Baptiste v. OPAL Development Limited Partnership, 2024 BCHRT 243
Date Issued: August 16, 2024
File: CS-000306
Indexed as: Baptiste v. OPAL Development Limited Partnership, 2024 BCHRT 243
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:
Nicole Baptiste
COMPLAINANT
AND:
OPAL Development Limited Partnership
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Sections 27(1)(c) and (d)(ii)
Tribunal Member: Devyn Cousineau
On their own behalf: Nicole Baptiste
Counsel for the Respondent: Catherine Repel
I INTRODUCTION
[1] This is a decision about whether to dismiss Nicole Baptiste’s complaint without a hearing.
[2] Ms. Baptiste worked as a prep cook for OPAL Development Ltd. Partnership from October 15, 2019, until her employment was terminated on November 25, 2019. She is a Black woman, and a single mother. Ms. Baptiste alleges that, during her employment, she was overlooked for a work opportunity, and over-scrutinized compared to the male staff of predominantly white or Asian heritage. Her employment was terminated because she was late to work and using her phone during her shift. Both of those issues, she says, arose because she was talking to her child’s school. She says she communicated with the employer about the issue, and it did not interfere with her work. In her complaint, Ms. Baptiste alleged that her treatment and termination were based on her colour, gender identity, sex, and family status, in violation of s. 13 of the Human Rights Code. The Tribunal did not accept the complaint for filing on the basis of Ms. Baptiste’s gender identity or colour: letter dated August 31, 2020. As a result, only the allegations of discrimination based on sex and family status are before me.
[3] Opal denies discriminating and asks the Tribunal to dismiss the complaint without a hearing. It says, first, that Ms. Baptiste signed a release when her employment was terminated, in exchange for an additional sum of money. It says it does not further the purposes of the Codefor the complaint to proceed in the face of that agreement: Code,s. 27(1)(d)(ii). Alternatively, it says that Ms. Baptiste has no reasonable prospect of proving discrimination: Code,s. 27(1)(c).
[4] For the following reasons, I am not persuaded to dismiss the complaint. The complaint will proceed to a hearing.
II BACKGROUND
[5] The following background is taken from the materials filed by the parties. I make no findings of fact.
[6] Opal is a retirement community with a full-service kitchen. It started its operations in October 2019, with a plan to open the kitchen several months later.
[7] Ms. Baptiste was one of the first people hired to work in the kitchen. She was hired in September 2019 as a prep cook and started work on October 15. Her position was full time, with benefits. She had a three-month probationary period. At this time, there is no dispute that the kitchen staff were predominantly men. Opal says that there was one other woman working in the kitchen, and that many of the staff had children. Ms. Baptiste agrees that other staff had children, but says that she was the only single parent with no other parent supporting her child.
[8] In her first weeks of work, Ms. Baptiste’s duties were primarily cleaning and washing dishes. She did not start cooking or working with food until around November 11.
[9] At some point, the Executive Chef asked kitchen staff for referrals for a cook who could work on the wok. I understand this would have been a promotion for Ms. Baptiste. Ms. Baptiste says she told the Executive Chef that she had three years’ experience with Asian cooking and a wok. She says she understood either that the Executive Chef offered her the position, or would seriously consider her for it. However, the Executive Chef instead hired a different male staff person. Ms. Baptiste says this man had no prior experience. In her complaint, Ms. Baptiste alleges that this decision not to hire her to work on the wok was discriminatory.
[10] Ms. Baptiste’s employment was terminated on November 25. Opal says there were two reasons for her termination: using her cell phone during her shift, and tardiness.
[11] Opal says that there was a workplace rule which prohibited employees from using their cell phones while they were working. There were limited exceptions to this rule where employees were consulting a recipe. Opal’s Executive Chef says that he noticed Ms. Baptiste using her cell phone during her shift, for talking and texting.
[12] Ms. Baptiste explains that, during this time, her child was having attendance issues at school. Occasionally, the school would call Ms. Baptiste during her shift, and she would take the call. In her complaint, she says that staff had been told to step off the line if necessary to take a personal call – which she says she did. Ms. Baptiste has submitted her records of these calls, which Opal does not dispute at this stage. They indicate that she had calls with the school lasting one or two minutes on October 4, 7, and 21. On October 1, she had a six-minute call and on October 28 she had a three-minute call. She says that she would quickly excuse herself from the kitchen to take these calls. Ms. Baptiste denies texting during her shifts.
