Clarke v. City of Vancouver and another, 2024 BCHRT 298
Date Issued: October 23, 2024
File: CS-000990
Indexed as: Clarke v. City of Vancouver and another, 2024 BCHRT 298
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:
Christopher Clarke
COMPLAINANT
AND:
City of Vancouver and Mike Greensill
RESPONDENTS
REASONS FOR DECISION
Tribunal Member: Devyn Cousineau
Counsel for the Complainant: Larry Smeets
Counsel for the Respondents: Gabrielle Scorer and Andrew Peng
Date of Hearing: Dec 4-8, 2023; Feb 13-15 and 23, 2024
Closing submissions complete: May 14, 2024
Location of Hearing: Via videoconference
I INTRODUCTION
[1] Christopher Clarke has worked for the City of Vancouver for 13 years. He is a Black man. Mr. Clarke says that, throughout his employment with the City, he has experienced racial discrimination from his co-workers and the City has failed to effectively address the issue. He has filed four human rights complaints. This decision is about one of them.
[2] This complaint is about events between June 2018 and March 2019 involving Michael Greensill, one of Mr. Clarke’s white co-workers. Mr. Clarke alleges that on three occasions in 2018, Mr. Greensill yelled and swore at him. On one of those occasions, he says Mr. Greensill nearly hit him with his truck. He says that Mr. Greensill’s conduct was, in part, motivated by racism. Mr. Clarke alleges that when he reported these incidents to the City, the City failed to respond appropriately and restore him to a discrimination-free work environment. He argues that the City and Mr. Greensill have discriminated against him in his employment, based on his race and colour, in violation of s. 13 of the Human Rights Code.He asks for remedies.
[3] The Respondents deny discriminating. Mr. Greensill agrees he had two negative interactions with Mr. Clarke in 2018, but disputes Mr. Clarke’s account of those interactions and says they were not related to Mr. Clarke’s race or colour. He denies the third interaction took place at all. For its part, the City agrees that Mr. Clarke complained about Mr. Greensill but says that he never told the City that he considered the incidents to be racial discrimination. In this situation, it says that the Codewas not engaged by its response and, in any event, it addressed the issues appropriately. They ask for the complaint to be dismissed.
[4] I heard this case over eight days. I have considered all the parties’ evidence and their extensive arguments. Based on that evidence, I find that Mr. Clarke did have two negative interactions with Mr. Greensill in 2018 – incidents I will refer to below as the “dirty truck incident” and the “dangerous driving incident”. I accept that, during these interactions, Mr. Greensill swore at Mr. Clarke and drove too fast and close to him with his truck, and that this negatively impacted Mr. Clarke in his employment. However, I am not persuaded that this negative impact was connected to Mr. Clarke’s race or colour. Taking into account the broader context of anti-Black racism in Canadian society, and Mr. Clarke’s employment specifically, I am not persuaded that an inference of discrimination is more likely than Mr. Greensill’s non-discriminatory explanation for his conduct: he was angry and/or careless. Finally, I agree with Mr. Clarke that the City did not investigate his complaint about Mr. Greensill effectively. However, I am not persuaded that Mr. Clarke told the City that he believed Mr. Greensill’s conduct was discriminatory, or that the City ought reasonably to have known that. In that situation, the sufficiency of its investigation and response is not a matter for this Tribunal.
[5] The complaint is dismissed.
[6] I begin my decision below by briefly addressing three preliminary issues raised by the parties: the Respondents’ application to file further submissions, and two evidentiary objections raised by the Respondents and Mr. Clarke respectively. I then explain my general credibility findings, particularly as they relate to the conflicting evidence of Mr. Clarke and Mr. Greensill.
[7] Next, I turn to the allegations in the complaint. I begin with a brief background of Mr. Clarke’s employment with the City. I then consider Mr. Clarke’s allegations about the incidents involving Mr. Greensill and the City’s response.
[8] Finally, before moving on, I want to acknowledge that this was a difficult process for Mr. Clarke. He bore the burden of proving, on a legal standard of proof, that he experienced specific anti-Black racism at work. He had to prove it to me, a white woman who has not shared his lived experience. Aside from his mother, who testified on his behalf, he was the only Black participant in the process. During the hearing, he questioned the justice of this system:
But when we get treated like that, repeatedly, and we make a complaint about it, everybody around that’s gonna judge it and see the realism of it, [they] don’t look like us. So why we are gonna believe it? … How can I trust in the system when everybody that is trying to judge and see what is happening – they don’t look like me? They never had a day in a life [to] feel the treatment that I feel, and my family feels…
[9] I acknowledge this frustration, and the challenge that many parties feel in trusting adjudicators to identify and address discrimination that is outside our direct experience. It is incumbent on us to make up for this lack of lived experience with education, expertise, experience, and an open and careful attention to the evidence. I have endeavoured to do that in this case. Though I have concluded that Mr. Clarke has not proven that the specific incidents in this complaint violated the Code,I do not doubt the serious and ongoing impacts that racial discrimination have had on him and his family, or the legitimacy of his lived experience as a Black man in a society still plagued by anti-Black racism.
II PRELIMINARY ISSUES
A. Application to file further submissions
[10] After the close of submissions, the Respondents applied to file a further submission: Rule 28(5). They say that Mr. Clarke raised new arguments in his reply, and that fairness requires they be given the opportunity to respond: Kruger v. Zerox Canada Ltd. (No. 2),2005 BCHRT 24. Although I did not seek Mr. Clarke’s submissions on this application, I understand that he opposes it. He says that his reply arguments were responsive to the City’s arguments and did not raise new issues.
[11] The application is denied.
[12] The first issue that the Respondents wanted to address is about the evidence of Taryn Scollard. As I will explain, I have not relied on this evidence to make my decision. Whether or not this is a “new” issue, fairness does not require that the Respondents address it further.
[13] The second issue is about the reasons that Mr. Clarke says he did not call witnesses to corroborate his version of events. I do not consider this a new issue. Mr. Clarke testified that he approached numerous people to testify, and they were unwilling to do so. His reply was responsive to the Respondents’ argument that I should draw an adverse inference, and did not raise new evidence or issues warranting further submissions.
B. Respondents’ objection to expert evidence
[14] Mr. Clarke called Dr. Zohar Waisman to give expert evidence. Dr. Waisman was qualified as an expert in the assessment and treatment of injured workers who suffer from post traumatic stress disorder, mood disorders, chronic pain, and traumatic brain injuries. He met with Mr. Clarke on September 24 and 29, 2024. He opined that Mr. Clarke had several mental health conditions attributable to the “cumulative adversity of multiple incidents at the workplace”.
[15] The Respondents argue in their closing submissions that I should not admit or, alternatively, rely on, Dr. Waisman’s expert report or his testimony. They argue that Dr. Waisman: (1) was not an independent, impartial, or non-partisan witness, (2) gave an opinion based on unsubstantiated and incomplete facts, and (3) made conclusions that do not assist the Tribunal.
[16] I do not need to resolve this issue. Dr. Waisman’s evidence related to the effects that the incidents with Mr. Greensill had on Mr. Clarke’s mental health. Had I found that the Respondents violated the Code, I may have considered this evidence to determine the appropriate remedy. However, given my conclusion that these incidents did not violate the Code, I have not found it necessary to consider or rely on Dr. Waisman’s evidence.
C. Mr. Clarke’s objection to Taryn Scollard’s evidence
[17] The City called Taryn Scollard, a former Branch Manager of Parking Operations and Enforcement, to testify about the termination and reinstatement of Mr. Clarke’s employment in 2013. It argues that Ms. Scollard’s evidence is important to counter Mr. Clarke’s assertion that his termination in 2013 was discriminatory, and that he has experienced racial discrimination throughout his career at the City.
[18] At the hearing, Mr. Clarke objected to the admissibility of Ms. Scollard’s testimony because it related to events outside the scope of the complaint. In his closing arguments, he argues that this evidence is – at best – irrelevant, and – at worst – character evidence intended to prove that Mr. Clarke “is a dishonest person who lacks integrity and who is suspicious of the City’s termination decision”.
[19] At the hearing, I allowed Ms. Scollard to testify for a limited time. Having admitted and considered her evidence, I have not considered it probative of any of the issues I must decide in the hearing. I have not relied on it to make my decision.
III WITNESSES AND CREDIBILITY
[20] My findings of fact are based on the evidence presented by the parties in this hearing. These findings are made on a balance of probabilities, meaning I have found these facts to be more likely than not: FH v. MacDougall,2008 SCC 53 at para. 49. Where there is doubt, that doubt is resolved based on which party bears the burden of proof. For the material issues in this complaint, that party is Mr. Clarke.
