BC Human Rights Tribunal

Liu v. Fraser Health Authority and another, 2024 BCHRT 268

Date Issued: September 19, 2024
File: CS-003732

Indexed as: Liu v. Fraser Health Authority and another, 2024 BCHRT 268

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:

Jun (Jenny) Liu
COMPLAINANT

AND:

Fraser Health Authority operating as Eagle Ridge Hospital and Andrea Nicholls also known as Andrea Tisseur
RESPONDENTS

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

Tribunal Member: Andrew Robb

Advocate for the Complainant: Aleena Sharma

Counsel for the Respondent: Lawrence Robinson

---

I INTRODUCTION

[1] Jun (Jenny) Liu was employed by the Fraser Health Authority [FHA]. She worked in a front-line position at Eagle Ridge Hospital. She alleges that FHA and her manager, Andrea Tisseur[1], discriminated against her, based on her disability, by disciplining for her taking a bathroom break and by preventing her from swapping shifts with other employees. She says her requests for shift swaps were connected to her disability because some of them were a result of her difficulties working morning shifts due to side effects of her medication, and others were for the purpose of attending medical appointments. Ms. Liu also alleges that the Respondents discriminated based on her place of origin, by forming negative views about her and treating her poorly based on her identity as an Asian woman.

[2] The Respondents deny discrimination. They deny that Ms. Liu’s shift schedule prevented her from attending medical appointments, and they say FHA’s policies about absences for medical appointments is justified. They acknowledge she was disciplined for being away from her workstation, when she says she was using the bathroom, but they say the discipline was not connected to her disability, it was because she did not find someone to cover for her during her absence. They deny that there was any connection between how they viewed or treated her and her place of origin. They also say WorkSafeBC previously found they did not treat Ms. Liu adversely, and she should not be allowed to relitigate that finding. They apply to dismiss the complaint under s. 27(1)(c), because it has no reasonable prospect of success.

[3] For the following reasons, I allow the application in part. I dismiss Ms. Liu’s allegation of discrimination based on her place of origin because I find she has no reasonable prospect of proving a connection between the negative effects described in her complaint and her identity as an Asian woman. I dismiss her allegation about being disciplined for using the bathroom, and her allegation that the denial of her shift swap requests prevented her from attending medical appointments, based on findings made by WorkSafeBC. I find it would not be fair to allow Ms. Liu to relitigate these findings. But I am not satisfied that Ms. Liu’s allegation that the Respondents prevented her from swapping shifts, where her requests were related to side effects from her medication, has no reasonable prospect of success. This part of the complaint will proceed to a hearing.

[4] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.

[5] I apologise to the parties for the Tribunal’s delay in making this decision.

II BACKGROUND

[6] Ms. Liu began working for FHA in 2011. She was employed as a health care aide until 2018, when she sustained an injury and required a leave of absence. In July 2020 she returned to work for FHA as a screener at Eagle Ridge Hospital.

[7] The screener position was newly created in response to the Covid pandemic. Screeners were required to occupy stations at entry points to the hospital and ensure that people who entered were compliant with Covid-related safety protocols.

A. “Not suitable as screeners” note

[8] After being selected to work as a screener, Ms. Liu was required to attend an orientation session along with other screeners. The person who oversaw the orientation wrote a note saying some of the people selected for the role were “not suitable as screeners”. Ms. Liu later obtained this note, which listed her name and five others. The parties agree that all the people listed in the note were racialised, and all but one was of Asian descent.

[9] On or about July 22, 2020, Ms. Liu met with her manager and expressed concern about the note. Her manager said there would be an investigation, and invited Ms. Liu to attend a meeting with the person who wrote the note. Ms. Liu’s manager later resigned and was replaced by Ms. Tisseur. On or about October 21, 2020, Ms. Tisseur and Ms. Liu met with the person who wrote the note, along with a mediator. The person who wrote the note apologised. Ms. Liu says she accepted the apology. The mediator later wrote a memo stating the parties had agreed to move forward with a professional working relationship.

