Bigam by MacDonald v. Board of Education of School District No. 23 (Central Okanagan) and others, 2024 BCHRT 288
Date Issued: October 9, 2024
File: CS-001025
Indexed as: Bigam by MacDonald v. Board of Education of School District No. 23 (Central Okanagan) and others, 2024 BCHRT 288
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:
Faith Bigam (by Danielle MacDonald)
COMPLAINANT
AND:
Board of Education of School District No. 23 (Central Okanagan)
and Kathy Weninger and Kathryn Lafontaine
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c), 27(1)(d)(ii), and 27(1)(g)
Tribunal Member: Robin Dean
Counsel for the Complainant: Clea Parfitt
Counsel for the Respondents: Kyle Sandulescu
I INTRODUCTION
[1] Faith Bigam, who has been diagnosed with multiple sclerosis [MS], was in Grade 11 when a teacher allegedly prevented her from presenting during a school assembly at which she had been slated to speak [assembly incident]. In her complaint, she alleges that the teacher (Kathryn Lafontaine), the school principal (Kathy Weninger), and the school district discriminated against her based on mental and physical disability in the area of services contrary to s. 8 of the Human Rights Code by preventing her from speaking and by mishandling the assembly incident after it occurred. She says that because of these events, she was unable to return to school and ultimately lost out on important social and educational opportunities.
[2] The Respondents deny discriminating and apply to dismiss Ms. Bigam’s complaint under ss. 27(1)(c), 27(1)(d)(ii), and 27(1)(g) of the Code. In this application to dismiss, I must decide the following issues:
a. Under s. 27(1)(c), whether there is no reasonable prospect Ms. Bigam will prove adverse impact or that the assembly incident and the events that followed were connected to Ms. Bigam’s mental and physical disability; and
b. Under s. 27(1)(d)(ii), whether proceeding against the individual Respondents would not further the purposes of the Code.
[3] I do not decide the issues that arise under s. 27(1)(g) of the Code. Ms. Bigam has clarified in her response to the application to dismiss that she brings her complaint only in regard to the assembly incident and the events happening afterwards. There is no dispute that these allegations are in time. To the extent that Ms. Bigam brings up any out-of-time incidents, I consider them for context only.
[4] For the following reasons, I deny the Respondents’ application in part. I dismiss the complaint against Ms. Weninger and Ms. Lafontaine but allow the rest of the complaint to proceed. The complaint will proceed against the school district alone.
II BACKGROUND
[5] To make this decision, I have considered all the information filed by the parties. In these reasons, I refer only to what is necessary to explain my decision. I make no findings of fact on the merits of the complaint.
[6] Ms. Bigam was diagnosed with MS in the summer before Grade 7, when she was a student at Rutland Middle School in Kelowna. Ms. Bigam says that after her diagnosis, her relationships with her school friends changed and she experienced bullying from her peers. Because of this, Ms. Bigam and her family made the decision that she would transfer to George Elliot Secondary School in Lake Country.
[7] According to Ms. Bigam, she was concerned that she would be bullied at George Elliot should the students there find out that she had MS. Ms. Bigam says that in Grade 11 she missed a lot of school due to health issues, which made it difficult to maintain her friendships. She says that she found it anxiety provoking to go to school. Despite these concerns, however, and with the encouragement of one of her teachers, Leslie Plummer, Ms. Bigam decided in early March 2019 to talk to the school about MS and living with MS. Ms. Bigam says: “I finally realized that it was important to me to talk about MS and to spread awareness about it in a positive way at school…” Ms. Bigam “thought it would be beneficial to the school, and to me and others like me.”
[8] Ms. Bigam emailed Ms. Plummer about speaking at the school assembly. Ms. Plummer responded positively and said that she would speak with Ms. Lafontaine given that Ms. Lafontaine organized the school’s assemblies.
