2024 BCHRT 274 - BC Human Rights Tribunal

Moghaddam-Ghadimi v. 0704121 BC Ltd. dba Gandy HVAC and others,
2024 BCHRT 274

Date Issued: September 26, 2024
File: CS-001427

Indexed as: Moghaddam-Ghadimi v. 0704121 BC Ltd. dba Gandy HVAC and others,
2024 BCHRT 274

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:

Maryam Moghaddam-Ghadimi
COMPLAINANT

AND:

0704121 BC Ltd. dba Gandy HVAC and Gandy Installations and Gandy Installations Ltd. dba Gandy Installations
RESPONDENTS

REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Sections 27(1)(b), (c), (d), and (g)

Tribunal Member: Laila Said Alam

Counsel for the Complainant: Laurie Smith

Counsel for the Respondent: Jim Wu

I INTRODUCTION

[1] On May 13, 2020, Maryam Moghaddam-Ghadimi filed a complaint against 0704121 BC Ltd. and Gandy Installations Ltd. (together, Respondents). The complaint concerns allegations of discrimination in employment on the basis of race, place of origin, religion, mental disability, and sex, contrary to s. 13 of the Human Rights Code .

[2] Specifically, she alleges that: during the course of her employment she was subjected to persistent racist, Islamophobic, and sexist comments; the Respondents twice mishandled her report of being sexual assaulted by a coworker (once in 2016 and once in 2019); and, the Respondents terminated her employment based on her disability.

[3] The Respondents deny discriminating and apply to dismiss the complaint under s. 27(1)(b), (c), (d) and (g) of the Code. The Respondents says that the comments Ms. Moghaddam-Ghadimi alleges that she was subjected to at work should be viewed individually as discrete instances of alleged discrimination. Viewed individually, they argue, none of these comments – even if proved – breach the Code. The Respondents also say Ms. Moghaddam-Ghadimi has no reasonable prospect of connecting her sex, religion, race, and place of origin to the Respondents’ response to her assault allegation or her termination. The Respondents say Ms. Moghaddam-Ghadimi has no reasonable prospect of establishing that she had a mental disability which was either known, or should have been known, to the Respondents during her employment. The Respondents say they are reasonably certain to prove that they terminated Ms. Moghaddam-Ghadimi solely because of poor work performance, and not her protected characteristics.

[4] The Respondents apply to dismiss the pre-termination allegation that they mishandled their response to the November 2016 assault under s. 27(1)(g) on the basis that the allegation is out of time. In the alternative, the Respondents also apply under s. 27(1)(d) to dismiss the pre-termination allegations because they say Ms. Moghaddam-Ghadimi did not report the sexual assault until 2019, after which they remedied the matter swiftly and appropriately. The Respondents say the Tribunal should not exercise its discretion to allow the complaint to proceed under s. 27(1)(d) because there is no public interest basis to do so.

[5] For the following reasons, I deny the application to dismiss. This decision is not a finding that Ms. Moghaddam-Ghadimi was discriminated against; it is simply a decision that the issue warrants a hearing and decision on its merits. 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.

II BACKGROUND

[6] In setting out the following background, I am not making any findings of fact with respect to the complaint. I am simply providing the information necessary to put the complaint and this application in context.

[7] The Respondents are a small, family-owned business that provide heating, ventilation, and air conditioning repairs, maintenance, and installation services. Ms. Moghaddam-Ghadimi was employed by the Respondents from June 13, 2016, to April 20, 2020. Until July 4, 2019, she worked in administrative roles and reported to the Service Manager. She was promoted to Call Centre Manager on July 5, 2019, and held this position until her termination on April 20, 2020. As Call Centre Manager, she reported to the General Manager.

[8] Ms. Moghaddam-Ghadimi is a woman of Middle Eastern descent. She is a non-practicing Muslim. She says she had mental health issues while working for the Respondents, including anxiety and depression.

A. Discriminatory Comments

[9] Ms. Moghaddam-Ghadimi says while working for the Respondents her colleagues made racist, Islamophobic, and sexist comments to and around her. She says the Respondents knew about these comments but did not investigate or take her concerns about the comments seriously. She cites the following examples:

a. Coworkers wishing her “happy holidays” on September 11;

b. The Service Manager referring to a delivery driver wearing a turban as a “fucking terrorist” in her presence;

c. The owner telling her that “women are more emotional” when she told him the Service Manager made racist statements and engaged in ongoing sexist behaviour, and suggesting that she take a management course to better engage with the Service Manager; and,

d. Coworkers, including the Service Manager, making comments about her body and the bodies of female coworkers.

