Human Rights Tribunal Finds Employee Subjected to Work-Related Disadvantage due to Pregnancy, Orders Employer Pay Over $78,000

In a decision issued on July 29, 2022, LaFleche v. NLFD Auto dba Prince George Ford (No. 2), 2022 BCHRT 88, the BC Human Rights Tribunal held that an employee of NLFD Auto dba Prince George Ford experienced work-related disadvantage due to her pregnancy and family status. This constitutes sex discrimination in accordance with human rights law in BC.

Tribunal Member Amber Prince introduced the tribunal decision with the following paragraph:

For over 30 years the law in Canada is clear: a pregnancy should not lead to work‐
related disadvantages: Brooks v. Canada Safeway Ltd., [1989] 1 SCR 1219 [Brooks]. 
Discrimination based on pregnancy undermines substantive equality along gendered lines. In 
this case, Mellissa LaFleche suffered a work‐related disadvantage because she was pregnant. 
She filed a complaint to this Tribunal seeking redress. 

According to the decision, the complainant employee started working at Prince George Ford in 2015. She became a marketing manager around December 2016. She went on maternity leave in May, 2018, during the later stages of her pregnancy. The complainant asserted she was terminated from her employment while on maternity leave. The respondent asserted that she could have returned to work, but abandoned her position. The tribunal held that she was removed from her marketing manager position while on leave, and; thus, she was constructively dismissed. As such, Prince George Ford discriminated against her as her employer based on her sex and family status contrary to section 13 of the BC Human Rights Code.

The tribunal held that someone was hired expressly and temporarily to fill the complainant’s position while she was on maternity leave. The Complainant had a meeting with representatives of Prince George Ford while on leave. The meeting led her do believe that her job duties were being changed as a result of her absence to such an extent that she was being constructively dismissed. One of the main factors leading to this conclusion was that the employee previously hired to covered the maternity leave was set to stay on permanently in the role.

The tribunal held that the complainant experienced an adverse impact in the complainant’s employment for the following reasons:

  1. She was removed from her marketing manager position;
  2. She was humiliated during the meeting where she was told her duties would change;
  3. She was constructively dismissed.

The complainant did not do anything to try and return to work after she was given the impression that her duties were being changed; however, according to the tribunal, it was not her job to:

[58] It was not Ms. LaFleche’s responsibility to mitigate the position Ford unilaterally put her 
in: an atmosphere of humiliation from being removed from her marketing manager position; a 
reasonable perception that Ford did not really welcome back; and an uncertainty of what 
position if any she would return to at Ford: Evans v. Teamsters Local Union No. 31, 2008 SCC 20 
(CanLII), [2008] 1 SCR 661 at para. 30, cited with approval in Morgan‐Hung v. Provincial Health 
Services and others (No. 4), 2009 BCHRT 371 [Morgan‐Hung] at paras. 464‐465. 

[59] The adverse impacts that flowed to Ms. LaFleche, as a result of not being returned to 
her marketing manager position lay at Ford’s feet: Morgan‐Hung at para. 463. 

After finding that discrimination occurred, the Tribunal considered remedies. It awarded the complainant $12,000 for injury to dignity, feelings, and self-respect. It awarded over $66,000 in lost wages after reducing the award by the amount that her employment standards act complaint settled for. This covered a period of time that she was not able to work or find work and that she missed out on maternity and parental leave EI benefits while parenting her second child.

Human Rights Tribunal Finds Marital Status Discrimination Against Employer who Fired Former Employee’s Wife, Awards Compensation Over $70,000

In a decision issued on June 1, 2022, Martin v. Grapevine Optical and another (No. 2), 2022 BCHRT 76, Tribunal Member Devyn Cousineau held that employer Grapevine Optical in Oliver, British Columbia, discriminated against the complainant optician/store manager by terminating her employment one month after her husband quit. Before quitting, the Complainant Mrs. Martin’s husband Mr. Martin had an altercation with the owner of the store. After quitting, he filed a WorkSafeBC claim. Under the BC Human Rights Code, it is discrimination for an employer to refuse to continue to employ someone due to their marital status.

For the first 8 years that the complainant worked at Grapevine Optical, she had a good relationship with the store owner. She planned to work at the store in the long term and potentially buy and take over the business one day. She started working there in 2008. In 2016, her husband was hired to work at the store to relieve her of some of the burden of her workload. This worked okay until around June, 2019.

On or around June 10, 2019, the store owner and the complainant had a disagreement over a sign that was going to be changed at the store. It was a heated exchange. When the complainant went to leave the store with her husband at the end of the day, she said goodbye to the store owner. The store owner did not respond. Her husband made a remark to the store owner about not responding to his wife. The store owner followed the Martins out of the store and onto the street, where he confronted them. The store owner and Mr. Martin were yelling and angry at eachother. Angry words were exchanged. The Martins then left and went home. Mr. Martin filed a worksafeBC complaint for bullying and harassment.