[9] Ms. Lafontaine slated Ms. Bigam to speak on April 17, 2019 and told Ms. Bigam that she should prepare her comments as well one or two PowerPoint slides. According to Ms. Bigam, Ms. Lafontaine said that she should have the slides prepared by the date of the assembly. Ms. Bigam says that she was not aware that the assembly had a theme; however the Respondents say that the theme of the assembly was “love”.
[10] Ms. Bigam says that she spoke with Ms. Plummer about her talk a few times, and Ms. Plummer told her that she did not need PowerPoint slides, so she did not prepare any. Ms. Bigam says that she often speaks about MS to large groups and that she does so without notes or presentation slides.
[11] The evening before the assembly, Ms. Bigam’s mother, Danielle MacDonald, communicated to Ms. Plummer that Ms. Bigam was still prepared to speak at the assembly.
[12] The parties’ accounts diverge as to what happened next.
[13] Ms. Bigam says that she and her mother agreed to be at the school a few minutes before the morning bell at 8:50 a.m. so that they could check in with Ms. Plummer about the speech.
[14] Ms. Plummer says that when she received the call from Ms. MacDonald the night before the assembly, it “was all very last minute” as she had not heard anything further about Ms. Bigam’s speech for about six weeks. According to Ms. Plummer, she emailed Ms. Lafontaine to let her know that Ms. Bigam still wanted to present. Ms. Lafontaine responded that Ms. Bigam would need to see her with her PowerPoint presentation before 8:30 a.m. in order to move ahead with her speech. Ms. Plummer says that she called Ms. MacDonald back to relay the information from Ms. Lafontaine.
[15] Ms. Bigam says that she did not understand from Ms. Plummer that she was supposed to arrive no later than 8:30 a.m. or that she was supposed to meet with Ms. Lafontaine prior to the assembly. Ms. MacDonald also says that she did not speak to Ms. Plummer the evening before the assembly, nor did Ms. Plummer tell her to be at the school by 8:30 a.m. to meet with Ms. Lafontaine.
[16] Ms. Bigam says that on the morning of the assembly, she arrived at school with Ms. MacDonald at 8:40 a.m. and found Ms. Plummer, who took them to Ms. Lafontaine.
[17] Ms. Lafontaine led Ms. Bigam, Ms. MacDonald, and Ms. Plummer into the school’s equipment room so that they could speak. Once in the equipment room, Ms. Bigam says that Ms. Lafontaine asked for her speaking notes and presentation. When Ms. Bigam said that she had not prepared speaking notes or a presentation, she says that Ms. Lafontaine “got in her face” and began asking her questions about her speech in an aggressive manner. Ms. Bigam says Ms. Lafontaine “said that I should talk about my friends, if I had any, as that was what was important, not MS, and that friendship was what the assembly was about.” She also says she remembers Ms. Lafontaine saying that she looked “fine” and that “I did not look like I had anything wrong with me.”
[18] Ms. Bigam says everyone was raising their voices, and she began panicking and crying. Ms. Plummer took Ms. Bigam into the hallway and tried to calm Ms. Bigam down. Ms. Bigam felt like the entire school was staring at her as she cried. Ms. Bigam says she remembers Ms. MacDonald asking Ms. Lafontaine “[d]o you talk to all your students like this before they are going to do a speech?”
[19] Ms. MacDonald’s comments about the events leading up to Ms. Bigam crying are brief. She says:
When we met her, Ms. Lafontaine began to aggressively question Faith about what she was going to say in her presentation, during which she made a number of inflammatory comments. She was speaking loudly and abruptly throughout. Her comments were devastating to Faith, reducing her to tears, and making me understandably upset. Ms. Lafontaine was very close to Faith when she was talking. We did not go into the Equipment Room until Faith started crying. At no time was Ms. Lafontine seated on a box.
[20] Ms. MacDonald says that the assembly incident left Faith scared, shocked, and crying hysterically. According to Ms. MacDonald, Ms. Bigam was too upset to make her speech and remained in tears the rest of the day.