[21] I am grateful to all the witnesses for their efforts to give evidence. I have done my best to reconcile their evidence. However, on some issues, Mr. Clarke’s evidence about important events conflicts with the other witnesses. Where those issues are material to the complaint, I have been required to make findings of credibility and decide which evidence to prefer.
[22] To do this, I start from the presumption that all of the witnesses are telling the truth: Hardychuk v. Johnstone,2012 BCSC 1359 at para. 10. Where a witness’s testimony conflicts with other evidence, I must assess the trustworthiness of their testimony “based on the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides”: Bradshaw v. Stenner, 2010 BCSC 1398, aff’d 2012 BCCA 296, leave to appeal refused, [2012] S.C.C.A. No. 392 (QL) at para. 186. In some cases, a witness’s evidence may not be trustworthy because they have “made a conscious decision not to tell the truth”: Youyi Group Holdings (Canada) Ltd. v. Brentwood Lanes Canada Ltd ., 2019 BCSC 739 at para. 89. In other cases, a witness may testify honestly but their evidence may not be reliable because of their inability to accurately observe, recall, or recount the event: R. v. H.C., 2009 ONCA 56 at para. 42; Youyi at paras. 89-90. In that case, I may not safely rely on their testimony where it conflicts with others’ who are better positioned to give accurate testimony.
[23] To assess the accuracy or trustworthiness of a witness’s testimony, I consider factors like:
1. The witness’ ability to observe the events, record them in memory, recall and describe them accurately;
2. The external consistency of the evidence. Is the testimony consistent with other independent evidence? Which is accepted?
3. Its internal consistency. Does the witness’ evidence change during direct examination and cross-examination?
4. The existence of prior inconsistent statements or previous occasions on which the witness has been untruthful;
5. The “sense” of the evidence. When weighed with common sense, does it seem impossible or unlikely? Or does it “make sense”?
6. Motives to lie or mislead the court: bias, prejudice, or advantage;
7. The attitude and demeanour of the witness. Are they evasive or forthcoming, belligerent, co-operative, defensive or neutral? In assessing demeanour, a judge should consider all possible explanations for the witness’ attitude, and be sensitive to individual and cultural factors, which may affect demeanour. Because of the danger of misinterpreting demeanour, I would not rely on this factor alone.
R v. SAS,2021 BCPC 69 at para. 25; see also Youyi at para. 90.
[24] In this case, the witnesses were testifying about events that happened nearly five years earlier. Memories have understandably faded, shifted, or hardened around a particular version of events. On some issues, I have found that the most reliable evidence is contained in documents created at the time of the events, including emails, notes, and City business records. I have used these documents as a “reliable yardstick against which to compare and assess the reliability of the witness’ testimony”: Boschoff v. Inspired Retreats,2014 BCHRT 6 at para. 8.
[25] With these general principles in mind, I outline some general findings about the reliability of Mr. Clarke’s and the Respondents’ evidence.
A. Mr. Clarke’s evidence
[26] I accept that Mr. Clarke gave evidence that he believed to be truthful. He testified over four days, which is a tiring and demanding experience. Above, I have acknowledged the dynamics of the proceeding which I expect made the experience more difficult. Throughout his testimony, Mr. Clarke did his best to answer the questions, and acknowledged where he was uncertain, especially about the timeline of certain events. He expressed frustration at efforts to identify seemingly minor inconsistencies in his evidence, which he viewed as insignificant compared to the serious issues he is raising in his complaint.
[27] I further accept that Mr. Clarke has genuinely suffered because of his perception that he was targeted by Mr. Greensill for mistreatment because he is Black and his employer failed to protect him or address this discrimination. Mr. Clarke’s experience of the events in this complaint was inextricably tied to his wider life experience of being a Black man in a society marked by anti-Black racism. For Mr. Clarke, this has manifested in incidents in his workplace that everyone agrees caused race-based harm – including exposure to the n-word at work – as well as the racial trauma of widely publicised violence against Black people, including the murders of George Floyd, Breonna Taylor, and Ahmaud Arbery. His wife, Claudia Clarke, and his mother, Veronica Clarke, gave compelling evidence – which I accept completely – about how Mr. Clarke’s experiences of racism have affected him and his family.
[28] At the same time, I have found that some of Mr. Clarke’s evidence was not reliable. The challenges in his evidence arose primarily in its internal and external consistency. This has meant that, in areas where Mr. Clarke’s evidence conflicted with other evidence, I have often preferred the other evidence. I set out my reasons on those specific areas below. In this section I set out the general basis for this conclusion.
[29] By his own admission, Mr. Clarke’s view of the events in this complaint have been retroactively coloured by his perception that most – if not all – of his negative experiences at work are connected to his race. In my view, there are events regarding which Mr. Clarke has told himself a particular story so many times that this story has hardened into truth, despite decisive evidence to the contrary.
[30] This was most apparent on issues where Mr. Clarke’s testimony conflicted with reliable, contemporaneous, documentary evidence. When presented with this inconsistency, Mr. Clarke maintained his version of events, notwithstanding its implausibility. His insistence on his version of events affected my trust that his memory and testimony were reliable.
[31] The two most obvious examples arose in Mr. Clarke’s evidence about his interaction with Mr. Greensill on the paving project, and his interactions with Mark Reilly, Superintendent I, about a driving assessment. In both cases, Mr. Greensill and Mr. Reilly denied the interactions occurred at all. The City produced email and payroll evidence to prove that neither of them were working on any of the days when the alleged interactions could have taken place. These documents were created at the time, as part of the City’s ordinary business records, and not in contemplation of any litigation. They reflect a reliable record of the witnesses’ work attendance and corroborate that neither of the impugned interactions could have occurred as Mr. Clarke testified. Nevertheless, Mr. Clarke maintained that the interactions had occurred, without offering any explanation for the evidence to the contrary.
[32] In two other examples, Mr. Clarke gave evidence about interactions with Mr. Reilly and Carolyn Pybus, Human Resources Consultant, that they deny, and which are inconsistent with their contemporaneous notes and emails from the time. These interactions were Mr. Clarke’s report to Mr. Reilly about Mr. Greensill, and an interaction with Ms. Pybus in October 2019. I outline the interaction with Mr. Reilly in greater detail below. Suffice to say that I have found Mr. Reilly and Ms. Pybus’s evidence about these interactions more consistent with the evidence and probabilities of the case. Mr. Clarke’s contradictory evidence was, in my view, a product of the “human tendency to reconstruct and distort history in a manner that favours a desired outcome”: Hardychuk v. Johnstone , 2012 BCSC 1359 at para. 10. While I accept he genuinely believed the evidence he gave, I am not satisfied it is accurate or reliable on these issues.
[33] In addition, Mr. Clarke frequently – and understandably – confused the timeline of certain events with the City. To his credit, he was frank in acknowledging this. However, because of the number of discrimination issues Mr. Clarke has raised with the City, this made it difficult at times to rely on his evidence about what he told the City and when, and how it responded to him.
[34] In sum, I found that Mr. Clarke testified truthfully and I have accepted much of his evidence. However, where Mr. Clarke’s testimony conflicted with other evidence, I have approached it with caution because of my conclusion that it was not always reliable. In saying this, I acknowledge that Mr. Clarke has other active human rights complaints against the City, and I make no findings whatsoever in respect of those other complaints.
B. Respondents’ evidence
[35] I have accepted most of the evidence given by the Respondents’ witnesses. Where I have been required to make specific credibility findings, I explain my reasons below.
[36] The principal dispute in the evidence is between Mr. Clarke and Mr. Greensill.
[37] Mr. Greensill answered questions in a fairly straightforward manner. He admitted to some things that did not cast him in a good light – for example, about hearing rumours that Mr. Clarke liked to “play the race card”. However, he was prone to exaggerate aspects of his evidence in a way that supported his version of events. For example, he testified that he was calm and professional during the “truck cleaning incident” with Mr. Clarke, notwithstanding feeling very angry about the situation. Given other evidence about the nature of the workplace, and the language that both men admitted using in a subsequent heated encounter, I do not accept Mr. Greensill’s evidence that he simply told Mr. Clarke that his behaviour was “unacceptable”. Similarly, Mr. Greensill testified that he was calm in a locker room conversation with Mr. Clarke. This was contradicted both by Mr. Clarke and Roberto Guzzo, an independent witness who described Mr. Greensill as visibly angry, with a “real rage” in his eyes. For both of those issues, I find that Mr. Greensill downplayed his behaviour.
