2024 BCHRT 301 - BC Human Rights Tribunal

Dental Hygienist v. Dental Corporation (Dental Clinic) and another, 2024 BCHRT 301

Date Issued: October 29, 2024
File(s): CS-003854

Indexed as: Dental Hygienist v. Dental Corporation (Dental Clinic) and another, 2024 BCHRT 301

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:

Dental Hygienist

COMPLAINANT

AND:

Dental Corporation (Dental Clinic) and Dentist

RESPONDENTS

REASONS FOR DECISION
APPLICATIONS TO DISMISS A COMPLAINT, LIMIT PUBLICATION, AND AMEND RESPONSE TO DISMISSAL APPLICATION
Section 27(1)(b) and (g) and Rules 5 and 28

Tribunal Member: Jonathan Chapnick

On her own behalf: Dental Hygienist

Counsel for the Respondents: Shauna R. Gersbach

I INTRODUCTION

[1] On December 31, 2020, the Dental Hygienist [ DH ] filed a human rights complaint against the Dental Corporation (Dental Clinic) and the Dentist [ Respondents ]. DH alleges discrimination in employment based on sex in contravention of s. 13 of the Human Rights Code. This decision is about whether DH’s complaint should be dismissed without a hearing.

[2] DH was employed by the Respondents at the Dental Clinic between March 2019 and February 2020. The Dentist owns and practices at the Dental Clinic. In addition to working for the Respondents, DH rented an apartment from the Dentist. Her complaint to the Tribunal pertains only to her employment; it was not filed under s. 10 of the Code in the area of tenancy.

[3] In her complaint, DH states that the people she worked with said and did things that made her very uncomfortable. She alleges various specific interactions involving the Dentist and others. She says each interaction involved her employer, office manager, or co-workers making sexist and gender-based comments or engaging in sexual harassment. DH says her complaint alleges a timely continuing contravention of the Code dating back to the first alleged interaction in February 2019. Further, she says that, even if her complaint is untimely, it is in the public interest for the Tribunal to accept it under s. 22(3) of the Code and no substantial prejudice will result to any person because of the delay.

[4] The Respondents deny discriminating and apply to dismiss DH’s complaint without a hearing. They say her allegations could not, even if proven, contravene the Code, so her complaint should be dismissed under s. 27(1)(b). In addition, they argue that the complaint, or a part of it, should be dismissed under s. 27(1)(g) because it was filed late and does not allege a continuing contravention. They say it is not in the public interest for the Tribunal to accept DH’s late-filed allegations under s. 22(3).

[5] There is a one-year time limit for filing a human rights complaint: Code, s. 22. Under s. 27(1)(g), the Tribunal can dismiss a complaint that puts forward allegations falling outside the time limit, unless the allegations form part of a continuing contravention with a timely allegation that could contravene the Code. For the reasons that follow, I find that DH’s complaint does not allege any timely allegations that could contravene the Code, which means that her allegations falling outside the time limit are late. I have decided not to exercise my discretion under s. 22(3) to accept DH’s late-filed allegations. Her complaint is therefore dismissed under ss. 27(1)(b) and (g).

[6] My reasons below also deal with two preliminary matters. First, I have granted an application from the Respondents to limit publication of identifying information in this decision. Second, I have dealt with DH’s application to amend her response to the dismissal application. To deal with these preliminary matters and to make my decision regarding the dismissal application, I have considered all the information filed by the parties. In my reasons, however, I only refer to what is necessary to explain what I decided.

[7] My reasons below are not meant to minimize what DH says she experienced, nor to condone all of the Dentist’s alleged behaviour, some of which, if proven, could reasonably be viewed to be unprofessional, disrespectful, inappropriate, or offensive. I make no judgement regarding the validity of how DH felt about what she says happened. I also make no findings of fact.

II PRELIMINARY MATTERS

[8] Before explaining my decision to dismiss the complaint, I will first address the two preliminary matters, beginning with the Respondents’ application to limit publication.

A. Application to limit publication

[9] The human rights complaint process is presumptively public: Mother A obo Child B v. School District C, 2015 BCHRT 64 at para. 7. For example, the Tribunal publishes its hearing schedule and most of its decisions on its website, and Tribunal hearings are generally open to the public. This openness serves the public interest and aligns with the purposes of the Code: see Edmonton Journal v. Alberta (Attorney General) , [1989] 2 SCR 1326 at para. 61; JY v. Various Waxing Salons, 2019 BCHRT 106 at para. 25; A. v. Famous Players Inc., 2005 BCHRT 432 at para. 14 [ Famous Players ]; Code, s. 3. In some circumstances, however, a person’s privacy or other interests may outweigh the public interest in full and open access to the Tribunal’s proceedings. In these situations, the Tribunal has discretion to limit publication of identifying information: Tribunal Rules of Practice and Procedure , Rule 5(6); Stein v. British Columbia (Human Rights Tribunal), 2020 BCSC 70 at para. 64(a).

