Caneiro v. Ministry of Children and Family Development and another, 2024 BCHRT 294
Date Issued: October 22, 2024
File(s): CS-002406
Indexed as: Caneiro v. Ministry of Children and Family Development and another, 2024 BCHRT 294
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:
Carolyn Carneiro
COMPLAINANT
AND:
His Majesty the King in Right of the Province of BC as represented by the Ministry of Children and Family Development and Dianne Patenaude
RESPONDENTS
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
SECTION 22
Tribunal Member: Steven Adamson
Agent for Ms. Carneiro: Christine Costley
Counsel for the MCFD: Rochelle Pauls
Counsel for Dianne Patenaude: Alexandra Wickett
I. INTRODUCTION
[1] On August 14, 2020, Ms. Carneiro filed a complaint of discrimination in employment based on age, race, ancestry, and physical disability contrary to s. 13 of the Human Rights Code [ Code ], against His Majesty the King in Right of the Province of BC as represented by the Ministry of Children and Family Development [ MCFD ] and Dianne Patenaude [together the Respondents ].
[2] The issue before me with respect to timeliness is whether to accept the Complaint against the Respondents. I make no findings regarding the merits of this complaint.
[3] For the reasons that follow, I find that the Complaint against the Respondents is a continuing contravention of the Code and proceeds as timely: s. 22(2).
II. BACKGROUND
[4] Ms. Carneiro is of Goan heritage and has brown skin.
[5] On March 6, 2017, Ms. Carneiro started a social worker assistant position with the MCFD on an Adoptions team. At that time, she was 29 years old.
[6] Ms. Carneiro left the social work assistant job for another position in government on September 16, 2019.
[7] At issue in the decision is whether arguable contraventions of the Code exist from April 2017 to September 16, 2019. The case also includes a continuing contravention of the Code analysis that asks whether the allegations are of a similar nature and occurred in succession. As such, it is necessary for me to set out in some detail Ms. Carneiro’s allegations over an extended period below.
[8] On April 10, 2017, Ms. Carneiro alleges her supervisor and team leader, Ms. Patenaude, met with her behind closed doors for the first time to state: “You people smell like moth balls” and “I’m not sure if this is a cultural thing but maybe shower before you come into work, so its more respectable to people at work because you smell like moth balls.” Ms. Carneiro alleges Ms. Patenaude told her the whole team complained about how she smelled, and this created division and made her feel ashamed and segregated right from the start of her job. She alleges her teammates denied complaining to Ms. Patenaude about her smelling bad when she spoke to them some months later, however.
[9] At the same meeting Ms. Carneiro alleges Ms. Patenaude said: “she knows my type, millennial, we are lazy and expected to be patted on the back for not doing any work, and the government is not an employer that allows this”. Ms. Carneiro further alleges Ms. Patenaude asked her to acknowledge that she understood that “Millennials get things handed to them like these jobs and she will weed out the lazy types”. Ms. Carneiro alleges these statements made her feel judged and convicted of behaviours associated with her age before being given a chance to demonstrate her work ethic. She alleges that every time she tried to share her story, and the hard work needed to get the job with the Adoptions team, Ms. Patenaude said something derogatory to her or started talking about how her own life was harder.
[10] On April 13, 2017, Ms. Carneiro alleges Ms. Patenaude instructed her to only attend old training courses that she approved. However, this direction was reversed when the hiring manager told Ms. Patenaude that Ms. Carneiro had to complete all the mandatory.
[11] On April 27, 2017, Ms. Carneiro alleges Ms. Patenaude told her to work faster to prepare for a work event by stating “get on your bike, there’s a carrot dangling in front of you; you have to get it”.
[12] On May 4, 2017, Ms. Carneiro alleges Ms. Patenaude told her she was not allowed to eat the food set out at work event because it was for “important people” like social workers and families. After complying with this direction, at the end of her time at the event Ms. Carneiro claims she hesitantly agreed to eat at the event after being invited to do so by her co-workers. Upon her return to the office, Ms. Carneiro alleges Ms. Patenaude scolded her for eating until a coworker came to her defense.
[13] On May 4, 2017, Ms. Carneiro alleges that she asked Ms. Patenaude for mileage to drive her own vehicle to the event because she was too short to drive the MCFD’s car. She noted that the company car, a Sebring, was too big for her as she was unable to see over the steering wheel even when sitting on a pillow. Ms. Carneiro says Ms. Patnaude told her she would think about reimbursing her for using her own car to drive to the event.
