Iacobellis v. University of British Columbia Alma Mater Society, 2024 BCHRT 234
Date Issued: August 8, 2024
File: CS-003006
Indexed as: Iacobellis v. University of British Columbia Alma Mater Society, 2024 BCHRT 234
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:
Katie Iacobellis
COMPLAINANT
AND:
University of British Columbia Alma Mater Society
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c) and 27(1)(d)(ii)
Tribunal Member: Andrew Robb
Counsel for the Complainant: Aleem Bharmal, KC
Counsel for the Respondent: Richard Press
I INTRODUCTION
[1] Katie Iacobellis filed a human rights complaint against the University of British Columbia Alma Mater Society [AMS]. She was employed at a restaurant operated by AMS, and her assistant manager [the Assistant Manager] made an inappropriate comment about her. She complained to AMS, and AMS took steps to address the comment, but she says those steps were inadequate. She also says AMS did not recall her to work as soon as it recalled other employees, after the restaurant temporarily shut down due to the Covid pandemic, due to her complaint against the Assistant Manager. She says AMS’s conduct was discrimination based on her sex.
[2] AMS denies discriminating. It acknowledges that the Assistant Manager’s comment was inappropriate. But it says the comment, seen in context, was not discrimination under the Human Rights Code . It also says the Assistant Manager apologised, and AMS took appropriate action to address the comment and prevent it from happening again. AMS says it had legitimate, non-discriminatory reasons for not recalling Ms. Iacobellis to work sooner, and it denies that Ms. Iacobellis’s complaint about the Assistant Manager had any connection to the timing of her recall.
[3] AMS applies to dismiss the complaint without a hearing. It says the part of the complaint about when it recalled Ms. Iacobellis has no reasonable prospect of success, because there was no connection between her complaint about the Assistant Manager and the timing of her recall. AMS argues that proceeding with the remainder of the complaint would not further the purposes of the Code because it has already appropriately addressed the Assistant Manager’s comment.
[4] For the following reasons, I deny the application to dismiss the complaint. On the materials before me, I find AMS has not established that Ms. Iacobellis has no reasonable prospect of proving a connection between her complaint about the Assistant Manager and the timing of her recall. Nor am I persuaded that the complaint should be dismissed because AMS appropriately addressed the alleged discrimination.
[5] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
[6] I apologise to the parties for the Tribunal’s delay in making this decision.
II BACKGROUND
[7] AMS is a non-profit society. Among other things, it operates a restaurant called the Gallery, on the University of British Columbia’s campus.
[8] Ms. Iacobellis started working for AMS on August 30, 2017. On February 6, 2020, AMS promoted her to a supervisor position at the Gallery. She was one of several supervisors working there.
[9] Ms. Iacobellis says that on or about March 3, 2020, two of her co-workers told her the Assistant Manager had asked them to pass on a message to her. The Assistant Manager wanted her to know that the way she dressed was going to get her unwanted attention, and she could not complain if she was sexually harassed.
[10] There is no evidence before me from the Assistant Manager. AMS’s application to dismiss includes a sworn statement by Celia Chung, a human resources officer at AMS. Ms. Chung says the Assistant Manager told her he had asked Ms. Iacobellis’s co-workers, who he understood were friends of hers, to ask her to wear a less revealing top. Ms. Chung said he was concerned that she could be subject to unwanted attention due to her top, and he believed it would be better for her to hear it from her friends, instead of him.
[11] Upon getting the message from the Assistant Manager, Ms. Iacobellis says she immediately reported it to her manager. She said she felt uncomfortable and upset.
[12] On the same day, March 3, 2020, Ms. Iacobellis posted about the Assistant Manager’s comment in a private online group for AMS employees. In her post she defended her right to choose how she dressed. The Assistant Manager responded to her post. Ms. Iacobellis was not satisfied with his response.
[13] On March 10, 2020, Ms. Iacobellis met with her manager and the Assistant Manager. Her manager encouraged her to take the matter to Ms. Chung.
[14] On March 11, 2020, Ms. Iacobellis met with her manager and Ms. Chung. She says Ms. Chung said the Assistant Manager would be reprimanded, and AMS would consider getting sexual harassment training for all staff.
[15] On March 12, 2020, the Assistant Manager apologised to Ms. Iacobellis. She was not satisfied by his apology.
[16] On or about March 15, 2020, AMS laid off all employees at the Gallery, due to the Covid pandemic.
[17] On March 25, 2020, Ms. Iacobellis contacted Ms. Chung by email. Ms. Iacobellis said she was still not satisfied with how the situation was resolved. Her email said she wanted to see a staff memo or a meeting on sexual harassment at work.