[10] In the present case, the Respondents apply for an order limiting publication of identifying information at this stage of the complaint proceedings. Essentially, they ask the Tribunal to anonymize this decision, such that all names and other identifying details are removed and not made public. DH opposes the Respondents’ request. The following are my reasons for granting it.

[11] In an application to limit publication, the applicant must persuade the Tribunal that their privacy or other interests outweigh the public interest in an open complaint process. In deciding this type of application, the Tribunal may consider various factors, such as: the stage of the complaint proceedings; the nature of the complaint and the allegations; the private, personal details involved in the complaint; the potential harm of publication to a person’s reputation; and other potential harms of publication: JY at para. 30. The Respondents say these factors favour anonymization in this case. On balance, I agree.

[12] Unlike in The Employee v. The Firm and another, 2020 BCHRT 36, I am not persuaded that DH’s allegations are the type that are likely to attract the public’s “prurient” attention. Nor does the complaint engage particularly sensitive personal information, like medical details. However, I am satisfied that anonymization is justified because of the early stage of the complaint proceedings, the outcome of the Respondents’ dismissal application, the potential reputational harm to the Respondents, and the private nature of the complaint.

[13] The Respondents are correct that there is greater scope for limiting publication at earlier or preliminary stages of the complaint process, before the Tribunal has made a decision on the complaint’s merits: Famous Players at para. 14. The early stage of the matter before me favours anonymization. The allegations discussed in this decision have not been proven. Moreover, I have decided that the timely allegations could not, even if proven, contravene the Code. I acknowledge DH’s argument that any harms caused to the Respondents by publishing her unproven factual allegations may be remedied if they are ultimately found to be untrue at a hearing. However, I have decided that this complaint will not proceed to a hearing, so that potential relief will not be available to the Respondents. Instead, if I deny the Respondents’ anonymization application, unproven allegations of gender-based comments and sexual harassment will remain online for public viewing indefinitely. In any event, once information about a person is made public, the privacy of that information can seldom be regained: R. v. O’Connor, [1995] 4 SCR 411 at para. 119.

[14] DH says the potential reputational damage to the Respondents in this case is speculative. While I agree that the publication of her allegations is not certain to harm the Respondents, I find that the circumstances in this case support the reasonable likelihood of harm and favour anonymization. There is no dispute that the Dentist is a health professional and that he and the Dental Clinic serve a relatively large number of patients within a small community. In this context, I am satisfied that the indefinite online publication of DH’s unproven allegations of gender-based comments and sexual harassment is reasonably likely to cause real harm to the personal and professional reputation of the Respondents – particularly, the Dentist. I note that the Tribunal has previously granted anonymization to health professionals in the interests of maintaining their professional reputations and preventing harm to their ability to effectively provide care to their patients: see e.g., The Pharmacist v. The Doctor and another , 2019 BCHRT 176.

[15] Finally, I find that the nature of DH’s complaint factors in favour of anonymization. The complaint is a purely private matter, involving an employee and her small employer (and to a lesser extent her co-workers). This is not the type of case where there is a compelling need for public awareness of the identity of the participants: see CN v. Health Authority and another , 2014 BCHRT 265 at para. 49; see also A obo B v. School District 61 , 2014 BCHRT 105 at para. 11.

[16] I acknowledge that DH has complained to the Dentist’s regulatory body, which she says issues public notices of its investigation findings and decisions. DH suggests that this factors against the Respondents’ anonymization application. The Respondents, on the other hand, assert that there is no indication that the regulator will publish the outcome of its investigation. In support of this assertion, the Respondents refer to information on the regulator’s website and cite the provisions of the Health Professions Act dealing with public notifications and confidential information.

[17] There is no evidence before me indicating that the regulator has published the information the Respondents seek to keep private in this decision. If there was, it might impact my assessment of the Respondents’ anonymization application, because information in other public decisions could undermine the utility and effectiveness of an order to limit publication in these proceedings: see RR v. Vancouver Aboriginal Child and Family Services Society (No. 3) , 2019 BCHRT 269 at paras. 9-13. In the absence of any such evidence, however, the regulator’s process does not factor into my assessment of the anonymization issue.

[18] For all of these reasons, I find that the Respondents’ interests in anonymization outweigh the public interest in publishing identifying information in this decision.

[19] I order the anonymization of this decision and that the Tribunal and no person will publish or make available to the public any information that could identify the individuals and organizations described in this decision.

B. Application to amend response to dismissal application

[20] The second preliminary matter in this case relates to DH’s response to the Respondents’ dismissal application.

[21] In her original response to the dismissal application, DH provided a sworn statement and asserted in her submissions that, for the dismissal application to succeed, the Respondents needed to prove that her complaint had no reasonable prospect of success. In its reply, the Respondents correctly noted that the test under s. 27(1)(b) is not whether the complaint has a reasonable prospect of success; that is the test under s. 27(1)(c). The Respondents also argued that neither evidence nor elaborations are admissible or relevant to an application under s. 27(1)(b). They said the Tribunal is restricted to assessing the facts alleged on the face of the complaint.

