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Human Rights Tribunal Finds BC Child Protection Agency Discriminated, Awards Afro-Indigenous Mother $150,000 Compensation

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In a recent decision, the BC Human Rights Tribunal held that an Indigenous mother was discriminated against in her interactions with a child protection agency that retained custody of her children and strictly restricted her access to them for nearly three years. The mother was awarded $150,000 as compensation for injury to her dignity, feelings, and self-respect. This is the second highest award under this category in the tribunal’s history.

Governments in what’s now called Canada have interfered with the relationships between Indigenous caregivers and their children for generations. First, governments, police, and churches forcibly removed children from their homes and families and brought them to residential schools. Then there were the Sixties and Millennium Scoops. Indigenous children in care continue being overrepresented and underserved.

Indigenous families have also been resisting these colonial efforts at assimilation for generations. The Vancouver Aboriginal Child and Family Services Society (“VACFSS”) was meant to be one means of combating the the colonial and racist problems with child “protection.” The purpose of VACFSS was to apply a restorative child welfare model. However, it remains bound by provincial child welfare legislation.

Over 21 days spread out in 2020 and 2021, the BC Human Rights Tribunal Member Devyn Cousineau heard a complaint from an Afro-Indigenous mother, “RR,” that the VACFSS discriminated against her on the basis of her Indigeneity, race, ancestry, colour, and mental disability, in violation of section 8 of the BC Human Rights Code. In a decision issued on November 22, 2022, the Tribunal held that VACFSS discriminated against the complainant mother.

The Tribunal described RR as follows:

RR is a racialized Afro-Indigenous woman. She is the single mother of five children, one who passed away too soon and three who have complex needs. She has a low income and insecure housing. She is an inter-generational survivor of residential schools with disabilities stemming from trauma. She is resourceful, affectionate, a leader in her community, connected to her culture, and loves her children.

According to the Tribunal, VACFSS apprehended RR’s fourchildren for nearly three years and strictly regulated her access to them in a discriminatory way. It held as follows:

For the reasons that follow, I find that VACFSS discriminated against RR. VACFSS’s decisions to retain custody and restrict RR’s access to her children were informed by stereotypes about her as an Indigenous mother with mental health issues, including trauma, and her conflict with the child welfare system. Because of RR’s Indigeneity and trauma, she had a heightened need to be empowered and included in decisions respecting her children and to have complete, ongoing, and accurate information about their wellbeing. Instead, VACFSS responded to her with escalating assertions of power and control, reducing and suspending her access to the children, limiting her communication with their caregivers, and ultimately prolonging their time in care. I find that VACFSS did not have reasonable grounds to continue custody and that none of these adverse impacts can be justified as reasonably necessary to protect RR’s children.

In issuing its decision, the Tribunal made several important findings. Of note, it found that the VACFSS did not have reasonable grounds to believe RR’s children were in need of protection. The Tribunal held as follows about the VACFSS:

Its focus on RR’s trauma, mental health, and relationship with the child welfare system was not related to the actual impact of these characteristics on her children. Rather, it rested on stereotype and assumptions about RR as a parent, and conflict with RR that was connected to her Indigeneity and required accommodation.

According to the Tribunal, VACFSS’s records and evidence in the hearing demonstrated “numerous comments about RR that were derogatory and judgmental.

Further, the Tribunal held that the VACFSS failed to adequately respond to RR’s needs as an Indigenous mother. RR had a negative experience in her interactions with VACFSS because of her Indigeneity and trauma and these impacts led to conflicts with VACFSS. RR did not understand or accept the child protection concerns that VACFSS had and lost trust that VACFSS was working toward returning her children to her in good faith, so resisted. The Tribunal recognized that in these circumstances, Indigenous families sometimes respond by retreating and giving up. RR instead chose resistance. And this resistance “required a human rights response.” Instead, VACFSS “wrongly conflated RR’s resistance with her ability to safely parent her children.” The Tribunal recognized that this pattern was not new and was reflective of the way the state-sanctioned system treated parents in the context of residential schools. It’s a continuing discriminatory trend in the child protection system.

