Mohr v. Power Flagging & Traffic Control Inc. (Power Earth) and others, 2024 BCHRT 275
Date Issued: September 27, 2024
File: CS-000283
Indexed as: Mohr v. Power Flagging & Traffic Control Inc. (Power Earth) and others,
2024 BCHRT 275
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:
Jeannie Mohr
COMPLAINANT
AND:
Power Flagging & Traffic Control Inc. (Power Earth) and International Brotherhood of Electrical Workers, Local 258 and Gilles Gagnon
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(b), (c), (d), (e), (f), and (g)
Tribunal Member: Jonathan Chapnick
On her own behalf: Jeannie Mohr
Counsel for Power Flagging: Marylee A. Davies
Counsel for IBEW: Dawana St. Germain
On his own behalf: Gilles Gagnon
I INTRODUCTION
[1] On December 18, 2018, Jeannie Mohr filed a human rights complaint against her former employer, Power Flagging & Traffic Control Inc. [Power Flagging], her former union, International Brotherhood of Electrical Workers, Local 258 [IBEW], and her former co-worker, Gilles Gagnon [collectively, Respondents ]. She alleges discrimination in contravention of ss. 13 and 14 of the Human Rights Code. This decision is not about whether the Respondents discriminated. Rather, it is about whether Ms. Mohr’s complaint should be dismissed without a hearing.
[2] Ms. Mohr and Mr. Gagnon worked at Power Flagging’s northern division. Ms. Mohr alleges that, on several occasions between 2016 and 2018, Mr. Gagnon sexually harassed her, sexually assaulted her, and threatened her at work. Among other things, she says he touched her in inappropriate ways, forced her to touch him, and told her she would lose her job if she reported him. Ms. Mohr says she disclosed Mr. Gagnon’s conduct to Power Flagging and IBEW. She alleges that they did not help her. She says IBEW “did nothing” and did not believe her, and Power Flagging ended her employment while protecting itself and Mr. Gagnon.
[3] Each Respondent denies discriminating and applies to dismiss the complaint against them. Power Flagging argues for the complaint’s dismissal under ss. 27(1)(b), (c), (d), (e), (f), and (g) of the Code. Among other things, it says it terminated Ms. Mohr for a non-discriminatory reason; namely, because its northern division closed. It also argues that the Tribunal is not the appropriate venue for Ms. Mohr’s complaint, and that the part of her complaint alleging discrimination before December 18, 2017 was filed late.
[4] Like Power Flagging, IBEW makes its application on various grounds, namely ss. 27(1)(b), (c), (d)(ii), and (f).
[5] For his part, Mr. Gagnon says the complaint against him should be dismissed under s. 27(1)(f) because Ms. Mohr’s allegations were dealt with in a criminal proceeding and he was acquitted of all charges.
[6] For the reasons that follow, I deny the Respondents’ dismissal applications in their entirety, with the exception of IBEW’s application under ss. 27(1)(b) and (c). As I discuss below, due to an oversight during the Tribunal’s processing of the complaint, IBEW was not given a clear opportunity to make submissions regarding the dismissal of the s. 14 complaint against it under ss. 27(1)(b) and (c). The Tribunal will contact the parties with instructions regarding next steps, including an expedited submissions process for IBEW’s application.
[7] To make my decision, I have considered all the information filed by the parties. In my reasons, I only refer to what is necessary to explain what I decided. I make no findings of fact and reach no conclusions regarding the merits of Ms. Mohr’s complaint.
II BACKGROUND
[8] The following information is drawn from the materials provided by the parties. It is set out here as background, not as findings of fact. It is not meant to be an exhaustive summary of the information before me.
[9] Power Flagging provides traffic control, safety, and other related services. Power Flagging’s vice president of finance [VP] says Ms. Mohr was hired in February 2015, subsequently resigned, and was rehired in August 2017. Her employment was terminated effective March 31, 2018. Ms. Mohr submitted four Records of Employment [ROEs] in support of her response to the Respondents’ dismissal applications, which outline the various periods of her employment at Power Flagging and the circumstances in which they ended:
a. An ROE dated August 28, 2015 indicates that Ms. Mohr’s first day worked was February 2, 2015 and last day worked was July 25, 2015. The stated reason for issuing the ROE is “Other,” with comments stating, “No longer has required valid certification to be able to work for us.” The expected date of recall is “Unknown.”
b. An ROE dated November 4, 2016 indicates that Ms. Mohr’s first day worked was April 13, 2016 and last day worked was October 18, 2016. The stated reason for issuing the ROE is “Shortage of work / End of contract or season.” The expected date of recall is “Unknown.”
c. An ROE dated July 27, 2017 indicates that Ms. Mohr’s first day worked was October 31, 2016 and last day worked was July 6, 2017. The stated reason for issuing the ROE is, “Other,” with comments stating, “Fire evacuee.” The stated reason for issuing the ROE is “Shortage of work / End of contract or season.” The expected date of recall is “Unknown.”
d. An ROE dated April 10, 2018 indicates Ms. Mohr’s first day worked was August 1, 2017 and last day worked was January 26, 2018. The stated reason for issuing the ROE is “Shortage of work / End of contract or season.” The expected date of recall is “Not returning.”
[10] When she worked at Power Flagging, Ms. Mohr was a member of IBEW and the terms and conditions of her employment were set out in a collective agreement [Collective Agreement]. The Collective Agreement states that “all Traffic Control Persons hired by the Employer are hired to an ‘on-call’ position.” A WorkSafeBC document filed by Ms. Mohr indicates she was employed as a Traffic Control Person.
A. Events giving rise to complaint
[11] Ms. Mohr and Mr. Gagnon worked together at Power Flagging’s northern division. Ms. Mohr says that, on several occasions between 2016 and 2018, Mr. Gagnon sexually harassed her, sexually assaulted her, and threatened her at work. I discuss Mr. Gagnon’s alleged conduct in more detail below.
[12] The VP says Ms. Mohr made various complaints about her co-workers and they made numerous complaints about her. He says one of her complaints, in March 2017, was about Mr. Gagnon, but he does not say what the complaint was about. The VP says Ms. Mohr raised the complaint with her manager [Manager], who investigated and resolved it to Ms. Mohr’s satisfaction.
