The Applicant v. Independent Investigations Office of British Columbia (No. 2), 2024 BCHRT 204
Date Issued: July 11, 2024
File: CS-000670
Indexed as: The Applicant v. Independent Investigations Office of British Columbia (No. 2),
2024 BCHRT 204
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:
The Applicant
COMPLAINANT
AND:
His Majesty the King in Right of the Province of British Columbia as represented by the Ministry of Attorney General (Independent Investigations Office of British Columbia)
RESPONDENT
REASONS FOR DECISION
Tribunal Member: Shannon Beckett
On their own behalf: DS
Counsel for the Respondent: Rochelle Pauls
Dates of Hearing: May 23, 25, 26, and June 23, 26, 2023
Written Closing Submissions: August 11, 2023
Location of Hearing: Videoconference
I INTRODUCTION
[1] DS is a Métis woman. She is legally trained and has worked in a legal capacity both in Canada and the United States. In the spring of 2018, she applied for a job as an investigator with the Independent Investigation Office of British Columbia [IIO]. The IIO is an independent, civilian-led oversight body, whose mandate is to investigate serious incidents involving police agencies in British Columbia. DS was one of several candidates who competed in a recruitment process for an Investigator position with the IIO. She was offered the position subject to successful completion of an enhanced security screening process. DS underwent the security screening, and no security concerns were identified. However, during the process, DS raised concerns about the storage, retention, and destruction of her personal information which had been collected in relation to a mandatory polygraph examination. She also raised concerns about the polygraph examiner, and about the IIO contacting her current employer. The IIO says that based on the way DS raised these concerns and interacted with various members of its team, it decided to withdraw its offer of employment to her.
[2] DS filed a complaint with the Tribunal alleging the IIO discriminated against her in the area of employment, on the basis of her race and her sex, contrary to s. 13 of the Human Rights Code [Code]. There are two main parts to her complaint. First, she says that the decision to withdraw the offer of employment based on her communications with members of the IIO was connected to her sex and Indigeneity. In particular, she says that her communications, while “strongly worded”, were connected to her experience in the process as an Indigenous woman, and this should have been understandable to the IIO who instead treated her with suspicion and disdain and approached her from a place of “non-compliance”, rather than genuinely trying to help her understand the process.
[3] Second, DS she says the person who administered the polygraph examination was aggressive and rude to her on one occasion, and on another occasion, made remarks to her which were racist and sexist, and which demonstrated his stereotypical views of Indigenous women.
[4] The IIO denies discriminating and argues that DS has not proven there was a connection between her protected characteristics and the IIO’s decision to rescind the job offer. The IIO emphasises that its central goal is to maintain public confidence in law enforcement in BC and that to support the office to achieve this goal, IIO Investigators must have excellent interpersonal communication skills and must be tactful and diplomatic in their internal and external interactions. The IIO claims the way DS conducted herself during the screening process demonstrated that she lacked these key qualities, and would not be a “good fit” for the IIO investigation team. The IIO acknowledges that DS had the right to ask questions about the collection and use of her personal information, and to seek further information about these issues; however, it says that the manner in which she did so was aggressive and rude. It says she repeatedly accused the IIO and its employees of improper conduct, breach of undertaking, and lack of integrity, and this amounted to inappropriate behaviour which was not conducive to a good employment relationship. It says that it was unaware of any connection between DS’s communications and a lack of cultural safety in the process.
[5] The IIO further argues that even if the polygrapher made the discriminatory comments as DS alleges, he did not identify any security concerns, and the decision to revoke DS’s offer of employment was not influenced by either the results of the polygraph, or by the polygrapher himself, who had no contact with anyone in a position to make a decision regarding DS. Further, it argues that the polygrapher’s comments cannot amount to a stand-alone breach of the Code, because at most, the comments could be characterized as in poor taste or insensitive, but do not rise to the level of discrimination prohibited by the Code. Ultimately, the IIO says it had reasonable, non-discriminatory reasons to withdraw the job offer.
[6] Resolution of this complaint turns on whether the IIO’s withdrawal of the job offer was connected to DS’s identity as an Indigenous woman and whether the polygrapher’s conduct itself discriminated against DS.
[7] I heard this matter over five days, with the benefit of testimony from six witnesses including: DS, Sandra Hentzen (Chief Operating Officer of the IIO), Gayle Hogan (former Chief of Investigations for the IIO), Vicki Yeats (former Director of Corporate Services for the IIO), Ronald MacDonald (former Chief Civilian Director of the IIO), and Dennis Paulson (individual who conducted the polygraph examination).
[8] For the following reasons, I find that DS has proved that the IIO discriminated against her contrary to s. 13 of the Code . She has demonstrated that Mr. Paulson’s conduct toward her during two polygraph examinations breached the Code. She has also demonstrated that her sex and race were a factor in the IIO’s decision to rescind the employment offer. While DS’s communications were strongly worded and caused the IIO concern, the evidence gives rise to a reasonable inference that the IIO viewed DS’s conduct through the lens of stereotype, and it relied on its view of DS in deciding to rescind the offer.
[9] I would like to thank the parties for their collaboration and professionalism during the hearing. On behalf of the Tribunal, I would also like to thank Elder Darlene Tommy, who provided an opening and closing prayer for the hearing, and who helped the matter be heard in a good way.
II PRELIMINARY ISSUE: APPLICATION TO LIMIT PUBLICATION
[10] DS has applied to limit publication of her name in this decision. She has also applied to limit public access to three documents contained in one of the exhibits tendered at the hearing: Tab 17, Tab 26, and Tab 30 of the Joint Book of Documents. The IIO does not object to DS’s requests.
[11] DS argues that her privacy and safety interests outweigh the minimal public interest in knowing her name, and that the highly personal nature of the information contained in the three exhibits weighs in favour of limiting public access. I agree.
[12] The Tribunal’s proceedings are presumptively public: Mother A. v. School Dist. C., 2015 BCHRT 64. This presumption is based on the “open court principle”, which essentially holds that full access to court and tribunal proceedings is required to ensure the justice system is transparent, accountable, and accessible. As the Tribunal observed in A v. University and others , 2014 BCHRT 235 (at para. 5), “there is a strong public interest in the Tribunal maintaining open and public processes in order to promote awareness of the Code, education about its application, and access to its processes”.
[13] The presumptively public nature of Tribunal proceedings generally includes publication of party names, public access to parts of the Tribunal Complaint File[1], and public access to exhibits tendered at hearings[2].
[14] However, the Tribunal has recognized the presumption can be overcome, namely, in cases where the privacy interests of one or more parties outweighs the public interest in access to the Tribunal’s proceedings: Rule 5(6) of the Tribunal’s Rules of Practice and Procedure . As set out in JY v. Various Waxing Salons,2019 BCHRT 106, at para. 30, in deciding whether to limit publication of certain information in Tribunal decisions, the Tribunal will consider factors such as the stage of proceedings, the nature of the allegations, the presence of private details in the complaint, potential harm to reputation of one or more of the parties, and other potential harm to a party which may arise as a result of publication.
[15] With respect to publication of her name, DS argues that she does not feel safe being identified as an Indigenous woman who has complained against a police oversight body which employs many ex-police officers. She says that she does not fully trust law enforcement organizations due to her own personal experiences, and due to the experiences of Indigenous people generally in relation to law enforcement. DS submits that “law enforcement is a tight knit national community, and I would not feel safe having my name out there”. In addition to safety issues, DS she says that she cannot afford any more roadblocks and barriers to suitable employment. She says that having her name published in relation to having brought a human rights complaint against an employer may result in other employers being afraid to hire her or labelling her as a “risky hire”.
[16] With respect to the three documents DS requests the Tribunal limit public access to, DS points out these documents contain private, sensitive, and potentially damaging information. In particular, she points to the information in these documents which relates to the intensive “16 Personality Factor” questionnaire she had to complete as part of the recruitment process, and the Security Screening Questionnaire she had to complete as part of the security screening process. She says these questionnaires asked highly personal information, and that when she filled them out, she expected them to only be used for recruitment purposes, and did not expect that years later they might be subject to public scrutiny.
[17] I have reviewed the three documents DS references, which I describe later in my reasons as the “draft briefing note”, the “final briefing note”, and the “PSSO Report”. I note that these documents are important pieces of evidence that I have relied on in my decision on the merits of the complaint. As a matter of transparency and openness, I have referenced various parts of these exhibits in my decision. In that way, the public interest in access to the Tribunal’s process is protected. However, I agree with DS that much of the information contained in these documents is highly personal. Any public interest in access to the Tribunal’s proceedings does not extend to obtaining copies of the full exhibits which contain such highly personal information. The Tribunal has held that private personal information, such as medical information, can be sensitive and potentially harmful to people if connected to them in the public sphere, and that this generally weighs in favour of limiting publication: see for example The Patient v. The Clinic and others, 2019 BCHRT 127, at para 15. I find that rationale is applicable in this case, where the information contained in the exhibits is highly private and highly sensitive, and could cause harm to DS if it were connected to her in the public sphere.
[18] With respect to publication of her name, I agree with DS that her privacy interests outweigh the minimal public interest in knowing her name. The BC Court of Appeal has observed that an order replacing party names with initials in published decisions “minimally impairs the openness of judicial proceedings because such an order relates only to a ‘sliver’ of information”: C.S. v British Columbia (Workers’ Compensation Appeal Tribunal) , 2019 BCCA 406, at para. 37. I am satisfied that DS’s privacy interests outweigh the minimal public interest in knowing her name.
[19] The public interest in access to the Tribunal’s proceedings and understanding of the Tribunal’s decision-making process will not be meaningfully impeded by anonymizing DS in the final decision, and by limiting access to the above-noted three documents. Further, DS’s privacy interests will be protected through the combination of anonymization and limitation of access to these documents. As noted, the IIO does not object to the order sought. As such, I order that the Tribunal will anonymize DS’s name in this decision, and the style of proceeding will remain The Applicant v. His Majesty the King in Right of the Province of British Columbia as represented by the Ministry of Attorney General (Independent Investigations Office of British Columbia) . I further order that the Tribunal will not provide public access to Tabs 17, 26 and 30 of Exhibit 3 – Joint Book of Documents.
III BACKGROUND
[20] Much of the factual background to this complaint is undisputed, and the parties provided significant contemporaneous documentation to support the basic facts underlying the complaint. The majority of the disagreement between the parties concerns the differences in how the parties perceived how the various events unfolded.
History and Context of IIO
[21] The IIO is a police oversight organization. Investigators working for the IIO conduct complex, high-profile investigations into critical incidents in BC where it appears a person may have died or suffered serious harm because of the actions or inactions of a police officer. The IIO is led by a Chief Civilian Director who has the ultimate authority over decisions involving hiring and terminating employees. At the time of the events giving rise to this complaint, Ronald MacDonald, was the Chief Civilian Director of the IIO.
[22] Mr. MacDonald testified that the IIO exists to maintain public faith in police and the rule of law. He said that trust in the public realm is hard to gain and easy to lose, and as a result, the IIO must conduct its operations with utmost transparency and integrity. Both Mr. MacDonald, and Ms. Hogan, the former Chief Investigator, testified that historically, the IIO had significant institutional problems, and that the IIO was working hard to address those problems. Ms. Hogan testified that when she started with the IIO in 2015, the IIO’s reputation with external stakeholders was negative, and workplace morale was low. She testified that internal communications were poor, and that some people had been fired, and others came to work fearing they were going to be fired. She said she wanted to improve these issues, and change the internal environment from one of fear, to one of cooperativeness, where staff knew management would support them and vice versa. Mr. MacDonald testified that when he started in 2017, the IIO had struggled with bad media coverage, and people had spoken out to the media, and the inner workings of the IIO was one of the issues of concern. He said that as a result, the IIO had strict hiring criteria, and needed to ensure it hired people who were “beyond reproach”. He testified that the IIO had standards of conduct which were even higher than the standards of conduct for the BC government, and that the IIO was looking to hire people who would represent themselves well when dealing with persons internally, and who would be a “good fit” for the organization.
Investigator Recruitment
[23] In 2018, the IIO ran a job competition to hire several new Investigators. The recruitment process involved multiple steps, including an initial shortlist, completion of a written assignment, completion of the “16 Personality Factor” questionnaire [16pf Questionnaire], and reference checks. On May 14, the IIO reached out to DS and asked for the contact information for three references, one of which was required to be “a supervisor reference or equivalent”. On May 15, DS provided three references, but did not include her current supervisor in the list. The IIO wrote back the same day and asked that one of her references be a current supervisor. On May 16, DS wrote back stating the following:
Dear [Human Resources Assistant]
I am uncomfortable and not prepared to give my current supervisor as a reference. I have not worked long enough for him and he does not yet know my work ethic or skill set to the level of other references. I also think it’s unfair to put candidates in such a precarious position as it has the likelihood of jeopardizing one’s current position, especially in the absence of a firm job offer […] If you require further clarification please advise.
[24] Ultimately, the IIO did not require her to provide her current employer as a reference, and on or about May 24, 2018, Vicki Yeats, then Director of Corporate Services, wrote to DS and offered her a position as an Investigator. The offer letter explained that the position of Investigator had been designated as one which required enhanced security screening and RCMP reliability screening. The offer letter stated that “this offer of employment is conditional upon satisfactory completion of the Enhanced Security Screening checks prior to commencing in the position, and upon obtaining RCMP Reliability Status clearance thereafter”.
The PSSO and Enhanced Security Screening
[25] DS accepted the offer and returned the signed offer letter to Ms. Yeats on May 31. Also on May 31, the Personnel Screening and Security Office [PSSO], which is a government department operated by the Ministry of Public Safety and Solicitor General, sent DS a package of information along with instructions concerning the security screening process.
[26] It is the PSSO, not the IIO, who undertakes security screening for IIO employees. A Letter of Agreement between the IIO and the PSSO sets out the role of the PSSO in the security screening process as follows:
3.3 PSSO agrees to conduct the enhanced security screening on an applicant and provide a report, including an assessment regarding issues related to security to the Chief Civilian Director. The analysis will be based strictly on the information PSSO collected and will outline any concerns regarding security or suitability. A copy of the polygraphers report will be provided to the Chief Civilian Director, with a request that any hard or electronic copies be destroyed after the hiring decision has been made . Original reports and all other supporting documentation will be maintained by the PSSO. [emphasis added]
[27] The information package that the PSSO sent DS was approximately 22-pages long and advised that security screening would be conducted in several different areas, including: employment history verification , credentials verification, education history verification, provision of a driver’s license abstract, and provision of character references.
[28] In relation to employment history verification, the information package sought information in relation to past and current employment history. On June 5, DS wrote to Ms. Yeats and raised a concern that as part of the employment verification screening check, the security screening package asked for contact information for her current employer. She said that based on an oral conversation between herself, Ms. Yeats and Ms. Hogan, which had taken place on May 24, she understood she did not have to provide this information. DS’s email stated that she had spoken to SR, an investigator with the PSSO, and that SR stated that she only needed a “quick email” from Ms. Yeats confirming her current employer did not need to be contacted. Ms. Yeats wrote back to DS the same day and confirmed she had “sent a note” to SR.
[29] The information package also contained a 15-page “Security Screening Questionnaire”. The instructions pertaining to the Security Screening Questionnaire and Polygraph examination were brief, and consisted of the following:
Security Screening Questionnaire – Polygraph:
Please complete the attached questionnaire as fully as possible. You will then need to return the completed questionnaire to the Personnel Security Screening Office as soon as possible by either fax or email.
You will be contacted to be advised of your interview location, date and time. You will be required to be monitored by Computer Voice Stress Analysis equipment and answer questions in relation to your completed questionnaire.
…
Security Screening Questionnaire – Polygraph
This check requires the applicant to complete the Security Screening questionnaire. The questionnaire pertains to the applicant’s honesty, integrity and lifestyle and requires self disclosure of personal information. The applicant will also be required to attend a security interview based on the questionnaire.
[30] The brief instructions the PSSO provided did not give examinees very much information about what to expect at the polygraph examination. It did not advise examinees that the polygraph was going to be recorded, or explain how and by whom an examinee’s personal information would be handled in the process. It also did not clearly explain the relationship between the Security Screening Questionnaire and the polygraph examination. It did not, for example, explain that the polygraph examination would consist of a polygrapher asking an examinee the same questions they answered in the Security Screening Questionnaire several times, and recording their responses and monitoring their physical reactions.
The First Polygraph
[31] DS completed the Security Screening Questionnaire and returned it to the PSSO. She then attended the IIO offices on June 15 to complete her polygraph examination [the First Polygraph]. There is some dispute between the parties as to how events unfolded at the First Polygraph. I will deal with disputes in the evidence later in my decision. In this section I will simply set out what the involved parties had to say about what happened.
[32] DS says that she attended the First Polygraph and did not know what to expect. She testified she was not clear about how the Security Screening Questionnaire was connected to the polygraph test, or that she was going to be interviewed by an ex-police officer. She said she went into a small, windowless, interview room and met Dennis Paulson, an older, white, ex-Vancouver Police Department officer. She says that he attached her to a polygraph machine via a tight and uncomfortable thumb clip. Then she says Mr. Paulson brought out recording equipment and began to record the session. DS says she was “taken aback” that the polygraph was going to be recorded, and that she began to wonder where and how the recording of her polygraph and her other personal information was going to be stored. She says she told Mr. Paulson she was surprised the polygraph was going to be recorded, and that in response, he asked her if the IIO had provided her with an information sheet about the polygraph exam. She said she had not been provided with an information sheet, and she asked him questions about how he would store her personal polygraph information.
