BC Human Rights Tribunal

Kwan v. Board of Education of School District No. 38 (Richmond), 2024 BCHRT 296

Date Issued: October 22, 2024
File: CS-002046

Indexed as: Kwan v. Board of Education of School District No. 38 (Richmond), 2024 BCHRT 296

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:

Kit Sum Kwan

COMPLAINANT

AND:

Board of Education of School District No. 38 (Richmond)

RESPONDENT

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

Tribunal Member: Beverly Froese

Counsel for the Complainant: Clea Parfitt and Eileen Myrdahl

Counsel for the Respondent: Michael Hancock and Michela Fiorido

---

I INTRODUCTION

[1] In July 2020, the Complainant made a complaint against the Board of Education of School District No. 38 (Richmond) [ Board ] alleging discrimination regarding their employment based on mental disability, sex, and family status. Specifically, the Complainant alleges the Board discriminated against them by not giving certain job duties to a colleague, not investigate a discriminatory comment made by their supervisor and failing to accommodate their return to work after they took a medical leave because of the impacts the comment had on their mental health.

[2] The Board denies discriminating. The Board says that at all times, it acted reasonably and in a non-discriminatory manner. The Board applies under s. 27(1)(g) of the Code to dismiss all or part of the complaint on the basis it was filed late. The Board also applies to dismiss the complaint under s. 27(1)(b) on the basis that the alleged acts or omissions do not constitute a contravention of the Code, and under s. 27(1)(c) on the basis that the complaint has no reasonable prospect of success.

[3] As explained below, I considered the Board’s application to dismiss under ss. 27(1)(b) and (g) together. For the reasons set out below, I have dismissed the allegation that the decision to give certain job duties to the Complainant’s colleague was discriminatory. I have found the remainder of the complaint is timely and should not be dismissed because it does not allege acts or omissions that, if proven, could constitute discrimination under the Code.

[4] For the reasons set out below, the Board’s application to dismiss the complaint under s. 27(1)(c) is denied. I find that because the affidavit and contemporaneous documentary is not sufficient to resolve the key issues in dispute, a hearing is required to decide whether the Complainant was discriminated against.

[5] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.

II PRELIMINARY MATTER – APPLICATION TO FILE FURTHER SUBMISSIONS

[6] Generally speaking, the Tribunal’s application process involves three submissions: the application, the response, and the reply: Rule 28(2). The Tribunal may accept further submissions when fairness requires that a party be given an opportunity to respond to new issues raised in reply: Tribunal’s Rules of Practice and Procedure [ Rules ], Rule 28(5); Kruger v. Xerox Canada Ltd. (No. 2) , 2005 BCHRT 24 at para. 17; Gichuru v. The Law Society of British Columbia (No. 2) , 2006 BCHRT 201, para. 21. The purpose of Rule 28(5) “is to avoid a sea of endless submissions, which create delay”: Umolo v. Shoppers Drug Mart and others , 2021 BCHRT 166 at para. 20.

[7] The Complainant first applies under Rule 28(3) for an extension of time to file an application under Rule 28(5) to make a further submission.

A. Application for extension of time

[8] Rule 28(3) requires a party to “notify the tribunal of the length of the extension requested and either that the other participants consent or the reasons for the request”.

[9] The Board filed its reply to the dismissal application on April 6, 2023. Under Rule 28(5), the Complainant had until April 13, 2023 to apply to make a further submission. The Complainant filed their application on April 18, 2023, which made it five days late.

[10] The Complainant says their application was filed late due to a combination of their counsel being occupied with preparing lengthy submissions on another file and miscommunication within counsel’s offices. The Complainant says their application was filed within three business days of the original deadline and no prejudice would flow to any party from the Tribunal granting the extension.

[11] The Board submits that the Complainant has not provided a satisfactory reason for making their application late. It says that at all times, the Complainant was represented by counsel and should have been able to comply with the Rules. The Board denies there were any miscommunications between the parties’ legal counsel about the Complainant’s intent to apply to make a further submission.

[12] The Board further submits that throughout the Tribunal’s process, it has already consented to multiple extensions of time, including for the Complainant to file their response and complete document disclosure. It says these extensions of time have delayed the process. The Board says the Complainant has not offered any reasonable explanation for why they failed to request consent to extend the deadline to apply to make a further submission.

[13] Last, the Board submits that the delay in applying to make a further submission is inappropriate, prejudicial, and undermines the Tribunal’s process. It says that if the Complainant’s application for an extension is granted when there is no reasonable explanation for the delay, it will be seen as an invitation for future parties to view the Tribunal’s deadlines as mere suggestions. The Board says it is not in the interests of justice or in the public interest to allow the Complainant to flout the Tribunal’s deadlines.

[14] I agree with the Board that it is important for parties to comply with the Tribunal’s deadlines and time limits in the Rules. However, in my view granting a five-day extension for the Complainant to apply to make a further submission is reasonable in these particular circumstances. My review of the file reveals that throughout this process, the Tribunal has granted extensions of time to both parties on consent. It reveals that the parties usually contacted the Tribunal in advance of the deadline to request an extension of time on consent and the parties met their extended deadlines. My review of the file does not indicate that the Complainant considered the Tribunal’s deadlines to be mere suggestions or flouted the Tribunal’s deadlines or time limits in the Rules.

[15] My understanding of the Complainant’s explanation for the delay is that Ms. Parfitt was preparing lengthy submissions on another matter and there was miscommunication between the Complainant’s legal counsel, not between their legal counsel and the Board’s legal counsel. In these circumstances, given the brief extension of time requested and the absence of prejudice to the Board, the Complainant’s application for an extension of time is granted.

