada. Contrary to these dismissals, racism is pervasive in the RCMP, “Canada” generally, and more specifically, here on the West Coast. This blog post outlines just some of the recent findings of racial discrimination in the BC Human Rights Tribunal (the “BCHRT”). The BCHRT is responsible for hearing complaints made under the BC Human Rights Code, RSBC 1996 c. 210, which prohibits discrimination against people in certain areas of daily life. In this post, I demonstrate the pervasiveness of racism in BC by reflecting on cases over the last decade where the BCHRT has held that someone from the Black, Indigenous, and People of Colour (BIPOC) community was discriminated against based on their race. After summarizing four cases, I use Thurston’s framework to demonstrate how the cases could have been inclusive rather than discriminatory.
In this 2014 case, the complainant tree planter was successful in alleging that his employer discriminated against him and at least 55 other Black tree planters in BC’s interior on the basis of their race. Per paragraph 8 of the decision, the allegations included “‘deplorable’ living conditions, inappropriate, inadequate and scant food, slave-like working conditions, consistent exposure to racial taunting and harassment, violent behaviour (in particular by Sunny), inadequate or no payment of wages, and sexual harassment” of one person in particular. Several of the workers testified at the hearing that the conditions at the tree planting camps were slave-like.
Ultimately, the tribunal did not find that all of these allegations were made out, largely because according to the tribunal, South Asian and white employees had to work in conditions just as terrible as those the Black employees worked in. However, the tribunal found that the employer discriminated against the employees by taunting them nearly daily with racial slurs like the N word and “lazy dogs.” The employer also did not pay them in full, but did pay special friends of their principals and white workers in full. One of the principals of the employer company sexually harassed a white woman by telling her “move your pussy,” calling her a “lazy pussycat,” telling her he’d marry her if she wore purple underwear, staring at her backside when she turned around, and telling a Black worker she was in a relationship with that his “lips would turn red” from sucking her and that he should “put a little Colgate on his dick and fuck her.”
An expert in anti-black racism testified on behalf of the complainants in the case. The Court noted her evidence about racism in Canada as follows:
[479] Dr. Bernard testified that black men and women coming as refugees to Canada have expectations that it will be a safe haven and hopefully a better place to live and raise a family. In Africa, Canada is seen as the Promised Land.
[480] The actual experience is not as nice. Their qualifications are not recognized in Canada. A racism violence health study carried out between 2002 and 2007 identified that highly educated blacks are the most under-employed. They were least likely to have employment in their field of expertise; many had to return to school to be retrained. Some could not afford that and, as a result, took jobs to support their family, hence the under-employment.
[481] Other research looked at the experience of witnessing racism. The conclusions were that witnessing racism was just as damaging as experiencing it. What was observed was the everydayness of racism. This all had an impact on the physical, mental, emotional and spiritual health and well-being of African Canadians.
…
[484] It is suggested that the everydayness of racism shows up in employment. Black Canadians may change their name to have a better opportunity to find employment. Their ideas are minimized in the workplace. They are given the worst jobs in the workplace. Typically, concerns they take to supervisors, in most cases, are not addressed which makes them feel undervalued, worthless, desperate and trapped.
Ultimately, the Tribunal held that in this case, there were “open racial taunts and clear distinctions in the areas of payment of wages drawn along racial lines which equally clearly establish the nexus for more subtle issues such as toilet arrangements in Golden.” It ordered that the employer cease contravening the Human Rights Code and pay each of the 55 or more workers $10,000 for injury to their dignity and self-respect plus $1,000 per 30-day period worked or portion thereof between a certain 3-month period.
This case is summarized in my post “Landlord Ordered to Pay Indigenous Tenant $23,000 for Discrimination Over Smudging.” The BCHRT issued its reasons for deciding that a landlord contravened the BC Human Rights Code by making discriminatory statements to his Indigenous tenant and attempting to evict her after learning that she smudged in her apartment. The landlord in this case made various comments towards the complainant which were based on stereotypes about Indigenous peoples and which she found exhausting and burdensome. For months, he fought with her over whether she could smudge, and ultimately, she had no meaningful choice but to move out of her home. The Tribunal ordered the landlord pay the complainant just over $23,000 for lost wages, expenses, and injury to her dignity, feelings, and self-respect.