[13] The second reason that Opal says it terminated Ms. Baptiste’s rule is that, on five or six occasions, Ms. Baptiste was either late for work or left early without permission.
[14] Ms. Baptiste does not dispute that she was late a few times. She says that it was always related to her child and that she was usually no more than 10-15 minutes late. Ms. Baptiste understood that she was required to tell the head Chefs when she was going to be late, but says that the employer did not give her any contact information or explain how to do this. She says that she asked a co-worker to tell the Chefs she would be late, and the co-worker confirmed that he did that. It is unclear whether Ms. Baptiste agrees she ever left work early without permission.
[15] On November 13, about one month into her employment, the Executive Chef and Sous Chef met with Ms. Baptiste. The Executive Chef says they expressed their concern for her lateness and cell phone use. He says that Ms. Baptiste did not offer any explanation for her behaviour or disclose that it was related to her family obligations. Ms. Baptiste disputes this. She does not recall any discussion about her phone use. Rather, she says they were focused on her tardiness. She says that she told them that she had been late because her child was having attendance challenges, but she expected the issue would be resolved before the kitchen opened. She says she had asked a co-worker to tell them she would be late, and they did not deny getting those messages. She says that she apologized.
[16] Opal says that, following this meeting, there was no improvement in Ms. Baptiste’s behaviour. The Executive Chef says that she continued to be late, on her phone, and missed an orientation meeting.
[17] For her part, Ms. Baptiste agrees she used her phone on November 21. She says she was using a recipe online, as permitted. She says she had to frequently tap her phone to refresh the screen. She says that everyone was using their phones, at the encouragement of the Executive Chef, to look up recipes and get inspiration.
[18] Ms. Baptiste also agrees there was a day when she was about 25 minutes late to work, because she had to meet with the school counsellor. She says that, as always, she texted her co-worker and asked him to let the Chefs know. This was the day she missed the orientation meeting. She says that, when she saw the Sous Chef, she immediately apologized and explained she was meeting with the school counselor.
[19] On November 25, Opal terminated Ms. Baptiste’s employment.
[20] Ms. Baptiste says that, in the morning, one of her male co-workers told her that the Sous Chef did not like her because she was Black. She says this statement was out of left field and hit her hard. She kept working, and around 11:30, she took a call from her child’s school. She stepped out of the kitchen to take the call, which she says lasted one or two minutes. She says that, while she was on the call, the Sous Chef approached her “in an extremely aggressive and angry demeanor” and told her to “GET OFF THE PHONE” and follow him. She says she was “humiliated, insulted, and intimidated”, and was shaking. She says she was then required to walk by all her male co-workers in the kitchen on her way to her termination meeting.
[21] The meeting took place with the Executive Chef, Sous Chef and Human Resources Manager [HR Manager]. Ms. Baptiste was told her employment was terminated without cause, because of her excessive cell phone use and lateness. Ms. Baptiste asked for another chance. Opal says that she did not explain her conduct or identify that it was related to family caregiving responsibilities.
[22] During this meeting, Ms. Baptiste was given two letters. The first was a termination letter. The second was a letter containing an offer for an $880 severance payment in exchange for a release. The offer expired at the end of the business day. The HR Manager says she explained the offer letter to Ms. Baptiste, including the amount of the offer and the terms of the release. Opal says that it gave Ms. Baptiste time to read the document and to ask questions. It says that Ms. Baptiste took a minute to read through it and signed the release without asking any questions. She received the severance payment in the meeting.
[23] On December 31, 2019, Ms. Baptiste filed this human rights complaint.
III DECISION
[24] Section 27(1) of the Human Rights Codegives the Tribunal a gatekeeping power to dismiss complaints that do not warrant the time and expense of a hearing. In this case, Opal argues that Ms. Baptiste’s complaint should be dismissed because it does not further the Code’s purposes to proceed in circumstances where Ms. Baptiste has signed a release, and because it has no reasonable prospect of success: Code, ss. 27(1)(c) and (d)(ii). I consider each of its arguments in turn.