[21] According to Ms. Lafontaine, she did not get in Ms. Bigam’s face or speak to her in an aggressive manner during their interaction in the equipment room. Ms. Lafontaine says she took Ms. Bigam into the equipment room and sat on a box where she began asking Ms. Bigam questions about her presentation to decide whether she could incorporate the presentation into the theme of the assembly. Ms. Lafontaine says she asked Ms. Bigam “encouragingly” what the purpose of the presentation was, and what she was hoping to get out of speaking at the assembly. Ms. MacDonald apparently interjected at this point and told Ms. Lafontaine that the presentation was supposed to be educational and that the purpose of the presentation was to give Ms. Bigam the opportunity to share her experience living with MS. Ms. Lafontaine says she began questioning Ms. Bigam about whether she had any friends at school that she could talk about so that she could tie her presentation into the theme of love. She says she also asked Ms. Bigam about the problems or issues that she could talk about because it might be hard for someone to tell she had MS.
[22] Ms. Lafontaine says that Ms. Bigam was calm during this questioning until Ms. MacDonald stopped Ms. Lafontaine saying that the questioning was “too much” and yelling at Ms. Lafontaine. Ms. Lafontaine says it was Ms. MacDonald’s interjection that upset Ms. Bigam “to the point where she was in tears.” Ms. Lafontaine says that Ms. MacDonald was too escalated to continue talking about the presentation and that Ms. Lafontaine suggested talking about it another time. Ms. MacDonald responded “no way” to Ms. Lafontaine’s suggestion. Ms. Lafontaine denies that she told Ms. Bigam that she could not participate in the assembly.
[23] Ms. Plummer largely supports Ms. Lafontaine’s version of events. Ms. Plummer says that once in the equipment room, Ms. Lafontaine sat on a box and started to ask Ms. Bigam questions about her presentation “to try to constructively work with the Complainant, on a very tight timeline, to ensure that her presentation would be consistent with the theme of ‘love.’” Ms. Plummer says:
Ms. Lafontaine then asked the Complainant about who her friends were at the school to see if she could work with the Complainant to come up with a presentation. Ms. Lafontaine said that maybe the Complainant could do a presentation about friendship, as friendship is a form of love, and said that this could potentially fit into the ‘love’ theme of the assembly.
[24] According to Ms. Plummer, Ms. Bigam tensed up a bit during the questioning about her friends but was still engaging and was calm the whole time. Ms. Plummer says that Ms. MacDonald interjected and said, “You are too much”, asking “Is this the way you treat your students?” Ms. Plummer says that Ms. MacDonald told Ms. Lafontaine that she should not be a teacher. It was at this point, says Ms. Plummer, that Ms. Bigam began to cry. Ms. Plummer says that Ms. MacDonald continued to yell at Ms. Lafontaine in the hallway and said that Ms. Bigam would not be speaking at the assembly as she was clearly too upset. Ms. Plummer says at no time did Ms. Lafontaine come within inches of Ms. Bigam’s face. Ms. Plummer says:
[Ms. Lafontaine] did not say ‘tell me how there’s something wrong with you’ or anything like that and definitely did not scoff or chuckle at the Complainant when she was speaking. Ms. Lafontaine did not say, ‘I don’t have time for this, it’s ridiculous’ to the Complainant or her mother or anything like that. Nothing that Ms. Lafontaine said or did was inappropriate….I also note that while Ms. Lafontaine was speaking loudly because it was very noisy outside the Assembly, she was not aggressive or confrontational with the Complainant.
[25] Immediately after the assembly incident, Ms. MacDonald, Ms. Bigam, and Ms. Bigam’s father spoke with Ms. Weninger, the school principal. Ms. MacDonald says that Ms. Weninger listened for a few minutes and then left to attend the assembly. Before she left, Ms. Weninger told Ms. MacDonald to put her version of the events in an email, which Ms. MacDonald did the next day. She also sent a statement to the school district because she says she was worried, based on previous experience with Ms. Weninger, that concrete action would not be taken if left to Ms. Weninger alone.