Lastly, the Tribunal Held that VACFSS’s were not reasonable or justified.

In deciding to award RR $150,000 for injury to her dignity, feelings, and self-respect, the Tribunal stated as follows:

Throughout this time, RR was excluded from key parts of her children’s young lives, including their education. She did not see any report cards, she did not get them dressed for picture day, or see a class photo. She was alienated from their school, whose administrators were told at various points to phone the police if she was seen at the school. She was given little information about their lives, which stoked her worst fears. She learned about many significant things that happened to her children, including the level of violence and dysregulation they were experiencing in the Hollyburn residence, for the first time in this hearing.

The Tribunal also reminded child protection agencies of the great responsibility that comes with their power:

As I have explained, the power that VACFSS exercises as a child protection agency is almost unparalleled in Canadian society: the power to take a person’s children based on an allegation. With such power comes a grave responsibility to exercise its duties free of discrimination. As this case demonstrates, the consequences for failing in that responsibility could not be more severe – for the parent and for the child. In my view, the extraordinary power that VACFSS exercises within its mandate is a factor which weighs in favour of a higher
award.

Some of RR’s feelings were described by the tribunal as follows:

RR was pushed to the brink of hope: “It’s hard to even have hope when you don’t have your children with you. It’s hard to even want to live anymore when you don’t have your kids”. She felt labelled as “another single mother drunk Indian that’s basically disposable” and who would “end up giving up for her kids”. She described the feeling of “so many different fresh workers coming on and they all have an opinion about me”. By the end of the period in the complaint, she says:

I was emotionally, mentally, and physically and emotionally, just exhausted. Like I felt like I was under water and VACFSS is sitting here on a rowboat, and sitting here watching me drown and not even helping me and I’m swimming and trying to catch a breath and trying to breathe. And I’m not getting any help, or … support. I felt like I was drowning.

The injury to dignity award was the second highest ever awarded at the BC Human Rights Tribunal. The Tribunal decided it should be high because the complaint was unprecedented, and it exposed systemic forces of discrimination and their profound impacts on an Indigenous mother.

The Tribunal also ordered VACFSS pay RR $5,000 as costs for improper conduct because it disclosed critical documents late and its former counsel briefed a witness on the evidence of other witnesses who testified before them.

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

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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.

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

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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.

Disability Accommodations and the Limits of the COVID-19 Vaccine Card Orders

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Will service providers bear a duty to accommodate people unable to get vaccinated due to their disabilities? The uncertainty surrounding the question is discussed in my post regarding the lack of accommodation for unvaccinated people with disabilities in the new public health orders requiring proof of vaccination. It may depend on whether the mandatory vaccination card orders apply. This post provides information on the limits of the orders’ applicability.

The BC Government Website has their own summary of where and when the orders apply here. It is only a summary. The website is not the law itself. This post offers information on what is stated in the orders. It is only legal information and should not be taken as advice.

General Organization of the Orders

Service providers and unvaccinated potential service users are likely to be confused about exactly who can attend what facilities and services, when. The government announcement on August 23, 2021 framed the vaccination passports as being required primarily at “non-essential” services. However, the orders are framed differently. One order applies to post-secondary housing (the “Post-Secondary Housing Vaccine Order”), the second to food and liquor service premises (the “Food and Liquor Services Vaccine Order”), and the third to “gatherings and events” (the “Gatherings and Events Vaccine Order”). Together, I will call these the “Orders.”

Determining whether one of these orders applies, from a strictly legal standpoint, is not so much about determining whether the service is essential or non-essential. With respect to the third order, the determination is about whether the service constitutes an event or gathering covered by the order.

Who the Orders do not Apply to

The orders do not apply to people who are under 12-years of age.