In this 2019 case, the Vancouver police responded to a call about a man in distress. When an officer arrived, the man said that a young woman had been chasing him with a knife. He said that the young woman was with a young “Native” man. The police found a young man who they thought was the subject. He was the BCHRT complainant’s son. The complainant happened to be in the area walking her dog. She saw her son and the police vehicle and approached the scene to find out what was happening. More officers and police vehicles came. The tribunal held that the officers treated the complainant mother adversely based on the following:
they would not answer her questions about her son;
they repeatedly told her to go home;
one of them physically removed her from the site of her son’s arrest and roughly took her about 35-40 feet away;
one of them stonewalled her in response to her questions and threatened to charge her with obstruction of justice;
one of them physically blocked her ability to witness her son’s arrest and ensure his safety; and
generally, they “treated her as an annoyance and an ‘erratic, uncooperative’ woman rather than a mother with legitimate concerns about her son.”
In determining whether the complainant’s identity as an Indigenous woman was a factor in the adverse treatment, the BCHRT accepted that the officers were sincere in asserting that the complainant’s indigeneity had nothing to do with their treatment of her. However, stated the tribunal at paragraph 101 of the decision, “discrimination is much more complex than the thoughts at the top of a person’s mind.” At paragraph 102, the tribunal held that
[r]acial discrimination is most often subtle and pernicious. While there are no doubt still incidences of deliberate, open, racist attacks, it is more common that people do not express racial prejudices openly or even recognize them in themselves.
Factors that supported the Tribunal’s conclusion that the adverse treatment was due to the complainant’s indigeneity included that the police officers lacked culturally appropriate training and awareness, misunderstood the complainant and treated her conduct as suspicious; and reacted to the complainant in a way that was neither proportionate nor responsive.
She was awarded $20,000 for injury to dignity, feelings, and self-respect. Further, the Vancouver Police Board was ordered to provide better training to employees who would be engaging with Indigenous people.
The complainant in this case was a Black correctional officer who worked at the North Fraser Pre-Trial Centre. The Tribunal held that he was discriminated against in his employment on the grounds of race and colour. Colleagues and supervisors allegedly made racial comments to him, about him, or about other coworkers. The employer did not take the complainant’s allegations seriously. The BCHRT made the following findings:
that the complainant was stereotyped as “slow” when opening doors in Control when there was no credible basis for his colleagues to conclude that he was
that someone at work said to the complainant, “because you’re Black” as a sarcastic remark because he was aware that the complainant had, in the past, alleged that he was being picked on because he is Black.
that one supervisor said to another supervisor about the complainant, words along the lines of “maybe if you turn on the lights you can see him,” because of the complainant’s skin colour
that a colleague, while telling a story about a former fellow officer who had the appearance of a Black-skinned person, used the N word slur
that the complainant was singled out and treated differently than other employees
that someone called the complainant a “Toby” at work, which carries the same connotation as slave
that one colleague called the complainant an “LBM,” referring to a “Lazy Black Man”
that a colleague circulated a photo to the complainant of an African warlord accompanied by a news article about killing inmates
that a colleague stated to another colleague something like “sorry you have to work with that [N word]” in relation to the complainant
that the complainant was called a “rat” and told he had a “target on his back” after complaining about the above behaviour
Ultimately, the complainant left his position and, understandably, did not go back. The BCHRT found that he had been subjected to a poisoned work environment. When there is a poisoned work environment, departing may be the only reasonable option. The remedy portion of the case was not completed.
A Way Forward: Baratunde Thurston on How to Deconstruct Racism
The above-noted stories of discrimination in British Columbia demonstrate that racism continues to impact the daily lives of BIPOC here. As stated by Thurston, we need to level-up and change the action, which will change the story, which “changes the system that allows those stories to happen” and allows us to “write a better reality for us all to be a part of.”
The Complainant, Spyros Verozinis, alleged that when he attended the Maple Ridge Honda Dealership with his wife to buy a vehicle, the Finance Manager engaged in high pressure communications regarding the details of the vehicle and he was unable to fully understand what was occurring due to his disability – congenital deafness. He alleged that he ended up purchasing a vehicle he would not have purchased if his disability were not taken advantage of and he fully understood the terms of the sale. As such, he complained he was discriminated against on the grounds of mental and physical disability in the area of service contrary to the BC Human Rights Code.