B. Application to make further submission

[16] The Tribunal will only permit a party to make a further submission when all the criteria in Rule 28 have been met: Umolo at para. 20. That means that in addition to making the application within one week of receiving the reply, which has been extended in this case, the party making the application must:

a. immediately notify the Tribunal and the other party of their intent to apply to make a further submission; and

b. identify the new issue raised in the reply and why fairness requires the Tribunal consider a further submission.

[17] The Board submits that the Complainant has not complied with Rule 28 because they did not immediately notify it or the Tribunal of their intent to apply to make a further submission. The parties do not appear to dispute that the first time the Board learned of the Complainant’s intent was when the applications were filed.

[18] Rule 28(5) does not define what it means for a party to “immediately” notify the Tribunal and the other party of their intent to apply to make a further submission. In my view, it could mean sooner than when the Complainant gave notice by way of making their applications. However, given the history of this proceeding, in particular that the parties appear to have usually communicated with one another about their intentions to request extensions of time, I exercise my discretion under Rule 2(2) to waive that requirement.

[19] As the Board provided evidence, case law and argument that was not included in the dismissal application, I find that fairness requires the Complainant be permitted to make a further submission. Specifically, I find it fair and reasonable in the circumstances to accept the Complainant’s further submission regarding the affidavit and documentary evidence filed in support of the Board’s reply, and the Board’s argument and case law regarding an employer’s duty to investigate and accommodate. Accepting the further submission ensures I have all relevant evidence, case law, and argument before me when deciding whether the complaint, or any part of it, should be dismissed.

III BACKGROUND

[20] The Board is a public board of education established by the School Act. It provides educational programs to students enrolled in public schools in School District No. 38 (Richmond). At all material times, the Board was a party to a collective agreement with the Richmond Teachers’ Association [ Union ].

[21] From 2009 to 2015, the Complainant was employed by the Board as a resource teacher at one of the District’s secondary schools [ School ]. For most of that time, the Complainant was supervised by an individual I will refer to as the Supervisor.

[22] In 2015, the Complainant started working as a special needs education teacher consultant in the Board’s Learning Services Department [ Department ] under the Supervisor’s supervision. Over the next few months, the Complainant proposed, developed, and implemented a job-readiness program for students with special needs [ Program ].

[23] In the fall of 2016, the Complainant’s duties were changed. After that, the Complainant was supervised by both the Supervisor and one of the District’s Administrators [ Administrator ]. The Board says that near the end of the 2017/18 school year, it decided that it would be more efficient to place responsibility for the Program and another District program with one person in the Department [ Combined Caseload ].

[24] The Complainant and another teacher [ Teacher ] were both interested in having responsibility for the Combined Caseload. The Board ultimately assigned responsibility for the Combined Caseload to the Teacher. The Board says the Supervisor decided to give the Teacher responsibility for the Combined Caseload because she had a longer length of service with the Board than the Complainant. The parties dispute whether a formal posting process was required under the collective agreement before the Combined Caseload was assigned to the Teacher.

[25] Around mid-June 2018, the Supervisor asked the Complainant to meet with him so he could let them know they were not selected to take on the Combined Caseload. The parties do not dispute that the Supervisor denied the Complainant’s request to have a co-worker also attend the meeting. The Board says the Supervisor did not think it was appropriate for the co-worker to attend out of concern for the sensitive nature of the discussion. At the meeting, the Supervisor told the Complainant they were not selected for the Combined Caseload. The Supervisor says he told the Complainant that other options were available, including remaining in the Department or returning to work in a school as a resource teacher. The Supervisor says he encouraged the Complainant to do what they thought was best for them and that the Board would be happy if they stayed in the Department.

[26] The Complainant says they were shocked by the news that they would not get the Combined Caseload. The Complainant says they were trying to process the news and asked the Supervisor what they would do now. The Complainant says the Supervisor said, “you can find another job or try other avenues, or you can be like my wife and just work out” [ Alleged Comment ]. The Complainant says they were shocked and felt demeaned and humiliated by the Alleged Comment. The Complainant says it felt like the Alleged Comment meant the Supervisor viewed them as less valuable, at least in part because he viewed them as a woman. The Complainant says the Alleged Comment made them feel that as a person perceived to be a woman, and that their looks were important but not their work.

[27] The Complainant also alleges that the Alleged Comment was based on the assumption that working was optional and their commitment to their job and vocation was dismissed because they did not need to work to support themselves financially. The Complainant says their extended family is wealthy and that from a financial perspective, they do not have to work to support themselves. The Complainant says their “large and opulent wedding” in 2011 became a source of conversation among colleagues who did not previously know their family was wealthy. The Complainant says these workplace conversations were widespread, and they believe the Supervisor could not have avoided knowing about their family’s wealth.

[28] The Complainant also says they were alarmed by the Supervisor comparing them to his wife. The Complainant says they found the Alleged Comment unprofessional and was concerned the Supervisor might attempt to sexualize their working relationship in some way.

[29] The Supervisor denies making the Alleged Comment or saying any words to that effect. He says the conversation he had with the Complainant was professional. The Supervisor also denies knowing the Complainant came from an extended family of significant means.

[30] The Complainant says they were upset and tearful when they left the meeting. The Complainant says they went home after leaving the Supervisor’s office and told their husband and co-worker about what happened.

[31] The Complainant took two sick days before the end of the school year, one of them being the last day of the school year. The evening before the last day of school, the Complainant emailed the Administrator to say they would be away sick the next day. The Complainant sent regrets for missing lunch and told the Administrator to take care and have a good summer.

