employment law

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

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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

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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.

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

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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

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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.

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.

Employee Awarded Over $23,000 for Employer’s Withholding of Work when Jealous of her Sexual Relationships with other Men

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Young woman on scaffolding by roof

Tribunal Member Emily Ohler issued her reasons on June 10, 2020 for allowing a woman’s complaint regarding sexist discrimination in employment and retaliation.

The complainant LL had worked for a roof repair company from 2009 to 2017. She and the owner of the company, DM, began a personal, sexual relationship around 2011. Following an eight-day hearing, the Tribunal held that although DM did not exploit LL’s reliance on him for work by making work conditional upon her having sex with him, he did “impose adverse employment-related consequences on LL for issues arising from their personal relationship rather than the employment sphere,” and that LL’s sex was a factor in these consequences. The Tribunal also held that DM retaliated against LL in breach of section 43 of the BC Human Rights Code by texting a link to a pornographic video LL appeared in to her cousin and others.

DM had a wife who did not like LL. At some point, he apparently confided in LL about his unhappiness at home with his wife. And then the relationship between LL and DM began. LL’s evidence was that she never enjoyed having sex with DM or wanted him to leave his wife for her, but went ahead with the relationship because she thought she needed to in order to work for DM. DM’s evidence was that LL was a manipulator who used her sexuality to exploit him for financial and other benefits.

At paragraph 72, the Tribunal stated the following about the facts:

While I accept that LL exercised a high degree of autonomy and independence in her own life as well as in her relationships with the Respondents, as I will discuss further below, it is clear to me that DM understood how to exercise his own kind of control in the relationship when he became jealous or had his feelings hurt. As I will discuss, he did so by not showing up when LL counted on him, reclaiming the cars that he had given her, or – central to this complaint – withholding work.

At paragraphs 134 and 135 of the decision, the Tribunal Member sets out how DM imposed adverse employment-related consequences on LL when he was jealous about her having other men in her life:

[134] I do, however, find that there were occasions on which DM withheld work from LL when he became jealous or his feelings were hurt. On this point, I accept that LL sought to ‘keep DM happy’ in the relationship in part to avoid such repercussions. While it is undisputed that she derived a number of benefits from the personal relationship, I accept that she could not have normal relationships with other men in the way that she wanted to and that the possibility of a
fight with DM impacting her work adversely impacted her.

[135] In particular, on a balance of probabilities, in the context of the evidence of both LL and DM, and LL’s journal entries, I find that on the day of the February 2016 Incident in 2016, and on September 22, 29, and October 22, 2017, DM either did not pick LL up or did not tell her about where to go for work, and that he did this specifically in response to his feeling jealous about other men in LL’s life.

The tribunal stated the following about why these actions were in breach of the Human Rights Code:

[175] I am satisfied that LL has met her burden on a balance of probabilities in establishing that she experienced an adverse impact in her employment related to her sex. In Araniva v. RSY Contracting and another (No. 3), 2019 BCHRT 97 [Araniva], the Tribunal found that an employer’s decision to reduce an employee’s hours of work because the employee declined an invitation to socialize with him constituted a breach of s. 13 on the basis of sex. Here, DM’s jealousy over LL’s sexual relationships with other men cannot be extricated from her sex. DM imposed employment‐related consequences because that was one place where he had power
over LL when his feelings were hurt in their personal relationship.

…

[181] While I have not found that DM coerced LL into sex with the promise of work, I do find that DM periodically withdrew or withheld work when he became jealous or, in his words, his feelings were hurt, by LL’s standing him up or being with other men. This is, in fact, undisputed. DM explained that he loved LL, and so his feelings would be hurt when LL spurned him by not seeing him or by seeing someone else. DM would deny LL work simply because he stopped speaking to LL entirely during these periods when his feelings were hurt. This is not a defence, but an admission. DM was the boss. If DM’s feelings got hurt because he loved LL, with whom he was in a sexual relationship, it was his responsibility to put those feelings aside and treat LL fairly in the workplace regardless.

After LL filed the complaint, DM sent her cousin a pornographic video that she had appeared in many years ago when she was 19 years old. He knew the video upset her and would bring it up when he was angry at her.