[33] DS testified that at this point Mr. Paulson appeared to get “really mad” and that his face “went red”. She says it appeared he did not like to be questioned. DS says that Mr. Paulson answered some of her questions, for example, he told her that the recording would be stored in his briefcase, and then in his home office. DS says she asked him if someone could break into his office, and he answered in a “flip” way when he said that yes, someone could. DS says she asked Mr. Paulson to call someone in human resources who could fully answer her questions about storage and retention of her personal information, and that he agreed and called someone on his cell phone and left a message. She says he then proceeded to continue with the polygraph examination without having heard back from anyone. She says she stopped him and raised a concern about him continuing on with the polygraph exam before a human resources person had called back and answered her questions. She says that after she said this to him, he became angry and slammed his notebook down on the table in front of her hard enough that the table shook. She says he rudely told her to leave the room and go and wait in the hall and that she “didn’t need to be there”.
[34] DS testified that she was “shocked” and “stunned” at his behaviour, and that it was quite aggressive “when you’re in a room with this ex-Vancouver sergeant and you’re a woman, and he’s getting really visibly upset”. She said when he rudely told her to leave, it made her feel like a child who was being “banished to the hallway” as if she had done something bad.
[35] Mr. Paulson provided a similar description of the First Polygraph, though he denied becoming angry or slamming his book down. At the hearing, he testified that he had been an officer with the Vancouver Police Department for almost thirty years before he retired in 2004, and that prior to his retirement, he conducted polygraph exams for the Vancouver Police Department. He said that since his retirement, he has conducted polygraph exams on a contract basis privately for organizations like the IIO. He estimated that he currently conducts 175-200 polygraphs per year, and that in 2018, he administered approximately 100 polygraphs.
[36] With respect to the First Polygraph, Mr. Paulson testified that DS attended on June 15, and he introduced himself and wanted to start the recording. He said DS was surprised that the polygraph was going to be recorded and asked him what was going to happen to the recording. He said he answered that he had an external hard drive and that he kept the recording for six months and then destroyed it. He said DS did not agree to the polygraph being recorded so he never recorded anything. He testified that over the entire time he had been administering pre-employment polygraphs, this was the first time anyone had ever questioned or not agreed with the recording. He said that as a result, he phoned SR, his contact at PSSO, and he also called Irene Lal, his administrative contact at IIO who he booked the IIO interview rooms with. He said neither person was available, so he left a message. He said that after he left the message with Ms. Lal, he wanted to start some preliminary questioning with DS while they waited to hear back. He said she disagreed, so because the interview room was so small, he asked her to wait in the waiting room. He said that afterwards, while he was waiting for a call back, someone from the IIO came and told him that DS had left. He said at that point he went back to his office and wrote a two-page report about what had occurred, and sent it to SR at the PSSO. This two-page report was not provided to the Tribunal.
[37] In cross-examination, Mr. Paulson denied getting angry at DS, and said he was not frustrated during the First Polygraph, and “I don’t get frustrated”. He said he was just taken aback about her questions regarding storage of records because he could not answer the questions. Mr. Paulson also denied slamming his book down on the table.
[38] DS testified that after Mr. Paulson asked her to leave the interview room, she waited outside the room in the hallway. She says that after awhile, Ms. Yeats and Ms. Hogan came to meet her. She said that Ms. Hogan appeared to be upset, and that her face was drawn, and her lips were terse. DS said that she was asked to go into a different small, dark, room, and was asked to sit down while Ms. Hogan and Ms. Yeats remained standing. She said Ms. Hogan was speaking down to her and told her she had to complete the polygraph in order to continue with the process. DS said that she felt as though Ms. Hogan thought she was trying to get out of doing the polygraph examination, even though all DS did was ask questions about how her sensitive information was going to be stored. DS testified she never tried to get out of doing the polygraph, and that she understood it was a mandatory part of the process.
[39] Ms. Hogan’s testimony contrasted somewhat with DS’s. Ms. Hogan said that it was DS, and not herself, who was “really forceful” and “strong” toward her when they met after the First Polygraph. Ms. Hogan said she had been advised DS was upset about the polygraph, and went to meet her. She said she could not recall whether she was standing or sitting when she spoke to DS, but that her impression was that DS was upset, and found the questions intrusive and didn’t like them. Ms. Hogan testified that she felt that DS was trying to influence her to say that DS didn’t have to take the polygraph; however, she did not explain what DS said that made her feel that way. When cross-examined about why she felt DS was trying to get out of having to do the polygraph, and Ms. Hogan said she did not recall DS asking directly not to do the polygraph, but Ms. Hogan was just left with that impression. When pressed, Ms. Hogan was unable to give any examples of language DS used that contributed to her impression. Ms. Hogan says she explained to DS the polygraph was mandatory, and told her that if she wanted to proceed, they would set up another time to conduct the polygraph.
Correspondence Between DS and IIO Following the First Polygraph
[40] On June 18, DS wrote a letter to Ms. Yeats and Ms. Hogan outlining her concerns with the First Polygraph and the storage and retention of her personal information. She advised she would be “happy to reschedule the polygraph examination”, but she identified “serious questions of privacy issues/concerns” which she said, “must be addressed”. After setting out answers she had received from Mr. Paulson about how her information would be stored, DS stated the following:
I am shocked at the low security afforded candidates, especially for such sensitive information as polygraph examination results. I am not confident that such lax security measures are enough to keep out of a third parties’ control. My information, along with other candidates, has the enormous potential to be compromised. Could you explain why the IIO’s security measures are not in keeping with provincial standards? I note that the position requires a high level of security, but the candidates appear to be receiving the lowest level. Even accused individuals have more security and privacy protections than IIO employment applications.
[41] DS asked that these issues be addressed before she proceeded with the polygraph examination. She also requested a different polygraph examiner because she felt Mr. Paulson was not neutral and would be unable to “put our interaction behind him”. She stated in her letter that Mr. Paulson had slammed his book down on the table after she paused the First Polygraph and asked him questions.
[42] In response to DS’s letter, Ms. Lal, an IIO Human Resources Assistant, emailed DS on June 20 and advised that Ms. Hogan and Ms. Yeats were reviewing her letter. Ms. Lal also asked for the contact information for DS’s current employer for the purposes of “employment verification”. Ms. Lal asked that this information be sent both to the PSSO, and to the IIO.
[43] DS wrote back to Ms. Lal the same day and advised her that “by way of agreement with [Ms. Hogan and Ms. Yeats], I do not have to forward my current employer for the reasons discussed and agreed upon. Please see attached email where [Ms. Yeats] acknowledged this agreement and confirmed same”.
[44] In response, Aubrina Culp, the IIO Executive Administrative Assistant, emailed DS explaining that although they would not be contacting her current employer “for reference purposes”, they would need the contact information for her current employer because “as part of the Enhanced Security Screening process, all employment must be verified” [emphasis in original].
[45] On June 26, DS wrote to Ms. Hogan and Ms. Yeats in response to Ms. Culp’s email. In the letter, DS stated the following:
This letter is in response to the email sent by Aubrina Culp, dated June 22, 2018 whereby IIO has again, requested my current employer’s information.
This matter was settled by way of agreement as discussed on May 24, 2018 when you extended the offer of employment. You are in breach of your undertaking that you would not contact my current employer. I note that there was also a secondary agreement between myself, Vicki Yeats and [SR] when [SR] requested my current employer’s contact information. I informed [SR] that we had an agreement and she said that was fine and all she required was a note stating such from Vicki Yeats. Vicki provided said note to [SR] on June 5 th 2018 via email which settled the matter and I did not hear further from [SR]. I have provided a copy of this email in my email dated June 20, 2018. On June 22th, 2018 you confirmed that you have reneged on our agreement by again requesting my current employer’s contact information. To go back on an agreement is not fair to me as a candidate, especially several weeks later when time is of the essence in the screening process. I believed the agreement would be honoured and the matter settled.
[46] DS went on in the letter to provide IIO with a copy of a statement of her earnings which showed her current employer which she said, “ought to satisfy your criteria”. She also asked for an update on the questions she had raised in her June 18 letter.
[47] At the hearing, Ms. Yeats testified that she had agreed not to contact DS’s current employer for reference purposes. However, she testified that PSSO still needed to confirm employment dates, which was part of the security screening process. She specifically testified that it was PSSO and not the IIO who would need that information. Ms. Yeats testified that the PSSO needed a way to confirm past work dates, and that was what the PSSO requested. In her direct examination Ms. Yeats denied having provided DS with a “secondary agreement” not to contact her current employer as DS had alleged in her June 26 letter; however, in cross-examination she agreed the June 5 email she sent to DS indicated she had sent a note to SR advising SR not to contact DS’s current employer.
[48] On June 29, Ms. Yeats wrote to DS and provided a response to DS’s June 18 letter asking about privacy, disclosure, and security of the polygraph process. In particular, Ms. Yeats advised DS that the IIO had followed up with the PSSO and learned:
1. the polygraph information, including the recording, was stored for six months by the polygraph provider before being destroyed;
2. the polygraph provider stores the recordings on a memory stick and all information including paper copies of the questionnaire and the memory stick, are stored in a locked cabinet in a home office; and
3. there is no notification from the polygraph provider when the polygraph interview information is destroyed, but that in DS’s case, they requested a notification and ensured the material would be destroyed at the IIO offices.
[49] In response to DS’s request for a different polygraph examiner Ms. Yeats stated:
[T]he polygraph provider has been a certified polygrapher since 2000 and has worked extensively with Abbotsford and Vancouver City Police detachments. He has worked on contract for the PSSO for a period of 2 years, and there have been no previous concerns regarding [DP] or the work he performs.
[50] Ms. Yeats’ June 29 letter also responded to DS’s June 26 letter, and advised that the PSSO had confirmed they would accept DS’s statement of earnings as sufficient to verify her current employment.
[51] DS wrote back to Ms. Yeats and thanked her for her letter and advised her availability on July 4 to take the polygraph examination. She asked Ms. Yeats for a copy of the polygraph recording and asked if the polygraph results could be stored at the IIO offices instead of with the polygrapher.
[52] The IIO consulted with the Acting Director of Security Screening at the PSSO about DS’s requests. The Acting Director advised that in order to safeguard the “integrity and confidentiality of the polygraph process”, they should not grant DS’s request for a copy of the recording, but that DS could apply for a copy of the recording through a Freedom of Information request. The Acting Director also advised that it would be inappropriate for the IIO to store the records onsite, and the requirement that the PSSO stored the results was in place to protect the privacy of applicants.
[53] Ms. Lal emailed DS later on July 3 confirming her polygraph appointment for the next day and advising that she could request a copy of her polygraph recording through a Freedom of Information request, and that in order to protect her privacy, the IIO could not store her polygraph records.
[54] On July 4, DS wrote to Ms. Hogan and Ms. Yeats and confirmed her polygraph appointment. She also “register[ed] her disappointment and dismay” at the IIO’s response to her request for a copy of the polygraph recording and for the polygraph materials to be stored at the IIO offices. She stated that Mr. Paulson had told her that her polygraph results could be stored at the IIO office, and she had relied on his statement. She closed the letter by stating:
To dishonour [Mr. Paulson’s] statements is not in keeping with the integrity of the process because I was told it could be stored and your response now is that it cannot. Your responses appear to be arbitrary rather than sound policy that protects candidates’ privacy.
The Second Polygraph
[55] On July 4, DS attended the re-scheduled polygraph examination at the IIO offices [the Second Polygraph]. DS testified that when she arrived, Mr. Paulson “didn’t seem thrilled to see me”, and that she was worried he was holding onto a grudge from their last meeting. DS testified that during the examination Mr. Paulson made several inappropriate comments to her which demonstrated his discriminatory attitudes towards Indigenous women. First, he told her that in his experience women were better liars than men. DS testified she was confused as to why he was telling her this during her own polygraph exam. Next, while Mr. Paulson was questioning DS about gaps in her employment, DS told him that at one point she had to leave work to look after her father in Manitoba when he was temporarily blinded by diabetes. DS testified that in response, Mr. Paulson told her that when he used to police in Bella Coola, “many First Nations were obese and drank pop and ate potato chips”. DS testified she did not know what to say in response. She said that many of her close family members have diabetes, and Mr. Paulson’s comments to her were insensitive and upset her. Finally, DS testified that at the end of the exam, Mr. Paulson told her that he had no concerns about her polygraph results, but that he wanted to know what she was thinking when he asked her about whether she engaged in illegal sex or illegal drugs because her readings had “shot up”. DS testified she felt “creeped out” by the questions. She said that she told him she was thinking about how uncomfortable the clip on her thumb was, and that even after she gave him that answer, he asked her again what she was thinking when he asked her those questions. DS said she was confused as to why Mr. Paulson was asking her these questions after having told her he did not have any concerns with her polygraph results. DS said that after he asked her again, she told him she did not know what to tell him, but that she did not engage in illegal sex or drug use. DS said she saw Mr. Paulson smirk, and she felt as though he was trying to humiliate her because of their previous interaction.
[56] Mr. Paulson’s testimony about the Second Polygraph was generally consistent with DS’s testimony. He testified about his standard process for conducting polygraph examinations for the IIO, and explained it is standard practice for him to ask people questions about their capacity to take the polygraph exam before he begins questioning them. He testified that he generally asks about people’s general physical condition. He agreed that it is standard for him to ask whether people have consumed alcohol or prescription or illegal drugs in the 24 -48 hours prior to the exam.
[57] Mr. Paulson did not remember whether he made the comment that women were better liars than men. However, he said he did remember talking with DS about time he spent in Bella Coola. He said he did not police there, but spent approximately three months there with his son. He testified that in response to DS’s comments about her father’s diabetes, he recounted that he had a “conversation with an elderly Indigenous man in one of the bars in Bella Coola…and he told me there was a lot of obesity in the people of Bella Coola because they eat a lot of sugar and sweets”.
[58] Mr. Paulson testified that after he finishes asking the questions in the polygraph interview, he takes the polygraph equipment off and will discuss how the polygraph examination went for the person. He said it is his standard practice at this point to go back to questions where a person reacted more and ask them “what was on your mind?” or “what were you thinking about when I asked you that question?”
[59] Mr. Paulson recounted that after the Second Polygraph he determined he had no concerns with DS’s results, and he wrote a report for the PSSO identifying that DP’s polygraph had not raised any security concerns. He said the report that he provides to the PSSO generally reviews the person’s responses to the questions, and provides an assessment about whether the person was being truthful in their responses or not. When asked whether he ever directly communicated with anyone at the IIO, he said he talked with Ms. Lal in relation to availability of interview rooms. He testified that he did not talk to anyone about DS until after he became aware of DS’s human rights complaint.
Internal IIO Correspondence, and Briefing Note
[60] In the meanwhile, Ms. Hogan, Ms. Yeats, and Ms. Hentzen were taking steps to consider the issue of revoking the offer of employment to DS.
[61] On June 19, Ms. Hentzen emailed SR, the PSSO investigator who had been corresponding with DS about the security screening process, and provided her with DS’s June 18 letter requesting further information about the storage and retention of the polygraph documents and requesting a different polygrapher. In her email, Ms. Hentzen said “Gayle [Hogan] and I would like to schedule some time to review the letter with you. In addition, I understand there were some red flags pertaining to employment which we can also discuss in our conference call”. SR was not called as a witness in this hearing, and neither Ms. Hogan nor Ms. Hentzen testified about whether the meeting took place or what was discussed during the meeting.
[62] Ms. Hogan and Ms. Yeats both testified that after receiving DS’s June 18 and June 26 letters and after speaking with DS in person in relation to her concerns about the polygraph examination and her private information, they began to develop concerns about DS’s conduct and fit as an investigator with the IIO.
[63] Ms. Yeats testified that “it seemed like we could never satisfy” and that “every answer that we gave was not sufficient enough”. Ms. Yeats said that DS’s correspondence became “accusatory”, with DS telling the IIO about what she did not like or telling the IIO that it was doing things wrong. Ms. Yeats also testified that she was approached by members of her staff who said that DS had been “rude” and “demanding”. None of the support staff who Ms. Yeats testified had spoken to her about DS were called as witnesses at the hearing.
[64] On June 28, Ms. Hogan emailed a five-page draft briefing note to Ms. Yeats and Ms. Hentzen. The draft briefing note recommended that the IIO rescind the offer of employment it had extended to DS. The body of the briefing note set out notes outlining the recruitment process and how DS had scored. It also set out the security screening process and referenced DS’s answers to the 16pf Questionnaire. Under the heading “Enhanced Security Screening process/further information” the note stated, “in this process certain areas have risen to the level of serious flags of concern”. The draft briefing note then went on to detail some of DS’s scores on the 16pf Questionnaire and the associated interpretation of those scores.
[65] The draft briefing note also referenced “interpersonal interaction with IIO corporate staff” and included a partial reference to what Ms. Hogan indicated she had “subsequently heard” about DS’s interactions with Ms. Lal and MF, another IIO support staff member.