[26] On April 18, 2019, Ms. Weninger responded to Ms. MacDonald’s email to say that school district staff had been notified and that they were “taking the matter very seriously.” Ms. Weninger said that the school vice principal as well as the vice superintendent would be in touch. Ms. MacDonald says that she heard nothing further from Ms. Weninger after this communication, despite Ms. Weninger saying that she would “assist with restoring any harm that Faith had experienced.”
[27] Ms. MacDonald says that the vice superintendent left her a message on April 18, 2019, to say that the vice principal would be in contact. The vice principal met with Ms. MacDonald and Ms. Bigam on April 24, 2019. According to Ms. MacDonald, the vice principal did not come to the meeting prepared to offer options for Ms. Bigam to return to school. Ms. MacDonald says that the vice principal said all he could do was offer an apology or “something else meaningful that would make Faith feel better.”
[28] Ms. MacDonald says that the vice principal refused to disclose whether the school was investigating Ms. Lafontaine’s conduct or taking any other steps including disciplining Ms. Lafontaine.
[29] According to the vice principal, Ms. MacDonald was adamant that Ms. Lafontaine be fired and did not seem interested in an apology or “anything else”. The vice principal says that while he interviewed Ms. Lafontaine and Ms. Plummer about what happened, he was not able to share any details regarding teacher discipline with Ms. MacDonald.
[30] Ms. Bigam says that these events made her feel “very bad” and “upset her a lot.” She says she felt so embarrassed that she could not continue to be a student at the school. Ms. Bigam did not return to George Elliot after the assembly incident. Ms. MacDonald says that because Ms. Bigam was too fearful to return to school after the assembly incident, she suffered a lot of stress and an MS relapse in June 2019.
[31] The Respondents say that they discussed a number of in-school and out-of-school options for Ms. Bigam to continue her schooling. In May 2019, the school contacted Ms. MacDonald and suggested that Ms. Bigam continue her schooling through the Hospital Homebound Program, which is a service offered by the school district to allow students to continue their schooling while they are at home ill or in the hospital. Ms. MacDonald says that this is the only at-home assistance that the school offered. She says that the school did not offer Ms. Bigam an at-home math tutor.
[32] Typically, a doctor must provide a referral for the Hospital Homebound Program; however, in Ms. Bigam’s case, the school district waived this requirement. The Respondents explain that each student is assigned a hospital homebound instructor who acts as a liaison between the school and the home or hospital. The instructor meets with the student in the presence of their parent one to two times a week.
[33] The Respondents say that the instructor explained to Ms. MacDonald at the outset that she would not be available to teach entire courses to Ms. Bigam but could offer support in reviewing work that Ms. Bigam had questions with, problem solve, and help her review and prepare for unit tests that the instructor would invigilate. The Respondents say that Ms. Bigam was too behind in math from missing so much school during the year that it was impossible for her to complete her math course that year through the Hospital Homebound Program. Ms. Bigam says that because the program amounted to two hours per week of assistance, and because Ms. Bigam was sick in June with an MS relapse due to the stress of the assembly incident and its aftermath, she was not able to finish Math 10.
[34] Ultimately, Ms. Bigam says she was too anxious to return to any school for Grade 12. Ms. Bigam graduated from Grade 12 through the Vernon Alternative Learning [VLearn] Program in June 2020 but says she was devastated not to be able to attend the graduation events at George Elliot.
III DECISION
A. Section 27(1)(c) – No reasonable prospect of success
[35] The Respondents apply to dismiss Ms. Bigam’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c) The onus is on the Respondents to establish the basis for dismissal.
[36] 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.
[37] 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 942 at para. 77 .
[38] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority , 2021 BCSC 2176 at 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 .
[39] 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.
[40] To prove her complaint at a hearing, Ms. Bigam will have to prove that she has a characteristic protected by the Code , she was adversely impacted in services, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33. If she did that, the burden would shift to the Respondents to justify the impact as a bona fide reasonable justification. If the impact is justified, there is no discrimination. The Respondents do not advance a justification defence in the materials before me.