[22] In the months following her receipt of the Respondents’ reply, DH applied to replace her original response submissions with an amended document. The Respondents oppose DH’s application. At the same time, they correctly observe that DH’s amended response is largely “substantively identical” to her original submissions.

[23] I have considered the amended response, and see no unfairness in having done so. It is essentially the same as the original response. Neither version of DH’s response prevents me from deciding that her complaint should be dismissed.

[24] It is therefore not necessary for me to make a determination on the merits of DH’s application to amend her response. I will state, however, that I do not agree with the Respondents’ submissions regarding the scope of what is relevant or admissible in a dismissal application under s. 27(1)(b). Although certain cases may be interpreted otherwise, the Tribunal is not restricted under s. 27(1)(b) to considering facts alleged on the face of the original complaint form; it may also consider additional particulars set out in the complainant’s response to the dismissal application: Larssen v. City of Port Coquitlam and others (No. 2) , 2005 BCHRT 548 at paras. 26-27; see also Safaei v. Vancouver Island Health Authority , 2020 BCSC 1410. What is not relevant under s. 27(1)(b) – nor to the “arguable contravention” analysis generally (which I discuss below) – is the respondent’s version of events: Myles v. Foot Solutions Vancouver and another , 2019 BCHRT 149 at para. 4. When assessing whether an allegation could, if proven, contravene the Code, the Tribunal does not consider alternative versions of events or explanations advanced by the respondent: Myles at para. 4; Bailey v. BC (Attorney General), 2006 BCHRT 120 at para. 12; Francescutti v. Vancouver (City), 2017 BCCA 242 at para. 49.

[25] I will now move on to my reasons for granting the Respondents’ application to dismiss under ss. 27(1)(b) and (g).

III DECISION

[26] DH filed her complaint on December 31, 2020. She acknowledges that it puts forward allegations falling outside the one-year time limit, but argues that they form part of a continuing contravention with a timely allegation of discrimination. The Respondents disagree. They say DH’s timely allegations could not, if proven, contravene the Code , and the remaining portion of her complaint was filed late. Further, they argue that it is not in the public interest for the Tribunal to accept the late-filed allegations under s. 22(3).

A. Does the complaint allege a continuing contravention?

[27] A complaint alleging a continuing contravention must be anchored in a timely allegation of discrimination: Code, s. 22(2); see School District v. Parent obo the Child, 2018 BCCA 136 at para. 44. This means that, to determine whether a complaint alleges a continuing contravention, the Tribunal must first assess whether the complaint alleges acts or omissions, falling within the preceding one-year period, which pass the “arguable contravention test,” meaning they could, if proven, contravene the Code: see Chen v. Surrey (City), 2015 BCCA 57 at para. 23. Timely allegations that do not pass the arguable contravention test may be dismissed under s. 27(1)(b) of the Code , leaving any allegations filed outside the time limit without the anchor required to establish a continuing contravention. Without this needed anchor, the allegations falling outside the time limit are late.

[28] In DH’s case, I must assess whether her complaint puts forward an arguable contravention on or after December 31, 2019.

[29] DH says the Respondents failed to provide a safe work environment and the Dentist consistently subjected her “to discriminatory hostile harassment during [her] employment, both inside and outside the office.” More precisely, she alleges various specific interactions involving the Dentist and others between February 28, 2019 and February 25, 2020, including several interactions on or after December 31, 2019. In this dismissal application, the burden is on DH to establish that her complaint alleges a continuing contravention: Dove v. GVRD and others (No. 3) , 2006 BCHRT 374 at para. 21. To begin to meet this burden, she must first show me that one of her timely allegations – i.e., an alleged interaction on or after December 31, 2019 – passes the arguable contravention test. DH is correct in asserting that the threshold for passing this test is low: Gichuru v. Vancouver Swing Society, 2021 BCCA 103 at para. 56. Her complaint must only allege facts that could establish a discriminatory adverse impact in her employment.

[30] I note here that I disagree with the Respondents’ narrow characterization of DH’s complaint as alleging “sexual harassment” in the course of her employment. On the face of her complaint, and as explained further in her submissions, DH alleges “sex discrimination,” including, but not limited to, sexual harassment. Under the umbrella of sex discrimination, she also alleges sexist and gender-based comments.

[31] “Sexual harassment” is a specific form of sex discrimination, which involves conduct of a sexual nature that is “unwelcome” or otherwise amounts to or results in adverse treatment or impacts in employment: see Ms. K v. Deep Creek Store and another, 2021 BCHRT 158 at paras. 71-95. In general, however, sex discrimination need not be inherently or overtly sexual: see The Sales Associate v. Aurora Biomed Inc. and others (No. 3) , 2021 BCHRT 5 at paras. 112-121; see also Ms. L v. Clear Pacific Holdings Ltd. and others , 2024 BCHRT 14 and Loiselle v. Windward Software Inc. (No. 2), 2021 BCHRT 7. Sex discrimination is a broad concept encompassing a wide range of behaviour: Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1251, 1989 CanLII 97 (SCC) at p. 28. In employment, it can include conduct that leverages or reinforces gendered power hierarchies in the workplace, such as acts or omissions that humiliate, subjugate, blame, or intimidate: see Ms. L at paras. 8-9; see also The Sales Associate at para. 116.