[14] As of June 14, 2017, Ms. Carneiro alleges that throughout her probationary period Ms. Patenaude told her she was unsure if she would pass. She further alleges Ms. Patenaude told her only to attend staff meetings approved by her as other meetings would be beyond her understanding and, therefore, be pointless.
[15] On June 14, 2017, Ms. Carneiro alleges she again asked Ms. Patenaude if she could be reimbursed for her mileage because the company car was too big for her to drive. She alleges Ms. Patenaude once again told her that she would think about it.
[16] On August 17, 2017, Ms. Carneiro alleges Ms. Patenaude refused to provide a mandatory job reference for her despite knowing ahead of time that she had applied for the job. She says Ms. Patenaude told her that she did not have time to provide the reference. Ms. Carneiro alleges the hiring manager in the position she was applying for told her that they would make an exception and get the necessary check from a team leader instead because Ms. Patenaude would not answer their questions properly.
[17] A few weeks later, Ms. Carneiro reports only receiving an offer for an auxiliary position, which she had to turn down apparently because it was not a permanent position. She alleges Ms. Patenaude said to her that the other job would have been a huge promotion for someone only six months in her current position and asked her whether she deserved it. When Ms. Carneiro responded affirmatively because she had passed the assessment, she alleges that Ms. Patenaude just chuckled and walk away.
[18] On September 19, 2017, Ms. Carneiro alleges that Ms. Patenaude called her into her office to inform that she was not making a good impression on the team as she was not attending meetings. When confronted with the prior direction that Ms. Carneiro should only attend meetings as directed by Ms. Patenaude, the supervisor allegedly denied that she said this and told the employee that she was expected to be at all meetings.
[19] On January 25, 2018, Ms. Carneiro alleges Ms. Patenaude asked her inappropriate questions about medical appointments related to recovering from a motor vehicle accident that occurred the previous October. When Ms. Carneiro refused to provide some information on the advice of her union representative, she alleges Ms. Patenaude set up a meeting to discuss the issue.
[20] On February 1, 2018, Ms. Carneiro alleges Patenaude told her she must schedule her pain relief medical treatment appointments outside of work hours. Ms. Carneiro says that she refused to comply as the sessions were near the office and enabled her to stay on at work for the rest of the day. Ms. Carneiro alleges the office manager told her to enter her time off for the appointments in the time management system, but Ms. Patenaude called her into her office to remind her that she worked for her and was not obligated to pay her for time at the appointments. Ms. Patenaude allegedly further told Ms. Carneiro to be grateful for having her job.
[21] On April 23, 2018, Ms. Carneiro alleges she met with the MCFD director of operations, Ms. Patenaude’s superior, to report her discomfort with working on her team. Ms. Carneiro noted having her mileage claims rejected constantly and listed all the other incidents she had documented over the course of her employment. Ms. Carneiro alleges the director assured her that an investigation would be undertaken and not to worry. At the director’s request, she says that she sent all her notes about working at the MCFD to the director by email to assist with the investigation.
[22] On May 3, 2018, Ms. Carneiro alleges Ms. Patenaude commented on her wearing dresses and looking summery in the summertime. She then allegedly proceeded to criticize Ms. Carneiro for wearing a jacket at work during winter months. Ms. Patenaude allegedly suggested that she wear warm underclothing to stay warm and still look good and advised her where to shop. Ms. Carneiro says she thanked her supervisor for the information to end conversation.
[23] On May 7, 2018, Ms. Carneiro alleges Ms. Patenaude called her into her office to complain about her attending physiotherapy appointments at the start of the workday. She alleges that she explained to the supervisor that the timing of the appointments was based on the physiotherapist’s recommendation to abate Ms. Carneiro’s pain symptoms. Ms. Carneiro alleges that Ms. Patenaude then proceeded to question her need for ongoing physiotherapy since she was able to go the gym and participate in a stair climbing challenge at work. Ms. Patenaude then allegedly asked Ms. Carneiro what her doctor thought about the need for physiotherapy and massage and she responded that her physician deferred to those providing these treatments. Ms. Carneiro alleges Ms. Patenaude then told her she needed to have her doctor fill out a fitness assessment for the employer and wanted to know the diagnosis. After telling Ms. Carneiro she would consider her appointment request the following day, Ms. Patenaude allegedly emailed her to state that “while May 8 th is not quite in the spirit of the component, I will approve it this time.”