Ultimately, the Trinbunal awarded LL $640 damages for the days it ruled she was denied work due to DM’s jealousy. It also awarded the complainant $15,000 for injury to her dignity, feelings, and self-respect in relation to the discrimination complaint and $7,500 for the retaliation.

The Tribunal stated the following about the retaliation damages:

It takes courage to file a complaint. In particular, LL’s complaint required her to publicize highly private, intimate details about her life. I view DM’s actions, taken in the context of his comments that the video showed people that LL is a “nasty” person, as depending upon and looking to further stereotypes about women generally and sexually active, sex‐positive women in particular. He wielded this as a weapon in response to his anger about LL’s complaint. Such actions must be discouraged.

Human Rights Tribunal Rules Burden on Mother to Consider Non-Corporate, Home-Based Daycare as Solution to Work Schedule/Childcare Conflict

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child plays with wooden blocks with letters on the floor in the room a little girl is building a tower at home or in the kindergarten.

In reasons issued on June 5, 2020, the BC Human Rights Tribunal dismissed the complaint of a Pacific Blue Cross (PBC) employee who alleged that her employer failed to accommodate her in relation to her family status.

The complainant was a team leader in PBC’s customer service department. She had just returned from maternity leave, which was already cut short due to a childcare issue.

Childcare can be difficult to find in BC. As parents of young children know, you often need to put your child on a childcare wait list, especially if you are looking to get them into childcare as an infant. It can take over a year to get off of a wait list. As a result, some parents in BC put their children on childcare wait lists before they are even born. Once your child’s turn on the wait list comes up, you need to choose to either put them in care or lose your spot.

Thus, when a spot became available for the complainant’s child at 10 months old, she decided to take the opportunity to get him into the facility and go back to work for PBC. Her office was in Burnaby and her home and childcare facility were in Langley. With traffic, the commute can be between 45 and 90 minutes.

The complainant’s work schedule prior to her maternity leave ended at 4:30pm and she understood it would continue to end at that time when she returned. Her son’s childcare required pick up by 6:00pm.

When she returned to work, she was told that her schedule would change to require her to work until 5:00pm for one week every four weeks. The complainant told PBC that she could not do this because it would not allow her time to reliably pick up her child by 6:00p.m. She expected PBC to accommodate her childcare schedule. They did not. As a result, she filed a human rights complaint asserting that she was discriminated against on the basis of her family status.

Tribunal Member Norman Trerise noted in his reasons that the law puts the onus on a the complainant to prove that the employer changed a term or condition of the employment and that the change seriously interfered with a substantial parental duty or obligation. Mr. Trerise held that the complainant did show there was a change to a term of the complainant’s employment. He held, however, that the change did not seriously interfere with a substantial parenting duty or obligation.

According to the member, this was because the complainant did not do enough to explore alternate childcare options. He held as follows:

It is clear that Ms. Ziegler made insufficient efforts to ascertain whether she could arrange alternate daycare which would allow her to work the altered shifts which PBC imposed on the TLs. She eliminated, without any visits to ascertain their suitability for her child’s needs, all home‐based private daycare facilities between Burnaby and Langley from her search. She did this out of a pre‐conceived idea that
“corporate” daycares were the only daycares which could provide suitable care to meet her standards. No evidence was placed before me to support such a position other than Ms. Ziegler’s bald assertion to that effect.

Further, he held:

[66] Instead of searching for a suitable daycare her energies went into fighting a battle to get PBC to provide her with an exemption from their revised work schedules for TLs and alternatively a search for alternate employment.

…

[68] Ms. Ziegler has made it clear in her evidence that she felt it was unfair for PBC to put her in the position where she must alter the childcare arrangement she had in place. In particular, she was not prepared to consider a non‐corporate, home‐based daycare as a possible solution. Many parents might react similarly, particularly given the age of her child. The test for discrimination on the basis of family status under the Code, however, makes it clear that more is required.

This decision provides a lesson for parents alleging discrimination in failing to accommodate their childcare schedules in the future. As per this decision, parents need to show that they have made an effort to find a solution to the problem. This could mean exploring alternative types of childcare facilities, an alternate schedule with the daycare provider you have, or an alternate schedule with your spouse and their employment. Even if your efforts are fruitless because you still could not solve the problem, the point is to show that you tried.

