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Foster v. Thind Properties Ltd. and others, 2024 BCHRT 214

Date Issued: July 24, 2024
File: CS-000081

Indexed as: Foster v. Thind Properties Ltd. and others, 2024 BCHRT 214

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:

Janus Jane Louise Foster
COMPLAINANT

AND:

Thind Properties Ltd. and John Rutckyj and Steve Eder
RESPONDENTS

REASONS FOR DECISION
APPLICATION TO DISMISS COMPLAINT
Sections 27(1)(c),(d)(ii), and (f)

Tribunal Member: Christopher J. Foy

On their own behalf: Janus Jane Louise Foster

Counsel for the Respondents: C. Nicole Mangan

I INTRODUCTION

[1] Janus Jane Louise Foster filed a complaint against her employer, Thind Properties Ltd. [Thind], John Rutckyj, and Steve Eder alleging that they discriminated against her based on sex and sexual orientation contrary to the Human Rights Code.

[2] Thind is a real estate development company and Ms. Foster was employed as a Construction Safety Officer [CSO] at various Thind construction sites, including a project known as “Beta”. Ms. Foster’s allegations principally relate to alleged bullying and harassment from Mr. Rutckyj, the construction superintendent for Beta. Ms. Foster alleges that she raised her concerns about Mr. Rutckyj’s conduct with both Thind and Mr. Eder, Thind’s vice-president for construction. She claims Thind and Mr. Eder both failed to provide her with a discrimination-free workplace and their responses to Mr. Rutckyj’s conduct were inadequate.

[3] Thind, Mr. Rutckyj, and Mr. Eder deny discriminating against Ms. Foster and apply to dismiss her complaint under s. 27(1)(c),(d)(ii), and (f) of the Code.

[4] The issues I must decide are:

i. Under s. 27(1)(c) of the Code, whether there is no reasonable prospect Ms. Foster will establish at a hearing that she was adversely impacted in her employment and that her sex and/or sexual orientation was a factor in that adverse treatment;

ii. Under s. 27(1)(d)(ii), whether proceeding with the complaint would not further the purposes of the Codebecause, Thind says, it took Ms. Foster’s allegations seriously, promptly investigated, and took appropriate steps to deal with the situation. Additionally, whether proceeding against the individuals, Mr. Rutckyj and Mr. Eder, would not further the purposes of the Code; and

iii. Under s. 27(1)(f), whether Ms. Foster’s WorkSafeBC’s claims have dealt with her complaint before the Tribunal.

[5] While I do not refer in my decision to all the information filed by the parties in relation to this application to dismiss, I have considered it and thank the parties for their respective submissions. The following will not be a complete recitation of those submissions, but only what is necessary to come to my decision.

[6] Below I first set out the background to the complaint. I then set out my reasons for concluding the Respondents’ application to dismiss Ms. Foster’s complaint is denied.

II BaCKGROUND

[7] Ms. Foster commenced employment at Thind on May 27, 2018. Ms. Foster is a lesbian and has a stutter. From December 17, 2018 – February 10, 2019 she worked at the Beta construction site. Ms. Foster says that Mr. Eder transferred her to Beta knowing that there had been previous complaints about Mr. Rutckyj and “I would be the 15thCSO to endure his wrath.”.

[8] On December 17, 2018, her first day at Beta, Ms. Foster alleges Mr. Rutckyj bullied and harassed her by making condescending and derogatory statements, including but not limited to the following:

a. “another fucking woman on my jobsite”;

b. “Are you stupid? God damn woman, I should fire you.”

c. Regarding Ms. Foster’s stutter, Mr. Rutckyj stated: “What’s the matter with you. Can’t speak…From now on I will tell [sic] what to say and when to speak”

[9] On December 18-19, 2018, Ms. Foster in her capacity as CSO spoke to a female electrician at Beta a couple of times about their inappropriate work pants. The electrician, and/or her employer, AllWest, complained about Ms. Foster. For ease of reference I refer to this as “AllWest’s complaint”. AllWest’s complaint about Ms. Foster reached Mr. Rutckyj.

[10] On December 21, 2018, Ms. Foster alleges that Mr. Rutckyj in discussing AllWest’s complaint with her, accused Ms. Foster of sexual assault, harassment and discrimination against the female electrician. Ms. Foster says that Mr. Rutckyj called her a “dyke” and threatened her with jail. Mr. Rutckyj informed Ms. Foster that Thind’s senior project manager, Nicole Asselin, would investigate AllWest’s complaint against her.