1. Assembly Incident Allegation
[41] The Respondents argue that Ms. Bigam has no reasonable prospect of proving that she was prohibited from participating in the assembly. I take the Respondents’ argument to be that Ms. Bigam has no reasonable prospect of proving adverse impact with respect to the assembly incident. While there is no evidence in the materials before me that any of Ms. Bigam’s teachers directly said she could not participate in the assembly, there is evidence that Ms. Bigam was upset by the events during the assembly incident and unable to do her presentation. This upset, she alleges, was caused by Ms. Lafontaine’s words and actions, which led her to be in such a state that she could not participate in the assembly. She also says that the assembly incident precipitated a cascade of other harms, including ultimately suffering an MS relapse due to the stress she experienced. Based on the materials before me, I am satisfied that Ms. Bigam has taken her allegations about adverse impact out of the realm of conjecture.
[42] The Respondents say that the allegations in the complaint differ materially from what Ms. Bigam alleges in her response to the application to dismiss, namely that Ms. Bigam alleges in her complaint that Ms. Lafontaine prohibited her from speaking while in her response to the application to dismiss she says that she was treated adversely which had the impact of preventing her from participating in the assembly. They say that there is no evidence that she was prohibited from speaking. While, as stated above, I agree, I do not think this requires me to dismiss Ms. Bigam’s complaint. As I read it, Ms. Bigam has further particularized her allegations in her response to the application to dismiss. It is not unusual for Complainants to provide further particulars of their complaints in this manner, particularly where they were self-represented at the outset. I find no unfairness to the Respondents arising from Ms. Bigam’s further particularization as they had a full opportunity to reply to Ms. Bigam’s response.
[43] In terms of nexus, the Respondents say that there is no evidence that they “discriminated against the Complainant because of her MS.” The Respondents do not explain further how Ms. Bigam has failed to establish a nexus between her physical and mental disabilities and the alleged mistreatment. In any event, I do not find that Ms. Bigam has no reasonable prospect of proving a connection between her mental and physical disabilities and the adverse impacts she alleges.
[44] To succeed in her claim, Ms. Bigam does not need to prove a “causal” connection between her protected characteristics and the adverse impacts. Rather, there must be a “connection”, or the protected characteristics must be a “factor” in the adverse impacts: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center) , 2015 SCC 39 at paras. 49-52. They need not be the sole or overriding factor. The question is whether her protected characteristics played a role or contributed to the adverse impacts she experienced. This means that, even if the Respondents prove that they had serious concerns about Ms. Bigam’s readiness to participate in the assembly, Ms. Bigam could still make out her case if her mental or physical disabilities factored into the adverse impact she alleges.
[45] Here, Ms. Bigam alleges that Ms. Lafontaine “got in her face” and aggressively told her that it did not look like there was anything wrong with her, implying that it did not appear that she had MS. Further, Ms. Bigam says the assembly incident particularly impacted her as a person living with MS. But for her MS, she says, she would not have been affected by the assembly incident in the same way. In other words, her disability, and the way that Ms. Lafontaine allegedly responded to it, affected her ability to participate in the assembly. In my view, Ms. Bigam’s allegations about how the assembly incident affected her as a person with MS are enough to take the nexus element of Moore out of the realm of conjecture. While Ms. Lafontaine’s and Ms. Plummer’s versions of the events differ from that of Ms. Bigam and Ms. MacDonald, I find that this is a central credibility issue that requires a hearing to resolve.
2. Inadequate Response to the Assembly Incident Allegation
[46] Ms. Bigam says that the school district’s “inadequate response” to her complaint about what occurred during the assembly incident “was itself a form of discrimination.” She says that the school district, the vice principal, and Ms. Weninger all failed to ensure that the school policies were fully carried out with respect to the complaint she made to them about the assembly incident, causing her further harm. The Respondents say that the school did investigate Ms. Bigam’s complaint when the vice principal interviewed the people involved in the assembly incident, including Ms. Lafontaine, Ms. Plummer, Ms. Bigam, and Ms. MacDonald.
