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Lesnikov v. Anglo American Exploration (Canada) Ltd., 2024 BCHRT 245

Date Issued: August 21, 2024
File(s): CS-003210

Indexed as: Lesnikov v. Anglo American Exploration (Canada) Ltd., 2024 BCHRT 245

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:

Sefika Lesnikov
COMPLAINANT

AND:

Anglo American Exploration (Canada) Ltd.
RESPONDENT

REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c) and (g)

Tribunal Member: Jonathan Chapnick

Counsel for Complainant: Laura Track

Counsel for Respondent: Richard Press

I INTRODUCTION

[1] Sefika Lesnikov filed a human rights complaint against Anglo American Exploration (Canada) Ltd. [AAE] on February 5, 2021. She alleges discrimination in employment in contravention of s. 13 of the Human Rights Code. This decision is not about whether AAE discriminated. Rather, it is about whether Ms. Lesnikov’s complaint should be dismissed without a hearing.

[2] Ms. Lesnikov worked for AAE as a geoscience information specialist [GIS] and data geologist. She alleges that AAE failed to provide her with a safe and harassment-free workplace between 2015 and 2019. During that time, she says she was subjected to repeated instances of sexualized and gender-based harassment by her co-worker [Co-worker]. She says that, after an incident in June 2019, she developed disabling mental health conditions and had to go on leave. Ms. Lesnikov makes various allegations regarding the events that followed. She alleges that AAE: assured her it would report her mental injury to WorkSafeBC, but did not do so; conducted a flawed and incomplete investigation of the Co-worker’s alleged conduct; terminated her employment while she was on sick leave; withdrew a severance offer while she was in the hospital and unable to respond; failed to submit documents to her long-term disability [LTD] provider; and failed to submit her record of employment [ROE] to Service Canada. She says AAE’s alleged acts and omissions were discrimination based on sex and mental disability.

[3] AAE denies discriminating. It applies to dismiss Ms. Lesnikov’s complaint without a hearing based on three main arguments. First, it argues that the allegations of sex discrimination between 2015 and 2019 should be dismissed because they were filed late. Second, it argues that the part of the complaint alleging discrimination in Ms. Lesnikov’s termination should be dismissed because it has no reasonable prospect of success. AAE says the termination was the result of corporate restructuring; it was not connected to Ms. Lesnikov’s sex or mental disability. Third, AAE argues that other parts of the complaint also have no reasonable prosect of success. It says there was no nexus between Ms. Lesnikov’s protected characteristics and its conduct in relation to the severance offer, the LTD claim, WorkSafeBC, or the ROE .

[4] For the reasons that follow, I find that the parts of the complaint alleging discrimination related to the LTD claim, WorkSafeBC, and the ROE have no reasonable prospect of success. I dismiss these parts of the complaint under s. 27(1)(c). However, I decline to dismiss any other parts of the complaint. I find that the part of the complaint alleging sex discrimination dating back to February 2015 was not filed late, and I am not persuaded that the parts of the complaint related to the termination and severance offer have no reasonable prospect of success. These parts of the complaint will proceed to a hearing.

[5] To make my decision, I have considered all the information filed by the parties. In my reasons, I only refer to what is necessary to explain what I decided. I make no findings of fact and reach no conclusions regarding the merits of the complaint.

II BACKGROUND

[6] In this application, each party provided clear and concise legal arguments supported by sworn statements and contemporaneous documentary evidence. The following information is drawn from those materials and is set out here as background, not as findings of fact. It is not meant to be an exhaustive summary of the information before me.

[7] AAE is a mining company, and is part of a group of companies headquartered in London, England. Ms. Lesnikov worked for AAE at an office in British Columbia between 2005 and 2009, and then again starting in January 2012. She says the Co-worker joined AAE in January 2015. They both worked on the North America “discovery team.” She says that, on three occasions in 2015, the Co-worker asked her if she wanted to sit on his lap. She says she reported this to the safety manager at the office in November 2015, who said the Co-worker had made similar comments to others and advised her to “just forget it.” She says she felt unprotected by AAE after this response, and was also worried about losing her job if she pushed the issue, so she decided to try to avoid the Co-worker going forward.

[8] Ms. Lesnikov says that, over the next several years, the Co-worker continued to mistreat her. She says the Co-worker: consistently spoke to her in a way that was humiliating and disrespectful; would often correct her English and critique the way she spoke; talked over her at meetings and restated her contributions as his own; criticized her work style, telling her she had obsessive-compulsive disorder [OCD]; yelled at her when he became frustrated or did not like something she had done; and often told her she was a “doer,” while he was a manager.

[9] Ms. Lesnikov says that, in September 2017, when she encountered the Co-worker and another colleague going to play tennis, the Co-worker told her, “you can come with me to hold my balls.” She says that, in April 2018, the Co-worker called her into his office where he was sitting with another colleague, but then told her there was nowhere to sit and suggested she could sit on his lap. She says that, over the course of the next year or so, the Co-worker continued calling her “doer,” calling her “Kermit,” and sometimes yelling at her. She says she continued to try to avoid him at the office, always fearful when they interacted that he would demean, insult, or sexually harass her.

A. The Incident

[10] Ms. Lesnikov says that, in June 2019, the Co-worker asked her to come into his office to discuss a work project. In the rest of this decision, I will refer to the interaction that followed as the “Incident.”

[11] Ms. Lesnikov says the Co-worker positioned her chair right next to his as they reviewed a document. She describes them having a work-related disagreement, at which point the Co-worker “suddenly became extremely angry and started yelling at [her].” She says he was taking up her personal space, which frightened her. She says he leaned over her, put his face directly in front of her glasses, and yelled in her face, “You are pissing me off! This is pissing me off!”

[12] Ms. Lesnikov says the Co-worker was much larger than her, and had a very loud voice. She says she felt threatened, began to panic, froze up, and was unable to speak or move. She says he was breathing heavily and continued yelling at her, saying “I am the manager! What are you doing here?” She says that, when she did not move or speak, he shouted, “Why are you sitting here?” and then banged his fist on his desk, which “startled her out of [her] paralysis,” and she jumped up and ran out of his office. She says she returned to her own office and had a panic attack, after which she spent most of the rest of the day crying in the washroom.