[10] In her response to the application to dismiss, Ms. Liu says she was dissatisfied with the outcome of the meeting. There is no evidence before me that she told anyone about her dissatisfaction, before she filed this complaint.

B. Ms. Liu’s shift schedule

[11] The Respondents say screeners at the hospital where Ms. Liu worked were assigned to day shifts (beginning in the morning) or afternoon shifts (beginning in the afternoon) on a rotating basis. They say the rotating shift schedule was intended to be fair to employees, and to ensure that each screener received experience at the different entry points to the hospital. They say different entry points had different requirements, and FHA wanted all screeners to be familiar with the requirements of each one, so they could cover for each other in the event of absences. Ms. Liu disputes this. She says she worked at three different entry points to the hospital, at different times, and performed the same tasks at each station.

[12] After she began working as a screener, Ms. Liu sometimes swapped shifts with other screeners, for two reasons. She says she often found it difficult to work in the morning due to side effects from prescribed medication, so she sometimes swapped her morning shifts for afternoon shifts. She also says she had two to three medical appointments per week, to manage the symptoms of her disability, so she sometimes swapped shifts to attend her appointments. She says her appointments were during daytime hours, and were usually scheduled months in advance, and could take up to three hours, including travel time. For all these reasons, she says it was difficult for her to schedule her appointments outside of her scheduled shifts.

[13] The Respondents say FHA permits shift swaps on a discretionary basis, and only with management approval, because they create logistical and practical difficulties. They say Ms. Liu’s requested swaps would have resulted in her only working at one entry point to the hospital, whereas FHA wanted screeners to have experience at all entry points.

[14] Ms. Liu says that in October 2020, a co-worker asked her to swap shifts for a period of several weeks. This would have meant that Ms. Liu would only work afternoon shifts during this period. Ms. Liu says she agreed to do this, but Ms. Tisseur denied the shift swap request. Ms. Liu says she then gave Ms. Tisseur a doctor’s note, dated October 19, 2020, saying she was unable to work early morning shifts due to her medical condition and required treatments. She says she later gave Ms. Tisseur an additional doctor’s note, dated November 10, 2020, saying she requires treatment for pain, two or three times per week. She says Ms. Tisseur continued to decline her requests for shift swaps even after she provided these notes, so she had to cancel her treatment appointments for October and November 2020. She says she experienced increased pain as a result of missing these appointments.

[15] Ms. Tisseur says she was not aware of any medical condition which would have prevented Ms. Liu from working at certain times. She made a sworn statement in support of the application to dismiss, and it does not say anything about the doctors’ notes that Ms. Liu says she provided. But there is evidence, in a decision made by WorkSafeBC and described below, that FHA acted on the note dated November 10, 2020, by contacting Ms. Liu’s treatment-providers to determine whether she could have scheduled her appointments outside her work hours. The decision does not refer to the note dated October 19, 2020.

[16] Ms. Liu says that on December 22, 2020, Ms. Tisseur denied her request for a shift swap so she could attend a medical appointment. The Respondents do not deny this. They say employees are expected to schedule medical appointments to avoid conflicts with work, and when conflicts are inevitable employees are encouraged to use sick time to attend appointments.

C. Incident on January 26, 2021

[17] The Respondents say it was crucial for screeners’ stations to be occupied at all times, because otherwise people could enter the hospital without complying with safety protocols, which could increase the risk of Covid spreading within the hospital. The Respondents say screeners could take bathroom breaks anytime, but only if they ensured that someone else was available to occupy their stations while they were gone.

[18] Ms. Liu says she had a medical condition which causes urinary urgency and frequency. On January 26, 2021, while she was stationed at the hospital’s staff entrance, she urgently needed to use the bathroom, and she did not have time to find someone to cover for her. On her way back to the staff entrance, she says she ran into her union steward and stopped to talk to him. When she returned to her station, Ms. Tisseur was waiting for her. Ms. Tisseur says she had come to give Ms. Liu a memo, found her station unoccupied, and waited for 20 minutes before Ms. Liu returned. Ms. Tisseur says she told Ms. Liu that in the future, she was required to contact Ms. Tisseur to arrange for coverage before leaving her station. Ms. Liu says this meant she had to ask for permission to go to the bathroom.