[11] On January 15, 2019, Ms. Foster sent an email to Mr. Rutckyj and others stating that she felt threatened and bullied by Mr. Rutckyj. She advised Thind that she had filed a WorkSafeBC complaint to their Preventions Department attaching Thind’s harassment policies. Ms. Foster says that Thind did not conduct a proper and thorough investigation of AllWest’s complaint against her. Ms. Foster says she independently followed-up with AllWest and the female electrician “regarding exactly how the information was conveyed. I have since rectified this matter with AllWest and the employee.”

[12] On or about February 10, 2019, Ms. Foster was relocated from Beta to an adjacent site called “Alpha”. Thind says this was done so Ms. Foster would not have to work with Mr. Rutckyj or under his supervision.

[13] On February 11, 2019, Ms. Foster emailed Ms. Asselin. Ms. Foster wrote in the email that Thind moving her to Alpha and “phasing me out is not a resolution”. She advised that she was filing a formal complaint against Mr. Rutckyj.

[14] It is unclear what complaint was filed. Although there is reference in Ms. Foster’s February 11, 2019 email to “a formal complaint with the Labour Board under the Employment Standards Act” and New Westminster Supreme Court, I do not have any of those materials before me. It is also possible it was a WorkSafeBC complaint to their Preventions Department, but I do not have an actual complaint before me either. In the materials there is reference to a WorkSafeBC file: “BHQ#25078, Janus Foster” Inspection Report which I refer to below.

[15] Around May 2019, Thind hired a Safety Consultant, Nancy Harwood, to conduct an investigation regarding Mr. Rutckyj’s behaviour toward Ms. Foster and another employee. Ms. Harwood was also tasked with developing a new Respectful Workplace Policy and Complaint Resolution Procedure for Thind.

[16] On or about July 12, 2019, Ms. Harwood completed her investigation report regarding Mr. Rutckyj’s behaviour. Ms. Harwood applied the WorkSafeBC Bullying and Harassment Policy which states in part:

Bullying and harassment

a) includes any inappropriate conduct or comment by a person towards a worker that the person knew or reasonably ought to have known would cause that worker to be humiliated or intimidated, but

b) excludes any reasonable action taken by an employer or supervisor relating to the management and direction of workers or the place of employment.

[17] Ms. Harwood found that Mr. Rutckyj’s conduct with respect to Ms. Foster met the above definition of bullying and harassment. She further concluded that he had breached the WorkSafeBC Bullying and Harassment Policy.

[18] On July 15, 2019, WorkSafeBC issued “Inspection Report: BHQ#25078, Janus Foster”. It found that Thind’s investigation and follow-up to the investigation were compliant with WorkSafeBC requirements.

[19] Following the receipt of Ms. Harwood’s investigation report, Mr. Eder met with Mr. Rutckyj to address how he interacted with employees and to discuss proper and respectful workplace communications with him. Thind did not consider terminating Mr. Rutckyj and they say that instead they tried to take “more remedial steps”.

[20] On September 25, 2019, Mr. Eder met with Ms. Foster to explain Ms. Harwood’s investigation results. According to Mr. Eder, Ms. Foster was unsatisfied because Thind had not terminated Mr. Rutckyj’s employment. Ms. Foster claims that all Mr. Eder said at the meeting was “it is your fault, not John’s”. She alleges that Mr. Eder “never responded to me and only showed support for John Rutckyj’s actons.”

[21] On November 4, 2019, Ms. Foster filed her human rights complaint with the Tribunal.

[22] On or about February 3, 2020, Ms. Foster submitted a WorkSafeBC claim for compensation for a mental disorder due to the December, 2018 events involving Mr. Rutckyj. Ms. Foster’s WorkSafeBC claim is not in the materials.

[23] The Respondent’s have submitted a March 13, 2020 Workers’ Compensation Board decision and a review of that decision dated March 10, 2021. Both decisions address Ms. Foster’s February 3, 2020 claim and find that the December, 2018 events amount to bullying and harassment of Ms. Foster by Mr. Rutckyj. However Ms. Foster’s claim was not accepted as the events did not constitute “traumatic events” as per section 5.1 of the Workers Compensation Act, R.S.B.C. 2019 c.1 such that compensation for a mental disorder would be paid.

