BC Human Rights Tribunal

Kirby v. Kimco Controls Ltd., 2024 BCHRT 211

Date Issued: July 18, 2024
File: CS-002024

Indexed as: Kirby v. Kimco Controls Ltd., 2024 BCHRT 211

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:

Jiselle Kirby

COMPLAINANT

AND:

Kimco Controls Ltd.

RESPONDENT

REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Sections 27(1)(c) and (e)

Tribunal Member: Devyn Cousineau
On their own behalf: Jiselle Kirby
Agent for the Respondent: Mark Hartwick

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I INTRODUCTION

[1] This is a decision about whether to dismiss Jiselle Kirby’s human rights complaint without a hearing.

[2] Ms. Kirby worked as a Journeyman Electrician for Kimco Controls Ltd. She alleges that she was paid less than men for the same or substantially similar work, in violation of s. 12 of the Human Rights Code. She also alleges that, when she complained about this, she was laid off. She says this is discrimination in employment based on her sex, in violation of s. 13 of the Code.

[3] Kimco Controls Ltd. denies discriminating. It says that, at all times, it paid Ms. Kirby fairly in accordance with her level of skill, experience and the corporate wage rates. It says that her employment ended because work in her region had slowed down, and she declined an offer to relocate. It asks the Human Rights Tribunal to dismiss the complaint without a hearing because Ms. Kirby has no reasonable prospect of proving her complaint, and the complaint was brought for improper motives or in bad faith: Code,s. 27(1)(c) and (e).

[4] For the following reasons, I am not persuaded to dismiss the complaint. There is not enough evidence for me to conclude that Ms. Kirby filed her complaint in bad faith. There is also not enough evidence for me to conclude that her complaint has no reasonable prospect of success. In my view, the complaint raises issues that must be decided at a hearing. The application is denied.

II BACKGROUND

[5] This background is taken from the material filed by the parties. I make no findings of fact.

[6] Kimco Controls Ltd. is a company providing HVAC, Automation and Electrical services. Ms. Kirby says that the workforce is predominantly men. Kimco says that its gender demographic “is consistent and proportionate within the construction industry”.

[7] Ms. Kirby is a journeyman electrician. She was hired by Kimco Controls Ltd. in October 2016. Her starting wage was $27. Her wage periodically increased over the years.

[8] Kimco says it determines wages based on a “Journeyman wage schedule”. That wage schedule is not before me. Kimco says there are “A”, “B”, and “C” rates – with “A” being the highest and “C” the lowest. In deciding the proper rate, it says that it considers an employee’s certifications, years of trade experience, length of service, seniority, level of responsibility, and performance.

[9] In May 2019, Ms. Kirby relocated from Kelowna to manage a new branch that Kimco was opening in the Kootenays.

[10] In November 2019, Ms. Kirby asked male workers about their wages. She says that she learned certain men were making more, or had been hired at a higher rate, than she was. Ms. Kirby says that when she told one co-worker that she made $32 an hour, he laughed in her face and said she should be earning more. She says this was hurtful and made her feel “like I had no dignity”.

[11] Following this conversation, Ms. Kirby says she asked one of Kimco’s owners for a raise. She says he looked “very irritated” and said that other workers were lying about their rates. Though the owner has not provided any evidence in this application, Kimco denies that he was angry.

[12] On December 4, 2019, the manager emailed Ms. Kirby, expressing surprise that workers had reported that she was asking them to share information about their wages. He wrote:

I am frustrated to hear about your wage and work concerns from other technicians. The position you have agreed to take in the Kootenays involves being a Leader and leaders need [to] be an example to those around you. Sharing your complaints and concerns about management with other technicians before speaking with management can have a negative effect on the whole team. We are extremely busy and everyone is doing a great job the last thing we need is to bring down morale.

I truly believe that given the current workload [the owner] and I have done our best to help you succeed in the Kootenays while giving you space to develop your own management style. If you had concerns regarding your wage I would have thought you would have felt comfortable enough to bring them up with [the owner] or myself before talking to the Team.

[13] The manager then re-iterated certain performance expectations and expressed that “once these things are being consistently completed it would be a good time to sit down and discuss wage”. He concluded by telling Ms. Kirby that she was doing a “great job”.

[14] Ms. Kirby says she felt very hurt by the company’s response, because she saw the owner as family and prided herself on her great attitude. She says that, up until this point, the feedback about her performance had been positive. She believes the issues raised by the manager regarding her performance were directly related to her request for a wage increase.