[19] In response to the application to dismiss, Ms. Liu provided a letter from another screener, saying she (the other screener) had never been required to ask permission to use the bathroom, and screeners were never given clear direction on what to do when they need to use the bathroom. Ms. Liu also provided an email from the person who oversaw the screening orientation in June 2021, saying there was nothing in the orientation about asking to use the bathroom, and when screeners at the staff entrance needed to use the bathroom, they had generally just left the station vacant to use the bathroom around the corner. Ms. Liu also provided an email from her union representative, saying he had witnessed screeners’ stations being left unattended, when screeners used the bathroom. The union representative also said he had left the station unattended while working as a screener, and was not disciplined for it.

[20] On February 4, 2021, Ms. Tisseur met with Ms. Liu and a union representative to determine whether Ms. Liu’s absence from her station, on January 26, 2021, warranted discipline. The Respondents say Ms. Liu was disrespectful during the meeting. Ms. Liu denies this.

[21] Ms. Liu went on leave shortly after February 4, 2021. It appears she has not returned to work at FHA since then.

[22] On June 30, 2021, Ms. Tisseur issued a letter of reprimand. The letter said Ms. Liu left her station unattended for 20 minutes on January 26, 2021, and was insolent and disrespectful during the meeting on February 4, 2021. It said any further infractions would result in discipline up to and including dismissal. The evidence before me does not make clear why there was a delay of about five months between the date of the meeting and the date of the letter of reprimand. There is some evidence that Ms. Liu knew she would be disciplined, before she received the letter.

[23] In March 2021, Ms. Liu submitted an internal complaint to FHA, alleging that Ms. Tisseur had bullied and harassed her. An investigator interviewed Ms. Liu and Ms. Tisseur and issued a report on May 14, 2021. Ms. Tisseur says the investigator concluded that she did not discriminate against Ms. Liu, but the documentation provided by the Respondents only shows that the investigator’s report found that no bullying or harassment had occurred.

[24] Also in March 2021, Ms. Liu submitted a claim to WorkSafeBC, alleging that she sustained a mental injury due to Ms. Tisseur’s behaviour. The WorkSafeBC complaint addressed the same allegations as Ms. Liu’s human rights complaint, including the “not suitable as screeners” note, the refusal of shift swaps, and the incident on January 26, 2021, when Ms. Liu left her station to use the bathroom. The complaint was dismissed and Ms. Liu requested a review of the dismissal decision.

[25] On January 31, 2022, WorkSafeBC issued a review decision about the complaint Ms. Liu filed in March 2021 [the Worksafe Decision ]. The Worksafe Decision included the following findings:

a. The “not suitable as screeners” note may have been troubling for Ms. Liu but it was not a “significant work-related stressor” within the meaning of WorkSafeBC’s policies, in that it was not excessive in intensity or duration beyond what is experienced in the normal pressures of employment.

b. Ms. Tisseur was not acting in bad faith or abusing her managerial authority when she refused the shift swap requests, because she was applying the employer’s policy about shift swaps. She was not denying Ms. Liu’s request for time off for medical treatments, but requiring that the employer’s policy be followed.

c. The Respondents’ concern about the January 26, 2021, incident was related to Ms. Liu being absent from her work-station, not about her using the bathroom without permission. She was disciplined for being absent for an extended time, not for using the bathroom without permission.

III DECISION

A. Preliminary issue: late-filed reply

[26] There is an issue about the Respondents’ reply submission, which was filed 13 days past the due date set by the Tribunal, after the Tribunal pointed out it was past due. The Respondents’ counsel said this was due to an oversight in his office.

[27] I find it is unnecessary to decide whether to accept the late-filed reply submission. The reply submission did not include any new evidence. Most of the reply submission simply reiterates submissions in the Respondents’ application to dismiss. Nothing in my decision turns on the reply submission.

