Smith v. Fraser Health Authority, 2024 BCHRT 273
Date Issued: September 25, 2024
File: CS-004902
Indexed as: Smith v. Fraser Health Authority, 2024 BCHRT 273
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:
Danae Smith
COMPLAINANT
AND:
Fraser Health Authority
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(d)(ii)
Tribunal Member: Emily Ohler
Counsel for the Complainant: Pamela Shields
Counsel for the Respondent: Jessica Fairbairn
I INTRODUCTION
[1] This complaint involves an interaction between the Complainant, Danae Smith, and a nurse at a COVID-19 vaccination centre at a time when such vaccinations were being provided only to certain groups, including those who self-identified as Indigenous. The facts are undisputed. Ms. Smith attended a vaccination appointment. Once there, the nurse requested documentation of Ms. Smith’s Indigenous identity to confirm her eligibility for the vaccination. The nurse was unfamiliar with “Indian” status cards and left briefly to consult with her supervisor before ultimately providing Ms. Smith with the vaccination. Ms. Smith alleges that this constituted discrimination contrary to s. 8 of the Human Rights Code on the grounds of Indigenous identity and race.
[2] Fraser Health Authority denies it breached the Code as Ms. Smith alleges. The Health Authority has applied to dismiss the complaint under s. 27(1)(d)(ii) on the basis of a reasonable settlement offer. At issue in this application is whether a settlement offer made by the Health Authority to Ms. Smith is reasonable; and if so, whether it would not further the purposes of the Code to proceed with the complaint in the face of it.
[3] For the following reasons, I allow the application and dismiss the complaint. 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. I make no findings of fact.
II BACKGROUND
[4] The Health Authority set up a centre in November 2020 to provide COVID-19 vaccination and testing services to the public [Centre]. On April 7, 2021, Ms. Smith visited the Centre for a vaccination appointment. Vaccinations at this time were reserved for people aged 72 and over; certain essential healthcare workers; and people self-identifying as Indigenous who were over the age of 18.
[5] As mentioned above, the facts of this case are not in dispute. Ms. Smith checked in for her appointment and was seen by a nurse. The nurse asked Ms. Smith about her eligibility to receive a vaccination. She asked Ms. Smith for documentation confirming that she was Indigenous. Ms. Smith provided the nurse with her status card. The nurse had not seen a status card before and told Ms. Smith the same. She asked Ms. Smith to wait while she consulted her supervisor and left the station to ask the Patient Care Coordinator about it. The nurse was gone for about 30 seconds. The Patient Care Coordinator explained to the nurse what the status card was, and told the nurse that Ms. Smith was eligible for the vaccine. The Patient Care Coordinator instructed the nurse to apologize to Ms. Smith for the inconvenience.
[6] Ms. Smith brought her complaint on the basis that the Health Authority’s asking for documentation of Indigenous identity to verify her eligibility, and its failure to train the nurse on status cards constitute discrimination.
[7] On April 28, 2023, the Health Authority made a with‐prejudice settlement offer to Ms. Smith in an effort to resolve the complaint without a hearing [Offer]. The Offer remains open for acceptance, even if rejected, for two weeks after the Tribunal renders a decision on this Application, regardless of the outcome of the Application. The terms of the Offer are:
In exchange for withdrawal of the Complaint:
1. The Health Authority will pay Ms. Smith $3,500.00 as compensation for “the humiliation and upset that Ms. Smith experienced” and injury to her dignity, feelings and self‐ respect under section 37(2)(d)(iii) of the Code.
2. The Health Authority will provide Ms. Smith with a letter of regret acknowledging the humiliation and upset that she experienced; that a mistake was made when she was asked to provide confirmation of her Indigenous identity and the nurse sought to confirm the authenticity of Ms. Smith’s status card; and will express remorse and confirm that the Health Authority has reflected on and learned from this incident.
3. The Health Authority will invite and welcome Ms. Smith to share her lived experience as an Indigenous person by facilitating her connection with:
a. a member of Aboriginal Health’s Indigenous Cultural Safety and Humility Team, who will, with Ms. Smith’s consent, consider her story when developing future patient experience workshops for employees;
b. one of the Health Authority’s Indigenous Health Liaisons, who can connect Ms. Smith to community services, advocate for Ms. Smith in navigating the system in the future and, with her consent, consider Ms. Smith’s story in guiding health professionals and care teams in providing culturally safe care for Indigenous service users. Ms. Smith is also invited to provide feedback to the Indigenous Health Liaison regarding Indigenous cultural safety training program; and
c. one of the Health Authority’s Aboriginal Elders in Residence, who can provide guidance, personal consultation, active listening, support and mentorship to Ms. Smith in relation to her access and navigation of the FHA medical system.