Legislation Allows BC Employees Unpaid COVID-19-Related Leave

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On Monday, March 23, 2020, the British Columbia Government amended the BC Employment Standards Act with Bill 16 – Employment Standards Amendment Act (No. 2), 2020  to grant BC employees the ability to take a job-protected unpaid COVID-19-related leave.

This leave was mentioned in our previous post regarding human rights, employment law, and COVID-19, however, the legislation and details contained within it were not known until March 23, 2020.

In introducing the new legislation in parliament, the Honourable Michael Farnworth stated the following:

Bill 16 amends the Employment Standards Act to provide unpaid job-protected leave to employees in British Columbia during the COVID-19 crisis. COVID-19 is an unprecedented public health emergency for British Columbians and for people across Canada and around the world.

The most important part of our work is protecting British Columbians. During this crisis, no employee will lose their job or be fired for following an order of the provincial health officer or for needing to care for a child whose school is closed.

According to section 52.12(2) of the legislation, employees are entitled to unpaid leave if, in relation to COVID-19, any of the following situations apply:

  1. the employee has been diagnosed with COVID-19 and is acting in accordance with their doctor or an order of a medical health officer;
  2. the employee is in quarantine or self-isolation in accordance with an order of the provincial health officer (Dr. Bonnie Henry – her Orders are available here), an order made under the Quarantine Act (for example, the most recent emergency order requiring persons entering Canada from elsewhere to self-isolate for 14 days), guidelines of the BC Centre for Disease Control (available here), or guidelines of the Public Health Agency of Canada (available here);
  3. the employer, due to a concern about exposing others, has directed the employee not to work;
  4. the employee is providing care to their child due to the closure of the child’s school, daycare, or similar facility; or
  5. the employee is outside the province and cannot return to BC because of travel or border restrictions.

These circumstances outlined in section 52.12(2) are quite broad, as they allow people to follow not only the provincial health officer’s orders, but her recommendations as well. For example, when the legislation was being debated, MLA Sonia Fursteau asked for confirmation that it protects a cashier with significant respiratory issues from needing to attend work. Someone in this position is protected because the provincial health minister has recommended that they not attend work.

Section 52.12(3) of the legislation allows the leave to carry on for as long as the circumstances in section 52.12(2) apply to the employee.

The Employment Standards Act, as amended, allows the employer to request proof the the above circumstance exists; however, the employee is not required to provide a doctor’s note. What kind of proof is required will thus vary according to the circumstances and is yet to be seen. If an employee needs to take the leave due to their child’s daycare being closed, for example, a letter from the daycare notifying parents of the closure may be sufficient proof.

The Employment Standards Amendment Act also came with transitional provisions that make employees eligible for the leave as of January 27, 2020 (the first day a coronavirus case was reported in BC). This means that if an employee is already off of work because of an eligible situation set out in section 52.12(2), they cannot be terminated. It also means that if an employee was terminated after January 27, 2020 but before March 23, 2020, due to the circumstances outlined in section 52.12(2), the employer must offer the employee re-employment in the same or a comparable position.

Presumably, if an employee is terminated in the above circumstances, for example when they need to stay home and care for a child who has lost childcare, a human rights complaint could still be available as well.

Covid-19 Raises Employment and Human Rights Concerns Across BC, Government Announces Novel Protections

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From both the employer and employee perspectives, the coronavirus pandemic raises real concerns for folks’ health and livelihoods. While the world worries about humanity’s future, individuals worry about the futures of their families and businesses. To combat some of these concerns, Premier John Horgan assured British Columbians today that their jobs will be protected and amendments are coming to BC’s Employment Standards Act in the interest of workers.

Given the complex nature of these issues and continual efforts to strike a balance between health, economic, and human rights concerns, there is a potential for an influx of employment and human rights law claims across BC. Employees terminated prior to the new legislation coming into effect, or despite it, may be entitled to severance above the minimum amounts required under the current legislation. And employees who are not accommodated or are terminated due to health issues, family obligations, ethnicity, or place of origin, may have claims under the BC Human Rights Code.

On Wednesday, March, 11, 2020, the World Health Organization (WHO) characterized the coronavirus as a pandemic. It stated that “there are now more than 118,000 cases in 114 countries, and 4,291 people have lost their lives.” British Columbia (BC) has confirmed a total of 186 cases of the coronavirus in the province as of March 17, 2020, with seven people having perished.