[13] Power Flagging says a significant component of the northern division’s work related to a contract with BC Hydro. It says it found out that this contract would not be renewed in late February 2018; as a result, it decided to close the northern division. It says it issued termination notices to all northern division employees in mid-March 2018, including to Ms. Mohr and Mr. Gagnon. It says Ms. Mohr signed her termination notice on March 20 after reviewing it with the Manager. The notice stated that her termination was effective March 31, 2018.
[14] The VP says that, after Power Flagging announced it was closing the northern division, the Manager incorporated her own company, Cariboo Power Flagging, to take over the northern division’s remaining business. He says Cariboo Power Flagging succeeded Power Flagging as the employer and inherited the Collective Agreement. The VP says the Manager invited all northern division employees to apply for work at Cariboo Power Flagging, including Ms. Mohr.
[15] IBEW’s business manager [Business Manager] says Ms. Mohr called and spoke to him about allegations of workplace sexual harassment and assault in the spring or summer of 2018. He says they spoke two or three times. He says that, during the second or third phone call, he told Ms. Mohr that he had spoken to Power Flagging, and the company advised that the police “had told [Ms. Mohr] that no charges had been laid against the alleged harasser.” He says he asked Ms. Mohr to tell him “the name of the officer(s) she had spoken to regarding the sexual assault/harassment, but she would not name them.” He says he “asked her to provide this information, or any information, so that [he] could investigate her allegations,” but she “refused to provide any further details.” He says he subsequently contacted Ms. Mohr to follow up, but was unable to reach her.
[16] The Business Manager says he then referred Ms. Mohr to an assistant business manager at IBEW [ABM]. In her response materials, Ms. Mohr provided what I understand to be printouts or transcripts of text messages with the ABM. The text messages indicate they were in contact in February and March 2018 regarding Ms. Mohr’s allegations against Mr. Gagnon and a related police investigation. For example:
a. On February 14, the ABM inquired into whether Ms. Mohr had filed a police report.
b. On February 27, Ms. Mohr asks, “Did the female officer contact you?” The ABM responds, “A few weeks ago, yes,” and then asks, “Did you go back and complete your statement?” Ms. Mohr responds, “No but I will,” and says “She was going to do an investigation and speak with you first.”
c. On March 20, the ABM tells Ms. Mohr, “I believe the best thing for you is to get a lawyer. This is out of the Union’s scope. This is a criminal matter for the Police to deal with. I wish you the best.”
[17] The Business Manager says the ABM worked for IBEW until September 2020. IBEW’s evidence is that the ABM’s files contain no documentation regarding Ms. Mohr or the subject matter of her discrimination complaint against Mr. Gagnon.
[18] Power Flagging says Ms. Mohr filed a claim with WorkSafeBC in June 2018, which was subsequently accepted [WorkSafe Claim]. It says the WorkSafeBC proceeding related to the allegations set out in Ms. Mohr’s complaint to the Tribunal.
[19] A “Subpoena to a Witness” filed by Ms. Mohr indicates that Mr. Gagnon was charged with sexual assault for the period between June 21, 2016 and January 11, 2018, inclusive, and that Ms. Mohr was subpoenaed on April 26, 2019 to give evidence about the charge in the Provincial Court of British Columbia [Provincial Court Subpoena]. A January 2022 letter from Mr. Gagnon’s lawyer states that his “criminal law matter” was dealt with by way of a trial by a judge of the Supreme Court of British Columbia, which concluded with his acquittal on December 17, 2021.
B. Complaint to the Tribunal
[20] Ms. Mohr filed her complaint on December 18, 2018, making various claims against the Respondents, and listing several grounds of discrimination, including sex, political belief, and physical disability. On December 24, 2018, the Tribunal notified the parties that the sole ground on which the complaint was proceeding was sex. The complaint did not proceed on the grounds of political belief or physical disability.
[21] In August 2019, the Tribunal granted an application by Ms. Mohr to defer further consideration of her sex discrimination complaint until the outcome of Mr. Gagnon’s criminal proceeding. In February 2022, the Tribunal lifted the deferral and moved forward with the document disclosure and dismissal application processes. Mr. Gagnon filed a dismissal application in May 2022, followed by IBEW’s dismissal application in June. Also in June, Power Flagging submitted an amendment to its dismissal application, which it had originally filed in February 2019.
[22] On July 20, 2022, the Tribunal received what appeared to be Ms. Mohr’s document disclosure Form 9.1 along with copies of the documents listed in the form. On August 4, 2022, Ms. Mohr told the Tribunal that the documents filed on July 20 were evidence in support of her response to the dismissal applications, and the Tribunal wrote to all parties to advise accordingly. The Tribunal granted Ms. Mohr a short extension to file the argument portion of her response to the dismissal applications, which she later submitted on August 12. Her submission was comprised of three unsworn statements in letter form (one for each Respondent) and additional supporting documents. On August 25, the Tribunal sent the parties all of Ms. Mohr’s response materials. On August 29, Power Flagging and IBEW filed their reply submissions. Mr. Gagnon did not file a reply.
III ALLEGATIONS
[23] Ms. Mohr is self-represented. Her materials were not prepared by a lawyer. They are somewhat rough and challenging to understand. Parties who represent themselves “face significant barriers in bringing a claim of discrimination,” including not knowing “how to file their complaint in such a way that it will be heard, or in what form evidence is received, believed, or weighed by the Tribunal”: Lord v. Fraser Health Authority , 2021 BCSC 2176 at para. 36. In exercising its gatekeeping function under s. 27(1) of the Code, the Tribunal must account for these and other barriers, which are inherent in our processes: see generally Lord at para. 39. I have taken this approach in this case, particularly in relation to discerning Ms. Mohr’s allegations against the Respondents.
A. Allegations against Mr. Gagnon
[24] Ms. Mohr alleges that, on several occasions between 2016 and 2018, Mr. Gagnon sexually harassed her, sexually assaulted her, and threatened her at work (Letter to Power Flagging at p. 1; see Complaint at pp. 3-5). In her materials, she references various discrete instances of Mr. Gagnon’s alleged behaviour. For example, she accuses him of:
a. Grabbing her breast at work in 2016 (Letter to Power Flagging at p. 2).
b. Sticking his hand down her shirt and into her bra, grabbing her nipple, and squeezing her breast (Letter to Mr. Gagnon at p. 1).
c. Sticking his tongue in her mouth with a chewed up candy (Letter to Mr. Gagnon at p. 1).
d. Telling her “on a daily basis” that he was going to “Fuck [her] some day” (Letter to Mr. Gagnon at p. 1).
e. Threatening to throw her out of a moving vehicle (Letter to Mr. Gagnon at p. 1).
f. Threatening that the Manager would believe him over her if she ever reported what he did (Letter to Mr. Gagnon at p. 1).
g. Urinating “in the hydro yard behind the work truck enough that [he was] on [her] side of the truck” so she could see him in her rearview mirror (Letter to Mr. Gagnon at p. 2).
h. Making her take her seat belt off and sit beside him in the truck, and then taking her hand and putting it “on his private parts” (Letter to Power Flagging at p. 1).