[32] The Complainant says they struggled significantly in the summer of 2018. More particularly, the Complainant says they found it difficult to eat and sleep, and they were irritable and depressed. The Complainant says they ruminated over the Alleged Comment and was stressed and anxious about going back to work. The Complainant says they first went to their general practitioner [ Doctor ] in early July 2018 and tried to explain their symptoms as being related to something other than the Alleged Comment. The Complainant says they saw the Doctor again in late August 2018 because their symptoms were ongoing, and they were having intense anxiety attacks. Around that time the Doctor wrote a note that was provided to the District that said the Complainant was too ill to work and needed to be off work until the end of October 2018.

[33] In early September 2018, the Complainant emailed the Administrator and said they wanted to share something confidential. In their email, the Complainant said the summer had been “quite traumatizing” and they were experiencing health issues. The Complainant also said they were overwhelmed with managing supports and appointments in their personal life and asked the Administrator to be discrete because their situation was “highly sensitive”.

[34] A few days later, the Administrator responded to the Complainant’s email and told the Complainant to follow their doctors’ recommendations. The Administrator also told the Complainant she hoped things went well and the Complainant replied by saying the Doctor recommended they be off work until at least the end of October 2018.

[35] The Board says that because nothing in the Complainant’s email linked, or suggested to link, their health issues to the workplace, the Administrator did not ask the Complainant what was traumatizing them or what caused their health issues. The Board says that would have been inappropriate and an unreasonable collection of an employee’s personal information and was unnecessary for the purposes of any potential accommodation of the Complainant’s return to work.

[36] In early October 2018, the Complainant’s husband delivered a note from the Doctor to the District. The note was dated in late August 2018 and said that the Complainant was “seen for a medical illness that precludes [them] from working” and that they are “not able to cope with [their] work [they] are quite unwell”. The note also said the Complainant was not able to work until the end of October 2018.

[37] Around mid-October 2018, the Complainant provided another note from the Doctor that said the Complainant needed to stay off work from November 1, 2018 to July 1, 2019. In this note, the Doctor said the Complainant needed an extended medical leave due to depressive disorder and needed to be reassessed over time. The District Administrator, Human Resources – Teaching [ HR Administrator ] responded to the Complainant and told them that in accordance with the collective agreement, their position would be held for one year but if they were on leave for more than one year, they would need to go through the “post/fill process”.

[38] The Complainant says that around mid-October 2018, their Doctor referred them to a psychiatrist. The documentary evidence indicates that the Complainant informed their employer that their condition was getting more severe, and they were being referred to additional specialists.

[39] The Complainant says that after using their banked sick days, they went on a medical leave starting at the beginning of November 2018. The Complainant says that in early December 2018, they were diagnosed with Major Depressive Disorder, General Anxiety Disorder, and possible Post-Traumatic Stress Disorder. The Complainant says they were very ill and could only manage basic tasks of daily living. The Complainant says they started seeing a psychiatrist in February 2019 and the sessions focused in part on their anxiety related to the Alleged Comment.

[40] Near the end of March 2019, the Complainant informed the District that they wanted to return to work in September 2019. Around mid-April 2019, the HR Administrator told the Complainant that because they had been on a medical leave for a full school year, they needed to secure a new position through the post/fill process. The HR Administrator also told the Complainant that even though their former position had not been held for them, they could reapply for it because was going to be posted as a vacant continuing position. The Complainant says they declined to apply for their former position because the Supervisor would be their direct supervisor. There is no evidence before me indicating that the Complainant informed the HR Administrator or anyone else at the District at the time that this was the reason they did not apply.

[41] The Board says that when preparing for the Complainant’s anticipated return to work, the Complainant was presented with several suitable options, both within and outside the Department. The parties do not appear to dispute that in June 2019, the Complainant applied for a certain position. They also do not appear to dispute that the Supervisor was one of the people interviewing applicants for the position. The parties do, however, have different versions of what happened during the hiring process.

[42] The Complainant says the prospect of being interviewed by the Supervisor was “extremely anxiety-provoking and upsetting”. The Complainant says they initially agreed to schedule an interview just to buy time for the Union to intervene. The Complainant says they contacted the Union, who then contacted the District “to explain the issue with having [the Supervisor] conduct the interview”. The Complainant says the District insisted they be interviewed by the Supervisor and the only accommodation offered was to have a human resources representative present for the interview. The Complainant says the Union suggested they rely on written materials rather than an interview, which is permitted by the collective agreement. The Complainant says they relied on the Union to communicate with the District, and did not attend the scheduled interview or get the position.

[43] The Board says it was informed by the Union that the Complainant did not want to interview for the position because the Supervisor would be one of the people interviewing applicants, and the Complainant was unhappy with the Supervisor for not giving them the Combined Caseload. The Board denies the Union informed it about the Alleged Comment or any connection between the Complainant’s disabilities and the prospect of being interviewed by the Supervisor. The Board says it did not insist that the Complainant be interviewed by the Supervisor. The Board also says the Complainant did not get the position because they did not have the necessary qualifications, and a fully qualified candidate had also applied.

[44] Near the end of June 2019, the Complainant applied for another position with the District. The Complainant says they were given only three hours’ notice to come in for an interview and they were not able to do so due to their medical condition. The Complainant says they followed up about the position in early July 2019 but never received a response. The documentary evidence indicates that the posting for this position was cancelled because of changes to the position.