[24] Ms. Carneiro alleges Ms. Patenaude made her felt guilty for attending appointments related to her motor vehicle accident and constantly asked her intrusive questions about whether her injuries were real while denying her to her entitled health benefits. This included forcing her to attend therapy treatment at lunch, on her own time or to make up for time lost from work hours. Ms. Carneiro alleges Ms. Patenaude’s mistreatment contributed to her feelings of isolation and prolonged her recovery.
[25] On May 30, 2018, Ms. Carneiro attended a performance review with Ms. Patenaude. She alleges the supervisor told her that her goal of becoming a social worker was not realistic and she should not be reaching so high to attain it. Ms. Patenaude allegedly asked Ms. Carneiro what degrees she held and if she had written papers. Ms. Carneiro alleges that she told Ms. Patenaude that the social workers in the office did not have any issues with her writing, but the supervisor failed to respond.
[26] On August 23, 2018, Ms. Carneiro alleges she wrote an email to the director of operations seeking reimbursement for mileage that Ms. Patenaude rejected due to the company car’s availability. Despite noting the company car was unsafe for her to drive because of her small size, Ms. Carneiro alleges she was told her mileage claims going forward would not be approved. She alleges the Respondents’ refusal to reimburse her for mileage was a complete disregard for her safety because she was not tall enough to drive the company car.
[27] On September 27, 2018, Ms. Carneiro alleges the director of operations called her to inform that she could “drop” everything as Ms. Patenaude had agreed to provide her with a good reference. She further alleges the director refused to deal with the mileage claims issue, telling her to send him an email about it. Ms. Carneiro alleges her union later informed her that they would not be pursuing any grievance based on the director’s assurance that she would get a good reference.
[28] In 2018, Ms. Carneiro alleges she applied for 17 jobs to escape the situation with Ms. Patenaude.
[29] On January 30, 2019, Ms. Carneiro alleges Ms. Patenaude disciplined her for leaving the office without informing her in person to attend to her father in hospital even though she left a note with a co-worker who emailed Ms. Patenaude about the situation. Ms. Carneiro alleges the supervisor would not accept her agitated state as an excuse for failing to contact her directly and told her to never do this again. She alleges Ms. Patenaude then told her that she would need a call from her, even from the emergency room, to have her leave approved.
[30] On August 30, 2019, Ms. Carneiro got a job at an adolescent treatment centre and gave two weeks notice to Ms. Patenaude.
[31] On September 12, 2019, her last day working on the Adoption team, Ms. Carneiro alleges Ms. Patenaude told her she looked like a clown and could wear the pants she had on at the Halloween party for the kids at the new office. Ms. Carneiro alleges she was in shock and did not reply to the comment as Ms. Patenaude walked away laughing. She alleges the pants were a gift from her aunts who had travelled back from her ancestral home.
[32] Overall, Ms. Carneiro alleges Ms. Patenaude’s bullying, and harassment associated with the misuse of her supervisory authority left her feeling devalued, unappreciated and unsure of herself. She alleges this mistreatment resulted in her falling into a deep depression during her time working on the Adoption team to the point where her self-esteem had been destroyed. Without the assistance of her shop steward and fiancé, she wonders how she could have survived the ordeal.
[33] In terms of her Goan race, Ms. Carneiro alleges that while working with the Adoptions team she could not take pride in her heritage or share with the co-workers about it because it was assumed that she was Hindu or Punjabi.
III. ANALYSIS AND DECISION
[34] Section 22 of the Code provides:
(1) A complaint must be filed within one year of the alleged contravention.
(2) If a continuing contravention is alleged in a complaint, the complaint must be filed within one year of the last alleged instance of the contravention.
(3) If a complaint is filed after the expiration of the time limit referred to in subsection (1) or (2), a member or panel may accept all or part of the complaint if the member or panel determines that:
(a) it is in the public interest to accept the complaint, and
(b) no substantial prejudice will result to any person because of the delay.
[35] The time limit set out in s. 22 of the Code is a substantive provision which is intended to ensure that complainants pursue their human rights remedies diligently: Chartier v. School District No. 62, 2003 BCHRT 39.
[36] The complaint was received on August 14, 2020. To comply with the one-year time limit under s. 22(1) of the Code, the alleged act of discrimination had to occur on or after August 14, 2019.
[37] A complaint is filed in time if the last allegation of discrimination happened within one year, and older allegations are part of a “continuing contravention”: Code, s. 22(2); School District v. Parent obo the Child, 2018 BCCA 136 at para. 68. A continuing contravention is “a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code, and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City) [ Chen ], 2015 BCCA 57 at para. 23; School District at para. 50.