III DECISION

A. Should the complaint be dismissed under s. 27(1)(c) of the Code?

[24] Section 27(1)(c) of the Codeis a gatekeeping provision where the Tribunal has the discretion to dismiss a complaint if it determines that the complaint has no reasonable prospect of success. The Tribunal’s role is to assess whether, based on all the material before it, and applying its expertise, there is no reasonable prospect the complaint will succeed at a hearing: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at paras. 9 and 27; Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27 [Hill].

[25] To be successful under s. 27(1)(c), the burden is on the respondent to show there is no reasonable prospect of the complaint succeeding. If the Tribunal determines there is no reasonable prospect that the complainant will be able to establish one or more elements of the complaint at a hearing, it may dismiss the complaint. The threshold for proceeding to a hearing is low. In circumstances where the respondent disputes one of these elements, the complainant’s only obligation is to point to some evidence capable of raising their complaint “out of the realm of conjecture”: Hillat para. 27.

[26] The requirements to prove discrimination were affirmed by the Supreme Court of Canada in Moore v. British Columbia,2012 SCC 61 at para. 33. The Court held that complainants must show that they have or are perceived to have a characteristic protected from discrimination; that they have experienced an adverse impact in a protected area; and that the protected characteristic was a factor in the adverse impact.

[27] I begin my analysis with the elements Ms. Foster would have to prove at a hearing to establish discrimination, recognizing that she need not prove these elements on this application, rather the Respondents must persuade me Ms. Foster has no reasonable prospect of doing so. I conclude the Respondents have not shown there is no reasonable prospect of Ms. Foster’s complaint succeeding.

1. Protected Characteristic

[28] There is no doubt that Ms. Foster is protected from sex and sexual orientation discrimination as she is a member of a group protected by the Code,namely women, and also in this case a lesbian, who report bullying and harassment. The Respondents do not contest this.

2. Adverse Impact

[29] Ms. Foster has alleged that Mr. Rutckyj made condescending and derogatory statements to her on multiple occasions causing her humiliation. The Respondents argue Mr. Rutckyj’s comments did not violate the Code, were too few to substantiate a complaint, and did not result in any adverse impact on Ms. Foster.

[30] Under the Code, employers are responsible for maintaining a discrimination-free work environment: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 at paras. 54 and 56. An employer’s failure to provide an employee with a work environment that is free from discriminatory harassment may, on its own, constitute an adverse impact in employment: Martinez Johnson v. Whitewater Concrete Ltd. and others (No. 2), 2022 BCHRT 129 at para. 54.

[31] I am not persuaded that there is no reasonable prospect that Mr. Rutckyj’s comments could violate the Code. The Tribunal has previously dismissed complaints where isolated impugned comments or conduct, while inappropriate or offensive, were found not so virulent or inherently damaging to a complainant’s dignity so as to trigger the protection of the Code: see, for example, Oropesa v. T.J. Glass Odyssey Inc (c.o.b. T.J. Autobody),2016 BCHRT 18; Falou v. Royal City Taxi, 2014 BCHRT 149. What sets this case apart is not only the alleged nature of the offensive conduct but it’s intensity over the days December 18-21, 2018. When viewed as a whole the evidence raises Ms. Foster’s complaint out of the realm of conjecture.

3. Connection to Sex

[32] The Respondents state that even if Mr. Rutckyj’s conduct adversely impacted Ms. Foster, they say there is no nexus between the adverse treatment and a protected ground. The Respondents do not explain their position on nexus.

[33] Mr. Rutckyj allegedly called Ms. Foster a “dyke” and stated “another fucking woman on my jobsite”. On their face, these comments relate to Ms. Foster’s sex and sexual orientation. If the Tribunal finds as a fact that Mr. Rutckyj said these things to Ms. Foster, it could ground an inference that her protected characteristics were a factor in his alleged conduct. For these reasons, the Respondents have not convinced me that there is no reasonable prospect that Ms. Foster will succeed in proving a nexus between Mr. Rutckyj’s comments and an adverse impact connected to Ms. Foster’s sex and/or sexual orientation.

Conclusion: s. 27(1)(c)

[34] The Respondents have not demonstrated that there is no reasonable prospect of the complaint succeeding. I decline to dismiss the complaint under s.27(1)(c).

