Wafi v. Columbia Glazing Systems and another, 2024 BCHRT 215
Date Issued: July 26, 2024
File: CS-002763
Indexed as: Wafi v. Columbia Glazing Systems and another, 2024 BCHRT 215
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:
Abdelaziz Wafi
COMPLAINANT
AND:
Columbia Glazing Systems Inc. and Akbar Virani
RESPONDENTS
REASONS FOR DECISION
Tribunal Member: Edward Takayanagi
On their own behalf: Abdelaziz Wafi
Counsel for the Respondents: Kemily Ho
Date of Hearing: January 24-26, 2024
Location of Hearing: Via Videoconference
I INTRODUCTION
[1] Abdelaziz Wafi is a refugee from Saudi Arabia who originally came from Egypt. Mr. Wafi filed a complaint alleging that his former employer, Columbia Glazing Systems Inc. and its owner, Akbar Virani [collectively the “Respondents”] discriminated against him in employment on the basis of his race, ancestry, and place of origin contrary to s. 13 of the Human Rights Code. Mr. Wafi says the Respondents refused to give him a promotion he says was promised, Mr. Virani yelled and berated him for being a refugee, and he was forced to quit his job at Columbia because he was being mistreated.
[2] The Respondents deny discriminating and deny Mr. Wafi’s version of events. They do not deny Mr. Wafi was not promoted but say no promotion was ever promised. They deny Mr. Virani yelled or berated Mr. Wafi and deny that Mr. Wafi was mistreated.
[3] In this decision, I must decide whether Mr. Wafi has established on a balance of probabilities that he was adversely impacted in his employment as alleged, and if so whether Mr. Wafi’s race, ancestry, and place of origin was a factor in that adverse impact. Because the parties fundamentally disagree on the facts, this case turns in large part on the credibility and reliability of the witnesses’ evidence.
[4] The parties called witnesses and introduced evidence over the course of a three-day hearing. While I do not refer to it all in my decision, I have considered all of the evidence and submissions of the parties. This is not a complete recitation of that information, but only what is necessary to come to a decision.
[5] For the reasons that follow, I find that Mr. Wafi has not established a breach of the Codeand I dismiss the complaint.
II BACKGROUND
[6] Columbia Glazing Systems Inc. is a manufacturer of architectural glazing systems for commercial buildings. Mr. Akbar Virani is the president and owner of Columbia. During the relevant time Mr. Virani’s son was the project manager and Mr. Wafi’s direct supervisor.
[7] Mr. Wafi is a refugee from Saudi Arabia originally from Egypt. He arrived in Canada in September 2019 and applied for refugee status. Mr. Wafi had a two-year work permit allowing him to work without restriction in Canada from October 7, 2019, to October 7, 2021.
[8] Mr. Wafi interviewed for a job as a production worker with Columbia on December 6, 2019. Mr. Wafi confirmed that he had a valid work permit for two years. He did not disclose that he was a refugee claimant. Mr. Virani conducted the interview and hired Mr. Wafi. Mr. Wafi began working on December 11, 2019. Mr. Wafi’s job involved operating machinery and working on the production line manufacturing window systems.
[9] Mr. Wafi’s evidence is that in or about April 2020, he discussed his job performance with the project manager who told him he was doing a fine job and gave him a raise. Mr. Wafi says he asked the project manager if there was the possibility of being promoted to an office job and was told that it was a possibility, and he would be considered if an opportunity came up.
[10] Also in April 2020, Columbia gave Mr. Wafi a raise.
[11] On July 2, 2020, when completing documents to apply for health benefits through Columbia, Mr. Wafi disclosed to the project manager that he is a refugee claimant.
[12] Mr. Wafi took time off in August and September to travel and to quarantine for COVID-19 after travelling out of the province. Mr. Wafi says that on August 14, 2020, when he was off work, the project manager left him a voicemail message promising him an office job as an estimator. The project manager says he does not remember leaving Mr. Wafi a voicemail message in August. He denies he offered Mr. Wafi a job as an estimator in August, or at all.
[13] Mr. Wafi told the project manager on September 14, 2020, that he had his refugee claim hearing on September 24, 2020. Mr. Wafi attended his hearing and was granted refugee status. On that same day, September 24, 2020, Mr. Wafi begin the process for permanent residency in Canada.
[14] On November 10, 2020, Mr. Wafi texted the project manager, “can we talk tomorrow about office job with [Mr. Virani] during break/after I finish work”. The parties did not meet the next day or discuss the prospect of Mr. Wafi being promoted to an office job.