B. Section 27(1)(c) – No reasonable prospect of success

[28] The Respondents apply to dismiss Ms. Liu’s complaint on the basis that it has no reasonable prospect of success: Code,s. 27(1)(c). Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.

[29] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan, 2013 BCSC 942at para. 77.

[30] The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the “realm of conjecture”: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.

[31] To prove her complaint at a hearing, Ms. Liu would have to prove she has a characteristic protected by the Code, she was adversely impacted in her employment, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If she did that, the burden would shift to the Respondents to justify the impact as a bona fideoccupational requirement. If the impact is justified, there is no discrimination.

[32] The Respondents do not deny that Ms. Liu is entitled to the Code’s protection based on her disability and her place of origin. Their submissions do not explicitly refer to the legal principles related to s. 27(1)(c) or any related case law, but I understand their argument to be that she has no reasonable prospect of proving she experienced an adverse impact that was connected to her protected characteristics, or in the alternative that they are reasonably certain to establish that their conduct was justified. If they are reasonably certain to prove this defence at a hearing, then the complaint has no reasonable prospect of success: Purdy v. Douglas College and others , 2016 BCHRT 117 at para. 50.

[33] Section 13(4) of the Codeprovides a justification defence against a complaint of discrimination in cases where a workplace standard (such as a rule, requirement, policy, procedure, practice, norm, etc.) adversely impacts an employee in relation to a protected personal characteristic. To justify any adverse impacts caused by a workplace standard, the Respondents would have to prove they adopted the standard for a valid purpose and in good faith, and that the standard was reasonably necessary to accomplish its purpose and the Respondents discharged their duty to accommodate Ms. Liu 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 [Meiorin] at para. 54.

C. Issue estoppel

[34] The Respondents say the Worksafe Decision addresses the same issues as Ms. Liu’s human rights complaint, and she should not be permitted to relitigate those issues. They cite the Tribunal’s case law to the effect that the doctrine of issue estoppel can preclude a complainant from challenging findings of fact made under the Workers Compensation Act: Stein v. Keebler and others, 2015 BCHRT 79; Chestacow by Chestacow v. Mount St. Mary Hospital of Marie Esther Society and others (No. 3) , 2019 BCHRT 283.

[35] If the Tribunal determines that issue estoppel applies and is determinative of any issues in a human rights complaint, the Tribunal may dismiss the complaint on the basis that it has no reasonable prospect of success: Fox v. Strata Plan KAS 1911 and others, 2018 BCHRT 259 at para. 32.

[36] The test for issue estoppel has two steps. First, I must determine whether: (1) the same question has been decided, (2) the decision was final, and (3) the parties or their privies were the same in each proceeding: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44. If these preconditions are met, I must then determine whether I should use my discretion to apply issue estoppel as a matter of fairness, and considering the strong policy factors that weigh against re-litigation of the same issues: Danyluk at para. 33; Wong v. Polynova Industries , 2024 BCHRT 70 at para. 10.

[37] Ms. Liu says the Respondents have not established the preconditions of issue estoppel, but her submissions only address the first condition, not the second or third. It is clear from the Worksafe Decision that all the parties to this human rights complaint were involved in the WorkSafeBC process. And it appears that the Worksafe Decision was final. Ms. Liu does not suggest otherwise. So I must consider the first condition for estoppel: the requirement that the same question was decided in the earlier proceeding.

[38] The Respondents say the Worksafe Decision decided some of the same issues that are before the Tribunal. In particular, they say the Worksafe Decision found that Ms. Liu was not subject to any adverse or differential treatment, and if the Tribunal accepts this finding then her complaint has no reasonable prospect of success. Ms. Liu says that was not the issue in the Worksafe Decision: it considered whether her employer’s conduct resulted in a mental disorder, whereas the Tribunal must consider whether she was subject to adverse or differential treatment connected to her protected characteristics (her disability and place of origin). She cites Jamal v. TransLink Security Management and another (No. 2), 2020 BCHRT 146, at para. 83, where the Tribunal found the issues to be decided under the Moore test are not the same as the issues decided by WorkSafeBC in claims for compensation for mental injury.

