Bahrami Ghahnavieh v. SolidCAD, A Cansel Company, 2024 BCHRT 226
Date Issued: August 2, 2024
File: CS-003164
Indexed as: Bahrami Ghahnavieh v. SolidCAD, A Cansel Company, 2024 BCHRT 226
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:
Sahar Bahrami Ghahnavieh
COMPLAINANT
AND:
SolidCAD, A Cansel Company
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(d)(ii)
Tribunal Member: Ijeamaka Anika
Counsel for the Complainant: Aleem Bharmal, K.C.
Counsel for the Respondent: Jonquille Pak, Dilpreet Grewal
I INTRODUCTION
[1] Sahar Bahrami Ghahnavieh was employed as a client success representative at SolidCAD. She is originally from Iran. Ms. Bahrami Ghahnavieh filed a human rights complaint alleging that SolidCAD discriminated against her in employment based on her race, colour, ancestry, religion, and marital status, contrary to s. 13 of the Human Rights Code .
[2] SolidCAD denies discrimination. SolidCAD subsequently made a settlement offer to Ms. Bahrami Ghahnavieh. It applies to dismiss the complaint on the ground that proceeding with the complaint would not further the purposes of the Codebecause it made Ms. Bahrami Ghahnavieh a reasonable settlement offer: s. 27(1)(d)(ii).
[3] I must decide whether SolidCAD made Ms. Bahrami Ghahnavieh a reasonable settlement offer and whether proceeding with the complaint will further the purposes of the Code.
[4] For the following reasons, I deny SolidCAD’s dismissal application. I am not persuaded that SolidCAD has made a reasonable settlement offer to Ms. Bahrami Ghahnavieh. I have considered all the information filed by the parties to make this decision. For these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact about the merits of the complaint.
II BACKGROUND
[5] Ms. Bahrami Ghahnavieh commenced employment with SolidCAD in May 2019 at its Vancouver office. She previously worked for Summit Technologies until SolidCAD acquired it.
[6] Ms. Bahrami Ghahnavieh says she had no work-related issues when she worked for Summit Technologies management, and the alleged discriminatory conduct began after the SolidCAD acquisition.
[7] On September 15, 2020, SolidCAD terminated Ms. Bahrami Ghahnavieh’s employment. SolidCAD says she was terminated without cause and provided with two weeks’ pay and benefits. SolidCAD informed Ms. Bahrami Ghahnavieh that it was satisfied with her performance but wanted to focus on expanding its business to the East Coast. Her Record of Employment [ROE] stated that her employment was terminated due to a lack of work.
[8] Ms. Bahrami Ghahnavieh says that less than a month after her dismissal, SolidCAD published a job posting for the same position she had held. The position was based in Vancouver. Ms. Bahrami Ghahnavieh says this was contrary to what SolidCAD told her at the termination meeting and what was stated on her ROE.
[9] On December 8, 2022, SolidCAD offered to settle Ms. Bahrami Ghahnavieh’s complaint as follows: $1125 for wage loss and $4000 in general damages for injury to dignity. In exchange and as a precondition to the payments, Ms. Bahrami Ghahnavieh was required to withdraw her complaint with the Tribunal and execute a release in SolidCAD’s favour. Ms. Bahrami Ghahnavieh made no counteroffer.
III DECISION
A. Does it further the purposes of the Codeto proceed with the complaint?
[10] SolidCAD argues that it would not further the Code’spurposes to allow the complaint to proceed because it made a reasonable settlement offer: Carter v. Travelex Canada, 2007 BCHRT 275 at para. 23-25, upheld in 2009 BCCA 180. As stated above, SolidCAD offered to settle Ms. Bahrami Ghahnavieh’s complaint in exchange for Ms. Bahrami Ghahnavieh withdrawing her complaint.
[11] There are two prerequisites for the Tribunal to dismiss a complaint based on a reasonable settlement offer. First, the settlement offer must be made “with prejudice” because the Tribunal cannot rely on information about inadmissible settlement discussions based on privilege: Dar Santos v. University of British Columbia, 2003 BCHRT 73 para. 64; Carter at para. 25. Second, the offer must remain open for the complainant’s acceptance regardless of the outcome of the dismissal application: Issa v. Loblaw, 2009 BCHRT 264 at para. 35. Neither of these prerequisites is in issue.