[18] In May 2020, AMS began to recall employees who had been laid off, but it did not recall all employees, because business was slower than before the pandemic.
[19] Ms. Iacobellis says she contacted a senior AMS manager on June 4, 2020, and asked if she could return to work, but she was not recalled to work at that time. She later learned that the Assistant Manager was responsible for recalling employees.
[20] AMS says its recall policy was based on seniority and classification. It says the only supervisors recalled before Ms. Iacobellis had more seniority than her. It admits that some non-supervisory employees who had less seniority than Ms. Iacobellis were recalled before her, but that was because they were in different roles. Ms. Iacobellis says some supervisors with less seniority than her were recalled before she was.
[21] On July 23, 2020, Ms. Iacobellis contacted AMS’s ombudsperson about the Assistant Manager’s comment and how AMS responded to it. She spoke to the ombudsperson and provided details about her concerns on August 4, 2020.
[22] On August 6, 2020, the Assistant Manager contacted Ms. Iacobellis and invited her to return to work. She did not respond to his message. It appears that she decided not to return to work at the Gallery.
[23] On August 7, 2020, the ombudsperson emailed Ms. Iacobellis. Their email said they had contacted AMS management about her complaint, and AMS management assured them that AMS would provide sexual harassment training to employees.
[24] Ms. Chung says that on August 21, 2020, and again on October 1, 2020, she sent a notice to all AMS employees about AMS policies on sexual harassment.
[25] On December 23, 2020, Ms. Iacobellis followed up with the ombudsperson by email. Her email said AMS had not provided the promised training. The ombudsperson replied on January 18, 2021, and said AMS management advised that they were not yet prepared to offer the training.
[26] Ms. Chung says she concluded her investigation into the Assistant Manager’s comment in January 2021. Her investigation found that the comment was inappropriate, and she recommended that AMS provide additional training for staff.
[27] On January 28, 2021, a senior AMS manager sent a warning letter to the Assistant Manager. The letter said that any further incidents similar to his comment about Ms. Iacobellis would lead to discipline up to and including termination.
[28] Ms. Chung says AMS accepted her recommendation to provide additional training for staff. On July 23, 2021, she sent an email to all AMS employees, requiring them to complete the training by August 31, 2021. Ms. Iacobellis says the Assistant Manager did not complete the training. AMS does not deny this. It says he stopped working for AMS in November 2021.
III DECISION
A. Section 27(1)(c) – No reasonable prospect of success
[29] AMS applies to dismiss the part of Ms. Iacobellis’s complaint alleging the timing of her recall from layoff was connected to her complaint about the Assistant Manager, on the basis that it has no reasonable prospect of success: Code,s. 27(1)(c). Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[30] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal 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. 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.
[31] 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.
[32] To prove her complaint at a hearing, Ms. Iacobellis will have to prove she has a characteristic protected by the Code, she was adversely impacted in her employment, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33.
[33] AMS does not deny that Ms. Iacobellis is entitled to the protection of the Code based on her sex. But it says the part of her complaint about the timing of her recall has no reasonable prospect of success because she was invited to return to work shortly after other supervisory employees, who had more seniority than her, and she has no reasonable prospect of proving a connection between her sex and the timing of her recall.
[34] For the following reasons, I do not accept AMS’s submission that Ms. Iacobellis has no reasonable prospect of proving she experienced an adverse impact in her employment, which was connected to her sex, arising from the timing of her recall.
[35] AMS says it recalled employees based on seniority within their classification. It says Ms. Iacobellis was recalled later than other supervisors because she had less seniority. It provided evidence that two other supervisors, who were invited to return to work before she was, had more seniority than her.
[36] Ms. Iacobellis says AMS started recalling employees to the Gallery in May 2020. She says the Assistant Manager was responsible for deciding who to recall, and when. Emails from Ms. Chung, attached to AMS’s reply submission, appear to confirm this.
[37] Ms. Iacobellis says the two supervisors with more seniority than her were not available for several weeks after AMS invited them to return, yet she was not recalled instead. AMS says the most senior supervisor was invited to return to work first, but was unable to return until July 27, 2020. It provided evidence that the second supervisor with more seniority than Ms. Iacobellis returned to work on June 26, 2020, contrary to Ms. Iacobellis’s assertion that they did not return until July 15, 2020. But AMS did not provide any evidence about when the Assistant Manager started inviting supervisory employees to return to work. In the absence of evidence about when the more senior supervisory employees were invited to return to work, or how long AMS had to wait for them to be available, I am not persuaded that Ms. Iacobellis has no reasonable prospect of proving they were not available for several weeks after they were recalled.
