Soliman v. Maysam Pharmacy Ltd. Dba Shoppers Drug Mart #263, 2024 BCHRT 184
Date Issued: June 14, 2024
File: CS-003311
Indexed as: Soliman v. Maysam Pharmacy Ltd. Dba Shoppers Drug Mart #263, 2024 BCHRT 184
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Yousri Soliman
COMPLAINANT
AND:
Maysam Pharmacy Ltd. Dba Shoppers Drug Mart #263
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
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Tribunal Member: |
Laila Said Alam |
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Counsel for the Complainant: |
Abudi Awaysheh |
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Counsel for the Respondent: |
Vincent P. Johnston and Meg Monteith |
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I INTRODUCTION
[1] Mr. Soliman alleges Maysam Pharmacy Ltd. Dba Shoppers Drug Mart #263 [Pharmacy] discriminated against him under s.13 of the Code in the area of employment when it reduced his work hours and terminated his employment because of his race and age.
[2] The Pharmacy denies discriminating against Mr. Soliman. It applies to dismiss this complaint under s. 27(1)(c) of the Code. It argues that Mr. Soliman’s complaint has no reasonable prospect of success of establishing that he suffered any adverse impact in employment because he quit and was not terminated. The Pharmacy also argues that there is no reasonable prospect that he will establish that race or age was a factor in any adverse impact he may have experienced. Finally, it argues that it is reasonably certain to establish a bona fideand reasonable justification defense at a hearing.
[3] To decide this application, I must decide is whether there is no reasonable prospect Mr. Soliman can prove at a hearing that there is a connection between his race or age, and the Pharmacy reducing his work hours and terminating his employment.
[4] For the following reasons, I find there is not and dismiss the complaint. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.
II BACKGROUND
[5] Maysam Pharmacy Ltd. is a franchisee that is licenced by Shoppers Drug Mart Inc. to operate a store under the trademark “Shoppers Drug Mart.” The store is pharmacist owned. The store is a full-service store with a pharmacy, cosmetics, and food department. The store is open 7 days a week from 8 a.m. to midnight.
[6] The Pharmacy is staffed by pharmacists (including a pharmacy manager), pharmacy assistants, and pharmacy students. The staff is responsible for the provision of primary care services including prescription filling, medication reviews, prescribing, and immunizations.
[7] Mr. Soliman is a 65-year-old pharmacy assistant. He is an Egyptian-Canadian of Arab ethnicity. He began working at the Pharmacy in or around September 2003 when he was 47 years old.
[8] On October 6, 2019, a new pharmacy owner acquired the Pharmacy. The pharmacy owner decided that staffing schedule changes were required to run the Pharmacy efficiently. The pharmacy owner determined that she needed to correct “imbalances” in the schedule that arose when the Pharmacy did not have sufficient staff to serve its patients. She determined that shifts did not align with the busy periods of the day, and the Pharmacy was exceeding its staffing budget. The Pharmacy Owner concluded that some of the imbalances were a result of staff restricting their availability to certain days and certain times.
[9] On or about October 11, 2019, the Pharmacy asked all pharmacy staff, including Mr. Soliman, to sign a “6 week notice for a change in schedule.” This required staff to open their availability for scheduling at any point during operating hours. Mr. Soliman and the pharmacy owner talked about the new availability requirement. They disagree about what was said. As nothing turns on that conversation in this decision, there is no need for me to set out their various versions of the conversation. Mr. Soliman did not sign the document.
[10] The Pharmacy scheduled Mr. Soliman for one shift in the week of December 8-14, 2019: December 10, 2019.
[11] Mr. Soliman spoke to the pharmacy owner on December 4, 2019, when he became aware that he was only scheduled for one shift that week. The pharmacy owner explained that she had to prioritize shifts based on what was best for the overall business. The Pharmacy alleges that Mr. Soliman became agitated during the conversation, yelled “I quit”, and left the store without completing his shift. Mr. Soliman disputes this version of events. He says he did not quit his job during that conversation or at all.
[12] Mr. Soliman did not attend his scheduled shift on December 10, 2019. He did not provide advance notice or reasons for his failure to attend.