[38] The assessment of whether discrete allegations are a continuing contravention is a “fact specific one which will depend very much on the individual circumstances of each case”: Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para. 17. A relevant consideration is whether there are significant gaps between the allegations: Dickson at paras. 16-17. Whether or not a gap is significant will be assessed contextually, considering the length itself and any explanations for the gap: Reynolds v Overwaitea Food Group, 2013 BCHRT 67, at para. 28. A significant, unexplained, gap in time will weigh against finding a continuing contravention: Bjorklund v. BC Ministry of Public Safety and Solicitor General, 2018 BCHRT 204 at para. 14.
[39] Turning then to the first question identified above, I have considered when the last instance of this alleged contravention of the Code occurred. In such an inquiry the Tribunal must be satisfied there are allegations which, if proven, could contravene the Code: Chen. Ms. Carneiro must set out facts supporting that the Respondents’ conduct had an adverse impact on her employment, and that her age, ancestry, race and physical disability was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61, at para 33.
[40] Ms. Carneiro alleges an act of discrimination on or after August 14, 2019, in respect of her complaint. She submits that the incident on September 12, 2019, when Ms. Patenaude referred to her as being dressed like a clown, is an allegation of discrimination in employment based on her personal characteristics.
[41] The MCFD argues the September 12, 2019, incident is not an allegation which, if proven, could contravene the Code. While this conduct might be considered inappropriate or unprofessional, the MCFD submits that it is not discriminatory because there is no connection to a prohibited ground of discrimination. Ms. Patenaude similarly argues that the September 12, 2019, allegation is not connected to a prohibited ground of discrimination and, therefore, does not qualify as a timely allegation of discrimination.
[42] I disagree with the Respondents’ assessment of the September 12, 2019, allegation. In the context of Ms. Carneiro wearing traditional clothing representing her Goan culture and her supervisor reacting to it by telling her that she looked like a clown, I conclude that she has made out an allegation of discrimination in that she suffered an adverse impact in her employment and her race and ancestry was a factor in the harms alleged. The connection to race and ancestry occurs in this allegation because the clothing in question, a gift from her ancestral homeland by her aunts, represented Ms. Carneiro’s Goan culture. This occurrence is a timely event capable of constituting a separate contravention of the Code.
[43] Before delving into whether Ms. Carneiro’s late allegations can be tethered to the September 12, 2019, timely allegation as a continuing contravention of the Code, it is necessary to address whether the late occurrences are allegations of discrimination or merely untimely allegations of bullying / harassment or misuse of supervisory authority. In this case, I must make determinations about the existence of arguable contraventions of the Code from 2017 onwards before embarking on the question of whether they are a succession or repetition of separate acts of discrimination of the same character.
[44] I agree with the MCFD that the allegations concerning Ms. Patenaude’s telling Ms. Carneiro, she smelled, and the Respondents’ inappropriate actions and failure to accommodate her medical condition following her motor vehicle accident are arguable contraventions of the Code. The former involves harms related to her race and ancestry, and the latter involves harms related to her physical disability.
[45] The MCFD argues that Ms. Carneiro’s allegations throughout 2017 and 2018 regarding the Respondents’ refusal to pay for her mileage for the use of her personal vehicle are not arguable contraventions of the Code as there is no clear connection between the harms and Ms. Carneiro’s personal characteristics. I disagree with that assessment. In my view, Ms. Carneiro’s height is a disability as it relates to driving a large vehicle, which is the focus of her allegations concerning payment for mileage while using her own vehicle: Fiset v. Gamble, 18 CHHR 81, at para. 30. Where she alleges the company car could not be adjusted for her to safely drive it because of her height, for the purposes of this decision I am satisfied that she has set out allegations of discrimination related to her height as a physical disability.
[46] The MCFD also argues Ms. Carneiro’s allegations related to Ms. Patenaude’s negative statements about her work and ability to do the job lack the necessary connection to a prohibited ground to be allegations of discrimination. I disagree with this assessment as it fails to consider Ms. Carneiro’s age discrimination allegation, the first instance of which occurred at the April 10, 2017, meeting. At that time Ms. Carneiro alleges that Ms. Patenaude labeled her as a lazy and entitled millennial who needed to be weeded out. In my view, the multiple subsequent allegations where Ms. Patenaude questioned the speed of Ms. Carneiro’s work, told her she was not entitled to food at a work event, kept her out of meetings she was too junior to understand, accused her of aiming too high in applying for another position in government, tricked her into not attending any staff meetings, told her to be grateful for having the job she had, told her that becoming a social worker was an unrealistic goal, and questioned her about failing to report to her in a medical emergency, are all related to Ms. Patenaude’s allegedly ageist view of Ms. Carneiro as a lazy and entitled millennial. These harms are related to ground of age and, as such, are arguable contraventions of the Code.