[38] AMS says Ms. Iacobellis has no reasonable prospect of proving she was adversely impacted in her employment because she was invited to return to work soon after the most senior supervisor returned. But if the Assistant Manager refused to recall Ms. Iacobellis for several weeks, even though more senior supervisors were unavailable, the Tribunal could find, after a hearing, that she was adversely impacted in her employment.
[39] AMS says its policy of recalling employees based on seniority within their classification is non-discriminatory and serves a valid business purpose. It does not deny that non-supervisory staff with less seniority than Ms. Iacobellis were recalled before her, but it says non-supervisory staff must be recalled separately from supervisors, because it would make no sense to recall supervisors without a number of staff already being at work.
[40] Ms. Iacobellis denies that AMS followed its policy of recalling employees based on seniority within their classification. She says two supervisors who had less seniority than her were invited to return to work before she was. In reply, AMS provided documentation showing these two supervisors did not return to work until after the Assistant Manager invited Ms. Iacobellis to return. But the evidence does not address when the supervisors with less seniority than Ms. Iacobellis were invited to return to work.
[41] In the absence of evidence about when the supervisors with less seniority than Ms. Iacobellis were invited to return to work, I am not persuaded that she has no reasonable prospect of proving they were invited to return before she was. I also observe that the ombudsperson’s email to Ms. Iacobellis, dated August 7, 2020, appears to show that AMS management told the ombudsperson that one supervisor who did not have more seniority than Ms. Iacobellis was reinstated before her, because they were available on short notice. AMS does not address this part of the ombudsperson’s email.
[42] Ms. Iacobellis says she was not invited to return to work until she contacted the ombudsperson. AMS disputes the suggestion that she was invited to return because she complained to the ombudsperson. In its reply submission, AMS refers to the ombudsperson’s email to Ms. Iacobellis, dated August 7, 2020, which says AMS staff told the ombudsperson that Ms. Iacobellis was contacted “yesterday”, i.e. on August 6, 2020, about returning to work. AMS suggests this means AMS made efforts to recall Ms. Iacobellis before it heard from the ombudsperson, but this is not clear to me. The ombudsperson’s email indicates they spoke to AMS staff about Ms. Iacobellis on August 6 or 7, 2020, but it does not suggest this was the first time the ombudsperson notified AMS about her complaint.
[43] Ms. Iacobellis complained to the ombudsperson on July 23, 2020. The Assistant Manager invited her to return to work on August 6, 2020. There is no evidence before me about when the ombudsperson first notified AMS about her complaint. I am not satisfied that Ms. Iacobellis has no reasonable prospect of proving that she was invited to return to work because of her complaint to the ombudsperson.
[44] On the evidence before me, and without any evidence from the Assistant Manager, who was responsible for recalling employees, I am not persuaded that Ms. Iacobellis has no reasonable prospect of proving that the timing of her recall had no connection to her complaint against the Assistant Manager. Her complaint against the Assistant Manager was connected to her sex. On this basis I find she has brought the connection between her sex and the timing of her recall out of the realm of conjecture.
[45] I dismiss the application under s. 27(1)(c).
B. Section 27(1)(d)(ii) – Proceeding would not further the purposes of the Code
[46] AMS argues that the part of the complaint about the Assistant Manager’s comment should be dismissed under s. 27(1)(d)(ii) of the Code, because it was a single incident, the Assistant Manager apologised, and AMS addressed the situation appropriately.
[47] Section 27(1)(d)(ii) allows the Tribunal to dismiss a complaint where proceeding with it would not further the purposes of the Code. The Tribunal has found it may not further the purposes of the Codeto proceed with a complaint where the respondent has already taken appropriate action to remedy the problem: Williamson v. Mount Seymour Park Housing Cooperative and others , 2005 BCHRT 334 at para. 11; Roach-Leforte v. Caring for First Nations Children Society and another , 2014 BCHRT 250 at para. 27, citing Wilkie v. ICBC, 2005 BCHRT 318.
[48] The Tribunal recently summarised its case law about the onus on a respondent seeking to dismiss a complaint under s. 27(1)(d)(ii), on the basis that it has appropriately addressed the alleged discrimination. To be successful in this argument a respondent must persuade the Tribunal that:
a. The respondent took the complainant’s discrimination claim seriously;
b. The respondent appropriately addressed the impact on the complainant; and
c. Where necessary, the respondent took appropriate steps to ensure the discrimination would not happen again.