[45] Around mid-July 2019, the HR Administrator wrote to the Complainant to let them know their previous role with the Department had become available. The Board says the Administrator was the sole supervisor for this position, but the Complainant rejected this opportunity. The Complainant says that since the Administrator’s supervisor was the Supervisor, they declined the position because it would have been harmful to their mental health. The Complainant also says the District rejected their proposed alternative supervisory structure for their former position. The documentary evidence indicates that at the time, the Complainant only told the HR Administrator they were not ready to make a decision about the job.

[46] The parties do not appear to dispute that the Complainant’s former position was the only job in the Department that was offered as an option to the Complainant.

[47] In late July 2019, the Complainant sustained injuries in an accident. The Complainant says that as a result of their injuries, they could not return to work in September 2019.

[48] In late August 2019, the Complainant emailed the District’s executive and copied the Union’s president and vice president. The Complainant says they emailed the executive because they were desperate to get their teaching evaluation and find work outside the District. In their email, the Complainant said:

I need a teaching evaluation report from one of your employees – [Supervisor]. … I’ve contacted HR and the union, the report does not exist and I never got one at no fault of mine.

…

I need the report, preferably by Aug 27 next week. I’m writing to you as I do not feel safe contacting [Supervisor] due to his past commentary at SBO. I can offer more to the world than throwing myself on a thigh master at they gym. Thank goodness for good people, restoring my faith in men.

If there’s something else I can do to advocate, as I have done in the past … do advise. If you could keep this email confidential, please and thanks. If additional information is needed, email is best.

[49] The Board says the Complainant’s email was the first time it learned of a possible incident between Complainant and the Supervisor. Less than two hours after the Complainant’s email was sent, the Union’s president responded to the District and said:

I have just read [Complainant’s] email. I will be connecting with [them] about the contents of this email and the support [they need] from the union. I was not aware of [Complainant’s] biking accident and do not know when this occurred.

Unfortunately, the evaluation [Complainant] speaks of was not completed. This was a complicated year — the spring of 2014 and job action.

[50] The parties appear to agree that the Union never contacted anyone at the District after the Complainant sent the August 2019 email. They also appear to agree that no one from the District pursued the matter, including contacting the Complainant to ask why they did not feel safe contacting the Supervisor. Lastly, the parties appear to agree that the Complainant never received a teaching evaluation from when they taught at the School.

[51] Sometime in August 2019, the HR Administrator contacted the Complainant about at least one position at one of the District’s secondary schools. The parties do not appear to dispute that the Complainant did not respond to the HR Administrator. The Complainant says that at the time they had limited capacity to respond or advocate for themselves because of the injuries they sustained in the accident. The Complainant also says that by that time they had concluded they were unlikely to find suitable employment within the District and was pursuing work elsewhere.

[52] In September 2019, the Complainant accepted a job with another school district. In December 2019, the Complainant went on a medical leave. In February 2020, the Complainant started a part-time job with another school district.

IV DECISION

A. Section 27(1)(g)

[53] I begin my analysis with the Board’s argument that most of the allegations in the complaint are untimely and should be dismissed.

1. Are the allegations in the complaint timely?

[54] There is a one-year time limit for filing a human rights complaint: Code, s. 22. Section 22 is meant to ensure that complainants pursue their human rights remedies promptly so that respondents can go ahead with their activities without the possibility of a dated complaint: Chartier v. School District No. 62, 2003 BCHRT 39 at para. 12. Section 27(1)(g) of the Code permits the Tribunal to dismiss a late-filed complaint or late-filed allegations.

[55] The complaint was filed on July 24, 2020. That means to be timely, there must be at least one allegation of discrimination that occurred on or after July 24, 2019. I find that the complaint contains two timely allegations. The first is that the Board failed to investigate why the Complainant did not feel safe communicating directly with the Supervisor after it received their email in August 2019. The second is the Complainant’s allegation that the Board failed to accommodate their return to work by providing them with a teaching evaluation when they requested it in August 2019. As I understand it, the Complainant is not alleging they were discriminated against in 2014 when the teaching evaluation was not completed. Rather, the Complainant alleges that when they requested a teaching evaluation so they could look for work outside the District, the Board’s failure to accommodate them by completing it despite having the necessary paperwork to do so was discriminatory.

[56] The Board argues that all other allegations in the complaint are late filed and should be dismissed under s. 27(1)(g) of the Code. The issues I must decide are: (1) whether those allegations contain facts that, if proven, could constitute a violation of the Code ; (2) if so, whether they are late filed, and (3) if so, whether to exercise my discretion to accept them because it is in the public interest to do so and there is no substantial prejudice to any person because of the delay: Code, s. 22(3), School District v. Parent obo the Child, 2018 BCCA 136 at para. 68 .

[57] Based on my review of the complaint and the parties’ submissions, the remaining allegations against the Board are that it discriminated against the Complainant when:

a. the Combined Caseload was assigned to the Teacher [ Decision Allegation ][1] ;

b. the Supervisor made the Alleged Comment;

c. it failed to provide a discrimination-free workplace and accommodate the Complainant’s return to work, specifically by:

i. failing to hold the Complainant’s position while they were on medical leave because of the impacts of the Alleged Comment on their mental health;

ii. failing to investigate why the Complainant did not want to be interviewed by the Supervisor or directly or indirectly supervised by the Supervisor, and failing to provide the Complainant with an interview that did not involve the Supervisor; and

iii. failing to find suitable alternative positions for the Complainant within the District.