B. Sexual Assault Investigation

[10] Ms. Moghaddam-Ghadimi alleges that she was sexually assaulted by a coworker in or around November 16, 2016. She says that she reported this to the Service Manager on or about November or December 2016. She says that he covered his ears, made a face, and said, “I don’t want to hear about that! I don’t want to get involved.” The Respondents dispute that Ms. Moghaddam-Ghadimi told the Service Manager, or anyone in a position of authority in the workplace, about the sexual assault in 2016.

[11] There is no dispute that Ms. Moghaddam-Ghadimi reported the sexual assault in or around September 27, 2019, to the Service Manager and General Manager. The Respondents arranged for Ms. Moghaddam-Ghadimi to work from home beginning October 1, 2019. They hired external counsel to investigate. On November 1, 2019, the Respondents terminated the coworker’s employment.

C. Ms. Moghaddam-Ghadimi’s Termination

[12] There was a heated interaction between Ms. Moghaddam-Ghadimi and the Service Manager on or around April 3, 2020. Ms. Moghaddam-Ghadimi was terminated on April 20, 2020. The parties disagree on the circumstances that lead to her termination.

[13] After the interaction with the Service Manager on the morning of April 3, 2020, Ms. Moghaddam-Ghadimi and her staff emailed each other the following:

[Ms. Moghaddam-Ghadimi]: Honestly at this point I really want to just leave. Obviously he can do my job better than I can so why am I here.

[A.M.] Can we leave I feel sick dude

[A.F.] Honestly same

[Ms. Moghaddam-Ghadimi]: I want to clarify that we didn’t do anything wrong…and then if he comes back I Legit will tell [the General Manager] I can’t be here anymore and you guys should too. There is zero reason to be subjected to this fucking bullshit while we are dealing with a pandemic and not even supposed to be leaving our fucking homes…We are literally risking our health to be here and getting treated like shit.

[14] After the email was sent, one of Ms. Moghaddam-Ghadimi’s staff transferred a call to the Service Manager. The Service Manager and Ms. Moghaddam-Ghadimi got into a heated interaction about whether or not it was appropriate for Ms. Moghaddam-Ghadimi’s staff to have transferred the call to the Service Manager.

[15] After this interaction, Ms. Moghaddam-Ghadimi left work for the day.

[16] Later that afternoon, Ms. Moghaddam-Ghadimi emailed the General Manager the following:

I am sorry for losing my temper today and I wish I didn’t have to leave the office but for my well-being I felt it was the only viable option at this point. Per our discussion yesterday [the Service Manager] has proven over and over again that he is incapable of having a respectful, civil conversation with me or my staff members.

I’m sure by now you know that it is not like me to blow up, and that normally I just get quietly upset. You also know that I’ve been through mentally and physically while at this company, with the situation that we dealt with in October having recently been brought to your attention. It’s been a really turbulent 6 months for me and I have not had any time to recover. One of the most traumatic events of my life was thoroughly reopened and although I have tried to process and heal without taking any time off I’m starting to see that this is no longer possible. Now, with the pandemic, things are even worse.

My mental health is a priority, especially when I’m so close to having a breakdown. The last thing I want is to add to the number of good employees that left because of [the Service Manager]. I do not want the 4 years of loyalty and hard work that I have invested in this company to go to waste. It is for this reason that I kindly request to take some time off, in the form of either A) stress leave B) lay-off for shortage of work, or C) 2-week vacation with pay.

I don’t feel I am at my best right now, and although this may be inconvenient I can’t think of a better time as call volume is at an all time low, we have limited techs to dispatch, and since [the Service Manager] really feels that he can do a better job than I, it is the perfect time for him to prove it.

[17] In response, the General Manager granted her leave request. On April 7, 2020, the General Manager emailed her to let her know that she had only 3 days of vacation accrued, and that she was expected to be in the office on Thursday, April 9, 2020.

[18] A day before her expected return, Ms. Moghaddam-Ghadimi requested two weeks of medical leave. She attached a doctor’s note certifying that she was unable to work from April 6 to April 20, 2020. The Respondents approved her request.

[19] During her two-week absence, the Respondents found the emails that I set out above between Ms. Moghaddam-Ghadimi and her staff, on Ms. Moghaddam-Ghadimi’s work computer. The Respondents say that these emails and her conduct during the incident with the Service Manager on April 3, 2020, led them to conclude that she no longer possessed the requisite qualities to remain employed. They elected to wait until she returned from medical leave on April 20, 2020, to terminate her employment.