[13] The materials before me indicate that the Co-worker’s perspective regarding his work relationship with Ms. Lesnikov and their work interactions, including the Incident, was quite different from hers. For instance, in a June 18, 2020 investigation report (which I discuss below), the Co-worker is described as characterizing his relationship with Ms. Lesnikov as being
“fairly close” until May 2019, at which time “their relationship probably changed … because he had a stern talk with her” about work issues. The report describes the Co-worker as adamantly denying ever bullying or victimizing Ms. Lesnikov. Regarding the Incident, the report describes the Co-worker as saying that it was followed by a fairly cordial work discussion after he took a moment to calm down. The report quotes the Co-worker as saying that, after hitting his hand down on his desk, he and Ms. Lesnikov remained in his office for a 20- to 30-minute conversation, after which she left “on an agreeable / amicable basis.” The report also describes the Co-worker as denying making the tennis balls comment, while admitting that he may have said something like, “Why don’t you come and join us, we could do with a ball girl,” in banter and without any sexual connotation. In addition, the report describes the Co-worker as being unable to recall whether he made one of the “sit on my lap” comments in 2015, while acknowledging that he may well have made the comment in banter.

[14] AAE did not file a statement from the Co-worker with its dismissal application. It says the Co-worker left the company before Ms. Lesnikov filed her complaint to the Tribunal.

B. After the Incident

[15] Ms. Lesnikov says her mental health deteriorated after the Incident. She says she was diagnosed with certain mental health conditions, which manifested in a variety of physical and psychological symptoms. She says she had difficulty walking, developed a severe stutter, lost a significant amount of weight, and began having visual and auditory hallucinations of the Co-worker.

[16] In July 2019, Ms. Lesnikov reported the Incident to her supervisor [Supervisor], and took several weeks off. She says it “was impossible for [her] to come in to work.” She says she was afraid and ashamed. In August 2019, she went on sick leave, where she remained until her dismissal.

[17] The Supervisor says that, after Ms. Lesnikov reported the Incident, he contacted AAE’s human resources person [HR Advisor] and told her the company needed to address Ms. Lesnikov’s allegations. He says they subsequently had a call with Ms. Lesnikov, during which they asked her for details of the Incident. AAE’s evidence is that Ms. Lesnikov called the Co-worker’s conduct “sexual harassment,” but the HR Advisor did not consider the Incident to be an instance of sexual harassment based on the information Ms. Lesnikov provided.

[18] After speaking to Ms. Lesnikov, the Supervisor and the HR Advisor had a call with the Co-worker to get his side of the story. On August 26, the Supervisor gave the Co-worker a warning letter about the Incident.

C. The Investigation

[19] In September 2019, Ms. Lesnikov gave AAE a letter from her psychiatrist, in which he stated that she was not ready to return to work. Among other things, the psychiatrist said he understood that Ms. Lesnikov had “suffered a pattern of ongoing verbal non-sexual and sexual harassment” by the Co-worker. AAE’s evidence is that this was the first time anyone at the company was told about an alleged pattern of ongoing sexual harassment.

[20] One of the HR directors at AAE’s parent company [HR Director] subsequently spoke to Ms. Lesnikov about her allegations and filed an internal whistleblower report, which triggered an investigation by an internal investigator from the parent company [Investigation]. AAE says that, during the Investigation, Ms. Lesnikov told the investigator about two of the Co-worker’s alleged “sit on my lap” comments in 2015, his alleged tennis balls comment in 2017, and the Incident.

[21] The investigator issued a report on June 18, 2020, in which he outlined the scope of the Investigation, his process, and his finding and recommendations [Report]. He found no evidence that the Co-worker had been bullying Ms. Lesnikov, and no evidence supporting the alleged tennis balls comment. The investigator did, however, find that the Co-worker had invited Ms. Lesnikov to sit on his lap.

[22] Based on the Report’s findings, on July 3, the Supervisor gave the Co-worker a final warning letter. The letter stated that the Co-worker’s conduct – i.e., inviting Ms. Lesnikov to sit on his lap – was sexual harassment, and further similar behaviour would result in his dismissal.

[23] On July 6, Ms. Lesnikov wrote to AAE, expressing concerns regarding the Investigation and the Report. On July 13, AAE’s human resources principal [HR Principal] responded to Ms. Lesnikov for AAE. The HR Principal had replaced the HR Advisor as AAE’s human resources support person. The HR Principal dismissed Ms. Lesnikov’s concerns, saying they did not appear to be well-founded. She also informed Ms. Lesnikov that AAE was planning to restructure, and the company would be in touch with Ms. Lesnikov to discuss how the restructuring would impact her role.

D. The termination

[24] On August 5, 2020, AAE sent Ms. Lesnikov a letter informing her that, as a result of corporate restructuring, her position would be eliminated and her employment would be terminated effective September 1, 2020. On September 1, AAE sent Ms. Lesnikov a termination letter, which included a severance offer. The termination letter confirmed that Ms. Lesnikov was dismissed without cause, and gave her one week to consider the severance offer. As I will discuss later in this decision, Ms. Lesnikov says she was unable to respond to the severance offer. It went unaccepted and expired on September 8.

III DECISION

[25] There are three main issues arising from AAE’s arguments in its dismissal application:

a. Were parts of the complaint filed late, and, if so, should those parts be dismissed under s. 27(1)(g) of the Code?

b. Should the part of the complaint alleging discrimination in Ms. Lesnikov’s termination be dismissed under s. 27(1)(c) because it has no reasonable prospect of success?

c. Should other parts of the complaint (related to the severance offer, the LTD claim, WorkSafeBC, and the ROE) be dismissed under s. 27(1(c) because they have no reasonable prospect of success?

[26] AAE also says Ms. Lesnikov’s allegations regarding the Incident should be dismissed under ss. 27(1)(a) and (b) of the Code . I address these submissions in my analysis below.

A. Were parts of the complaint filed late, and, if so, should those parts be dismissed?

[27] There is a one-year time limit for filing a human rights complaint: Code, s. 22. Allegations falling outside the time limit are late, unless they form part of an alleged continuing contravention with a timely allegation: Code, s. 22(2). To allege a continuing contravention is to allege discrimination that is ongoing, successive, or repetitive: Rush v. Fraser Health Authority (No. 2), 2024 BCHRT 13 at para. 32; see generally School District v. Parent obo the Child , 2018 BCCA 136. If the Tribunal finds that a complaint does not allege a continuing contravention and was filed outside the one-year time limit, it can still exercise its discretion to accept the late complaint: Code , s. 22(3).

[28] AAE argues that Ms. Lesnikov’s allegations of sex discrimination between 2015 and 2018 should be dismissed because they fall outside the one-year time limit and do not form part of a continuing contravention with a timely allegation. In addition, AAE says the Incident occurred outside the one-year time limit, so allegations regarding the Incident should also be dismissed.