These three orders do not require employees/staff to have a vaccine passport (unless, for example, the staff member attends a restaurant as a patron, or a faculty member lives in university housing). They are directed at residents who reside in post-secondary housing, patrons of food and liquor serving premises, and persons who attend “events” as participants.

However, note that there are two other provincial health officer orders (here and here) that do require proof of vaccination for health care workers in long term care and assisted living facilities, private hospitals, and provincial mental health facilities. Those two orders do not specifically provide for disability accommodations on human rights grounds, although human rights protections may still exist.

Post-Secondary Housing Exceptions

The order regarding vaccine card requirements in post-secondary housing applies to most student housing at universities and colleges in British Columbia.

As per the definition of “post-secondary housing” in the order, “family or apartment housing” for students is not included. As such, it seems that the Post-Secondary Housing Vaccine Order is mainly meant to target dorms rather than family on-campus housing and apartments.

Food and Liquor Services Exceptions

The Food and Liquor Services Vaccine Order applies to food establishments that have table service/patron seating. Restaurants (including buffets) and cafes with table service are included. Food primary or liquor primary establishments such as pubs, bars, lounges, night clubs, private clubs, and liquor manufacturing facilities with tasting rooms or private seating are included.

According to the preamble of the Food and Liquor Services Vaccine Order, paragraph M, it does not apply to:

Gatherings and Events Applicability

The Gatherings and Events Vaccine Order mandates proof of vaccination for participants in certain indoor “places” where “events” are held.

Applicable Places

A “place” is defined in the order as a venue, including the following places (but not including a “private residence”):

**vacation accommodation is defined in the order as: a house, townhouse, cottage, cabin, apartment, condominium, mobile home, recreational vehicle, hotel suite, tent, yurt, houseboat or any other type of living accommodation, and any associated deck, garden or yard, in which a person is residing, but which is not the person’s primary residence.

Applicable Event Purposes

The Gatherings and Events Vaccine Order defines “event” so that the order only applies to activities happening at places for the following Applicable Event Purposes:

For some clarity, the definition of “event” in the vaccine card portion of the order stipulates that the following event types constitute events held for the Applicable Event Purposes:

a ticketed sports activity, concert, theatrical production, dance or symphony performance, festival, conference, convention, trade fair, home show, workshop, wedding reception, funeral reception not at a funeral home, and a sponsored, ticketed party

Number of Participants Involved

When it comes to having to provide proof of vaccination, the Gatherings and Events Order only applies to “gatherings” of participants in the activity. Exactly what “gathering” means is not set out in the order, but, presumably, there would need to be more that one participant involved in the activity for it to constitute a gathering.

As described above, when the event constitutes a gathering of 50 or less people and is not for the purpose of “an adult sports activity” or “an exercise, fitness or dance activity or class,” the Gatherings and Events Order does not apply.

Inside v. Outside

As per section D. 2. of the order, proof of vaccination applies only to activities occurring inside. Per section A.2. of the order, an event held in a tent with two or more sides is an inside event, and per section A.3., an event held in a tent without sides is an outside event. It’s unclear whether the definitions regarding tents and inside and outside events apply to the proof of vaccination section of the order. Either way, for proof of vaccination requirements to apply, the activity needs to be happening inside.

Specific Exceptions

The Gatherings and Events Vaccine Order includes a specific list of who and what activities it is not meant to apply to in the preamble at paragraph L. The specific exceptions are as follows:

Summary Checklist

Taken together, the following checklist describes the conditions that need to be met for the Gatherings and Events Vaccine Order to be applicable:

If any of the conditions of the checklist are not met, the Gatherings and Events Vaccine Order likely does not apply.

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

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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

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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.

Disability Discrimination Complaint Against Maple Ridge Hyundai Dismissed

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Cardiff, UK: June 02, 2020: Hyundai Car Dealership. The Hyundai Motor Company, commonly known as Hyundai Motors, is a South Korean multinational automotive manufacturer. Illustrative Editorial

In reasons released today regarding the case of Verozinis v Kot Auto Group dba Maple Ridge Hyundai, 2020 BCHRT 156, Tribunal Member Norman Trerise dismissed a human rights complaint against the Hyundai car dealership located in Maple Ridge, BC.

