Ghebremeskel v. Vancouver Island Health Authority, 2024 BCHRT 179
Date Issued: June 11, 2024
File: CS-005967
Indexed as: Ghebremeskel v. Vancouver Island Health Authority, 2024 BCHRT 179
IN THE MATTER OF THE HUMAN RIGHTS CODE
R. S. B. C. 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Mr. Ghebremeskel
COMPLAINANT
AND:
Vancouver Island Health Authority
RESPONDENT
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
Section 22
Tribunal Member: Steven Adamson
On his own behalf: Mr. Ghebremeskel
Counsel for the Respondent: Karen Orr
I INTRODUCTION
[1] On January 19, 2022, Mr. Ghebremeskel filed an employment compliant based on race, colour, place of origin and physical disability contrary to s. 13 of the Human Rights Code[Code], against the Vancouver Island Health Authority [VIHA].
[2] At screening, the Tribunal initially accepted the complaint for filing as a continuing contravention of the Code under s. 22(2). However, that decision was reconsidered pursuant to Rule 36 of the Tribunal’s Rules of Practice and Procedure, and the complaint was redirected through an application that included written submissions from the parties about the applicability of s. 22 of the Code.
[3] VIHA replied to further information found in Mr. Ghebremeskel’s Form 5 reply. I accept and consider VIHA’s further information, along with Mr. Ghebremeskel’s reply information, in rendering this decision. I disagree with VIHA that Mr. Ghebremeskel’s further allegations should not be considered as they assist me with making my decision and I am willing to extend some latitude to Mr. Ghebremeskel as he is self-represented.
[4] The issue before me is whether to accept the complaint for filing against VIHA given it appears to have been filed outside the one-year time limit established under s. 22(1) of the Code. I make no findings regarding the merits of this complaint.
[5] For the reasons that follow, I accept the complaint for filing as a continuing contravention of the Code for events from late 2019 onwards: s. 22(2). Allegations from a previous complaint cannot be further adjudicated and there are no arguable contraventions of the Code in relation to a mediation held under the prior complaint. Those allegations are not accepted for filing.
II ORDER LIMITING PUBLICATION
[6] The Tribunal’s practice normally includes referring to a complainant’s first name in a published decision. Mr. Ghebremeskel sought an order limiting the publication of his first name as his son shares the name. Mr. Ghebremeskel argued not including his first name in the decision would protect his son, who is a minor, from possible stigma related to the decision in the community where he lives. VIHA consented to the application.
[7] Mr. Ghebremeskel’s son’s privacy interests are presumed to outweigh the public interest in access to the Tribunal’s proceedings under Rule 5(7) of the Tribunal’s Rules of Practice and Procedure. As such, I order the limitation of information identifying him by not including Mr. Ghebremeskel’s first name in this decision only.
III BACKGROUND
[8] Mr. Ghebremeskel immigrated to Canada in 2010 and describes himself as being from the Horn of Africa with dark brown skin and black hair.
[9] Mr. Ghebremeskel trained as a care aide and worked at VIHA as a health care assistant from April 2014 to December 2019. From the end of 2019 to the time this complaint was filed Mr. Ghebremeskel worked as a scheduler in VIHA’s community health and home support services. He reports VIHA placed him in his current position as an accommodation for his physical disabilities.
[10] T he central issue in this decision is whether arguable contraventions capable of forming a continuing contravention, exist for a multi-year period during Mr. Ghebremeskel’s employment with VIHA. As such, it is necessary to set out these events in detail below.
[11] In 2014, Mr. Ghebremeskel alleges that because of his appearance as a visible minority, he was repeatedly given an unfair distribution of tasks. He claims he overheard management saying, “let’s make good use of this tall African guy, give him the heavy section”. Mr. Ghebremeskel alleges his complaints about workload distribution were unsuccessful and resulted in him being bullied and harassed. He alleges he was then considered a threat and one manger told him they were afraid of him.
[12] In 2015 and 2016, Mr. Ghebremeskel alleges the previous bullying and harassment continued by care aide coworkers while management falsely accused him of negligence. He alleges some of the nurses acknowledged their race-based prejudice and judgment as being attributed to their upbringings. Mr. Ghebremeskel described an incident where his new car was vandalized in the parking lot at work. He suspected the damage was done by a manager in the workplace. Mr. Ghebremeskel further described a conflict with a South African born white care aide who assaulted him at work. Mr. Ghebremeskel alleges management moved him to work on another floor after concluding he was equally responsible for the incident. He alleges management’s sarcastic response to his declaration that he is a man of colour, historically discriminated against and mistreated, was to tell him that all in the workplace were coloured people.
