Rana v. Loblaws Inc., 2024 BCHRT 328
Date Issued: November 20, 2024
File(s): CS-004435
Indexed as: Rana v. Loblaws Inc., 2024 BCHRT 328
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:
Devendra Rana
COMPLAINANT
AND:
Loblaws Inc.
RESPONDENT
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
SECTION 22
Tribunal Member: Steven Adamson
On his own behalf: Devendra Rana
Counsel for the Respondent: Thomas Shaw
I. INTRODUCTION
[1] On July 6, 2021, Devendra Rana filed a complaint based on race, ancestry, colour, place of origin, physical and mental disability, sex and religion under s. 13 of the Human Rights Code [ Code ], against his former employer, Loblaws Inc. [ Loblaws ].
[2] The Tribunal’s March 25, 2024, screening decision allowed the complaint to proceed in employment based on the personal characteristics Mr. Rana selected on his complaint form and added the ground of age as implied from the information provided. I agree with that decision and have considered that additional ground as part of Mr. Rana’s complaint.
[3] The issue before me is whether to accept the Complaint against Loblaws. I make no findings regarding the merits of this complaint.
[4] For the reasons that follow, the Complaint is accepted for filing against Loblaws as a continuing contravention of the Code : s. 22(2).
II. BACKGROUND
[5] The central issue in this case is whether Mr. Rana has set out allegations of discrimination during his employment with Loblaws from mid 2016 until mid 2020 capable of forming a continuing contravention. It is, therefore, necessary for me to review his allegations in some detail below before embarking on this analysis.
[6] Mr. Rana is Hindu and immigrated to Canada from India. He reports having a significant hearing loss disability and suffers from stress and insomnia. Mr. Rana is an older worker.
[7] Mr. Rana worked as a cashier in a large Loblaws grocery store. He alleges daily discrimination by co-workers in the form of harassment based on his personal characteristics during the period from August 2016 until his termination on July 7, 2020. Mr. Rana further alleges reporting this ongoing discriminatory harassment to Loblaws management, along with his various disabilities, neither of which was appropriately dealt by the employer during this period.
[8] Mr. Rana has particularized his allegations as follows.
[9] In August 2016, Mr. Rana alleges a price checker co-worker, Mr. C, behaved rudely and uncooperatively when Mr. Rana after he asked him for assistance on several occasions. On one occasion Mr. Rana alleges that Mr. C swore at him in front of customers after he asked for a price check. Mr. Rana alleges Mr. C’s behaviour improved following a complaint to a supervisor. However, his complaint resulted in a group of co-workers starting to harass him because of his Indian accent and age.
[10] On August 26, 2016, Mr. Rana states another price checker, Ms. A, reacted rudely when he sought her help by mocking his accent by saying “allo” instead of “hello”. He alleges Ms. A did this to him throughout the course of his employment at Loblaws. Mr. Rana further alleges Ms. A refused to tell him what the correct code was for a sale item, instead directing him to the each key one at a time on his computer. On this occasion, Mr. Rana alleges that when he asked Ms. A to just tell him the code, she swore at him and said to just do what she was telling him and this was her country, and he was not allowed to respond to how she did things. Mr. Rana alleges Ms. A. behaved this way to him on an ongoing basis during his time at Loblaws despite his complaints about her to management.
[11] On September 18, 2016, Mr. Rana alleges an assistant manger, Ms. C, engaged in a conversation with a customer who was swearing at him about a price match. He says that he overheard the customer telling Ms. C that he was an idiot who did not know what country he belonged in. Afterwards, Mr. Rana says that he asked Ms. C why she had not said anything in response to the racist customer. Mr. Rana alleges Ms. C agreed the customer was racist but informed him that the customer was allowed to say whatever she liked, and it was only Ms. C’s job to listen. When Mr. Rana confronted Ms. C with the rules about not tolerating customer rudeness, he alleges her response was to tell him to just get back to work.
[12] On September 20, 2016, Mr. Rana alleges Ms. C mocked his name and accent by asking is if was “Dev, or Dave or DEVV or Deev”, despite asking him this question three times already. When he called her on asking yet again, he alleges that she responded by stating “No I am just wondering why you people from you[r] country comes here changes name” and laughed.
[13] On September 30, 2016, Mr. Rana alleges a co-worker, Ms. M, told him about her husband calling up a female co-worker of Indian origin and telling her that she “looked like a hooter when [she] dressed up”. Mr. Rana says that he felt Ms. M, who he rarely spoke to, had told him about this because she knew about his complaints about their co-workers being racist towards him.
[14] On November 7, 2016, Mr. Rana alleges making his first written complaint about being harassed at work. He reports that Loblaws responded on December 20, 2016.
[15] Since 2016, Mr. Rana alleges being subjected to daily harassment related to his age and physical disabilities. This additional discrimination was generally related to why he continued to work at his age, him experiencing cold because of his age, and his hearing impairment. He specifically names nine Loblaws employees who were allegedly sarcastic to him from April 2016 onwards because he was hard of hearing and always wore a jacket because he was cold.
[16] On several occasions between November 2017 and February 2018, Mr. Rana alleges two co-workers, Ms. P and Ms. Q, frequently came up to him and touched his bald head saying: “you are too old, your body is cold”. They also allegedly came close to him and touched his jacket stating: “Why are you wearing a jacket, it is not so cold, you are old”, and then laughed at him.
[17] On December 24, 2017, Mr. Rana alleges five co-workers he identified by name asked if he had heard them and told him they spoke loudly because he was hard of hearing.