[47] A failure to respond reasonably and appropriately to allegations of discriminatory behaviour may itself amount to discrimination, even if the underlying conduct complained about is determined not to have been discriminatory: Jamal v. TransLink Security Management and another (No. 2) , 2020 BCHRT 146 at para. 106. The Tribunal has recognized that a complainant may independently experience adverse impacts because of an inadequate response to discrimination: Martinez Johnson v. Whitewater Concrete Ltd. and others (No. 2) , 2022 BCHRT 129 at para. 54.
[48] Some factors the Tribunal may consider are whether the respondent had a proper understanding of discrimination, treated the allegations seriously and sensitively, and whether the complaint was resolved in a manner that ensured a healthy – that is, non-discriminatory – environment moving forward: Jamal at para. 106; Hale v. University of British Columbia Okanagan (No. 5) , 2023 BCHRT 12 at para. 26.
[49] In relation to the allegations that the Respondents did not properly investigate the assembly incident leading to further harm, the Respondents have not convinced me that Ms. Bigam has no reasonable prospect of proving the adverse impacts alleged.
[50] Ms. Bigam says that she submitted a formal complaint to Ms. Weninger and the school district superintendent. She says that no formal investigation into her written complaint was conducted, contrary to the school district’s own internal policies. These policies include Policy 350R – Human Rights Regulations , which states that where a formal complaint is filed with the Superintendent, a formal investigation will occur conducted by an investigator. Policy 350R also contemplates avenues for a mediated resolution process.
[51] While Ms. Weninger and the vice principal spoke to the parties involved, there is no evidence that any further steps were taken to resolve the incident, that a formal investigation was conducted as set out in the school district’s policy, or that a mediated resolution process was offered. While the Respondents say that no school policies have been breached, they do not support this assertion with any argument. The Respondents have not said how the policies did not apply in this particular situation or how the Respondents’ actions were all that were required under the circumstances. In my view, the failure to follow the school district’s policies in relation to Ms. Bigam’s complaint to the school district, could indicate that the Respondents did not treat the allegations sensitively or seriously.
[52] Ms. Bigam says that because she felt her complaint with the school district was not taken seriously or properly investigated, it made her feel unsafe returning to school. Given this, it is my view that Ms. Bigam has taken her allegations about adverse impact out of the realm of conjecture.
[53] At a hearing, if Ms. Bigam proves she experienced adverse impacts because the Respondents did not properly investigate or adequately respond to her complaint to the school district, she must then prove her disabilities factored into those adverse impacts. The Respondents submit that Ms. Bigam has not established a connection between her disabilities and her allegation about the school’s inadequate response to her complaint to the school district.
[54] Ms. Bigam says that the adverse impacts she alleges are necessarily connected to her disabilities. Adverse impacts from an inadequate response are inherently connected to the protected characteristics engaged by the underlying discrimination: Hale at para. 20. Here, Ms. Bigam says, the “issue arose as she was attempting to explain, deal with and lessen the disadvantages arising from her disability…” She alleges that the failure to adequately respond increased her dislocation from school as well as her feelings that she was not safe at the school as a person with disabilities. All this, she says, was amplified by her disability. I do not find that Ms. Bigam has no reasonable prospect of proving that her disabilities were a factor in the adverse impacts that she alleges arose from the school district’s inadequate investigation of her complaint.
3. Lost Educational Opportunities Allegation
[55] Finally, Ms. Bigam says that as a result of the assembly incident and the mismanagement of the school’s response, she could not return to school and lost out on educational and social opportunities. She says this led to further adverse impacts in terms of losing part of her school year, experiencing anxiety, and causing impacts to her feelings of dignity and self esteem. She says that these adverse impacts are necessarily connected to her personal characteristics because they flowed from events related to her disabilities and had a particular impact on her as a person with disabilities.