[38] There were also areas where Mr. Greensill’s evidence in the hearing was different than the evidence he gave in a sworn affidavit earlier in the process. For example, in his affidavit he swore that Mr. Clarke would make antagonizing comments to him “anytime I walked by”. But in the hearing, he testified this happened one time. In addition, I found it likely that Mr. Greensill’s description of the amount of asphalt left in his truck during the “truck cleaning incident” was overstated during the hearing. During the hearing, he testified that the entire bed of the truck – about 12 feet long by six to seven feet wide – was covered in asphalt two inches thick. This contradicted his earlier affidavit evidence that there was “some asphalt left in the back of the box”. The discrepancies within Mr. Greensill’s evidence have caused me some concern about the overall reliability of his evidence.
[39] On balance, I have accepted much of Mr. Greensill’s evidence but not all of it. I explain specific credibility assessments below.
C. Adverse inferences
[40] At various points, the Respondents have asked me to draw an adverse inference from Mr. Clarke’s failure to call certain witnesses to corroborate his version of events.
[41] The decision to draw an adverse inference is discretionary. It assumes that the witness would have given harmful evidence if they had been called. Relevant considerations include: whether there is a legitimate explanation for failing to call the witness; whether the witness is equally available to both parties; and whether the witness has key evidence to provide or is the best person to provide the evidence: Singh v. Reddy, 2019 BCCA 79 at paras. 8-10. Adjudicators should exercise caution in drawing adverse inferences, because – among other things – “there may be many reasons why counsel decides not to call a witness and it is generally not the business of the court to ascertain those reasons”: Singhat para. 25.
[42] I decline to draw an adverse inference in this case.
[43] Mr. Clarke has offered an explanation for not calling other witnesses. He testified that the witnesses were employees of the City and were not willing to testify against their employer. He says he approached “numerous people” who were unwilling to testify. Further, I consider that any witnesses to the interactions in this complaint would be equally available to both parties. Finally, although it would have been helpful to have evidence from others who were present, Mr. Clarke and Mr. Greensill were each able to testify about the events. I cannot necessarily conclude that other witnesses would be better placed to provide that evidence. Throughout my reasons, I base my findings of fact on the evidence that the parties did present, without speculation about what other people may have said if they had testified. Ultimately, the consequence of Mr. Clarke not calling witnesses to corroborate his version of events is that, on some issues, I have not found his testimony alone to be reliable enough to support the finding that he is urging me to make.
[44] I turn now to the allegations in this complaint, beginning with a brief background of Mr. Clarke’s employment with the City and relationship with Mr. Greensill.
IV BACKGROUND: MR. CLARKE’S EMPLOYMENT WITH THE CITY
[45] In this section, I briefly review some background about Mr. Clarke’s employment and relationship to the City. I focus on events which the parties have identified as specifically relevant to this complaint.
[46] Mr. Clarke started work for the City in 2011, in its Parking Operations Branch. In 2013, his employment was terminated for cause. Mr. Clarke perceives that his termination was racially motivated, while the City say that it was purely a response to Mr. Clarke’s misconduct. Mr. Clarke grieved his termination. The union and employer agreed, on a without prejudice and without precedent basis, to substitute Mr. Clarke’s termination for a ten day suspension and transfer him to a different role. Though the parties – mostly the City – introduced evidence about this incident, I do not find that it is necessary to recount that evidence or make factual findings. It is not useful to the issues I must decide.
[47] In 2016, Mr. Clarke moved into the Sewers Operations Branch. He was the only Black employee. There, he says two of his co-workers called him the n-word. These incidents had a significant impact on Mr. Clarke. Throughout his evidence, he repeatedly returned to them. They began to colour his perception of his co-workers and his employer. He became distrustful and reassessed previous incidents – including his previous termination – to consider the possibility that they were racially motivated.
[48] Mr. Clarke filed a complaint with the City about his co-workers calling him the n-word. The City’s investigation determined that the co-workers had used the n-word at work, in Mr. Clarke’s presence, and this violated its Human Rights and Harassment Policy. Each of the co-workers received a one-day suspension and were required to undergo coaching and training. From Mr. Clarke’s perspective, this was insufficient to address the seriousness of the conduct.
[49] Mr. Clarke also filed a human rights complaint about these events. However, the complaint was filed outside the statutory time limit for bringing a complaint, and the Tribunal declined to accept it: Clarke v. City of Vancouver and others, 2018 BCHRT 249.
[50] In June 2017, Mr. Clarke’s union filed a grievance on his behalf, claiming that the City had failed to provide a harassment-free workplace. Around the same time, Mr. Clarke went off work as a result of mental health conditions caused by the racial slurs in the workplace. The grievance was placed in abeyance. He received wage loss benefits from WorkSafeBC until he returned to work on September 13, 2017.
[51] Mr. Clarke says that, when he returned to work in September 2017, he was shunned and ostracized. He gave an example of his co-workers leaving a room when he entered. I accept that at least some of his co-workers viewed him negatively because he had complained about racial discrimination. Mr. Greensill says that he was warned by more than one person at the City that Mr. Clarke was quick to “play the race card”. Mr. Guzzo says that Mr. Clarke’s human rights complaint was reported on the CBC and that the news spread like “wildfire” through the workplace.
[52] Mr. Clarke says he began to disengage and pull away from his co-workers. He says he lost his energy; it was hard to wake up in the morning and go to work. He felt he no longer knew who his co-workers really were. He decided to pursue work within the City as a truck driver, so he could work alone.
[53] In December 2017, Mr. Clarke’s grievance was taken out of abeyance. In February 2018, he met with the City and his union. In this meeting, he expressed that he felt he was being shunned and treated differently because of his race. The City agreed to facilitate Mr. Clarke’s request to be placed on the “spare list” to drive tandem dump trucks.
[54] This process began in May 2018. As part of this process, Mr. Clarke needed to have his driving assessed. This is when he says he first formally met Mr. Greensill. The parties dispute the facts of this initial interaction.
[55] Mr. Clarke says that, because he already had his Class 1 license, his driving just had to be assessed and approved by a mentor truck driver. At this time, Mr. Greensill was a mentor truck driver. Mr. Clarke testified that Mr. Reilly, the Superintendent I, gave him 30 minutes’ notice that Mr. Greensill would be assessing his driving. He says he had about 15 minutes to go over a truck he had never driven before. He says that this was not common practice, and that usually workers had three or four days to do ride-alongs, pre-trips, and learn the components of the truck before they were assessed. Mr. Clarke says he complained to Mr. Reilly at the time. He says that, during this assessment, Mr. Greensill questioned his performance. Mr. Clarke says that Mr. Greensill ended up failing him, which meant he needed further training with the City’s “Driver Services” branch. Mr. Clarke says he was shocked. He testified that, if Mr. Greensill had given his go-ahead, he could have been driving trucks that weekend.
[56] I agree with the Respondents that three aspects of Mr. Clarke’s evidence on this issue are not accurate. First, Mr. Reilly was not involved in arranging Mr. Clarke’s sessions with Mr. Greensill. He was on vacation and, in his absence, the Acting Superintendent made the arrangements. This is supported by emails at the time, as well as Mr. Reilly’s testimony. Second, Mr. Greensill played no role in assessing Mr. Clarke’s driving. Several City witnesses testified that driving assessments are performed exclusively by the City’s Driver Services Branch. Mr. Greensill’s only function was to show Mr. Clarke some of the practical aspects of the job, including how to access various worksites. He was not qualified to assess Mr. Clarke’s driving and had no input into whether Mr. Clarke was cleared to drive. This is supported by emails at the time, which indicate that the purpose of putting the two of them together was to give Mr. Clarke some “seat time” before and after his assessment by Driver Services. Third, Mr. Clarke received eight hours of mentoring from Mr. Greensill over two days. This is supported by time sheets, which show that Mr. Clarke and Mr. Greensill were engaged in 4 hours of driver training on May 11, 2018 and another 4 hours on May 14, 2018.
[57] On May 8 and 15, 2018, Mr. Clarke was assessed by Driver Services, which determined he was qualified to drive a double axle/semi truck. After this, he was added to the spare list.
[58] As I understand the significance of these events, it is that Mr. Clarke says it marked the beginning of a tense relationship with Mr. Greensill. Although I have found that most of Mr. Clarke’s evidence about this driving assessment was not reliable, I can accept that his interactions with Mr. Greensill at this time were not warm. As Mr. Greensill put it, they were not friends.
[59] This brings me to the period of this complaint, and Mr. Clarke’s allegations of discrimination against Mr. Greensill.
V ALLEGATIONS ABOUT INTERACTIONS WITH MR. GREENSILL
[60] Mr. Clarke is protected from discrimination in his employment based on his race and colour: Code,s. 13. To prove his allegations against Mr. Greensill, he must prove:
a. Mr. Greensill treated him adversely in three interactions:
i. A “truck cleaning incident” in June 2018;
ii. A “paving project incident” in the summer of 2018; and
iii. A “dangerous driving incident” on November 7, 2018.
b. Mr. Clarke’s race and colour was a factor in this adverse treatment.