A. Proceeding would not further the purposes of the Code
[25] There is no dispute that, during her termination meeting, Ms. Baptiste accepted a severance payment in exchange for signing a release. The release applies to any issue “relating to or arising out of [Ms. Baptiste’s] employment with Opal and the termination thereof”. There is no dispute that this captures Ms. Baptiste’s human rights complaint. The issue in this application is whether it furthers the purposes of the Code to allow the complaint to proceed notwithstanding the release.
[26] A release does not deprive the Tribunal of jurisdiction to hear a human rights complaint: Thompson v. Providence Health Care, 2003 BCHRT 58 at para. 38. This is because people cannot contract out of their rights under the Code: Insurance Corporation of British Columbia v. Heerspink , [1982] 2 SCR 145 at 158. However, there are strong policy reasons that favour holding people to agreements they have voluntarily entered into:
When parties are able to resolve human rights disputes by way of a settlement agreement, considerable public and private resources may be saved. They may be able to resolve the complaint more expeditiously than would a formal hearing process. The parties may also be able to craft a resolution which more closely matches their needs and interests than would a decision of the Tribunal. Finally, the mediation process itself may be better for the parties’ relationship than a formal hearing. For all of these reasons, the Tribunal encourages and assists parties in attempting to resolve complaints.
Nguyen v. Prince Rupert School District No. 52, 2004 BCHRT 20 at para. 15
[27] These advantages are undermined if parties who resolve their complaints are subsequently permitted to come forward and pursue the same complaint at the Tribunal: Thompson at para. 28. The Tribunal has frequently dismissed complaints subject to a settlement agreement on the basis that proceeding with the complaint would not further the purposes of the Code: s. 27(1)(d)(ii).
[28] The burden is on the person seeking to pursue their complaint in spite of a release to persuade the Tribunal that the purposes of the Code are best served by allowing the complaint to proceed: Thompson at para. 46. In this case, that means that Ms. Baptiste bears the burden of persuading me that her complaint should be allowed to proceed in the face of an agreement that expressly purported to preclude it.
[29] In considering this issue, the Tribunal has recognized several relevant factors, including: the language of the release; unconscionability; undue influence; whether the party received independent legal advice; conditions of duress; and whether the party received little or no consideration for the release: Thompson at paras. 42-44, citing Chow (Re)(1999), 37 CHRR D/442 (Alta. Q.B.), and Pritchard v. Ontario (Human Rights Commission) (No. 1) (1999), 35 CHRR D/39 (Ont. Ct. (Gen. Div.)) at para. 17. The Tribunal may also consider “the seriousness of the allegations in a complaint and what is at stake for the complainant”: Gerard v. Olive’s Market Whistler and others , 2015 BCHRT 102 at para. 17.
[30] In this case, Ms. Baptiste argues that her complaint should proceed because she signed the release under conditions of duress. On balance, and considering the entire context, I agree.
[31] In this analysis, duress is assessed contextually, accounting for factors like the timing of the agreement, financial need, or other circumstances. It means more than “mere stress or unhappiness”: Chow at para. 104; Thompsonat para. 44. The issue for this Tribunal is not whether the contract itself is void or voidable. Rather, it is to determine which course of action better serves the quasi-constitutional purposes of human rights legislation, which include fostering a free and equal society, eliminating inequality, and providing a means of redress for those persons who are discriminated against: Code, section 3. Where a person releases their rights under the Code within a context marked by the type of inequality that the Code aims to eliminate, it may not serve the Code’s purposes for the Tribunal to hold the parties to the bargain: The Employee v. The Company and the Owner , 2017 BCHRT 266 at para. 35.
[32] I begin with the timing of the agreement. The agreement was reached at the same time as Ms. Baptiste’s employment was being suddenly terminated. Employees are most vulnerable at the moment of their termination: Wallace v. United Grain Growers Ltd.,[1997] 3 SCR 701 at para. 95. This timing alone is not enough to establish conditions of duress. This Tribunal has previously acknowledged that “[a]ll employees facing termination face some stress and pressure to act”: Ghane v. Lush Fresh Handmade Cosmetics Ltd ., 2009 BCHRT 13 at para. 18. Such ordinary stress and pressure do not, themselves, amount to duress: Craig v. Sony Entertainment Canada Inc. and Abson , 2005 BCHRT 54 at para. 35. However, an employer who expects or allows an employee to sign a release at the time of their termination should be aware that this is a uniquely vulnerable moment and, depending on other factors, may weigh in favour of allowing a human rights complaint to proceed notwithstanding the release. That is the case here.