B. Discretion to Dismiss under Section 27(1)(d)(ii) of the Code

[35] Section 27(1)(d)(ii) allows the Tribunal to dismiss a complaint where proceeding with it would not further the purposes of the Code. These purposes include both private and public interests: s. 3. Deciding whether a complaint furthers those purposes is not only about the interests in the individual complaint. It may also be about broad public policy issues, like the efficiency and responsiveness of the human rights system, and the expense and time involved in a hearing: Dar Santos v. UBC, 2003 BCHRT 73, at para. 59, Tillis v. Pacific Western Brewing and Komatsu, 2005 BCHRT 433 at para. 15, Gichuru v. Pallai (No. 2), 2010 BCHRT 125 at paras. 113-118.

[36] There are two aspects to the Respondents claim that the complaint should be dismissed under section 27(1)(d)(ii). First, the Respondents argue that Thind dealt with the matters raised by Ms. Foster in a comprehensive way. Second, the Respondents ask that the complaint against the individual respondents, Mr. Eder and Mr. Rutckyj, be dismissed because it does not further the purposes of the Code to proceed against them in the circumstances of this case.

Thind’s response

[37] The Respondents argue that it would not further the Code’spurposes for the complaint to proceed because they took steps to deal with Ms. Foster’s complaints regarding Mr. Rutckyj. They say they moved Ms. Foster to Alpha so she would not be supervised by Mr. Rutckyj. They reference a February 20, 2019, email from Ms. Foster where she states that she and Mr. Rutckyj “managed to function for six weeks together after the incident and I have no conflicts beyond it.” as evidence that even though Ms. Foster and Mr. Rutckyj managed to function together, Thind hired an independent investigator, implemented new policies and warned Mr. Rutckyj that he risked termination for improper communication.

[38] The Respondents cite Horner v. Concord Security Corporation2003 BCHRT 86 [Horner]; and Davis v. Teck Coal Ltd. and another2018 BCHRT 285 [Davis] to support their position that the Tribunal can dismiss a complaint where a party responded appropriately to the issues raised, including an assessment of whether proper remedial steps were taken.

[39] I agree that it is within my discretion to dismiss a complaint where a party responded appropriately to the issues raised. However, I am not convinced that Thind’s response to Ms. Foster’s complaint of bullying and harassment warrants dismissal under s.27(1)(d)(ii).

[40] The Tribunal in Davis, after a review of the applicable case law, including Horner, set out situations where the Tribunal will not dismiss a complaint under s.27(1)(d)(ii) at para. 84:

From these cases, I have concluded that the Tribunal will not dismiss the complaint under s. 27(1)(d)(ii) where a purpose may be fulfilled by consideration of the complaint by the Tribunal, such as:

  • It is possible that the actions complained of may amount to discrimination;
  • There is no acknowledgement that the actions complained about may have happened or may constitute discrimination;
  • If there was an investigation of the allegations, the complainant was not involved in the investigation, to the extent that s/he could provide an answer to the results of the investigation;
  • Any remedy offered to the complainant is not similar to one that could be awarded by the Tribunal, should discrimination be found; and
  • The respondent has no procedures in place to make it less likely that a similar action will occur in future.

[41] In this case, it is possible that the Respondents’ actions, including inaction, which Ms. Foster complains of, could after a hearing, be found to constitute discrimination. This is made evident by my refusal to dismiss the complaint under s.27(1)(c) of the Code.

[42] In addition, there has been no acknowledgement by the Respondents that the actions complained of by Ms. Foster may constitute discrimination. There is also a foundational credibility issue regarding what occurred between Ms. Foster and Mr. Eder at their September 20, 2019 meeting to discuss the results of Ms. Harwood’s investigation report. They both have significant differing opinions of what occurred, with Ms. Foster coming out of that meeting with the perception that Mr. Eder was blaming her for Mr. Rutckyj’s conduct. This is a key issue of credibility should be left to a hearing to resolve: Francescutti v. City (Vancouver), 2017 BCCA 242 at para. 67.

[43] Further, if Ms. Foster is successful in her complaint, she will have her complaints of discrimination validated and be entitled to remedies under s. 37 of the Code. The Respondents’ conduct of transferring Ms. Foster to Alpha or providing Mr. Rutckyj with a verbal warning have not remedied Ms. Foster’s allegations to the extent available under s.37 of the Code.