[29] Ms. Lesnikov says her allegations of sex discrimination, dating back to 2015, form part of an alleged continuing contravention with timely allegations regarding the Investigation process and the Report. She says the last instance of sex discrimination occurred in July 2020, when the HR Principal stated that Ms. Lesnikov’s concerns regarding the Investigation were not well-founded.

1. Has Ms. Lesnikov put forward a timely allegation of discrimination?

[30] To determine whether a complaint alleges a continuing contravention, the Tribunal must first assess whether the complaint alleges acts or omissions, falling within the preceding one-year period, which pass the “arguable contravention test,” meaning they could, if proven, contravene the Code: see Chen v. Surrey (City), 2015 BCCA 57 at para. 23. In Ms. Lesnikov’s case, I must assess whether her complaint puts forward an arguable contravention on or after February 5, 2020. The parties agree that the Investigation and its aftermath occurred during this time period. However, they disagree over whether Ms. Lesnikov’s related allegations can anchor a continuing contravention.

[31] Ms. Lesnikov says the Investigation was flawed and incomplete. She makes several allegations regarding the Investigation, including alleging that: she was not given an opportunity to discuss all her claims with the investigator; his notes of their interview contained numerous errors; the Report contained numerous gaps; the investigator and others charged with addressing her claims against the Co-worker did not have a proper understanding of discrimination; her claims were not resolved in a way that ensured a safe and healthy work environment; and her concerns regarding the Investigation were dismissed by the HR Principal. Ms. Lesnikov argues that these timely allegations form a continuing contravention with her allegations of sex discrimination that fall outside the one-year time limit.

[32] AAE says Ms. Lesnikov’s last possible allegation of sex discrimination relates to the Co-worker’s alleged “sit on my lap” comment in 2018. It says the Incident in 2019 was a work-related dispute, during which the Co-worker may have engaged in personal harassment, but definitely not sexual harassment. AAE disputes the allegation that Ms. Lesnikov was not given a full opportunity to discuss her claims with the investigator, and says Ms. Lesnikov raised new allegations in her response to the dismissal application, which were not before the investigator, were not disclosed during her employment, and were not set out in her complaint to the Tribunal.

[33] I am satisfied that Ms. Lesnikov’s allegations regarding the Investigation pass the arguable contravention test. The threshold for passing this test is low: Gichuru v. Vancouver Swing Society, 2021 BCCA 103 at para. 56. An employee alleging discrimination related to a protected characteristic must only allege facts that could establish they experienced an adverse impact in their employment connected to the protected characteristic: see, e.g., The Worker v. The Company and another, 2019 BCHRT 235 at para. 36. Ms. Lesnikov’s allegations regarding the Investigation meet this threshold. Her complaint alleges that the Co-worker engaged in sex discrimination, she reported this to AAE, and they failed to properly deal with her discrimination claim, which negatively impacted her health and rendered her unable to work.

[34] She further particularizes these allegations in her response to AAE’s dismissal application, including by adding information about the alleged flaws in the Investigation and its impact on her. These alleged facts meet the arguable contravention test, because allegations regarding the harms caused by an employer’s unreasonable or inappropriate response to claims of discrimination are inherently connected to the protected characteristics engaged by the underlying claim: see Hale v. University of British Columbia Okanagan (No. 5) , 2023 BCHRT 121 at paras. 13-20; The Employee v. The University and another (No. 2) , 2020 BCHRT 12 at para. 272; see also Kirchmeier obo others v. University of British Columbia (No. 4) , 2021 BCHRT 149 at para. 101. As a result, a failure to adequately or appropriately respond to an internal complaint of discrimination may itself amount to discrimination: Mr. C v. Vancouver Coastal Health Authority and another , 2021 BCHRT 22 at para. 118.

[35] I therefore find that Ms. Lesnikov’s allegations regarding the Investigation, while unproven at this stage of the complaint process, are timely allegations of discrimination capable of anchoring a continuing contravention. AAE’s submissions regarding the merits of these allegations are not relevant to my analysis here, because arguable contravention determinations are made without reference to a respondent’s explanation or evidence.

[36] In addition, I do not accept AAE’s assertion that the additional information in Ms. Lesnikov’s response amounts to new allegations or otherwise expands the scope of her complaint. It is not uncommon, or a violation of the Tribunal’s rules, for a complainant to further particularize their complaint during the dismissal application process: Backeland v. BCGEU and others, 2023 BCHRT 52 at para. 137. The evidence in Ms. Lesnikov’s response materials about the Co-worker’s other alleged conduct (e.g., other “sit on my lap” comments in 2015 and 2018; unwelcome name-calling), the specific failings of the Investigation, and its impact on her, are particulars of the broad allegations made in her complaint. Those broad allegations include that: the Co-Worker’s harassment began in 2015 and continued until June 2019; the Investigation failed to properly address the Co-worker’s conduct and was a form of discrimination; and, as a result of the Co-worker’s conduct and AAE’s failures, she developed disabling mental health conditions and could not work.

[37] I will address AAE’s submissions regarding the nature of the Incident later in this decision.

2. Has Ms. Lesnikov put forward other allegations of discrimination that form part of a continuing contravention, and, if so, how far back does the alleged contravention go?

[38] Just because Ms. Lesnikov has put forward allegations of discrimination falling within the one-year time limit, it does not mean that her complaint necessarily alleges a timely continuing contravention. For allegations falling outside the time limit to form part of a continuing contravention with an allegation falling within it, the earlier allegations must be of the same or similar character as the later allegation: Rush at para. 51; see generally Dove v. GVRD and others (No. 3), 2006 BCHRT 374 at paras. 11-33 and School District at paras. 46-65. Ms. Lesnikov says this is the case in her complaint.

[39] Ms. Lesnikov says her complaint alleges that she was subjected to multiple and repeated instances of sexualized and gender-based harassment by the Co-worker between 2015 and 2019, during which time AAE failed to provide a safe and harassment-free workplace. More specifically, she says the following alleged acts or omissions form part of a continuing contravention of the Code’s protection against sex discrimination: the three instances of “sit on my lap” comments in 2015; in November 2015, when Ms. Lesnikov reported the “sit on my lap” comments and the safety manager brushed them off, telling Ms. Lesnikov that the Co-worker had made similar comments to others and advising her to “just forget it”; the Co-worker’s conduct over the next several years – e.g., correcting her English, speaking over her at meetings, criticizing her work style and saying she had OCD, and yelling at her out of frustration or disapproval; the tennis balls comment in September 2017; the “sit on my lap” comment in 2018; the Co-worker’s conduct over the next year – i.e., calling her unwelcome names and yelling at her at times; and the Incident.