[56] The Respondents argue that Ms. Bigam will not be able to prove that she lost any educational opportunities because the evidence will establish that she was already so behind in school once she started the Hospital Homebound Program that she would not have been able to complete her math course in any event. They further say her graduation was not delayed as a result of any school she might have missed.
[57] While Ms. Bigam attended the school district’s Hospital Homebound Program and ultimately graduated on time through VLearn, I am satisfied that she has taken her complaint about adverse impacts out of the realm of conjecture. School provides individuals with social and educational opportunities beyond just completing the requisite course work to graduate. Ms. Bigam says she was not able to access these opportunities during her last two years of secondary school because she was learning at home. On the low bar required to overcome a s. 27(1)(c) application, I cannot say that there is no reasonable prospect that Ms. Bigam would be able to prove adverse impacts regarding the lost educational opportunities allegation.
[58] Further, I do not find that Ms. Bigam has no reasonable prospect of proving that her disabilities were a factor in the lost educational opportunities. Like the adverse impacts alleged regarding the assembly incident, Ms. Bigam has taken beyond the realm of conjecture that the adverse impacts alleged here are inherently connected to Ms. Bigam’s mental and physical disabilities. I am persuaded that it is not speculative that they flow from Ms. Bigam’s disabilities and the Respondents’ alleged response to those disabilities.
[59] The Respondents say that they offered “every possible option for in-school and out-of-school support” to Ms. Bigam. This included (1) working half days, or every other day or on fixed days; (2) working flexible hours; (3) working full or part time with Ms. Plummer; (4) attending school with no contact with Ms. Lafontaine; and (5) at-school math tutoring. Ultimately, they say, Ms. Bigam rejected every potential option except for the Hospital Homebound Program. Additionally, they say they offered Ms. Bigam counselling support outside of school and told her she could make her presentation at another time. While not styled by the Respondents as a justification defence, I take the Respondents to argue that they tried to accommodate Ms. Bigam to the point of undue hardship, but that Ms. Bigam was not a willing participant in the accommodation process.
[60] To justify the adverse impacts at a hearing, the Respondent would have to prove that: (1) they adopted the standard for a purpose rationally connected to the function being performed, (2) they adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and (3) the standard is reasonably necessary to the accomplishment of that legitimate purpose. This third element encompasses their duty to accommodate to the point of undue hardship:British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 at para. 20.
[61] Ms. Bigam says that the Respondents failed to “fully ameliorate” her lost educational opportunities. She says that they could have offered at home help with math and social studies but that they did not. While the Respondents’ evidence alleges that they provided a variety of options to Ms. Bigam, those options, for the most part, involved Ms. Bigam returning to school. I do not have submissions from the Respondents on whether providing further at home options would have been an undue hardship. While perfection in the accommodation process is not required, given the lack of evidence before me on undue hardship, I am not persuaded that the Respondents are reasonably certain to prove they discharged their duty to accommodate.
B. Section 27(1)(d)(ii) – Proceeding would not further the purposes of the Code
[62] 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.
[63] The Respondents argue that it would not further the Code’s purposes to proceed against Ms. Lafontaine or Ms. Weninger: Daley v. BC (Ministry of Health) , 2006 BCHRT 341 [Daley ]. They say that at all times, Ms. Lafontaine and Ms. Weninger were acting within the scope of their employment.
[64] There are strong policy reasons that favour complaints against individual respondents. As the Supreme Court of Canada has acknowledged, “the aspirational purposes of the Code require that individual perpetrators of discrimination be held accountable for their actions”: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 at para. 56 . This is especially true for allegations of discrimination with a high degree of personal culpability, like sexual or racial harassment: Daley at para. 53 .