[32] With these concepts and principles in mind, I will review DH’s timely allegations in turn.

1. Hiring pretty girls and converting dental assistants into receptionists

[33] DH alleges that, in early 2020, while she and another hygienist were having lunch in the staff room, the Dentist talked about a dentist in Vancouver who required her female employees to do their nails and wear makeup. DH says this was the second time the Dentist had talked about this. She alleges that, sometime between March and August 2019, the Dentist had talked about how the Vancouver dentist only hired “pretty girls” who presented themselves in a certain way, which the Dentist said was “smart if you think about it.”

[34] DH further alleges that, during the same interaction in the staff room in early 2020, the Dentist made other gender-based, unprofessional comments – saying that, when dentists do not want to work with a dental assistant anymore, they convert the assistant into a receptionist. DH says the Dentist stated that the dental assistant thinks “they’re getting a promotion but it’s really just because the dentist doesn’t want to work with them anymore.”

[35] DH says the Dentist’s comments about the Vancouver dentist’s practices were unnecessary and inappropriate, and contributed to a hostile workplace atmosphere in which she felt objectified as a woman. Regarding the comments about dental assistants, DH says all the receptionists and assistants at the Dental Clinic were women. She says the comments “openly acknowledged intentional deception of these employees … which contributed to the ambient hostility I experienced” at the Dental Clinic. DH says the Dentist’s comments felt demeaning and gave the impression that the Dentist had a negative attitude toward women. She says this was particularly the case in the context of “the unwelcome and inappropriate sexual conduct” she had been “subjected to by [the Dentist] as both his employee and tenant.”

[36] I agree with DH that the Dentist’s alleged comments during this interaction in early 2020 could reasonably be viewed as unprofessional and unnecessary. But I do not agree that they could, if proven, contravene the Code. As the Respondents have argued, there is a difference between comments that are inappropriate in the workplace and those that rise to the level of sex discrimination under the law. Not every negative comment connected to sex attracts scrutiny under the Code or requires the Tribunal’s intervention: see Brito v. Affordable Housing Societies and another , 2017 BCHRT 270 at para. 41.

[37] DH’s complaint centres around allegations of both sexual harassment, and gender-based harassment that was not overtly sexual. The analysis for assessing harassment is contextual; “context is critical” in determining whether alleged comments and behaviour could rise to the level of discriminatory harassment: Brito at para. 43; Smith v. Mohan (No. 2) , 2020 BCHRT 52 at para. 213. Discriminatory harassment is conduct that falls outside the usual limits of social interaction in all the circumstances: Hill v. Air Canada, 2003 CHRT 9 at para. 153; see Smith at para. 213. To determine whether a person’s conduct crosses this line, the harassment analysis combines subjective and objective considerations: see Gaucher v. Fraser Health Authority and others, 2019 BCHRT 243 at para. 62; Reilly v. City of Vancouver and another , 2024 BCHRT 81 at para. 55; Hill at para. 153. Relevant factors can include: the situational context of the impugned interaction; the nature of the work environment; the parties involved in the exchange and the power dynamics between them; the nature of the alleged harasser’s behaviour, such as its virulence or egregiousness; the perspective and characteristics of the person subjected to the behaviour, including whether they are a member of a group that has historically experienced discrimination; and whether an apology was offered: see Smith at para. 213; Brito at paras. 43-44; Pardo v. School District No. 43 , 2003 BCHRT 71 at para. 12; Hill at para. 153; Willcott v. Freeway Transportation Inc. , 2019 CHRT 29 at para. 14.

[38] Considerations might also include whether the person subjected to the impugned behaviour participated in it or objected to it, and the pattern of the parties’ prior interactions: Hill at para. 153; Willcott at para. 14; see Forshner Brothers Trucking Ltd./Horsman Trucking Ltd. v. United Steelworkers, USW Local 1-1937, 2019 CanLII 104307 (BC LA) at paras. 40-48. However, the Tribunal must exercise extreme caution applying these types of factors, as they are not determinative, will often be irrelevant, and in some circumstances may place an extra onus on the complainant and feed into harmful myths and stereotypes: see The Employee v. The University and another (No. 2) , 2020 BCHRT 12 at paras. 177 to 180; see also Ms. K at paras. 78-89.

[39] In the circumstances before me, accepting DH’s version of events, I find that the Dentist’s comments do not pass the arguable contravention test based on several factors, some of which were argued by the Respondents. First, there are no allegations here of inappropriate comments regarding DH’s or any other person’s appearance. The allegations are that the Dentist talked somewhat approvingly about the gender-related practices in another workplace, and made a blanket and unsubstantiated statement about what dentists supposedly do when they are dissatisfied with their dental assistants, who at the Dental Clinic were all women. I do not approve or condone of these types of comments; they could reasonably be viewed as disrespectful and inappropriate. But they are not alleged to have been targeted at DH, nor is there an allegation that the Respondents ever engaged in the types of conduct and practices referenced in the alleged comments.