Following a 2-day hearing, the Tribunal found that the Complainant’s mental and physical disabilities were not a factor in him being sold the vehicle. Mr. Verozinis was successful in establishing that he had a physical or mental disability. However, he failed to established that he experienced adverse treatment related to his disability and the car sale. The Tribunal held that he was too inconsistent on this issue to be reliable and instead preferred the evidence of the car dealership’s witness. Regarding the inconsistency, the Tribunal found the following at paras 45 and 46:
[45] Mr. Verozinis has testified both that he was adversely impacted because the vehicle was purchased by his wife rather than by him and that he did not receive the vehicle he wanted being a hybrid or electric vehicle but instead received a gas‐powered vehicle. However, Mr. Verozinis has testified to his awareness that a vehicle in the category that he desired was not within the financing capability of his wife. In other words, Mr. Verozinis had to know and I find that he did know that the vehicle his wife was purchasing at the time of the transaction with the Respondent was a gas‐powered vehicle. Accordingly, I find that Mr. Verozinis was not adversely impacted by the purchase of a gas‐powered vehicle as opposed to a hybrid or electric‐powered vehicle.
[46] More contentious is Mr. Verozinis’ inconsistency around understanding that the vehicle was purchased by his wife. It is clear on the evidence that Mr. Verozinis understood that his wife was financing the purchase of the vehicle, either because Mr. Verozinis believed that his bankruptcy prevented him from purchasing the vehicle at all or because he understood that if the vehicle was purchased in his name it would be at a higher interest rate than if his wife purchased the vehicle. In either event, Mr. Verozinis clearly understood that the financing of the vehicle was dependent upon his wife’s income rather than his own.
Further, the Respondent was successful in demonstrating that it took all reasonable and practical steps to avoid an adverse impact on the Complainant because their employees offered to use a microphone, spoke loudly and clearly, and sat so he could see their faces at all times.
The Tribunal also held at para 55 that “generally, a person seeking accommodation must give the service provider the facts needed to accommodate, facilitate the implementation of reasonable accommodation proposals, and accept reasonable accommodation.”
This case demonstrates that those alleging discrimination should ensure they are clear and consistent when giving evidence at a hearing. It also demonstrates that people with disabilities who need accommodation must assist service providers in accommodating them before they can allege that the service provider has failed to do so. Further, it demonstrates that service providers should make all reasonable and practical efforts to accommodate those with disabilities.
In reasons released for the case of Basic v Esquimalt Denture Clinic and another, 2020 BCHRT 138 on July 7, 2020, BC Human Rights Tribunal Chair Diana Juricevic held that the Complainant Jasmine Basic was sexually harassed by her employer Andrew Lee at an Esquimalt, BC Denture Clinic and that this harassment was a factor in the termination of Ms. Basic’s employment. This constituted discrimination based on sex and Mr. Lee and his clinic were ordered to pay Ms. Basic over $38,000 in damages.
Ms. Basic had been employed as a receptionist at Mr. Lee’s Esquimalt Denture Clinic Ltd. While at the clinic, Mr. Lee engaged in a extensive conduct of a sexual nature. The conduct is outlined by the Tribunal at paragraphs 94 and 95 of the decision as follows:
He repeatedly commented on the size of her breasts and asked whether her “boobs” were fake. In the context of one conversation, he remarked that she was so attractive that she would likely be sexually assaulted in another workplace. He complimented parts of her body – skin, legs, breasts – and overall appearance.
…..
[95] Mr. Lee also engaged in physical conduct of a sexual nature. Mr. Lee slapped Ms. Basic’s butt with a magazine. He repeatedly grabbed her breasts and looked down her shirt. On one occasion, he tried to look down her pants. He hugged her, rubbed her back, rubbed her leg, rested his head on her shoulder, and kissed the top of her head. He pressed his body up against hers when she was putting away an air compressor. He pulled her onto his lap when she was trying on scrubs.
The case largely turned on whether Mr. Lee’s conduct was unwelcome. Mr. Lee argued that the interactions were consensual in the context of an intimate personal relationship. Regarding this issue, the Tribunal held as follows at paragraph 118:
As explained further below, I have no difficulty reconciling the facts that Ms. Basic enjoyed many aspects of working with Mr. Lee, shared personal information, and at the same time, did not welcome his sexual advances.
Mr. Lee asserted that Ms. Basic sexualized the workplace by engaging in sexualized behaviour and wearing provocative attire. Those arguments were rejected, partly because it is a “myth or stereotype that ‘promiscuous’ or ‘party’ individuals are more likely to consent or less worthy of belief.” Ultimately, found the Tribunal, Ms. Basic was touched sexually by Mr. Lee, she told him to stop, and he persisted.