[25] In addition, Ms. Mohr describes a shift she worked with Mr. Gagnon in or around January, 2018. She says that, during the shift, she “was made to stand for nine hours at the bottom of a hill without any washroom breaks, food or drink”(Letter to Mr. Gagnon at p. 1). She says she had a “dizzy spell after work while walking up the steep hill to get to the work truck” (Letter to Mr. Gagnon at p. 1). She accuses Mr. Gagnon of falsely reporting to the Manager that she had dizzy spells on the job and sent traffic without letting him know (Letter to Mr. Gagnon at pp. 1-2).
B. Allegations against Power Flagging
[26] Ms. Mohr says she disclosed Mr. Gagnon’s conduct to Power Flagging, but the company did not help her (Complaint at p. 8). She alleges that Power Flagging terminated her employment while protecting itself and Mr. Gagnon (Complaint at pp. 7-8).
[27] In her materials, Ms. Mohr says she told the Manager about Mr. Gagnon “grabbing [her] breast” in 2017 (Letter to IBEW, p. 1). Elsewhere in her materials, she says she disclosed Mr. Gagnon’s “sexual touching and inappropriate behaviour” to the Manager in March 2017 (Letter to Power Flagging at p. 1), at which time the Manager told her “to make sure next time it happens” to report it immediately (Letter to Power Flagging at p. 1). She says Mr. Gagnon was then assigned to work with someone else; however, she was later “placed to work with Mr. Gagnon again,” at which point his “behaviour became worse” (Letter to Power Flagging at p. 1).
[28] She asserts that Mr. Gagnon was protected by people in positions of power (Letter to Power Flagging at p. 1). She says the Manager’s husband was the IBEW shop steward and was best friends with Mr. Gagnon, and the Manager told her not to talk to the shop steward about Mr. Gagnon (Letter to Power Flagging at pp. 1-2). She says the Manager “took [Mr. Gagnon’s] word for it in regard to the dizzy spells” and told her it was suggested she take an extended medical leave at that time (Letter to Mr. Gagnon at p. 2). She said she did not work again after January 26, 2018. She says the Manager told her there was no work for her, even though other employees were seen working (Letter to Power Flagging at p. 2). She accuses the Manager of protecting Mr. Gagnon and denying “ever [being] told about any assaults” (Complaint at p. 7).
[29] Ms. Mohr says she also “disclosed sexual assaults” in March 2018 (Complaint at p. 7), but she does not say to whom. She alleges that Power Flagging continued to operate under a different name after she received her termination notice (Complaint at p. 5). She alleges that everyone in the union continued working, while she received an ROE in April 2018 stating that she was “not returning” (Letter to Power Flagging at p. 2). She alleges that she lost her employment because she came forward about sexual assaults at work (Complaint at p. 7).
C. Allegations against IBEW
[30] Ms. Mohr says she disclosed Mr. Gagnon’s conduct to IBEW, but the union did not help her and treated her in a way that was “abusive and degrading” (Complaint at pp. 3-4). In her materials, she uses the word “misrepresentation” to describe IBEW’s alleged failure to help her. I find this to be an incorrect use of the word, which is unhelpful in understanding her complaint, and so I have not used it in this decision.
[31] Ms. Mohr says IBEW did not believe or support her. In her materials, she says the Business Manager was supportive the first time they spoke; however, when she subsequently phoned to tell him charges were approved against Mr. Gagnon, he called her a liar and told her she was “full of shit,” saying that he had been told there were no such charges (Complaint at p. 6). Ms. Mohr says she also reported the charges to IBEW’s legal counsel, but was told the only way the union could help was if there were problems with WorkSafeBC (Letter to IBEW at p. 1). She says IBEW told her Mr. Gagnon’s conduct “was a criminal matter,” which was “something [IBEW] was not able to deal with” (Complaint at p. 6).
IV DECISION
[32] The Respondents applied separately to dismiss Ms. Mohr’s complaint. I will address each dismissal application in turn, beginning with Power Flagging’s and ending with Mr. Gagnon’s.
A. Power Flagging
[33] Power Flagging applies to dismiss the complaint against it on five grounds; however, the submissions in support of its dismissal application are structured around three broad assertions. First, it asserts that parts of the complaint are out of time, referencing s. 27(1)(g) of the Code. Second, it asserts that the Tribunal is not the appropriate venue. This assertion seems to be connected to s. 27(1)(f). Third, Power Flagging asserts that the complaint has no reasonable prospect of success, referencing ss. 27(1)(b), (c), and (d) in this part of its submissions.
[34] In addition, in its June 2022 amendment submission, Power Flagging says it is open to the Tribunal to conclude that the complaint was filed for improper motives or in bad faith under s. 27(1)(e).
[35] I will begin by addressing Power Flagging’s assertion that parts of the complaint are out of time.
1. Should the allegations regarding events that occurred before December 18, 2017 be dismissed under s. 27(1)(g)?
[36] There is a one-year time limit for filing a human rights complaint: Code, s. 22. Ms. Mohr’s complaint was filed on December 18, 2018. Power Flagging says the parts of the complaint alleging discrimination before December 18, 2017 (i.e., outside the one-year time limit) were filed late and should be dismissed under s. 27(1)(g).
[37] Under s. 22(2) of the Code, allegations falling outside the time limit are late, unless they form part of an alleged continuing contravention with a timely allegation. Power Flagging makes no arguments about whether the complaint alleges a timely continuing contravention. Nor is it Power Flagging’s burden to do so. The burden is on Ms. Mohr to establish that her allegations form part of a continuing contravention: Dove v. GVRD and others (No. 3), 2006 BCHRT 374 at para. 38. For the following reasons, I am satisfied she has done so.