III DECISION

[20] The Respondents apply to dismiss the complaint under s.27(1)(b), (c), (d), and (g). I find it most efficient to first consider whether Ms. Moghaddam-Ghadimi’s pre-termination allegations are timely under s. 27(1)(g), because the complaint alleges a continuing contravention. In my view, Ms. Moghaddam-Ghadimi’s allegations establish a continuing contravention. In that context, I then consider the application under s. 27(1)(c), followed by sections 27(1)(b) and (d).

A. Timeliness of the Complaint – s. 27(1)(g)

[21] The Respondents seek to have Ms. Moghaddam-Ghadimi’s complaint that they mishandled her sexual assault report in 2016 dismissed because, they say, it is untimely. Further, the Respondents deny that Ms. Moghaddam-Ghadimi reported the sexual assault before 2019. They submit that the 31-month delay in bringing this part of her complaint forward is excessive, and there is nothing to suggest that the incident was part of a continuing contravention of the Code.

[22] There is a one-year time limit for filing a human rights complaint: Code, s. 22. Section 22 is meant to ensure that complainants pursue their human rights remedies promptly so that respondents can go ahead with their activities without the possibility of a dated complaint: Chartier v. School District no. 62, 2003 BCHRT 39 at para. 12.

[23] A complaint is filed in time if the last allegation of discrimination happened within one year, and older allegations are part of a “continuing contravention”: Code, s. 22(2); School District v. Parent obo the Child , 2018 BCCA 136 at para. 68. A continuing contravention is “a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code, and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City), 2015 BCCA 57 at para. 23; School Districtat para. 50.

[24] The assessment of whether discrete allegations are a continuing contravention is a “fact specific one which will depend very much on the individual circumstances of each case”: Dickson v. Vancouver Island Human Rights Coalition , 2005 BCHRT 209 at para. 17. The burden is on Ms. Moghaddam-Ghadimi to establish that her allegations form a continuing contravention: Dove v. GVRD and others , 2006 BCHRT 374 at para. 11.

[25] The first question is whether Ms. Moghaddam-Ghadimi has alleged a timely contravention of the Code. Ms. Moghaddam-Ghadimi filed her complaint on May 13, 2020. Therefore, allegations occurring before May 13, 2019, are more than one year before the complaint was filed and are out of time unless they are a part of a continuing contravention where the last allegation of discrimination occurred on or after May 13, 2019.

[26] Ms. Moghaddam-Ghadimi makes two allegations that are clearly filed within the one-year time limit established under s. 22(1). She alleges that the Respondents mishandled her sexual assault report made in or around September 2019. She also alleges that the Respondents terminated her on account of her disability on April 20, 2020. The next question is whether her allegations pre-dating May 13, 2019, represent a series of repeated acts of the same character as one or both of these allegations, such that they constitute a continuing contravention.

[27] As the Tribunal said in Dove at para. 17 a continuing contravention may be established in cases where there are allegations of repeated harassment or discrimination, “provided that the allegations are sufficiently similar in character and occur with sufficient frequency…One thinks of an allegation of a poisoned work environment as a result of recurring sexual harassment: see, for example, Webber, supra, at para. 39.”

[28] In my view, this case is appropriately categorized as allegations of repeated harassment or discrimination. In essence, Ms. Moghaddam-Ghadimi alleges her workplace was poisoned by sexism and racism, that her employer knew about the incidents she complains of but did little to nothing to address them. She alleges that the Respondents ongoing failure to appropriately respond to her reports or to address the work environment marred by discrimination existed between November 2016 and April 2020. It is well-established that all employees are entitled to a discrimination free workplace and an employer’s failure to respond appropriately to discrimination complaints can, in and of itself, amount to a breach of the Code: Jamal v. TransLink Security Management and another (No. 2) , 2020 BCHRT 146 at para. 106; Beharrell v. EVL Nursery Ltd., 2018 BCHRT 62 at para. 24.

[29] I am persuaded that Ms. Moghaddam-Ghadimi’s allegations from before May 13, 2019 are of the same nature. The employer knew about the objectionable racist and sexist conduct and did nothing, she says, to ensure the workplace was, or was returned to, a discrimination free environment. Instead, the Respondents fired her.