Individual Respondents

[44] The Respondents also apply to dismiss the complaint against Mr. Eder and Mr. Rutckyj under s. 27(1)(d)(ii). They argue proceeding against the individual respondents would not further the purposes of the Code: Daley v. BC (Ministry of Health), 2006 BCHRT 341.

[45] There are strong policy reasons that favour complaints against individual respondents. As the Supreme Court of Canada has acknowledged, “the aspirational purposes of the Code require that individual perpetrators of discrimination be held accountable for their actions”: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 at para. 56. This is especially true for allegations of discrimination with a high degree of personal culpability, like sexual or racial harassment: Daleyat para. 53. On the other hand, naming individual respondents can complicate and delay the resolution of complaints, exacerbate feelings of personal animosity, and cause needless personal distress to individuals who are accused of discrimination: Daleyat para. 54.

[46] The Respondents submit that it would not further the Code‘s purposes to proceed against Mr. Eder and Mr. Rutckyj because they were acting in the scope of their duties. The Respondents do not address whether Thind irrevocably acknowledges its responsibility to satisfy any remedial orders which the Tribunal might make in respect of the conduct of Mr. Eder and Mr. Rutckyj.

[47] Additionally, the complaint before me involves serious allegations of harassment and discrimination. At a hearing, if Ms. Foster were successful at proving her version of events, then there could be a measure of individual culpability for which the Tribunal could order a remedy against the individual respondents in their personal capacities.

Conclusion: s. 27(1)(d)(ii)

[48] The Respondents have not persuaded me that proceeding to a hearing does not further the purposes of the Code. I decline to exercise my discretion to dismiss Ms. Foster’s complaint under s.27(1)(d)(ii) of the Code.

C. Discretion to Dismiss under Section 27(1)(f) of the Code

[49] Section 27(1)(f) of the Codeprovides for the Tribunal to dismiss a complaint if the substance of that complaint, or that part of the complaint, has been appropriately dealt with in another proceeding. The Court in British Columbia (Workers’ Compensation Board) v. Figliola, [2011] 3 SCR 422 [Figliola] provides guidance on the application of s. 27(1)(f).

[50] The Tribunal must ask itself whether a decision by another adjudicative body essentially addresses the same legal issue that is before the Tribunal: Figliolaat para. 37. In applying Figliolathe Tribunal has considered whether a decision by another adjudicative body applies the Code to address allegations of discrimination: Debruin v. FloForm Industries and another, 2019 BCHRT 218 at paras. 41-42; Prosko v. The District of Taylor and another, 2020 BCHRT 152 at paras. 37-39; McCulloch v. Nocair and another (No. 2), 2022 BCHRT 114 at para. 97. Relying on these principles I conclude that WorkSafeBC has not addressed essentially the same legal issues that are before the Tribunal and decline to dismiss the complaint under s. 27(1)(f).

[51] The Respondents argue that “We are now relitigating the exact same issue in the Tribunal on a much narrower scope”. They say WorkSafeBC appropriately dealt with Thind’s liability arising from Ms. Foster’s WorkSafeBC complaint. I cannot agree with the Respondents’ argument. WorkSafeBC did not apply the Code to address Ms. Foster’s allegations of discrimination.

[52] The issue before WorkSafeBC was whether Thind’s investigation into Ms. Foster’s allegations of workplace bullying and harassment were reasonable, fair and impartial. There is no indication in the Inspection Report: BHQ#25078, Janus Foster that WorkSafeBC applied the Code.

[53] Similarly, WorkSafeBC’s decisions regarding Ms. Foster’s claim for compensation for a mental disorder resulting from her employment at Thind did not apply the Codeto address Ms. Foster’s allegations of discrimination. There is no evidence to indicate that WorkSafeBC’s conclusions regarding Ms. Foster’s claim for compensation was based on an assessment of discrimination under the Code.

Conclusion: s. 27(1)(f)

[54] I am not persuaded that WorkSafeBC proceedings appropriately dealt with the substance of Ms. Foster’s complaint before the Tribunal. I decline to exercise my discretion to dismiss Ms. Foster’s complaint under s.27(1)(f).

IV CONCLUSION

[55] The Respondents’ application to dismiss Ms. Foster’s complaint based on ss. 27(1)(c),(d)(ii), and (f) is denied. I encourage the parties to take advantage of the Tribunal’s mediation services to try to resolve this matter by mutual agreement.

Christopher J. Foy

Tribunal Member