[38] To determine whether a complaint alleges a continuing contravention, the Tribunal must first assess whether the complaint alleges acts or omissions, falling within the preceding one-year period, which pass the “arguable contravention test,” meaning they could, if proven, contravene the Code: see Chen v. Surrey (City), 2015 BCCA 57 at para. 23. In Ms. Mohr’s case, I must assess whether her complaint puts forward an arguable contravention on or after December 18, 2017. Power Flagging does not dispute that her employment was terminated during this time period. However, its position seems to be that her termination could not, even if proven, contravene the Code. Ms. Mohr, on the other hand, alleges that her termination was discriminatory. In her complaint, she alleges that she lost her employment because she came forward about Mr. Gagnon’s sexual misconduct.
[39] Power Flagging acknowledges that Ms. Mohr alleges she was dismissed as a result of disclosing assaults and harassment. But it argues that there is no evidence supporting this allegation; rather, the evidence shows an entirely non-discriminatory reason for her termination. Further, Power Flagging argues that, even if Ms. Mohr’s allegation is true, it “does not fall within the categories of discrimination outlined in the Code .” I disagree.
[40] I am satisfied that Ms. Mohr’s allegation passes the arguable contravention test. The threshold for passing this test is low: Gichuru v. Vancouver Swing Society, 2021 BCCA 103 at para. 56. An employee alleging discrimination related to a protected characteristic must only allege facts that could establish they experienced an adverse impact in their employment connected to the protected characteristic: see, e.g., The Worker v. The Company and another, 2019 BCHRT 235 at para. 36. Ms. Mohr’s allegation meets this threshold. Her complaint alleges that her co-worker engaged in sex discrimination (in the form of sexual misconduct against her) at work, she reported this to Power Flagging management, and she lost her job at Power Flagging in March 2018 as a result. In other words, her complaint alleges that a matter inherently linked to her sex (i.e., her report of sex discrimination) was a factor in an adverse impact in her employment (i.e., her loss of employment). This allegation, if proven, could contravene the Code.
[41] I therefore find that Ms. Mohr’s allegation regarding her termination, while unproven at this stage of the complaint process, is a timely allegation of discrimination capable of anchoring a continuing contravention. Power Flagging’s submissions on the merits of this allegation are not relevant to my analysis here, because arguable contravention determinations are made without reference to a respondent’s explanation or evidence.
[42] But the continuing contravention analysis does not end there. To allege a continuing contravention is to allege discrimination that is ongoing, successive, or repetitive: Rush v. Fraser Health Authority (No. 2) ,2024 BCHRT 13 at para. 32; see generally School District v. Parent obo the Child , 2018 BCCA 136. For allegations falling outside the time limit to form part of a continuing contravention with an allegation falling within it, the earlier allegations must be of the same or similar character as the later allegation: Rushat para. 51; see generally Dove at paras. 11-33 and School Districtat paras. 46-65.
[43] Ms. Mohr’s complaint alleges repeated instances of sexual misconduct by her co-worker, Mr. Gagnon, between 2016 and 2018. And she alleges that, during that time, her employer, Power Flagging, did not help her, despite her having reported the misconduct to management. Ms. Mohr’s evidence is that, even after reporting Mr. Gagnon’s alleged sexual misconduct, Power Flagging assigned her to work with him, at which point his behaviour became worse. She alleges that Power Flagging protected itself and Mr. Gagnon, while doing nothing for her and even denying that she had reported the misconduct. On the materials before me, I am satisfied that Ms. Mohr’s allegations share a common character with her timely allegation regarding her termination, in that they all relate to Mr. Gagnon’s alleged sex discrimination and Power Flagging’s allegedly inadequate or inappropriate response to it: see Hawknes v. Vancouver Public Library , 2016 BCHRT 125 at para. 25; Mr. C v. Vancouver Coastal Health Authority and another , 2021 BCHRT 22 at para. 132. I therefore find that Ms. Mohr’s complaint alleges a timely continuing contravention.
[44] In the absence of any evidence or argument regarding the exact date of Ms. Mohr’s first allegation of sex discrimination, I find that the alleged continuing contravention dates back to April 13, 2016, which her ROE evidence indicates was her initial day worked that year. I acknowledge that Ms. Mohr’s materials lack specific dates for most of her claims. However, given her broad allegation of experiencing sexual harassment, sexual assault, and related threats “on several occasions from 2016 to 2018,” I am satisfied that she alleges sex discrimination at Power Flagging throughout each of the various periods of her employment during that period. Power Flagging is potentially liable for any discriminatory behaviour of Mr. Gagnon in the course of his employment during those periods, even in the absence of knowledge of the discrimination: Curken v. Gastronome Enterprises , 2023 BCHRT 2 at paras. 52-60; see generally Janzen v. Platy Enterprises Ltd. , [1989] 1 S.C.R. 1251 and Robichaud v. Canada (Treasury Board), [1987] 2 SCR 84.
[45] Overall, while Ms. Mohr’s complaint could have been more specific about dates, under the circumstances and considering the preliminary stage of the complaint process, I am satisfied that Power Flagging has sufficient notice of the sex discrimination complaint it must meet. In this regard, I am mindful that an efficient human rights complaint process requires the Tribunal to be cautious in winnowing out complaints that are imperfectly brought, but which may have merit: see Lordat para. 38 and PL v. BC Ministry of Children and Family Development and others , 2023 BCHRT 58 at paras. 30-31; see also Chidley v. BC Housing and another , 2020 BCHRT 51 at para. 53.
[46] Finally, given the ongoing nature of the sex discrimination alleged, in the circumstances of this case and on the submissions filed, I am satisfied there are no significant time gaps that might outweigh the information before me establishing that Ms. Mohr’s sex discrimination allegations form part of an alleged continuing contravention: Braun v. Avcorp Industries Inc. , 2023 BCHRT 167 at para. 39.
[47] Power Flagging’s application to dismiss under s. 27(1)(g) is denied.
2. Should the complaint against Power Flagging be dismissed under s. 27(1)(f)?
[48] Section 27(1)(f) of the Code allows the Tribunal to dismiss a complaint, or a part of it, if “the substance of the complaint or that part of it has been appropriately dealt with in another proceeding.” Power Flagging seeks the dismissal of Ms. Mohr’s complaint against it under this section of the Code. More broadly, it asserts that the Tribunal is not the appropriate venue for Ms. Mohr’s allegations.
[49] Power Flagging says that, as a member of IBEW, Ms. Mohr has access to the grievance procedure under the Collective Agreement for the purpose of addressing any issues arising out of her employment, including discrimination issues under the Code. It says this is the most appropriate method of dispute resolution in the circumstances of this case.