[15] Mr. Wafi says that on November 20, 2020, Mr. Virani approached him on the shop floor and yelled at him saying he had lied about his immigration status, and he would not be given a promotion. The Respondents deny this occurred.
[16] Also on November 20, 2020, Mr. Wafi, Mr. Virani, and the project manager met after Mr. Wafi’s shift ended. Mr. Wafi made an audio recording of this meeting without the knowledge of Mr. Virani and the project manager. Mr. Wafi says that during this meeting, Mr. Virani made disparaging comments about Mr. Wafi’s refugee status and threatened that he would be sent back to where he came from. The Respondents deny that Mr. Virani made any such comment.
[17] On December 1, 2020, Mr. Wafi quit his job. He told Mr. Virani that he didn’t think Columbia was a good fit for him.
III ANALYSIS AND DECISION
A. General Legal Principles
[18] To succeed in his claim of discrimination under s. 13 of the Code, Mr. Wafi must prove, on a balance of probabilities, that: (1) he has a protected characteristic, in this case his race, ancestry, and place of origin; (2) he experienced an adverse impact in his employment; and (3) his protected characteristics were a factor in the adverse impact: Moore v. BC (Education), 2012 SCC 61 at para. 33.
[19] There is no dispute that Mr. Wafi has the protected characteristics of race, ancestry, and place of origin. He is a racialized person from Saudi Arabia originally from Egypt. However, there is a dispute about whether he experienced an adverse impact in his employment at Columbia and, if so, whether his race, ancestry, and place of origin were a factor in that adverse treatment. These are the issues I must decide to determine if Mr. Wafi has made out his complaint.
[20] Mr. Wafi says he was adversely impacted in employment because the Respondents withdrew a promised promotion, and Mr. Virani made disparaging comments about his status as a refugee. Specifically, Mr. Wafi says Mr. Virani told him he would not be given a promotion because he is a refugee who would be sent back to where he came, and that the company wasted time and resources training him. Mr. Wafi says as a result of these comments he decided to quit. I will deal with each of the allegations in turn.
B. Being denied a promotion
[21] I begin with the allegation that Columbia denied Mr. Wafi a promotion. As set out above, the parties disagree on whether Mr. Wafi was promised a position as an estimator. Mr. Wafi says he received a voicemail from the project manager on August 14, 2020, stating that there was a job for him as an estimator. The Respondents deny that they promised Mr. Virani a job as an estimator and say that this is contrary to their normal practice of how employees are screened for a new job.
[22] Because the parties disagree on what happened, I have assessed the credibility and reliability of the witnesses’ evidence to make findings of fact. Credibility and reliability are distinct concepts. Credibility considers the truthfulness of a witness’s testimony while reliability considers its accuracy: Christensen v. Save-a-Lot Holdings Corp. (No. 3) , 2023 BCHRT 125 at para. 13.
[23] I can accept all, some, or none of a witness’ testimony and I may attach different weight to different parts of a witness’ testimony: Meldrum v. Astro Ventures Ltd., 2013 BCHRT 144 at para. 4; Campbell v. Vancouver Police Board (No. 4), 2019 BCHRT 275 at para. 18.
[24] In assessing a witness’ credibility and reliability I have considered such factors as the witness’ ability to accurately observe, recall, and recount what occurred, whether the evidence is plausible, whether supporting or contradictory evidence exists, and whether their evidence is internally or externally consistent: Harder v. Tupas-Singh and another , 2022 BCHRT 50 at para. 6. Where the parties give conflicting evidence, I have examined whether each witness’s evidence was in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”: Faryna v. Chorny, 1951 CanLII 252 (BC CA) at para. 11.
[25] For the following reasons I find I prefer the evidence of the Respondents on this point. I find Mr. Wafi has not established, on a balance of probabilities, that he was promised the job of estimator.
[26] First, I find Mr. Wafi’s evidence about the voicemail to be vague and unreliable. He says the project manager offered him the estimator job but was unable to recall any other details. He did not say that the project manager said time was of the essence or requested Mr. Wafi call back to discuss details. While I appreciate that memory fades with the passage of time, Mr. Wafi’s recollection of the voicemail message is sparse. I am unable to place much weight on Mr. Wafi’s testimony.
[27] Second, Mr. Wafi did not enter the voicemail into evidence. Instead, he submits a notification from his phone service saying that on August 14, 2020, he received a voicemail from the project manager. The project manager does not recall leaving a voicemail and specifically denies they offered Mr. Wafi a job as an estimator by voicemail.