[33] In my view, Ms. Baptiste’s vulnerability was exacerbated by three main factors: a feeling of shock and humiliation in the moments before and during the termination meeting, a limited opportunity to consider and evaluate the terms of the release, and her financial circumstances.
[34] Ms. Baptiste says that the day of her termination began when a co-worker told her the Sous Chef didn’t like her because she is Black. Opal has not responded directly to this allegation, likely because the Tribunal did not allow Ms. Baptiste’s allegation of racial discrimination to proceed. In this situation, I place little weight on the allegation other than to note that Ms. Baptiste says that the comment strongly impacted her that morning.
[35] Immediately before the termination meeting, Ms. Baptiste says that the Sous Chef humiliated her in front of her child’s school by loudly demanding she get off the phone, and in front of her co-workers when she was forced to walk past them into the meeting. Opal does not dispute either of these interactions.
[36] During the termination meeting, Ms. Baptiste was confronted with the HR Manager, Executive Chef, and Sous Chef. There is no dispute that the termination was sudden; the Executive Chef and HR Manager say that they decided to terminate Ms. Baptiste’s employment “around” November 25 and did so that day. Ms. Baptiste says – and it is undisputed – that she was “in a blur and in shock for losing my job and could not even attempt to understand a contract”. She says she had heart palpitations, shortness of breath and anxiety, and felt very thirsty. She felt a rush of fear. She says that, during the meeting, the Sous Chef accused her of being unprofessional, and said to her “I thought you were a Head Chef”, which she found insulting and humiliating. She says she tried to explain that she had a solution to the problem she had told the Chefs about before – meaning the issues with her child’s school. She asked for another chance and it was denied.
[37] In signing the release, Ms. Baptiste agreed she had the opportunity “to obtain independent legal advice”. However, Ms. Baptiste did not have legal representation or advice during the meeting. She says that she asked the HR Manager about legal representation, and the HR Manager told her “Opal is being kind enough to provide me with extra money to help my exit and in order to receive the check I had to sign”. The HR Manager denies telling her that she would not receive any money unless she signed the release. Whether or not the HR Manager said it, this was true for Ms. Baptiste. The offer was only open until the end of the business day. Because she was being terminated within her probationary period, there was no other payment forthcoming. It was correct that, according to the offer presented to her, Ms. Baptiste would only receive the severance payment if she signed the release that day.
[38] There is no dispute that Ms. Baptiste read the offer letter and release very quickly before signing. The HR Manager says that Ms. Baptiste was offered time to read over the documents and to ask questions during the meeting and chose not to. Accepting this is true, there is no evidence that she was offered meaningful time to get legal advice. The meeting took place mid-day and the offer expired only hours later.
[39] This leads me to Ms. Baptiste’s financial circumstances, which weigh heavily in favour of allowing the complaint to proceed. Ms. Baptiste’s evidence about these circumstances is undisputed at this stage.
[40] Ms. Baptiste is the sole breadwinner for herself and her child. Ms. Baptiste says that, when she was terminated, she was living paycheck to paycheck. She did not have savings to rely on. She knew that, without her job at Opal, she would not be able to pay rent and she and her child would be evicted – which is what happened. She says that the impact of losing her job was immediate and catastrophic. In this circumstance, when faced with the prospect of losing her job and having no money, or accepting some money on the spot, she chose to accept the money. She explains that, as always, she was trying to preserve her child’s stability as much as possible.
[41] Opal argues that the release was short and written in plain language, and that Ms. Baptiste was sophisticated enough to understand what she was signing. I accept that the release offered a simple bargain: payment of a sum of money in exchange for an agreement not to sue Opal. Ms. Baptiste does not suggest she did not understand this. Rather, her argument – which I have accepted – is that the circumstances of the agreement were such that she was under such pressure to sign that it does not further the purposes of the Codeto enforce the release regarding her human rights complaint.