[50] In addition, Power Flagging argues that the same matters raised in Ms. Mohr’s complaint are or were the subject of two other proceedings. I will begin my analysis by addressing these two other proceedings.
[51] First, Power Flagging says Ms. Mohr pursued criminal charges against Mr. Gagnon. In its initial dismissal application, it said the criminal proceeding would determine the validity of Ms. Mohr’s complaint against Mr. Gagnon, and was the most appropriate venue for resolving her allegations of sexual assault and uttering threats. In its more recent amendment submission, based on documents filed by Mr. Gagnon, Power Flagging notes that Mr. Gagnon was acquitted of the criminal charges against him on December 17, 2021.
[52] Second, Power Flagging refers to the WorkSafe Claim. It assert that WorkSafeBC was investigating the WorkSafe Claim, which was understood to be the same as or substantially similar to the allegations in Ms. Mohr’s complaint to the Tribunal.
[53] The principles underlying s. 27(1)(f) flow from the doctrines of issue estoppel, collateral attack, and abuse of process, and include finality, fairness, and protecting the integrity of the administration of justice by preventing unnecessary inconsistency, multiplicity, and delay: British Columbia (Workers’ Compensation Board) v. Figliola , 2011 SCC 52 [Figliola] at paras. 25-36; Kolof v. Vancouver Board of Education, Vancouver School District 39 , 2022 BCHRT 86 at para. 262. Given these doctrines and underlying principles, when deciding whether the substance of a complaint has been appropriately dealt with in another proceeding under s. 27(1)(f), the Tribunal asks itself (1) whether there was concurrent jurisdiction in the other proceeding to decide human rights issues under the Code, (2) whether the legal issue decided in that proceeding was essentially the same as the complaint before the Tribunal, and (3) whether there was an opportunity in that proceeding for the complainant to know and argue the case they had to meet, regardless of whether the procedure in that proceeding mirrored the Tribunal’s: Figliola at para. 37; Kolof at para. 261; Champagne v. Synergy Day Spa and another, 2023 BCHRT 180 at para. 54. Power Flagging has not addressed any of these considerations, legal doctrines, or underlying principles in its arguments.
[54] Nor has any party provided me with sufficient information or evidence to make an informed, reasoned decision under s. 27(1)(f). I have only the following documentary evidence before me regarding the criminal proceeding:
a. Four pages from what appears to be a 31-page transcript in a “Report to Crown Counsel.” The transcript appears to be of a police interview on July 13, 2018, in which Ms. Mohr describes instances of Mr. Gagnon’s alleged sexual misconduct and related threats of violence at work.
b. The Provincial Court Subpoena.
c. The lawyer’s letter stating that Mr. Gagnon’s “criminal law matter” went to trial and he was “acquitted of all of the charges found on the copy of the Indictment filed on August 16, 2019.”
d. A “Supreme Court Record of Proceedings and Endorsement of Indictment,” which indicates that there were six charges against Mr. Gagnon, but does not specify what they were. The document shows that Mr. Gagnon plead not guilty in BC Supreme Court on May 17, 2021 and was then acquitted on each charge on December 21, 2021.
[55] There is no evidence before me detailing the particulars of the charges against Mr. Gagnon. There are no records describing the Court’s findings of fact in Mr. Gagnon’s case or the reasons for his acquittal. There is no evidence as to whether the Court engaged in a human rights analysis, applied the provisions of the Code , or even considered Ms. Mohr’s sex discrimination allegations in disposing of Mr. Gagnon’s case. In sum, the information before me is not sufficient to allow an assessment of whether the substance of Ms. Mohr’s discrimination complaint (or a part of it) was appropriately dealt with in the criminal proceeding.
[56] The parties have provided even less evidence regarding the WorkSafe Claim. Ms. Mohr vaguely references it in her materials, and includes one page from a WorkSafeBC “Psychology Assessment Report,” dated November 6, 2019. Power Flagging provides the VP’s statement that he had been told the WorkSafe Claim was regarding the allegations in Ms. Mohr’s discrimination complaint. The VP purports to include a copy of the WorkSafe Claim as an exhibit to his statement, but instead attaches a copy of Ms. Mohr’s discrimination complaint. This information does not help me determine whether the substance of Ms. Mohr’s complaint (or a part of it) was appropriately dealt with in the WorkSafe Claim.
[57] I note that, even if Power Flagging had provided a copy of the WorkSafe Claim, it likely would not have been enough, given Power Flagging’s failure to properly address any of the considerations, legal doctrines, or principles at play under s. 27(1)(f) of the Code in its submissions.
[58] Finally, as I discussed above, Ms. Mohr’s complaint against Power Flagging is about her co-worker’s alleged sex discrimination at work and Power Flagging’s allegedly inappropriate response to it. Despite the availability of the grievance procedure under the Collective Agreement, the Tribunal is a proper venue for Ms. Mohr’s complaint.
[59] In a dismissal application, the burden is on the respondent to show the Tribunal it should dismiss the complaint and, as a consequence, foreclose the complainant’s right to an oral hearing: Larssen v. City of Port Coquitlam and others (No. 2) , 2005 BCHRT 548 at para. 19. Power Flagging has not met this burden in its application under s. 27(1)(f). Its application to dismiss under s. 27(1)(f) is denied.
3. Should the complaint against Power Flagging be dismissed under ss. 27(1)(b), (c), or (d)?
[60] The third broad assertion in Power Flagging’s dismissal application is that the complaint has no reasonable prospect of success. In this part of its application, Power Flagging says the complaint should be dismissed under ss. 27(1)(b), (c), and (d) of the Code.
[61] Section 27(1)(b) gives the Tribunal discretion to dismiss all or part of a complaint that does not pass the “arguable contravention test” discussed above. Section 27(1)(c) gives the Tribunal discretion to dismiss complaints that have no reasonable prospect of success and therefore do not warrant the time and expense of a hearing: Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at paras. 22-26, leave to appeal ref’d [2006] S.C.C.A. No. 171; Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27 [Hill]. Section 27(1)(d) allows the Tribunal to dismiss a complaint where proceeding with it would not benefit the complainant or would not further the purposes of the Code.