[28] Mr. Wafi did not seek to admit the voicemail into evidence. However, he did enter text messages following the voicemail. Those text messages read as follows:
On August 14, 2020, Mr. Wafi wrote, “Hello [project manager], thanks for reaching out to me i was out of service will talk on Monday, Have a nice weekend”.
Mr. Wafi next wrote on August 16, 2020, “Hey [project manager], I can’t come on Monday since I’m at Alberta due my friend wedding and I can’t make it before 5pm. Thanks for your understanding.”
[29] If, as Mr. Wafi asserts, the Respondents made a job offer in the voicemail of August 14, 2020, it would be reasonable to expect that there would be some acknowledgement of the offer in Mr. Wafi’s response. Instead, the evidence before me is that Mr. Wafi made no mention of the job offer in his response to the project manager and told him he would not be coming in to work as scheduled on the following Monday. In my view, this behavior is inconsistent with what would be recognized as reasonable in these circumstances.
[30] Furthermore, Mr. Wafi testified that the alleged job offer was not raised or mentioned by either party until November 10, 2020, nearly three months after the voicemail. Mr. Wafi says he was busy preparing for his refugee claim hearing on September 24, 2020, and did not follow up with the project manager about the job. Even if I were to accept that Mr. Wafi was too busy with his refugee claim hearing from August 14, 2020, to September 24, 2020, this does not explain why Mr. Wafi did not follow up after that date. The undisputed evidence is that Mr. Wafi was successful in his refugee claim hearing on September 24, 2020, and was told the same day that he was given refugee status. Mr. Wafi did not discuss the estimator job with the Respondents until November 10, 2020, over a month after his refugee status hearing.
[31] Mr. Wafi testified that his goal was to get an office job and he asked the project manager about the possibility of an office job in April 2020. If Mr. Wafi were seeking an office job and, as he asserts, one was offered to him on August 14, 2020, it does not align with the preponderance of reasonable probabilities that Mr. Wafi would not follow up for over three months.
[32] Finally, the Respondents say that Mr. Wafi does not have the requisite experience and skills for the estimator job. The project manager testified to some of the qualifications for an estimator position, including: experience in the glazing industry; at least one year experience with estimating for commercial projects; project management experience; and knowledge of the construction industry in the province. The undisputed evidence is that Mr. Wafi had no experience working as an estimator in British Columbia. The Respondents’ job description for an estimator, posted on October 20, 2020, and Mr. Wafi’s resume support the Respondents’ argument that Mr. Wafi did not have the necessary qualifications and experience for the estimator role.
[33] The project manager testified to Columbia’s usual practice for candidates to apply for jobs. Hiring decisions are based on whether a candidate has qualifications and experience that meet the requirements of the job. The Respondents suggest that it is unlikely that a job would have been offered to Mr. Wafi when he does not have the experience required.
[34] I agree with the Respondents. I find the suggestion that the Respondents offered Mr. Wafi an office job for which he does not have the required experience, is not in harmony with the preponderance of the probabilities that are reasonable under the circumstances. While the project manager did not recall leaving a voicemail, he says as a supervisor he may have called Mr. Wafi to discuss his absences from work, job schedule, or when he is expected to return to work.
[35] I find the project manager did not promise or offer Mr. Wafi a job as an estimator. Therefore, I find Mr. Wafi’s allegation that he was denied a promotion that the Respondents’ promised him has not been established on a balance of probabilities.
[36] This part of the complaint is dismissed under s.37(1) of the Code.
C. Discriminatory Comments
[37] Next, I turn to the allegation that Mr. Virani made disparaging comments about Mr. Wafi’s race, ancestry, and place of origin. Though Mr. Wafi did not explicitly articulate it I understand from his submissions that he is arguing that his immigration status, specifically that he is a refugee, is co-related to his race, ancestry, and place of origin.
[38] For the following reasons I find that Mr. Wafi has not established on a balance of probabilities that Mr. Virani made disparaging comments about Mr. Wafi.
[39] Mr. Wafi says that on November 20, 2020, Mr. Virani approached him on the shop floor and yelled about Mr. Wafi’s immigration status and that he had wasted Columbia’s time and resources. Mr. Wafi says that later that same day, he met with Mr. Virani and the project manager and Mr. Virani made more disparaging remarks about Mr. Wafi’s refugee status and said that he would be sent out of the country.
[40] The Respondents deny that Mr. Virani interacted with Mr. Wafi on the shop floor. They deny Mr. Virani made disparaging remarks about Mr. Wafi’s immigration status and deny treating Mr. Wafi differently because of his race, ancestry, or place of origin.