[40] Besides characterizing the Incident as personal (as opposed to sexual) harassment, AAE has not argued that the above alleged acts and omissions differ in character. Nor is it AAE’s burden to do so. The burden is on Ms. Lesnikov to establish that her allegations form part of a continuing contravention: Dove at para. 38. In this regard, Ms. Lesnikov acknowledges that the Incident was not explicitly sexual, but says it was gendered in nature and was an instance of sex discrimination. She says the Co-worker’s behaviour during the incident was “a clear expression of domination and assertion of power by a much larger male over a subordinate female.” She argues that the impact of the behaviour was to deny her access to the workplace through the subtle reinforcement of gendered power hierarchies. Similarly, Ms. Lesnikov says that other instances of the Co-worker’s mistreatment of her were not necessarily sexual in nature, but nevertheless amounted to sex discrimination. For instance, she says speaking over her in meetings and restating her contributions as his own are clear examples of “everyday sexism” many women endure in the workplace.

[41] On the materials before me, I am satisfied that Ms. Lesnikov’s allegations falling outside the one-year time limit share a common character with her timely allegations regarding the Investigation, in that they all relate to the Co-worker’s alleged sex discrimination and AAE’s alleged failure to prevent or properly address it: see Hawknes v. Vancouver Public Library , 2016 BCHRT 125 at para. 25; Mr. C at para. 132.

[42] Sex discrimination is a broad concept encompassing a wide range of behaviour: Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1251, 1989 CanLII 97 (SCC) at p. 28. As Ms. Lesnikov has argued, sex discrimination need not be inherently or overtly sexual: see The Sales Associate v. Aurora Biomed Inc. and others (No. 3) , 2021 BCHRT 5 at paras. 112-121; see also Ms. L v. Clear Pacific Holdings Ltd. and others , 2024 BCHRT 14 and Loiselle v. Windward Software Inc. (No. 2), 2021 BCHRT 7. In employment, sex discrimination can include conduct that leverages or reinforces gendered power hierarchies in the workplace, such as acts or omissions that humiliate, subjugate, blame, or intimidate: see Ms. L at paras. 8-9; see also The Sales Associate at para. 116. Viewed in context with her allegations regarding the “sit on my lap” and tennis balls comments, I am persuaded that Ms. Lesnikov’s claims regarding the Incident and the Co-worker’s other conduct (i.e., critiquing the way she spoke and her work style, talking over her at meetings, yelling at her out of frustration or disapproval, calling her unwelcome names, etc.), while unproven, are properly characterized as allegations of sex discrimination. I do not accept AAE’s assertion that the Co-worker’s behaviour during the Incident could not be a contravention of the Code .

[43] I therefore find that Ms. Lesnikov’s complaint alleges a timely continuing contravention, which goes back to February 2015, when the Co-worker allegedly made the first “sit on my lap” comment. On the materials before me, I accept that Ms. Lesnikov alleges discrimination that was consistent and ongoing. In addition, she has explained that any gaps between her allegations are the result of her efforts to avoid the Co-worker, out of fear that when they interacted he would demean, insult, or sexually harass her. Given this explanation, and without contrary submissions or evidence from AAE, I am satisfied that there are no significant, unexplained time gaps that might otherwise weigh against a finding of an alleged continuing contravention: Braun v. Avcorp Industries Inc. , 2023 BCHRT 167 at para. 39.

[44] In sum, then, the part of the complaint alleging sex discrimination dating back to February 2015 was not filed late. AAE’s application to dismiss under s. 27(1)(g) is denied.

3. Should Ms. Lesnikov’s allegations regarding the Incident be dismissed under ss. 27(1)(a) and (b) of the Code?

[45] Although it is primarily grounded in ss. 27(1)(c) and (g) of the Code, AAE’s dismissal application also includes passing arguments for the dismissal of the Incident-related allegations under ss. 27(1)(a) and (b). I will address those arguments here.

[46] First, AAE argues that allegations regarding the Co-worker’s behaviour during the Incident should be dismissed under s. 27(1)(b) of the Code. Under s. 27(1)(b), the Tribunal can dismiss allegations that could not, even if proven, contravene the Code: Sanghera v. B.C. (Ministry of Attorney General and another), 2012 BCHRT 418 at para. 21. AAE argues that the Incident involved personal harassment, not sex discrimination, and so allegations regarding the Incident do not engage the Code and should be dismissed under s. 27(1)(b). For the reasons set out earlier in this decision, I reject this argument. Viewed in context with Ms. Lesnikov’s other allegations, I am not persuaded that the Co-worker’s behaviour during the Incident could not, if proven, contravene the Code.

[47] Second, AAE argues that the allegations regarding the Incident should be dismissed under s. 27(1)(a) of the Code because that part of the complaint is not within the Tribunal’s jurisdiction. Like AAE’s argument under s. 27(1)(b), this argument is premised on the assertion that the Incident involved personal harassment, not sex discrimination. AAE says personal harassment is within the sole jurisdiction of the Workers Compensation Board (commonly known as WorkSafeBC) and the Tribunal lacks jurisdiction to adjudicate on matters unrelated to a Code-protected personal characteristic. I am not persuaded by this argument, because I have already concluded that the allegations regarding the Incident are properly characterized as allegations of sex discrimination, which could, if proven, contravene the Code. The part of the complaint regarding the Incident falls within the Tribunal’s jurisdiction.

[48] AAE’s request for the Tribunal to dismiss certain allegations under ss. 27(1)(a) and (b) is denied.

B. Should the part of the complaint alleging discrimination in Ms. Lesnikov’s termination be dismissed under s. 27(1)(c) because it has no reasonable prospect of success?

[49] Section 27(1)(c) of the Code gives the Tribunal discretion to dismiss complaints that have no reasonable prospect of success and therefore do not warrant the time and expense of a hearing: Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at paras. 22-26, leave to appeal ref’d [2006] S.C.C.A. No. 171; Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27 [Hill]. Under this section of the Code, AAE applies to dismiss the part of the complaint alleging discrimination in Ms. Lesnikov’s termination.

[50] In support of its application, AAE filed a statement from its parent company’s head of mineral resources in Perth Australia [Head of Resources]. The Head of Resources says he began an initiative in early 2019, under which the parent company would restructure its Group Discovery and Geosciences [GDG] digital strategy. He says this restructuring initiative resulted in the elimination of “the GIS function … from the in-country team,” and its centralization “to a Global team based in Australia and South Africa.” He says the “Canadian operation’s GIS positions were eliminated,” and there “were other GIS teams around the globe equally impacted.”

