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

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.

Maintaining a Discriminatory Status Quo is not Always Cheap: Tribunal Finds Bookshop’s Failure to Arrange for ASL Interpreters at Free Workshop Discriminatory, Awards Complainant $2,500

In a decision issued by the BC Human Rights Tribunal on August 11, 2022, Tribunal Member Devyn Cousineau held that a bookstore discriminated when it failed to provide American Sign Language (“ASL”) interpreters for a man who attended a free workshop and is DeafBlind.

According to the decision, Complainant Craig MacLean requested that Respondent Black Card Books pay for ASL interpreters to accompany him to a three-day workshop in October, 2018 in Vancouver, BC regarding writing and publishing books. The bookstore declined. It suggested that the complainant bring his own interpreters and provided the complainant with the workshop materials in print format. Mr. MacLean attended the workshop without interpreters. He was not able to understand the presentations or communicate with other participants.

In British Columbia, persons with characteristics listed in the BC Human Rights Code (including physical disability) are protected from discrimination when they are accessing publicly available services. To make out a complaint regarding services successfully, complainants must show that they have a protected characteristic, that they experienced a negative impact in relation to the services, and that there was a connection between their protected characteristic and the negative impact. Once this is proven, the respondent needs to justify the impact to avoid a finding against them.

In this case, the complainant showed that there was a connection between his disabilities and his adverse experience at the workshop. He cannot hear and he has a small range of vision within which he can see things up close. To communicate in person, he requires ASL interpretation. Usually he has two interpreters sit close to him to communicate. He did not have the interpreters at the workshop and so was not able to understand the material or communicate. He arrived in what seemed like a large dark room where there were around 100 attendees. This made the room difficult for him to navigate visually. He felt excluded and disheartened.

In finding that Mr. MacLean experienced an adverse impact, the tribunal noted the following at paragraph 22:

As the Supreme Court of Canada has recognized, “the disadvantage experienced by deaf
persons derives largely from barriers to communication with the hearing population”: Eldridge
v. British Columbia (Attorney General), [1997] 3 SCR 624 at para. 57. To enjoy equal access to
public services, a DeafBlind person may require that information be communicated in a
different way than for people who are not DeafBlind. This principle is at the heart of human
rights legislation, which is intended to examine “the way institutions and relations must be
changed in order to make them available, accessible, meaningful and rewarding for the many
diverse groups of which our society is composed”

Once the Tribunal found that the complaint experienced an adverse impact in connection with his disabilities, the Respondent Black Card Books needed to demonstrate that it did everything necessary and practical to accommodate Mr. MacLean and anything more would have amounted to undue hardship. Black Card Books was unsuccessful. When the complainant initially asked for interpreters and the respondent told him he could arrange his own, he offered to send the respondent an invoice. The respondent would not agree to pay. They said they would not pay because the event was free. It should be noted that the respondent’s purpose for putting on the event was largely to entice attendees into buying their publishing program, which cost around $35,000. It only made one sale at the event, which according to the respondent witness’s testimony, did not cover the costs of putting on the event.

In considering whether the respondent proved undue hardship, the tribunal held at paragraph 27 that the issue is not whether an accommodation costs money. Usually accommodations cost money. It will always seem cheaper to maintain the status quo. The question is whether the cost is undue, considering factors like the respondents’ size, economic conditions, and available funds. The Tribunal held the following at paragraph 27:

I accept that paying for ASL interpreters would have increased the cost of putting on the
workshop. But that does not end the analysis, because “[i]t will always seem demonstrably
cheaper to maintain the status quo and not eliminate a discriminatory barrier”: VIA Rail at para.
225. The Human Rights Code requires service providers to meaningfully assess the cost of a
required accommodation before concluding that it is too expensive. “Impressionistic evidence
of increased expense” is not enough: Eldridge at para. 41. Ultimately, the issue is not whether
an accommodation costs money – it often does – but whether that cost is undue, considering
factors like the respondent’s size, economic conditions, and available funds: Dunkley v.
University of British Columbia, 2015 BCHRT 100 at para. 427

The Respondent did not demonstrate that the cost was undue because it did not investigate whether it could afford the cost before refusing to pay it. The store did not make inquiries about what ASL interpreters would be available in Vancouver, how much they would cost, and how that would affect their event budget and the company’s overall financial situation. Further, the offer of allowing the complainant to bring his own interpreters was not reasonable because it put the entire burden of accommodation on the complainant. This would require the complainant to “assimilate into a service that was not designed for him, rather than requiring the service to adapt to meet everyone’s needs.” That would be inconsistent with the purposes of the Human Rights Code, which is meant to ensure that services are inclusive and accessible.

After finding that discrimination occurred, the Tribunal decided to award the complainant $2,500 as compensation for injury to his dignity, feelings, and self-respect. The tribunal also ordered that the respondent provide the complainant the opportunity to participate in the workshop with the interpretation services of his choice.

Human Rights Tribunal Finds Disability Discrimination by Housing Co-Op Inadequately Addressing Mould, Awards Complainant Over $20,000

In a decision issued on June 1, 2022, Cameron v. Burrardview Housing Co-operative (No. 3), 2022 BCHRT 74, BC Human Rights Tribunal Member Grace Chen held that a housing co-operative discriminated against a member resident when it failed to adequately address issues of moisture and mould that exacerbated the resident’s physical disability. This was physical disability discrimination in services under section 8 of the BC Human Rights Code.