[66] Ms. Hogan testified that the draft briefing note was just her notes, and was intended to be supplemented with information from Ms. Hentzen and Ms. Yeats. One section of the briefing note which sought additional information was the section which described the events that unfolded at the First Polygraph on June 15. The briefing note stated that when Ms. Hogan and Ms. Yeats met DS after she stopped the First Polygraph, she “presented as affronted ‘because she had not known the test was going to be recorded’ and ‘She does not like surprises’”. Ms. Hogan wrote that DS was “trying to influence me to agree she did not have to do the examination”.
[67] In the same section of the briefing note, Ms. Hogan referenced an email that the IIO received from Mr. Paulson. Specifically, she wrote, “I cannot find the email we got back with further detail from Dennis Paulson. Will be good to include some excerpts and attach the full email”. The email Ms. Hogan referenced as being from Mr. Paulson was not produced before or at the hearing. In cross-examination Ms. Hogan testified that she did not receive the email directly, but that it was sent to the IIO in general. She did not explain what information may have been contained in the email. When she was asked questions in redirect, Ms. Hogan testified that there may never have been an email.
[68] Near the end of the draft briefing note, Ms. Hogan listed the following three “issues identified throughout the process which cause grave concern as to the risk to IIO if [DS] was to be employed”:
1. DS’s “history of short term employment”;
2. “the fit as to her personality which is highlighted in the 16pf and with her interactions with corporate staff and Ms. Yeats and I”; and
3. “the historical cultural, morale issues at the IIO”.
[69] The draft briefing note then went on to set out the “Fair and reasonable management Action” the IIO had taken in response to DS’s concerns. One of the items listed under this heading was as follows:
We have not been made aware of any potential cultural concerns which IIO needs to address however have been mindful since [DS] self-identified throughout the process. In fact having a persons from first nations at IIO would enhance the diversity. [emphasis added]
[70] On July 5, the day after the second polygraph, Ms. Hogan sent a final version of the briefing note to Mr. MacDonald. Ms. Hogan testified that as the Chief Civilian Director, Mr. MacDonald was the only person who had the authority to revoke the offer of employment with the IIO. The July 5 briefing note was signed by Ms. Hogan and Ms. Hentzen, and was very similar to the June 28 draft briefing note, though the missing information that Ms. Hogan had requested from Ms. Yeats and Ms. Hentzen appears to have been added, and the reference to the email the IIO had received from Mr. Paulson had been removed. The three main issues of “grave concern” which were outlined in the conclusion of the final briefing note were the same as those outlined in the draft briefing note, and the concluding reference to “cultural concerns” remained in the final briefing note. The final briefing note recommended that the IIO withdraw DS’s offer of employment, and seek legal advice about doing so.
PSSO Report and Decision to Withdraw Offer of Employment
[71] On July 6, DS wrote to Ms. Hogan and Ms. Yeats and confirmed she had attended the Second Polygraph. In the letter, she raised a concern that Mr. Paulson had been unaware that he was to destroy her polygraph materials at the IIO offices, as Ms. Yeats had stated in her June 29 letter. DS asked for “clarification from you that your undertaking will be followed through” and said she would appreciate “a formal statutory declaration from Mr. Paulson that he has complied with all my privacy concerns including the destruction and notification of my records at the appropriate time”. DS also reiterated “disappointment” she raised in her July 4 letter concerning the IIO’s refusal to provide her with a copy of her polygraph recording. In her July 6 letter DS stated, “I have waived most of my privacy rights in order to fully participate in your selection process and thus deserve a more appropriate remedy which would be to simply provide me with a copy”.
[72] On or about July 17, the IIO received the security screening report from the PSSO [the PSSO Report]. SR was listed as the “Investigator” on the report, and the report appears to have been written by the Acting Director of Security Screening at the PSSO. The PSSO Report concluded that:
1. DS had passed her Criminal Record check with Vulnerable Sector Screening,
2. DS had a clean Driver’s Abstract for the past five years,
3. DS had her education, employment and credentials verified, and
4. DS had passed the Security Screening Questionnaire and Polygraph Interview and “no significant security issues or concerns were identified”.
[73] Despite these conclusions, in the third to last paragraph of the report, the PSSO identified the following concern:
Despite [DS’s] employment history not being a security concern the various dismissals and circumstances surrounding them suggests a pattern of behaviour which may be a concern to the Independent Investigations Office. [DS’s] written correspondence with the IIO and PSSO was adversarial in nature and suggests that [DS] may not be suitable for a position as an Investigator; however no criminal record or specific security concerns were identified.
[74] The final paragraph of the report recommended that the IIO “further consider [DS’s] suitability for employment before granting a security clearance”.
[75] On July 20, Mr. MacDonald sent DS a letter rescinding the IIO’s offer of employment. In the letter Mr. Macdonald stated that subsequent to the offer being made to DS, “serious concerns have arisen regarding your communications and interactions with our office, and with the security screening process”. In particular, he set out the following:
During this time you have questioned our integrity and alleged that the IIO has breached undertakings, failed to comply with policies, and misled you. Among other matters you have registered your disappointment and dismay about senior IIO officials and claimed the IIO is unprofessional.
As the CCD, I welcome respectful questioning and conversation from all members of the IIO. Thus while I believe the allegations you have raised are inaccurate, and that causes concern, it is the way you have conducted yourself in raising those complaints that causes me the most significant concern. Your communications and style of interaction have been overly adversarial and often disrespectful. This style of communication is not consistent with how we must operate at the IIO, both internally and externally.
To highlight this, your interactions with IIO support staff have been seen as rude and demanding. This is well below the standard required of an investigator or any person at the IIO.
The fact that these concerning communications are occurring before you have even commenced working at the IIO only serves to make the situation worse.
Two fundamental elements of the employment relationship are trust and loyalty. Also as important, IIO staff members are required to comply with the Standards of Conduct that require all employees of the BC Public Service to treat each other with respect and dignity and contribute to a positive work environment. The duties of the Investigator position in particular require public and stakeholder interactions that must build confidence and avoid unduly escalating situations. The examples we have seen of your communication style to date clearly do not meet the necessary standard.
[76] Mr. MacDonald testified at length about how he came to the decision to withdraw DS’s offer of employment. He recalled that early on in the recruitment process Ms. Hogan had informed him that there was a candidate that she had some concerns about because of the way the candidate had answered the 16 pf Questionnaire. Ms. Hogan told him that she initially had concerns, but that once the interview was done, those concerns were allayed, and she was happy to move forward with the candidate. Mr. MacDonald said that later, Ms. Hogan came back and told him that she now thought IIO should rescind the offer made to DS because of interactions she had “with the polygraphist during the security screening process and also with staff in general during the process”.
[77] Mr. MacDonald testified that the “most significant” issue raised in relation to DS was that her interactions with the IIO administrative staff were “inappropriate, demanding, somewhat condescending”. He explained that in his lengthy career he found that the way an individual treats a person working in a support role or a role that “some might consider less important” says a lot about that person. So, when he heard about the way DS had treated IIO support staff, that was a significant concern to him.
[78] Mr. MacDonald said Ms. Hogan followed up their oral conversation with the final briefing note on or about July 5. He testified he reviewed the briefing note and was concerned by what he read. He said he was particularly concerned about “the polygraph situation” and was “surprised” that DS, as a trained lawyer, would not expect the polygraph to be recorded, or that once she found out, she would not reasonably recognize that it made sense and just carry on with the process. Mr. MacDonald further testified that he did not think DS’s request to be present when her records were destroyed was a fair or justified position to take, because it was though she was saying she didn’t trust the IIO to properly do this.
[79] After reviewing the briefing note, Mr. MacDonald testified he decided to wait for the PSSO Report before making his final decision on whether to rescind the offer of employment. He testified that upon review, the PSSO Report confirmed his concerns about DS’s suitability for employment with the IIO. He testified that the PSSO Report “added other pieces of evidence which may have been there before, but I don’t think I really took note of them before I read this report.” Mr. MacDonald testified that these additional issues had to do with DS’s history of short-term employment. He said that while the PSSO Report did not flag any security concerns, it did confirm his concerns about her suitability as an IIO investigator. He testified that based on the previous information he had received about DS from Ms. Hogan, and after his review of the PSSO Report, he did not feel that DS possessed the qualities of being professional, measured, and constructive, which qualities are required for an IIO investigator.
[80] On August 15, approximately one month after the IIO withdrew the offer of employment, DS filed her complaint with the Tribunal.
[81] After the IIO withdrew the offer of employment, there was some back-and-forth correspondence between DS and Mr. MacDonald. Briefly, on August 20, DS wrote to Mr. MacDonald seeking further information about how he concluded that her communication with the IIO had been adversarial and disrespectful. On August 29, Mr. MacDonald responded and stated that it was DS’s interactions with staff and her correspondence with the IIO that had caused him concern. He set out three specific examples. On August 30, DS wrote back and asked for “precise incidents to substantiate the allegations raised”. Mr. MacDonald wrote back to DS on September 4 and advised her that he had already responded to her query and had no further comments to make on the matter.
IV ANALYSIS AND DECISION
[82] Section 13 of the Code prohibits discrimination in employment, or in “any term or condition of employment”, based on any one or more of 17 protected characteristics[3]. DS’s complaint alleges that the IIO discriminated against her based on two protected characteristics, “race” and “sex”. It is clear from her submissions and her testimony at the hearing that DS is alleging discrimination based on her intersectional identity as an Indigenous, specifically Métis, woman.
[83] To prove her complaint of discrimination, DS has to prove:
1. she has characteristics which are protected by the Code,
2. she experienced an adverse impact in the area of employment, and
3. her protected characteristics were a factor in the adverse impact.
Moore v. British Columbia (Education), 2012 SCC 61 at para. 33
[84] Under the third element, DS need only show that a protected characteristic was “a factor” in the adverse impact. She is not required to prove that her protected characteristics were a “significant” or the “overriding” factor in the adverse impact: Armstrong v. British Columbia (Ministry of Health) , 2010 BCCA 560 at para. 21.
[85] The IIO does not dispute that DS’s identity as an Indigenous woman is Code protected, or that DS experienced an adverse impact in the area of employment when the IIO rescinded the offer of employment it had made to her. It does dispute that Mr. Paulson’s conduct amounts to a beach of the Code,and that DS’s sex and race were factors in its decision to rescind the job offer.
[86] Based on the parties’ positions, the following are the issues I must resolve to determine whether the IIO discriminated against DS:
a. Did Mr. Paulson’s conduct at the First and Second Polygraphs amount to a stand-alone breach of the Code?
b. Was DS’s identity as a Métis woman a factor in the IIO’s decision to revoke the offer of employment?
[87] I deal with each issue identified above in turn.
A. Did Mr. Paulson’s conduct at the First and Second Polygraphs amount to a stand-alone breach of the Code?
[88] I first make findings about Mr. Paulson’s conduct at the two polygraphs. I then consider whether his conduct violates s. 13 of the Code.
1. Mr. Paulson’s Conduct at the First and Second Polygraph Examinations
[89] It is clear from their testimony at the hearing that DS and Mr. Paulson’s experiences of the events at the First and Second Polygraph were very different. Later in this decision I will discuss the impact on DS of Mr. Paulson’s conduct. In this section, I make findings about what happened; that is, about Mr. Paulson’s questions and conduct during the First and Second Polygraphs.
[90] DS provides the following five examples of conduct that she says demonstrate Mr. Paulson’s discriminatory views of Indigenous women:
1. Mr. Paulson got angry and aggressively slammed his book down and rudely told her to leave the room when she asked him questions and refused to let him record the First Polygraph until her questions were answered,
2. Mr. Paulson told her that in his experience women were better liars than men,
3. Mr. Paulson commented that Indigenous people in Bella Coola were obese because they ate potato chips and drank a lot of pop,
4. Mr. Paulson asked her about her alcohol consumption 24 and 48 hours prior to the polygraph exam, and
5. Mr. Paulson repeatedly asked her what she was thinking about when she answered polygraph questions in relation to illegal sex and drug use.
[91] DS and Mr. Paulson gave very similar accounts of the events that occurred during the two polygraph examinations, however their evidence conflicted on two points:
1. Mr. Paulson denied he became frustrated and slammed his notebook down when DS asked him questions at the First Polygraph.
2. With respect to the Second Polygraph, Mr. Paulson said he could not recall whether he made the comment “women are better liars than men”.
[92] I first address the three areas where there is no substantial dispute in the evidence.
2. No substantial dispute in the evidence
Questions about Illegal Sex and Drug Use
[93] There is no dispute, and I find, that after the polygraph equipment had been removed, Mr. Paulson asked DS what she was thinking about when she answered polygraph questions in relation to illegal sex and drug use. The Security Screening Questionnaire that DS filled out prior to the polygraph exam contained questions about illegal sex and drug use, and both DS and Mr. Paulson testified that the polygraph exam involved Mr. Paulson asking DS the same questions she answered in the Security Screening Questionnaire. I accept Mr. Paulson’s evidence that it was his standard practice to go back at the conclusion of a polygraph exam and ask participants about what they were thinking for questions where their reactions were strong. Mr. Paulson viewed these questions as standard practice, even though they were not asked while a person was attached to polygraph equipment or being monitored for their reactions. DS said she was asked about what she was thinking when she answered the question about illegal sex, and then she was asked about what she was thinking about when she answered the question about illegal drug use. Although Mr. Paulson could not specifically recall asking her those particular questions, he agreed that if she had reacted to those questions during the polygraph he would have gone back and asked her what she was thinking in relation to each of them.
Question about Alcohol Consumption
[94] There is also no substantial dispute and I find that Mr. Paulson asked whether DS had consumed alcohol prior to the polygraph. DS testified Mr. Paulson asked whether she consumed alcohol within the past 24 and 48 hours, and Mr. Paulson said his normal practice was to ask whether examinees consumed alcohol within the past 48 hours. In my view, nothing turns on this distinction. I accept Mr. Paulson’s evidence that his standard practice was to ask examinees about their alcohol consumption prior to the polygraph in order to assess their capacity to undergo the polygraph. The question about alcohol consumption was consistent with his testimony that if there was an issue with a person’s capacity to take the exam, he would not conduct the exam at that time.
Comments about Indigenous People in Bella Coola
[95] Finally, I find that for the purposes of this decision, there is no substantial dispute between the parties in relation to Mr. Paulson’s comments in relation Indigenous people in Bella Coola. DS says after she explained one gap in her employment being as a result of having to leave work to look after her father who was temporarily blinded by diabetes, Mr. Paulson told her that when he used to police in Bella Coola, “many First Nations were obese and drank pop and ate potato chips”. Mr. Paulson did not deny making a statement to DS about Indigenous people in Bella Coola being obese and connecting that obesity to dietary choices. However, he emphasised that the comment was made in a different context than what DS explained. His main dispute with DS’s version of events was that:
1. he never said he was a police officer in Bella Coola, but would have said that he was up in Bella Coola helping his son,
2. it was not his own observation about Indigenous people being obese and eating certain items, but it was the observation of an Indigenous Elder who he met “in one of the bars in Bella Coola”, and
3. the Indigenous Elder told him that there was a lot of obesity in the people of Bella Coola because they ate sugar and sweets.
[96] As I will discuss in more detail below, it does not matter which version of events in relation to this comment occurred, because in either case, the comments evidence insidious stereotypical views of Indigenous people.
3. Conflicts in the evidence
[97] I turn next to the conflicts in the evidence. Because I must assess Mr. Paulson’s conduct at the First and Second Polygraphs, I must make credibility and reliability findings about these conflicts. In doing so, I will apply the following criteria set out in Bradshaw v. Stenner , 2010 BCSC 1398, aff’d 2012 BCCA 296, leave to appeal refused, [2012] S.C.C.A. No. 392, at para. 186:
Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides … The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness’ evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally …. Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time … [citations omitted]
[98] The events that DS and Mr. Paulson gave evidence about occurred approximately five years ago and were fairly short in duration. Nevertheless, both were able to recollect, with much consistency, how the events unfolded. I find both DS’s and Mr. Paulson’s evidence was clear, and that they each provided evidence to the best of their recollections. DS repeatedly stated that she remembered with clarity the specific comments that were made and how they were made because of the substantial impact the comments had on her. Mr. Paulson repeatedly stated that without his notes, he had a difficult time recalling the specific events that took place.
[99] For the following reasons, I prefer DS’s evidence with respect to the events at the First Polygraph and the comment at the Second Polygraph about women being better liars than men.
Conduct at First Polygraph
[100] First, Mr. Paulson testified that he did not have notes about the events that occurred at the First and Second Polygraphs, and the events occurred five years ago, and it was very difficult for him to recall specific events because he had conducted approximately 600-700 polygraphs in the meanwhile.
[101] Next, DS’s evidence that Mr. Paulson became frustrated and slammed his notebook down on the table was contemporaneously documented in her June 18 letter to the IIO, and has remained consistent right up to the hearing. In her June 18 letter, DS requested a different polygrapher for her second polygraph due to Mr. Paulson’s alleged conduct which she described as follows:
I would also request a different polygrapher as I note that an examiner must be neutral and I am not confident that Mr. Paulson can put our interaction behind him. He was very uncomfortable with my questions and at one point slammed his book down when I halted the examination pending further discussion.
[102] At the time she wrote the June 18 letter to the IIO, DS does not appear to have had any motivation to lie about what occurred at the First Polygraph. At that point she was still engaged in the security screening process, and had expressed a willingness to continue on with the polygraph exam once she received answers about how her personal information would be handled.