[30] The Respondents argue that the gap in time between allegations weighs against finding a continuing contravention. If there is a gap between allegations, the length of the gap and whether they can be explained, may be relevant to the continuing contravention analysis: Dickson at paras. 16-17 and Reynolds v Overwaitea Food Group,2013 BCHRT 67 at para. 28. The Respondents characterize the gap in time as between 2016, when she allegedly reported the sexual assault, and 2019, when she reported the sexual assault to the General and Service Managers. They say that the nearly three-year delay in filing her complaint is excessive, “not insignificant,” and “weighs against accepting the complaint.”

[31] I do not accept the Respondents’ characterization that there was a gap in time in Ms. Moghaddam-Ghadimi’s allegations. Her complaint is not limited to the allegations about their failure to address her sexual assault appropriately in 2016 and 2019. Ms. Moghaddam-Ghadimi has alleged a poisoned work environment where the Respondents knew or ought to have known about discriminatory comments in the workplace and did nothing to prevent or address it. Further and in any event, she alleges that she spoke with the Service Manager many times about feeling uncomfortable working with the coworker who assaulted her after she says she initially reported it to him in 2016. She also alleges that her coworkers, including the Service Manager, commented on her and other women’s bodies weekly. I am satisfied that her complaint allegations before May 13, 2019 are part of a continuing contravention.

[32] I now turn to whether there is no reasonable prospect of Ms. Moghaddam-Ghadimi’s complaint succeeding. For the reasons that follow, I am not persuaded that there is.

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

[33] The Respondents apply to dismiss Ms. Moghaddam-Ghadimi’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c) They say they are reasonably certain to prove they handled her 2019 report of sexual assault appropriately. The onus is on the Respondents to establish the basis for dismissal.

[34] 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.

[35] 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, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan, 2013 BCSC 942at para. 77.

[36] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority, 2021 BCSC 2176at para. 20; SEPQA v. Canadian Human Rights Commission, [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.

[37] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia, 2008 BCSC 1026 at para. 34. However, if there are foundational or key issues of credibility, the complaint must go to a hearing : Francescutti v. Vancouver (City), 2017 BCCA 242 at para 67.

[38] To prove her complaint at a hearing, Ms. Moghaddam-Ghadimi will have to prove that she has a characteristic protected by the Code , she was adversely impacted in employment, and her protected characteristics were 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. If the impact is justified, there is no discrimination.

[39] The first two elements of Moore are not in dispute. However, the Respondents say that there is no reasonable prospect Ms. Moghaddam-Ghadimi can prove a connection between her protected characteristics and her allegations that the Respondents mishandled her sexual assault report or her termination. They also say that they are reasonably certain to establish a defense at a hearing.

[40] The threshold for allowing Ms. Moghaddam-Ghadimi’s complaint to proceed is a low one: she only need to take her allegation that there is a connection between her protected characteristics and the Respondents’ mishandling of her sexual assault report out of the realm of conjecture. I am satisfied Ms. Moghaddam Ghadimi’s allegations concerning the Respondents’ investigation meets this threshold. As stated in Jamal :

[106] […] employers have obligations under the Code to respond reasonably and appropriately to complaints of discrimination: Laskowska v. Marineland of Canada Inc., 2005 HRTO 30at paras. 52-53. This includes a duty to investigate. Because the Code obliges employers to respond to allegations of discrimination, a failure to do so in a way that is reasonable or appropriate can amount to discrimination:Beharrell v. EVL Nursery Ltd., 2018 BCHRT 62at para. 24. In particular, an investigation can, on its own, amount to discrimination “regardless of whether the underlying conduct subject to the investigation is found to be discriminatory”: Employee v. The University and another (No. 2), 2020 BCHRT 12at para. 272. Some factors the Tribunal may consider are whether the employer and persons charged with addressing discrimination have a proper understanding of discrimination, whether the employer treated the allegations seriously and acted “sensitively”, and whether the complaint was resolved in a manner that ensured a healthy work environment: Laskowska at para. 59, cited in Beharrell at para. 21.

[41] 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: Lesnikov v. Anglo American Exploration (Canada) Ltd., 2024 BCHRT 245 at para. 33.; see, e.g., The Worker v. The Company and another , 2019 BCHRT 235 at para. 36. Allegations regarding the harms caused by an employer’s unreasonable or inappropriate response to claims or discrimination are inherently connected to the protected characteristics engaged by the underlying claim: Lesnikovat para 34; 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; Kirchmeier obo others v. The University of British Columbia (No. 4) , 2021 BCHRT 149 at para 101; Beharrell, at para 24.