[13] On May 15, 2017, Mr. Ghebremeskel filed a complaint against VIHA with the Tribunal for events up to late 2016. At the Tribunal’s request, he provided further information related to race discrimination from March to June 2017.
[14] On August 16, 2017, the Tribunal decided Mr. Ghebremeskel’s complaint could proceed for the 2017 allegations but the allegations in 2015 and 2016 would not proceed as they either did not describe conduct that could contravene the Code, or they were late filed without any public interest to support accepting them as late filed under s. 22(3) of the Code.
[15] On February 8, 2018, Mr. Ghebremeskel participated in a mediation with VIHA and settled his 2017 complaint. In his 2022 complaint materials, Mr. Ghebremeskel reflects on the mediation as being a pre-emptive measure by VIHA and the mediator to demoralize him and prevent him from pursuing his case further. He alleges the mediator’s conduct made it difficult for him to participate in the mediation and he settled to avoid the further conflict with VIHA at a hearing.
[16] On December 8, 2019, Mr. Ghebremeskel alleges VIHA made him feel unwelcome when arriving his first day in a new scheduling position arranged as an accommodation following a motor vehicle accident. He says no one at the worksite was aware of his arrival, and after waiting for two hours for someone to orient him, he was told to go home. Mr. Ghebremeskel alleges this treatment was disrespectful and based on racial discrimination.
[17] From December 2019 until July 2020 while working in the scheduling position, Mr. Ghebremeskel alleges that the level of training he was provided was less than that provided to other employees transitioning into this role. With no prior experience in scheduling, he felt disrespected and insufficiently supported as an accommodated employee. He further believes that the lack of proper training occurred because of racism within VIHA. Mr. Ghebremeskel says that several people yelled at him during his training and he had several other uncomfortable interactions with VIHA staff.
[18] From December 2019 until July 2020 while working in the scheduling position, Mr. Ghebremeskel alleges his work was more highly scrutinized than others working in scheduling for reasons related to his race. This led to poor performance reviews and him being subject to performance management steps, all of which were related to his race.
[19] Mr. Ghebremeskel also alleges that during this period, information regarding his performance was inappropriately posted in the workplace electronic scheduling system where his colleagues could review it. He alleges that this inappropriate human resource type of information was left in the system despite his requests to have it removed.
[20] During this period Mr. Ghebremeskel further alleges he was passed up for permanent scheduling positions for reasons related to his race. He says the inaccurate and negative information in the scheduling system about him, along with the unfair job performance reviews, reduced his opportunities for being awarded permanent positions.
[21] From July 2020 to January 2021, Mr. Ghebremeskel alleges he was off work for reasons related to mental disabilities caused by work.
[22] In the autumn of 2020, Mr. Ghebremeskel alleges management spread rumours that he is a dangerous person who often barges into workplaces. Before returning to work as a scheduler in a different health unit, he alleges being forced to sign a behavioral contract based on an assumption that he could be violent.
[23] In January 2021, Mr. Ghebremeskel states he was paired solely with male schedulers for training in a scheduling position in the new health unit. He alleges some of the male schedulers refused to pair with him. Mr. Ghebremeskel alleges this measure was taken based on false information that he was sexually inappropriate in the workplace. He alleges that VIHA’s beliefs about his behaviour resulted in it arranging for his training to be with male colleagues only and this too was based on the employer’s attitudes about his race, colour and place of origin.
[24] In February 2021, Mr. Ghebremeskel alleges he complained to the employer again about the damaging personal information about him in VIHA’s scheduling system where it was accessible to his coworkers. He alleges complaining that the inappropriate display of this information had negatively affected him in a July 2020 hiring process. In response to the complaint, some weeks later, a privacy specialist at VIHA confirmed the placement of human resources related information about Mr. Ghebremeskel in that system existed, was inappropriate and had now been removed.