[40] Second, the comments are not alleged to have had sexual connotations. Third, DH does not allege that she raised concerns about these comments or gave any indication that they made her uncomfortable. This is not to suggest that a woman must necessarily protest to establish the unwelcomeness of a man’s conduct in the workplace. Rather, it is only to point out that this is not a situation where the respondent is alleged to have reacted in a harmful way to the complainant’s legitimate concerns regarding their comments: see The Sales Associate at para. 120. Fourth, the comments were allegedly made in an informal, social setting at work – i.e., in the staff room at lunch – rather than in an operatory or during a formal employment process or serious professional interaction.

[41] While none of these factors are necessarily determinative on their own, taken together, I find they favour a conclusion that the alleged comments could not, if proven, contravene the Code.

[42] I acknowledge DH’s submissions regarding the special circumstances of her relationship with the Dentist. Specifically, she says the effects of what she experienced at work were heightened because she was not only the Dentist’s employee, but also his tenant. She explains that she had decided to accept the Dentist’s offer of a rental apartment because of the limited housing options available in the remote area where the Dental Clinic is located. As a result of this decision, she says he controlled her living situation, which heightened the power imbalance she experienced and increased her sense of vulnerability in the workplace.

[43] I accept that, in the workplace context, unequal power dynamics can contribute to an employee feeling harassed or adversely treated by people in positions of power or authority: Gaucher at para. 62. However, allegations of those subjective feelings are not enough to ground a human rights complaint. There must be an objective element as well – one that distinguishes between alleged conduct that could reasonably be viewed as insensitive, rude, disrespectful, or inappropriate, and alleged behaviour that – in its virulence or egregiousness, or in some other way – if proven, goes beyond the usual limits of social interaction and amounts to a barrier to full participation, with dignity, in the area of employment: see generally Brito at para. 41; Gaucher at para. 62; Smith at para. 213; Reilly at para. 55. In my view, based on the factors discussed above, the Dentist’s alleged comments do not cross that line.

[44] Finally, I acknowledge that DH has situated her experience of the Dentist’s alleged comments in early 2020 within the context of “the unwelcome and inappropriate sexual conduct” she says she had previously been subjected to as his employee and tenant. I take this to be a general reference to her experience of the following alleged interactions with the Dentist between February 2019 and December 2019:

a. The Dentist reset the default passcode for the lock on DH’s apartment door. As a result, she could not change it without his assistance, and so he knew her passcode while she was living there.

b. The Dentist asked DH to tell a female dentist at the Dental Clinic [ Female Dentist ] to work faster, saying he had spoken to the Female Dentist about this but she was not interested in changing, and he thought she needed to hear it “from a girl.”

c. The Dentist made several gender-based and unprofessional comments to DH, including that: he would not hire a male dental hygienist because patients preferred having a pretty girl to look at; the girls in his class at school only graduated because they slept with the professors; he did not know why girls get plastic surgery, which guys do not like.

d. The Dentist came into her operatory to do a patient exam, and brushed his upper body and legs against her as he squeezed between her and the patient.

e. In a discussion of a medalist in a women’s Olympic event, the Dentist said the medalist would have “her medal taken away ‘because she has a … ’ and, without saying penis, he wiggled his right index finger in front of his groin.”

f. On two occasions, the Dentist went into DH’s mailbox, took her mail, and delivered it to her apartment door.

g. The Dentist misplaced some of DH’s rent cheques, mistakenly asked her to pay rent she had already paid, and asked for a bank statement showing he had cashed her cheques.

h. The Dentist said he was concerned about his daughter attracting lazy guys, and that he hoped his daughter would be like DH. He also said that the nicest, prettiest girl in his class could have had any guy she wanted but stayed single and had kids on her own.

[45] Even viewed in the context of these alleged interactions, I am not satisfied that the Dentist’s alleged comments in early 2020 pass the arguable contravention test. First, I note that, while DH describes these previous interactions as “sexual conduct,” none – as alleged – are overtly sexual towards her. Second, in large part, DH has not alleged facts capable of connecting these interactions to her sex, whether expressly or by inference: Myles at para. 15. For example, in the materials before me, there are no alleged facts that are capable of connecting the passcode interaction, mailbox interaction, or rent cheques interaction to DH’s sex. Similarly, on the facts alleged by DH, there is no reasonable basis for an inference that the alleged physical contact with the Dentist in her operatory was anything more than inadvertent. Fourth, I acknowledge that some of these alleged interactions could reasonably be viewed as involving inappropriate and offensive comments and conduct connected to gender. However, whether these allegations are considered on their own or taken together, the alleged interactions are not so virulent or egregious that they change my arguable contravention assessment of the Dentist’s alleged comments in early 2020.