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.

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

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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

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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

ER Staff “Game” of Guessing Indigenous Patients’ Blood-Alcohol Levels is Potential Human Rights Code Violation

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Fontaine

CEO Daniel Fontaine of the Métis Nation of British Columbia (MNBC) and the British Columbia Association of Aboriginal Friendship Centres (BCAAFC) advised  the BC government this week that they have heard emergency room health care staff are playing a “game” of guessing the blood-alcohol concentration levels of Indigenous patients. The allegation became public today, when Provincial Health Minister Adrian Dix held a news conference to advise that he had been made aware of the allegations yesterday and the MNBC issued a media release stating that the “game” is unacceptable.

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:

  1. A public inquiry into Indigenous specific racism in health care in B.C with a focus on hospitals and emergency departments.
  2. 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.
  3. Commit to structural and systemic changes to dismantle indigenous specific racism to ensure culturally safe health care experiences for Indigenous people.
  4. 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.

Tribunal Dismisses Complaint Against Strata for Discrimination in Addressing Noisy Neighbour Situation

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annoyed stressed woman covering her ears, looking up loud noise upstairs

In his reasons issued on June 16, 2020, BC Human Rights Tribunal Member Paul Singh dismissed a complaint against a strata for allegedly failing to enforce a noise bylaw against the complainant’s neighbours because of her sex and marital status. The complaint was made under section 8 of the BC Human Rights Code, as strata councils are considered to be providers of accommodation, services, or facilities customarily available to the public.

The complainant owns a condo in a strata. She alleged that the residents in the unit above hers were too loud. According to the Tribunal, several actions were taken by the strata and neighbours in an effort to address the complainant’s concerns. The strata:

  • sent caution notices to the upstairs neighbours,
  • conducted noise inspections,
  • tried to arrange a mediation and other voluntary dispute resolution processes between the neighbours and the complainant,
  • included a note in strata council meeting minutes to keep residents aware of the noise issue,
  • sent out “good neighbour” noise notices to all unit owners in the building,
  • sent a letter to the upstairs neighbours suggesting a change of flooring,
  • adopted a bylaw regarding installation of underlay for new flooring to reduce noise, and
  • retained an engineer to determine whether any structural deficiencies existed between the units.

The upstairs neighbours apparently changed their flooring and started wearing slippers.

The Complainant argued that all of these measures were inadequate.

She alleged that her sex and marital status were a factor in the strata’s failure to adequately address her noise concerns. She thought this was the case because of an exchange she had in the building’s parkade with a strata council member who said something to the effect of “you shouldn’t have to put up with that because you are a single woman.” She said that aside from the discrimination which should be inferred from the comment in the parkade, there was no other explanation for why the strata “did nothing” over three years.

The Tribunal held that there was no reasonable prospect of the complainant succeeding in showing a nexus between her sex or marital status and any adverse impact she experienced from the noise in her unit. It held as follows at paragraph 59 of the decision:

The Respondents do not specifically deny that the Comment was made to Ms. Dolinsky. However, the Comment, even if made, cannot reasonably be seen as anything other than an offhand remark made during a brief, casual conversation. A Strata Council member telling Ms. Dolinsky that she should not have to put up with noise issues because she was a “single woman” is simply not sufficient to establish discrimination under the Code given all the steps the Strata had taken through the years to help address and ameliorate Ms. Dolinsky’s noise concerns.

The Tribunal also held the following at paragraph 62:

…it is not the Tribunal’s role to assess the merits of a strata’s management decisions for its building, including the process for investigating and enforcing bylaws, so long
as those decisions are not used as a pretext for discrimination. What concerns the Tribunal is only whether a characteristic protected by the Code was a factor in these decisions: Li v. Options Community Services and others, 2020 BCHRT 104 at para. 84.