[51] The Head of Resources says he distributed a paper on February 24, 2020, and presented it to stakeholders across the parent company and its subsidiaries in late February, 2020. He says the purpose of the paper was to reshape the parent company’s digital strategy, one of the first steps of which “involved the elimination of the GIS positions from the various in-country teams.” The paper itself sets out “three strategy pillars” related to “culture change around data,” data/digital leadership, and establishing a web portal to access data. The paper recommends the execution of the strategy it sets out, and outlines various next steps, including “Revising the Organisational structure and developing a new role to lead the project and team.”

[52] The Head of Resources says the HR Principal called him shortly after he released the paper and told him that the BC office had two GIS positions that would be eliminated under the digital strategy. He says the HR Principal told him AAE wanted to delay the restructuring and elimination of the GIS positions because the incumbents were involved in an internal investigation. He says he agreed that the restructuring could be delayed pending the Investigation’s completion.

[53] The Head of Resources says that, when he “designed the restructuring and planned to eliminate the GIS function from the various in-country teams, [he] had no knowledge of [Ms. Lesnikov] or [the Co-worker],” and neither of them played any role in his planning.

[54] The HR Principal corroborates that the parent company began a restructuring initiative in early 2019. She says she was not involved in this project, but was told by her boss that it would impact all subsidiaries, including AAE. She says that, in February 2020, the parent company’s “Head of Mineral Resources … announced the initiative was finalized and would result in a wholesale restructuring of the GDG Digital team to be completed in 2020.” She says she “advocated to hold off advising [Ms. Lesnikov] about the GDG restructuring in February 2020 because of the on-going … investigation.” She says her “recommendations were accepted and the GDG team agreed to delay implementing the restructuring of [AAE’s BC office] pending completion of the … investigation.”

[55] The HR Principal says the decision to restructure various subsidiaries as part of the GDG digital strategy was separate and distinct from Ms. Lesnikov’s complaints and personal characteristics. She says she assisted in carrying out the restructuring, but had no role in planning it.

[56] The Supervisor also corroborates that the parent company restructured the GDG digital strategy in 2020, and that, as a result of this restructuring, “the GIS function was eliminated from the in-country team” and was moved to Australia and South Africa. He states that both GIS positions in the BC office were eliminated – “in other words both [Ms. Lesnikov] and [the Co-worker] lost their positions.”

[57] The Supervisor says that AAE planned to terminate both employees effective September 1, 2020; however, the Co-worker’s termination date was extended to the end of December because he was in the middle of a couple of projects that they wanted completed. The Supervisor says Ms. Lesnikov had no active projects, so they were able to proceed with her September 1 termination date. He says the Co-worker successfully applied for an internal posting with an affiliate company, but has since left that position and no longer works for the parent company or its subsidiaries. The Supervisor says Ms. Lesnikov could have applied for internal postings – this was an option that was open to her – but she did not do so.

[58] Under s. 27(1)(c), my task is to look at the information filed by the parties to decide if there is no reasonable prospect that findings of fact supporting the part of the complaint alleging discrimination in Ms. Lesnikov’s dismissal could be made on a balance of probabilities after a hearing of the evidence: Berezoutskaia at para. 22. For this part of Ms. Lesnikov’s complaint to succeed at a hearing, she would need to prove that (1) she had a personal characteristic protected by the Code, (2) her dismissal amounted to or resulted in an adverse impact in her employment, and (3) her protected characteristic was a factor in the adverse impact: Moore v. British Columbia, 2012 SCC 61 at para. 33. AAE does not dispute the first two elements of her case, but argues that she cannot prove the third element.

[59] AAE says the connection required to prove the third element of Ms. Lesnikov’s case must be based on evidence, not suspicions and conjecture. It says the undisputed evidence before me is that the decision to terminate Ms. Lesnikov’s employment flowed from corporate restructuring; it was not connected to her protected characteristics of sex or mental disability. AAE says “there is a legitimate, clear, and undisputed non-discriminatory reason for the dismissal.” As a result, the part of the complaint alleging discrimination in Ms. Lesnikov’s dismissal has no reasonable prospect of success.

[60] Ms. Lesnikov challenges AAE’s evidence regarding her dismissal and puts forward some of her own evidence as follows:

a. She observes that the Head of Resources’ digital strategy paper makes no mention of employees in GIS roles losing their jobs, and the paper appears to have been issued after the HR Director filed the internal whistleblower report about Ms. Lesnikov’s allegations regarding the Co-worker.

b. She says AAE was making arrangements to determine whether she could return to work in May 2020. She queries why it would do so if her position was about to be eliminated due to corporate restructuring.

c. She says that, during a July 1, 2020 phone call, the HR Principal told her AAE would help her recover and return to work. She queries why the HR Principal would say this if her position was about to be eliminated.

d. She provides an organizational chart for “GDG North America,” which shows her and the Co-worker on the North America discovery team under the Supervisor. She notes that the document’s properties indicate that it was last modified by the Supervisor on July 6, 2020. Based on her understanding of AAE’s annual processes, she says this suggests AAE was not planning to eliminate her position at that time. (I note that AAE’s evidence in reply is that the organizational chart was never published and would not have reflected planned changes until they had been communicated, confirmed, and implemented).

e. She notes the Supervisor’s evidence that the Co-worker successfully applied for an internal position after they were both terminated. She says she was very unwell at that time, and was not capable of applying for an internal posting. She says no one at AAE ever offered to support her to find other employment with the company.

[61] Ms. Lesnikov alleges that AAE terminated her because she was unable to work and on sick leave, after having developed disabling mental health conditions as a result of the Co-worker’s conduct and AAE’s failure to properly investigate and address it. She says parties rarely announce they are discriminating based on a protected characteristic; rather, such a connection must often be established by reasonable inferences drawn from surrounding circumstances. She argues that the timing of her dismissal, “shortly after the [Investigation] was concluded and while she remained on sick leave, supports an inference that her protected characteristics played a role.” She also suggests that the reason for her termination is a key factual issue, which must be determined at a hearing, not in a preliminary application.

[62] In general, conflicting evidence and credibility questions do not preclude the Tribunal from granting a respondent’s dismissal application: see Francescutti v. Vancouver (City), 2017 BCCA 242 at para. 67 and Evans v. University of British Columbia, 2008 BCSC 1026 at para. 34. However, when these types of conflicts and questions amount to “foundational or key issues,” they must be resolved at a hearing: Francescuttiat para. 67. I find this to be the case here.