[12] In assessing whether the offer is reasonable, the Tribunal assumes that the complainant will prove their allegations and considers what the Tribunal would likely order. The offer does not need to mirror precisely what the Tribunal would order: Carter at para. 30. It is not always necessary for a respondent to admit liability: Frick v. University of British Columbia, 2009 BCHRT 85 at para. 54. However, the offer must fully address the allegations and available monetary and non-monetary remedies. The Tribunal will consider:
• Whether the respondent’s remedial actions adequately remedied the alleged violation and are consistent with the types of orders the Tribunal might make if the complaints were successful and
• Whether the monetary settlement offered is within the reasonable range that the Tribunal might award if it found the complaint was justified.
See Issaat para. 35
[13] The Tribunal’s analysis under s. 27(1)(d)(ii) is contextual and case specific. The Tribunal may consider relevant contextual factors, such as the seriousness of the alleged discrimination, the timeliness of the respondent’s response to the allegation, the nature of its response (e.g., whether the respondent investigated the allegation), whether the respondent acknowledged the discrimination; whether the complainant was compensated for their losses; whether the respondent has a discrimination policy; and the importance of encouraging parties to address allegations of discrimination in a timely and constructive manner: see Baker at para. 47.
1. The particulars of Ms. Bahrami Ghahnavieh’s complaint
[14] First, SolidCAD argues that the Tribunal should assess the reasonableness of their settlement offer only in light of Ms. Bahrami Ghahnavieh’s original allegations in the complaint form. SolidCAD argues that Ms. Bahrami Ghahnavieh’s allegations in the complaint form were flawed, missing key information and did not establish a basis for relief. They say that they made the settlement offer in response to those particulars.
[15] When Ms. Bahrami Ghahnavieh filed her complaint, she alleged the following:
a. She was discriminated against because she was an immigrant with temporary resident status
b. SolidCAD signed her job offer form for immigration purposes in BC but refused to support her when needed, then terminated her employment.
c. SolidCAD excluded her from company-wide training.
d. SolidCAD did not give her the appropriate business equipment to do her job
e. SolidCAD excluded her from a company event.
f. SolidCAD separated her food menu from the rest of the team in an event
g. SolidCAD announced there would be no more layoffs but laid her off
h. SolidCAD laid her off due to lack of work and hired someone else for the same role.
i. She was verbally harassed in a one-on-one meeting with SolidCAD’s national lead and told to be grateful she had a job in COVID-19.
j. She was asked about her marital status several times.
[16] In December 2022, SolidCAD amended the complaint response, requesting that Ms. Bahrami Ghahnavieh provide further details concerning her complaint. Ms. Bahrami Ghahnavieh did not respond to that request. In January 2023, SolidCAD filed its dismissal application.
[17] In her response to the dismissal application, Ms. Bahrami Ghahnavieh provided further details concerning her complaint. SolidCAD objects to the Tribunal taking the details in Ms. Bahrami Ghahnavieh’s response into account in assessing the reasonableness of their settlement offer. It argues that it would be prejudicial to determine the reasonableness of the settlement offer based on the information contained in Ms. Bahrami Ghahnavieh’s affidavit in response to the dismissal application.
[18] SolidCAD also says that timing is important. SolidCAD filed its amended complaint response on December 6, 2022, requesting several particulars regarding the complaint. Ms. Bahrami Ghahnavieh did not respond to the request. SolidCAD made its settlement offer on December 8, 2022 and filed the dismissal application on January 17, 2023. SolidCAD says Ms. Bahrami Ghahnavieh did not take the opportunity to provide further particulars up to the deadline for filing the dismissal application. SolidCAD also says there may have been an opportunity to address the particulars issue if Ms. Bahrami Ghahnavieh had agreed to mediation. Finally, SolidCAD argues that if Ms. Bahrami Ghahnavieh is allowed to revise her complaint, it would defeat the purpose of the dismissal application and will enable her to remedy the issues with the original complaint without following Tribunal procedures.