The Respondent housing co-op did not deny the presence of mould in the unit, but denied discriminating.

The complainant had advised the co-op that there was mould in her bathroom which was effecting her health. The co-op hired a company to investigate and the company found that there was a small amount of mould in the townhouse. It made recommendations regarding what had to be done to prevent mould from continue to grow. The complainant hired another company to inspect the air afterwards and that company found a “significant presence of mould and the high potential for health issues in correlation with long term exposure.” The complainant was subsequently diagnosed with a mould allergy. The doctors who saw her found that she had rhinosinusitis, sensitization to mould, hypersensitized airways, and allergy to mould. These were caused by the mould inside her home.

The co-op attempted renovations to remove the mould; however, the tribunal considered them inadequate and not done in a timely enough manner.

The tribunal held that the rhinosinusitis, sensitization to mould, hypersensitized airways, and 
allergy to mould were disabilities covered under the BC Human Rights Code. The tribunal also held that the mould exacerbated her disability, which was considered an adverse impact.

Regarding whether the mould was related to the disability, the tribunal held as follows:

[99] Overall, I find the medical evidence shows Ms. Cameron’s disability is related to the 
mould in her home and that the mould exacerbated her disability. Dr. Stepaniuk’s comment 
does not dissuade me given the other doctors arrive at a different conclusion. While there is 
not enough evidence to show the mould caused her disability, I am persuaded that nexus has 
been established because the medical evidence shows the mould contributes to her disability 
symptoms. 

Regarding the connection with her disability, the tribunal also held the following:

[104] However, I find Burrardview indirectly discriminated against Ms. Cameron when she 
reported in 2016 that her health was being affected by the mould and Burrardview did not act, 
but acted in 2017 when another unit complained of mould. I find the nexus is proven between 
the differential treatment and her disability. 

The Tribunal also held that the housing co-op failed to accommodate the complainant’s disability, stating as follows:

[137] This situation has turned into a battle of mould inspection reports. Ms. Cameron does 
not trust Burrardview or its experts. The experts she retains produced different results than 
Burrardview’s experts. I cannot conclude the final Metro report and final remediation is the last 
reasonable and practical step that Burrardview has taken to the point of undue hardship. Given 
that Ms. Cameron gave evidence that the problem returned, at the very least, there should be 
some follow up on that, and there is no evidence of Burrardview addressing this. 

[138] I find Burrardview has not taken all reasonable and practical steps to accommodate Ms. 
Cameron to the point of undue hardship and has not discharged its duty to accommodate. 

It ordered that the respondent pay for some of the expenses the complainant incurred in relation to retaining the reports. It also ordered the co-op pay the complainant $20,000 for injury to dignity, feelings, and self respect.

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.

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

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.

Vancouver’s Toscani Coffee Bar Ordered to Pay $4,000 for Racial Discrimination in Refusing Service

In a decision issued on February 24, 2021, the BC Human Rights Tribunal held that the owner of Vancouver’s Toscani Coffee Bar discriminated against four complainant patrons based on their race when she refused one of them service and referred to him and his friends as “you Arabs.”

Each of the four complainants had previously immigrated from North Africa to Canada. They speak Arabic and identify as having Arabic ancestry. The coffee shop owner is a woman of colour who was raised in a Muslim family in Indonesia. One of the complainants told the owner’s Italian husband, who also works at the coffee shop, that they were unhappy with her service. The owner felt that a few of the complainants were disrespectful towards her in her own business.

On July 8, 2019, the store owner refused to serve one of the complainants, as she did not desire to serve someone who did not want to be served by her. The owner and complainant then spoke outside. Tribunal Member Devyn Cousineau accepted the complainant’s evidence about the conversation. According to him, the owner said “I don’t want you Arabs here, and you should tell your friends that I don’t want you here. You are not welcome anymore.” The tribunal accepted the owner’s explanation for refusing service as well, stating as follows:

[32] I accept Ms. Conforti’s explanation for why she told Mr. Haouas, Mr. Gharbi and Mr. Ben Maaouia that she would not serve them. She felt they had disrespected her in her own business. She understood that they had talked to others about not wanting her to serve them, and that she was simply granting their wish. She was frustrated that they did not recognize her authority in her own business and went around her to her husband for service or to complain about her. As an immigrant woman of colour raised in a Muslim household, running a business that serves immigrants from all over the world, I accept that Ms. Conforti did not refuse to serve the Complainants because they are Arab.

It was therefore accepted that the owner did not refuse service due to the complainants being Arab. That did not end the matter, however. Discrimination occurred nevertheless because a racial comment was connected to a negative effect on the complainants. The Tribunal held the following about this:

[34] In a discrimination complaint, it is not the respondents’ intention that matters but the effect of their behaviour: Code, s. 2. In this case, the effect of Ms. Conforti’s words was to connect the Complainants’ Arab ancestry to her communication that she would not serve them. The discriminatory words were “spoken at the very same time and place” as she told Mr. Haouas she would not serve him, and they were “inextricably linked” to that communication: Gichuru v. Purewal, 2019 BCSC 484 at para. 484. The effect was discrimination.

For injury to their dignity, feelings, and self-respect, the Tribunal awarded $1,000 to each of the four complainants.

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.