[103] DS’s testimony was very specific about how the events at the First Polygraph unfolded and how Mr. Paulson slammed his notebook down aggressively, hard enough to shake the table. She was also very specific about how he used a rude tone of voice when he asked her to leave the interview room, specifically recalling his statement that she “didn’t been to be there”. She testified that this statement and his conduct made her feel like she was a child who had been banished to the hallway. Mr. Paulson denied slamming his notebook down, but he did not deny DS’s allegation that he was rude when he asked her to leave the room, he simply testified that he asked her to leave the room because it was small. DS testified that as an Indigenous woman in a small room with a white, ex-police officer, she was deeply impacted by his conduct toward her. I accept DS’s evidence that she was deeply impacted by Mr. Paulson’s conduct, and I find that DS would be more likely than Mr. Paulson to remember the specific conduct that had such an impact on her.
[104] Further, when DS asked Mr. Paulson about whether he got frustrated when she asked him about her personal information, Mr. Paulson denied getting frustrated at DS, and said “I don’t get frustrated”. I find the blanket statement that Mr. Paulson does not get frustrated, as answer to DS’s question about whether he did get frustrated in that particular case, to be an unlikely state of affairs. It is unreasonable to say that a person never becomes frustrated.
[105] Finally, I note that Ms. Hogan’s evidence about meeting DS after the First Polygraph was that DS was visibly upset. Ms. Hogan further acknowledged in cross-examination that DS articulated at the time that she was uncomfortable with how the polygraph had gone. Appearing upset and stating to Ms. Hogan that she was uncomfortable, is consistent with DS’s explanation that she had just experienced negative conduct from Mr. Paulson.
[106] Taken together, these factors lead me to accept that it is more likely than not that during the First Polygraph Mr. Paulson slammed his notebook on the table, hard enough for the table to shake. I further find that he rudely asked DS to leave the interview room and wait in the hallway.
Comment that “women are better liars than men”
[107] Next, I find that more likely than not, Mr. Paulson made the statement “women are better liars than men”. DS remembered Mr. Paulson saying it. Mr. Paulson did not deny making that statement, but said that without his notes he could not recall whether he made that statement. Further, Mr. Paulson testified that he had conducted approximately 100 polygraph exams in 2018, so what might have stood out to DS, who had never completed a polygraph exam before, may not have stood out to him. Finally, I find that DS, as a female person who was about to undergo a test to determine whether she was lying, would be more likely to remember a statement from the person conducting the test about women being better liars than men. Regardless of whether the statement was intended to cause discomfort or express suspicion, or whether the statement was simply intended as an innocuous observation, it is likely that such a statement, made in the circumstances of an active polygraph examination, would stand out to DS.
[108] The IIO argues that based on DS’s correspondence to the IIO in which she “repeatedly and vociferously raised complaints with the IIO regarding the protection of her personal information…it is simply not credible that she would not have raised her allegations of discriminatory conduct against Mr. Paulson at the time”. I am not persuaded by this argument. The Tribunal has recognized that there are many reasons why a person may not raise allegations of discrimination at the time that they happen. In the present case, DS testified that based on her experience with the IIO to date, she did not feel culturally safe raising these allegations with the IIO. In my view, a willingness to raise a concern about a procedural or administrative issue is very different than a willingness to raise a concern about a personal experience of discrimination. Further, I note that by this point, DS had already complained about Mr. Paulson’s conduct at the First Polygraph, and had requested the IIO select a different polygrapher. However, as I discuss in more detail below, the IIO did not meaningfully engage with her concerns or her request for a new polygrapher.
[109] I next move on to discuss whether Mr. Paulson’s conduct at the First and Second Polygraph examinations amounts to a stand-alone breach of the Code.
4. Did Mr. Paulson’s Conduct Breach the Code?
[110] The Tribunal has repeatedly observed that not all offensive or inappropriate behaviour will rise to the level of breaching the Code . In Brito v. Affordable Housing Societies and another, 2017 BCHRT 270, the Tribunal held (at para. 41):
…not every negative comment that is connected to a protected characteristic will be discriminatory harassment contrary to the Code. It is certainly undesirable for people to treat each other rudely, disrespectfully, or inappropriately. However, it is not the Tribunal’s purpose to adjudicate disputes other than where a person’s protected characteristic has presented as a barrier in their ability to fully, and with dignity, access an area of life protected by the Code . In performing this function, the Tribunal is cognizant that the disputes brought to it arise between human beings, with all the imperfection that entails. Not every failure to be kind or professional requires state intervention. This includes failures with discriminatory overtones – and therefore highlights a distinction between comments that may be “discriminatory” in the everyday sense of that word, and comments that amount to discrimination, within the meaning and scope of human rights legislation. [emphasis added]
[111] Context is important in considering whether offensive conduct will breach the Code. Where inappropriate behaviour occurs during a single incident, or does not amount to a pattern of conduct, the Tribunal will consider the full context of the conduct to determine whether it violates the Code, which could include considerations such as, “the involved parties, the context in which the comment was made, whether an apology was offered, and whether or not the recipient of the comment was a member of a group historically discriminated against”: Pardo v. School District No. 43 , 2003 BCHRT 71 at para. 12.
[112] The IIO argues that even if Mr. Paulson made the comments that DS attributes to him, which I have found he did, this conduct does not rise to the level of discrimination prohibited by the Code. The IIO argues that the First and Second Polygraphs were short-lived, and DS and Mr. Paulson’s relationship was not ongoing. It further argues that Mr. Paulson’s conduct occurred over only two meetings, so it is not reasonably characterized as an ongoing pattern of conduct which would attract protection of the Code. Finally, the IIO says nothing Mr. Paulson said to DS was “so virulent or inherently damaging to her dignity so as to trigger Code protection.”
[113] DS disagrees, and submits that Mr. Paulson’s conduct at the First and Second Polygraphs had a significant adverse impact on her, beyond the adverse impact she experienced when the IIO rescinded the job offer. She says he acted aggressively toward her, which left her feeling “shocked” and “stunned”. She further says his questions and comments made her feel like he viewed Indigenous women as deceptive, and more likely to drink alcohol, do drugs and engage in illegal sex. She says that his statement about Indigenous people and obesity has been “branded” into her memory, and submits that she wishes Mr. Paulson had not made the comments he did, and that “there is deep humiliation and pain when someone says racist and sexist things. It’s as though you are nothing – dirt and not worth anything”.
[114] For the following reasons, I find that Mr. Paulson’s conduct at the Polygraphs, considered together, had a significant impact on DS and contravened s. 13 of the Code.I consider the employment-related context for Mr. Paulson’s conduct, the relationship between he and DS, Mr. Paulson’s conduct at the First Polygraph, the nature of the comments at the Second Polygraph, and DS’s identity as a Métis woman, and her membership in a historically disadvantaged group.
[115] The involved parties in the present case are an Indigenous woman, who was undergoing a highly personal and by all accounts upsetting examination, and a white, male, ex-police officer, who was conducting the examination. In both the First and Second Polygraphs, there was a significant power imbalance at play. In his capacity as examiner, Mr. Paulson could determine whether DS was being truthful in the information she had provided to the IIO and PSSO, and whether she passed the polygraph examination. As such, and despite his evidence that he was not in a position to decide whether a candidate was hired or not, he had the power to influence whether DS passed the security screening portion of the recruitment process, and, by extension, he had the power to influence whether or not DS would get the job with the IIO.
[116] At the First Polygraph, I have found that Mr. Paulson slammed his notebook down on the table and rudely asked DS to leave the room. I accept DS’s evidence that she was shocked, and stunned by the behaviour, and felt belittled and that she was “banished” to the hallway, in the context of a professional and highly sensitive security screening process. I also accept, consistent with her communication following the First Polygraph, that DS felt Mr. Paulson was not neutral and would be unable to “put our interaction behind him”. The IIO did not meaningfully address DS’s concerns about Mr. Paulson’s neutrality, pointing to there being no previous concerns about him. This was the context in which DS attended the Second Polygraph.
[117] I turn then to Mr. Paulson’s comments and questions at the Second Polygraph. With respect to Mr. Paulson’s questions about whether DS consumed alcohol prior to the polygraph , as I have found above, I accept Mr. Paulson’s evidence that this was a standard question he asked all people who undertook the polygraph exams. Similarly, I accept Mr. Paulson’s evidence that his standard practice is to follow up with questions where the examinee had a strong reaction, and this is why he followed up with questions about whether DS had engaged in illegal sex or drug use. Nevertheless, intention is not a requirement of discrimination, so standard practice cannot be a full answer. The focus of the inquiry is on the impact on DS.
[118] DS testified that when Mr. Paulson repeatedly asked her questions about whether she engaged in illegal sex or drugs and whether she consumed alcohol prior to the exam, she felt that he was viewing her through the stereotypical lens of Indigenous women being more likely to drink, do drugs and engage in the sex trade. I accept that DS’s experience as an Indigenous woman being repeatedly asked and having to repeatedly answer these questions adversely impacted her.
[119] The questions to DS about consuming alcohol and engaging in illegal sex or drug use, without a clear stated purpose, appear to reflect commonly held stereotypes about Indigenous people, and women in particular. In RR v. Vancouver Aboriginal Child and Family Services Society (No. 6) , 2022 BCHRT 116 [R.R.], the Tribunal articulated that “[a]ny complaint alleging anti-Indigenous discrimination must recognize the ongoing prevalence of prejudice and stereotypes about Indigenous peoples throughout Canadian society”. Further, in R v. Williams [1998] 1 S.C.R. 1128, the Supreme Court of Canada observed that racism against Indigenous people includes “stereotypes that relate to credibility, worthiness and criminal propensity” (at para. 58). Referencing Locking up Natives in Canada: A Report of the Committee of the Canadian Bar Association on Imprisonment and Release (1988), at p. 5, the Court identified the following common and insidious stereotype often ascribed to Indigenous people:
Put at its baldest, there is an equation of being drunk, Indian and in prison. Like many stereotypes, this one has a dark underside. It reflects a view of native people as uncivilized and without a coherent social or moral order. The stereotype prevents us from seeing native people as equals.
[120] These cases demonstrate that Indigenous people are often stereotyped as being more likely to act in a certain way, or engage in certain activities which have negative connotations. In DS’s reply submissions she states:
Short of directly calling me a drunken/drug whore and a fat deceptive squaw, I cannot think of anything more discriminatory for an Indigenous woman to be subjected to during a high-level recruitment process. He managed to cover all the insidious stereotypes, and I can’t think of anything that drives a dagger in the hearts of Indigenous women more than these comments. It goes to the heart of who we are and is a stark reminder of how devalued we are in this society. These kinds of comments are not just “insensitive” and “in poor taste” they are traumatic and dangerous to our women.
[121] I accept that the questions about whether DS consumed alcohol prior to the polygraph or engaged in illegal sex or drug use negatively impacted DS by making her feel like she was being stereotyped as someone more likely to drink, do drugs, and engage in illegal sex . Further, it does not appear from the evidence before me that Mr. Paulson clearly explained to DS that the question about alcohol use was asked of everyone to ensure capacity to take the examination. Nor does it appear that Mr. Paulson explained the purpose, if any, for the follow up questions about what DS was thinking when asked whether she engaged in illegal sex or drug use.
[122] With respect to Mr. Paulson’s comment about women being better liars than men, I find it also negatively impacted DS. It was not part of Mr. Paulson’s standard practice to opine on whether men or women were better liars, but he did so, in the context of a woman undertaking a very difficult and intense test meant to determine her truthfulness. DS testified that this made her feel as though Mr. Paulson viewed women as deceptive. In respect to Mr. Paulson’s comment to her, she testified “of course I’m a liar, because I’m a woman, we do a better job at it than men”.As a person whose job it was to test truthfulness, one is left wondering how Mr. Paulson would even know if women were better liars than men. In any event, the comment clearly negatively impacted DS.
[123] With respect to Mr. Paulson’s comments about Indigenous people and obesity, the IIO argues that Mr. Paulson’s conduct must be considered in context, which includes that his comment was made in the context of “a topic which [DS] raised with him”. The IIO says that it is important that Mr. Paulson was simply recounting “an anecdote” shared with him by an Indigenous Elder, and that it was not his own observation.
[124] Whether Mr. Paulson was sharing an anecdote which he heard from another person, or whether he was sharing his own view, the nature of the comment and the context in which it was made was clearly upsetting and offensive to DS. In accordance with both parties’ evidence, DS did not raise the topic of Indigenous people and obesity with Mr. Paulson. Quite distinctly, she answered his question about gaps in her employment with an explanation that at one point she had to take time off work to look after her father who was temporarily blinded by diabetes. In order for Mr. Paulson to move on from DS’s explanation about her father to share a story about Indigenous people and obesity, he would have had to draw a stereotypical connection between DS’s father’s Indigeneity and the issue of obesity. Further, his comments imply the assumption that DS’s father’s diabetes was related to obesity or poor diet choices.
[125] I accept that Mr. Paulson’s comments about women and Indigenous people were upsetting to DS, and significantly impacted her. Mr. Paulson was in a position of power and control over what was described by several witnesses as a very difficult and unpleasant examination. In that context, Mr. Paulson made comments which were related to DS’s personal characteristics, which were unrelated to the examination. As noted, I also consider that DS is a member of a historically disadvantaged – and stereotyped – group. Mr. Paulson’s comments engaged those stereotypes and created an environment in which DS was reminded of the ways in which Indigenous women have historically been viewed and devalued. DS testified, and I accept, that after leaving the Second Polygraph she was really upset and shaking. She said it was a very uncomfortable experience she would not wish on anyone.
[126] I have considered that ultimately, Mr. Paulson did not identify security concerns in relation to DS. Nevertheless, his conduct adversely impacted DS in connection with her protected characteristics during the First and Second Polygraphs – in the context of enhanced security screening for employment – in a way that engages the purposes of the Code and rises to the level of a stand-alone breach of s. 13 the Code.
[127] I reject the IIO’s argument that DS’s credibility about her experience of discrimination is in issue because she did not raise Mr. Paulson’s questions and comments with it. There was, in fact, little conflict in the evidence, and I accept DS’s version of the events and the impact on her.
[128] Finally, I note that with respect to Mr. Paulson’s discriminatory conduct toward DS, the IIO says it cannot be held accountable for his conduct when DS never told the IIO that he had made the discriminatory comments to her. More specifically, the IIO acknowledges that employers are required to respond reasonably and appropriately to complaints of discrimination, and that this includes a duty to investigate complaints. However, it says that DS never made a complaint, so it was never provided with an opportunity to respond.
[129] The IIO likens the situation in this complaint to the situation in Martinez-Johnson v Whitewater Concrete Ltd. and others (No 2) , 2022 BCHRT 129, where it says the Tribunal held that the employer could not be held responsible for allegations of racial harassment that were never raised with it. However, in Martinez-Johnson, the complainant alleged his co-workers racially harassed him and that his employer did not respond appropriately to the discrimination. In that situation, the employer’s knowledge was relevant. Martinez-Johnsondoes not hold that an employer must know about harassment to be liable for it. I do not understand the IIO to dispute that it is liable for the discrimination of the person whose services it used to conduct the polygraph portion of the enhanced security screening.
[130] I next move on to consider whether DS’s identity as a Métis woman was a factor in the IIO’s decision to rescind its offer of employment.
B. Was DS’s identity as a Métis woman a factor in the IIO’s decision to revoke the offer of employment?
[131] As set out above, DS argues that the IIO discriminated against her through the conscious and/or unconscious bias of the individuals involved in the security screening process. She says Mr. Paulson clearly demonstrated his discriminatory views of Indigenous women during the First and Second Polygraphs, and that his discriminatory views factored into the ultimate decision to withdraw the employment offer. She also says the conscious or unconscious bias of the IIO staff she communicated with in relation to the security screening process led them to interpret her concerns through the stereotypical lens of the “demanding suspicious brown/black woman”. She argues that the IIO’s decision to withdraw the employment offer was a disproportionate response to her concerns and says that these biases and stereotypes permeated the decision to withdraw the employment offer.
[132] The IIO argues that DS has failed to prove that her identity as an Indigenous woman factored into its decision to withdraw the employment offer. The IIO maintains it has established that it had a reasonable, non-discriminatory basis for withdrawing the employment offer. The IIO says that it was not the fact that DS was asking questions about the collection and use of her personal information which caused it concern, but the rude and adversarial manner in which she interacted with IIO staff, in person and in writing, while asking these questions, which led it to conclude she would not be a good fit for the investigative team.
[133] I consider in turn, DS’s arguments about Mr. Paulson’s influence on the IIO’s decision to revoke the job offer, and her arguments about how her race and sex were otherwise connected to the IIO’s reasons for its decision.
1. Connection between Mr. Paulson and Decision to Withdraw Offer of Employment
[134] I find that DS has not proved that Mr. Paulson influenced the decision to withdraw the offer of employment.
[135] I considered that Mr. Paulson could have influenced the IIO’s decision through communicating with members of the IIO, including through provision of his polygraph reports, or he could have influenced the recommendation in the PSSO Report that the IIO further consider DS’s suitability for the Investigator position. I will address the evidence concerning each of these possibilities below.