[19] I disagree. In Ms. Bahrami Ghahnavieh’s response to the dismissal application, she provides further details regarding her complaint, which I summarize as follows:
a. Ms. Bahrami Ghahnavieh said she was only included in company events if asked. In May 2019, SolidCAD signed the whole sales team in Vancouver for two days of training in Calgary. Ms. Bahrami Ghahnavieh was initially not invited to the training. She says she was the only member of the sales team excluded from it. Ms. Bahrami Ghahnavieh contacted her former supervisor concerning the exclusion, and when he intervened, SolidCAD agreed that she could attend the training.
b. When SolidCAD took over Summit Technologies, they sent newer laptops to everyone except her. It is unclear from the materials whether Ms. Bahrami Ghahnavieh refers to her team members or the entire company staff as everyone. However, Ms. Bahrami Ghahnavieh says she spoke to her new manager about the laptop issue, and he could not give her a straight and reasonable answer. Ms. Bahrami Ghahnavieh says that when the new CEO came to the Vancouver office in January 2020, she brought up the issue, and SolidCAD sent her another used laptop.
c. She says that in February 2020, she received an email from a host asking if she required Halal food. She felt disrespected because SolidCAD’s marketing manager assumed, without checking with her, that since she is Persian and from Iran, she must be Muslim.
d. Ms. Bahrami Ghahnavieh says that at the same time, SolidCAD was questioning her marital status.
e. Two weeks before Ms. Bahrami Ghahnavieh’s dismissal, the CEO emailed all staff that SolidCAD would no longer lay off staff due to COVID-19, as the company was doing well. On September 15, 2020, at an all-staff meeting, SolidCAD’s CEO said the company was doing well and reaching performance targets and that employees’ variable compensation would be reinstated. I understand from the materials that this compensation had been cut off due to COVID-19.
[20] I find that the details Ms. Bahrami Ghahnavieh provides in her response do not expand the complaint. The Tribunal has long held that a complainant may add particulars in response to the application and the Tribunal may consider them: Larssen v. City of Port Coquitlam and others (No. 2), 2005 BCHRT 548 at paras. 26-27; Braden v. Howe Sound Pulp and Paper and others , 2023 BCHRT 225 at para 16. Ms. Bahrami Ghahnavieh provides further particulars regarding the alleged discriminatory conduct stated in the complaint form. In the response, Ms. Bahrami Ghahnavieh explains how SolidCAD excluded her from company training in Calgary until she asked and got her former supervisor involved. Concerning the allegation that she was not given appropriate business equipment, she states in the response that every employee in SolidCAD’s Vancouver office was sent newer work laptops except her. Ms. Bahrami Ghahnavieh explained that SolidCAD separated her food menu at an event by asking her if she required Halal food. Finally, she alleged in her complaint form that she was laid off after SolidCAD announced there would be no more layoffs. In her response, she provided the date and details of the CEO’s announcement concerning layoffs.
[21] There is no unfairness in allowing Ms. Bahrami Ghahnavieh to particularize her complaint. There is also no evidence before me that she has introduced a new allegation. I treat Ms. Bahrami Ghahnavieh’s additional information in the response as additional details regarding her allegations. The further particulars do not change the nature or extent of the allegations. They remain that SolidCAD excluded her from company training, did not provide her with appropriate work equipment/laptop, gave her a separate food menu, and laid her off after announcing there would be no more layoffs.
[22] Having received further particulars in Ms. Bahrami Ghahnavieh’s response, SolidCAD had the opportunity to consider them in their reply. It did not. Instead, its reply focused on the unfairness of allowing Ms. Bahrami Ghahnavieh to provide further details concerning her complaint. Like the respondents in Larssen, SolidCAD was fully entitled to take advantage of that opportunity to file extensive reply submissions and an additional affidavit or revise their settlement offer in line with the response if it so chose. It did not.
[23] In these circumstances, I do not find any unfairness in assessing the reasonableness of the settlement offer regarding the allegations, as further particularized in Ms. Bahrami Ghahnavieh’s response. In any event, I would have reached the same conclusion under s. 27(d)(ii) if I had not considered the further particulars based on the allegations in Ms. Bahrami Ghahnavieh’s complaint form.
[24] I also note that at the time of her initial complaint, Ms. Bahrami Ghahnavieh framed her complaint without the benefit of legal counsel. Ms. Bahrami Ghahnavieh now has legal counsel and, in the response, provided further details of her complaint to bring her allegations better into line with the law of discrimination: Kim v. Ocean Ceramics,2018 BCHRT 101, at para 29. I cannot find that the response expands Ms. Bahrami Ghahnavieh’s complaint beyond giving additional information on the existing complaint.
[25] Next, I consider whether SolidCAD’s settlement offer is reasonable.
2. Is the settlement offer reasonable?
[26] For the following reasons, I am not satisfied by SolidCAD’s arguments concerning the reasonableness of their settlement offer.