Today, BC’s provincial health officer declared a public health emergency. This gave her the power to order that all bars and clubs are to close down, which she did. Numerous businesses have closed voluntarily across BC and Canada. British Columbians fear that a lack of travel restrictions on their neighbours in Washington State, one of the US hotspots for the virus, puts them at risk.

Prime Minister Justin Trudeau is currently self-isolating, due to his wife Sophie having tested positive for the virus. He stated on March 16 and 17, 2020 that as much as possible, folks should stay home. He assures Canadians that the federal government is working to keep businesses and employees afloat during this time of crisis and that while parents are working from home, they can “let their kids run around a bit in the house.” Measures are being put in place to speed up employees’ access to Employment Insurance benefits. And, as stated, Premier John Horgan assured British Columbians today that their jobs will be protected and amendments are coming to BC’s Employment Standards Act.

Of course, however, employers and employees are experiencing barriers as a result of the coronavirus pandemic. Employers are concerned about running debt, or worse, going out of business. As a result, some employers are terminating employees. Others are requiring employees to come to work in-person and due to that, may expose themselves and others to the risk of contracting the virus. There is also potential that employers could expose themselves to negligence lawsuits from those who contract the virus from other employees required to come to work, despite exhibiting symptoms.

Employees face difficult decisions about whether they should go to work in order to provide for themselves, or stay home according to federal and provincial recommendations. They are also dealing with taking care of their children, as many spring break and childcare programs have shut their doors. Today, BC Premier John Horgan announced school closures for the indefinite future, and parents have concerns about child care for the weeks, and possibly months, ahead.

Unfortunately, some employees even have concerns that they have been discriminated against for their ethnicity or place of origin and its assumed connection with the origins of the covid-19 pandemic.

From both the employer and employee perspectives, there is real concern here for folks’ livelihoods and well-being. We are facing a pandemic that has the potential to seriously effect the global population on an unprecedented level and we all have a moral duty to slow the spread of the virus. At the same time, people need to put food on the table and keep roofs over their familes’ heads. Bills continue to accumulate for everyone; rents and mortgages need to be paid.

The WHO, the Canadian federal government, and the provincial and territorial governments across Canada recognize the complex nature of these issues. According to the WHO, “all countries must strike a fine balance between protecting health, minimizing economic and social disruption, and respecting human rights.”

Given the complex nature of these issues and the continual efforts to strike that balance, there is a potential for an influx of employment law and human rights claims across BC.

One common misconception is that employers need a legitimate reason to terminate employees. This is not currently the case, although this may change with the upcoming employment standards legislation in response to covid-19. At present, employers are generally free to terminate employees without cause, so long as they are not breaching employment contracts, union obligations, or human rights laws. They only need to provide adequate notice, or adequate pay in lieu of notice. This will likely change soon with the novel legislation.

Another common misconception is that employees are only entitled to severance amounts required by the BC Employment Standards Act. The Courts have commonly awarded severance amounts greater than the minimum requirements in the legislation. For example, it is possible a court could award someone severance representing 3 months’ pay after they work for their employer for three years, despite the provincial legislation requiring employers to pay a minimum of only 3 weeks’ pay.

The BC Human Rights Code protects British Columbians from being discriminated against in their employment based on a physical or mental disability, their family status, their ethnicity, and their place of origin. This means that if an employee is terminated because they were unable to come to work as a result of being sick from the coronavirus, there is potential for a claim based on discrimination in the area of disability. Whether suffering from the coronavirus constitutes a disability under the Human Rights Code is yet to be determined.

Given that many employees are having to stay home to take care of their children as a result of losing childcare, there is also the potential for discrimination claims based on family status. There are limits on an employer being able to terminate an employee due to their having to meet family childcare obligations.

Lastly, employees terminated due to an assumed connection between their ethnicity or place of origin and the origin of the coronavirus pandemic may also have been wrongly discriminated against under the BC Human Rights Code.

MacIsaac & Company recognizes the complex nature of employment and human rights law concerns in the face of this pandemic. We remain available to help you navigate these issues during this challenging time.