[42] In this case, Ms. Moghaddam-Ghadimi alleges a range of behaviours that would constitute sex discrimination: Lesnikovat para. 42; Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1251 at p.28. Regarding the investigation, she alleges that the Service Manager’s response to her report about being sexually assaulted by a coworker was to cover his ears, make a face, and say, “I don’t want to hear about that! I don’t want to get involved.” She alleges that between her first report and her report in 2019, she told the Service Manager many times that she felt uncomfortable working with the coworker who assaulted her. In essence, these allegations are that the Respondents did not act sensitively, treat her allegations seriously, or resolve her report in a manner that ensured a healthy work environment. She alleges that in 2019, the Respondents further mishandled her report in 2019 by making her sit in a management meeting with her assaulter, removing her from the workplace during the investigation, and putting an onus on her to tell her staff the reason for her absence.

[43] In my view, Ms. Moghaddam-Ghadimi has met this low threshold in connecting her protected characteristic of sex to the adverse impact she experienced in her employer’s response to her reports of sexual assault by a coworker.

[44] Lastly, the parties disagree as to whether Ms. Moghaddam-Ghadimi made the report in 2016, and whether the Respondents mishandled her report in 2019. The parties’ conflicting positions are key foundational issues of credibility that cannot be reconciled by the evidence before me. For these reasons, I cannot find that there is no reasonable prospect Ms. Moghaddam-Ghadimi can prove a connection between her protected characteristics and her allegations that the Respondents mishandled her sexual assault report.

[45] The Respondents argue they are reasonably certain to prove that they terminated her employment for solely non-discriminatory reasons: her profane, insolent, and disrespectful conduct to the Service Manager on April 3, 2020, and for discovering evidence that Ms. Moghaddam-Ghadimi was “attempting to conspire against” the Service Manager. They also argue that the duty to accommodate did not arise in this case because they did not know, and there was no reasonable basis they could have known, that Ms. Moghaddam-Ghadimi had a disability that required accommodation.

[46] I am not convinced that the Respondents are reasonably certain to establish a defense at a hearing. The Respondents may have had non-discriminatory reasons for terminating her employment. However, in this application, Ms. Moghaddam-Ghadimi only needs to show that it is not merely speculative that her protected characteristics were factors in her termination. A protected characteristic need not be the sole factor. I am satisfied that Ms. Moghaddam-Ghadimi has taken out of the realm of conjecture a link between her behaviour on or around April 3, 2020, to her protected characteristics. Ms. Moghaddam-Ghadimi’s April 3, 2020 email apologizes for losing her temper and explains that leaving the office was “the only viable option” to maintain her “well-being.” She goes on to say,

My mental health is a priority, especially when I’m so close to having a breakdown.

[47] Here, Ms. Moghaddam-Ghadimi relates her reaction to what she had experienced “mentally and physically” at work and “the situation that we dealt with in October” with her request for medical leave. I understand Ms. Moghaddam-Ghadimi’s email to be referring to the October 2019 investigation into her assault. In Radek v. Henderson Development (Canada) and Securiguard Services (No. 3) , 2005 BCHRT 302, the Tribunal stated that a justification defence that centres on people’s reaction to discrimination would be tantamount to blaming them “for refusing to continue to tolerate the discriminatory treatment she was receiving”: para. 484. While Radek did not, as here, deal with allegations that her reaction was linked to a mental health disability, I am not persuaded that, as in Radek, Ms. Moghaddam-Ghadimi has no reasonable prospect of proving that her reaction was connected to the discriminatory treatment she had been subject to or connected to her mental health issues. Therefore, it would be open to the member hearing this case to find that terminating Ms. Moghaddam-Ghadimi for her, admittedly intemperate, reaction would be tantamount to blaming her for being unable to continue to tolerate the discriminatory treatment she was receiving or for a manifestation of her disability. Whether it would have been an undue hardship for the Respondents to do something other than terminate her employment is a question that must be dealt with under the bona fide occupational requirement analysis.

[48] The Respondents have not persuaded me they are reasonably certain to establish that they did not know or should have known of Ms. Moghaddam-Ghadimi’s mental disability prior to terminating her. As stated in the Tribunal said at para. 29 of Martin v. Carter Chevrolet Oldsmobile , 2001 BCHRT 37:

… when an employer is aware, or reasonably ought to be aware, that there may be a relationship between the disability and the performance, the employer has a duty to inquire into that possible relationship before making an adverse decision based on performance. If those inquiries disclose that there is a relationship between the disability and the performance, then the employer has a duty to accommodate the employee to the point of undue hardship: Meiorin, supra.