The City is liable for discrimination by its employees: Code,s. 44(2).
[61] The principal disputes about this part of Mr. Clarke’s complaint centre on whether Mr. Clarke has proven he was adversely impacted in his employment within the meaning of human rights law and, if he has, whether any adverse impact was connected to his race and colour. In the following sections, I explain my decision that (1) Mr. Clarke was adversely impacted in his employment, but (2) he has not proven those impacts were connected to his race or colour. I begin with general principles, which are not in dispute.
A. Adverse impacts in employment
[62] The Respondents argue, and I agree, that not every negative interaction at work rises to a level of adverse treatment that engages the protections of the Human Rights Code.
[63] To assess whether conduct is adverse treatment in human rights law, the starting point is s. 13 of the Code.Though the phrase “adverse impact” does not appear, the language of the provision indicates what kinds of adverse impacts the Legislature intended to capture by the prohibition on discrimination in employment. The words of s. 13 indicate the Legislature intended the provision to capture adverse job-related consequences. For example, it is apparent from s. 13 that an adverse impact includes refusing to hire someone or terminating their employment, adverse treatment “regarding a term or condition of employment”, or adverse treatment “regarding employment”. From the case law developed by this Tribunal, the assessment of whether adverse treatment in a particular case amounts to adverse job-related consequences will depend on the circumstances. The Tribunal considers the entire context of the interaction, having regard to the purposes of the Code. Those purposes include fostering an equitable society and identifying and eliminating persistent patterns of inequality: s. 3. The Tribunal must assess whether “a person’s protected characteristic has presented as a barrier in their ability to fully, and with dignity, access an area of life protected by the Code”: Brito v. Affordable Housing Society,2017 BCHRT 270 at para. 41. Relevant considerations may include the egregiousness of the conduct, the parties’ relationship, whether an apology was offered, and the social context of discrimination: Pardo v. Coquitlam School Dist. No. 43 and Davies, 2003 BCHRT 71 at para. 12; Francis v. BC Ministry of Justice (No. 3), 2019 BCHRT 136 at para. 314. Analytically, these considerations often overlap with the criteria of nexus, which considers the connection to a person’s protected characteristics.
[64] Even a single incident can poison a workplace with discrimination: Ontario Human Rights Commission , Policy and Guidelines on Racism and Racial Discrimination (2005) [ OHRC Guidelines ] at p. 21; cited in Brar and others v. BC Veterinary Medical Association and Osborne , 2015 BCHRT 151 at para. 741. And seemingly minor incidents can accumulate to create Code-related barriers to equitable participation, meaning adverse job-related consequences for the complainant. These types of incidents are often called “everyday racism” or “micro-discriminations” – defined by Professor Sallie Chisholm as “the subtle, mostly nondeliberate biases and marginalizations that ultimately [add] up to serious assaults”: cited in Ardith Walpetko We’dalx Walkem, KC, Expanding Our Vision: Cultural Equality & Indigenous Peoples Human Rights (2020) at p. 21; OHRC Guidelines at pp. 12-14; Brarat para. 713; Balikama v. Khaira Enterprises Ltd.,2014 BCHRT 107 at paras. 585-586. Micro-discrimination can include micro-insults, micro-invalidations, and micro-assaults. Though an individual incident may be minor, the cumulative effects of micro-discriminations are serious, and can perpetuate the patterns of inequality associated with discrimination prohibited by the Code: s. 3(d). Mr. Clarke described this phenomenon as “death by 1,000 cuts”. There are circumstances where micro-discriminations violate the Code.
[65] I turn now to my findings of fact about the three incidents with Mr. Greensill.
A. Truck cleaning incident (June 2018)
[66] The first incident happened after Mr. Clarke worked overtime on a Saturday in June 2018. That day, he was assigned to haul asphalt in the truck typically driven by Mr. Greensill. There is no dispute that, on the following Monday, Mr. Greensill was angry and accused Mr. Clarke of not cleaning his truck properly after using it. The parties have different accounts of how the interaction unfolded. The primary factual disputes about this allegation are (1) the amount of asphalt left in the truck, and (2) whether Mr. Greensill swore at and publicly humiliated Mr. Clarke.
[67] Mr. Clarke says that, before he put asphalt in the truck, he sprayed the truck with a solution to ensure it would not stick. He says that, at the end of his Saturday shift, he thoroughly cleaned the inside and outside of the truck, leaving it in a better condition than he found it. On Monday, Mr. Clarke says that he saw Mr. Greensill “storming” towards him, with a finger pointed angrily at him. Mr. Greensill was yelling: “Did you fucking drive my truck?” and demanding that Mr. Clarke “Get the fuck out and get over here”. Mr. Clarke walked over to Mr. Greensill’s truck. Mr. Greensill was yelling at him about not cleaning it properly, saying that it would take him two hours to clean, and complaining about “lazy drivers”. Mr. Clarke says he remained calm and told him, “Buddy I cleaned your truck two or three times inside and out”. He says Mr. Greensill pointed out a bead of asphalt, maybe one inch thick, on the inside of the gate at the back of the truck. Mr. Clarke says he picked up the asphalt with his hand, and easily pulled it out. He says that Mr. Greensill continued to yell at him, warning him “You’ll be sorry if you ever touch my truck again”. Mr. Clarke felt Mr. Greensill was “putting on a show for everyone”. This was an upsetting encounter for him. In his evidence, Mr. Clarke was emphatic that Mr. Greensill did not have to clean any asphalt out of the truck, because he had removed all of it easily with his hand. He says that he was surprised at how angry Mr. Greensill was, and how he tried to demean Mr. Clarke over a minor issue.
[68] Mr. Greensill gave a different version of events. He says that, when he arrived at work on Monday morning, he found asphalt covering the bed of his truck. He testified that the asphalt was about 2 inches thick and had dried and hardened like concrete. He was angry. He says it took him 2.5 hours to clean, working with shovels and a steam cleaner. He agrees that he confronted Mr. Clarke. He says they discussed that it was “unacceptable” to leave asphalt in the truck like that. He says that Mr. Clarke was receptive. He denies swearing at Mr. Clarke, calling him lazy, or warning him against using his truck again. He says he has no say about whether or not Mr. Clarke used the truck – the truck is owned by the City. He accepts there may have been a bead of asphalt along the gate and Mr. Clarke may have been able to break off a bit of it with his hand. However, he says that the bed of the truck was covered in asphalt and Mr. Clarke could not remove it with his hand.
[69] In my view, the truth probably lies somewhere in between these two accounts. I accept that there was asphalt left over in Mr. Greensill’s truck, and that it was more than Mr. Clarke could easily remove with his hand. To make this finding, I have considered that the asphalt had been sitting in the truck for at least 36 hours. Norm Dhillon, the Branch Manager of Sewer Operations, testified that asphalt left for that long would have hardened. I accept Mr. Greensill’s and Mr. Dhillon’s evidence, which aligns with common sense, that it is not possible to remove hardened asphalt entirely by hand. Mr. Dhillon explained that the asphalt would likely need to be heated and then removed with a shovel or scraper. It does not make sense that Mr. Greensill would be so angry at Mr. Clarke over a small bead of asphalt that could be so easily removed. Rather, I accept that he was angry because it took him time and effort to clean out the bed of the truck.
[70] At the same time, I do not accept Mr. Greensill’s account that the conversation was a calm one about what was “acceptable” behaviour. He acknowledges he was angry. Given their evidence about how they swore at each other in the “dangerous driving” incident, I find it more likely that Mr. Greensill did swear at Mr. Clarke. Because this was in a busy work yard, it is likely that other workers were nearby and I accept that Mr. Clarke felt embarrassed.
[71] However, I am not satisfied that Mr. Greensill called Mr. Clarke lazy or warned him he would be sorry if he ever touched his truck again.
[72] The first time that Mr. Clarke has mentioned the “lazy” comment was in the hearing. He did not refer to this in his human rights complaint form, or his personal statement submitted earlier in this process. There is no record of this statement in Mr. Reilly’s notes when he later complained to the City. Given the issues I have identified with the reliability of Mr. Clarke’s evidence, and in the face of Mr. Greensill’s denial, I am not persuaded that Mr. Greensill called Mr. Clarke lazy or made a comment about lazy drivers during this interaction.