[15] In early 2020, work was slow in the Kootenays. In February 2020, Kimco determined it needed to lay off staff. It decided to keep one male electrician, working reduced hours. It offered to Ms. Kirby that she return to working in the Kelowna office and continue to develop her management skills. At that point, Ms. Kirby says that she had already sold her Kelowna house and moved to the Kootenays. She was not prepared to return to Kelowna. As a result, Kimco laid her off and has not recalled her for work.

[16] On June 25, 2020, Ms. Kirby filed this human rights complaint.

III DECISION

[17] Section 27(1) of the Codeallows the Tribunal to dismiss complaints that do not warrant the time or expense of a hearing. This includes complaints that have no reasonable prospect of success (s. 27(1)(c)) or were filed for improper motives or in bad faith (s. 27(1)(e)). The burden is on Kimco to establish a basis for dismissal.

[18] I begin with Kimco’s argument that Ms. Kirby’s complaint should be dismissed because it was brought in bad faith.

A. Complaint filed for improper purposes or in bad faith

[19] Kimco argues that Ms. Kirby’s motives in filing the complaint are to damage the reputation of the company and benefit from a monetary award. Kimco says that Ms. Kirby is a “disgruntled former employee” who also filed an “embellished and misleading” complaint at the Employment Standards Branch. It says that Ms. Kirby’s social media posts and “details on her company laptop computer and cellphone” provide evidence of her true intent.

[20] The evidence does not support a finding, at this stage, that Ms. Kirby filed the complaint for improper purposes or in bad faith. First, Kimco has not submitted any evidence of Ms. Kirby’s social medial posts or contents of her phone/computer in this application, so I cannot consider that part of its argument. Second, it says that the Employment Standards Branch “rejected” Ms. Kirby’s complaint. However, the document that the company submitted says that the complaint was “withdrawn”. It is not unusual for employees to file complaints at multiple tribunals, which each have a different mandate. That alone is not evidence of bad faith.

[21] The only evidence in support of this argument is Mr. Hartwick’s opinion that Ms. Kirby has ulterior motives for her complaint. This opinion is not enough to dismiss the complaint, and I deny the application under s. 27(1)(e).

B. Complaint has no reasonable prospect of success

[22] Kimco also applies to dismiss Ms. Kirby’s complaint on the basis that it has no reasonable prospect of success: Code,s. 27(1)(c). To assess whether a complaint has no reasonable prospect of success, the Tribunal does not make any findings of fact. Instead, it looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan, 2013 BCSC 942at para. 77.

[23] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority, 2021 BCSC 2176at para. 20; SEPQA v. Canadian Human Rights Commission, [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.

[24] There are two parts of Ms. Kirby’s complaint: discrimination in wages, and discrimination in the termination of her employment. I begin with the wage complaint.

1. Wage discrimination

[25] Section 12 of the Codesays:

Discrimination in wages

12 (1) An employer must not discriminate between employees by employing an employee of one sex for work at a rate of pay that is less than the rate of pay at which an employee of another sex is employed by that employer for similar or substantially similar work.

(2) For the purposes of subsection (1), the concept of skill, effort and responsibility must, subject to factors in respect of pay rates such as seniority systems, merit systems and systems that measure earnings by quantity or quality of production, be used to determine what is similar or substantially similar work.

(3) A difference in the rate of pay between employees of different sexes based on a factor other than sex does not constitute a failure to comply with this section if the factor on which the difference is based would reasonably justify the difference. …

[26] To prove her complaint of discrimination in wages, Ms. Kirby would have to prove that she was paid less than at least one male employee for doing similar or substantially similar work: Bond v. Nootka Administration and others , 2012 BCHRT 340 at paras. 17-18. The work does not need to be identical, but the “core duties” of the work should be similar, accounting for the workers’ respective levels of skill, effort, and responsibility: Bond at para. 18. The core duties “are those that are central to the job, necessary to achieve the purposes for which the position was created, and which, if the incumbent is unable to perform them, would alter the nature of the position”: Prpich v. Pacific Shores Nature Resort Ltd., 2001 BCHRT 26 at para. 31. If Ms. Kirby proves that she was paid less than a man for similar work, then Kimco can justify the pay difference by showing it is based on factors other than sex.

[27] The parties have compared Ms. Kirby’s wages to three other male electricians: Worker A, Worker G, and Worker E. Ms. Kirby says she has not been able to compare her wages to other women working for the company, because there are so few. Kimco has not identified any other women in similar positions. The workers’ position, wages, and qualifications are summarized in the table below.