[49] I rely on Ms. Moghaddam-Ghadimi’s April 3, 2020 email to find that it is not speculative that the Respondents knew, prior to her termination, that Ms. Moghaddam-Ghadimi might have a mental disability that resulted in the conduct they relied on to terminate her. In her email, she told the Respondents that she was close to having a breakdown, requested a leave, and said her mental health was a priority. While it is arguable the Respondents did not have a reason to believe she might have a mental disability before that email, it is hard to understand how they can say they did not know – or did not have a reason to inquire – after receiving that email.

[50] There is no evidence that the Respondents ever explored the possibility of a link between Ms. Moghaddam-Ghadimi’s conduct – which is what they rely on to justify her termination – and her disability. The Respondents have not convinced me that they are reasonably certain to establish a solely non-discriminatory basis for terminating Ms. Moghaddam-Ghadimi’s employment.

[51] I now turn to my analysis under s. 27(1)(b), and whether Ms. Moghaddam-Ghadimi has alleged facts that could, if proven, contravene the Code. In my view, she has.

C. Section 27(1)(b) – No arguable contravention

[52] The Respondents apply to dismiss the comments “fucking terrorist,” “women are more emotional,” and the remarks wishing Ms. Moghaddam-Ghadimi “Happy Holidays” on September 11 because the comments do not contravene the Codewhen viewed individually or as a whole.

[53] Section 27(1)(b) of the Code gives the Tribunal the discretion to dismiss all or part of a complaint if it does not allege facts that could, if proven, contravene the Code. Under s. 27(1)(b), the Tribunal only considers the allegations in the complaint and information provided by the complainant. It does not consider alternative scenarios or explanations provided by the respondent: Bailey v. BC (Attorney General) (No. 2), 2006 BCHRT 168 at para. 12; Goddard v. Dixon, 2012 BCSC 161 at para. 100; Francescutti v. Vancouver (City), 2017 BCCA 242 at para. 49. The threshold for a complainant to allege a possible contravention of the Code is low:Gichuru v. Vancouver Swing Society, 2021 BCCA 103 at para. 56.

[54] The Respondents say no single comment is extreme or egregious, or capable of being construed as tending to establish, or form part of a pattern of, religious, racial, or sexual harassment. They say the evidence suggests that Ms. Moghaddam-Ghadimi and the Service Manager had a friendly relationship and there was no history of enmity. The Respondents argue that each comment should be assessed in isolation to see if it meets the discriminatory threshold of Pardo v. School District No. 43 2003 BCHRT 71.

[55] The Respondents misunderstand the Pardo line of cases. Those cases consider in what circumstances a single comment has no reasonable prospect of establishing a breach of the Code. Pardo does not apply to cases where a series of allegedly discriminatory comments, acts, and omissions are alleged.

[56] This is not a case where only a single comment is at issue. Here, Ms. Moghaddam-Ghadimi alleges that between 2016 and 2019, coworkers made discriminatory comments on a weekly basis. She says they wished her happy holidays on September 11 on more than one occasion, referred to a delivery driver wearing a turban as a “fucking terrorist,” made lewd comments about her body and the bodies of other female coworkers, as well as the owner saying “women are more emotional.” These are all comments which, on their face, invoke negative stereotypes about women, Muslims, and racialized people who are perceived to be Muslim: Forgues v. Gary Stinka and Moxie’s Restaurant , 2001 BCHRT 7; Ryane v. Krieger and other, 2000 BCHRT 41; Fiebelkorn v. Poly-Con Industries and other, 2000 BCHRT 54; Koblensky v. Westwood and other(No. 2) 2006 BCHRT 281; Shahadat v Northern School of Spa Therapies, 2024 BCHRT 120; Elmasry v Roger’s Publishing Ltd, 378, 2008 BCHRT 378.

[57] Further, and in any event, following the Tribunal’s rationale in in Fraser v. Tolko Industries Ltd., 2021 BCHRT 118 at paras. 241-215, I decline to parse out and dismiss any of the comments alleged by Ms. Moghaddam-Ghadimi. Fraser cautions against considering each allegation in isolation, as “in any complaint involving an alleged discriminatory work environment over a period of time, it would be difficult to dismiss any particular allegations as not contributing to the alleged problem.”