The Polygraph Reports and Mr. Paulson’s Communications with the IIO
[136] Mr. Paulson drafted two reports in relation to DS. He testified that after the First Polygraph, he drafted a two-page report which he sent to SR, his contact at the PSSO. He said that this report briefly outlined the basic facts of what happened at the meeting, and did not include any personal opinions or other information. Mr. Paulson further testified that following the Second Polygraph, he provided his usual full polygraph report to the PSSO. He said that the report did not identify anything unusual about DS or her polygraph results, and that ultimately, he did not identify any security concerns in relation to DS.
[137] Neither of Mr. Paulson’s two polygraph reports were disclosed to DS, or entered into evidence in this proceeding. Ms. Hentzen testified that in accordance with the IIO’s agreement to have DS’s records destroyed at the IIO office, Mr. Paulson brought the polygraph records to the IIO offices in December 2018, and the records were destroyed in her and Ms. Yeats’ presence. A handwritten note signed by Ms. Hentzen and Ms. Yeats and dated December 20, 2018, supports this timeline of events. The Tribunal did not notify the IIO about DS’s complaint until January 8, 2019.
[138] Mr. Paulson testified that he did not send his polygraph reports to the IIO, and he never spoke with anyone at the IIO about the polygraph reports or his interactions with DS. He said that the only person he ever communicated with at the IIO was Irene Lal, who he communicated with only for the purpose of booking an IIO interview room for the polygraph examinations.
[139] I note that the IIO did not call Ms. Lal as a witness at the hearing despite originally listing her on their witness list. On the first day of hearing, the IIO advised the Tribunal that it was no longer intending on calling Ms. Lal. I canvassed DS about whether she wanted to call Ms. Lal as her own witness, but DS ultimately decided she did not want to call Ms. Lal. As a result, there is a gap in the evidence, as I am left without Ms. Lal’s testimony about the content of her communications with Mr. Paulson. As I will discuss later, this gap in the evidence is also significant because the IIO submits that DS’s interactions with support staff, including Ms. Lal, factored into their decision to withdraw the job offer.
[140] Ms. Hogan, Ms. Hentzen and Ms. Yeats all testified that they never communicated with Mr. Paulson about DS, orally or in writing, and that the only written information received by the IIO in relation to the security screening process was the final PSSO Report. Similarly, Mr. MacDonald testified that he never had any contact with Mr. Paulson, and never received a copy of the final polygraph report.
[141] I note that this evidence conflicts with the Letter of Agreement between the PSSO and IIO which sets out that as part of the security screening process, “a copy of the polygrapher’s report will be provided to the Chief Civilian Director, with a request that any hard or electronic copies be destroyed after the hiring process”. None of the IIO’s witnesses addressed this part of the Letter of Agreement, and I am left without any information concerning why, in DS’s case, the PSSO would not have provided the polygrapher’s report to Mr. MacDonald.
[142] I further note that both Mr. Paulson and the IIO witnesses’ evidence that they never communicated with each other conflicts with Ms. Hogan’s June 28 draft briefing note. As I have outlined above, Ms. Hogan specifically references an email the IIO received from Mr. Paulson following the First Polygraph. In particular, in the context of discussing DS’s conduct at the First Polygraph she states “I cannot find the email we got back with further detail from Dennis Paulson. Will be good to include some excerpts and attach the full email”.
[143] Ms. Hogan’s reference to this email was highlighted by the Tribunal in its October 6, 2021, decision on the IIO’s dismissal application [the ATD Decision], as one reason the dismissal application was being denied. [4] Considering the Tribunal specifically referenced and questioned the content of this email in its ATD Decision, and considering the IIO has produced significant documentary email evidence from the same time period, it is surprising to me that this email was not produced in advance of the hearing, and that its absence was not substantially addressed at the hearing. Ms. Hogan’s explanation in cross-examination that there may never have been an email from Mr. Paulson is not consistent with the clear wording of the briefing note, which was drafted contemporaneously to the events at issue, and which is fairly detailed and suggests using “excerpts” of a “full email”.
[144] The above two conflicts in the evidence cause me concern because they tend to undermine the IIO’s submission that none of its team members communicated with Mr. Paulson, and therefore his views could not have impacted the IIO’s decision to withdraw the employment offer. However, even if I were to find that some communication between Mr. Paulson and IIO staff took place, there is a paucity of evidence about what the communication might have entailed, and I am not prepared to speculate about that issue.
[145] Even if Mr. Paulson held discriminatory views about DS, that does not mean that he expressed a negative opinion about DS to the IIO based on such views or that the IIO was influenced by stereotypical views just because someone at the IIO may have reviewed his polygraph report or communicated with him. I have not seen the polygraph reports and do not know what they contained. The evidence before me is that there was nothing unusual about them, and no personal opinions were expressed. Further, I have no specific information about what information might have been in the email referenced in the June 28 briefing note. In the specific context of this case, more evidence than mere opportunity to communicate with the IIO would be necessary to make a finding, on a balance of probabilities, that Mr. Paulson influenced the IIO to withdraw the offer of employment to DS.
[146] I next move on to consider Mr. Paulson’s communication with the PSSO.
Mr. Paulson’s Influence on the PSSO Report
[147] There is no question that Mr. Paulson communicated with the PSSO in relation to both the First and Second Polygraphs. He was contracted by the PSSO to perform the polygraphs, and he testified that he provided both his polygraph reports to SR, his contact at the PSSO. He also said he called SR when DS stopped the First Polygraph to try to find answers to DS’s questions. SR is named as “Investigator” in the PSSO Report, and she is the person who was corresponding with DS on behalf of the PSSO during the security screening process.
[148] Further, Mr. Paulson testified that following the First Polygraph, SR contacted him and asked him if he would be willing to conduct a second polygraph with DS, considering he had been unable to complete the first one. He testified that he told her he would be willing to conduct a second polygraph examination, but that he insisted it would have to be recorded.
[149] This evidence is consistent with the IIO’s June 28 briefing note, which set out that as part of its “due diligence” following the First Polygraph, the IIO asked the PSSO about Mr. Paulson’s ability to conduct a second polygraph. The briefing note sets out the PSSO’s response as follows:
Mr. Paulson was asked about conducting a polygraph exam with your applicant, given the unsuccessful first attempt. He has indicated that there is no conflict of interest from his perspective and the process is not at all tainted by the applicant’s decision to not complete the exam in the first instance.
[150] Based on the evidence before me, it appears that Mr. Paulson could have influenced the PSSO report either by influencing the PSSO staff who drafted the report, or through his polygraph report, which was considered in the PSSO Report. I do not have any evidence before me demonstrating that Mr. Paulson communicated stereotypical or discriminatory views about DS though conversations with PSSO staff. However, the PSSO report did rely on part of Mr. Paulson’s polygraph examination in recommending that the IIO further consider DS’s suitability for employment as an investigator.
[151] The IIO argues that the results of the polygraph examination did not identify any specific security concerns, and did not influence the IIO’s decision to withdraw the employment offer. I agree with the IIO that the PSSO Report concluded that the security screening process, including the polygraph, did not raise any security concerns in relation to DS. However, the PSSO report did recommend that they consider DS’s “suitability” for a position as an investigator for two reasons. First, the report highlighted DS’s polygraph answers in relation to her history of short-term employment which “suggests a pattern of behaviour which may be a concern to the Independent Investigations Office”. Second, the report highlighted DS’s “written correspondence with the IIO and PSSO” which the report characterized as “adversarial in nature and suggests [DS] may not be suitable for a position as an Investigator”.
[152] The reference in the report to DS’s polygraph answers as raising a concern, on its face, connects Mr. Paulson’s polygraph exam to the PSSO’s recommendation to consider DS’s suitability for employment.
[153] Mr. MacDonald testified that he waited until he received the PSSO report to make his final decision as to whether to withdraw the IIO’s offer of employment to DS. He said that upon his review of the report, it confirmed his own sense that he should withdraw the employment offer. He said that the PSSO Report raised many of the same concerns that the IIO had noted about DS’s adversarial manner of communication, but that the PSSO report added information about DS’s history of short-term employment, which was something new that also caused him concern.
[154] If the question before me was whether there was some connection between the polygraph report and the IIO’s decision to withdraw the offer of employment, I would make such a finding. Mr. MacDonald’s evidence demonstrates that he considered the PSSO report in his decision to withdraw the employment offer, and, in particular, he considered DS’s history of short-term employment, which information came out of the polygraph report. However, for substantially the same reasons as I have outlined above, I find that this bare connection is not enough to prove that any stereotypical views Mr. Paulson may have held about DS influenced the decision to withdraw the employment offer. The connection is too far removed, and too speculative.
[155] Mr. Paulson’s comments at the Second Polygraph were not related to DS’s employment history. One comment was about women being better liars than men, but the report did not conclude that DS was untruthful. One comment was about Indigenous people and obesity. The questions, including the initial question about alcohol consumption and the follow up questions after the examination were part of Mr. Paulson’s standard practice and, again, the report did not identify security concerns in this regard. Because, ultimately, the polygraph report did not identify any security concerns, and from the language of the PSSO report, it appears more likely that the PSSO staff were the ones who contextualized DS’s answers about her short-term employment into a “suitability” concern.
Conclusion on Connection between Mr. Paulson and withdrawal of Employment Offer
[156] For the above reasons, I find the evidence does not support a finding that Mr. Paulson influenced the IIO’s decision to withdraw the employment offer by communicating with the IIO, or by influencing the PSSO report. I next move on to address DS’s evidence and arguments about her experience of the security screening process as an Indigenous woman, and how the IIO interpreted her communications through a lens of stereotype.
2. The IIO’s Reasons for the Decision to Revoke the Job Offer
[157] I begin by summarizing the parties’ arguments. I then turn to analyze the evidence and set out my reasons for concluding that DS’s race and sex were factors in the decision to revoke the job offer.
The Parties’ Arguments
[158] As I set out earlier, DS argues that IIO staff were motivated by stereotype and bias, either consciously or unconsciously, in their dealings with her during the security screening Process. She says that the evidence of stereotyping, together with the IIO’s disproportionate response, supports the inference of discrimination.
[159] DS acknowledges that her communications were strongly worded. She says that her lived experiences as an Indigenous woman have led her to be mistrustful of police agencies, and that the recruitment process, including the security screening process, was not culturally safe for her. She provided evidence about how the recruitment process affected her as an Indigenous woman, including why she was highly concerned about the storage, retention, and destruction of her personal information; how the polygraph exam was culturally unsafe for her; and why she was so concerned about the IIO contacting her current employer.
[160] The IIO says that throughout her evidence, DS remained “fixated” on what she perceived as the failings of the IIO during the security screening process, and in particular, the collection and use of her personal information. The IIO says that DS’s concerns about the procedural fairness of the process is not at issue in the complaint, and is outside the scope of the Code. The IIO argues that the “sole reason for the decision to rescind [DS’s] offer of employment was her conduct towards IIO employees during the security screening process”. It points to the substantial record of DS’s written correspondence to the IIO as evidence that her communications were adversarial, demanding, and aggressive. Further, it says that the evidence concerning the in-person communications between DS and IIO staff also demonstrates that DS’s communication was problematic and violated the Standards of Conduct for public service employees.
Framework for Analysis
[161] As the Tribunal pointed out in Campbell v. Vancouver Police Board (No. 4), 2019 BCHRT 275, racial discrimination “is most often subtle and pernicious”, and in complaints before the Tribunal, there is rarely direct evidence of discrimination, and most complaints “turn on an inference”: at para. 102. This is not to say that there is any presumption of discrimination; on the contrary, the Tribunal recognizes that “any inference of discrimination must be rooted in the evidence of a particular case”: Campbell,at para 104.
[162] In the present case, DS asks the Tribunal to draw an inference of discrimination based on the IIO’s stereotypical characterization of her throughout the security screening process as adversarial, demanding, and aggressive. I agree with the Tribunal in the ATD Decision, in relation to this complaint, that “there is a discriminatory propensity to label Indigenous, Black, and other women of colour as ‘difficult’, ‘aggressive’, ‘rude’ or ‘demanding’ in circumstances where they are raising reasonable and legitimate issues”: at para. 49. Whether I will draw an inference of discrimination based on the IIO’s characterization of DS, depends on a consideration of the full context, including a contextual analysis of DS’s written and in-person communications, as well as analysis of how the IIO came to the decision to rescind the job offer.
[163] In this regard, and as discussed below, I have considered the parties’ evidence about the communications. I have reviewed approximately 12 written communications from DS to various members of the IIO or PSSO, which were sent before the IIO officially withdrew the employment offer. I have also reviewed two communications which DS sent to the IIO after the employment offer was withdrawn. Four of the letters DS sent prior to the IIO rescinding the employment offer contain language which the IIO highlighted as causing it concern about DS’s suitability for employment. Those were DS’s letters on June 18, June 26, July 4, and July 6.
[164] I have also considered the parties’ evidence about the in-person and phone interactions between DS and members of the IIO.
[165] I have found it more likely than not that the IIO’s decision to revoke the offer was based, at least in part, on a discriminatory view of DS’s conduct. DS’s communications with the IIO were at times demanding and adversarial. To some extent, therefore, the IIO’s characterization of DS’s conduct is accurate. But its conclusion that she had not met the high standard of conduct required of IIO investigators, which grounded its decision to revoke the offers, was also informed by stereotype.
DS’s initial concerns about the security of her personal information
[166] The events at the First Polygraph were the key initiating events with respect to the IIO’s concerns with DS, and, as I will explain, those events had a ripple effect, and continued to impact subsequent events.
[167] The IIO cites DS’s refusal to continue with the First Polygraph as part of the reason it withdrew the job offer. Mr. MacDonald said he was particularly concerned about “the polygraph situation”. In particular, he testified that he viewed DS’s reaction to finding out that the polygraph was going to be recorded as “negative” and “concerning”. He testified that when she declined to continue with the polygraph after she found out it was going to be recorded, “in my view, that was a reaction that…you took your concerns and elevated them to the highest level, with a very high response”. He testified that he expected that DS, who was trained as a lawyer, would know that the polygraph would be recorded, and if she didn’t, that once she found out he would have expected her to “go ‘well, that makes sense’ and continue on”.
[168] Mr. MacDonald said when Ms. Hogan told him she thought the IIO should rescind the offer, one of the reasons was the interactions DS had with Mr. Paulson. Ms. Hogan testified that she believed that DS was trying to influence her to waive the requirement for a polygraph when DS declined to continue with the First Polygraph before her questions were answered. These negative views of DS were not founded on the evidence before me, and indicate an early preparedness to view DS with suspicion.
[169] DS testified that when she found out at the First Polygraph that the exam was going to be recorded, she became concerned about who would have access to her information and how it would be handled and when it would be destroyed. Before turning to how the IIO handled DS’s initial concern, I first describe the context for her concerns.
Context for DS’s concerns about the security of her personal information in Mr. Paulson’s home office
[170] DS testified that the Security Screening Questionnaire and polygraph sought highly sensitive personal information about her. She gave specific examples of being asked about illegal sex, sex with a minor, and use of illegal drugs. I reviewed the complete list of questions and agree with DS, and the other witnesses who testified about the polygraph, that the questions are highly personal and invasive. Examples of the types of questions include:
· whether an applicant has ever sexually assaulted anyone, had sex with a minor, or viewed sexually explicit material involving a minor,
· whether in the past 15 years an applicant has “misused” any of the drugs on a very long list of prescription and non-prescription drugs, which ones and why;
· whether in the past 15 years an applicant has experimented with any of a long list of illegal drugs,
· whether an applicant has ever been addicted to alcohol or drugs,
· whether an applicant has ever been dishonest at work, or ever discriminated against anyone on the basis of that person’s race, religion, or skin colour,
· whether an applicant has ever been violent toward another person,
· whether an applicant has ever filed a false customs declaration,
· whether an applicant has ever been investigated by the police or had their information recorded by the police in relation to an investigation, and
· whether any of an applicant’s family members are involved in criminal activity or drug use.
[171] Another aspect of the context in which DS was asked to provide highly sensitive information, is that for Indigenous people generally, there are significant potential consequences attaching to the collection, use, and disclosure of their personal information. In the context of production of private records in criminal law matters, the Supreme Court in R. v. Mills, [1999] 3 S.C.R. 668, held that equality concerns arise when private information is sought in relation to “individuals whose lives are heavily documented”, which the Court specified included “women whose lives have been documented under conditions of multiple inequalities and institutionalization such as Aboriginal women”: at para 92. In the context of Indigenous peoples’ overrepresentation in the prison system[5], the overrepresentation of Indigenous children in government care[6], and the systemic barriers Indigenous people face in relation to employment, all of which plainly have informational components, it is understandable that DS, as an Indigenous woman, was highly concerned about how her sensitive personal information was going to be collected, used, safeguarded, and ultimately, destroyed.
[172] Indeed, the IIO acknowledged that “as an Indigenous person [DS] may have had legitimate reasons to distrust the safeguards in place with respect to the collection and use of her information”.
[173] DS also testified about her lived experiences with police, and how her and other Indigenous people are distrustful of police agencies. She said she comes from a large Métis family, and that she has had cousins and friends and family who had been negatively involved with law enforcement, and that “you don’t get the benefit of the doubt when you’re dealing with police most of the time”. DS’s evidence about her own feelings of discomfort and mistrust of police is consistent with this Tribunal’s recognition of the historically fraught relationship between Indigenous people and police: Campbell, at paras. 110-111.