[73] Next, I accept the possibility that, in the heat of the moment, Mr. Greensill warned Mr. Clarke that he would be sorry if he ever touched Mr. Greensill’s truck again. However, I also consider that Mr. Greensill had no control over who used the truck – though he used it during the week, the truck belonged to the City. Mr. Clarke did not report this threat to anyone at the time, and there is no record of this comment in Mr. Reilly’s notes when Mr. Clarke did eventually complain about this incident. Considering all of the very limited evidence available to me, Mr. Clarke has not persuaded me on a balance of probabilities that Mr. Greensill said this.
[74] In sum, I find that Mr. Greensill angrily confronted Mr. Clarke about asphalt that had been left in his truck after Mr. Clarke used it. He swore at Mr. Clarke in front of other people. This was humiliating for Mr. Clarke. I am satisfied that this amounts to adverse treatment within the meaning of s. 13.
[75] Mr. Clarke did not report this incident to the City right away. However, from then on, Mr. Clarke says he felt that Mr. Greensill had it in for him.
B. Paving project incident (summer 2018)
[76] The second alleged incident happened on a City paving project in the summer of 2018. Mr. Clarke says that he was working as a spare truck driver on the project. At the end of the shift, the foreman began to lay people off for the day. Rather than laying him off, Mr. Clarke says that the foreman told him to wait to the side. He says the foreman recognized he had done three times more work than anyone else and deserved an extra load – which meant a few more hours of overtime.
[77] Mr. Clarke says that, as he was waiting for the next load, Mr. Greensill leaned out of his truck, whistling and pointing at him. He says Mr. Greensill yelled at him to “get the fuck outta here” because all the drivers were getting laid off. Mr. Clarke was adamant in his testimony that this was Mr. Greensill. He said it was not possible it was someone else. He says that, after this incident, he heard that senior drivers were mad that he was taking money out of their pockets.
[78] Mr. Clarke’s evidence during the hearing was slightly different from a written statement he prepared for the human rights process in June 2020. In that statement, Mr. Clarke said that “Mr. Greensill stood in the middle of Nanaimo and 1 st Ave, whistling at me like I was a dog, and told me to ‘get the fuck outta here, we’re all getting laid off’”. However, after Mr. Greensill pointed out in the Respondents’ dismissal application that they were not allowed to get out of their trucks on this project, Mr. Clarke testified in the hearing that Mr. Greensill was leaning out of his truck. In my view, this change is significant and is a factor that undermines the reliability of Mr. Clarke’s evidence about this incident.
[79] Mr. Greensill says this interaction never happened. He says that he never worked on the paving project at the same time as Mr. Clarke and that he “can’t even whistle”. The City’s payroll records show that Mr. Greensill only worked two shifts on the project, and neither of them overlapped with Mr. Clarke. Further, Mr. Dhillon testified that that overtime is assigned, first, to regular truck drivers based on seniority and then to spare drivers based on seniority. He says there is no discretion in the order that drivers are laid off.
[80] I accept it is possible that something like this incident happened to Mr. Clarke in the summer of 2018. However, I am not persuaded that Mr. Greensill was involved. The most persuasive evidence is the City’s payroll records. These records, created in the normal course of the City’s business, are reliable evidence against which to assess the reliability of the witnesses’ testimony. They show that Mr. Clarke and Mr. Greensill never worked together on this project. This is consistent with Mr. Greensill’s evidence that he never had an interaction like this with Mr. Clarke. Mr. Clarke has been unable to identify the date when he says this occurred, and his evidence about what exactly happened has changed over time. In light of all the evidence, Mr. Clarke’s conviction that this incident occurred with Mr. Greensill is not enough to persuade me that it, in fact, did.
[81] Mr. Clarke has not proven this allegation. It is dismissed.
C. Dangerous driving incident (November 7, 2018)
[82] The final, and most serious, alleged incident with Mr. Greensill happened on November 7, 2018. There is no dispute that, on this day, Mr. Greensill drove too fast and too close to Mr. Clarke in the yard. However, the parties dispute how dangerous this incident was, how exactly it unfolded, and what Mr. Greensill said to Mr. Clarke afterwards.
[83] Mr. Clarke says that he was crossing the road with a co-worker when Mr. Greensill started speeding up in a truck towards them. He says that he heard the engine rev, like Mr. Greensill had stepped on the gas. He says that, once the truck got about five to ten feet away from him, he had to jump forward to get out of the way. He says he is “pretty confident” that if they had stayed for an extra second, Mr. Greensill would have hit them. Mr. Clarke says he yelled after the truck, “what are you doing?”. Mr. Greensill parked, and Mr. Clarke confronted him, asking “What the hell’s your problem? You don’t even know who you’re dealing with! How do you know how I’m gonna react!”. He says Mr. Greensill responded, “get the fuck out of the way next time” and – critically – “you people should be buried”. Mr. Clarke understood the reference to “you people” to mean Black people. His mind was racing. It brought back the feelings from when he says co-workers called him the n-word. He says it was this phrase that caused him to revisit his previous negative interactions with Mr. Greensill and cast them in a new light. He testified – and I accept – that this incident has had a lasting impact on him. It made him feel unsafe coming to work.
[84] For his part, Mr. Greensill says that he drove behind Mr. Clarke and Mr. Harvey, turning left as they finished crossing the road. He estimates that he was about seven or eight feet away from them. In cross-examination, he denied he was driving inappropriately. However, he acknowledges this was a little too close. He denies revving his engine or speeding towards them. He says that, afterward, Mr. Clarke approached him quickly and “aggressively”, saying “you don’t know who you’re fucking with”. He says Mr. Clarke was right in his face, almost touching, chest to chest. He says he felt threatened and scared, and responded defensively, saying “fuck you”. He says he thought they were going to start “throwing punches”, but they did not. He walked away. He denies saying anything like “you people should be buried” or telling Mr. Clarke to “get the fuck out of the way next time”. He says that he can understand Mr. Clarke’s feeling that he had driven too close. Very soon after this incident, he apologized to Mr. Harvey. It took him longer to apologize to Mr. Clarke.
[85] The parties have put before the Tribunal a written statement from Mr. Harvey, the co-worker who was with Mr. Clarke during this incident. The statement was made three or four weeks after the incident. It says:
Chris Clarke and myself were walking back from our truck. We crossed from the East Side of Central Stores building to the sewers office. As we did a dump truck drove right behind us which it seemed a little too close for Chris and myself. The conditions were clear and certainly bright enough to see both of us! The driver of the dump truck was Mike [Greensill]. He [apologized] to me the next day. Case closed as far as I’m [concerned].
[86] Mr. Clarke testified that he told the City’s Acting Superintendent of Hydro-Vac about the dangerous driving incident with Mr. Greensill, and that he would probably be making a formal complaint. After this, he says that Mr. Greensill approached him to apologize. He speculates that Mr. Greensill’s apology was prompted by the Acting Superintendent – a claim that Mr. Greensill denies.
[87] The apology took place in the locker room. Mr. Clarke says that Mr. Greensill came “storming” in and was acting “erratically”. He says that they went back and forth about the incident, and that Mr. Clarke was asking what he had done to deserve that treatment. Mr. Greensill told him it was the heat of the moment. Mr. Clarke says that he told Mr. Greensill he would be making a complaint and that his comment about “you people should be buried” was discriminatory. Mr. Greensill responded that he didn’t mean it, and he didn’t want things to go any further. He expressed that he wished Mr. Clarke would accept his apology, and extended his hand for a handshake. Mr. Clarke shook his hand.
[88] For his part, Mr. Greensill says that he was calm. He told Mr. Clarke he could understand if he felt he was too close. He apologized and they shook hands. He denies that Mr. Clarke mentioned the “you people” comment or making a complaint. He denies saying he had acted in the heat of the moment. He understood the matter was settled peacefully.
[89] Mr. Guzzo, a co-worker, witnessed this apology. He could see the two men but could not hear what they were saying. He testified that Mr. Greensill came right up to within 18 inches of Mr. Clarke’s face. He says he saw a “real rage” in Mr. Greensill. Mr. Clarke remained calm. He thought a physical altercation was going to break out. He was surprised when the interaction ended with the two shaking hands.
[90] I turn now to my findings about the dangerous driving. Again, my view is that the truth is somewhere between Mr. Clarke’s version and Mr. Greensill’s. I accept that Mr. Greensill drove dangerously fast and close to Mr. Clarke and Mr. Harvey, and this was frightening to Mr. Clarke. Mr. Guzzo corroborated that Mr. Clarke and Mr. Harvey were upset immediately after the incident. He heard Mr. Clarke yell out and asked what had happened. Mr. Clarke reported that Mr. Greensill was “flying” through the yard, almost hitting them. I do not accept that Mr. Greensill did so purposely to target or intimidate Mr. Clarke; this allegation remains speculative. In fact, this was not the first time that Mr. Greensill had driven poorly in the yard. Everyone agrees that this happened at one of the busiest times of the day and was not safe.