[25] On March 19, 2021, Mr. Ghebremeskel alleges a white male co-worker in the scheduling department bullied and harassed him about his scheduling projections skills. He alleges that the employee believes that Mr. Ghebremeskel is a misogynist or someone who exhibits sexually inappropriate behaviour around women stemming from him being a Black immigrant. Having formed this negative perception of Mr. Ghebremeskel, he alleges the co-worker sent work back to him after identifying a double-booking error. When management failed to respond to his complaints about the situation, Mr. Ghebremeskel alleges that he took time off work on the days the male co-worker was scheduled to come in to work at his location.
[26] On March 31, 2021, Mr. Ghebremeskel alleges management told him not to speak to others in the workplace about his past until an investigation was completed. He reports his coworkers subsequently questioned him about being withdrawn and eventually became “frosty” by October 2021 because no trust was left between them. He also alleges his coworkers were now spying on him, presumably for management.
[27] On July 14, 2021, Mr. Ghebremeskel alleges he was unfairly required to report to management and the scheduling coordinator every two hours while at work, despite him having a positive performance review.
[28] On July 23, 2021, Mr. Ghebremeskel alleges he was denied a day of training that would have been provided to another scheduler if they were Filipino.
[29] On September 20, 2021, Mr. Ghebremeskel alleges a nurse coordinator judged him as an inferior worker because he had come into the scheduling position having previously been a care assistant.
[30] An October 8, 2021, an investigation into a respectful workplace complaint made by Mr. Ghebremeskel was concluded. The investigation report addressed Mr. Ghebremeskel’s allegations of discrimination from November 2019 to July 2020. The investigator concluded as follows:
· Made to feel unwelcome on first day in December 2019 – the treatment was disrespectful to a Black man and new Canadian, who wanted to feel welcome but didn’t always feel that way, but there was no evidence that his race, colour or place of origin were a factor in the adverse treatment he received.
· Insufficient training between December 2019 and mid 2020, not supported sufficiently as employee under duty to accommodate – not an adequate training plan for him to learn the scheduling role with race a factor as he was seen as potentially having problems taking direction from women, which was the result of a racial stereotype.
· Work more highly scrutinized between December 2019 and mid 2020 – there is a basis for an inference that his race was a factor in the escalation of his errors, which he described as feeling that his work was more highly scrutinized.
· Poor performance reviews contributed to in part by inequities – because of reports about his errors, attempts were made to manage his performance by way of formal meetings and a letter of expectation. Considering the findings that his race was a factor in his training experience and higher scrutiny of work, the letter of expectation was an extension of those two things and, as a result, race was a factor in how his performance was reviewed.
· Inaccurate and negative information documented in system available to leaders in other areas – the allegation founded as disrespectful conduct and perpetuation of discrimination.
· Reduced job opportunities – he alleges the inaccurate and negative information in the system, along with the unfair job reviews reduced his opportunity to change positions. He believes vacant positions were awarded to casual schedulers with thousands of hours less seniority after he was screened out of these positions due to his race, colour and place of origin.
· Yelled at during training – he experienced the consequences of an inadequate onboarding, orientation and training program, which included being on the receiving end of other people’s stress and frustration. However, there was no basis to make findings that a specific individual yelled at him in a manner that was connected to his race.
[31] On October 28, 2021, VIHA wrote Mr. Ghebremeskel acknowledging the conclusions in the investigation report, including the following:
- Race was a factor in how Mr. Ghebremeskel was perceived by others and that negatively impacted his training experience. Stereotypical assumptions were made about Mr. Ghebremeskel that went unquestioned.
· Race was a factor in other employees choosing to escalate Mr. Ghebremeskel’s work errors and their increased scrutiny of his work.
· Race was a factor in Mr. Ghebremeskel’s poor work performance review.
· Race was a factor in Mr. Ghebremeskel not being hired for a specific scheduling position based on a failure to correct assumptions about his cultural background and race.
[32] Mr. Ghebremeskel appealed VIHA’s decision about his respectful workplace complaint. On April 26, 2022, VIHA’s vice president, people, dismissed Mr. Ghebremeskel’s appeal of the October 28, 2021, decision. The Vice President upheld the investigator’s findings, including those related to the existence of racism. The Vice President acknowledged the investigator’s recommendations for changes within the organization, including the provision of additional training for leaders and employees in the areas of anti-Black racism and anti-racism.