June 15 th Interactions
[174] After she became aware that an ex-police officer was going to conduct a highly invasive polygraph with her, and after she realized her polygraph was going to be recorded and the ex-police officer would have control of and access to her information afterwards, as an Indigenous person, DS was apprehensive about how her private and highly sensitive information was going to be safeguarded, and she sought information and assurances about how her personal information was going to be handled. However, when she raised the issue with Mr. Paulson and declined to continue the polygraph until she had an answer, he reacted negatively, slamming his book down and asking her to leave.
[175] DS’s first negative interaction with the IIO was immediately following the First Polygraph, where she interacted with Ms. Hogan and Ms. Yeats. Both sides of this interaction found it problematic. The IIO’s letter rescinding the job offer to DS states that it was the way DS conducted herself in raising complaints that caused Mr. MacDonald the most significant concern, and that her communications and style of interaction were overly adversarial and often disrespectful.
[176] For the following reasons, I find that DS was upset, forceful, and clearly concerned about the polygraph examination. I find Ms. Hogan was also forceful and had an imposing presence during this interaction. I further find that there was no factual basis for Ms. Hogan’s belief that DS was trying to persuade her to waive the requirement of the polygraph examination, and that this is evidence of DS being viewed with suspicion and as non-compliant.
[177] Ms. Yeats testified that when she met DS after the First Polygraph, DS appeared upset that the polygraph was going to be recorded. Ms. Hogan testified that DS was “forceful” and appeared upset. In the June 28 draft briefing note, Ms. Hogan wrote that after the First Polygraph DS had “presented as affronted” and said, “she did not like surprises”.
[178] DS testified that at their meeting after the First Polygraph, Ms. Hogan was the one who was forceful, and appeared angry and upset with her. DS testified that Ms. Hogan is a tall woman with an imposing figure, and she felt as though she was being chided by Ms. Hogan during the meeting.
[179] I have accepted DS’s evidence about what happened at the First Polygraph and that she was upset afterward. Ms. Hogan’s and Ms. Yeats’ evidence was consistent on this point, as they both described DS as upset. I also accept that DS was forceful in voicing her concerns to Ms. Yeats and Ms. Hogan about the polygraph. Both witnesses recalled DS in a similar way, and DS acting in a forceful way in expressing her concerns about the polygraph is consistent with her subsequent written communications about the event, in particular, in her June 18 letter, which I address in more detail below. At one point in the June 18 letter, DS states that the recording of the polygraph “came as a surprise to me and I was told there would be no surprises”. This language is consistent with Ms. Hogan’s description of what DS said at the meeting. The June 26 briefing note makes no mention of any untoward behaviour except Ms. Hogan’s view that DS was trying to get out of having to complete the polygraph exam, which I address below. Further, neither Ms. Yeats nor Ms. Hogan described behaviour beyond DS being upset, forceful and clearly concerned about the polygraph examination, questions, and her privacy.
[180] In addition to DS being forceful, I also accept Ms. Hogan was forceful, in the meeting with DS. I find that DS’s description of the physical space and how Ms. Hogan was standing while she was sitting in the small interview room was clear and consistent throughout her testimony at the hearing. Further, DS’s evidence about the impact of Ms. Hogan’s behaviour on her, feeling chided, as if she had done something wrong, is something she would be likely to remember. Ms. Hogan did not deny that she may have been standing while DS was sitting. She said she could not remember. I find it more likely than not that she was standing. I further accept DS’s evidence that Ms. Hogan standing while she was sitting in the small interview room was imposing for her.
[181] The finding that Ms. Hogan was forceful is also supported by Ms. Hogan’s own evidence that at the time she felt as though DS was trying to get out of doing the polygraph exam. She said she had to emphasise to DS that the polygraph exam was a mandatory part of the process and ultimately had to end the conversation as she felt they were not making progress together. In this regard, DS testified that Ms. Hogan treated her as if she was unwilling to comply with the IIO requirements. DS said she was surprised Ms. Hogan behaved this way and did not consider that she may have had reasons, related to her identity as an Indigenous woman, for halting the recording and wanting to know how her personal information was going to be handled. She stated, “they were so disrespectful towards me, and it didn’t even occur to them that maybe because of my background I would be uncomfortable with a book being slammed down by a white cop” and later, “that maybe because of my Indigeneity I was uncomfortable being audio recorded by a police officer – ex VPD Seargent.”
[182] Ultimately, the main reason the IIO appeared to be concerned about DS’s conduct at this meeting is Ms. Hogan’s concern that DS was trying to influence her to waive the requirement to complete the polygraph. The briefing note referenced Ms. Hogan’s belief in this regard. Ms. Hogan repeated that belief at the hearing; however, as I set out earlier in this decision, she did not explain why she held that belief. She agreed that DS had not directly asked not to have to take the exam, and she could not recall the language DS used that made her feel that DS was trying to influence her. She testified that she was simply left with the impression.
[183] The evidence before me, including Ms. Hogan’s inability to explain why she felt this way, except for just an “impression”, belies the view that DS was trying to influence Ms. Hogan to waive the polygraph requirement. DS had consented to the polygraph and attended the First Polygraph. There is no dispute between the parties that DS’s stated concerns at the meeting had to do with the intrusive nature of the polygraph questions, in the context of how her personal privacy was going to be protected. I find Ms. Hogan had no factual basis for her belief, and that it supports DS’s argument that the IIO viewed her with suspicion and approached her from a place of “non-compliance”.
[184] Further, DS’s June 18 letter following the First Polygraph expanded on her concerns and expressed a willingness to proceed with the polygraph when those concerns were answered. Yet, Ms. Hogan maintained her belief that DS had been trying to have the polygraph requirement waived. Ultimately, Ms. Hogan wrote in the briefing note, which was relied on in the decision to rescind the offer, that DS was “trying to influence me to agree she did not have to do the examination”.
[185] DS relies on Abbott v. Toronto Police Services Board, 2009 HRTO 1909 at para. 46(h), to argue that it was the fact that she was an Indigenous woman – not a White woman – that explains Ms. Hogan’s thinking that DS was trying to influence her to waive the polygraph requirement. I agree. Absent any other explanation, I draw an inference that stereotypical thinking influenced Ms. Hogan’s belief.
June 18 Letter
[186] In her June 18, 2018, letter, DS was following up with Ms. Yeats and Ms. Hogan about the events that occurred at the First Polygraph. In the letter, DS explained why she stopped the polygraph, and stated that she would be willing to reschedule the polygraph examination, but that she had questions and concerns that she wanted the IIO to address first.
[187] As noted, DS acknowledged she used strong language. The language that caused the IIO concern included:
· Stating that “I deem the current IIO process most unsatisfactory”
· Expressing “shock” at “the low security afforded to candidates”
· Characterizing the IIO’s security as “lax”
· Stating that candidates were receiving the lowest level of security and that “even accused individuals have more security and privacy protections than IIO employment applicants”
[188] I agree that the above examples set an adversarial tone, where DS appears to position the IIO on one side of the privacy issue, and herself on the other. The language used is highly critical of the IIO’s current process for protecting the security of an applicant’s information. That said, the language must be understood in the context of learning that highly personal information would be stored in the home office of the polygraph examiner, whose conduct in the First Polygraph had left her feeling shocked, stunned, and belittled. The language must also be understood in the context of DS’s concern, as an Indigenous woman, about the storage, retention, and destruction of her personal information.
[189] The IIO did not have DS’s evidence at the hearing about the impact of the First Polygraph on her, but it was aware of the highly sensitive nature of the personal information, DS’s concerns about the security of that information, her concerns about Mr. Paulson’s conduct, and DS’s Indigeneity. Yet, Mr. Macdonald’s testimony demonstrates that he was judging DS’s conduct against how he would have reacted, or how he believes she should have reacted. He does not appear to have considered how, as an Indigenous woman, DS’s experience with the polygraph exam may have differed from his own experience. For example, his statement that DS should have carried on with the polygraph after finding out it was going to be recorded, ignores the specific context of an Indigenous woman disclosing highly sensitive information to a white, male, ex-police officer, in a small, dark, room, and not knowing how that information was going to be safeguarded.
DS’s request for a new polygraph examiner
[190] In her June 18 letter, DS also raised her concerns about Mr. Paulson’s conduct and requested a new examiner. She stated that she did not feel that Mr. Paulson could be neutral given his behaviour at the First Polygraph, including slamming his notebook down. Nevertheless, the IIO’s June 29 written response did not respond to her allegation about Mr. Paulson’s conduct, or her concern that he could not put the negative interaction at the First Polygraph behind him. Instead, the IIO stated that Mr. Paulson had worked on contract for two years and “there have been no previous concerns about Mr. Paulson or the work he performs”.
[191] As DS points out in her submissions, just because there have been no previous concerns about a person does not mean that when someone raises a concern it does not warrant consideration. I agree that the IIO’s lack of meaningful response to DS gave the impression that her concern did not warrant consideration since others had not previously raised concerns.
[192] Beyond asking the PSSO to ask Mr. Paulson whether he was still willing to conduct a polygraph with DS, the IIO leadership staff did not meaningfully consider DS’s allegation about Mr. Paulson’s conduct. As such, the IIO’s decision not to assign a different polygrapher appears to have resulted from their consideration of Mr. Paulson’s perspective that he would be willing to do another polygraph, and not DS’s concern about his potential bias. The fact that there had been no previous complaints about Mr. Paulson could not, on its own, determine whether DS’s complaint was invalid. This raises an inference that the IIO treated DS’s concern about Mr. Paulson with little or no regard, consistent with the view about the First Polygraph that her concerns were unfounded, her reaction was “elevated to the highest level”, and her motives were suspect.
[193] Again, Mr. MacDonald does not appear to have considered DS’s allegation about Mr. Paulson slamming his notebook down on the interview room table. Despite being aware of this allegation, and the significant power imbalance between DS, a female, Indigenous applicant, and Mr. Paulson, a white, male, ex-police-officer administering an exam which could prevent DS from attaining the job, Mr. MacDonald maintains the view that DS’s decision to refuse to continue the polygraph was “negative” and “concerning”.
DS’s ongoing concerns about the security of her personal information
[194] On June 29, Ms. Yeats responded to DS’s June 18 letter as well as her June 26 letter, discussed below. Regarding DS’s privacy concerns, Ms. Yeats advised DS that the IIO had followed up with the PSSO and learned that the polygraph provider stored the information – including a memory stick with the recording – in a locked cabinet in his home office for six months and that in DS’s case, the IIO requested notification when the information is destroyed and that it be destroyed at the IIO offices
[195] The IIO cites DS’s dissatisfaction with this response as one of its concerns factoring into the decision to rescind the job offer. Ms. Yeats testified that “it seemed we could never satisfy…every answer we gave was not sufficient enough. I felt that things became accusatory – the processes she didn’t like, or they weren’t correct, or she was telling us we were doing things wrong. It seemed we could never satisfy any of the requests she had”. Mr. MacDonald testified that he did not have an issue with the fact that DS was asking questions about her personal information, but he said he was concerned that even after she was provided with answers to her questions, “that wasn’t good enough”. He said he was concerned that “in spite of the fact that information was explained to her, that didn’t seem to assuage her concern, and she continued to make an issue out of it”.
[196] However, it is unsurprising that DS was not satisfied with the response that Mr. Paulson would store the information at his home office for six months and then destroy it, given the concerns she had raised both about the security of her information and about Mr. Paulson’s conduct. This is essentially the same information Mr. Paulson gave DS at the First Polygraph that gave rise to her initial concerns, excepting that the IIO requested a notification and ensured the material would be destroyed at the IIO offices.
[197] DS’s next communication thanked Ms. Yeats for her letter and advised of her availability to take the polygraph examination. She also asked Ms. Yeats for a copy of the polygraph recording and asked if the polygraph results could be stored at the IIO offices instead of with the polygrapher.
[198] Mr. MacDonald highlighted this request as particularly concerning to him because, in his view, DS’s records would be safer with Mr. Paulson in his private residence than in a government safe in a government office. However, this perspective does not account for the negative impact on DS, as an Indigenous woman, of requiring her highly sensitive personal information to be stored in the private residence of the ex-police officer whose conduct and neutrality DS had, by this time, raised concerns about. Rather, this perspective continues to view DS’s concerns as unfounded, and her requests as demands that could not be satisfied. It is true that the IIO had responded to the initial concern, but it had confirmed the information would be stored in Mr. Paulson’s home office. It was not unreasonable or demanding for DS to then request that the IIO store the information.
[199] Following DS’s request, the IIO inquired with the PSSO. Ms. Lal told DS that she could request a copy of her polygraph recording through a Freedom of Information request, and that in order to protect her privacy, the IIO could not store her polygraph records.
July 4 letter
[200] In her July 4 letter, DS wrote to Ms. Yeats and Ms. Hogan in response to the IIO’s denial of her request for a copy of her polygraph records, and the IIO’s explanation of why it would not store her records at its offices.
[201] In the letter, DS, expresses frustration and uses strong and adversarial language as follows:
· She says she is taking the opportunity to “register my disappointment and dismay” at the IIO’s response to her requests
· She implies that denying her request does not accord with “respect, transparency and integrity”
· She accuses the IIO of “dishonouring” Mr. Paulson’s statements and his “undertaking” to store the polygraph records at the IIO office
· She says the IIO’s responses “appear to be arbitrary rather than sound policy that protects candidates’ privacy”
[202] DS did not dispute she used strong language in her correspondence. I accept that the IIO was concerned about DS’s adversarial language. I also accept that DS remained concerned about the security of her personal information in Mr. Paulson’s home office, as the IIO had denied her request to store the information and said it was doing so to protect her privacy.
[203] Later in the day, after DS sent this letter, she attended the Second Polygraph, where, as I have found above, she experienced discrimination on the basis of her identity as an Indigenous woman. Further, although the IIO told DS that they had made a special arrangement in her case to have Mr. Paulson specifically notify the IIO and attend the IIO offices to destroy DS’s information, when she attended the Second Polygraph, Mr. Paulson advised he was unaware of that arrangement, and told her he intended to destroy her records in his home office as usual. This is an important part of the context for DS’s July 6 letter.
July 6 Letter
[204] In DS’s July 6 letter following the Second Polygraph, DS sought clarification from Ms. Hogan and Ms. Yeats on whether her records were going to be destroyed at the IIO offices as Ms. Yeats had confirmed in her June 29 letter to DS. Her language was somewhat softer in this letter than in the others, but her tone still expressed distrust that the IIO would deal with her records as it had told her it would. Further, she expressed significant dissatisfaction with the IIO’s decision not to provide her with a copy of her polygraph records. In particular, DS said:
· She “needs assurances” that her records would be destroyed in the IIO offices instead of at Mr. Paulson’s home office
· She “would appreciate a formal statutory declaration from Mr. Paulson that he has complied with all my privacy concerns including the destruction and notification of my records at the appropriate time”
· The IIO’s suggestion that she needed to go through the Freedom of Information request process in order to access her own polygraph records was “an inappropriate remedy”
[205] DS testified that she agreed the letter she sent to the IIO had a strong tone, but she said that her tone was directly influenced by the events that took place at the Second Polygraph. In particular, she testified:
I mean I’m not going to sit here and deny that those letters don’t have a soft tone you know, I was very upset. I was shaking when I was leaving that office, I was so upset. You know, people forget that when you put Indigenous people in these positions and get mad when they respond or have a reaction. I’m a human being like anybody. If you started saying sexist comments to anybody, or racist comments, based on any of their identities, you would get a response from somebody.
[206] I accept DS’s evidence that the tone she used was in direct response to her ongoing concerns about the security of her personal information in the context of the discrimination she had just experienced in the Second Polygraph. While I accept that the IIO would have been concerned about DS’s language, I find that DS was reacting to discrimination in the context of her concerns about the security of her personal information. The IIO did not know, however, about Mr. Paulson’s statements and questions at the Second Polygraph that had a discriminatory impact on DS.
[207] What DS did tell them in that letter was that Mr. Paulson had been unaware that he was to destroy her polygraph materials at the IIO offices, as Ms. Yeats had stated in her June 29 letter. DS sought assurances and reiterated her disappointment about the IIO’s refusal to give her a copy of the recording. The IIO saw this letter as an instance of DS never being satisfied with their response. In relation to the security of her information, however, it was the inconsistency in the information the IIO provided and the information she received from Mr. Paulson which prompted DS to seek further assurances.
[208] Mr. MacDonald pointed to DS’s requests about getting assurances that her information would be destroyed appropriately, and said these requests indicated to him that DS mistrusted the IIO, and that “quite frankly, if I have an individual who is starting off our relationship on that foot, my preference is not to start the relationship”. The difficulty with this perspective is that DS had reason to distrust the IIO by this point. It reacted to her surprise and concern at the First Polygraph by implying she was trying to get out of the exam, it did not meaningfully respond to her request for a new polygrapher (which resulted in the Second Polygraph), and the one additional step it said it would take to safeguard her privacy – destroying records at its office – was apparently not conveyed to Mr. Paulson.
[209] In relation to the IIO’s concern that every answer they gave was not enough, at this point, the IIO had confirmed what Mr. Paulson had told DS about him storing her information and had agreed to destroy her records at the IIO offices. DS had taken issue with the IIO’s refusal of her requests – for a copy of the polygraph recording and for the polygraph results to be stored at the IIO offices – and, after learning that the IIO had not apparently told Mr. Paulson how the records would be destroyed, had sought certain reassurances. In context, DS’s ongoing concerns were understandable.