[28] On the face of this chart, Ms. Kirby’s starting wage was lower than Workers A and E and, in 2019, she was paid less than Workers G and E. All the workers were in the same position: Journeyman Electrician. There is very little evidence before me to assess similarities and differences in the “core duties” of each of their jobs.

[29] Kimco says that Worker E was a lead hand construction electrician for an important project. This suggests that he may have been doing substantially different duties than Ms. Kirby. Kimco says that Ms. Kirby was not qualified to be responsible for such “critically important projects”. However, the only evidence before me to explain the basis for this assessment is Kimco’s assertion. There is some evidence that Ms. Kirby was in a leadership role. It is not clear, then, how each of the workers’ core duties and level of responsibility compare.

[30] Kimco says there are non-discriminatory reasons for the wage differences. However, there is not enough evidence before me in this application to dismiss the complaint for this reason. Specifically, Kimco says:

a. The $3 difference between Ms. Kirby’s starting rate and the starting rates of Worker A and Worker E is explained, at least in part, by cost-of-living increases between when Ms. Kirby was hired (2016) and when the other two workers were hired (2018/2019). However, Kimco has not explained what the wage rates were in 2018/2019. It doesn’t explain whether Worker A was also hired at the “C rate”, like Ms. Kirby. It does, however, say that Worker E was hired at the “B rate”. This means that, even accounting for cost-of-living increases, Worker E was hired at a higher base rate than Ms. Kirby.

b. Worker E was offered a competitive starting wage to attract him from another employer. There is little evidence about this.

c. Worker A had more HVAC controls experience than Ms. Kirby when he was hired. However, there is very little evidence about how this translated into greater skills or abilities to perform the work. Worker A was junior to Ms. Kirby both in respect of his certification and his trades experience, and Ms. Kirby says that she had to teach Worker A “almost every required skill for the job”.

d. Worker G’s nominally greater wage in 2019 was because he had been working at Kimco longer than Ms. Kirby, and had an additional performance review that resulted in a small increase. However, this does not account for Ms. Kirby’s longer experience as a certified journeyman electrician.

[31] At this stage, I am not persuaded that Ms. Kirby’s complaint has no reasonable prospect of success. She has pointed to evidence that she was paid less than men in the same position as she was. The evidence is not sufficient to conclude, at this stage, that Kimco is reasonably certain to explain the difference based entirely on factors other than sex. These issues will need to be resolved at a hearing. The application to dismiss the complaint of wage discrimination is denied.

2. Discrimination in employment

[32] To prove her complaint of sex discrimination in employment, Ms. Kirby must prove that her sex was one factor in Kimco’s decision to lay her off: Moore v. BC (Education),2012 SCC 61 at para. 33. It does not have to be the only factor or the main factor; it is enough that there is some connection between her sex and her layoff. Kimco argues that Ms. Kirby has no reasonable prospect of proving this connection.

[33] In this case, any connection between Ms. Kirby’s sex and her layoff would have to be inferred from the timing of when she raised her sex-related wage concerns (November/December 2019) and her layoff (February 2020). Ms. Kirby says that work was going well until she raised the wage issue. After that, she says that Kimco raised performance expectations in the manager’s December 4 email and, two months later, told her there was no more work for her in the Kootenays. At the same time, Kimco continued to offer Worker A work in the Kootenays. Worker A is a male worker with less experience and less seniority.

[34] In my view, this is enough to take Ms. Kirby’s complaint out of a realm of conjecture. Critically, Kimco has not explained why it chose to retain Worker A in the Kootenays, instead of Ms. Kirby. There is some evidence that Kimco managers were “frustrated” by the way that Ms. Kirby was talking to other workers about her wages, and raising the issue with management. In light of this, the timing could support an inference that there was some connection between her sex-based wage complaints and her layoff.

[35] In saying this, I acknowledge that the company offered to continue to employ Ms. Kirby in its Kelowna office, and that she declined. However, this is not a full answer to Ms. Kirby’s allegation. Ms. Kirby had relocated to the Kootenays and was working there. The impact of the employer’s decision was that she lost her job. The issue for the Tribunal will be whether her sex was a factor. The application to dismiss Ms. Kirby’s employment discrimination complaint is denied.

IV CONCLUSION

[36] The Respondents’ application to dismiss the complaint is denied. I encourage the parties to engage the Tribunal’s free mediation services at any time. In the meantime, the case manager will contact the parties to schedule a hearing.

Devyn Cousineau

Vice Chair