[41] Mr. Wafi made an audio recoding of the meeting he had with Mr. Virani and the project manager on November 20, 2020. The Respondents do not deny that Mr. Virani and the project manager are depicted in the audio recording. I find the audio recording to be the most reliable evidence before me as it speaks for itself.
[42] The audio recording supports the Respondents’ version of events. Specifically, the recording establishes that Mr. Virani expressed concern that Mr. Wafi had not disclosed his immigration status during the initial job interview insofar as it affected Mr. Wafi’s ability to legally work for the Respondents. Mr. Virani says he could have done “a little bit to help” Mr. Wafi had he been made aware of Mr. Wafi’s refugee status. Mr. Virani does not say that he would not have hired Mr. Wafi if he had known about his refugee status, or that he would be sent back to where he came from. Mr. Virani expresses the opposite sentiment and says he would have helped Mr. Wafi if he had disclosed his refugee status.
[43] None of the parties on the recording mention Mr. Virani approaching Mr. Wafi on the shop floor earlier that day. Under cross-examination Mr. Wafi testified that he does not know if any other employees witnessed the alleged incident and he did not call any witnesses to corroborate his evidence. Mr. Virani and the project manager both testified that during work hours other employees are on the shop floor working. The Respondents suggest that if there was an interaction between Mr. Virani and Mr. Wafi as alleged, there would be multiple witnesses.
[44] Mr. Wafi’s testimony about when the alleged conversations with Mr. Virani took place was inconsistent and consequently unreliable. While I acknowledge that the alleged events occurred nearly four years before the hearing, Mr. Wafi’s testimony was inconsistent, both internally and with his own documentary evidence. Mr. Wafi initially said that Mr. Virani approached him on the shop floor on November 13, 2020, and that he made the audio recording on the last day of his employment, December 1, 2020. Later he said the conversation on the shop floor and the audio recording occurred on the same day. During cross-examination Mr. Wafi acknowledged that he labeled the audio recording with a date of November 20, 2020, and therefore the recorded conversation likely occurred on that date. Mr. Wafi also said that because he believes the recorded conversation occurred on the same day that Mr. Virani approached him on the shop floor, both conversations occurred on November 20, 2020.
[45] I find that Mr. Wafi has not established on a balance of probabilities that Mr. Virani made disparaging remarks about his race, ancestry, or place of origin. The Respondents deny that Mr. Virani approached Mr. Wafi on the shop floor. There is no documentary evidence to support Mr. Wafi’s allegation and the evidence that is before me suggests that such an incident did not occur. The audio recording of the conversation between the parties on November 20, 2020, supports the Respondents’ version of events that no disparaging words were spoken at that meeting or in earlier conversations.
[46] Accordingly, I find Mr. Virani has not met his evidentiary burden and I dismiss this part of the complaint under s.37(1) of the Code .
D. End of Employment
[47] Finally, I deal with the allegation that Mr. Wafi was forced to quit because of how the Respondents treated him. Mr. Wafi submits that because Mr. Virani made discriminatory remarks about his race, ancestry, and place of origin, and because he was not given a promised promotion, he felt there was no future for him as an employee of Columbia. I understand that Mr. Wafi is arguing that he felt compelled to quit his job because the Respondents failed to provide him with a discrimination-free work environment.
[48] An employer is required to provide a respectful work environment that is free from discrimination: Robichaud v. Canada (Treasury Board), 1987 CanLII 73 (SCC). When a work environment deteriorates to such a degree that it may be poisoned because of the employer’s failure to prevent harassment, it may amount to “constructive dismissal” of the affected employee: Eva obo others v. Spruce Hill Resort and another, 2018 BCHRT 238 at para. 153. An employee is not required to subject themselves to discriminatory practices: McCreath v. Victoria International Running Society , 2013 BCHRT 53 at para. 276. Determining if an individual was subject to a work environment poisoned by discrimination, depends on the facts of each case.
[49] I have already found that Mr. Wafi has failed to prove that Columbia did not promote him as promised or Mr. Virani made disparaging remarks about him. These are the same events that Mr. Wafi relies on to say Columbia failed to provide him a discrimination-free environment and compelled him to leave his job. Since I have found he has not proven that those events occurred, I cannot accept that Columbia was a poisoned work environment or that it was poisoned by discrimination related to Mr. Wafi’s race, ancestry, or place of origin.
[50] I find Mr. Wafi has not proven he was constructively dismissed. I dismiss this portion of the complaint under s. 37(1).
IV CONCLUSION
[51] Based on the evidence, I find the Respondents did not violate the Code. Accordingly, the complaint is dismissed in its entirety under s. 37(1) of the Code.
__________________________________
Edward Takayanagi, Tribunal Member