[42] In sum, based on the evidence before me, I am satisfied that Ms. Baptiste signed the release under conditions of duress. She was presented with the release at a moment of heightened vulnerability. She had very little time or opportunity to consider the implications of signing the release, and was under financial stress. In this circumstance, it furthers the purposes of the Codeto allow her to pursue her human rights complaint.
[43] In reaching this conclusion, I acknowledge that Opal has already paid Ms. Baptiste a sum of money in exchange for the release, and it does not appear she has paid it back in order to pursue her complaint. This is an issue that can be resolved between the parties through negotiation, through a final decision of the Tribunal, or otherwise.
B. No reasonable prospect of success
[44] Next, Opal argues that Ms. Baptiste’s complaint should be dismissed because it has no reasonable prospect of success: Code,s. 27(1)(c). The onus is on Opal to establish the basis for dismissal.
[45] In assessing whether a complaint has no reasonable prospect of success, the Tribunal does not make findings of fact. 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, 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.
[46] 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 [Hill] at para. 27.
[47] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia, 2008 BCSC 1026 at para. 34. However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City), 2017 BCCA 242 at para. 67.
[48] To prove her complaint at a hearing, Ms. Baptiste will have to prove that (1) she has the protected characteristics of sex and family status, (2) she was adversely impacted in her employment, and (3) her family status and/or sex were a factor: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33; British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd ., 2023 BCCA 168 [Gibraltar Mines]. If she did that, the burden would shift to Opal to justify any adverse impact as a bona fideoccupational requirement.
[49] I address each of Ms. Baptiste’s main allegations in turn.
1. Job opportunity on the wok
[50] Because the Tribunal has not allowed Ms. Baptiste’s allegation of racial discrimination to proceed, I must evaluate her allegation about the wok position as one of discrimination based on sex. There is no dispute that Ms. Baptiste is a woman, and protected against discrimination based on her sex. In its application, Opal argues that Ms. Baptiste has no reasonable prospect of proving the other elements of this allegation.
[51] First, Opal says that Ms. Baptiste has no reasonable prospect of proving that she was adversely impacted in connection with an opportunity to work on the wok.
[52] Several key facts do not appear to be in dispute at this stage. In the first weeks of Ms. Baptiste’s employment, the Executive Chef was looking to hire someone to work on the wok. This would have been a promotion for Ms. Baptiste. The Executive Chef does not dispute that Ms. Baptiste expressed interest in the position and shared that she had over three years’ experience working on a wok. Finally, there is no dispute that the position was offered instead to a man.
[53] To the extent there is a dispute, it appears to be about whether the Executive Chef in fact offered the job to Ms. Baptiste. The Executive Chef says he did not offer her the job. For her part, Ms. Baptiste’s evidence is a bit contradictory. In her complaint, she alleges that the Executive Chef offered her a position on the wok, working Monday to Friday. In her response to the dismissal application, she says that, when she told the Executive Chef that she had over three years’ experience using a wok, he said “That’s great to know”. She says that she “considered his approval as confirmation that I will be considered for the position”. Finally, in her affidavit submitted for this application, she says that she “offered her skills” but was never given an opportunity to present them. She says, “I am aware I was not being offered the position as it was already being offered to [the co-worker]”. In light of Ms. Baptiste’s more recently filed materials, it appears she may agree that the Executive Chef did not offer her the job; rather, she understood that her skills would be considered.
[54] Ultimately, I do not consider this dispute to be significant at this stage. Based on undisputed facts, Ms. Baptiste may be able to prove that she was adversely impacted when she was not promoted to a position on the wok.
[55] Next, Opal says that Ms. Baptiste has no reasonable prospect of proving that any adverse impact was connected to her sex or family status.
[56] I agree that there is no direct evidence capable of proving a connection between Ms. Baptiste’s protected characteristics and the decision not to offer her this position. That is not unusual. Discrimination often must be proven by inference. In cases involving a failure to hire, that inference may be proven by showing that Ms. Baptiste was qualified for the position and that Opal hired someone no better qualified but who did not have her protected characteristics: Oxley v. British Columbia Institute of Technology , 2002 BCHRT 33 at paras. 67-73.