[39] I agree with Ms. Liu that the Worksafe Decision did not determine whether she faced any adverse treatment that was connected to her protected characteristics. It found that she did not experience traumatic events or “significant work-related stressors” under the Workers Compensation Act , but it did not find that she faced no adverse impact on her employment, as a result of the events described in her complaint. The Respondents’ submission characterises the Worksafe Decision too broadly.

[40] However, I find that some of the specific factual findings in the Worksafe Decision apply to issues that the Tribunal must decide in this complaint. The following findings in the Worksafe Decision are relevant to issues before the Tribunal:

a. When Ms. Tisseur denied Ms. Liu’s request for shift swaps to accommodate her medical appointments, she was not denying Ms. Liu’s request for time off for medical treatments, but requiring that the employer’s policy be followed; and

b. The discipline Ms. Liu faced as a result of the January 26, 2021, incident was related to her being absent from her workstation, not about her using the bathroom without permission.

[41] I find the preconditions for estoppel are established with respect to these factual issues. Ms. Liu says that even if the Respondents have established the preconditions, the Tribunal should not exercise its discretion to apply issue estoppel. She says it would be unfair to deny her complaint based on the Worksafe Decision, which did not refer to the Code or adequately analyse Ms. Liu’s claim of discrimination. But she made no submissions about why it would be unfair for the Tribunal to hold her to the specific factual findings in the Worksafe Decision that may be relevant to her human rights complaint.

[42] The Worksafe Decision shows that Ms. Liu was represented by her union in her WorkSafeBC claim. She had an opportunity to make submissions and rebut FHA’s submissions, and it is clear from the Worksafe Decision that the review officer considered her version of events. In these circumstances, I find there is no reasonable prospect that the Tribunal would find that fairness requires her to have an opportunity to re-litigate the same factual issues again.

[43] For these reasons, I find it is appropriate to apply issue estoppel. This means I am bound by the factual findings in the Worksafe Decision.

[44] In the following sections of this decision, I consider each of the incidents that Ms. Liu says are discrimination. Where the factual issues decided in the Worksafe Decision are relevant, I explain how they apply to the Respondents’ argument that Ms. Liu’s complaint has no reasonable prospect of success.

D. Shift swaps to accommodate Ms. Liu’s medical appointments

[45] In light of the Worksafe Decision, I find Ms. Liu has no reasonable prospect of proving her allegation that being denied her shift swap requests, where the requests were for the purpose of allowing her to attend medical appointments, was discriminatory.

[46] Ms. Liu says she was adversely impacted when her shift swap requests were declined. However, the Worksafe Decision determined that she was not denied time off for her medical appointments, but she had to follow FHA’s policy requiring that she schedule these appointments during her non-work hours, or use her sick time. Based on this finding in the Worksafe Decision, I find she has no reasonable prospect of proving that being denied her shift change requests, for the purpose of attending medical appointments, had an adverse impact on her employment that was connected to her disability.

E. Shift swaps to accommodate side effects of Ms. Liu’s medication

[47] Ms. Liu says her requests to swap shifts were not only about taking time off for medical treatments. They were also about her difficulties working morning shifts. The Worksafe Decision did not address this basis for Ms. Liu’s requests for swaps.

[48] The Respondents say there is no evidence Ms. Liu’s disability affected her ability to work at certain hours of the day, and their decision to refuse her request for shift swaps was consistent with FHA’s policies. I understand the Respondents’ argument to be that Ms. Liu has no reasonable prospect of proving a connection between her disability and her shift swap requests, and even if there was a connection, the Respondents are reasonably certain to prove their decision to refuse the requests was justified.

[49] Ms. Tisseur says FHA did not receive any information from Ms. Liu’s doctor indicating that she was unable to work at certain times of day. But the Respondents do not specifically deny that Ms. Liu gave them her doctor’s note, dated October 19, 2020, which says she is unable to work early morning shifts due, in part, to her medical condition. The note does not explain the connection between her condition and her inability to work early morning shifts, but Ms. Liu explains it in her sworn statement in response to the application to dismiss. She says she takes medication at night, to manage the symptoms of her disability, and the sedative effect of the medication sometimes makes it difficult for her to work shifts that start early in the morning.