[together, the Failure to Respond Allegation ]

[58] The above allegations are timely if they are part of an alleged “continuing contravention”: Code, s. 22(2); School District v. Parent obo the Child , 2018 BCCA 136 at para. 68 . A continuing contravention is “a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code, and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City), 2015 BCCA 57 at para. 23 ; School District at para. 50 . To be a continuing contravention, the alleged conduct must be “sufficiently similar in character, sufficiently frequent, or sufficiently close in time”: Dove v. GVRD and others (No. 3), 2006 BCHRT 374 [ Dove No. 3 ] at para. 18.

[59] The onus is on the Complainant to establish that the complaint alleges a continuing contravention: Dove No. 3 at para. 21; Mother obo Child v. The Society, 2018 BCHRT 272 at para. 34. The assessment 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 .

[60] My analysis takes into consideration “the purpose of the Code, including ensuring that individuals who claim to have suffered discrimination are given a means of redress while at the same time ensuring that respondents are treated fairly”: Dove No. 3 at para. 20. At the end of the day, my goal is to try to “draw the line in a fair, principled and reasoned way”: Dove No. 3 at para. 20.

2. Do the allegations contain facts that, if proven, could constitute a violation of the Code?

[61] The first step of my analysis is to determine whether each of the allegations contains acts or omissions that, if proven, could constitute a violation of the Code. To do that, I take into consideration the parties’ submissions under s. 27(1)(b) of the Code , which allows the Tribunal to dismiss all or part of a complaint on that basis. Under s. 27(1)(b), the Tribunal only considers the allegations in the complaint and information provided by the complainant. It does not consider alternative scenarios or explanations provided by the respondent: Bailey v. BC (Attorney General) (No. 2), 2006 BCHRT 168 at para. 12; Goddard v. Dixon, 2012 BCSC 161 at para. 100; Francescutti v. Vancouver (City), 2017 BCCA 242 at para. 49. The threshold for a complainant to allege a possible contravention of the Code is low:Gichuru v. Vancouver Swing Society, 2021 BCCA 103 at para. 56.

[62] Each of the allegations must set out facts that, if proven, could establish that the Complainant had one or more characteristics protected by the Code, they were adversely impacted regarding their employment with the Board, and their protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. More is required of a complainant than being a member of a protected group and alleging they experienced an employment-related adverse impact: Morton v. London Drugs, 2015 BCHRT 75 at para. 43. Put another way, an allegation that an employer’s conduct exacerbated a complainant’s mental disability or impacted their mental health is not enough. The complaint must allege sufficient facts on which a reasonable inference could be drawn that there is a nexus between the complainant’s protected characteristic and the adverse impact.

a. The Decision Allegation

[63] The Complainant alleges that the decision to give the Combined Caseload to the Teacher was arbitrary, an abuse of power, and discrimination based on sex. In the complaint, the Complainant alleges that the Supervisor dismissed their more than 10 years of hard work and sacrifices and “placed little or no value on the skills, passion, and commitment the Complainant had brought to a highly specialised and challenging position within special needs education in the District”. The Complainant alleges that the Supervisor’s decision “signalled that the Complainant did not belong in the workplace, despite its outward commitment to inclusion and diversity”. In their response to this application, the Complainant alleges that the Supervisor’s decision represented a continuation of his history of using their work for his own benefit without giving them sufficient or any credit. The Complainant also alleges that the Teacher was not equally qualified to take on the Combined Caseload because she did not have the requisite skills regarding developing work experience opportunities for students with special needs.

[64] The Complainant submits that it will be reasonable for the Tribunal to infer that their sex was a factor in the Supervisor’s lack of recognition of their efforts, creativity, and skill in the workplace. The Complainant further submits that the Supervisor’s failure to fully recognize their skills must be viewed in the context of systemic under-recognition and under-valuation of women’s work, for which it is open to the Tribunal to take notice.

[65] Last, the Complainant submits that their gender cannot be extricated from the way they are racialized as a person of Chinese descent living in Canada. Specifically, the Complainant says it is likely that racial stereotypes about Asian women being meek and were factors in the Supervisor’s failure to properly and fully recognize and value their work. I note here that in their complaint, the Complainant did not allege discrimination based on race or place of origin, nor have they amended the complaint to add either or both those grounds.

[66] I agree with the Complainant that properly understanding the broader social context within which the events that are the subject of an individual complaint can be vital to determining if discrimination occurred. However, there is no presumption of discrimination and “[a]ny inference of discrimination must be rooted in the evidence of a particular case”: Campbell v. Vancouver Police Board (No. 4), 2019 BCHRT 275 at para. 104. In other words, it is not enough for the Complainant to allege they were discriminated against because they experienced the adverse impact of not being given the Combined Caseload and there is systemic under-recognition and under-valuing of women’s work.

[67] For the purposes of my analysis, I assume that the Complainant’s factual allegations are true. Even on that assumption, I find there are no alleged acts or omissions that, if proven, would establish or lead to an inference that the Complainant’s sex was a factor in the Supervisor’s decision to give the Combined Caseload to the Teacher. The Complainant needs to do more than simply assert there is a nexus. In my view, this allegation is similar to the cases cited by the Board, namely Gunn v. Atsma, 2005 BCHRT 36 and Engler v. Coast Mountain Bus Company and another , 2009 BCHRT 206. In those cases, the Tribunal dismissed the complaints under s. 27(1)(b) because the complainants had not alleged facts supporting a nexus between the respondents’ conduct and their protected characteristics that would take their complaint out of the realm of conjecture.

[68] Given my conclusion, the Decision Allegation is dismissed under s. 27(1)(b) of the Code and does not form part of the complaint.