[63] The parties disagree about why Ms. Lesnikov was dismissed. AAE says her employment was terminated because her position was eliminated as a result of corporate restructuring that had nothing to do with her protected characteristics. Its evidence is primarily in the form of statements from three witnesses. Ms. Lesnikov, on the other hand, says her protected characteristics of sex and mental disability were factors in her dismissal. She relies on circumstantial evidence and inference to support her position. In my view, the conflicting evidence put forward by the parties goes to the key factual issue of whether matters inherently connected to Ms. Lesnikov’s sex (e.g., the Investigation) or mental disability (e.g., her sick leave and inability to work) were factors in the termination of her employment at AAE.

[64] At a hearing, Ms. Lesnikov does not need to prove an exclusive connection between her protected characteristics and the termination of her employment. The Tribunal will weigh and assess the evidence on a balance of probabilities and will make findings of fact as to the factor, or factors, that played a role in her dismissal. To make her case, she must only establish that one of these factors was her sex or mental disability, even if was not the sole or overriding factor: Québec (Commission des droits de la personne et des droits de la jeunesse) Bombardier Inc. (Bombardier Aerospace Training Center) , 2015 SCC 39 at paras. 45-52. At this time, I am unable to decide that she has no reasonable prospect of doing so, given the preliminary stage of the complaint process, where the Tribunal makes no findings of fact and does not weigh or assess the evidence in the same way as it would at a hearing.

[65] I appreciate that AAE has provided detailed statements from high-ranking representatives of AAE or its parent company, each with direct knowledge of Ms. Lesnikov’s termination and/or the parent company’s restructuring initiative. And I understand that all of these witnesses affirm that “the decision to restructure various subsidiaries as part of the GDG digital strategy was separate and distinct from any complaint by or personal characteristic of [Ms. Lesnikov].” I note, however, that none of the witnesses clearly affirm that none of the Incident, Ms. Lesnikov’s allegations against the Co-Worker, the Investigation, Ms. Lesnikov’s mental disability, or her sick leave, were factors in the termination of her employment relationship with AAE. Further, and more important, what is lacking in the evidence before me is a clear statement, in the Head of Resources’ paper or other contemporaneous documentation, that long-tenured GIS and data geologists, like Ms. Lesnikov, were to be swiftly terminated within months of the announcement of the restructuring initiative, seemingly without any discussion of other employment options at AAE, its parent company, or its affiliates. In sum, the credibility of AAE’s evidence regarding the factors at play in Ms. Lesnikov’s dismissal is a key issue in the part of her complaint alleging discrimination in the termination of her employment. In my view, the Tribunal cannot fairly and effectively decide this issue without the benefit of hearing AAE’s witnesses’ evidence tested through cross-examination.

[66] AAE’s application under s. 27(1)(c) to dismiss the part of the complaint alleging discrimination in Ms. Lesnikov’s termination is denied.

C. Should other parts of the complaint be dismissed under s. 27(1(c) because they have no reasonable prospect of success?

[67] AAE also seeks the dismissal of other parts of the complaint under s. 27(1)(c), namely the parts related to the severance offer, the LTD claim, WorkSafeBC, and the ROE. I will address each part in turn.

1. Allegation related to severance offer

[68] Ms. Lesnikov’s evidence is that she was hospitalized in late August 2020 after experiencing a serious mental health event. She says she was receiving treatment in the hospital when she got AAE’s severance offer, and was unable to respond by the September 8 deadline. She says that, in response to the severance offer, two clinicians at the hospital sent emails to AAE on her behalf, attaching a letter from her psychiatrist, advising of her situation, and requesting an extension of the deadline. She says the clinicians told her they also sent another email to AAE when she was discharged from the hospital on September 11, 2020. Ms. Lesnikov says AAE did not reply to these emails. With her response to the dismissal application, Ms. Lesnikov filed a January 4, 2021 email exchange with one of the clinicians, in which Ms. Lesnikov asks if the HR Principal or anyone else from AAE responded to the clinician’s email, and the clinician confirms that she “never heard back” from the HR Principal or AAE. Ms. Lesnikov argues that her lost opportunity to accept the severance offer because she was in the hospital receiving disability-related treatment is an adverse impact connected to a protected characteristic.

[69] AAE’s version of events is different from Ms. Lesnikov’s. The HR Principal says Ms. Lesnikov never responded to the severance offer, never asked for more time to consider it, and never explained that she could not consider it because she was in the hospital. The HR Principal says she sent a follow-up email to Ms. Lesnikov on September 3, 2020. In the email, which was filed with the Tribunal, the HR Principal tells Ms. Lesnikov that AAE was awaiting her response to the severance offer, which would expire on September 8. The HR Principal says Ms. Lesnikov never responded to this email. She says that, when she did not hear from Ms. Lesnikov within the one-week timeline, she followed up and made attempts to contact her. She says she tried phoning Ms. Lesnikov, but could not get through, so she left voicemails to which Ms. Lesnikov did not respond. The HR Principal says that, had Ms. Lesnikov requested an extension of the deadline or a further opportunity to consider the severance offer, she would have granted the request. The HR Principal says the next communication she received from Ms. Lesnikov was the human rights complaint.

[70] In correspondence with AAE’s legal counsel on October 12, 2022, which was provided to the Tribunal along with AAE’s reply submission, the HR Principal states that she does not recall ever receiving anything from the hospital. She says she did a search and could not locate anything from the relevant health authority. In further correspondence on October 17, 2022, the HR Principal states that she was able to do a search of her emails back to 2020 and did not find anything, noting that it is possible the emailers misspelled her surname.

[71] AAE argues that there is no nexus between its conduct regarding the severance offer and Ms. Lesnikov’s protected characteristics. It says it is a normal practice to set a time limit for acceptance of a severance offer, it tried unsuccessfully to engage Ms. Lesnikov about why she was not responding, and it was prepared to give her more time if she had asked.

[72] On the materials before me, and without the benefit of hearing witness evidence tested through cross-examination, I am not satisfied that Ms. Lesnikov has no reasonable prospect of proving that she lost the opportunity to accept the severance offer because she was receiving treatment for her mental disability, and that this amounted to a disability-related adverse impact in employment, which engaged the Code ’s protection. If she makes her case, it will be up to AAE to prove there was a non-discriminatory explanation for what happened, or to justify the adverse impact by proving it could not have done anything else reasonable or practical to avoid Ms. Lesnikov’s lost opportunity. Determining these issues will turn on the Tribunal’s assessment and weighing of the parties’ conflicting evidence on a balance of probabilities, and its fact-finding regarding, for example, whether the clinicians emailed AAE, and whether the HR Principal contacted Ms. Lesnikov after September 3 (and the specific details of those inquiries). These are key issues that I cannot resolve within the parameters of s. 27(1)(c), and so this part of the complaint must go to a hearing.