[210] I accept it was likely difficult at times for the IIO to separate DS’s tone from the substance of her concerns about the security of her personal information. However, IIO’s conclusion that every answer they gave was not enough is unfounded considering the full context, and this is another instance of the IIO’s readiness to view DS’s concerns and requests as problematic, and is further evidence of the IIO viewing DS through the stereotypical lens of the “demanding, suspicious Indigenous woman”.
DS’s concerns about her current employer being contacted
[211] The IIO cites DS’s communications about contacting her current employer in its explanation for rescinding the offer of employment. Mr. MacDonald’s letter specifically refers to language from DS’s June 26 letter, set out below, in his reasons for the decision to rescind. I begin by setting out the context for DS’s concerns.
[212] DS testified that she was uncomfortable having the IIO contact her current supervisor because she had not been working there long, and had a difficult time obtaining the position as a practising lawyer. She said that at the time, she had only been called to the bar for eight years, and that she had recently been working in the United States in various positions and was worried about the BC Law Society rules concerning the number of years a lawyer can be non-practising before they need to repeat their articles. DS testified that she was worried that if her employer found out she was looking for another job, he might terminate her employment, and if anything went wrong with the IIO position, she might end up having to complete articles again. DS testified that it had not been easy for her, as an Indigenous person, to obtain work as a lawyer. In her submissions, DS states that receiving her law degree had not increased her standard of living as much as she expected it would, and that despite being an Indigenous woman who received her LLM at a highly regarded Canadian law school, she still has difficulty finding a job.
[213] The communication by the IIO to DS about whether and for what purpose her current employer would be contacted was unclear and inconsistent. The IIO had initially asked for a reference from DS’s current supervisor. DS explained why she was uncomfortable and not prepared to provide her current supervisor as a reference, including because it put a candidate in a precarious position, and the IIO made the offer of employment without the current supervisor as a reference. While the initial agreement was that the IIO would not contact DS’s employer for reference purposes, by June 5, Ms. Yeats had agreed to advise the PSSO that DS’s employer would not need to be contacted for the PSSO process either. As noted above, the evidence is that SR told DS that she just needed a “quick email” from Ms. Yeats confirming her current employer did not need to be contacted, and Ms. Yeats confirmed to DS that she had done so.
[214] However, on June 20th, Ms. Lal advised DS that Ms. Hogan and Ms. Yeats were reviewing her June 18 letter and asked DS to provide the IIO and PSSO her current employer’s contact information for the purposes of “employment verification”. Again, this was after Ms. Yeats and Ms. Hogan had agreed the information was not necessary for reference purposes when DS raised concerns about jeopardizing her employment. This was also after Ms. Yeats’ June 5 th email to SR indicating that DS did not need to provide that information to the PSSO in relation to the security screening package. DS replied the same day to point this out, and her correspondence to Ms. Lal was polite and professional.
[215] In response, and despite the earlier agreement about not contacting DS’s current employer either for the IIO’s or PSSO’s purposes, on June 22nd, the IIO wrote to DS explaining that it required the information because “as part of the Enhanced Security Screening process, all employment must be verified”. DS was understandably upset by this change of position.
[216] The emails to DS were brief, did not acknowledge any previous agreements not to contact her employer, were inconsistent with the IIO’s agreement not to contact DS’s employer, and did not explain whether or how the IIO would address DS’s stated concern that her current employment could be jeopardized if the IIO called her current employer (whether for reference or employment verification purposes).The IIO did not provide DS an explanation for its change of position and none was provided to me. The information before me is that the day after receiving DS’s June 18 th letter, Ms. Hentzen sent it to SR at the PSSO to schedule time to review the letter, along with “some red flags” about employment. As noted above, I have no evidence about that meeting or the particulars of what IIO and PSSO staff may have discussed in relation to DS. Ms. Hentzen’s email indicates a new concern about DS’s employment history, but the reason for that new concern is not identified.
June 26 letter
[217] In her June 26 letter, DS wrote to Ms. Yeats and Ms. Hogan in relation to the IIO’s request for her current employer’s contact information. The letter sets out a chronology of DS’s communications with people at the IIO and PSSO in relation to her request that her current employer not be contacted, and expresses frustration with the various requests to date. The IIO identifies the following language as concerning:
· Accusing the IIO of being in “breach” of its “undertaking” not to contact her current employer
· Accusing the IIO of “reneg[ing]” on a secondary agreement not to contact her current employer
· “reluctantly and under protest” agreeing to provide the IIO with a redacted pay stub which she states “ought to satisfy your criteria”
[218] These again are strong words to describe what DS correctly understood as the IIO changing its position on its need for her current employer’s contact information. DS does not dispute this. In my view, considering the context, it is both understandable that DS was upset, and that the IIO was concerned by the tone of the communications.
[219] It was following this letter that Ms. Hogan and Ms. Yeats developed concerns and that Ms. Hogan drafted the briefing note.
[220] As noted above, Ms. Yeats responded to the June 26 th letter on June 29. Regarding DS’s concerns about the IIO’s change in position about needing her current employer contact information, Ms. Yeats advised that the PSSO confirmed they would accept DS’s statement of earnings as sufficient to verify her current employment. It turned out, therefore, that the IIO did not hold to its changed position, and DS did not need to provide contact information to have her current employment verified.
Telephone communications with Ms. Yeats and Ms. Hogan
[221] The IIO also pointed to concerns about DS’s telephone communications with Ms. Yeats and Ms. Hogan. Neither witness specifically testified about DS’s conduct on the May 24, telephone call; however, there is no dispute that the topic of contacting DS’s current employer was discussed on this call. Ms. Yeats did specifically recall being contacted, at some point, by DS in relation to the IIO or PSSO contacting her current employer. The focus of Ms. Yeats’ concerns about DS’s telephone communications seemed to be that DS refused to accept the IIO’s answers to her questions and that DS was accusatory in her communications. Ms. Yeats said that she received “many phone calls and emails” from DS, that left her feeling “unsettled” because she felt the answers that she gave to DS’s questions “were never good enough”.
[222] DS denies being rude or demanding in her telephone communications with Ms. Yeats. She says there were not “many” calls, but that she maybe called Ms. Yeats two or three times. DS argues that Ms. Yeats “exaggerated” the number of calls she made to portray her as demanding.
[223] Without specific information about DS’s alleged behaviour on particular calls, I am unable to make a general finding that DS was rude or demanding to Ms. Yeats or Ms. Hogan in her telephone communication. However, insofar as calls between DS and Ms. Yeats and Ms. Hogan involved discussion of contacting DS’s current employer, Ms. Yeats recalled at least one of these communications and provided evidence which was consistent with the documentary evidence. I accept that on one call relating to contacting her current employer, DS likely used strong language, expressed frustration, and had an accusatory tone. DS had already used strong language to express her concern about the IIO contacting DS’s current employer in her May 16 email to Ms. Lal where she said, “it’s unfair to put candidates in such a precarious position as it has the likelihood of jeopardizing one’s current position”. Further, as I have discussed already, following the IIO’s change of position in relation to contacting DS’s current employer, DS’s written correspondence to Ms. Yeats contained stronger and more adversarial language.
[224] Finally, I move on to consider DS’s interactions with IIO support staff.
IIO concerns about DS’s Interactions with Support Staff
[225] Mr. MacDonald testified that the “most significant” issue raised in relation to DS was that her interactions with the IIO administrative staff were “inappropriate, demanding, somewhat condescending”. Mr. MacDonald’s letter rescinding the job offer highlighted that DS’s “interactions with IIO support staff have been seen as rude and demanding.” This was a point of significant conflict between the parties, as DS argued that she was never rude, demanding or condescending to any support staff, and that any perception that she acted in this way must have been influenced by stereotype. I accept that support staff made reports to Ms. Yeats about their negative interactions with DS. However, the evidence before me does not demonstrate that DS was, in fact, rude, demanding or condescending to support staff, nor does the evidence demonstrate that stereotypical thinking influenced any perception by support staff that DS was rude.
[226] In her June 28 draft briefing note, and in her July 5 final briefing note, Ms. Hogan referenced DS’s interactions with Ms. Lal, another IIO support staff member, and SR. She said that the IIO support staff reported that DS had been “demanding and short” with them, and that SR had “experienced similar behaviours”. Further, during the hearing Ms. Yeats testified that the two IIO support staff had complained to her about DS being rude and demanding.
[227] DS strenuously denies being rude, demanding, or short with any IIO support staff or with SR. She points to Ms. Lal’s May 10, 2019, affidavit, [7] in which Ms. Lal makes no mention of any rude or otherwise inappropriate behaviour. She also argues that she had limited interaction with these individuals, and that most of her interaction with them was through email, and those emails are patently not rude, demanding, or short. As such, she asks the Tribunal to infer she was not rude to the IIO support staff, and that any perception that she was, was influenced by stereotype and bias.
[228] As I described above, despite Ms. Lal being originally listed on the IIO’s witness list, neither party called Ms. Lal, the other IIO support staff member, or SR to testify at the hearing. Without the direct evidence of these individuals, what I am left with is Ms. Yeats’ hearsay evidence that these people told her DS was rude, demanding, and short with them.
[229] During the hearing, I raised this issue of hearsay with the parties. The IIO says s. 27.2(2) of the Code permits the Tribunal to consider hearsay evidence where “necessary and appropriate”. It says that any fairness issues have been addressed through DS’s ability to cross-examine the IIO witnesses. The IIO says that in any event, this evidence is not true hearsay because it is not offered for the truth of its contents, but simply to show that the IIO considered what it understood to be DS’s conduct toward the support staff in its decision to withdraw the employment offer.
[230] I disagree with the IIO that fairness concerns are addressed because “all witnesses were subject to cross-examination”. The support staff and PSSO staff who allegedly reported the conduct to Ms. Yeats were not called as witnesses, and DS had no opportunity to test the assertion they found her to be rude, demanding, or short. Further, it is not appropriate for me to rely on this evidence for the truth of its contents in this case where:
1. Mr. MacDonald testified that how DS had treated IIO support staff was of “significant” concern to him,
2. the IIO could have called these witnesses to testify about the alleged conduct, and
3. the sworn affidavit of one of the IIO support staff makes no mention of rude or demanding behaviour.
[231] Without relying on it for the truth of its contents, however, I do admit and accept Ms. Yeats’ evidence that IIO support staff and PSSO staff made reports to her about their negative interactions with DS. Her evidence is consistent with the documentary record which indicates she told others at the IIO that support staff had complained to her about DS. Her evidence is also consistent with the testimony of the other IIO witnesses who recalled being advised at the time that support staff had complained about DS being rude to them. However, to be clear, although I have accepted Ms. Yeats’ evidence that these reports were made to her, I do not accept this evidence in support of the IIO’s position that DS was, in fact, rude and demanding with support staff. In the absence of evidence from the IIO support staff or the PSSO staff concerning what DS said to them and the context in which she said it, I am unable to assess whether she was rude to them, or whether any perceptions they may have had of her being rude, demanding, and short might have been tainted by stereotype or bias.
Conclusion: Race and Sex were factors in the decision to rescind the job offer
[232] On the totality of the evidence before me, I conclude that DS’s race and sex were at least a factor in the IIO’s decision to rescind the job offer. I first address the IIO’s argument that it had a reasonable, non-discriminatory explanation for its decision, and I explain why I accept that the IIO was concerned about DS’s communications and her ability to meet the standards of conduct required of an IIO investigator. I then explain why, nevertheless, I have drawn an inference that stereotyping about DS’s race and sex played a role in the decision to rescind the offer.
Reasonable non-discriminatory explanation
[233] In Mr. MacDonald’s letter rescinding the offer of employment, he cites trust and loyalty as two fundamental elements of the employment relationship. He says, “Also as important, IIO staff members are required to comply with the Standards of Conduct that require all employees of the BC Public Service to treat each other with respect and dignity and contribute to a positive work environment. The duties of the Investigator position in particular require public and stakeholder interactions that must build confidence and avoid unduly escalating situations.” Mr. MacDonald testified that he did not feel that DS possessed the required qualities of being professional, measured, and constructive.
[234] The IIO argues that the standard of conduct required of IIO investigators is high, higher even that the standard of conduct applicable to employees of the BC Public Service, and a person who is unable to meet that standard is unsuitable for employment as an investigator. Investigators must have excellent interpersonal communication skills, must be tactful and diplomatic in their internal and external interactions, must be sensitive to issues related to culture and gender, and must be able to work in a team environment under pressure and time constraints.
[235] I accept that the IIO has a very important mandate in BC, which is to “police the police”, and that the IIO’s central goal is to maintain public confidence in law enforcement in BC. I further accept that the IIO was concerned about DS’s communications with it, and that it determined that those communications did not meet its standard of conduct. I have found that DS’s written correspondence to the IIO was strong, adversarial, and demonstrated dissatisfaction and mistrust with IIO processes. I have also found that DS was forceful, upset, and used strong language in her meeting with Ms. Yeats and Ms. Hogan following the First Polygraph, and that in one call relating to contacting her current employer, DS used strong language, expressed frustration, and had an accusatory tone. I further accept that support staff made reports about negative interactions with DS.
[236] DS’s communications and reports of concerns from staff support the IIO’s argument that it had a reasonable, non-discriminatory basis for withdrawing the employment offer. Despite this, I find that DS’s race and sex were also a factor in the decision to rescind. As set out above, human rights law does not require that the ground of discrimination be the sole or overriding factor.
Inference of discrimination
[237] I find it more likely than not that the IIO viewed DS through the stereotypical lens of a demanding, suspicious Indigenous woman, and that these views informed the decision to rescind the job offer. The IIO’s concerns about DS’s conduct in the enhanced security screening process that led it to rescind the offer, began with the view of DS as demanding, suspicious, and non-compliant: that she had improperly and unreasonably elevated her concern about the security of her personal information, did not have grounds for not continuing the First Polygraph, and was motivated by trying to avoid having to complete the polygraph. Apart from the fact that DS did have a heightened concern, as an Indigenous woman, about the security of her personal information, this view of DS was not grounded in the evidence, and is explained by stereotype.
[238] As I set out above, Mr. MacDonald judged DS’s initial reaction against how he would have reacted. As DS argued, the IIO could have approached her from a place of understanding about her membership in a community with a specific negative and colonial history, but instead understood her reaction from a stereotypical lens of non-compliance. The view that DS was trying to get out of the polygraph persisted through to the briefing note and decision to rescind the offer, despite DS having advised that she agreed to take the Second Polygraph and having, in fact, taken it.
[239] The IIO approached DS’s concern about Mr. Paulson slamming his book on the table and her request for a new examiner in a similar vein. Again, the IIO could have approached DS from a place of understanding the power imbalance between DS, a female, Indigenous applicant, and Mr. Paulson, a white, male, ex-police-officer administering an exam which could prevent DS from attaining the job. Instead, the IIO does not appear to have even considered that DS’s concern about Mr. Paulson’s was valid, consistent with the stereotype of the demanding, suspicious Indigenous woman.
[240] Similarly, while the IIO initially approached DS’s concern about contacting her current employer from a point of understanding, it changed its approach after the First Polygraph. And while DS’s language in her June 26 letter was adversarial – using the terms “breaching an undertaking” and “reneging”, the IIO had, in fact, gone back on its agreement not to contact her current employer and did not explain its change in position. In its submissions, the IIO acknowledges that Indigenous people in BC face systemic barriers to employment. DS had told the IIO that she was in a precarious position and concerned about jeopardizing her current employment position. Yet the IIO does not appear to have considered how DS may have been affected, particularly as an Indigenous woman, by its own handling of the issue of whether it was necessary to contact her current employer. Instead, it focused only on DS’s language. Mr. MacDonald’s letter rescinding the offer specifically refers to DS’s language in her June 26 letter.
[241] Further, the IIO’s view of DS as demanding and never satisfied with its responses was overstated. Regarding the security of DS’s personal information, she was understandably concerned. The one additional safeguard the IIO said it would put in place was that it requested a notification, and ensured the material would be destroyed at the IIO offices. The IIO refused DS’s understandable request that it – rather than Mr. Paulson – store the information, and justified its refusal as being to protect her privacy. Though strongly worded, DS’s final concern stemmed from learning that Mr. Paulson was unaware of the IIO’s notification request and that the information would be destroyed at the IIO’s offices. Regarding contact information for DS’s current employer, DS was understandably upset about the IIO’s repeated requests and inconsistent positions on whether the information was necessary.
[242] As I have noted above, it may have been difficult at times for the IIO to separate DS’s tone and language from the substance of her concerns. Nevertheless, the evidence demonstrates the IIO’s readiness to view DS’s concerns and requests as unfounded and overly demanding. The IIO does not appear to have considered in a meaningful way the validity of DS’s concerns. It addressed them to a limited extent, for example, by checking with the PSSO about the storage, retention, and destruction of the recording, agreeing to destroy the recording at its offices, and agreeing (three times) not to require contact information for DS’s current employer. But when those responses did not satisfy DS’s concerns (or when it changed its position), it did not consider the possible impact of its own process and responses on DS. Rather, the IIO formed the view that DS was non-compliant and demanding.