[69] I note here that before deciding to dismiss the Decision Allegation, I considered the Complainant’s argument that doing so would fail to take into account the BC Supreme Court’s direction in Byelkova v. Fraser Health Authority , 2021 BCSC 1312. In that case, the Court recognized that in exercising its gatekeeping function under s. 27(1) of the Code, there may be risks in dismissing only part of a complaint before a hearing. The Court observed that this may be because no efficiencies would ultimately be gained, or it “could also later prove embarrassing, in the sense of prompting inconsistent adjudicative decisions or foreclosing otherwise appropriate findings due to past rulings”: at para. 115. I have taken the Court’s comments in Byelkova into account and am satisfied that the risks referred to do not apply in this situation.

b. The Alleged Comment

[70] The Complainant alleges that the Alleged Comment is discrimination based on sex and family status.

[71] The Board argues that the complaint does not allege an arguable contravention of the Code based on sex or family status. The Board says the Complainant’s attempt to link their sex and family status to the Alleged Comment is insufficient. The Board says it is a significant leap to allege that the Supervisor made the Alleged Comment because he viewed the Complainant as a less valuable employee based on sex and that their looks were important, but their work was not. The Board further says it is a significant leap to infer the Alleged Comment was a clear reference to the Complainant’s family circumstances and the fact that the Complainant did not need to work to financially support themselves.

[72] The Board also argues that the Alleged Comment, which it denies occurred, does not amount to discrimination. The Board says that if the Alleged Comment was made, at worst “it constitutes one uncharacteristic, off-base, off-hand comment made in a misguided attempt to lighten an uncomfortable and awkward situation”. In support of its argument, the Board cites Cima v. Intact Distributors Inc., 2015 BCHRT 140, Feleke v. Cox, 2009 BCHRT 7 and Banwait v. Forsyth (No. 2) , 2008 BCHRT 81, where the Tribunal dismissed complaints on the basis that a single comment did not constitute discrimination, even when it was in poor taste and had a negative impact on the complainant.

[73] I agree with the Board that sometimes a single, isolated incident that adversely impacts a complainant is not a breach of the Code . However, the assessment of whether a single comment or isolated incident constitutes discrimination is contextual and depends on the particular facts of the case: Banwait at para. 160; Beharrell v. EVL Nursery , 2018 BCHRT 62 at para. 37. I note here that most of the cases the Board cites were not made on an application to dismiss, but after a hearing on the merits.

[74] The Complainant alleges that the Alleged Comment clearly analogized them to the Supervisor’s wife, “whom he suggested worked out instead of working”. The Complainant says the Alleged Comment reflects the negative stereotype that women who do not work merely work on their appearance. The Complainant alleges that the Alleged Comment fails to acknowledge their skills and contribution to the workplace and that just because they do not need to work because of their family’s wealth, they should work on their appearance. Although this case is about a single comment, the Tribunal recognized at para. 116 of The Sales Associate v. Aurora Biomed Inc. and others (No. 3) , 2021 BCHRT 5 that:

Women have long fought for the right to be evaluated on their merits. One persistent barrier to that goal is the conflation of a woman’s worth with her appearance. Society continues to impose expectations on women to be pleasing to the people around them, particularly men. Their appearance and outward manner are important components of that. … Most often, these are not burdens or messages shared with men. The impact of this type of behaviour is to subtly reinforce gendered power hierarchies in a workplace and, in doing so, to deny women equal access to that space.

[75] The Board also argues that the Complainant is attempting to “incorrectly shoehorn” the Alleged Comment into the complaint by alleging it was based on family status. The Board submits that the Complainant is really alleging that the Alleged Comment was based on their socioeconomic status, which is not a characteristic protected under the Code. The Board says that “family status” refers to the relationship between a complainant and their spouse or family member and “cannot be conflated with an allegation of discrimination based on the perceived socioeconomic status of a family member”.

[76] The Complainant does not dispute that socioeconomic status is not a protected characteristic. Rather, the Complainant submits that they are not alleging discrimination based on socioeconomic status. The Complainant says that differential treatment arising from views about a person’s family of origin falls within the protected characteristic of family status, even if those views relate to the family’s socioeconomic status. The Complainant says the Alleged Comment was connected to their family status, as it appeared to devalue their work because they are not financially dependent on employment because of their family’s wealth. The Complainant also says that but for their family status, the Supervisor would not have made the Alleged Comment the way he did.

[77] The term “family status” is not defined in the Code and the Tribunal has noted that it “must be given a broad and liberal interpretation so as to best achieve the legislation’s public purposes”: Bach v. BC Ministry of Finance, 2024 BCHRT 145 at para. 17. In British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168, the BC Court of Appeal stated that “the Legislature purposefully left the ambit of family status discrimination to be developed by the courts through the case law, in order to give the definition adequate flexibility”: at para. 91.

[78] The Board has made valid arguments. However, at this stage of the proceeding I am not persuaded that this allegation does not allege sufficient facts that, if proven, could support a finding of discrimination based on sex and/or family status. For that reason, the Board’s application to dismiss this allegation under s. 27(1)(b) is denied.

c. Failure to Respond Allegation

[79] The Board argues that this allegation is “devoid of particulars that even purport to establish a nexus between the Complainant’s sex, family status or mental disability” and the alleged treatment. The Board argues that this allegation is based on bald assertions and conjecture. I disagree.