2. University admissions process

[46] DH alleges that, in January 2020, the Dentist came into her operatory at the end of the day while she was working on her clinical notes, and engaged in conversation with her. She says he asserted that a particular BC university’s admissions process was discriminatory, to which she expressed disagreement. She says he then moved very close to her, stood over her with his arms crossed, and said “people discriminate, I know it’s not fair but that’s just how it is,” after which he walked over to a bench, sat down, and began talking to her about a different subject. DH says that, given the Dentist’s “previous expression of derogatory, sexist beliefs, this comment and his body language felt intimidating and belittling.” In her response to the dismissal application, she adds that the Dentist’s open expression of “acceptance of discrimination gave the impression that [he] was tolerant and permissive of discrimination which made me uncomfortable, particularly in the context of the unwelcome and inappropriate sexual conduct I had been subjected to … as both his employee and tenant.” She says this exchange made her feel belittled, “and made working in the hostile environment at the [Dental Clinic] extremely uncomfortable.” She says she felt powerless in this interaction and it had a significant negative impact on her health.

[47] I do not question DH’s description of how this alleged exchange made her feel. However, I agree with the Respondents that it could not, even if proven, contravene the Code. DH has not alleged facts capable of proving an express connection between this interaction and her sex. Nor could her allegations – including those regarding the Dentist’s prior conduct – give rise to a reasonable inference of such a connection. In my view, the Dentist’s alleged comments, movement, posture, and body language, considered in the context of his previous alleged interactions with DH, are not capable of supporting an inference of discriminatory harassment. Rather, the alleged facts describe a brief disagreement between an employee and her boss about the nature of a university’s admissions process during a conversation at the end of a work day. The facts alleged regarding DH’s subjective experience of this interaction are not enough to make it an arguable contravention of the Code.

3. Female Dentist “won’t last a second in Vancouver”

[48] DH alleges that, in January 2020, the Female Dentist told her that the Dentist had said the Female Dentist “won’t last a second” if she relocates to Vancouver. DH says this “demeaning communication between [the Dentist] and the only female dentist in the practice, contributed to the ambient hostility at [the Dental Clinic] and contributed to [her] feeling demeaned as a female.” She says she never heard the Dentist make negative comments about or toward male dentists at the Dental Clinic.

[49] Despite the alleged impact on DH of hearing about this alleged exchange between the Dentist and the Female Dentist, I find that DH has not alleged facts that could, if proven, amount to discrimination in her employment. Without more, the facts alleged are not capable of connecting the Dentist’s alleged comments to sex or any other protected characteristic under the Code. Moreover, as the Respondents have argued, the alleged exchange did not involve DH and the alleged comments were not directed at her.

4. Washed rent cheque

[50] DH alleges that, on January 7, 2020, the Dentist told her he thought he may have washed her rent cheque. She alleges that, when she asked who was going to pay the stop payment fee, he said he would look for the cheque. DH says that, as the Dentist’s tenant and employee and given the power dynamics at play, this interaction made her feel even more vulnerable. I do not accept that DH’s alleged negative experience of this interaction, viewed in context of the power dynamics described, renders the interaction arguably discriminatory. Among other things, the facts alleged are not capable of establishing the necessary connection to DH’s sex.

5. Asking if DH could stay longer

[51] DH alleges that, on January 10, 2020, she told the Dentist and the office manager that she would not be renewing her employment contract, and her last day at the Dental Clinic would be February 28. She alleges that the Dentist replied that he enjoyed having her at the Dental Clinic and asked if she could stay longer while they looked for a replacement. She says she said no, but he continued asking, to which she replied that she would let them know if she changed her mind. DH alleges that the Dentist asked a third time, at which point the office manager stomped her foot and said, “she will let us know,” to which the Dentist responded by saying “ok” and backing up from the door to room they were in. DH says she then left the room and the conversation ended. She says this interaction made her feel uncomfortable because the Dentist would not accept her decision and was standing in front of the room’s exit.

[52] I agree with the Respondents that the facts alleged regarding this interaction could not, if proven, amount to sex discrimination. Among other things, the facts alleged are not capable of establishing the necessary connection to DH’s sex.

6. Alleged harassment of other dental hygienist

[53] DH alleges that, in January 2020, she had a conversation with the office manager about a former dental hygienist at the Dental Clinic, who had also been the Dentist’s tenant. She says she mentioned to the office manager that she “had heard of things not ending well” between the Dentist and the hygienist. DH alleges that the office manager explained that the hygienist had told the Dentist she was uncomfortable with him showing up at her apartment, and the Dentist did not take this well. DH says she asked the office manager, “so he was harassing her?” to which the office manager replied yes. DH says she then “asked if he is stalking me,” to which the office manager replied, “no I think he’s actually been quite professional with you,” while also saying, “you’re not the first and you won’t be the last.”