[243] DS argues that the IIO’s application of stereotyping is also revealed through its disproportionate response to her communications. I agree, to the extent that the recommendation and decision to rescind the job offer was the strongest possible response to the IIO’s concerns. I agree with the IIO that my task is not to determine if their process was procedurally fair. I do, however, consider that it moved to rescind the job offer without apparently considering whether to put its concerns – and expectations – to DS before making the decision.
[244] In this regard, I have considered that the IIO was understandably concerned by the language and tone of DS’s communications. Mr. MacDonald’s letter expressed that the fact that the concerning communications happened before DS had started work made the situation worse. DS herself acknowledged that her letters were “maybe not conducive to a good outcome”. I accept that it received staff reports about DS, though it did not substantiate before me that DS was rude or demanding to administrative staff despite Mr. MacDonald highlighting this concern in his letter. Nonetheless, I accept that the strong, adversarial tone of the communications raised a real question for the IIO about whether DS could meet the standards of conduct required of an investigator.
[245] How the IIO chose to answer that question supports the inference of discrimination. The IIO formed its negative view of DS as non-compliant after the First Polygraph and that view does not appear to have wavered. Ms. Hogan drafted the recommendation to rescind the offer following DS’s June 18 and June 26 letters raising concerns about the IIO’s security, Mr. Paulson’s conduct, and the need to contact her employer. Had the IIO not formed the early view of DS as suspicious, demanding, and non-compliant, it may well have had a conversation with DS about whether she would be able to meet the standards of conduct for an investigator.
[246] I accept that the IIO believed that DS lacked key qualities and was not a good fit for their team. I accept that the IIO had a basis for its belief. I also find, however, that the lens through which the IIO made and held onto to its belief was informed by stereotypes about DS as an Indigenous woman.
Final note on cultural concerns
[247] The July 5 briefing note to Mr. MacDonald lists a number of “fair and reasonable management actions” the IIO took before recommending withdrawal, one of which is:
We have not been made aware of any potential cultural concerns which the IIO needs to address, and we have been mindful since [DS] self-identified throughout the process. [emphasis added]
[248] At the hearing, the parties explored the meaning of this sentence, and the IIO’s understanding of the phrase “cultural concerns” more generally. It is not necessary for me to explore this evidence. I observe, however, that the IIO witnesses struggled to explain what the notion of “cultural concerns” meant and how the IIO would assess how “cultural concerns” might arise in its recruitment process. For her part, DS submits that:
My questions surrounding how IIO stored, retained and destroyed candidates’ personal information and the hostile response by IIO was a cultural concern due to the historical deep distrust between law enforcement and Indigenous Peoples… A Métis woman who halts a polygraph examination and asks questions about how her personal information will be stored when undergoing a recruitment at a police oversight agency, is a cultural concern.
[249] For the IIO, unfortunately, DS halting the polygraph examination meant that she was trying to get out of it. I have found that such negative and stereotypical views informed its decision to rescind the employment offer.
V REMEDY
[250] I have found DS’s complaint to be justified. I declare that the IIO discriminated against DS contrary to the Code, and I order the IIO to cease the contravention and refrain from committing the same or a similar contravention: Code, s. 37(2)(a) and (b).
[251] DS seeks additional remedies, and I will consider each in turn.
A. Lost Wages and Expenses – s. 37(2)(d)(ii)
[252] Section 37(2)(d)(ii) of the Code gives the Tribunal the discretion to order a party who has contravened the Code to “compensate the person discriminated against for all, or a part the member or panel determines, of any wages or salary lost, or expenses incurred, by the contravention”. The purpose of compensation under s. 37(2)(d)(ii) is to restore a person, to the extent possible, to the position they would have been in had the discrimination not occurred: Gichuru v. The Law Society of British Columbia (No. 9) , 2011 BCHRT 185 at para. 300 [Gichuru]; upheld in Gichuru v. The Law Society of British Columbia, 2014 BCCA 396 [Gichuru BCCA].
1. Lost Wages
[253] DS seeks $36,812.48 in lost wages which she says she would have earned but for the IIO’s discrimination. DS says that if the IIO had not breached the Code, she would have been employed with the IIO as an Investigator for at least a six-month probationary period, and would have been earning significantly more than what she was earning at the job she had at the time. She points to the IIO’s offer letter which set out the salary for the Investigator role at $90,000, and says that six months of salary would amount to $45,000. She also adds $9,000 to this amount, which she says represents 20% of the $45,000, and is meant to compensate for lost benefits over the six-month period.
[254] DS says she earned $17,187.52 in the relevant time period, and acknowledges that this amount ought to be subtracted from the amount of salary and benefits she says she would have earned with the IIO. In support of her claim, she provided six pay stubs showing the wages she earned from July 2018 to October 2018, which total $13,750.02. She submits she actually worked until she was laid off on November 8, 2018, so she earned $3,437.50 more than she has provided pay stubs in support of.
[255] The IIO argues that DS has not established she lost any wages as a result of its conduct in breaching the Code because she did not resign her job, and she remained employed following the IIO’s withdrawal of the employment offer.
[256] However, the IIO’s position does not consider the financial position DS would have been in but for the discrimination. DS was at the very end of a lengthy recruitment process, had already received a conditional job offer and accepted it, and had passed the security screening which the offer was conditional upon. The IIO did not rescind the job offer due to any security concerns, but due to its view about DS’s suitability for employment with the IIO, which view I have found was tainted by stereotype. As such, but for the IIO’s discrimination, it is likely that DS would have become employed as an Investigator, and would have earned the $90,000 salary set out in the offer letter, as well as a substantial package of benefits, detailed in the “terms and conditions of employment for excluded employees-appointees”, which was also set out in the offer letter.
[257] Beyond arguing DS has not lost any salary or wages, the IIO does not make submissions in relation to any of DS’s calculations, including calculations regarding benefits, or calculations regarding the amount of mitigation wages she is claiming.
[258] I find DS’s position that she would have been employed at least for the six-month probationary period set out in the offer letter is reasonable, and reflects the possibility that she may not have been employed by the IIO for a significant length of time. I further find that DS’s calculation of $9,000 in lieu of benefits, is a reasonable estimate of the monetary value of the benefits package she would have been entitled to over the six-month period. As such, and in the absence of submissions from the Respondent, I accept DS’s calculations, and I order the IIO to pay DS $36,812.48, representing the wages she would have earned but for the IIO’s discriminatory conduct.
2. Expenses
[259] DS further claims reimbursement of the $88.00 she spent getting her fingerprinting done with the RCMP as part of the security screening process. She also claims $105.77 as reimbursement for the time she took off work to attend the Second Polygraph on July 4. Based on the paystubs DS provided, the claim for $105.77 represents approximately four hours of gross pay, and is consistent with DS’s evidence about taking time off to undertake the polygraph exam. The claim for fingerprinting costs is also consistent with the documentary evidence, which includes a receipt for the fingerprinting, and an email chain which shows the IIO required DS to undergo fingerprinting and advised her the expense would be reimbursed.
[260] The IIO does not make submissions in relation to either of these amounts.
[261] I find the fingerprinting expense is captured by s. 37(2)(d)(ii) of the Code, but the four hours of gross pay to attend the Second Polygraph is not. This is because the fingerprinting expense was incurred as part of the recruitment process, and the IIO advised DS it would reimburse her. I am satisfied that but for the discrimination, DS would have become employed by the IIO and the IIO would have made good on its commitment to reimburse her for the fingerprinting fees. As such, I order the IIO to compensate DS the cost of the fingerprinting in the amount of $88.00.
[262] However, the four hours of gross pay to attend the Second Polygraph was not incurred as a result of the discrimination, and would not have been something the IIO would have reimbursed DS for. Even if the IIO had not discriminated against DS, the time she took off of work to attend the Second Polygraph would not have been compensable.
B. Injury to Dignity, Feelings and Self-Respect – s. 37(2)(iii)
[263] Inherent in the experience of discrimination is the experience of harm. Section 37(2)(d)(iii) of the Code, gives the Tribunal the discretion to order a party who has contravened the Code to compensate a person discriminated against for harm to their “dignity, feelings and self respect or to any of them”. The purpose of an award for injury to dignity is to compensate the person who experienced discrimination, not to punish a respondent: Silver Campsites Ltd. v. James , 2013 BCCA 292 [Silver Campsites] at para. 41.
[264] In exercising its discretion under s. 37(2)(d)(iii), the Tribunal will consider a variety of factors which can be distilled into three broad categories: the nature of the discrimination, the complainant’s social context or vulnerability, and the effect on the complainant: Oger v. Whatcott (No. 7), 2019 BCHRT 58 at para. 225.
[265] The nature of the discrimination in this case involved a recruitment process which was difficult and harmful for DS because it subjected her to racist and sexist comments and stereotypical treatment. Ultimately, the discrimination meant the loss of a job offer.
[266] The IIO argues that because the discrimination occurred before the commencement of employment and any ongoing relationship between the parties, any award for injury to dignity should be at the lower end of the scale. I agree that the Tribunal has considered the length of employment as a contextual factor in assessing injury to dignity. However, here, even in the absence of a finalized employment relationship, the parties were engaged for several months, and the discriminatory impacts occurred over weeks. I find the discrimination in this case was significant and fairly long lasting.
[267] I further find that there was a clear and substantial power imbalance between the parties, which made DS particularly vulnerable to the discrimination. The IIO is a fairly large and sophisticated employer, which employes ex-police officers, and which utilizes a recruitment process that subjects applicants to highly invasive questioning by an ex-police officer. Comparatively, DS was a female Indigenous applicant, who was experiencing precarious employment, and who faced systemic barriers to employment related to her Indigeneity. As the recruitment process progressed, DS faced the possibility of not getting the IIO position, and she also reasonably feared losing her current employment when the IIO, three times, required contact information for her current employer, including after it had agreed not to contact them for IIO or PSSO purposes.
[268] Finally, I find that the discriminatory impact on DS was significant. DS testified at length about how deeply impacted she was by the IIO recruitment process. She said her experience at the First Polygraph where Mr. Paulson slammed his notebook down and rudely told her to go wait in the hallway made her feel “shocked” and “stunned”, and like a child who had done something wrong. She said that the meeting with Ms. Hogan and Ms. Yeats that followed made her feel similarly, like she was being “chided” for having done something wrong. In her submissions, DS sets out that Mr. Paulson’s comments to her at the second polygraph caused her “deep humiliation and pain”, and made her feel “nothing-dirt and not worth anything”. She was upset and shaking when she left.
[269] The IIO says that if the Tribunal finds discrimination, an award for injury to DS’s dignity should fall in the range of $1,500 – $6,000. They cite three cases in support of their suggested award range: Perry v. Honu Boat Charters and another (No. 2), 2022 BCHRT 68; Martinez-Johnson v. Whitewater Concrete Ltd, and Others, 2022 BCHRT 129; and Bhangu v. Inderjit Dhillon and others, 2023 BCHRT 34. I do not find these cases are reflective of the type and level of discrimination I have found in the present case. First, none of the three cases involves discrimination against an Indigenous person, or considers the unique challenges faced by members of this historically disadvantaged group. Second, two of the three cases are focussed on remedying discrimination arising from the use of racial slurs, which is only comparable to one element of the discrimination I have found was operational in this case. Finally, in the third case, Perry, where the Tribunal found the complainant had been denied employment because of her identity as a black woman and spiritual minister, the complainant had only sought $1,500 as an award for injury to her dignity. In granting her award in full, the Tribunal described it as “small” and “modest”.
[270] DS seeks $15,000 as an award for injury to her dignity. She cites four cases in support of the amount she is seeking. I find three of the four cases useful to the assessment of an injury to dignity award in the present case.
[271] First, in Campbell,the Tribunal awarded the complainant, an Indigenous mother who was forcefully restrained and discriminated against while trying to witness her son’s arrest by Vancouver police, $20,000 as an award for injury to her dignity. In coming to this amount, the Tribunal held that although the encounter between Ms. Campbell and the police was brief, it “struck at the core of what is already a very troubled relationship between Indigenous people and police”: at para. 62. Similarly, in the present case, by not responding meaningfully to her concerns with Mr. Paulson and other elements of the security screening process, and by viewing her questions and concerns through a lens of stereotype, the IIO effectively “gaslighted” her, and further undermined her trust in police and related agencies. In doing so, the IIO contributed to the already “troubled” relationship between police agencies and Indigenous people.
[272] Second, in RR, the Tribunal awarded the complainant, an Afro-Indigenous mother whose children were removed, and whose access to them was limited and sometimes cut off altogether over a period of two years, $150,000 for injury to dignity. In making such a high award, the Tribunal focussed on the incredible and devastating impact on the complainant from the discriminatory child welfare practices she had experienced. Those findings and that social context are not at issue in the present complaint; however, in making the award, the Tribunal also pointed to how the complaint “expose[d] systemic forces of discrimination and their profound impacts on an Indigenous mother”. Although the facts of RR are more egregious than in the present case, both cases expose the significant adverse impacts that flow when anti-Indigenous stereotypes inform decision making in relation to important aspects of people’s lives. Such stereotypes are one aspect of the systemic forces in society that have operated historically to disadvantage Indigenous people.
[273] Finally, in Radek v. Henderson Development (Canada) and Securiguard Services (No. 3) , 2005 BCHRT 302, the Tribunal awarded $15,000 to the complainant, an Indigenous woman with a disability, after she had been denied access to a shopping centre due to systemic discriminatory behaviour which stereotyped Indigenous people and disabled people as “suspicious” or “undesirable”. In coming to this amount, the Tribunal focussed on the complainant’s evidence of the impact to her dignity (at para. 641):
From her testimony, it was clear that Ms. Radek found the discrimination she suffered, both on May 10 and on previous occasions, insulting and humiliating. They offended her dignity as an Aboriginal woman. They made her, quite justifiably in my view, angry. They reminded her of her previous experiences of racial discrimination.
[274] Similarly, in the present case, DS has given evidence about how impactful the racist and sexist comments she experienced were for her, as well as how negatively impacted she was by being stereotyped as a demanding, suspicious Indigenous woman throughout the recruitment process.
[275] Considering the nature of the discrimination, the vulnerability and social context of DS, the impact on DS, and the Tribunal’s jurisprudence, I conclude that the appropriate award for injury to dignity in this case is $15,000.
C. Take Steps to Address Effect of Discriminatory Practice – s. 37(2)(c)(i)
[276] In the “Form 9.4 – Remedy Sought” that DS filed with the Tribunal, she identified that in addition to compensation for lost wages, expenses, and injury to dignity, she was seeking remedies under s. 37(2)(c)(i) – order the IIO to take steps to ameliorate the effect of the discriminatory practice, and s. 37(2)(c)(ii) – order the IIO to adopt an employment equity program or other special program to address the conditions of disadvantaged people.
[277] DS did not make any submissions in relation to ordering the IIO to adopt an employment equity program or other special program. As such, I decline to make any order under s. 37(2)(c)(ii) in that regard.
[278] With respect to her request under s. 37(2)(c)(i), DS submits that the Tribunal should order that the IIO and its contractors are required to take the Cultural Safety Education Session with educator Len Pierre. In her evidence, DS stated that the IIO both needs, and could benefit immensely, from the specific training by Mr. Pierre, and that the training would result in the IIO having a clearer understanding of how to approach Indigenous people – both civilians and staff – more appropriately.
[279] In the circumstances of this complaint, and with the limited evidence DS provided on the issue, I am not persuaded that the Tribunal ought to order the IIO to undertake any specific training with respect to cultural safety. DS did not describe the content of the proposed training or explain why this specific training would be appropriate for the IIO. Further, DS did not explain the difference between the training she proposes and the cultural safety training the IIO says it currently provides for management employees and investigators.
[280] However, while I make no order in this regard, in light of my findings above, I would encourage the IIO to undertake a review of its recruitment process, using the lenses of cultural safety and cultural humility. Further, although the IIO has taken the positive step of making Indigenous cultural safety training mandatory for management employees and investigators, I strongly encourage the IIO to commit to ongoing learning and development of cultural competencies among all of its staff.
VI CONCLUSION
[281] I have found DS’s complaint of discrimination is justified, and I order the following remedies:
a) Pursuant to s. 37(2)(a) and (b) of the Code, I declare that the IIO discriminated against DS contrary to the Code, and I order the IIO to cease the contravention and refrain from committing the same or a similar contravention.
b) Pursuant to s. 37(2)(d)(ii) of the Code, I order the IIO to pay DS $36,900.48, which represents the total of $36,812.48, as compensation for wages or salary lost as a result of the contravention, and $88.00, as compensation for expenses incurred as a result of the contravention.
c) Pursuant to s. 37(2)(d)(iii) of the Code, I order the IIO to pay DS $15,000 as compensation for injury to her dignity, feelings, and self-respect.
d) I order the IIO to pay DS post-judgment interest on the amounts awarded until paid in full, based on the rates set out in the Court Order Interest Act .
__________________________________
Shannon Beckett, Tribunal Member
[1] See Rules 5(9) and 5(10) of the Tribunal’s Rules of Practice and Procedure .
[2] See s. 2.2 and 2.4 of the Tribunal’s Public Access and Media Policy : https://www.bchrt.bc.ca/app/uploads/sites/876/2023/03/public_access_and_media.pdf (As retrieved on July 9, 2024)
[3] Indigenous identity, race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.
[4] ATD Decision at para 48.
[5] Campbell, at para 111.
[6] RRat paras. 1, and 37.
[7] Which was created for the purposes of the Dismissal Application, and entered into evidence at the hearing.