IV ANALYSIS AND DECISION
[33] Section 22 of the Codeprovides:
(1) A complaint must be filed within one year of the alleged contravention.
(2) If a continuing contravention is alleged in a complaint, the complaint must be filed within one year of the last alleged instance of the contravention.
(3) If a complaint is filed after the expiration of the time limit referred to in subsection (1) or (2), a member or panel may accept all or part of the complaint if the member or panel determines that:
(a) it is in the public interest to accept the complaint, and
(b) no substantial prejudice will result to any person because of the delay.
[34] The time limit set out in s. 22 of the Code is a substantive provision which is intended to ensure that complainants pursue their human rights remedies diligently and to allow respondents the comfort of performing their activities without the possibility of a dated complaint: Chartier v. School District No. 62, 2003 BCHRT 39 at para. 12.
[35] Mr. Ghebremeskel filed this complaint on January 19, 2022. To comply with the one-year time limit under s. 22(1) of the Code, the last alleged act of discrimination had to occur on or after January 19, 2021.
[36] A complaint is filed in time if the last allegation of discrimination happened within one year, and older allegations are part of a “continuing contravention”: Code, s. 22(2); School District v. Parent obo the Child , 2018 BCCA 136 at para. 68. A continuing contravention is “a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code, and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City),2015 BCCA 57 at para. 23; School District at para. 50.
[37] The assessment of whether discrete allegations are a continuing contravention is a “fact specific one which will depend very much on the individual circumstances of each case”: Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para. 17. A relevant consideration is whether there are significant gaps between the allegations: Dickson at paras. 16-17. Whether or not a gap is significant will be assessed contextually, considering the length itself and any explanations for the gap: Reynolds v Overwaitea Food Group, 2013 BCHRT 67 at para. 28. A significant, unexplained, gap in time will weigh against finding a continuing contravention: Bjorklund v. BC Ministry of Public Safety and Solicitor General, 2018 BCHRT 204 at para. 14.
[38] Mr. Ghebremeskel submits that the complaint alleges a continuing contravention of the Code that is anchored in several timely incidents leading up to the end of 2021. VIHA submits that while Mr. Ghebremeskel refers to events where others in the workplace are of differing ethnic backgrounds, he has failed to link his race to the adverse treatment he is alleging. In VIHA’s view, nothing in the complaint – including the further information and particulars provided throughout these submissions – alleges a nexus between his race and the alleged adverse treatment.
1. Does the complaint contain an allegation of discrimination within the one-year time limit?
[39] I have first considered whether the complaint contains any allegations of discrimination within the one-year time limit. After reviewing Mr. Ghebremeskel’s complaint information, I am satisfied that he set out timely allegations of discrimination related to VIHA’s negative treatment in the workplace where his race, colour and place of origin was a factor in the harms alleged: Moore v. British Columbia (Education) , 2012 SCC 61 at para 33. In this case, Mr. Ghebremeskel must show that the Complaint alleges facts that, if proven, could establish that as a Black immigrant from the Horn of Africa, he experienced an adverse impact with respect to his employment with VIHA; and that his race, colour and place of origin was a factor in the alleged adverse impacts.
[40] I pause to note that while Mr. Ghebremeskel identified physical disability as a basis for his complaint on his initial complaint form, he did not set out any allegations indicating his disability was a factor in any of the harms alleged. Accordingly, this aspect of his complaint is not accepted for filing.
[41] Turning back to the question of whether Mr. Ghebremeskel’s complaint alleges timely contraventions of the Code based on race, colour, or place of origin, I am satisfied it does. Specifically, the following allegations all set out timely, arguable contraventions of the Code. Mr. Ghebremeskel was restricted to working with male schedulers at the start of 2021; he was bullied by a male scheduler colleague in March 2021; he was required to report to management every two hours as of mid-2021 during each workday, and; he was being denied a training opportunity in mid-2021 . Mr. Ghebremeskel alleges his co-workers and management held discriminatory views about his attitude towards women because of his race that was ongoing since starting in the scheduling position. He says this resulted, or at least contributed to, VIHA restricting who he could work with, being bullied, and the other alleged adverse impacts set out above, all of which are timely allegations of discrimination because they happened within the year prior to January 19, 2022, when Mr. Ghebremeskel filed his complaint.