[54] DH says this conversation with the office manager was very upsetting and had a significant negative impact on her health. She says it “gave the alarming impression that [the Dentist] engages in and is tolerant of sexual harassment, both at work and outside work.” She says the conversation perpetuated the ambient hostility at the Dental Clinic. She says that, following the conversation, she “felt very unsafe, both at work and at home … which compounded on the already hostile work environment permitted” by the Dentist. She says she was concerned that the Dentist would try to come into her apartment without permission. She says she felt scared and trapped.

[55] Despite the alleged impact on DH of this conversation with the office manager, I find that she has not alleged facts that could, if proven, amount to discrimination in her employment. Hearing second-hand about unproven allegations of sexual harassment by a person, while unsettling, does not amount to sex discrimination by that person.

7. Subway voucher and questions about moving

[56] DH alleges that, on January 16, 2020, the Dentist came into her operatory and asked her about her plans to move back to another part of the province. She says he asked about her mode of transit, how she was moving her belongings, and if she had bought a lot of furniture. She says he then walked away and returned five minutes later with a voucher for Subway, which he gave to her.

8. Deliveries to DH’s address

[57] DH alleges that, on January 17, 2020, she began receiving personal shipments for the Dentist at her apartment. She says she received another delivery on February 5, 2020. She says there was no explanation for these deliveries to her address.

[58] I agree with the Respondents that, without more, these alleged facts could not amount to sex discrimination. Among other things, the facts alleged are not capable of establishing the necessary connection to DH’s sex.

9. Video surveillance in Dental Clinic

[59] DH alleges that, in late January 2020, she saw “multiple windows of live camera footage within the operatories open on the office manager’s computer screen.” She says she had never been made aware of any kind of surveillance in the operatories and there is no signage notifying patients.” In contrast, she says that there are obvious cameras in the reception area and hallways in the Dental Clinic. DH says “the use of unannounced surveillance of any kind in a treatment room is an unethical and improper practice.” She says it “was not clear what the purpose of the surveillance was, who had access to it, or what it was being used for.” She says it was very distressing to learn of the surveillance; it made her “feel violated, particularly in the context of the unwelcome and inappropriate sexual conduct [she] had been subjected to by [the Dentist] in the operatory rooms.” She says it reinforced her feeling of “being preyed on and that [she] had been violated, and was thus of a piece with the other incidents of sexual harassment [she] experienced while employed by the Respondents.”

[60] I find that, without more, these alleged facts, if proven – and viewed in the full context of DH’s complaint – could not amount to sex discrimination. As the Respondents argue, the surveillance is not alleged to have been for a sexual or otherwise inappropriate purpose. Allegations of video surveillance in a workplace, on their own, are not allegations of discrimination based on sex. While I appreciate DH’s allegations regarding how she felt upon learning of the surveillance, without more, those allegations are not capable of establishing the necessary connection to her sex.

10. Air conditioning in operatory

[61] DH says the Dentist controlled the thermostat at the Dental Clinic. She alleges that, in January and February 2020, after she disclosed she would be leaving her employment with the Respondents, the air conditioning in her operatory started turning on periodically. She says that, on several occasions, she had to tell the office manager that her operatory was too cold, and the office manager would adjust the thermostat for her. DH says she never had these issues before.

[62] I agree with the Respondents that, without more, these alleged facts could not amount to sex discrimination by the Respondents. DH has not expressly alleged that the Respondents caused the air conditioning problems, nor could her allegations give rise to a reasonable inference of any wrongdoing on their part. In any event, she has not alleged a connection to her sex.

11. Contact between buttocks in operatory

[63] In her complaint, DH alleges that, during the week of February 9, 2020, the Dentist came into her operatory to do a patient exam, and, as he passed her, his buttocks forcefully pressed up against hers, slightly knocking her off balance. She says this happened despite the fully upright position of the patient chair, which provided enough space behind it for the Dentist to pass her without making contact. In her response to the dismissal application, she further explains that, in the context “of the hostile atmosphere at [the Dental Clinic] and [the Dentist’s] history of offensive sexual commentary and harassing behaviour,” she believes that the contact with her buttocks “was deliberate sexual contact” and an intentional violation of her personal space. She says it made her feel “extremely degraded, violated, powerless, uncomfortable at work and at home, and scared that [the Dentist’s] behaviour would escalate further.” She says this incident had a significant negative impact on her health.

[64] DH’s assertion that the alleged physical contact was deliberate and sexual is more in the nature of a submission than an allegation of fact. She is alleging a conclusion regarding the alleged factual circumstances of the physical contact. In my view, however, she has not alleged sufficient facts that, if proven, could support a reasonable inference that the contact was deliberate and sexual, rather than merely inadvertent. Viewing her factual allegations regarding this incident in context with the other facts alleged in her complaint, which I have discussed above, I am not persuaded that the alleged circumstances of the physical contact permit the inference of a connection to her sex. While I acknowledge DH’s serious allegations regarding how this incident impacted her and made her feel, the alleged subjective effects of the incident on her are not enough to establish an arguable contravention of the Code.