[73] AAE’s application under s. 27(1)(c) to dismiss the part of the complaint alleging discrimination related to the severance offer is denied.

2. Allegation related to LTD claim

[74] The next allegation of discrimination relates to Ms. Lesnikov’s LTD claim.

[75] Ms. Lesnikov says she applied to AAE’s LTD provider, Canada Life, for LTD benefits on August 14, 2020. Her evidence is that Canada Life required documents from AAE in order to process her claim, and AAE did not provide its documents until February 23, 2021, despite Canada Life’s repeated attempts to obtain them. Ms. Lesnikov says this resulted in a significant delay processing her claim, which was then not approved until July 6, 2021. She says this delay was an adverse impact related to her mental disability.

[76] AAE’s position is that it prepared and filed its LTD documents in its usual course. The HR Principal’s evidence is that she sent LTD application forms to Ms. Lesnikov on August 5, 2020. She says this shows AAE made good faith efforts to ensure Ms. Lesnikov received coverage. She says AAE’s regional finance manager for North America told her the finance team had computer problems logging into Canada Life’s system, which delayed AAE in providing its documents. AAE says there is no evidence that the delay was linked to Ms. Lesnikov’s sex or disability. It argues that there is no nexus between its conduct and Ms. Lesnikov’s protected characteristics, so this part of her complaint should be dismissed.

[77] In response, Ms. Lesnikov says AAE’s intentions are not determinative. She argues that, to make her case, she does not need to prove she was treated adversely because of her disability; she must only show that her disability was a factor in the adverse impact she experienced. I agree with this general statement. However, Ms. Lesnikov’s specific position seems to be that her disability was a factor in the delay simply by virtue of the disability-related nature of the LTD claim. I do not accept this analysis. The denial of or delay in an employee’s access to disability-related benefits is not necessarily discrimination. The disability-related nature of the benefits does not, on its own, establish the type of connection required to prove that the denial or delay violated s. 13 of the Code: see generally Ingram v. Workers’ Compensation Board and others , 2003 BCHRT 57 at paras. 16-22.

[78] In the materials before me, then, there is no direct evidence connecting the delay to Ms. Lesnikov’s protected characteristics. This means that, at a hearing, Ms. Lesnikov would need to rely on circumstantial evidence and inference to prove her case. She does not argue this point in her submissions or tell me how she might do so. Still, I note that AAE does not deny that Ms. Lesnikov sent her LTD forms to Canada Life on August 14, 2020, while it submitted its documents over six months later, on February 23, 2021. AAE’s only explanation or justification for this delay is offered in the form of the HR Principal’s second-hand evidence regarding computer problems with Canada Life’s system. The evidence before me suggests Canada Life called and emailed AAE on several occasions in 2020 and 2021, urging AAE to submit its documents or provide a timeline for their delivery. The evidence also shows Ms. Lesnikov persistently seeking updates from Canada Life, at one point stating that she was “in urgent need of mental health therapy” and the uncertainty regarding her claim was aggravating her health problems. These circumstances are concerning and reflect poorly on AAE. However, on the whole of evidence and argument before me, I am not satisfied there is enough to draw a reasonable inference of a discriminatory connection to Ms. Lesnikov’s protected characteristics. I do not see how the evidence provided regarding this part of Ms. Lesnikov’s complaint could raise her allegation of discrimination beyond the realm of conjecture: Hillat para. 27. I am therefore persuaded that this part of her complaint has no reasonable prospect of success.

[79] AAE’s application under s. 27(1)(c) to dismiss the part of the complaint alleging discrimination in its handling of Ms. Lesnikov’s LTD claim is granted.

3. Allegation related to WorkSafeBC

[80] Ms. Lesnikov also alleges discrimination related to a claim she made for workers’ compensation benefits from WorkSafeBC.

[81] She says that, in November 2019, she asked the HR Advisor if AAE had reported her mental injury to WorkSafeBC, and the HR Advisor assured her that AAE would do so. She says similar assurances were made by other AAE representatives. For example, in a February 2020 email exchange with the HR Director, Ms. Lesnikov noted that AAE had not reported her situation to WorkSafeBC, to which the HR Director replied that the HR Principal had confirmed that AAE would be “registering [Ms. Lesnikov] for WorkSafeBC.” Further, Ms. Lesnikov says that, in a meeting on March 9, 2020, the HR Principal said AAE would report her injury to WorkSafeBC. In addition, in correspondence to Ms. Lesnikov in 2019 and 2020, the HR Principal stated that AAE would “let WorkSafeBC know about [Ms. Lesnikov’s] claim” (July 13, 2019), and confirmed that AAE “will be submitting the WorkSafeBC claim today” (August 5, 2020). On the other hand, in two emails to Ms. Lesnikov in June 2020, the HR Principal stated that Ms. Lesnikov – not AAE – needed to initiate a workers’ compensation claim on her own behalf.

[82] Ms. Lesnikov says she was unfamiliar with the workers’ compensation claim process, and had trusted AAE to follow through on its assurances. She says when the HR Principal told her she needed to file a claim on her own, she began trying to figure out how to do so, but her mental health was still very poor at that time. As a result, she says she was not able to file her claim until August 5, 2020, at which point it was late. Because her claim was late, it was rejected by WorkSafeBC. She says her claim was late because AAE misled her.

[83] AAE denies responsibility for the rejection of Ms. Lesnikov’s application for workers’ compensation benefits. It argues that WorkSafeBC rejected her application because she – not AAE – failed to file a timely claim. The HR Principal asserts that the evidence shows she was actively assisting Ms. Lesnikov apply for benefits in May and June 2020. She says she was unaware there was a one-year deadline to file a workers’ compensation claim, and AAE did not delay the claim process because of Ms. Lesnikov’s disability. AAE acknowledges that there “may have been confusion about the steps to file or who would file” the claim to WorkSafeBC, but argues that the evidence does not show this was due to Ms. Lesnikov’s protected characteristics. AAE argues that “absent a protected characteristic … being a factor in the timing, this aspect of the Complaint has no reasonable prospect of success and should be dismissed.” Ms. Lesnikov disagrees. She argues that AAE’s failure to report her mental injury to WorkSafeBC adversely impacted her in connection with her mental disability because it prejudiced her ability to access a critical benefit for employees who suffer mental injuries at work.