Mrs. Martin attended work the next day and told the store owner that her husband would not be returning. The relationship between Mrs. Martin and the store owner became strained. On July 10, 2019, the store owner and Mrs. Martin had a conversation where the store owner told her he would be taking over all management duties that she previously did. There was disagreement between the parties about whether the complainant quit during the conversation because she asked to be let go, or was fired. The Tribunal found the following about this:

[42] Mr. Fellnermayr says he asked Mrs. Martin twice if she was quitting and she said yes – a 
claim which she fervently denies. I accept Mrs. Martin’s evidence that she would not have quit 
her job, which she was relying on to feed her family. At the same time, it is apparent that Mr. 
Fellnermayr had not completely thought through the natural consequences of his actions. He 
wanted to reassert control over his workplace by stripping Mrs. Martin of most of her essential 
job duties. Whether he intended it or not, this amounted to the termination of her employment. When she accurately perceived what was happening, he made no efforts to reverse or correct what was happening. Instead, he blamed – and continues to blame – her. 

According to the Tribunal, the Respondent was also estopped from arguing that Mrs. Martin quit her job because the Employment Standards Branch already had an oral hearing and determined that Mrs. Martin was fired from her job further to a complaint made under the Employment Standards Act.

Overall, the tribunal stated the following about the discriminatory nexus between Mrs. Martin’s termination and her marital status:

[59] I accept that Mr. Fellnermayr was increasingly unhappy with the dynamic in the workplace and that some of the above issues were factors in that unhappiness. However, I do not accept that these issues amount to a complete explanation for why he suddenly decided to remove all of Mrs. Martin’s managerial responsibilities and terminate her employment. They had worked together successfully for years, and he relied on her heavily. He never took any steps to correct the behaviour before the incident with Mr. Martin. In my view, the factor that pushed Mr. Fellnermayr to take this extreme step was that he perceived he could no longer trust Mrs. Martin because of what had happened with her husband and the subsequent decline in their relationship. This perception was not based on Mrs. Martin’s behaviour at work in the month after the incident, but arose because of her relationship with her husband. The “final
word” in Mr. Fellnermayr’s written submission reveals the event which marked the beginning of the end: “OMG!!! We were changing a sign. How did that get so wild and crazy?” The heated discussion about the sign led to Mr. Fellnermayr not saying goodbye to Mrs. Martin, which led to Mr. Martin making his sarcastic comment, which led to Mr. Fellnermayr following them out onto the street, which led to a shouting match and the end of Mr. Martin’s employment. Mrs. Martin kept coming to work, and doing her job as she had before. But in Mr. Fellnermayr’s mind, this altercation triggered the ultimate decline in a previously positive working relationship, and led to the end of Mrs. Martin’s employment.

[60] Mr. Fellnermayr’s conduct after the termination supports that he viewed at least part of the problem to stem from the fact that he had hired spouses to work for him. This prompted him to implement a new policy prohibiting the hiring of spouses. This supports an inference that Mrs. Martin’s marriage to Mr. Martin was a factor in her termination.

The tribunal decided to award the Complainant wage loss. It declined to award lost wages to the date of the hearing, but award lost wages for the period between July 10, 2019 when the complainant was fired and December 31, 2020 when she started working part-time at a coffee shop, for a total of $50,836.53. The tribunal also awarded $20,000 for injury to dignity, feelings, and self-respect.

BC Human Rights Tribunal Dismisses Employee’s Sex Discrimination Complaint Against VIHA

In a decision issued by British Columbia Human Rights Tribunal Member Devyn Cousineau on March 1, 2022 following a three-day hearing from December 6-9, 2021, an employee’s sex discrimination complaint against the Vancouver Island Health Authority (“VIHA”) was dismissed.

Complainant Suzana Kalyn had a history of making two prior human rights complaints against VIHA, and the tribunal noted at paragraphs 24 and 116 that her decision to do so was not made lightly. Her first complaint against VIHA was for terminating from her position in a male-dominated department due to her “gossiping” and generally being tenacious in raising concerns about discrimination regarding herself and other women (the “First Complaint”). In a decision issued on October 9, 2008, the Tribunal found that Ms. Kalyn’s sex (her identity as a female) was a factor in her termination. It ordered that her position as a protection services officer team leader be reinstated.

Ms. Kalyn made another complaint in the Human Rights Tribunal about VIHA reorganizing and changing her position in 2015 (the “Second Complaint”). Not much information about the Second Complaint is publicly available, as it was ultimately settled.