[62] Most of Power Flagging’s submissions under these sections of the Code relate to grounds of discrimination that were rejected by the Tribunal when it accepted Ms. Mohr’s complaint as proceeding on the sole ground of sex. In this decision, I only address Power Flagging’s submissions regarding Ms. Mohr’s complaint of sex discrimination, because that is the complaint before me.
a. Loss of employment
[63] As I outlined above, Power Flagging acknowledges that Ms. Mohr alleges she was dismissed as a result of disclosing Mr. Gagnon’s conduct. It says, however, that even if this allegation is true, it “does not fall within the categories of discrimination outlined in the Code .” This is an argument under s. 27(1)(b), which I have already rejected above in my continuing contravention analysis. The allegation that Ms. Mohr reported Mr. Gagnon’s sexual misconduct to Power Flagging and this was a factor in the termination of her employment, could, if proven, contravene the Code.
[64] Power Flagging also says Ms. Mohr’s allegation regarding her termination should be dismissed under ss. 27(1)(c) and (d). It argues that Ms. Mohr “offers no facts or support for this allegation.” Further, it says it has provided evidence of an entirely non-discriminatory reason for her termination. Power Flagging asserts that Ms. Mohr was dismissed for valid business reasons and in a non-discriminatory way. It asserts that she was terminated at the same time as all of her co-workers as a result of the closure of the northern division. Power Flagging says a text message exchange disclosed by Ms. Mohr supports these assertions, in that it confirms that all northern division employees were terminated. Power Flagging says Ms. Mohr’s claims against Mr. Gagnon played no part in its decision to terminate her employment. It argues that Ms. Mohr’s allegation that she lost her job because she came forward about sexual misconduct “does not rise above mere speculation, which is not sufficient to found a complaint under the Code.” This is an argument under s. 27(1)(c).
[65] Under s. 27(1)(c), my task is to look at the information filed by the parties to decide if there is no reasonable prospect that findings of fact supporting the part of the complaint alleging discrimination in Ms. Mohr’s loss of employment could be made on a balance of probabilities after a hearing of the evidence: Berezoutskaia at para. 22. For this part of Ms. Mohr’s complaint to succeed at a hearing, she would need to prove that her sex was a factor in the loss of her employment at Power Flagging: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33. The onus is on Power Flagging to persuade me she has no reasonable prospect of doing so: Paulsen v. BC Hydro and another , 2020 BCHRT 75 at para. 11. I find that it has not met this onus.
[66] I appreciate that Power Flagging has provided a sworn statement from the VP asserting that the decision to close the northern division was the sole reason for terminating Ms. Mohr’s employment. In support of this assertion, Power Flagging has provided Ms. Mohr’s signed termination notice, and points to her text message evidence, in which an unidentified person states, in a March 20, 2018 message, that Power Flagging’s northern division would no longer be operational as of March 31 and so all employees were being let go. On the other hand, Ms. Mohr’s evidence regarding her termination is mostly comprised of her own unsworn descriptions of the surrounding circumstances, as set out in her complaint form and response materials. However, especially because Ms. Mohr is self-represented, fairness requires me to look past differences in the parties’ presentations of their evidence to assess the real merits of the dismissal application before me: Becker v. Cariboo Chevrolet Oldsmobile Pontiac Buick GMC Ltd. (No. 2), 2004 BCHRT 80 at para. 57.
[67] Ms. Mohr’s evidence is that, in March 2018, she “disclosed sexual assaults” and “was given a paper stating [Power Flagging’s northern division] was closing … Mar 31.” I do not interpret this as evidence that she received a termination notice at that time because she had reported sexual misconduct. What concerns me is her evidence about what happened after. She says that “every other person who was employed under the union continued to work,” but she received an ROE stating she was not returning. This statement is not disputed in Power Flagging’s evidence. In my view, it takes this part of the complaint out of the realm of conjecture: Hill at para. 27. If Ms. Mohr proves this timeline of events at a hearing, it could reasonably give rise to an inference that her sexual assault report in March 2018 factored into her not continuing to work through the closure and/or transfer of the northern division business: see Parry v. Vanwest College Ltd. , 2005 BCHRT 310 at paras. 63-65. The VP’s equivocal and seemingly second hand evidence that, “to the best of [his] knowledge, Ms. Mohr did not apply for employment at Cariboo Flagging,” does not adequately address my concerns regarding this timeline. Nor does a witness letter in Mr. Gagnon’s materials, which states that the Manager told Ms. Mohr she needed a doctor’s note to apply, to which Ms. Mohr responded that she was “not going to bother.” In this regard, I note that Ms. Mohr’s text message evidence shows her asking to work on several occasions in 2018, including in March of that year. In my view, the materials before me could support a finding that Ms. Mohr wanted to continue working.
[68] Finally, I note that there are gaps and discrepancies in the circumstantial evidence surrounding Ms. Mohr’s termination, which raise questions as to what actually happened at that time, and ought to be resolved at a hearing. The VP’s evidence is that, after Power Flagging announced the northern division was closing, the Manager’s company, Cariboo Power Flagging, took over the remaining business. In contrast, Ms. Mohr’s evidence is that Power Flagging continued to operate after she received her termination notice, but under a different name. I also observe that the Business Manager’s evidence is that Ms. Mohr was employed at “Cariboo Traffic & Safety Services Ltd. (formerly named Power Flagging and Traffic Control Inc.),” and that this company “became certified to [IBEW] in 2009.” Power Flagging did not file a statement from the Manager or documentation of the sale or transfer of its northern division business. There is no documentary evidence before me corroborating that the business passed to Cariboo Power Flagging, nor is there any evidence before me specifying when, exactly, it passed, if it did. The evidence is not even clear as to whether Power Flagging and Cariboo Power Flagging are different companies, or whether they are the same or related.
[69] Power Flagging’s application to dismiss the part of the complaint alleging discrimination in Ms. Mohr’s loss of employment under s. 27(1)(c) is denied.
[70] In addition, I decline to exercise my discretion to dismiss this part of the complaint under s. 27(1)(d).
[71] Under s. 27(1)(d), a respondent must establish that proceeding with the complaint against them would not benefit the complainant or would not further the Code’s purposes. In its original application, Power Flagging asserts that Ms. Mohr’s allegation regarding her dismissal “will not further the purposes of the Code if allowed to proceed.” But it does not explain this assertion, let alone show me why I should accept it – and so I do not.