[13] In January 2020, the Pharmacy says it lost several institutional clients, which reduced the overall workload and staffing requirements.
[14] Mr. Soliman emailed the pharmacy owner on March 4, 2020 to advise that he was now available during operating hours. This was his first contact with the Pharmacy after allegedly saying “I quit” on December 4, 2019. The pharmacy owner responded the same day. She told him about the decrease in business and staffing reductions. She said there was not a regular shift for him but would let him know if anything changed.
[15] The Pharmacy says that the March 2020 COVID-19 pandemic further caused a decrease in business because, with hospital surgeries on pause and nearby doctors’ clinics closed, it received less prescriptions to fill.
[16] On April 6, 2020, Mr. Soliman emailed the pharmacy owner again and asked about hours. Mr. Soliman said his other employer did not have enough work for him, so he wanted to work shifts at the Pharmacy. The pharmacy owner told him there was no work for him because of the business downturn.
[17] The Pharmacy says that by January 2021, the prescription count fell by almost half since the Pharmacy Owner acquired the store in October 2019.
[18] In or around January 2021, the Pharmacy sent Mr. Soliman a letter terminating his employment. The Pharmacy offered him 8 weeks’ pay in lieu of notice pursuant to the Employment Standards Act. He was also offered an additional 37 weeks’ pay in lieu of notice in exchange for signing a release of claims. Mr. Soliman did not sign the release.
[19] The Pharmacy says it fired 6-7 other employees around the same time. None of the employees the Pharmacy terminated had worked a shift in a significant period of time.
III DECISION
A. ADDING NEW ALLEGATIONS TO COMPLAINT
[20] As a preliminary matter, the Pharmacy argues that Mr. Soliman has improperly added new allegations in his response to the application to dismiss.
[21] A complainant who wants to amend their complaint during an outstanding application to dismiss must apply to do so: Tribunal Rules of Practice and Procedure [Rules], Rule 24(4)(b). The purpose of this rule is to ensure that a respondent who files an application to dismiss a complaint does not face a moving target: Pausch v. School District No. 34 and others, 2008 BCHRT 154 at paras. 28-29. Respondents are entitled to know the allegations against them to assess whether, or on what basis, to bring their application to dismiss the complaint: Purdy v. Douglas College and others, 2016 BCHRT 117 at paras. 35-37.
[22] At the same time, the Tribunal’s complaint forms are not the equivalent of pleadings in a civil litigation process: White v. Nanaimo Daily News Group Inc. and Klaholz, 2004 BCHRT 350at para. 23. It is not uncommon, or a violation of the Rules, for a complainant to add new particulars of their complaint in response to an application to dismiss. The distinction between particulars and new allegations was set out in Powell v. Morton, 2005 BCHRT 282at para. 20:
… I must consider whether the amendment contains, on the one hand, further details of the facts on which the complainant intends to rely, or whether, on the other, it constitutes an expansion of the allegations made against the respondents. If the former, it will constitute particulars; if the latter, an amendment. This determination is not to be made in a narrow or technical way, but in a manner which will ensure that the parties are accorded procedural fairness, and that particulars are not used to expand a complaint beyond what can reasonably be said to have been alleged in it. Another way of looking at the questions is to ask whether the materials in issue come within the scope of the complaint filed with the Tribunal, or whether they seek to expand the scope of the complaint.
[23] I turn now to whether the impugned allegations are properly characterized as further particulars or an amendment to the complaint.
[24] Mr. Soliman seeks to add the protected ground of disability because he has asthma. He argues that the Pharmacy also discriminated against him based on his disability. He does not argue that the new allegations and protected grounds are merely further particulars. He does not provide particular of how the Pharmacy’s conduct is connected to his asthma. This constitutes an expansion of his case.
[25] Mr. Soliman did not apply to amend his complaint. Nevertheless, the Tribunal may allow an amendment under Rule 24(4)(b) if it would be procedurally fair to do so, and further the purposes of the Code: Hawknes v. Vancouver Public Library (No. 2), 2017 BCHRT 250 at para. 86. In this case it would be procedurally unfair to the Pharmacy to expand Mr. Soliman’s complaint to include disability as a protected grounds when it cannot reasonably be said to have been alleged in the complaint. Mr. Soliman has not argued that this is merely further particulars. He has not provided particulars nor alleged facts that the Pharmacy can reasonably respond to. I will not exercise my discretion to allow an amendment to expand the scope of Mr. Soliman’s complaint. I now turn to the application to dismiss.