Ms. Kalyn continued working for VIHA. She oversaw dozens of protection services officers in the south island region. Since her return following the First Complaint, she wanted to advance in VIHA. She sought mentorship and was told that most people moving forward in management roles had Master’s degrees. So she obtained one from Royal Roads University in Health Leadership in 2014. Subsequently in 2014, she applied for a position posting at VIHA titled “Manager, Protection Services.” She was interviewed; however, she did not get the job. It was awarded to a man.

She later applied for 12-14 more positions with Island Health that she was not awarded. Island Health argued that it was because she was not qualified.

In November, 2018, the man who was previously awarded the position of “Manager, protection Services” in 2014 vacated the position. Ms. Kalyn applied. She met all of the qualifications for the position. The Executive Director had Ms. Kalyn and her colleague, who was also a team leader, share the responsibilities of the position while the hiring process was conducted. Both she and her colleague applied. He was a man who did not have a Master’s degree. He was ultimately awarded the position. The job posting required a Master’s degree or “equivalent” experience. VIHA argued that the colleague had equivalent experience. Ms. Kalyn argued that he did not.

Ms. Kalyn and two other applicants, including her colleague, participated in interviews. The interview panel ranked Ms. Kalyn’s performance last out of the three.

The Tribunal held the following about job interviews at para 95:

Interview and hiring processes always carry a degree of subjectivity, and as such are ripe
for unconsciously biased decision making that can favour certain types of applicants over
others. Ageism and sexism are two commonly held biases, as is the bias that tends to associate
white, cisgender, men with strong leadership. While it may not be realistically possible to completely eliminate biases from a hiring process, there are ways to mitigate their potential impact – a number of which were employed in the hiring process at issue here.

The Tribunal summarized its findings as follows:

[104] I understand why Mrs. Kalyn believes that discrimination was a factor in the decision. 
She has worked hard to improve her qualifications and advance within the organization. The 
Position at issue in this complaint is perhaps the management role she is best qualified for, and 
she was humiliated when it was awarded to her younger male colleague. In light of her history 
with Island Health, and feeling that her advancement has not been supported, she reached the 
conclusion that this was another manifestation of discrimination in her employment. 

[105] However, viewing the evidence as a whole, I am not satisfied, on a balance of 
probabilities, that Mrs. Kalyn has proved that her age and/or sex were a factor in the decision – 
consciously or unconsciously. I accept Island Health’s non‐discriminatory explanation as a 
complete explanation for the decision to prefer Mr. L and Mr. Clarke over Mrs. Kalyn. The 
allegation of discrimination is dismissed.

Human Rights Tribunal Awards Employee Over $23K Following Employer Termination Due to Mental Health Absenteeism

In a decision issued on February 16, 2018, the BC Human Rights Tribunal held that an employee was discriminated against when his employer terminated his employment following absenteeism due to his depression and anxiety (considered mental disabilities per the BC Human Rights Code).

The Complainant was a shop helper employee in the fabrication department of the Respondent employer Axton Inc, a global heavy industry manufacturing company. Soon after he started working there in 2019, he began missing work due to his depression and anxiety. He was reluctant to disclose this to the employer due to the stigma surrounding mental health conditions. When he became completely disabled from working for a period, he decided to disclose the depression and anxiety. Rather than inquiring into whether he had a mental health condition disabling him from working and accommodating that condition, the employer terminated his employment.

Axton argued that it terminated the Complainant’s employment before it knew or reasonably ought to have known that he had a mental disability. Alternatively, it argued that it accommodated his disability to the point of undue hardship.

The Complainant was 34-years-old at the time of the hearing. He had suffered experienced symptoms of depression and anxiety for most of his life. Following a significant personal loss in 2017, he was diagnosed with Anxiety Disorder and Major Depressive disorder and treated for same starting in 2018.

The Complainant started work in February, 2019. He began leaving work early and missing work soon after that. There were occasions when he did not call in to the workplace to report his absence because of his anxiety and depression symptoms and trying to find a tactful way to explain it. His last day of work was in March, 2019. His anxiety and depression symptoms made him unable to continue attending. He had only mentioned “personal issues” to the employer before that. He had not yet disclosed his disabilities.

A couple of weeks after the Complainant’s last day attending work, the employer sent the Complainant an email asking how he was doing because they had not yet heard from him. The Complainant called a representative for the employer later that day and explained that he was dealing with mental health issues. The Complainant later sent an email confirming that he was dealing with mental issues and did not know when he could return to work, but that he liked his job and wanted to return.

The employer later terminated the Complainant’s employment without making further inquiries about whether he might be experiences issues relating to a mental disability.

The Tribunal held that there was a nexus between the Complainant’s disability and the adverse impact he experienced (job termination) because he was terminated due to absenteeism and the absenteeism was mostly due to the disability. Discrimination was thus established.