[27] SolidCAD argues that its settlement offer is reasonable because it includes payment for Ms. Bahrami Ghahnavieh’s wage loss during her period of unemployment and compensation for injury to dignity.
[28] First, dealing with wage loss, SolidCAD argues that Ms. Bahrami Ghahnavieh fully mitigated her loss of employment approximately six weeks after her dismissal. It says that Ms. Bahrami Ghahnavieh has secured other employment at a higher wage and did not suffer a loss in securing new employment. As evidence of this claim, SolidCAD has put before me the results of its LinkedIn search of Ms. Bahrami Ghahnavieh’s profile and speculates that Ms. Bahrami Ghahnavieh would earn a higher wage in her new role as an Architectural Designer.
[29] I understand from Ms. Bahrami Ghahnavieh’s argument that she takes no issue with the offer of compensation for lost wages. She does not dispute that she mitigated her wage loss by seeking alternative employment. Her argument focuses on compensation for injury to dignity.
[30] Second, turning to injury to dignity, SolidCAD argues that most Tribunal awards for injury to dignity are $5000 or less since Ms. Bahrami Ghahnavieh “landed on her feet” and found employment at a higher wage, no factors necessitate a higher award, and the Tribunal’s award would be modest. Hence, it argues that the $4,000 award is within the expected Tribunal award range. It cites a number of past Tribunal decisions: Pennock v. Centre City Drywall (No. 4) , 2009 BCHRT 333 (lower pay based on sex for similar work; $2,500 injury to dignity award); Torres and others v. Langtry Industries (No. 5), 2009 BCHRT 3 (discrimination on the basis of race, colour, ancestry, place of origin, family and marital status; injury to dignity of $3,500, $4,000, $4,500, and $6,000 respectively for the four complainant family members who worked together and were subjected to or witnessed the discriminatory conduct); Gardner and another v. Geldenhuys, 2014 BCHRT 150 (discrimination on the basis of race and place of origin involving stereotyping and differential treatment; injury to dignity of $1,500 and $2,000 respectively for the two complainants); Mercier v. Dasilva, 2007 BCHRT 72 (discrimination on the basis of sex involving insults about the employee’s French heritage and comments amounting to discrimination on the basis of sex, race and place of origin; $4,000 for injury to dignity); McGuire v. Better Image Property Maintenance and others, 2006 BCHRT 544 (discrimination on the basis of religion where employee was subjected to harassment on account of her faith; injury to dignity award of $2,000); Perry v. Honu Boat Charters and another (No. 2), 2022 BCHRT 68 (discrimination on the basis of ancestry, colour, and race based on comments made to complainant at a job interview; injury to dignity award of $1,500); Martinez Johnson v. Whitewater Concrete Ltd. and others (No. 2) , 2022 BCHRT 129 (employee communicated racial slurs to another employee; $2,500 injury to dignity award); MacDonald v. Najafi and another (No. 2) , 2013 BCHRT 13 (several instances of discriminatory harassment found to be insensitive, demeaning, and persistent; $4,000 injury to dignity award).
[31] Ms. Bahrami Ghahnavieh says an appropriate amount for injury to dignity should be in the range of $50,000 and that SolidCAD’s offer is out of date. Ms. Bahrami Ghahnavieh argues that the Tribunal’s award in Francis v. BC Ministry of Justice (No. 5),2021 BCHRT 16 represents an upward trend in the Tribunal’s approach regarding injury to dignity awards. In Francis, the Tribunal awarded $176,000 for the “extreme injury to dignity, feelings and self-respect suffered by Mr. Francis”: para. 218. Therefore, Ms. Bahrami Ghahnavieh says that SolidCAD’s offer does not reflect the resulting impact of the alleged discrimination, which caused her to seek counselling. Ms. Bahrami Ghahnavieh argues that SolidCAD’s settlement offer does not recognize the purpose of injury to dignity awards, the right to be free from discrimination, her experience of victimization, and the significant harm she suffered.
[32] I am not persuaded by Ms. Bahrami Ghahnavieh’s assessment of a reasonable settlement offer in this case. In Francis, which Ms. Bahrami Ghahnavieh cites, Mr. Francis called evidence about the devastating effect of the discrimination on his mental health and that he had not been able to work since his employment with the respondent ended. While any discrimination is serious, I cannot accept that the nature of the alleged discrimination Ms. Bahrami Ghahnavieh suffered is as severe as in Francis.