[58] The application to dismiss under s. 27(1)(b) is denied.

[59] I now turn to the Respondents arguments under s. 27(1)(d) of the Code.

D. Section 27(1)(d) – Proceeding would not benefit the complainant and would not further the purposes of the Code

[60] The Respondents say that proceeding with the complaint would not benefit Ms. Moghaddam-Ghadimi because they took swift and immediate action in 2019 when she reported the sexual assault. On the day she disclosed, they say they arranged for Ms. Moghaddam-Ghadimi to work at home to minimize her contact with the coworker. They hired external counsel to investigate her allegation. They say they did not give the coworker any preferential treatment. The Respondents terminated the coworker’s employment on November 1, 2019.

[61] Under s. 27(1)(d)(i) of the Code, the Tribunal has the discretion to dismiss a complaint if proceeding with the complaint would not benefit the complainant. For example, the Tribunal dismissed a complaint under this section where the respondent companies were defunct, and the complainant agreed there would be no benefit to her by continuing the process: Larsen v. Opel Financial and Investment Group and others (No. 3), 2009 BCHRT 186 at para. 22. The Tribunal will not dismiss a complaint where proceeding with the complaint may give the complainant access to remedies under the Code: D.D. v. The Hotel and others, 2020 BCHRT 109at para. 69.

[62] I do not find the Respondents arguments helpful to a s. 27(1)(d)(i) analysis. Proceeding with the complaint may give Ms. Moghaddam-Ghadimi access to remedies under the Code if her complaint is successful. I decline to exercise my discretion to dismiss the complaint under s. 27(1)(d)(i). Even if she is unsuccessful in proving the Respondents breached the Code by mishandling her 2019 report, which is the sole basis for the Respondents’ argument under this section of the Code, she may be successful in relation to her other allegations in which case she would be entitled to remedies.

[63] Section 27(1)(d)(ii) allows the Tribunal to dismiss a complaint where proceeding with it would not further the purposes of the Code. These purposes include both private and public interests: s. 3. Deciding whether a complaint furthers those purposes is not only about the interests in the individual complaint. It may also be about broad public policy issues, like the efficiency and responsiveness of the human rights system, and the expense and time involved in a hearing: Dar Santos v. UBC, 2003 BCHRT 73 at para. 59, Tillis v. Pacific Western Brewing and Komatsu, 2005 BCHRT 433 at para. 15, Gichuru v. Pallai (No. 2), 2010 BCHRT 125 at paras. 113-118.

[64] I understand the Respondents’ argument to be that it would not further the Code’spurposes for the complaint to proceed because the underlying dispute has been resolved or remedied because they investigated the complaint and terminated the coworker’s employment: Williamson v. Mount Seymour Park Housing Coop, 2005 BCHRT 334. They also argue that it is not in the public interest to accept this complaint because there is nothing particularly unique, novel, or unusual about the complaint that the Tribunal has not already addressed in other complaints. The Respondents submit that the Tribunal should consider this public interest factor “through the lens of subsection 27(1)(d) of the Code,” however I do not find this relevant to a s. 27(1)(d) analysis. The “unique, novel, or unusual” language is associated with whether it is in the public interest to accept a late filed complaint under s. 22 of the Code:Panagopoulos v. Pacific National Exhibition and another, 2016 BCHRT 200, paras. 24-28. I have already determined, above, that this complaint is not late filed. I see no principled basis to import a “uniqueness” analysis to s. 27(1)(d).

[65] I now turn to the Respondent’s position that the underlying dispute in Ms. Moghaddam-Ghadimi’s complaint has been resolved or remedied. Regarding Ms. Moghaddam-Ghadimi’s allegation that the Respondents did not appropriately respond to her report of sexual assault in 2016, the Respondents reiterate their arguments under s. 27(1)(g) that the allegation is past the one-year reporting period and was not part of any continuing contravention of the Code. The focus of the Respondent’s argument in this section is related to the 2019 investigation. The Respondents say that immediately after Ms. Moghaddam-Ghadimi brought her allegations of sexual assault against the coworker to the Respondents’ attention, the Respondents “acted swiftly by hiring external counsel to investigate the matter” and terminate the coworker’s employment. They say that they did not give the coworker any preferential treatment.

[66] Generally, where a complaint of discrimination has been appropriately resolved, proceeding with the complaint would not further the purposes of the Code because the discrimination has already been remedied: Williamson at para. 13. The Tribunal’s ability to fulfill the purposes of the Codeis harmed when its resources are taken up with complaints that have already been adequately addressed, whether through settlement, unilateral respondent action or other proceedings: Williamson at para. 13.