[80] An employer has an obligation under the Code to investigate complaints of discrimination based on a protected characteristic raised by an employee and “respond in a reasonable manner”: Beharrell at para. 33. As the Tribunal noted at para. 273 of The Employee v. The University and another (No. 2) , 2020 BCHRT 12:

The failure to investigate a complaint of discrimination can independently cause harm, and therefore, can independently be a discriminatory breach under the Code. It is for these reasons that a complaint of failure to respond can proceed on its own merits even if the underlying complaint which gave rise to the duty is found to be unproven. An employer’s liability flows from its own obligations to respond appropriately to complaints that arise between its employees. An employer has an obligation to have a discrimination-free work environment. In general, this requires that appropriate policies and procedures are in place, and that an employer respond appropriately to complaints, whether or not a complainant is ultimately able to establish the underlying allegations of inappropriate conduct.

[81] In my view, the Complainant has made sufficiently particularized allegations of how they say their employer failed to meet its obligation under the Code. The essence of this allegation is that the Complainant was required to take a medical leave because of the impacts of the Alleged Comment on their mental health. The Complainant alleges that their employer failed to inquire about and investigate why they could not be interviewed or supervised by the Supervisor, and failed to accommodate their return to work, for instance by finding a suitable alternate position or providing them with a teaching evaluation so they could look for work outside the District.

[82] I am satisfied that this allegation contains sufficient facts that, if proven, could establish that the Complainant was discriminated against based on their sex, family status, and mental disability. For that reason, the Board’s application to dismiss this allegation under s. 27(1)(b) is denied.

3. Are the Alleged Comment and Failure to Respond Allegations a continuing contravention of the Code?

[83] Having found that the Alleged Comment and the Failure to Respond Allegation could, if proven, be separate acts of discrimination, I now consider whether they are part of an alleged continuing contravention.

[84] In my view, the Alleged Comment and Failure to Respond allegations are sufficiently similar in character to the timely allegations from August 2019 in that they are part of a sequence of events beginning with the Alleged Comment and ending with the District’s response. The common thread that links all the allegations is the Board’s obligation to provide a discrimination-free workplace and accommodate the Complainant’s return to work. The Tribunal has recognized that a continuing series of events or an ongoing failure to accommodate an employee can constitute a continuing contravention: Webber v. Alcan Incorporated, 2004 BCHRT 52 at para. 39; Dove No. 3 at paras. 17-20; Penner v. B.C. (Ministry of Public Safety and Solicitor General) , 2005 BCHRT 465 at para. 11.

[85] The Board argues that the gaps in time between the allegations weigh against a finding that they are a continuing contravention. In support of its argument, the Board cites Kafer v. Sleep Country Canada and another , 2013 BCHRT 137, where the Tribunal found there was no continuing contravention when there was a gap of seven months. In that case, the Tribunal found that the series of allegations of sexual harassment included sufficient facts and were similar in character. However, the Tribunal did not find the allegations to be a continuing contravention because the gaps between the allegations were too substantial. In that case, the gap between the most recent allegation and the timely allegation was seven months and the gap between the last two allegations was at least one year.

[86] The Board also cites Saari v. Evergreen Industries, 2016 BCHRT 31 where the Tribunal found that two allegations were not a continuing contravention because the gaps between them and the timely allegation were 12 and 15 months, respectively. In Saari, the Tribunal said that a gap of over a year between allegations was “extreme”: at para. 24.

[87] In this case, the gap between the Alleged Comment and the allegation that the Complainant was discriminated against when their position was not kept open in April 2019 is about eight months. The gap between that allegation and the allegations that the Complainant was discriminated against in June and July 2019 is about three months. The gap between those allegations and the timely allegations from August 2019 is about one month. The Complainant’s explanation for the gaps between the allegations is that they were off work on a medical leave and did not have continuing contact with the District during that time because of the severity of their illness.

[88] In my view, this situation is not comparable to that in Kafer or Saari. While the longest gap between allegations is substantial, it is not unexplained. The remaining gaps are much shorter and cover the period of time when there was communication between the Complainant and the District about their return to work. For these reasons, I am satisfied that the Alleged Comment and the Failure to Respond allegations are a continuing contravention.

[89] I disagree with the Board’s argument that finding these allegations to be a continuing contravention “is effectively allowing the Complainant to ground their late-filed allegations in an argument that the District did not respond to their liking”. In support of that argument, the Board cites Sones v. District of Squamish, 2016 BCHRT 99 at para. 52 where the Tribunal said at para 52:

I have concluded that it is not consistent with the purposes of the Code to permit employees to follow internal processes such as arbitrations and grievances under labour agreements and then file complaints where the outcome of those processes are not to their liking, no matter how long those processes may take.

[90] In Sones, the complainant filed their complaint after an investigation into her allegations of sexual harassment was done and her union did not file a grievance. I agree with the Complainant that in this case, the complaint is about the lack of an internal process rather than dissatisfaction or disagreement with the outcome of an internal process.

[91] Having found the Alleged Comment and the Failure to Respond allegations to be a continuing contravention, there is no need for me to consider whether they should be accepted under s. 22(3) of the Code.

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

[92] The Board applies to dismiss complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c) The onus is on the Board to establish the basis for dismissal.

[93] 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.

[94] 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; see also Hales v. ICBC , 2012 BCHRT 197 at paras. 38-39 and Ibrahim v. Coast Mountain Bus Company , 2013 BCHRT 201 at para. 80. When assessing the likelihood of success, “the Tribunal looks for internal and external consistency, and considers the evidence in context, in light of the overall relationship of the parties and all of the circumstances in which the alleged discrimination occurred: Wagner v. BC Children’s Hospital Foundation, 2018 BCHRT 190 at para. 67.

[95] 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 ; Wagner at para. 69.

[96] 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 ; Ibrahim v. Coast Mountain Bus Company, 2013 BCHRT 201 at para. 80.

[97] 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.