[50] The Respondents do not address this doctor’s note at all, in their application to dismiss or in their reply submission (even if I had considered it). They do not offer any submissions about why the note is inadequate to establish a connection between Ms. Liu’s disability and her request to swap shifts.

[51] Based on the doctor’s note and Ms. Liu’s evidence, I find she has taken the connection between her disability and her requests for shift swaps to accommodate the side effects of her medication out of the realm of conjecture. I am not satisfied that she has no reasonable prospect of proving a connection between her disability and these requests to swap shifts.

[52] The next question is whether the Respondents are reasonably certain to prove their refusal to allow Ms. Liu’s requested shift swaps was justified under the Meiorin analysis.

[53] The Respondents say FHA’s rules about shift-swapping are intended to prevent administrative and staffing problems. They say swapping creates administrative costs to receive, track, and maintain records of which employee is working which shift, and it can also result in absenteeism when employees lose track of which shifts they are supposed to work. The Respondents say swapping is especially problematic for screeners, because if screeners swap shifts they may not obtain experience at all hospital entry points, so they would need re-training.

[54] Ms. Liu does not suggest that FHA’s rules about shift-swapping do not serve a valid purpose, or that they were not adopted in good faith. Based on the Respondents’ explanation of the rationale for the rules, and without any relevant submissions from Ms. Liu, I find that FHA is reasonably certain to prove that it adopted the rules for a valid purpose and in good faith.

[55] That leaves the final element of the Meiorin test: whether FHA’s rules about shift-swapping were reasonably necessary such that Ms. Liu could not be accommodated without undue hardship. The Respondents do not offer any submissions or evidence that could explain how accommodating Ms. Liu’s requests would have caused undue hardship.

[56] As noted above, the Respondents say that if screeners swap shifts they may need re-training. Ms. Liu’s evidence suggests otherwise; she says she performed the same tasks at all three entry points to the hospital where she was assigned to work. To this extent, FHA’s concern about the potential need for re-training does not appear to be grounded in the evidence before me. Even if it was true that shift-swapping could necessitate re-training, the Respondents have not explained why the need to re-train Ms. Liu would result in undue hardship. Impressionistic evidence about the possibility of increased expenses for re-training is not sufficient: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) , [1999] 3 S.C.R. 868 at para. 41

[57] The Respondents do not offer any submissions about why they could not accommodate Ms. Liu’s requests to swap shifts to accommodate the side effects of her medication, so that she would not have to work mornings. I am not persuaded that they are reasonably certain to prove their refusal to permit these requested swaps was justified.

F. Incident on January 26, 2021

[58] I understand the Respondents’ argument to be that Ms. Liu has no reasonable prospect of proving a connection between her using the bathroom, on January 26, 2021, and the decision to reprimand her. They say Ms. Liu was not reprimanded for going to the bathroom, but for leaving her station unattended. The Worksafe Decision confirms this.

[59] After January 26, 2021, Ms. Tisseur required Ms. Liu to notify Ms. Tisseur before leaving her station. But Ms. Liu did not argue this had an adverse impact on her employment. Her submissions in response to the application to dismiss focus on the adverse impact arising from the Respondents’ decision to reprimand her for leaving her station.

[60] As described above, I am bound by the findings in the Worksafe Decision, including the finding that Ms. Liu was not reprimanded because she went to the bathroom, but because she left her station unattended. Based on the Worksafe Decision, I find Ms. Liu has no reasonable prospect of proving a connection between her disability and the reprimand she faced.

G. “Not suitable as screeners” note

[61] With respect to the “not suitable as screeners” note, the Respondents say there is no evidence to suggest the note had any connection to Ms. Liu’s race or place of origin, or the race or place of origin of any of the people listed in the note, and in any event FHA responded appropriately to Ms. Liu’s concern about the note. I understand their argument to be that Ms. Liu has no reasonable prospect of proving she experienced an adverse impact as a result of the note, or a connection between her place of origin and any alleged impact.