[91] When Mr. Clarke confronted Mr. Greensill after the incident, I accept that the interaction was heated. Both men agree that Mr. Clarke was upset and said something along the lines of “you don’t know who you’re dealing with”. Both men also agree that, in response, Mr. Greensill swore at Mr. Clarke. The most important dispute is whether Mr. Greensill told Mr. Clarke something like “you people should be buried”.
[92] At the outset I acknowledge the possibility that Mr. Greensill’s testimony was accurate, and he did not say anything like this to Mr. Clarke. However, I am required to make a finding of fact on a balance of probabilities. The law operates as a “binary system”: a material fact “either happened or it did not”: In re B (Children), [2008] 3 W.L.R. 1, [2008] UKHL 35 at para. 2; cited in FHat para. 44. On balance, I conclude it is more likely than not that Mr. Greensill said something like “you people” or “guys like you” “should be buried”.
[93] To make this finding, I have considered that it was this incident and this statement that Mr. Clarke says prompted him to conclude that Mr. Greensill was targeting him because he is Black. Mr. Clarke explains that the term “you people” immediately led him to believe that Mr. Greensill meant “Black people”. Mr. Clarke’s evidence on this point has been consistent throughout the human rights proceeding, including in his complaint form, his previous written statement, and his evidence at hearing. He told Mr. Reilly about this statement about three weeks after the incident. In Mr. Reilly’s notes, he recorded that Mr. Clarke reported that Mr. Greensill had said “guys like you should be buried”. I have also considered Mr. Greensill’s propensity to downplay or understate his conduct in these heated interactions. Accepting his evidence about his state of mind, he was angry, scared, and defensive. In this state, he was swearing and responding aggressively to Mr. Clarke. He was self-conscious about an earlier driving incident in the yard. In my view, it is entirely plausible that, in the heat of the moment, he said something about guys like Mr. Clarke being “buried”.
[94] I also consider that, in my view, Mr. Greensill downplayed his behaviour during his apology to Mr. Clarke. I prefer Mr. Clarke’s evidence, which was corroborated by Mr. Guzzo, about Mr. Greensill’s demeanour. Mr. Guzzo has no stake in the outcome of this complaint. His memory of this encounter was clear and consistent, and aligned with Mr. Clarke’s. Further, Mr. Greensill’s account that he was calm in this conversation is somewhat contradicted by his evidence elsewhere that he felt Mr. Clarke had been antagonizing him. This refers to an occasion where both men agree that Mr. Clarke made a rude comment to Mr. Greensill in order to – in Mr. Clarke’s words – “wipe the grin off his face”. Since Mr. Greensill felt antagonized, I consider it likely that he was emotional during his apology to Mr. Clarke but was hoping he could resolve the issue before it went any further.
[95] I am satisfied that this incident created an adverse impact in Mr. Clarke’s employment. Mr. Greensill drove dangerously fast and close to Mr. Clarke in the yard. Afterward, he again yelled and swore at Mr. Clarke in a public place, and said that people like him should be “buried”. Though Mr. Clarke initiated their confrontation after Mr. Greensill’s dangerous driving, he was responding to a serious safety issue and was understandably upset. Even Mr. Greensill’s subsequent apology to Mr. Clarke was tinged with anger and defiance, though he was clearly in the wrong. None of this is appropriate workplace conduct and I accept Mr. Clarke’s evidence that it made him feel unsafe. In all the circumstances I am satisfied that Mr. Greensill’s treatment of Mr. Clarke in these instances rises to the level of adverse treatment under the Code.
[96] I turn now to assess whether, based on my findings, Mr. Clarke has established his race and colour were a factor in the truck cleaning incident and/or dangerous driving incident.
D. Connection to race and colour
[97] Again, I begin with general principles – none of which are in dispute.
[98] Mr. Clarke must prove that his race and colour were a factor in Mr. Greensill’s conduct: Québec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 [ Bombardier ] at para. 52. He does not have to prove that Mr. Greensill intentionally or consciously discriminated against him, or that Mr. Greensill’s conduct is consistent only with the allegation of discrimination and not any other rational explanation: Code , s. 4; Radek v. Henderson Development (Canada) and Securiguard Services (No. 3), 2005 BCHRT 302 [ Radek (No. 3) ] at para. 482.
[99] Most race-based complaints, like this one, turn on inference. This is because there is rarely direct evidence of racial discrimination. It operates subtly. Today, most people do not express racial prejudices openly or even recognize them in themselves: Mezghrani v. Canada Youth Orange Network (No. 2), 2006 BCHRT 60 at para. 28; OHRC Guidelines at p. 21, adopted in Brar at paras. 712-724; Francisat para. 288; Mema v. City of Nanaimo (No. 2), 2023 BCHRT 91 at paras. 6-7, 20, and 288.
[100] Social context may support an inference of discrimination: Campbell v. Vancouver Police Board (No. 4),2019 BCHRT 275 at paras. 16-19. This includes an understanding of applicable stereotypes and prejudices, as well as the historical and ongoing marginalization and oppression of a protected group, and the myriad ways that discrimination against the group can manifest. Social context can help to interpret individual incidents which may otherwise be “ambiguous or explained away”: OHRC Guidelines at p. 21; cited with approval in Campbell (No. 4) at para. 103 and Francisat paras. 288-289.
[101] Mr. Clarke’s complaint arises in a broader social context of ongoing and pervasive anti-Black racism in Canada: Perry v. Honu Boat Charters and another (No. 2 ), 2022 BCHRT 68 at paras. 67-68;Young Worker v. Heirloom and another,2023 BCHRT 137 at paras. 53-58; and Memaat paras. 6-12. This racism manifests in many ways, including in the subconscious application of negative stereotypes, which can seep into the “interstices of our institutions”: R v. Parks(1993), 15 OR (3d) 324 (CA).
[102] At the same time, the subtlety of prejudice, and the availability of inference, does not create a presumption of discrimination: Zhou v. Copper Mountain Mine (BC),2017 BCHRT 22 at para. 51. The social context of anti-Black discrimination is not enough, on its own, to prove that Mr. Clarke was discriminated against. In other words, the fact that he is Black and had negative interactions at work does not mean he was discriminated against. An inference of discrimination must be drawn “reasonably and logically … from a fact or group of facts established by the evidence”: Smith v. Mohan (No. 2),2020 BCHRT 52 at para. 188; Bombardier at para. 88.
[103] Finally, Mr. Clarke’s subjective perception of racism is not determinative of whether, as a matter of fact, race or colour were a factor in the Respondents’ conduct: Francisat para. 283; Smithat para. 186.This highlights a significant challenge in human rights law. Notwithstanding its focus on the impactsof certain practices, the test for discrimination is not – and cannot be – a purely subjective one. The people and institutions which have human rights obligations must be able to understand and comply with them. This would not always be possible if discrimination was based only on the subjective perception of a complainant. To address this challenge, the Tribunal takes a subjective-objective approach to assess whether conduct is discriminatory: Francisat para. 283. This approach uses the perspective of a “reasonably objective person”, meaning a person sharing the personal characteristics of the complainant, who is aware of the historical and social context of the discrimination being alleged: Francisat para. 284; Smithat paras. 187 and 215, citing Dhanjal v. Air Canada, 1996 CanLII 2385 (CHRT). In this case, I must consider whether, from the standpoint of a reasonable Black man, Mr. Greensill’s conduct amounted to discrimination.
[104] With these principles in mind, I turn to Mr. Clarke’s allegations about the incidents with Mr. Greensill.
[105] To begin, I acknowledge that all human interaction is mediated to some extent through race. Given how pervasive and deeply embedded anti-Black biases can be, I cannot discount that Mr. Greensill may harbour some of these biases – consciously or not – and they may have impacted how he interacted with Mr. Clarke. However, just because discrimination is possible does not mean it was proven and, in this case, it has not been.
[106] To consider whether Mr. Greensill’s conduct was discriminatory, I have considered all that conduct together, in its full context. I do so with an understanding of how anti-Black racism operates and manifests, including as described in cases like Francis, Mema, Young Worker, Perry, and Balikama, and by the Ontario Human Rights Commission in its Guidelines. Finally, I have considered the myriad ways to draw an inference of discrimination, including – but not limited to – evidence “indicating an awareness or concern about characteristics related to the complainant’s group”, evidence of a discriminatory or hostile work environment, and evidence of differential treatment: Kennedy v. BC (Ministry of Energy and Mines) (No. 4), 2000 BCHRT 60 at para. 168.