[47] Finally, the MCFD argues the allegation regarding Ms. Patenaude criticizing Ms. Carneiro for not wearing weather appropriate clothing in winter such that she had to wear a jacket in contrast to her appropriate summer wear, fails to connect to a prohibited ground of discrimination. I disagree with this assessment for the purposes of this decision. Ms. Carneiro’s Goan race and ancestry is obviously connected to hot climate. I do not think it is speculative to conclude Ms. Patenaude’s criticism of Mr. Carneiro for her inability to dress appropriately for a cold weather climate is not related to her race and ancestry. At this preliminary stage of the proceedings, I am not prepared to extinguish this allegation for not containing an arguable contravention of the Code given the racial stereotype that people from hot climates dress well in summer but do not know how to dress in cold winter climates.
[48] Having found multiple allegations from April 2017 to September 2019 related to Ms. Carneiro’s race and ancestry, age, and physical disabilities, it is now necessary to determine whether the timely allegation related to her clothing, dated September 12, 2019, can tether the later filed allegations stemming back to April 2017. This analysis requires me to first consider whether the allegations are of a similar nature.
[49] While appreciating that Ms. Carneiro’s allegations of discrimination involve various personal characteristics, I am satisfied that they are of a similar nature in the circumstances of this case. The MCFD and Ms. Patenaude appear to argue that the allegations are not of a similar nature because they involve different grounds of discrimination during distinct periods of time. The Respondents submit the allegations in 2017 involve race, ancestry and age, while those in 2018 involve disability. In this case distinguishing which ground of discrimination is attributed to each allegation is not particularly useful in determining whether the allegations are of a similar nature. Here, all the allegations involve a single alleged harasser, Ms. Patenaude, during the time Mr. Carneiro’s worked for her on the Adoptions team. In my view, all the allegations are similar in nature because they involve Ms. Patenaude harassing Ms. Carneiro in the workplace in her supervisory role for reasons related to Ms. Carneiro’s personal characteristics. Just because the alleged harasser utilized different personal characteristics to inflict harms on Ms. Carneiro, including her race and ancestry, age and physical disability, that does not take away from the similarity of allegations involving a supervisor harassing her subordinate for reasons related to her personal characteristics.
[50] I have next considered the existence of gaps between allegations and whether any lengthy gaps explainable. After reviewing the allegations in this case, I have determined that most gaps between allegations were well under six months, which makes them not significant for the purposes of s. 22(2) of the Code. There were several lengthy gaps, however. The first occurred between the May 30, 2018, allegation concerning Ms. Carneiro’s performance review goals being too lofty and the January 30, 2019, allegation involving Ms. Carneiro being disciplined for leaving the office without notifying Ms. Patenaude. The second lengthy gap occurred between the January 30, 2019, allegation and the September 12, 2019, pants being ridiculed allegation. The MCFD argued the gap between the January 30, 2019, allegation and the September 12, 2019, allegation was significant because it was over seven months. While agreeing with the Respondents that the Complaint contains several lengthy gaps, namely those between the May 30, 2018, and January 30, 2019, and January 30, 2019, and Sept 12, 2019, I conclude they are not significant because they are explainable in the circumstances of this case.
[51] As of September 27, 2018, the Employer’s director of operations informed Ms. Carneiro that they had spoken to Ms. Patenaude about the complaints against her and made a deal with Ms. Patenaude to provide a good reference so Ms. Carneiro could get a job outside the Adoption team. With that deal in place and Ms. Carneiro busy applying for 17 jobs in the ensuing months before she left the Adoptions team, it makes sense that Ms. Patenaude’s alleged campaign of harassment related to various grounds of discrimination eased off apart from the allegations on January 20, 2019, and September 12, 2019. In these circumstances, I am satisfied that these lengthy gaps in time are explainable and, therefore, not significant.
[52] Overall, I am satisfied that numerous arguable contraventions of the Code exist in this case from April 2017 until mid September 2019 of a similar nature in succession, apart from some lengthy explainable gaps that are not significant. As such, the Complaint is a timely continuing contravention of the Code and it is, therefore, unnecessary for me to determine whether it is in the public interest to allow any late filed allegations to proceed.
IV. CONCLUSION
[53] For these reasons, the complaint is accepted for filing as a continuing contravention of the Code: s. 22(2).
Steven Adamson
Tribunal Member