[84] As in the case of her allegation regarding LTD, Ms. Lesnikov’s position seems to be that her disability was a factor in the delay or denial of her WorkSafeBC claim simply by virtue of the disability-related nature of workers’ compensation benefits. As above, I do not accept this analysis. The delay in or denial of an employee’s access to workers’ compensation benefits is not necessarily discrimination. The disability-related nature of workers’ compensation benefits does not, on its own, establish the type of connection required to prove the delay or denial violated s. 13 of the Code. Like her LTD claim, then, there is no direct evidence before me connecting the delay in or denial of Ms. Lesnikov’s workers’ compensation claim to her protected characteristics, which means that, at a hearing, Ms. Lesnikov would need to rely on circumstantial evidence and inference to prove her case. As above, she does not argue this point in her submissions or tell me how she might do so. I note, however, that AAE does not deny making express assurances to Ms. Lesnikov between July 2019 and March 2020. Nor, in my view, has AAE explained or justified its apparent failure to follow through on those assurances. Again, these circumstances are concerning and reflect poorly on AAE. However, I am not satisfied there is enough before me to draw a reasonable inference of a discriminatory connection to Ms. Lesnikov’s protected characteristics. I do not see how the evidence provided could raise this part of her complaint beyond the realm of conjecture, and so I am persuaded that it has no reasonable prospect of success.

[85] AAE’s application under s. 27(1)(c) to dismiss the part of the complaint alleging discrimination related to Ms. Lesnikov’s workers’ compensation claim is granted.

4. Allegation related to ROE

[86] The final allegation of discrimination relates to AAE’s handling of Ms. Lesnikov’s ROE.

[87] The parties agree that Ms. Lesnikov was terminated on September 1, 2020. She says she applied for employment insurance [EI] benefits on December 23, 2020, at which time Service Canada told her it needed her ROE to finalize her claim. She says she called Service Canada and was told they had made multiple attempts to contact AAE and request the ROE. She provided the Tribunal with a December 4, 2021 letter from Service Canada, stating that it had not received her ROE from AAE. She argues that AAE’s failure to issue her ROE adversely impacted her in connection with her disability, in that she could not receive EI benefits at a time when she remained disabled from working.

[88] The HR Principal’s evidence is that AAE’s payroll team is responsible for issuing ROEs. She says the regional finance manager told her that the payroll team delayed issuing Ms. Lesnikov’s ROE on its own initiative, because it anticipated she would accept and receive AAE’s severance offer, and the severance information would need to be included in the ROE. The HR Principal says Ms. Lesnikov never contacted her to ask them to issue the ROE more quickly. Based on this evidence, AAE argues that there is a legitimate, non-discriminatory explanation for the delay issuing the ROE, and there is no evidence of a nexus between Ms. Lesnikov’s personal characteristics and the payroll team’s decision-making regarding the ROE.

[89] I do not agree that AAE’s second-hand evidence regarding the actions of its payroll team immediately following Ms. Lesnikov’s dismissal sufficiently explains the company’s significant delay issuing the ROE. However, on the materials before me, I am satisfied that there is no evidence of a discriminatory nexus. I accept that, when an employee is terminated or otherwise experiences an interruption in their earnings, they may be negatively affected by their employer’s delay or lack of care in submitting their ROE, particularly where the employee is disabled from working. An employee may be entitled to various legal remedies for their employer’s failure to submit a timely ROE: see, e.g., Ellis v. Artsmarketing Services Inc. , 2017 CanLII 51563 (ON SCSM). However, the disability-related aspect of an employee’s need for EI benefits will not necessarily entitle them to human rights remedies. This aspect of the employee’s need for EI does not, on its own, establish the type of connection to an adverse impact in employment required to engage s. 13 of the Code.

[90] The evidence before me is that: AAE terminated Ms. Lesnikov’s employment, she was disabled from working, and she did not receive EI benefits because AAE failed to issue her ROE despite Service Canada’s requests. This evidence, on its own, does not directly engage the Code, and Ms. Lesnikov has not explained how the Code might be engaged here by way of reasonable inference. I am therefore persuaded that there is no reasonable prospect of proving discrimination related to AAE’s handling of Ms. Lesnikov’s ROE. AAE’s application under s. 27(1)(c) to dismiss this part of the complaint is granted.

[91] In sum, then, I am denying the application to dismiss the part of the complaint related to the severance offer, while granting the application to dismiss the parts alleging discrimination in AAE’s delay submitting LTD claim paperwork, failure to report Ms. Lesnikov’s mental injury to WorkSafeBC, and failure to issue her ROE. These latter parts of the complaint are dismissed. However, this does not preclude Ms. Lesnikov from seeking compensation for lost LTD, WorkSafeBC, or EI benefits if the Tribunal finds discrimination in the parts of her complaint proceeding to hearing. To establish an entitlement to this compensation, she would need to show some causal connection between the discrimination found and the losses claimed: Gichuru v. The Law Society of British Columbia (No. 9) , 2011 BCHRT 18 at para. 302, aff’d 2014 BCCA 396. To be clear, I am not suggesting that AAE discriminated, or that Ms. Lesnikov’s complaint will succeed at a hearing, or that, if it does, she will be entitled to particular remedies. The allegations in the parts of the complaint that are proceeding have not been proven. I have made no findings of fact and reached no conclusions on the merits of the complaint.

IV CONCLUSION

[92] AAE’s application to dismiss the complaint is granted in part. The parts of the complaint alleging discrimination related to the LTD claim, WorkSafeBC, and the ROE have no reasonable prospect of success. These parts of the complaint are dismissed.

[93] I decline to dismiss any other parts of the complaint:

a. The part of the complaint alleging sex discrimination dating back to February 2015 was not filed late. AAE’s application to dismiss this part of the complaint under s. 27(1)(g) is denied.

b. AAE’s request for the Tribunal to dismiss certain allegations under ss. 27(1)(a) and (b) is denied.

c. AAE’s application under s. 27(1)(c) to dismiss the part of the complaint alleging discrimination in Ms. Lesnikov’s termination is denied.

d. AAE’s application under s. 27(1)(c) to dismiss the part of the complaint alleging discrimination related to the severance offer is denied.

[94] These parts of the complaint will proceed to a hearing. In the meantime, I encourage the parties to make efforts to settle this matter, including by making use of the Tribunal’s mediation services.

Jonathan Chapnick

Tribunal Member