[65] On the other hand, naming individual respondents can complicate and delay the resolution of complaints, exacerbate feelings of personal animosity, and cause needless personal distress to individuals who are accused of discrimination: Daley at para. 54 . Because employers and institutional respondents are liable for the acts of their agents, they will be responsible for any remedy ordered by the Tribunal: Code , s. 44(2); Robichaud v. Canada , [1987] 2 SCR 84. In those situations, the remedial aims of the Code may be most fairly and efficiently fulfilled without holding individuals liable.
[66] The Tribunal balances all these considerations to decide whether the purposes of the Code are best served by having a complaint proceed against individuals as well as an institutional respondent, or against the institutional respondent only. It has identified the following factors as relevant:
a. whether the complaint names an institutional employer as a respondent and that respondent has the capacity to fulfill any remedies that the Tribunal might order;
b. whether the institutional respondent has acknowledged the acts and omissions of the individual as its own and has irrevocably acknowledged its responsibility to satisfy any remedial orders which the Tribunal might make in respect of that individual’s conduct; and
c. the nature of the conduct alleged against the individual, including whether:
i. their conduct took place within the regular course of their employment;
ii. the person is alleged to have been the directing mind behind the discrimination or to have substantially influenced the course of action taken; and
iii. the conduct alleged against the individual has a measure of individual culpability, such as an allegation of discriminatory harassment.
Daley at paras. 60-62 .
[67] Ms. Bigam has named an institutional employer as a respondent – the School District – which has acknowledged the acts and omissions of Ms. Weninger and Ms. Lafontaine as its own and has irrevocably acknowledged its responsibility to satisfy any remedial orders which the Tribunal might make in respect of their conduct. These acknowledgements weigh in favour of dismissing the complaint against the individual Respondents.
[68] However, of all the factors considered in Daley , individual culpability is the weightiest reason for separating the individual from the employer: Traber v. Dunkley Lumber Ltd. and another , 2021 BCHRT at para. 30. The Respondents say that Ms. Weninger and Ms. Lafontaine were each acting within the scope of their regular duties at the time that the conduct complained of is alleged to have occurred. Ms. Bigam says that Ms. Weninger and Ms. Lafontaine should be held individually liable for a variety of reasons, but she does not explain why Ms. Weninger’s and Ms. Lafontaine’s conduct contains a measure of individual culpability sufficient to continue the complaint against them.
[69] Regarding Ms. Lafontaine, while her alleged comments were unfortunate and harmful, I do not find her conduct to be so egregious such that no plausible argument could be made that Ms. Lafontaine was acting within the scope of her authority: Daley at para. 62 . The case law is clear that the conduct captured under this prong of the test is significantly worse than what Ms. Bigam says Ms. Lafontaine did – i.e. asking her aggressive questions about her presentation, her disability, and her friends. This is distinguishable from, for example, repeated sexual or racial harassment in the workplace which may attract individual liability: Daley at para. 62; Murphy v. Lafarge of Canada and others , 2006 BCHRT 558 at paras. 35-36 .
[70] The evidence suggests that Ms. Lafontaine was performing the duties of her employment, albeit in a manner that might ultimately be found to have resulted in discrimination: Daley at para. 62. While Ms. Bigam says that Ms. Lafontaine had a history of treating her badly because of her disability, those alleged instances of mistreatment are out-of-time and beyond the scope of this complaint. Under these circumstances, I do not find that it would further the purposes of the Code to continue the complaint against her.
[71] Regarding Ms. Weninger, I do not find that it would further the purposes of the Code to continue the complaint against her either. The evidence supports the Respondents’ assertion that Ms. Weninger was acting within the scope of her authority as the principal of the school. While Ms. Weninger is alleged not to have taken Ms. Bigam’s complaint seriously, including failing to properly respond to and investigate the complaint, I am satisfied that these allegations do not have the character of individual culpability sufficient to continue the complaint against Ms. Weninger.
IV CONCLUSION
[72] I deny the Respondents’ application under s. 27(1)(c) and grant the Respondents’ application under s. 27(1)(d)(ii). The complaint will proceed against the school district alone.
Robin Dean
Tribunal Member
Human Rights Tribunal