[72] At the end of its reply submission, Power Flagging says Ms. Mohr “will not benefit from proceeding” with her complaint. It argues that Ms. Mohr “specifically states as much,” referencing the statement in her evidence that she has “nothing to gain by coming forward” with her complaint. The following is an excerpt from the part of Ms. Mohr’s evidence in which she makes this statement:
I am well aware that this has happened to others and I wanted support and unfortunately everyone still speaks of Mr. Gagnon. My son died and I am still fighting [.] I went to find out the [court] decision … on his birthday. I honestly have nothing to gain by coming forward. I have been threatened, I have been called a liar [.] I was on [the] stand for four days straight having my testimony twisted and turned. I have had people approach me. I have had [the Manager] go to a previous employee telling him that I was charging him with sexual assault. He was one of the people I had told in 2016 after [Mr.] Gagnon had grabbed my breast at work. I question why even though he has been acquitted why there is the assumption that he is not guilty. I didn’t specify sexual assault in my first documentation, I specified sexual harassment (Letter to Power Flagging at p. 2).
[73] I am not persuaded that this statement, on its own, establishes that proceeding with Ms. Mohr’s complaint will not benefit her or further the purposes of the Code.
[74] Power Flagging’s application to dismiss under s. 27(1)(d) is denied.
b. Sexual misconduct
[75] In addition to questioning Ms. Mohr’s prospect of proving discrimination related to the termination of her employment, Power Flagging seems to question her prospect of proving her underlying claim that Mr. Gagnon sexually harassed and assaulted her at work. In particular, in its amendment submission, Power Flagging takes issue with a document filed by Ms. Mohr, which appears to be an email statement from her daughter, dated March 23, 2022. I note that I have not found it necessary to rely on this statement to make my decision on the Respondents’ applications.
[76] The statement begins as follows:
I am writing this letter today to inform you of how much of an impact this trauma and sexual assault while working for Power Flagging has made on my mom Jeannie Mohr.
She has disclosed to me the sexual acts that Gillis (sic) did towards her while on the job, and the fear for her life on many occasions. She constantly felt scared to come forward or protect herself because of the threats he had made towards here.
[77] Power Flagging says Ms. Mohr has provided no salient evidence that the “sexual acts” referenced in this statement occurred at work, in relation to her job, or at all. It says these acts did not happen. It says Mr. Gagnon was acquitted of all criminal charges against him.
[78] As I discussed above, there is no evidence before me detailing the particulars of the charges against Mr. Gagnon, describing the Court’s findings of fact or the reasons for Mr. Gagnon’s acquittal, or confirming whether the Court engaged in a human rights analysis, applied the provisions of the Code, or considered Ms. Mohr’s sex discrimination allegations in Mr. Gagnon’s criminal proceeding. The information before me regarding the criminal proceeding is not helpful to my decision-making regarding the Respondents’ dismissal applications.
[79] I am therefore left with Ms. Mohr’s descriptions of what she says Mr. Gagnon did, and his adamant denials of her allegations. His evidence is that, “None of Ms. Mohr’s complaint is true. It did not happen.” He says the first time he met Ms. Mohr he declined her attempt to hug him. He says his employer told her to keep her hands to herself. He says she tried to rub his shoulders from behind at a company Christmas party. Mr. Gagnon filed letters from friends and/or colleagues, in which they state that he is a great person, he resisted Ms. Mohr’s attempt to give him a shoulder massage at a Christmas party in 2017, and they have never seen or heard him do or say anything inappropriate.
[80] In my view, Mr. Gagnon’s alleged conduct, if proven, could amount to sexual harassment or other forms of sex discrimination in employment within the meaning of the Code. In this regard, I note that sex discrimination is a broad concept encompassing a wide range of behaviour: Janzenat p. 28. Sex discrimination need not be inherently or overtly sexual: see The Sales Associate v. Aurora Biomed Inc. and others (No. 3) , 2021 BCHRT 5 at paras. 112-121; see also Ms. L v. Clear Pacific Holdings Ltd. and others , 2024 BCHRT 14 and Loiselle v. Windward Software Inc. (No. 2), 2021 BCHRT 7. In employment, sex discrimination can include conduct that leverages or reinforces gendered power hierarchies in the workplace, such as acts or omissions that humiliate, subjugate, blame, or intimidate: see Ms. L at paras. 8-9; see also The Sales Associate at para. 116.
[81] Whether or not Mr. Gagnon sexually harassed Ms. Mohr, sexually assaulted her, or threatened her at work, is a key question in her complaint. The materials before me do not include corroborating eyewitness evidence either way; it is essentially one person’s word against another’s. This type of scenario is extremely ill suited for a preliminary dismissal application. The credibility of Ms. Mohr’s evidence about what happened, versus Mr. Gagnon’s evidence, is a foundational issue that must be decided at a hearing: Francescutti v. Vancouver (City), 2017 BCCA 242 at para. 67.
[82] In sum, then, Power Flagging’s application under ss. 27(1)(b),(c), and (d) is denied.
4. Should the complaint against Power Flagging be dismissed under s. 27(1)(e)?
[83] Finally, there is Power Flagging’s suggestion, in its amendment submission, that it is open to the Tribunal to conclude that the complaint was filed for improper motives or in bad faith under s. 27(1)(e). Power Flagging says the Tribunal may reach this conclusion based on the daughter’s statement “on its own and when considered in connection with the witness statements disclosed by [Mr.] Gagnon which include allegations against [Ms. Mohr].” Power Flagging says the daughter’s statement “purports to describe the impact of [Mr. Gagnon’s] alleged ‘sexual acts … on the job,” despite having been written several months after Mr. Gagnon was acquitted of all criminal charges. Power Flagging also seems to take issue with the following paragraph from the statement:
When she did come forward to [the Manager] her boss at Power Flagging about the inappropriate manner and sexual abuse while working with Gillis (sic), Jeannie disclosed and showed me documentation that she was offered to go on Medical Leave but no other action or investigation was made towards Gillis (sic) by the company about these multiple occasions of sexual assault while working in rural areas and in the work vehicle (emphasis added).
[84] Power Flagging says it offered Ms. Mohr extended medical leave because of her dizzy spells; it disputes any purported connection to Ms. Mohr’s allegations against Mr. Gagnon.