2. Has Mr. Ghebremeskel put forward other allegations of discrimination that form part of a continuing contravention, and if so, how far back does the alleged contravention go?
[42] I now turn to the question of whether Mr. Ghebremeskel has put forward other allegations of discrimination that form part of a continuing contravention, and if so, how far back does the alleged contravention go.
[43] After reviewing the information on file, I have determined that there is a succession of separate discriminatory acts of the same character that allege contraventions of the Code extending back to the end of 2019.
[44] Mr. Ghebremeskel alleges that from December 2019 to July 2020 he was inadequately trained in the scheduling position, more highly scrutinized in terms of his performance in the role compared to other staff, subjected to performance management actions, and passed up for permanent scheduling positions. He alleges his race, colour and place of origin were a factor in VIHA’s negative treatment of him during this period. In particular, he alleges staff and management at VIHA made stereotypical assumptions about his inability to take direction from women, which then circulated in the workplace and were left unaddressed. He alleges these assumptions negatively affected his training, performance reviews, resulted in him being performance managed and was a factor in him losing out on permanent positions. From my review of his submissions, I am satisfied that Mr. Ghebremeskel sets out multiple allegations of discrimination where assumptions about him as a Black immigrant in the workplace was a factor in the multiple harms, he alleges that arose from his employment at VIHA.
[45] In reaching this conclusion I appreciate that Mr. Ghebremeskel’s initial complaint was not particularly clear about how his protected characteristics were a factor in the harms alleged. However, he provided information subsequently, including the workplace investigation documents, that provided sufficient clarity about the nature of his allegations to take them beyond speculation. Specifically, the information he provided was enough to clarify his allegations about a nexus between his race, colour and place of origin and the alleged adverse treatment.
[46] I am satisfied that the nature of the discrimination allegations in this case are of a similar nature. The allegations all relate to VIHA’s mistreatment of Mr. Ghebremeskel in the workplace in terms of his training, performance evaluation and opportunities for promotion. Those allegations are all based to some extent on what he says was racist stereotyping that he was unable to take direction from women. In the circumstances of this case, I find all the allegations from late 2019 to mid 2021 are of a similar nature.
[47] Under s. 22(2), I have also considered gaps in time between Mr. Ghebremeskel’s allegations. The allegations in this case occurred over approximately one- and one-half years. They contain one fairly lengthy gap between mid 2020 and early 2021, which if not explained, could potentially weigh against accepting the events from late 2019 to the mid 2020 as part of a timely complaint tethered to the in-time allegations. In this case, the gap from mid 2020 to early 2021 is explained by Mr. Ghebremeskel being off work for reasons related to his mental disabilities.
[48] Before leaving the subject of other allegations of discrimination, it is necessary to comment on those occurring prior to December 2019. As noted above, Mr. Ghebremeskel’s discrimination allegations begin in 2014 when he worked for VIHA as a care assistant. While information about these allegations might be relevant as background to his later allegations in this complaint, in my view they are all associated with his previous complaint filed in 2017. That complaint was brought to an end first by a screening decision rejecting pre-2017 allegations and second, via a settlement of the 2017 allegations. In these circumstances, Mr. Ghebremeskel cannot raise these allegations again for further adjudication in his 2022 complaint.
[49] Mr. Ghebremeskel raises concerns with the February 2018 mediation. However, in my view, he has not provided any information indicating his race, colour and place of origin were a factor in the harms he alleges to have experienced while participating in that process. Furthermore, the human rights complaint settlement process is confidential and would be undermined if the Tribunal reviewed it for allegations of discrimination.
[50] The complaint can proceed under s. 22(2) of the Code for events from late 2019 to mid 2022. There are no other relevant arguable contraventions of the Code to consider prior to late 2019. As such, it is unnecessary for me to determine whether it is in the public interest to allow his complaint to proceed, and no substantial prejudice will result to any person because of the delay pursuant to Code s. 22(3).
V CONCLUSION
[51] For these reasons, the complaint is accepted for filing based on race, colour, and place of origin as it alleges a continuing contravention of the Code for events from December 2019 onwards. The complaint is rejected for filing race, colour and place of origin allegations prior to December 2019. The complaint is rejected for filing for any physical disability allegations.
Steven Adamson
Tribunal Member