4. The Health Authority will confirm in writing that it currently provides Indigenous cultural safety training as part of new‐employee on‐boarding, and is made available for existing employees as continued learning. This training incorporates trauma‐informed practices, and was developed by qualified Indigenous and Aboriginal individuals. This training is delivered online and by dedicated Aboriginal educators.
[8] In the Offer, the Health Authority put Ms. Smith on notice that it would bring the Offer to the attention of the Tribunal and seek permission to file submissions under section 27(1) of the Code on the basis that the Offer was reasonable in the circumstances. Ms. Smith has not responded to the Offer other than through her response to this application.
III DECISION
[9] Under s. 27(1)(d)(ii), the Tribunal can dismiss a complaint without a hearing where the purposes of the Code would not be furthered by proceeding. The Tribunal has determined that there are circumstances where the Code’s purposes would not be furthered in the face of a negotiated settlement agreement. The same rationale has been extended to reasonable settlement offers. As the Tribunal said at para. 7 of Lewis by Lewis v. Lobban and another (No. 2), 2020 BCHRT 122, reasonable settlement offers
can save considerable public and private resources and may offer a more expeditious resolution for the dispute. They may also encompass remedies outside the Tribunal’s power, which more closely match the parties’ interests, and which may better serve the relationship in the long run. For those reasons, the Tribunal recognizes the role of settlement agreements in furthering the remedial purposes of the Code, and encourages and invests its own resources to help parties resolve complaints through mediation: Nguyen v. Prince Rupert School District No. 52, 2004 BCHRT 20 at para. 15.
[10] The Tribunal takes a two-step approach to considering whether it would not further the Code’s purposes to proceed with a complaint in the face of a settlement offer. First, the Tribunal determines whether the offer is reasonable. Second, the Tribunal considers whether it would serve the purposes of the Code to proceed with the complaint in view of that offer.
[11] A settlement offer does not have to mirror the remedies the Tribunal would order if it found a complaint justified after a hearing. It only needs to be consistent with reasonable remedies the Tribunal would likely order if the complainant were successful: Iversen v. Gateway Casinos & Entertainment Ltd. , 2023 BCHRT 3.
A. Is the Offer Reasonable?
[12] Turning to the first step of whether the Offer is reasonable, relevant considerations include whether the offer:
a. is with prejudice, so that the Tribunal can examine its terms;
b. remains open for the Complainant’s acceptance even if it is rejected and even if the Tribunal were to allow the application to dismiss;
c. fully addresses the allegations and available remedies, both monetary and non‐monetary;
d. demonstrates that the respondent’s remedial actions adequately remedied the alleged violation and are consistent with the types of orders the Tribunal might make if the complaints were successful; and
e. includes a monetary component within the reasonable range that the Tribunal might award if the complaint were found to be justified.
Issa v. Loblaw, 2009 BCHRT 264 at para. 35
[13] These factors are considered within the context of the conduct alleged and the respondent’s response to it: Demasi v. City of Vancouver (No. 2) , 2006 BCHRT 220 at para 13. 27.
[14] Of the above factors, in dispute is whether the Offer’s terms are consistent with the types of orders the Tribunal might make if the complaint was successful.
[15] The Tribunal has the power to order remedies under s. 37 of the Code. Those remedies include orders to take steps “to ameliorate the effects of the discriminatory practice”, and to pay an appropriate amount to compensate a complainant for injury to dignity, feelings and self respect.
[16] The Health Authority points out that the Offer includes compensation for injury to dignity. It argues that it includes an array of steps to ameliorate the effects of the incident, including: opportunities for Ms. Smith to share her experiences with members of the Respondent’s Aboriginal Health teams, to assist in improving health care experiences for other Indigenous health care users; written confirmation of the Respondent’s Indigenous culture safety training program and an opportunity for Ms. Smith to provide feedback on the program; and resources to support her in interacting with the healthcare system going forward. It argues that these actions “seek to address the impact the alleged conduct had on the Complainant personally, and aim to make changes to improve health care experiences for other Indigenous persons and to ensure the Complainant’s experience is not repeated.”
[17] The Health Authority argues that in addition, the Offer goes beyond the type of Order that the Tribunal may make were Ms. Smith successful at a hearing. In particular, the Health Authority points to the “detailed and sincere letter of regret” that would acknowledge Ms. Smith’s experience, that a mistake was made, and express remorse while confirming the Health Authority had reflected on and learned from the incident. The Health Authority relies on Espiritu v. FS Whistler Holdings dba Four Seasons Resort Whistler , 2021 BCHRT 69 and Cha and Cha v. Hollyburn Estates (No. 2), 2005 BCHRT 409, where at paras 22 and 12, respectively, the Tribunal said that it does not have the power to order a respondent to apologize. The Health Authority argues that this and the other components of the Offer show it takes the allegations seriously and “is taking concrete steps to address the specific harm she has suffered”.