All of this sexual harassment, held the Tribunal, resulted in Ms. Basic being immersed in a poisoned work environment and terminated.
The Tribunal made the following damages awards against Mr. Lee and his clinic:
$11,796.04 for wage loss and wage differential that flowed from the discrimination;
$1,612 for expenses associated with the hearing; and
$25,000 for injury to dignity, feelings, and self-respect.
In reasons released on June 26, 2020, the BC Human Rights Tribunal awarded a woman nearly $45,000 in damages after she was sexually assaulted by a man who employed her for cleaning services in his home.
The events occurred on October 17, 2017. The case turned on whether the Respondent JS’s conduct towards the Complainant MP was unwelcome (their identities were anonymized by the Tribunal). The evidence about both parties was at odds and they were the only witnesses to the events, so JS and MP’s credibility was a major issue in the case. JS was an 87-year-old man who immigrated to Canada as a youth and owned a house where he lived with his wife until her death in 2013 (paragraph 27). He also owned a second home abroad. MP was a middle-aged woman who immigrated to Canada with her husband in 2009 and eventually began working as a house cleaner.
Tribunal Member Emily Ohler stated at paragraph 3 of her decision that at the hearing, she heard extensive evidence about ongoing sexual relations between the parties prior to October 17, 2017. In JS’s response, he asserted that the Complainant MP had consented to sexual contact with him in exchange for money over the course of years. In response to this evidence, the tribunal stated as follows at paragraph 4:
I would like to acknowledge the issues that arise from seeking to defend against sexual assault allegations on the basis of prior sexual history. Evidence of a complainant’s prior sexual history to argue a greater propensity to consent to the encounter at issue is presumptively inadmissible because of its reliance on myths and stereotypes: R. v. Seaboyer; R. v. Gayme, [1991] 2 SCR 577, R. v. Barton, 2019 SCC 33 [Seaboyer].
While Tribunal Member Emily Ohler recognized that the rules of evidence in the named court cases did not apply to the Tribunal, she noted that the myths and stereotypes referred to in those court cases are similar to three myths and strereotypes recently identified by the Tribunal regarding a sexual harassment complaint in The Employee v. The University and another (No. 2), 2020 BCHRT 12. Those myths and stereotypes were as follows, per paragraph 4:
First, a lack of protest. The Tribunal said at para. 178, “[i]t is not necessary for a complainant to expressly object to the conduct and the law recognizes that a person’s behaviour “may be tolerated and yet unwelcome at the same time”: Mahmoodi, para. 141.” Second, a delay in reporting. The Tribunal observed at para. 179, “I acknowledge that non‐reporting is a stereotype that privileges complainants who resist and report immediately. … A person may choose not to report for a variety of reasons including fear of negative job‐related consequences, not being believed, attacks on their reputation, or the difficult nature of the investigations: Hastie.” Third, participation in prior behaviour. At para. 180, the Tribunal rejected an argument suggesting “a pattern of consent”, saying that such evidence does not support “a finding that the Employee welcomed the conduct, that she is less worthy of belief, or that it is unreasonable to know that the conduct would be unwelcome.”
Consent always needs to be obtained on an ongoing basis. Prior consent does not amount to current consent and is no defence for sexual assault.
Ultimately, the Tribunal made the following findings of fact:
a. JS had a friendly relationship with MP and her family. This included periodic visits
to each other’s houses; a handful of outings together; and MP and her family
sometimes turning to JS for favours.
b. Around 2015, JS began touching MP in a sexual way that was unwelcome. At the
same time, he warned her that if she said anything or stopped working for him,
he would tell her Husband and break up her family.
c. One day, in response to this continuing treatment, MP told JS that she would no
longer return to work for him. After a few weeks of MP not attending the House,
JS visited MP’s Husband to tell him that MP had stopped working for him and ask
the Husband to speak with her. MP reasonably viewed this as a signal that JS
would make good on his threats to tell her Husband about what had been going
on. MP returned to work.
d. The unwelcome sexual contact continued. On October 27, 2017, just before JS
left for overseas, he sexually assaulted her. At this time, MP decided she had
enough and told him she would not be returning to work for him.
e. Once JS left for overseas, MP’s Husband noticed her phone logs showed frequent
telephone calls with JS. When he questioned her, she told him the entire story.