[33] However, I accept that the trend in Tribunal awards for injury to dignity is upwards: Biggings obo Walsh v. Pink and others , 2018 BCHRT 174 at para 163; Araniva v. RSY Contracting, 2019 BCHRT 97 at para. 145. Most of the Tribunal’s highest awards have arisen in employment discrimination cases: Biggins at para. 163. Further, more recent cases involving discriminatory harassment and the termination of a person’s employment have attracted damage awards in the range of $15,000 to $40,000: see e.g. Benton v. Richmond Plastics,2020 BCHRT 82; Araniva; The Sales Associate v. Aurora Biomed Inc. and others (No. 3), 2021 BCHRT 5; Loiselle v. Windward Software Inc. (No. 3), 2021 BCHRT 80; Ban v. MacMillan, 2021 BCHRT 74.
[34] Most cases cited by SolidCAD are dated and were decided before the upward trend in Tribunal awards. In two more recent decisions it cites, the discriminatory conduct occurred on one or two occasions. In Honu, the discriminatory conduct occurred during the complainant’s job interview. In Martinez Johnson, the Tribunal’s decision on the injury to dignity award turned on a few factors: the racially charged slurs occurred between two co-workers on one or two occasions, and the individual respondent responsible for the comments was not in a position of authority over the complainant. The Tribunal relied on the Human Rights Tribunal of Ontario’s decision that a single or a few discriminatory comments, within a short time, generally call for more modest damages: Adorgloh v. Seasons Foodmart and Feng Lin, 2013 HRTO 1201, para. 40. Therefore, I do not find those decisions helpful because, rather than a single or few discriminatory comments, Ms. Bahrami Ghahnavieh alleges discrimination throughout her employment at SolidCAD.
[35] SolidCAD also argues that there are no aggravating factors in this case as Ms. Bahrami Ghahnavieh obtained other employment and has continued her life in Canada. It further states that based on her counselling records before the Tribunal, she sought counselling for personal reasons unrelated to her loss of employment.
[36] I disagree with SolidCAD’s assessment. If Ms. Bahrami Ghahnavieh succeeds at the hearing, the Tribunal’s award for injury to dignity would compensate her for the impact the discrimination had on her dignity, feelings, and self-respect. The Tribunal has said that the settlement offer need not mirror what the Tribunal would order: Demasi v Vancouver (City), 2006 BCHRT 220, at para 13. Instead, the compensation must be within the reasonable range of what the Tribunal would order at the hearing. Regarding Ms. Bahrami Ghahnavieh’s other personal crises, it is often difficult to extricate the impact of alleged discriminatory conduct from the effects of other life events: The Sales Associate, para 195.
[37] The following factors could weigh in favour of a higher award if Ms. Bahrami Ghahnavieh succeeds at a hearing. Ms. Bahrami Ghahnavieh points to alleged discriminatory incidents during her 16 months with SolidCAD. Rather than a single or few discriminatory comments, what Ms. Bahrami Ghahnavieh alleges is discrimination based on a pattern of differential treatment by SolidCAD, culminating in the termination of her employment. In her affidavit, Ms. Bahrami Ghahnavieh says she experienced “differential mistreatment, non-transparent and untruthful behaviour by management, imperilling of the precarious immigration status of a very recently immigrated, vulnerable, young woman of colour.” She says she was vulnerable as a recently immigrated woman of colour whose immigration status was in jeopardy due to unemployment. Ms. Bahrami Ghahnavieh also says she felt “truly worthless and of no value” and experienced suicidal ideation. Ms. Bahrami Ghahnavieh puts before me notes from her counselling sessions detailing the various challenges she was experiencing at the time, including that Ms. Bahrami Ghahnavieh felt financially insecure from losing her job, compounding her personal crises. Finally, Ms. Bahrami Ghahnavieh says there was a power imbalance in the relationship between the parties throughout the employment relationship, which compounded the impact of the discrimination.
[38] In the circumstances of the complaint, I find that SolidCAD’s offer of $4000 to Ms. Bahrami Ghahnavieh for injury to dignity is not within the reasonable range of what the Tribunal might order if Ms. Bahrami Ghahnavieh is successful at the hearing on merits. For these reasons, I deny SolidCAD’s application to dismiss the complaint.
IV CONCLUSION
[39] The application to dismiss is denied.
Ijeamaka Anika
Tribunal Member
Human Rights Tribunal