[65] I accept that there may be situations where an allegation of seemingly inadvertent physical contact in the workplace could cross the line into an arguable contravention of the Code, considering other alleged facts regarding the surrounding circumstances and full context of the alleged incident. In this case, however, I find that the surrounding allegations fall short.

12. Late final pay

[66] DH alleges that, five days after the legal deadline by which the Respondents were required to provide her final paycheque, the Dentist emailed her to ask if she wanted the cheque by mail or e-transfer. She says the Dentist knew the law, and she had previously confirmed with the office manager that her final pay would be mailed to her new address. She says that “withholding my final pay contributed to my feeling tormented, harassed, and devalued because this gave [the Dentist] reason to continue contacting me and required me to continue engaging with him in order to receive my entitlements.”

[67] The assertion that the Dentist deliberately withheld DH’s final pay is, in my view, conclusory, and I am not satisfied that the alleged facts are capable of supporting such a conclusion. In any event, despite the alleged impact on DH of this situation, the facts alleged are not capable of establishing the necessary connection to her sex.

[68] In sum, then, DH has not shown me that any of her timely allegations – i.e., any of the alleged interactions on or after December 31, 2019 – pass the arguable contravention test. Nor am I persuaded that these allegations could, if proven in their totality , contravene the Code.

[69] The part of the complaint alleging acts or omissions on or after December 31, 2019 is therefore dismissed under s. 27(1)(b).

B. Should the late part of the complaint be accepted under s. 22(3)?

[70] My dismissal of DH’s timely allegations under s. 27(1)(b) does not end the analysis of the Respondent’s dismissal application. There is still the matter of the allegations falling outside the one-year time limit – i.e., the alleged interactions before December 31, 2019. This part of DH’s complaint was filed late, because it does not form part of a continuing contravention anchored in a timely allegation of discrimination.

[71] Assuming (without deciding) that the late-filed allegations could contravene the Code, the remaining question becomes whether I should accept the late part of the complaint under s. 22(3). The burden is on DH to persuade me to do so. She must show me that it is in the public interest to accept the late part of the complaint and no substantial prejudice will result to any person because of the delay: Code, s. 22(3).

[72] The Tribunal assesses the public interest in accepting late-filed allegations in light of the purposes of the Code, which include identifying and eliminating persistent patterns of inequality, and providing a remedy for persons who are discriminated against: Code, s. 3. In making its assessment, the Tribunal considers relevant factors, which may vary from case to case, such as the extent of and reasons for the lateness, the complainant’s interest in accessing the Tribunal, the respondents’ interest in finality, and the public interest in the complaint itself: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite , 2014 BCCA 220 at para. 53 and 63; Hoang v. Warnaco and Johns, 2007 BCHRT 24; Complainant v. The Board of Education of School District No. 61 (Greater Victoria) , 2022 BCHRT 44 at para. 18.

[73] DH argues that it is in the public interest to accept her late-filed allegations. She says that, when she left the Dental Clinic, she had to find not only new employment, but also new housing, which took a great deal of time and energy. During that time period, she says she was also navigating the evolving COVID-19 pandemic, and faced challenges accessing legal assistance.

[74] For the following reasons, I am not satisfied that it is in the public interest to accept the late part of DH’s complaint. First, most of the allegations fall at least three months outside of the time limit, and many were filed over six months late. This delay is not insignificant. Second, I agree with the Respondents that DH’s stated reasons for the delay are vague. Roughly 10 months passed between the end of DH’s employment at the Dental Clinic and the date her complaint was received by the Tribunal. She has not explained how her job and housing searches prevented her from filing her complaint. Nor has she provided information regarding the impact of COVID-19 on her ability to file. In addition, she has not explained what challenges she faced getting legal help with her complaint or if and when those challenges were resolved. I note that DH has been self-represented throughout these proceedings, and filed the complaint herself. The complaint is detailed, clear, and well-written.

[75] Absent further information about how DH’s circumstances impacted her ability to file her complaint in a more timely way, I am not compelled by her explanation for the delay: see generally Nakamura v. Escada Canada and others , 2006 BCHRT 152 at paras. 38-40 and Panditaratne v. TransLink and Lownsbrough , 2009 BCHRT 172 at paras. 11-15. Finally, I am not satisfied that the complaint itself engages the public interest. I appreciate that DH says the interactions alleged in her complaint had a significant negative impact on her. However, I agree with the Respondents that the complaint does not raise any novel or unique issues, such that it might be in the broader public interest to accept DH’s late-filed allegations.

[76] On the whole, I am not persuaded that it is in the public interest to accept the late-filed portion of DH’s complaint. As a result, it is not necessary for me to consider whether there would be substantial prejudice to any person because of the delay.

[77] I decline to exercise my discretion to accept the late-filed portion of the complaint under s. 22(3).

IV CONCLUSION

[78] The Respondents’ dismissal application is granted. The complaint is dismissed under ss. 27(1)(b) and (g).

[79] I order the anonymization of this decision and that the Tribunal and no person will publish or make available to the public any information that could identify the individuals and organizations described in this decision.

Jonathan Chapnick

Tribunal Member