[85] The suggestion that a complaint was filed in bad faith or for improper motives is a serious charge and should not be made lightly. A complaint may be dismissed under s. 27(1)(e) where, for example, it is found to have been brought dishonestly or predominantly for some ulterior, deceitful, or vindictive purpose, such as to punish or injure another party: see Pivot Legal Society v. Downtown Vancouver Business Improvement Association and another , 2009 BCHRT 229 at para. 109; Lungu v. B.C. (Min. of Children and Family Development) (No. 2) , 2011 BCHRT 341 at para. 19. The threshold for granting a preliminary application to dismiss under s. 27(1)(e) is high; the circumstances justifying such a dismissal are rare: see Kubiny v. Nationwide Laminate Warehouse , 2014 BCHRT 100 at para. 31. The Tribunal exercises its discretion to dismiss a complaint for improper motives cautiously, and only in the clearest of cases: Yaniv v. Various Waxing Salons (No. 2), 2019 BCHRT 222 at para. 106. Power Flagging has not shown me that this is one of those cases. It has not stated outright that Ms. Mohr filed her complaint dishonestly or for some improper purpose, and I am not satisfied that Ms. Mohr’s disclosure of her daughter’s statement – the accuracy of which must be determined at a hearing – is evidence of such impropriety.
[86] I decline to dismiss the complaint under s. 27(1)(e). In sum, Power Flagging’s application to dismiss is denied in its entirety.
B. IBEW
[87] Ms. Mohr’s complaint against Power Flagging and Mr. Gagnon was made under s. 13 of the Code, which deals with discrimination in employment. In contrast, her complaint against IBEW was made under s. 14, which deals with discrimination in union membership. On her complaint form, Ms. Mohr specifically identified “unions and occupational associations” as the area of discrimination that applied to her complaint against IBEW (Complaint at p. 3). Regrettably, however, in its December 24, 2018 “Notice of Complaint Proceeding” to the parties, the Tribunal indicated that the complaint was proceeding only under s. 13. This was an oversight, for which the Tribunal apologizes.
[88] A union’s liability under s. 14 is different than its liability under s. 13. These differences impact the analysis under ss. 27(1)(b) and (c). As a result, in a dismissal application under these subsections, the evidence and argument put forward regarding a s. 14 complaint may be different from that advanced in a s. 13 complaint. IBEW filed its dismissal application after receiving notice from the Tribunal that the complaint against it was in the area of employment under s. 13. This was not accurate. As a result of this oversight, I have determined that IBEW was not given a clear opportunity to make submissions regarding the dismissal of the s. 14 complaint against it under ss. 27(1)(b) and (c).
[89] On the other hand, in the circumstances of this case, I have determined that the Tribunal’s oversight did not impact IBEW’s opportunity to make submissions under ss. 27(1)(d)(ii) and (f). I have therefore considered IBEW’s dismissal application under these provisions, and deny it for the following reasons.
[90] Like Power Flagging, IBEW asserts that the Tribunal is not the appropriate venue for Ms. Mohr’s allegations against it. IBEW says Ms. Mohr was a union member with a collective agreement and a grievance procedure that she chose not to engage. Further, it says Ms. Mohr had access to s. 12 of the Labour Relations Code to pursue a remedy for the union’s alleged failure to help her. It says the BC Labour Relations Board is the appropriate venue for her allegations against it, not the Tribunal. In addition, IBEW says the substance of Ms. Mohr’s complaint against it was appropriately dealt with in Mr. Gagnon’s criminal proceeding.
[91] Ms. Mohr’s complaint against IBEW is about the union’s allegedly inappropriate response to her disclosure of alleged sex discrimination in her workplace. She says this was discrimination against her (a union member) by IBEW (her union). Under ss. 27(1)(b) and (c), IBEW may argue that the acts and omissions alleged in Ms. Mohr’s complaint do not contravene s. 14 of the Code and that there is no reasonable prospect that the complaint will succeed. As I set out below, IBEW will have an opportunity to make these arguments. In the meantime, however, I reject the unsupported notion that the Tribunal is not an appropriate venue for Ms. Mohr’s allegations simply by virtue of her access to s. 12 of the Labour Relations Codeand the grievance procedure under the Collective Agreement.
[92] Further, IBEW has not explained to me how Mr. Gagnon’s criminal proceeding appropriately dealt with the substance of her discrimination complaint against it. In my view, it would be very unusual for the Court to have considered or decided her allegations against IBEW in the context of Mr. Gagnon’s criminal trial.
[93] Like Power Flagging, IBEW failed, in its submissions, to address any of the considerations, legal doctrines, or principles at play under s. 27(1)(f). Nor has it explained or cited any authorities related to s. 27(1)(d)(ii) to establish that proceeding with Ms. Mohr’s complaint would not further the purposes of the Code. It has not met its burden of showing me I should dismiss the complaint on these grounds.
[94] IBEW’s application to dismiss under ss. 27(1)(d)(ii) and (f) is denied.
[95] The Tribunal will contact the parties with instructions regarding next steps, including an expedited submissions process on IBEW’s application to dismiss the complaint under ss. 27(1)(b) and (c).
C. Mr. Gagnon
[96] The final application to dismiss Ms. Mohr’s complaint comes from Mr. Gagnon. He applies to dismiss her complaint against him under s. 27(1)(f). He says this matter was dealt with in court, where he was found not guilty of all charges and was acquitted on December 17, 2021. He says Ms. Mohr’s allegations against him were found to be false.
[97] I have already discussed the materials before me regarding Mr. Gagnon’s criminal proceeding, and found that no party provided me with sufficient information or evidence to make an informed decision under s. 27(1)(f). As I have said, there is no evidence before me detailing the particulars of the charges against Mr. Gagnon, describing the Court’s findings of fact or the reasons for Mr. Gagnon’s acquittal, or confirming whether the Court engaged in a human rights analysis, applied the provisions of the Code, or even considered Ms. Mohr’s sex discrimination allegations in Mr. Gagnon’s criminal proceeding. The information before me is not sufficient to allow an assessment of whether the substance of Ms. Mohr’s discrimination complaint against Mr. Gagnon was appropriately dealt with in his criminal proceeding. Moreover, like Power Flagging and IBEW, Mr. Gagnon has not addressed any of the considerations at play under s. 27(1)(f) in his submissions. He has not met his burden of showing me I should dismiss the complaint against him on this ground.
[82] Mr. Gagnon’s application to dismiss under s. 27(1)(f) is denied.
V CONCLUSION
[98] Power Flagging’s application to dismiss is denied in its entirely. Mr. Gagnon’s dismissal application is also denied. Ms. Mohr’s complaint against Power Flagging and Mr. Gagnon will proceed to a hearing.
[99] IBEW’s application to dismiss under ss. 27(1)(d)(ii) and (f) is denied. The Tribunal will decide IBEW’s application to dismiss under ss. 27(1)(b) and (c) following an expedited submissions process. The Tribunal will contact the parties regarding next steps.
Jonathan Chapnick
Tribunal Member