[67] Here the Respondents argue that their unilateral action – investigating the complaint and terminating the other employee – adequately addressed Ms. Moghaddam-Ghadimi’s complaint.

[68] Varied circumstances have grounded the Tribunal’s exercise of discretion to dismiss a complaint because it would not further the purposes of the Code to proceed. The Tribunal has dismissed cases under s. 27(1)(d)(ii) because a respondent has already taken reasonable and effective steps to remedy the discrimination through processes other than adjudication at the Tribunal: Wilkie v. ICBC, 2005 BCHRT 318 at paras. 4-6; Williamson at paras 10-11 and 19-25; Gueffroy v. Pacific Newspaper Group and another , 2005 BCHRT 349.

[69] A review of the Tribunal’s case law indicates that, to dismiss a complaint on the basis that the respondent has appropriately addressed the discrimination, the respondent must convince the Tribunal that the respondent has acted reasonably and effectively to address the issues raised in the complaint: Baker v. Brentwood College School and another , 2011 BCHRT 335 at para 46; Horner v. Concord Security Corporation , 2003 BCHRT 86 para. 30-32; Wilkie at paras 4-6, Gueffroy and Gueffroy v. Coast Mountain Bus Company, 2006 BCHRT 258; Pollock v. TDK Holdings and others , 2009 BCHRT 103; Stengert obo others v. Strata Plan BCS2427, 2018 BCHRT 70; Aflakian v. Fraser Health Authority, 2011 BCHRT 170 at para. 45. This means that the respondent must take the complainant’s discrimination claim seriously, appropriately address the impact on the complainant, and where necessary, take appropriate steps to ensure that the discrimination would not happen again: Tambour v. Teamsters Union Local 155 , 2024 BCHRT 20 at para. 23.

[70] On the materials before me, I am not able to conclude that the Respondents’ efforts were effective and reasonable in all of the circumstances. While the Respondents may well prove otherwise at a hearing on the merits, I am not able to reach that conclusion on the materials before me.

[71] Here, the conduct alleged, namely sexual assault by a coworker, is a serious one, and not a “de minimus” violation of the Code: Webber v. Alcan Incorporated, 2004 BCHRT 52 at para 33; M.P. v. L.P., 2005 BCHRT 47 at para 9. I accept that the Respondents are reasonably certain to prove that, shortly after Ms. Moghaddam-Ghadimi reported her complaint in 2019, they investigated the complaint and terminated the coworker’s employment. However, the question remains as to whether the response was reasonable in all of the circumstances. Ms. Moghaddam-Ghadimi has explained that despite the seriousness of her allegation reported on a Friday, when she returned to work the following Monday, the Respondents did not give her any indication that it would undertake any investigation. The following day, the Respondents required her to sit through a management meeting with the coworker. It was only after this meeting that she says the Respondents updated her on the steps they would take to investigate her report. She says the Respondents centered her assaulter when they, “explained that I would need to be the one sent home during the investigation because if they sent [the coworker] home, he would know that I complained about him.” She also says that when she asked the Respondents what she should tell her direct reports, they told her to “’figure it out’ and that they would use whatever excuse [she] came up with.”

[72] Similar to the reasoning in Webberand Reddemann v. Chiron Health Services and another , 2018 BCHRT 233, the question of whether the Respondents took reasonable steps to resolve the complaint is directly in issue in the complaint, and, as previously stated in my analysis under s.27(1)(c), I cannot determine whether the Respondents did so or not on the basis of the material before me. The Respondents’ alleged conduct in response to Ms. Moghaddam-Ghadimi’s report, “is not trivial in nature and a hearing will determine whether those allegations are substantiated and, if so, the seriousness of the impacts” on Ms. Moghaddam-Ghadimi: Reddemann at para 64; Webber , at para 33.

[73] Based on the above, the Respondents’ application to dismiss the complaint against it under s. 27(d)(ii) is denied.

IV CONCLUSION

[74] The application to dismiss the complaint is denied under ss. 27(1)(b), (c), (d), and (g).

[75] The complaint will be scheduled for a hearing.

Laila Said Alam

Tribunal Member

Human Rights Tribunal

Moghaddam-Ghadimi v. 0704121 BC Ltd. dba Gandy HVAC and others,2024 BCHRT 274