[18] Ms. Smith disputes the Health Authority’s characterization of the Offer. She argues that the Health Authority has failed to take the problem seriously; to offer a remedy that addresses institutionalized racism; and has failed to address the conduct complained of in a manner that acknowledges the harm in a substantive way. She relies on the “In Plain Sight” report of November 2020 which addresses Indigenous-specific racism and discrimination in BC healthcare.
[19] Ms. Smith says that the Health Authority has failed to address the question of what it means to self-identify as Indigenous, arguing that the nurse “circumvented the ‘self-identity’ process” and “exacerbated the situation with first demanding the complainant produce proof of her eligibility compounded by her stated ignorance regarding an Indian Status card.” Ms. Smith points to the Health Authority’s evidence that the Centre held daily morning meetings to review vaccine eligibility and notes that the Health Authority failed to provide details of the policy or details of the instructions given to staff for ascertaining eligibility. She argues that this shows the Health Authority’s failure to understand the way in which a process of self-identifying can entrench “the institutionalized racist treatment of Indigenous peoples”. She argues that requiring proof of Indigeneity in the face of a limited vaccine supply was “racist by implying that the vaccine was only available for those worthy of receiving the vaccine who are those that can provide documentation of Indigeneity”.
[20] Ms. Smith goes on to say that the Offer is too vague. She argues that a remedy should include a “public declaration of the discrimination”.
[21] I am satisfied in all of the circumstances of this complaint that the Offer is reasonable. Ms. Smith’s arguments may be compelling in respect of the substantive merits of the case, but they do not speak to the reasonableness of the Offer. This is not an application under s. 27(1)(c) wherein I would be assessing whether there is no reasonable prospect of the complaint succeeding. Under s. 27(1)(d)(ii), in the context of a settlement offer, I am proceeding on the assumption that the complaint would succeed and am considering whether the Offer reasonably mirrors what the Tribunal might award as a result: Carter v. Travelex Canada, 2007 BCHRT 275 at para. 23-25, upheld in 2009 BCCA 180.
[22] While Ms. Smith would like a public declaration of the discrimination, this is not a necessary component of a reasonable settlement offer: Iversen v. Gateway Casinos & Entertainment Ltd ., 2023 BCHRT 3; Sloane-Seale v. Swick’s Organic Landscaping and another (No. 2) , 2012 BCHRT 22 at paras. 19 and 40; and Heitner v. BC Provincial Renal Agency and others (No. 3) , 2020 BCHRT 134 at para. 69. In any event, while not an admission or public declaration, the Health Authority has offered an apology and acknowledgement, both of which are now before the public as a result of this decision. In my view, this serves a similar purpose by recognizing the specific harm experienced by Ms. Smith, including because she was asked to prove her indigeneity.
[23] Ms. Smith also says that any remedy should acknowledge the complexities of racial discrimination, that this incident is not an isolated and individual instance, and “a courageous response that will address Indigenous-specific racism.”
[24] The presence and function of systemic racism within healthcare services (and beyond) is well documented, including by the In Plain Sight Report on which Ms. Smith relies. Similarly, the fact that barriers specific to Indigenous people seeking healthcare services exist is well documented. Against this background, I acknowledge that status cards are rife with complexity, and in themselves can be a source of harm as can ignorance about them and what they signify. Ultimately, while Ms. Smith’s complaint exists within this context, it is an individual complaint. It is not unreasonable that the Offer is tailored to the specific harm experienced by Ms. Smith in the context of the specific factual allegations that gave rise to her complaint.
[25] Turning to the monetary component, the Health Authority says the $3,500 offered is within the range of what might be ordered after a hearing. It points to the following cases:
a. Sangha v. Sheraton Wall Centre (No. 2), 2011 BCHRT 147, where the Tribunal awarded $2,500 for injury to dignity to both complainants after the respondent hotel refused to book them a room because they were participants in a Bhangra dance and music event and the respondent attributed negative characteristics to the complainants based on their ancestry and place of origin.
b. Kelly v. B.C. (Ministry of Public Safety and Solicitor General) (No. 3), 2011 BCHRT 183, where the Tribunal awarded $5,000 for injury to dignity to an incarcerated Indigenous person after the respondent denied access to Indigenous religious counselling and spiritual literature while in prison.
c. Holland and Jack v. Prince George Taxi and Kuuluvainen, 2005 BCHRT 317, where the Tribunal awarded the Complainants $2,000 each for injury to dignity after a taxi driver required two Indigenous passengers to pay in advance and made highly offensive, racialized comments to them.