A. Section 27(1)(c) – No reasonable prospect of success
[26] The Pharmacy asks the Tribunal to dismiss Mr. Soliman’s complaint under s. 27(1)(c) of the Code for two reasons. First, it argues that he did not experience any adverse impact related to his employment. Second, it says he has no reasonable prospect of establishing a connection between the Pharmacy’s actions and any protected ground. The onus is on the Pharmacy to establish the basis for dismissal.
[27] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[28] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan, 2013 BCSC 942at para. 77.
[29] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority, 2021 BCSC 2176at para. 20; SEPQA v. Canadian Human Rights Commission, [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.
[30] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia, 2008 BCSC 1026 at para. 34. However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City), 2017 BCCA 242 at para 67.
[31] To prove his complaint at a hearing, Mr. Soliman will have to prove that he has a characteristic protected by the Code, he was adversely impacted in employment and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If he does that, the burden would shift to the Pharmacy to justify the impact as a bona fideoccupational requirement or a bona fidereasonable justification. If the impact is justified, there is no discrimination.
[32] The Pharmacy argues that Mr. Soliman’s complaint has no reasonable prospect of success of establishing at a hearing that he suffered any adverse impact in employment because he quit and was not terminated. It also argues that there is no reasonable prospect that he will establish that race or age was a factor in any adverse impact he experienced.
[33] The first element of Mr. Soliman’s complaint is not in dispute. I accept Mr. Soliman has the protected characteristics of race and age. The second element of Mr. Soliman’s complaint relates to the adverse impact, which Mr. Soliman identifies as a reduction of work hours and termination from employment. I am not convinced that Mr. Soliman has no reasonable prospect of proving the Pharmacy reduced his work hours and that the Pharmacy terminated him. There is no dispute that the Pharmacy scheduled Mr. Soliman for one shift, instead of his regular two, the week of December 8-14, 2019. He was not scheduled at any time after, up to, and including, when the Pharmacy sent him a termination letter in or around January 2021. Therefore, I find it is more than mere speculation that the Pharmacy reduced Mr. Soliman’s hours.
[34] I turn now to whether there is no reasonable prospect Mr. Soliman can prove the Pharmacy terminated his employment. I do not find it speculative that the Pharmacy terminated Mr. Soliman’s employment. It is arguable that the Pharmacy’s correspondence with him after he allegedly said he quit, engages with him as if he maintained employee status. Additionally, the Pharmacy gave him a termination letter and Record of Employment more than two years after it now alleges he quit. I am satisfied that Mr. Soliman has taken his allegation that he was terminated from his job out of the realm of conjecture.
[35] Mr. Soliman is now tasked with taking his allegation that there is a connection, or nexus, between his protected characteristics and his termination out of the realm of conjecture. I understand Mr. Soliman to ask the Tribunal to infer, based on all of the circumstances, that the Pharmacy reduced his hours and he was terminated at least in part because of his race and age.
[36] At a hearing, Mr. Soliman need only prove that his race or age was a factor in the adverse impact he experienced. It need not be the sole or primary factor: Québec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC at paras. 45-52.
[37] It is well accepted by the Tribunal that direct evidence of race-based discrimination is rarely available and as a result it will be necessary to draw inferences from the evidence to prove race-based discrimination: Mezghrani v. Canada Youth Orange Network (CYONI) (No. 2), 2006 BCHRT 60at para. 28. At the same time, it is recognized that such inferences must be based on some evidence capable of substantiating the claim that race or any other protected characteristic on which a complaint is based, was a factor in the alleged discriminatory conduct.
[38] It is my view that Mr. Soliman has not met the threshold of “some evidence.” Rather, his allegations are based on speculation. I reach this conclusion for the following reasons.