MP and her Husband cut off contact with JS.
f. JS’s conduct has had a lasting impact on MP, leaving her depressed and less able
to engage with work and her family life.
According to MP’s evidence, the unwelcome touching started when JS would brush up against her as she was changing the garbage, for example. Then he asked her for hugs and if she said no, he would hug her from behind. Then, when she was changing the sheets on his bed, he would approach her and push or pull her by the waist on the bed and put his legs over hers when she would try to retreat. He would grab her and grope her, tell her to be quiet, and say that he only wanted to “have fun.” She said that he would try to convince her to have sex with him by complaining that his other cleaners in his home abroad would do it (paras 64 to 73).
Around 2015 or 2016, MP took a break from working for JS as a result of the unwelcome sexual contact. She returned after JS’s visit to her husband, as noted above. The sexual contact and JS’s force escalated, with him forcing himself upon her and then giving her extra money afterwards. The Tribunal made the following findings of fact about the October 27, 2017 events at para 112:
On a balance of probabilities, on the whole of the evidence, I find that it is more likely than not that on October 27, 2017, JS pushed MP onto the bed, put his hands under her clothing, and touched her in a sexual way that she did not want. I find that it is more likely than not that JS touched MP’s breasts, put his fingers into her vagina, and put her hand on his penis. I find that after this encounter, MP told JS that she would not return to work for him when he got back from abroad.
As a result of all of this, MP attended counselling and was diagnosed with depression and PTSD. The sexual assaults impacted her marriage, her relationship with her children, and her work. She stopped working, had suicidal ideations, and retreated from her family and community (para 201).
The Tribunal made the following awards:
$4,300 to replace the income MP would have earned from JS but for the discrimination;
$49.98 for antidepressant medication;
$106.50 for MP’s parking expenses to attend the hearing; and
$40,000 for injury to dignity, feelings, and self-respect
According to Fontaine, it has been reported that hospital staff called the game “the Price is Right.” They try to guess the blood-alcohol levels as close as they can, without going over. Fontaine stated that the practice is “deeply disturbing and must immediately come to an end.” Dix stated that “if true, it is intolerable, unacceptable, and racist and its effect on patient care is intolerable, unacceptable, and racist.” The MNBC and BCAAFC have called upon the Ministry of Health to accept the following four recommendations:
A public inquiry into Indigenous specific racism in health care in B.C with a focus on hospitals and emergency departments.
Ensure that all front-line staff are required to take mandatory First Nations, Métis and Inuit training that results in increased health professional personal accountability in the delivery of safe health care.
Commit to structural and systemic changes to dismantle indigenous specific racism to ensure culturally safe health care experiences for Indigenous people.
Ensure that Indigenous governments play a stronger role in the development and implementation of anti-racism programs and training throughout BC.
If the allegations are true, there is potential for this abhorrent conduct to give rise to a representative complaint under the BC Human Rights Code. The BC Human Rights Tribunal Form 1.3 – Complaint for Group or Class allows complainants to file complaints about discrimination on behalf of a group or class of people. A “group” is a “number of individuals who are or easily could be identified by name. For example, people who work for the same employer, or people who are members of the same society or association.” A “class” is a “number of individuals who can be identified by characteristics that they share. For example, residents of Vancouver who are visually impaired.” I would argue that the Indigenous targets of these acts are members of both a group and a class. If the staff members who played this “game” and times during which they did so are made available, the patients who they saw at those times could potentially be identified. Those patients would be members of a “group.” Additionally, Indigenous residents of the identified Health Authority, or of the province, may constitute a “class.”
The BC Human Rights Code is meant to prohibit discrimination in certain areas of daily life based on someone’s race, colour, ancestry, or place of origin, among other characteristics. Indigeneity, of course, falls within the protected characteristics. One of the areas of daily life that are meant to be protected is the provision of accommodation, services, and facilities customarily available to the public. As such, the provision of health care services falls within the code-protected areas of daily life.
Dix has appointed Mary Ellen Turpel-Lafond to investigate the matter and make recommendations about an immediate long-term response. She is a former judge and the former Representative for Children and Youth of BC, among many other accomplishments. She is now a professor at UBC and senior counsel in the area of Aboriginal Law.
In addition to Turpel-Lafond’s investigation or in response to her recommendations, it’s possible that a representative human rights complaint could be made.