d. Harry v. Trail Apothecary Ltd., 2004 BCHRT 238, the Tribunal awarded the complainant $1,500 in injury to dignity after a pharmacy’s policy of not processing claims directly through insurers when valued at less than $300 adversely affected the complainant, an Indigenous woman, as she was unable to have medical equipment paid through the non‐insured health benefits program, which provides medical insurance to individuals with status.
e. Ben Maaouia and others v. Toscani Coffee Bar and another, 2021 BCHRT 23, the Tribunal awarded each of the four complainants $1,000 for injury to dignity after the owner of the respondent coffee shop refused to serve the four complainants on the basis of their race.
[26] The Health Authority argues that the above decisions are not only within the range of the amount in the Offer, but are distinguishable on the basis that they all involves complainants denied services or subjected to offensive and derogatory remarks. This case, the Health Authority notes, involves a 30 second delay in receiving a service while the nurse confirmed that Ms. Smith “fell within the extremely limited categories of individuals eligible to receive the COVID‐19 vaccine at that time”, and that it was followed up with an apology from the nurse (which Ms. Smith has not denied receiving) and the service.
[27] Ms. Smith says that “token monetary offer of $3,500 fails to address all deficiencies and is failing to provide a culturally-safe environment for Indigenous people”. I appreciate why, when situated within broader harms, the amount in the Offer may seem insufficient to Ms. Smith. However, I must consider the amount in relation to the factors that the Tribunal considers in rendering an award of this kind, which are: the nature of the discrimination, the complainant’s social context or vulnerability, and the effect on the complainant: Basic v. Esquimalt Denture Clinic and another, 2020 BCHRT 138 at para. 193; Gichuru v. The Law Society of British Columbia (No. 9),2011 BCHRT 185 at para. 260.
[28] The question before me is whether the amount of $3,500 is reasonably within the range of what the Tribunal might award. In this case, as the Health Authority points out, Ms. Smith received the service she sought. There is no allegation of having been treated with disrespect beyond being asked to establish her eligibility for the vaccine. The allegation is not that this was done disrespectfully, but that the request was in itself discriminatory, compounded by being confronted with someone who did not recognize what a status card was.
[29] I acknowledge that Tribunal awards have steadily risen since the majority of the cases cited by the Health Authority were decided. However, I am satisfied that $3,500 is reasonably within the range of what may be awarded were this complaint to succeed based on all of the circumstances of this case and the jurisprudence before me.
[30] I turn now to the question of whether, in the face of what I have found is a reasonable settlement offer, it would not further the purposes of the Code to proceed with the complaint.
B. Would it not further the purposes of the Code to proceed with the complaint?
[31] The Health Authority argues that it would not further the purposes of the Code to proceed with the complaint in the face of the Offer. It asserts that proceeding to hearing will require significant resources from the parties and the Tribunal; that Ms. Smith would be awarded “a remedy which contains less than what the Respondent has already offered” if she succeeds at a hearing, particularly, the non-monetary items such as the letter of regret; and proceeding in the face of the Offer “may discourage respondents from making meaningful efforts to craft settlement offers intended to fully resolve a complaint.”
[32] I agree with each of these points. I have determined that the Offer is consistent with what the Tribunal may award were Ms. Smith to succeed in her complaint, but for where the Offer includes additional remedial steps – like an apology – that the Tribunal would not order. In this sense, its terms are consistent with the purposes of the Code. That is, if Ms. Smith were to succeed in her complaint which is not guaranteed. The Health Authority may well succeed in bringing forward its justification defence with regard to the need to verify Indigenous identity, given the scarcity of the vaccination and surrounding circumstances at the material time, once someone self-identified. While Ms. Smith may not view the Offer as the optimal outcome, or even a particularly desirable one, it is consistent, as I have said, with what she may come away with after a hearing, with the added benefit of providing the certainty of any remedy at all.
[33] In making these findings, I am alive to the fact that the question of what it means to invite Indigenous people to self-identify to access certain services and how to administer that in a non-discriminatory way is one that organizations must grapple with. Insofar as the Code ’s purposes may be furthered by examining that question in the context of this complaint, I am not satisfied that this alone justifies advancing this case to hearing in the face of a reasonable settlement offer and uncertain success.
[34] For these reasons, I am satisfied that it would not further the purposes of the Code to proceed with the complaint in the face of the reasonable settlement offer the Health Authority has put forward to Ms. Smith.
IV CONCLUSION
[35] For the above reasons, I allow the application. The complaint is dismissed.
Emily Ohler,
Tribunal Chair
Human Rights Tribunal