[39] Mr. Soliman points to the following facts to make a connection between his protected characteristics and the adverse impacts in his employment:
a. There was no issue with his 12-18 hour a week shift schedule before the new pharmacy owner took over;
b. After two months of working under the pharmacy owner, he was removed off the pharmacy schedule and unceremoniously and unexpectedly laid off on December 10;
c. He was 63 and 10 months old at the time of what he perceives as, effectively, his termination in December 2019;
d. He says he was the oldest employee, two weeks shy of this 65 th birthday in 2021;
e. He is Egyptian-Canadian. He was the only person of Arab ethnicity at the time he was terminated; and
f. “The whole store are from Asian countries.”
[40] In summary, Mr. Soliman says: he is a sexagenarian of Arab ethnicity; his shifts were reduced and he was terminated within two months of a new owner taking over his place of employment; and the majority of staff were of a different ethnic makeup. He has simply alleged his age and race, juxtaposed against other Pharmacy staff, is sufficient to ground an inference that his age and race were a factor in the adverse impacts he alleges. Respectfully, this is not enough to take the complaint out of the realm of conjecture. There is nothing in the materials before me to reasonably suggest that Mr. Soliman’s age or race were a factor in the Pharmacy’s conduct.
[41] It is not enough that Mr. Soliman asserts that he is a member of a protected group and that he has experienced adverse treatment. The facts alleged must be capable of supporting a reasonable inference that there is a nexus between the adverse treatment and a prohibited ground of discrimination: Hales v. ICBC, 2012 BCHRT 197 at paras. 38-39. Mr. Soliman has not alleged such facts.
[42] There is no dispute that Mr. Soliman’s last shift was within two months of the change in ownership of the Pharmacy. The Tribunal is entitled to consider the timing of a termination, or other of a respondents’ acts and omissions that complainants allege adversely impacted them, when considering whether one can infer a protected ground of the Code is connected with an employer’s conduct: Munro v. Labour Unlimited , 2023 BCHRT 39 at para. 63; Parry v. Vanwest College, 2005 BCHRT 310 at para. 63; Morris v. BC Rail, 2003 BCHRT 14 at para. 231. While the Tribunal may draw inferences based on the timing of events, it is not enough for a complainant to simply assert that such an inference exists without also supporting that inference with some evidence. The Tribunal has explained that:
an inference arising from the timing of a termination is just that, an inference. It can be strengthened by other evidence to support discrimination or it can be displaced by evidence of a non-discriminatory reason for the termination: Harris v. Rize Alliance Properties and another , 2019 BCHRT 223 at para. 31.
[43] Even if I were to accept that the timing of events were enough to take an inference of nexus out of the realm of conjecture, which I do not, I find the Pharmacy is reasonably certain to rebut that inference. It is not in dispute that Mr. Soliman refused to open his availability for shift work at the Pharmacy when required to, and did not report for his scheduled shift on December 10, 2019. The Pharmacy has put evidence before me that supports its claim that business had decreased since the change in ownership, and did not have work to offer Mr. Soliman when he contacted the Pharmacy to request shifts. In this instance, I am satisfied that the Pharmacy is reasonably certain to prove that the timing of the adverse impacts was due to Mr. Soliman’s refusal to increase his availability for shifts, Mr. Soliman’s failure to show up for scheduled shifts, and the reduction in overall pharmacy business.
[44] Mr. Soliman also says he was treated differently from his co-workers. He points to the Pharmacy scheduling him for work, but having those shifts cancelled without notice, the Pharmacy refusing to schedule him for any work, and having his employment being terminated when he appealed to the Pharmacy’s corporate office. The evidence before me suggests that the Pharmacy treated other employees the same way. I find there is no reasonably prospect Mr. Soliman will prove the Pharmacy treated him differently because of his race and age. As a result, I am not convinced that Mr. Soliman has taken this allegation out of the realm of conjecture.
[45] Assessing the whole of the evidence and arguments provided by the parties, I am not persuaded that discrimination can be inferred in this case. I find that this complaint has no reasonable prospect of success.
IV CONCLUSION
[46] I allow the application under s.27(1)(c) of the Code . The complaint is dismissed in its entirety.
Laila Said Alam
Tribunal Member