[57] Again, some of the key facts are undisputed at this stage. Opal does not dispute that Ms. Baptiste was qualified for the position. It has also not disputed Ms. Baptiste’s evidence that the man hired for the position was less qualified. On that issue, Ms. Baptiste says that the man had “zero experience with both handling a wok and Asian Cuisine”. Opal has not submitted any evidence or explanation about the man’s qualifications or why he was chosen for the position.
[58] Finally, it is undisputed that the work environment was predominantly male. The Executive Chef says that, at the time Ms. Baptiste was employed, “there was one other female staff and subsequent to Ms. Baptiste’s employment, we have had a few other females on the kitchen staff”. This gender imbalance would not, on its own, be enough to prove discrimination at a hearing. However, at this preliminary stage, I consider it to be a factor that helps to lift Ms. Baptiste’s allegation out of a realm of conjecture.
[59] On balance, I am not persuaded this allegation has no reasonable prospect of success and I decline to dismiss it.
2. Termination of employment
[60] Ms. Baptiste’s allegation of discrimination in the termination of employment is rooted in her family caregiving responsibilities. At the outset of my analysis, I observe that the law on discrimination based on family caregiving responsibilities has been clarified since the parties filed their submissions on the application. Specifically, in Gibraltar Mines,the BC Court of Appeal clarified that a complainant is not required to prove that family status discrimination flowed from a change in the terms or conditions of employment: see e.g. para. 67. This means that Opal’s argument that the complaint should be dismissed because there was no change in the terms or conditions of Ms. Baptiste’s employment cannot succeed. However, in my view, it is not necessary to seek further submissions from the parties on this issue. Rather, I focus on Opal’s main submission that it was not aware of Ms. Baptiste’s caregiving responsibilities. In doing so, I apply the law as it has been clarified in Gibraltar Mines.
[61] First, Ms. Baptiste must prove that the ground of family status is engaged in relation to her caregiving responsibilities. The definition of “family status” under the Code is meant to be flexible: Gibraltar Mines at para. 91. In a caregiving context, the ground is engaged by the substantial interests (i.e., duties, obligations, responsibilities, etc.) that flow from a person’s status as a family member: see Gibraltar Mines at paras. 62, 70, 77, 95, 97-98, and 99-101; see also Bach v. BC Ministry of Finance,2024 BCHRT 145 at para. 17.
[62] At this stage, Opal has not argued that Ms. Baptiste’s obligations, as a single parent, to talk to or meet with her child’s school about the child’s attendance falls outside the ambit of family status. In my view, there is some prospect that the Tribunal would find that this is the type of substantial interest that the Codeprotects.
[63] Next, Ms. Baptiste must prove that she was adversely impacted in her employment. This is not reasonably in dispute. The termination of employment is an adverse impact.
[64] Finally, Ms. Baptiste must prove that her sex and/or family status – in particular her obligations to communicate with her child’s school during work hours – was a factor in her termination. She argues two types of connection.
[65] The first type of connection is grounded in adverse impact. At this stage, Opal does not dispute that Ms. Baptiste’s cell phone use and tardiness were connected to her caregiving responsibilities. Because these were the reasons for her termination, I am satisfied that the connection between the termination and family status is beyond a realm of conjecture.
[66] The second type of connection is grounded in adverse treatment. Ms. Baptiste argues that Opal applied a more onerous standard to her than it did to other male staff. She points to several specific examples where male staff were late to work or using their phone during work hours to text or use social media, with “no apparent consequences”. Opal has not addressed these examples directly. As with the wok allegation, it would be open to the Tribunal to draw an inference of discrimination if Ms. Baptiste can prove she was singled out for discipline in circumstances where other people who did not share her protected characteristics were engaged in the same behaviour, without consequence.
[67] This is sufficient to raise the elements of Ms. Baptiste’s allegations out of a realm of conjecture. At a hearing, the burden would shift to Opal to justify the termination by proving the elements of a bona fide occupational requirement:
a. Valid purpose: it was applying a workplace standard adopted for a purpose rationally connected to the performance of the employee’s job or function.
b. Good faith: it adopted the workplace standard in an honest and good faith belief that it was necessary to fulfil its valid purpose.
c. Reasonable necessity and accommodation: the standard was reasonably necessary to accomplish its purpose and Opal discharged its duty to accommodate Ms. Baptiste to the point of undue hardship.