Tambour v. Teamsters Union Local 155, 2024 BCHRT 20 at para. 23
[49] Although the decision in Tambour was published after the parties completed their submissions in this application to dismiss, AMS’s submission addresses the factors identified in Tambour . AMS says its response to Ms. Iacobellis’s complaint was reasonable in the circumstances, the Assistant Manager addressed the impact on her by apologising, and the steps taken by Ms. Chung to investigate the complaint and require training by all staff were appropriate to ensure the same type of discrimination would not happen again.
[50] AMS also says the Tribunal should consider the context of the Assistant Manager’s comment: it was only a single comment, made discretely. AMS acknowledges that the comment was misguided but says the Assistant Manager intended to act in Ms. Iacobellis’s best interest, and while the comment was inappropriate, it was only mildly offensive.
[51] Ms. Iacobellis denies that the context of the Assistant Manager’s comment supports a finding that proceeding with the complaint would not further the purposes of the Code. She says she told Ms. Chung his apology was inadequate, shortly after she received the apology, because he did not seem to understand that his comment was inappropriate.
[52] I have considered the context of the Assistant Manager’s comment, including his apology and the lack of evidence that he made any similar comments in the future. But based on Ms. Iacobellis’s evidence about the insufficiency of his apology, and without evidence from the Assistant Manager, I am not persuaded that he intended to act in Ms. Iacobellis’s best interest, or that he understood that his comment was inappropriate.
[53] AMS says Ms. Chung responded promptly to Ms. Iacobellis, shortly after she reported the Assistant Manager’s comment, and it agreed to the remedy Ms. Iacobellis requested in her email to Ms. Chung on March 25, 2018, for a staff memo or a meeting on sexual harassment at work. AMS says the emails that Ms. Chung sent to all staff about AMS’s policies on sexual harassment, on August 21 and October 1, 2020, were appropriate in the circumstances. AMS also says it acted promptly once Ms. Chung’s investigation was complete, by issuing a warning to the Assistant Manager, and implementing mandatory training for all employees.
[54] Ms. Iacobellis denies that AMS acted promptly. She says that at several stages of its response to her complaint, AMS only took appropriate steps after she escalated her complaint to the ombudsperson, and then filed this human rights complaint. She says the Assistant Manager did not invite her to return to work until she contacted the ombudsperson, and Ms. Chung’s investigation was not completed until she contacted the ombudsperson again, in December 2020. If AMS only acted on her complaint because she persistently followed up about it, this could suggest that AMS did not take it seriously.
[55] Ms. Iacobellis also says AMS did not provide training to staff until after it received notice that she had filed this complaint, but the evidence before me does not support this claim: Ms. Chung’s email requiring employees to take the training was apparently sent on July 23, 2021, while the Tribunal’s Notice of Complaint Proceeding was sent to the parties on July 26, 2021. Ms. Iacobellis does not suggest that AMS knew of the human rights complaint before that date, so it appears that the requirement for employees to take the training was set before AMS found out about the human rights complaint. Nevertheless, I am not persuaded that AMS acted promptly on Ms. Chung’s recommendation for training, since she made the recommendation in January 2021, and the training was not provided until July 2021, over a year after the Assistant Manager’s inappropriate comment to Ms. Iacobellis.
[56] I also note that AMS has not denied Ms. Iacobellis’s claim that the Assistant Manager never took the training, even though he continued to work at AMS until November 2021, after the deadline set by Ms. Chung for staff to take the training. Nor does AMS suggest that he faced any consequences for not taking the training. While the evidence suggests AMS took some steps to educate its staff and prevent staff from making the type of comment the Assistant Manager made, I am not satisfied that it took appropriate steps to ensure the discrimination would not happen again, because there is no evidence the Assistant Manager ever took the training required by Ms. Chung.
[57] In response to Ms. Iacobellis’s claim that AMS’s actions in response to her complaint were motivated by her persistence in following up with the ombudsperson, AMS says the timing of its actions was reasonable, in light of the effects of the pandemic. The Code does not require a standard of perfection in employees’ responses to discrimination complaints, but AMS has not addressed the close temporal connection between Ms. Iacobellis’s contact with the ombudsperson, in December 2020, and Ms. Chung’s completion of the investigation, the following month. Considering this evidence that AMS only took steps to address Ms. Iacobellis’s complaint about the Assistant Manager’s comment after she repeatedly contacted the ombudsperson, and in the absence of evidence that the Assistant Manager took the training required by Ms. Chung, AMS has not persuaded me to exercise my discretion to dismiss the complaint under s. 27(1)(d)(ii).
[58] I dismiss the application under s. 27(1)(d)(ii).
IV CONCLUSION
[59] I deny the application to dismiss. The complaint will proceed to a hearing.
[60] I encourage the parties to use the Tribunal’s mediation services.
Andrew Robb
Tribunal Member