[107] Based on my findings of fact, there are several circumstances that could support an inference of discrimination:
a. Mr. Clarke was the only Black employee in his department. This type of underrepresentation can create conditions for exclusion and discrimination.
b. Mr. Clarke had experienced race-based harm in his workplace before, specifically in the 2016 incidents involving the n-word.
c. Mr. Greensill felt threatened by Mr. Clarke after the dangerous driving incident. This could draw on stereotypes that Black men are dangerous: eg. Graham v. Enterprise Rent A Car Canada Company representing Enterprise, Alamo, and National Car Rental, 2020 HRTO 424 at para. 60 .
d. Mr. Greensill’s evidence that there was a rumour that Mr. Clarke was known to play the “race card”. This is a common myth about racialized people that serves to “discredit allegations of racism as manipulative ploys to gain collateral benefit”: Radek (No. 3)at para. 524; OHRC Guidelines at p. 17; Brarat para. 724. It reveals an attitude prone to discredit and ignore allegations of racism, and fail to recognize one’s own racial prejudices. Negative comments about a person advocating for their human rights may “support an inference that race is a factor in an individual’s or organization’s interaction with that individual”: OHRC Guidelines at p. 23; Brarat para. 714.
e. Mr. Greensill’s angry response to Mr. Clarke in the truck cleaning incident and driving incident. A response that is disproportionate or otherwise unexplained can support an inference of discrimination.
f. Mr. Greensill’s reference to “you people” in the dangerous driving incident. The phrase “you people” can indicate discrimination when it is used in relation to a racialized group: see eg. Baylis-Flannery v. DeWilde (Tri Community Physiotherapy), 2003 HRTO 28 at para. 139; George v. 1735475 Ontario Limited,2017 HRTO 761 at para. 68.
[108] However, in my view there are significant countervailing factors which weigh against an inference of discrimination and support a non-discriminatory explanation for Mr. Greensill’s conduct:
a. Mr. Clarke has not established a factual basis for his argument that his entire workplace was poisoned by discrimination, to support an inference regarding his dealings with Mr. Greensill.
b. Mr. Greensill was not involved in, or employed in the same department as, the events where Mr. Clarke was exposed to the n-word at work. There is no evidence to explain how these incidents related to Mr. Greensill’s interactions with Mr. Clarke. There is also no evidence or argument about how Mr. Greensill’s awareness of a rumour that Mr. Clarke liked to “play the race card” supports an inference that he targeted Mr. Clarke because of his race.
c. Mr. Greensill has established a non-discriminatory explanation for his conduct in the truck cleaning incident. Specifically, he yelled at Mr. Clarke because he was angry that he had to spend time and effort cleaning hardened asphalt that Mr. Clarke had left in his truck. Mr. Clarke testified that Mr. Greensill had a reputation for being “hot headed”, and Mr. Guzzo testified that it was common to see heated interactions between employees at work. Mr. Greensill’s behaviour was consistent with his reputation and the context of the workplace. It was not arbitrary and not necessarily disproportionate. These circumstances do not support an inference of discrimination.
d. Mr. Greensill’s dangerous driving was due to carelessness. He was not targeting Mr. Clarke or trying to run him down. The evidence does not support an inference of discrimination regarding his driving.
e. Mr. Greensill has established a non-discriminatory explanation for his conduct after the dangerous driving incident. This interaction was initiated by Mr. Clarke, who was angry and yelling at him. In that context, Mr. Greensill responded in kind, swearing at him and making the comment that “you people should be buried”. Given that this was a heated interaction, Mr. Greensill had a non-discriminatory basis to feel threatened. In this context, I do not find that Mr. Greensill was relying on anti-Black stereotypes.
f. Mr. Greensill did not make any direct reference to Mr. Clarke’s race, and there is no other contextual evidence to support that his reference to “you people” was a reference to Black people.Mr. Clarke did not make any specific arguments about how this phrase on its own supports an inference of discrimination. However, I note that in cases where human rights adjudicators have considered the phrase “you people”, there has been other evidence that proves the phrase was intended to refer to the complainant’s race. For example, in George,the harasser made explicit racial slurs and referred to “you people” expressly to mean Black people: see eg. paras. 63-68. In Baylis-Flannery,the respondent made racial slurs about Black women and Black people generally, which contextualized his reference to “you people” see eg. para. 139. There is no similar evidence in this case that allows me to conclude that it is more likely than not that when Mr. Greensill said, “you people”, he meant Black people.
[109] In summary, based on all the evidence and my findings of fact, I recognize the possibility of discrimination. The strongest evidence for this is Mr. Greensill’s comment “you people should be buried”. However, considering the evidence and context as a whole, Mr. Clarke has not persuaded me, on a balance of probabilities, that his race or colour were a factor in Mr. Greensill’s conduct in the truck cleaning incident and dangerous driving incident. Rather, I am satisfied that the Respondents have established a non-discriminatory explanation for Mr. Greensill’s conduct in those incidents. This part of Mr. Clarke’s complaint is dismissed.
VI ALLEGATIONS ABOUT THE CITY’S RESPONSE
[110] My decision that Mr. Greensill did not discriminate against Mr. Clarke does not end the matter. Now I must decide whether the City discriminated against Mr. Clarke in how it responded to his complaint about Mr. Greensill.
[111] Employers have obligations under the Code to respond reasonably and appropriately to complaints of discrimination: Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 at paras. 52-53; Beharrell v. EVL Nursery Ltd., 2018 BCHRT 62 at para. 24. An unreasonable or inadequate response may amount to discrimination “regardless of whether the underlying conduct subject to the investigation is found to be discriminatory”: Employee v. The University and another (No. 2), 2020 BCHRT 12 at para. 272. Some factors the Tribunal may consider are whether the employer has a proper understanding of discrimination, whether the employer treated the allegations seriously and responded sensitively, and whether the complainant was restored to a discrimination-free work environment: Laskowska at para. 59, cited in Beharrell at para. 21.
[112] There are two requirements that trigger an employer’s duty to respond under human rights legislation.First, the employer must know there is a complaint or concern, typically because the complainant has communicated one. Second, the complaint must be about a potential violation of the Code: Naidu v. Whitby Mental Health Centre,2011 HRTO 1279 at para. 191; see also the application of this principle in Martinez Johnson v. Whitewater Concrete Ltd .,2022 BCHRT 129 at para. 62.
[113] In this case, three important facts are not in dispute. First, the parties do not dispute that the City has human rights policies and procedures that address discrimination in the workplace, and that staff have participated in training related to these policies. Second, there is no dispute that Mr. Clarke complained to the City about Mr. Greensill’s conduct in the truck cleaning incident, paving project incident (which I have found did not involve Mr. Greensill), and the dangerous driving incident. Finally, there is no dispute that the City started but never finished an investigation. Most significantly, no one from the City ever talked to Mr. Greensill about these incidents. It did not take further steps to restore Mr. Clarke’s workplace after these incidents.
[114] Mr. Clarke’s allegation about the City’s response turns on whether the City knew, or ought to have known, that Mr. Clarke’s complaints about Mr. Greensill engaged discrimination or his rights under the Code. Mr. Clarke says that he clearly reported that Mr. Greensill’s conduct was racist or, alternatively, the City should have known that was a possibility.The City disputes this. On balance, Mr. Clarke has not persuaded me that he told the City, or the City should reasonably have known, that his complaint about Mr. Greensill was about race discrimination. In this circumstance, I am satisfied that the City’s duties under the Code were not triggered and it did not discriminate against Mr. Clarke in its response to his complaint about Mr. Greensill.
[115] Mr. Clarke first complained about Mr. Greensill on November 28, 2018 – about three weeks after the dangerous driving incident. That day, he texted Mr. Reilly and another manager:
I would like to speak to you guys about a situation with Mike [Greensill] as I understand you guys already know. It’s been bothering me a lot and now I’m ready to talk.
Mr. Reilly responded: “please call me”. Throughout his testimony, he emphasised the importance of gathering facts right away.
[116] Mr. Reilly met with Mr. Clarke the next day. This meeting is important, and Mr. Reilly’s evidence conflicts with Mr. Clarke’s on a critical point: whether Mr. Clarke said he believed Mr. Greensill’s conduct towards him was connected to his race.
[117] In his direct evidence, Mr. Clarke testified that he told Mr. Reilly that Mr. Greensill had targeted him because he is Black. Later, in cross-examination, he said that he believed he had told Mr. Reilly that he was being continuously harassed and discriminated against because he was Black, but that he was not sure whether he referred specifically to Mr. Greensill or “everything else”. On balance, I prefer Mr. Reilly’s evidence that Mr. Clarke did not mention race when he complained about Mr. Greensill.