British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin Grievance), [1999] 3 SCR 3 at para. 54; Ciliberto v. Tree Island Industries Ltd., 2024 BCHRT 87 at para. 27
[68] Opal did not address this defence directly. For the purpose of the application, I will accept that Opal is reasonably certain to prove that its workplace standards related to cellphone use and tardiness were adopted in good faith for a purpose rationally connected to the job. Ms. Baptiste’s allegation is most likely to turn on the third element of the defence.
[69] The nature of the connection to Ms. Baptiste’s protected characteristics is important to whether her termination can be justified. If the Tribunal finds that Opal singled Ms. Baptiste out for termination based on her protected characteristics (adverse treatment), it may be difficult to justify that decision. However, if the Tribunal finds that the connection to Ms. Baptiste’s protected characteristics is grounded in adverse impact, then Opal may be able to justify the termination by proving that it was not aware of Ms. Baptiste’s family caregiving responsibilities. This issue falls under the accommodation analysis: Klewchuk v. City of Burnaby (No. 6), 2022 BCHRT 29 at para. 373.
[70] Opal argues that it was never aware that Ms. Baptiste’s performance issues may be related to family caregiving responsibilities. If it successful in this argument, it will be able to justify the termination by showing that it did not know, and could not reasonably have known, that Ms. Baptiste may have required accommodation: Klewchukat para. 373. For the purpose of this application, Ms. Baptiste’s allegation has no reasonable prospect of success if Opal is reasonably certain to prove it did not know about her caregiving responsibilities: Purdy v. Douglas College and others, 2 016 BCHRT 117 at para. 50.
[71] Based on the evidence before me, I am not reasonably certain that Opal will prove its defence. The key facts related to this issue are in dispute, and require findings of credibility: Francescutti at para. 67. Ms. Baptiste says “all Opal kitchen and some wait staff members were aware I had a child and was a single parent. I spoke about it often”. For example, she refers to specific incidents in the week of October 21, when she was having a “micro meetup” with the Executive Chef, Sous Chef, and others, and she mentioned she was a single parent with “100% responsibility”. She says that, on October 21 and 28, she told the Sous Chef she was taking a call from her child’s school. She says that the Executive Chef and Sous Chef were often close by when she was casually talking to co-workers about being a single mother. And importantly, she says that, during their meeting on November 13 about her cell phone use and tardiness, she told the Executive Chef and Sous Chef that the reason she was having those issues was because of her child’s attendance issues and she expected there to be a solution in the near term. She says she then referred to that discussion during the termination meeting.
[72] Opal has not submitted evidence directly from the Sous Chef. For his part, the Executive Chef denies that Ms. Baptiste ever disclosed the reasons she was using her phone or late to work. He says he was not aware she was a parent or a single mother. He says that they did not discuss her caregiving responsibilities in either the November 13 or November 25 meetings. The HR Manager also says that Ms. Baptiste did not raise her family caregiving responsibilities in the November 25 meeting.
[73] The issue of whether the Sous Chef and/or Executive Chef knew that Ms. Baptiste’s phone use and tardiness were related to family caregiving responsibilities is critical to the complaint. If the Tribunal accepts Ms. Baptiste’s evidence that they knew this, then she may successfully argue that they were required to inquire about her Code- related needs before terminating her employment. On the other hand, if the Tribunal accepts Opal’s evidence that it did not know about Ms. Baptiste’s Code-related needs, then it may succeed in justifying the termination. At this stage, the evidence on this critical issue is contested. The matter must go to a hearing.
[74] My decision not to dismiss the complaint is not a prediction that it will be successful at a hearing. Rather, it is simply a decision that Ms. Baptiste’s allegations are beyond a realm of conjecture and warrant the time and expense of a hearing.
IV CONCLUSION
[75] The application to dismiss Ms. Baptiste’s complaint is denied. The complaint will be scheduled for hearing.
Devyn Cousineau
Vice Chair