The Complainant was awarded $75 for the cost of his steel toed boots that were left at the workplace and not returned to him. In awarding the Complainant $20,000 in compensation for injury to his dignity, feelings, and self-respect, the Tribunal recognized at paragraph 115 that termination is considered the “ultimate employment-related consequence” and that the loss of employment warrants compensation at the high-end of the range.

The Complainant had gone on EI sickness benefits from the time of termination to August, 2019 and then started to look for work in September 2019 before starting a new job in October, 2019. The Tribunal awarded him lost wages for the 4 weeks that he spent looking for work as well as for the difference between incomes at the two jobs for a period of one week. The total wage loss awarded was $2,962.50.

The Tribunal also ordered that the employer take remedial steps regarding the discrimination and pay the Complainant costs in the amount of $250.

BC Cruise Ship Worker Awarded Damages Over $33,000 by Human Rights Tribunal Following Sexual Assault

**trigger warning – discussion of sexual assault**

In a decision issued by BC Human Rights Tribunal Member Emily Ohler today, it was held that a cruise ship carpet installer was discriminated against contrary to the BC Human Rights Code when he was sexually assaulted at work by his supervisor.

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.

Survivor Stories Project Shares Multiple Accusations of Sexual Harassment, Abuse, and Assault Perpetrated by Former Victoria Restaurant Employee

image property of https://vancouverisland.ctvnews.ca/victoria-restaurant-fires-employee-following-allegations-of-sexual-assault-1.5291169

TW: sexual violence

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.

The Victoria police have also taken to social media to state that they are ready to hear survivors about the alleged assaults.

MacIsaac & Company is currently investigating potential claims regarding this matter.

Province Ordered to Compensate Former Corrections Officer Over $964K Following Racial Discrimination

image property of CBC news: https://www.cbc.ca/news/canada/british-columbia/corrections-officer-compensation-north-fraser-1.5893104

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.

The tribunal’s initial decision of July 4, 2019, which found that discrimination occurred, 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.

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.

BLACK LIVES MATTER! BC Human Rights Tribunal Finds Discrimination Against BIPOC

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.

Case Summaries

Balikima obo Others v. Khaira Enterprises and Others, 2014 BCHRT 107 (“Balikima“)

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.

Smith v. Mohan (No. 2), 2020 BCHRT 52 (“Smith“)

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.

Campbell v. Vancouver Police Board No 4, 2019 BCHRT 275 (“Campbell“)

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.

Francis v BC Ministry of Justice (No 4), 2019 BCHRT 136 (“Francis“)

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

Baratunde
Captured from https://www.ted.com/talks/baratunde_thurston_how_to_deconstruct_racism_one_headline_at_a_time#t-4129

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.”

Regarding the case of Balikima, one news article read: “Tree-planters endured slave-like conditions, lawyers tell BC rights body.” It might be broken down as something like this:

Corporate Employer (Allegedly) [subject]

Creates Slave-Like Conditions for [action]

(Black) Tree-Planters [target]

Trying to Make a Living at Tree Farms [activity]

An alternative, more inclusive reality and version of that article might read something like this:

Corporate Employer [subject]

Creates Profit-Share Model with [action]

Black Tree-Planters [target]

Trying to Make a Living at Tree Farms [activity]

There were also several news articles related to the case of Smith. One of them was titled “Landlord who tried to evict Indigenous woman for smudging ceremonies ordered to pay $23K.” The first part of that could be broken down like this:

Landlord [subject]

Tries to Evict [action]

Indigenous Woman [target]

For Smudging [activity]

Why not a different action/story/system/reality? It might look something like this:

Landlord [subject]

 Sends dinner invite to [action]

Indigenous Woman [target]

For Smudging [activity]

These are just some examples of how we may create a more inclusive climate for BIPOC in BC.

Tribunal Awards Over $38,000 Damages to Esquimalt Denture Clinic Employee Fired Following Sexual Harassment

sexual harassment at work, office woman and her lustful boss

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:

  1. $11,796.04 for wage loss and wage differential that flowed from the discrimination;
  2. $1,612 for expenses associated with the hearing; and
  3. $25,000 for injury to dignity, feelings, and self-respect.

Tribunal Denounces Use of Prior Sexual History as Consent Defence and Orders Employer pay over $40,000 Damages for Sexually Assaulting House Cleaner

AdobeStock_186130511

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:

  1. $4,300 to replace the income MP would have earned from JS but for the discrimination;
  2. $49.98 for antidepressant medication;
  3. $106.50 for MP’s parking expenses to attend the hearing; and
  4. $40,000 for injury to dignity, feelings, and self-respect