[98] To prove their complaint at a hearing, the Complainant will have to prove they have a characteristic protected by the Code, was adversely impacted regarding their employment with the District, and their protected characteristic was a factor in the adverse impact: Moore at para. 33. If they did that, the burden would shift to the District to justify the impact as a bona fide occupational requirement. If the impact is justified, there is no discrimination.

[99] A respondent may argue that a complaint has no reasonable prospect of success because it is reasonably certain to prove a defence at the hearing: Purdy v. Douglas College and others, 2016 BCHRT 117 at para. 50; O’Beirne v. District of Mission, 2020 BCHRT 199 at para. 53. 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 performance of the job, (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 the complainant to the point of undue hardship: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin Grievance), [1999] 3 SCR 3 at para. 54 .

[100] The Board’s argument is two-fold. First, the Board argues that the complaint has no reasonable prospect of success because the Complainant will not be able to establish a nexus between any adverse impacts they experienced and their mental disability, sex, or family status.

[101] In its application, the Board says the District had no indication there were any issues between the Complainant and the Supervisor until the Complainant’s August 2019 email. The Board says its decision at the time not to investigate further was reasonable because the Union said it would contact the Complainant and the District never heard anything more. The Board says its understanding was that a grievance might be made if the Complainant’s concerns had merit or needed to be explored or investigated further, but the Union never filed a formal complaint or grievance.

[102] In its further submission, the Board says it acted appropriately because the Complainant did not raise any concerns about discrimination until they filed this complaint. The Board says the Complainant’s August 2019 email was too vague to trigger its duty to inquire or investigate. The Board further says that had the Complainant raised concerns about discrimination, it would have responded in accordance with its applicable policies and processes.

[103] The Complainant argues that the District was on notice since at least June 2019 that something had happened between them and the Supervisor that caused them to be unwilling to be in the same room with him or only accept a job if it was not directly or indirectly supervised by him. The Complainant further argues that after it received their August 2019 email, the District had an obligation to make inquiries and investigate potentially discriminatory conduct and that it cannot offload that responsibility onto the Union. In their further submission, the Complainant argues that not filing a formal complaint against the Supervisor does not relieve the Board or the District of its obligations under the Code .

[104] Second, the Board argues it is reasonably certain to establish that it accommodated the Complainant’s return to work. Specifically, the Board says it satisfied its duty to accommodate the Complainant because it acted in accordance with the collective agreement and offered the Complainant their former position and other suitable alternate positions. The Board says there were several job opportunities in different roles with different supervisors, but the Complainant failed to pursue any of these opportunities.

[105] The Complainant has a different version of events. The Complainant says the Board has not provided evidence that suitable positions were available or details about other jobs that might have been available that had a level of responsibility relative to their experience. The Complainant also says the District knew their absence related to trauma yet made no inquiries about what they needed to successfully return to work.

[106] In support of its arguments, the Board cites KB v. SS, 2016 BCHRT 61 and Wenta v. Trolar Management, 2016 BCHRT 199, where the Tribunal dismissed complaints on the basis that the complainant had not provided their employer with sufficient medical information to trigger the employer’s duty to inquire or accommodate them. In my view, those cases are of limited assistance. In KB, the Tribunal Member stated that they would have denied the application to dismiss had the evidence not indicated that the employer did inquire about the complainant’s medical condition before terminating his employment: at para. 127. In Wenta, the complainant never alleged that she informed her employer that she had a mental disability and the only medical information she provided her employer was a one-line doctor’s note stating that because of an acute illness, she could not work for one week.

[107] The parties disagree on whether the Tribunal has sufficient evidence before it to decide whether the complaint has a reasonable prospect of success. The Board argues that there is sufficient evidence to make that decision, even regarding the Alleged Comment. The Complainant argues that the complaint, in particular the Alleged Comment, “can only be addressed through full oral evidence and cross-examination”.

[108] Based on my review of the complaint, the response, and the parties’ submissions, it appears that the key issues to be decided at the hearing include the following:

a. Did the Supervisor make the Alleged Comment?

b. If so, was the Alleged Comment discriminatory?

c. Was the Board’s duty to investigate the Alleged Comment ever triggered?

d. Was the Board ever obligated to inquire about the Complainant’s medical condition to determine if they might require accommodation to return to work?

e. Did the Complainant fulfill their obligation to bring to their employer’s attention the facts relating to the alleged discrimination and facilitate the search for accommodation? [Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970]

f. Did the Board satisfy its obligation to reasonably accommodate the Complainant’s return to work?

[109] Both parties have provided affidavit and contemporaneous documentary evidence to support their arguments. I find, however, that this evidence is not enough for me to assess whether the complaint has a reasonable prospect of success. Given the number of key factual issues in dispute, in my view a hearing is required so the Tribunal may make factual findings on a full evidentiary record. For that reason, the Board’s application to dismiss the complaint under s. 27(1)(c) is denied.

[110] In denying the Board’s application, I am not saying that the Complainant will be successful at a hearing. I make no findings on the merits of the complaint. All I am saying is that the central issues in dispute are “best left for a hearing where the competing evidence can be fully explored and tested on cross-examination”: Beharrell at para. 32.

V CONCLUSION

[111] The Board’s application to dismiss all or part of the complaint under s. 27(1)(g) of the Code is granted in part. The Decision Allegation is dismissed and does not form part of the complaint. The Alleged Comment and Failure to Respond allegations are accepted as part of the complaint because they are a continuing contravention.

[112] The Board’s application to dismiss the complaint under s. 27(1)(c) of the Code is denied. The complaint will proceed to a hearing.

Beverly Froese

Tribunal Member