[118] Mr. Reilly took notes of the meeting, which he pasted into an email to Mr. Dhillon and Carolyn Pybus (a Human Resources Consultant) that same morning. In that email, he summarized the information that Mr. Clarke had given him, including his allegations about the truck cleaning incident, the paving project incident, and the dangerous driving incident. He recorded Mr. Clarke’s report that Mr. Greensill had told him “guys like you should be buried”, and that Mr. Greensill later apologized, claiming it was the heat of the moment. There is no mention that Mr. Clarke thought these incidents were discriminatory or connected to his race.
[119] Throughout his testimony, Mr. Reilly emphasized that his role was to collect and record the facts in a timely way. He says, and I accept, that if Mr. Clarke had mentioned discrimination, he would have put that in his notes. He had no reason not to. His notes otherwise capture the main points of Mr. Clarke’s allegations. It would be a significant, and unexplained, omission not to mention that Mr. Clarke considered these incidents to be discriminatory. Among other things, an allegation of discrimination triggers a different response by the City than an allegation of interpersonal conflict.
[120] In making this finding, I have also considered my general concerns, outlined above, about the reliability of some of Mr. Clarke’s evidence. I do not doubt the sincerity of his testimony that he told Mr. Reilly he believed Mr. Greensill was discriminating against him, but I am not persuaded that his is the more reliable account of this meeting.
[121] As it turns out, this initial meeting with Mr. Reilly was Mr. Clarke’s only direct communication with the City about Mr. Greensill until after he filed his human rights complaint in March 2019. In the meantime, the City’s investigation began. Given my finding that Mr. Clarke did not communicate that he was complaining about discrimination, the issue becomes whether the City knew, or should reasonably have known, that he was.
[122] On November 29 – the same day that Mr. Clarke met with Mr. Reilly – Mr. Dhillon reached out to a Labour Relations Consultant to seek advice about a “sensitive case”, meaning Mr. Clarke’s complaints against Mr. Greensill. Mr. Dhillon says that he called the circumstances “sensitive” because it involved two employees, and the allegation was a serious safety infraction that could result in dismissal for the aggressor. This explanation is undercut by the fact that the City never ultimately addressed the safety infraction at all. In my view, it is more likely that City staff involved were aware that Mr. Clarke had previously filed at least one grievance and a human rights complaint, and that they needed to respond to him carefully. They were also aware that, a year prior, Mr. Clarke had alleged that he was being ostracized and retaliated against for complaining about discrimination at work. The Labour Relations Consultant directly invoked this in her response to Mr. Dhillon, where she counselled “if [Mr. Clarke] comes forward with allegations of retaliation … it would be beneficial to hold a meeting with him to discuss his concerns in more detail”.
[123] The City has two policies governing behaviour in the workplace. The Respectful Workplace Policy applies to interpersonal conflicts and respectful communications between employees. It is generally enforced by supervisory staff and managers, with support from the Human Resources department. The Human Rights and Harassment Policy [ Human Rights Policy ] applies to discrimination and issues related to characteristics protected by the Code. The City’s Equal Employment Opportunity Program [ EEO ] oversees the Human Rights Policy. The EEO is a resource for staff, and is responsible to address concerns of discriminatory harassment.
[124] In this case, Ms. Pybus and Mr. Dhillon determined that Mr. Clarke’s complaints involved an interpersonal conflict between two employees, which would be handled by the Sewers Branch. As a result, the EEO was never engaged, and the Human Rights Policy was never applied.
[125] Ultimately, the City’s investigation foundered. After speaking to Mr. Clarke, Mr. Reilly spoke to Mr. Harvey and got the written statement I have set out above. Very shortly after that, Mr. Clarke had a series of absences throughout December and into January. On January 10, 2019, Mr. Clarke sustained a concussion at work. He was off work related to that concussion, and then an unrelated surgery, until September 2019. It seems that, in Mr. Clarke’s absence, the City took no further steps to investigate his allegations.
[126] Significantly, no one ever spoke to Mr. Greensill. This is most surprising in relation to the dangerous driving incident because, if nothing else, it involved workplace safety. The witnesses offered various explanations for this, including that:
a. the City was waiting for Mr. Clarke to file a “formal complaint”. This was Mr. Dhillon’s explanation, but both Ms. Pybus and Mr. Reilly disagreed and said that Mr. Clarke’s complaint to Mr. Reilly was sufficient to trigger a City response under its policies.
b. the City wanted to meet with Mr. Clarke first, but could not arrange a time to talk to him and his union representative. Ms. Pybus says this was Mr. Reilly’s responsibility, which he denies. In any event, Mr. Reilly testified, and I agree, that this was not a reason not to talk to Mr. Greensill.
c. Mr. Clarke filed this human rights complaint in March 2019, after which the matter was transferred to the City’s legal department and the City’s response focused exclusively on the Tribunal proceedings. Even accepting this is a reasonable approach (which I do not), it does not explain the months before the complaint when the City did not talk to Mr. Greensill.
[127] Respectfully, none of those explanations are very compelling. In my mind, the issue of why the City never spoke to Mr. Greensill is unanswered. All the City witnesses agreed that, ultimately, the investigation was never completed. This means that the City never properly investigated Mr. Clarke’s allegations. But this does not mean the City’s response was discriminatory.
[128] Mr. Clarke argues that, even if he did not expressly allege to the City that Mr. Greensill had discriminated against him, the City should reasonably have inferred that discrimination was at issue. He argues that the City should have been aware that he was the only Black employee in the department and had previously faced discrimination at work. As recently as October 2018, he complained to Bruce Todd, Superintendent II, that he was being treated differently “on a daily basis” because he is “visually different”. This entire text thread is not before me, but this comment appears to relate to a scheduling issue. Mr. Todd’s response was that he did not see “where the harassment and discrimination is” and urged Mr. Clarke to raise his concerns in a meeting with the union and Human Resources. Also in October 2018, the Human Rights Tribunal released its decision finding Mr. Clarke’s first human rights complaint to be out of time and declining to accept it. Mr. Clarke’s allegations against Mr. Greensill arose, therefore, in the context of other ongoing allegations involving racial discrimination at work. Finally, he argues that the City should have considered that a statement like “you people should be buried” may be discriminatory.
[129] In this context, it may have been open to the City to query whether Mr. Clarke’s allegations were about discrimination. In hindsight, it may have been good to do so. However, on balance, I agree with the City that this context is insufficient to conclude that the City should have reasonably understood that Mr. Clarke’s allegations about Mr. Greensill engaged the Code.
[130] On their face, Mr. Clarke’s allegations did appear to be about an interpersonal conflict – about the use of Mr. Greensill’s truck, Mr. Clarke getting overtime ahead of more senior employees, and about Mr. Greensill’s dangerous driving in the yard. Mr. Clarke was aware of the procedure for reporting discrimination and comfortable doing so. He and Mr. Reilly each testified that they had a good working relationship. Mr. Clarke understood Mr. Reilly would be there to support him if he was facing discrimination at work. Similarly, he testified that Mr. Todd was someone he could talk to about discrimination at work. He had previously complained about discrimination and always did so expressly. In all these circumstances, I find it was reasonable for the City to assume that if Mr. Clarke was complaining about discrimination, he would have said so. It is not necessarily desirable or appropriate to infer, based on the fact that he is one of very few Black employees and has experienced discrimination, that all of Mr. Clarke’s work-related complaints relate to his race.
[131] The City says, and I accept, that it first learned that Mr. Clarke was alleging discrimination when it received this human rights complaint. The filing of the human rights complaint marks the end of the period of the complaint: Clarke v. City of Vancouver and another (No. 3), 2023 BCHRT 126 [ Clarke (No. 3)] at para. 11. As such, I will not go on to decide whether the City’s conduct after the complaint was filed violated the Code.
[132] Finally, both parties submitted evidence about an interaction between Mr. Clarke and Ms. Pybus on October 9, 2019. This incident occurred outside the liability period and did not relate to Mr. Greensill: Clarke (No. 3) at para. 11. It is not apparent to me how they it is relevant to the allegations currently before me, and I decline to make findings about this interaction or set out the evidence related to it.
[133] In summary, I am not persuaded that the City’s response to Mr. Clarke’s complaint during the liability period of this complaint violated the Code.This part of Mr. Clarke’s complaint is dismissed.
VII CONCLUSION
[134] This was a difficult case. As I have noted throughout, there are areas where the evidence could have supported a different result. However, it is Mr. Clarke’s burden to persuade me that the City and Mr. Greensill violated the Code.He has not. The complaint is dismissed.
Devyn Cousineau
Vice Chair