[62] The Worksafe Decision found that the note did not create a “significant work-related stressor” for Ms. Liu, under WorkSafeBC’s policies. But I am not persuaded that this means she has no reasonable prospect of proving it had an adverse impact on her employment, under the Code. However, I find this part of the complaint has no reasonable prospect of success for other reasons.

[63] Although the person who wrote the note said Ms. Liu was “not suitable” as a screener, Ms. Liu continued in the screener role until she went on leave in February 2021. She says that after she found the note she started to notice she was being targeted and treated unfairly. But the only examples she gives are related to her treatment by Ms. Tisseur, who did not become her manager until after the note was written.

[64] Ms. Liu relies on the Tribunal’s case law to the effect that direct evidence of racial discrimination is rarely available, and it is often necessary to draw inferences to prove it: Mezghrani v. Canada Youth Orange Network (CYONI) (No. 2) , 2006 BCHRT 60 at para. 60. But despite the subtlety of racial prejudice, the Tribunal has also found that any inference of discrimination must be rooted in the evidence of a particular case: Campbell v. Vancouver Police Board (No. 4) , 2019 BCHRT 275 at para. 104.

[65] It is not disputed that the people whose names were listed in the “not suitable as screeners” note were all racialised, and most of them were of Asian descent. But there is no evidence before me that could suggest they were listed in the note because of their race or place of origin.

[66] Even if the note did indicate a negative view of people of Asian descent, there is no evidence before me that could connect the note to Ms. Tisseur, who was responsible for all the negative treatment alleged by Ms. Liu.

[67] In these circumstances, I find that Ms. Liu has not brought the connection between her identity as an Asian woman and the adverse impacts alleged in her complaint out of the realm of conjecture. This part of her complaint has no reasonable prospect of success.

H. Should parts of the complaint be dismissed?

[68] I have found that some of Ms. Liu’s allegations of discrimination have no reasonable prospect of success, but not all of them. Her allegation that the Respondents discriminated by denying her shift swap requests, to accommodate the side effects of her medication, will proceed to a hearing.

[69] Since part of the complaint will proceed to a hearing, I consider whether any efficiency would be gained by dismissing any part of it: Byelkova v. Fraser Health Authority, 2021 BCSC 1312 at para. 115. It could be argued that the Tribunal should not parse out and dismiss allegations in a piecemeal way. But if I allowed the parts of the complaint that were decided by the Worksafe Decision to proceed to a hearing, it would undermine the principles of finality and efficient use of resources that underlie the doctrine of issue estoppel. On this basis, I find it is appropriate to dismiss these parts of the complaint.

[70] With respect to the allegation based on Ms. Liu’s place of origin, I find it is unlikely that evidence related to this allegation will be relevant to her allegation about her request to swap shifts to accommodate the side effects of her medication. The decision to refuse her request to swap shifts was made by Ms. Tisseur, and the only evidence before me that could support a finding of discrimination based on her place of origin is the “not suitable as screeners” note, to which Ms. Tisseur had no connection.

[71] For these reasons, I find the risks identified in Byelkova , of inconsistent adjudicative decisions and foreclosing otherwise appropriate findings, are mitigated in this case, and outweighed by the principles of finality and the efficient use of resources.

[72] I dismiss the following parts of Ms. Liu’s complaint because they have no reasonable prospect of success:

a. Her allegation of discrimination based on her place of origin;

b. Her allegation that the Respondents discriminated against her by reprimanding her for using the bathroom on January 26, 2021; and

c. Her allegation that the Respondents discriminated by denying her shift swap requests, where those requests were based on her need to attend medical appointments.

IV CONCLUSION

[73] I allow the application to dismiss, in part. Ms. Liu’s allegation that the Respondents discriminated against her by denying her request to swap shifts, where the requests were to accommodate the side effects of her medication, will proceed to a hearing.

Andrew Robb

Tribunal Member