[18] On February 9, 2018, Mr. Rana alleges making his second written complaint to Loblaws about the situation with his co-workers. He reports that Loblaws responded on August 31, 2018.
[19] On February 27, 2018, Mr. Rana alleges two co-workers he identified by name made fun of him by asking him how old he was and how old his children were.
[20] Throughout 2019, Mr. Rana alleges Loblaws, and his union dealt with complaints and grievances related to workplace discrimination.
[21] Mr. Rana alleges that management responded to his various complaints by asking him to move to another store or leave the company. He further alleges that Loblaws management responded to his complaints on several occasions by stating he was a “troublemaker” for making complaints and blaming him for the situation because he always had problems with other people being sarcastic.
[22] On several occasions between January 2020 and June 2020, Mr. Rana alleges two co-workers he identified by name sarcastically told him their age and then laughed at him.
[23] On June 20, 2020, Mr. Rana alleges two other co-workers he identified by name intentionally sent heavier load customers to him at the checkout. He alleges this activity was ongoing since February 2020 when the pandemic started and was done in order expose him to the virus as an older and more vulnerable worker. Mr. Rana alleges these two co-workers treated him rudely as he was a Hindu who did not support the Khalistan movement. When he complained to his manager, Ms. D, he alleges that nothing was done, and all three co-workers laughed at him.
[24] On June 24, 2020, Mr. Rana reports going off work due to mental stress until being fit to return on July 5, 2020.
[25] From June 24 to July 7, 2020, Mr. Rana alleges he provided medical information to Loblaws concerning his mental disabilities, which he claims were attributable to the discrimination he suffered at work and the lack of support from his employer.
[26] On July 7, 2020, Mr. Rana alleges Loblaws suspended him indefinitely after making a WorkSafeBC bullying and harassment claim for mental stress.
III. ANALYSIS AND DECISION
[27] The time limit set out in s. 22 of the Code is a substantive provision which is intended to ensure that complainants pursue their human rights remedies diligently: Chartier v. School District No. 62 , 2003 BCHRT 39.
[28] The complaint was received on July 6, 2021. To comply with the one-year time limit under s. 22(1) of the Code , the alleged act of discrimination had to occur on or after July 6, 2020.
[29] A complaint is filed in time if the last allegation of discrimination happened within one year, and older allegations are part of a “continuing contravention”: Code , s. 22(2); School District v. Parent obo the Child , 2018 BCCA 136 at para. 68. A continuing contravention is “a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code , and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City), 2015 BCCA 57 at para. 23; School District at para. 50.
[30] The assessment of whether discrete allegations are a continuing contravention is a “fact specific one which will depend very much on the individual circumstances of each case”: Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para. 17. A relevant consideration is whether there are significant gaps between the allegations: Dickson at paras. 16-17. Whether or not a gap is significant will be assessed contextually, considering the length itself and any explanations for the gap: Reynolds v Overwaitea Food Group, 2013 BCHRT 67, at para. 28. A significant, unexplained, gap in time will weigh against finding a continuing contravention: Bjorklund v. BC Ministry of Public Safety and Solicitor General , 2018 BCHRT 204 at para. 14.
[31] Turning then to the first question identified above, I have considered when the last instance of the arguable contravention of Code occurred: Moore v. British Columbia (Education) , 2012 SCC 61 at para 33. I am satisfied that Mr. Rana has alleged one timely allegation, dated July 7, 2020, when Loblaws suspended him indefinitely for reasons related to the employer branding him a troublemaker for making numerous complaints about co-workers discriminating against him for reasons related to his age, race, ancestry, colour, place of origin, disabilities, sex and religion.
[32] Having found one timely arguable contravention of the Code in this case, it is now necessary to determine whether the Complaint is a continuing contravention based on the July 7, 2020, allegation tethering the other allegations from mid 2016 onwards. Put another way, I must now consider whether a continuing contravention exists here. This analysis starts with a consideration as to whether all the allegations are of a similar nature.
[33] Mr. Rana argues his complaint allegations are similar in nature as they involve ongoing harassment and bullying from co-workers related to his various personal characteristics that went unchecked by his employer despite him making numerous complaints. Mr. Rana alleges Loblaws decided he was a troublemaker instead of ensuring his workplace was free from discrimination and ultimately removed him from the workplace by suspending him.
[34] Loblaws argues that July 7, 2020, allegation is of a different nature than the out of time allegations at it concerned Mr. Rana’s suspension from work. For the employer, none of the other allegations relate to Mr. Rana being suspended and are, therefore, of a differing nature.
[35] I disagree with Loblaws’ assessment of the nature of the allegations in this case. In my view, the allegations are all of a similar nature as they relate to multiple allegations of discrimination by co-workers over the years and the employer’s failure to respond appropriately to complaints. According to Mr. Rana’s allegations, a significant part of his complaint relates to the employer’s failure to properly respond to his complaints and inappropriately labeling him as a troublemaker that needed to be removed. For the purposes of this decision, I am not concerned with the ultimate weighing of the evidence related to why Mr. Rana was suspended, but rather a review of his allegations that he was targeted for dismissal for reasons related to his complaints of discrimination in the workplace. Looked at from this perspective I conclude that the suspension allegation is similar in nature to a pattern of allegations where discrimination is said to occur, complaints about it are not taken seriously by employer and the complainant is ultimately blamed for the situation and removed from the workplace.
[36] The next issue question is whether a significant gap exists between the various allegations over the multiyear period when the allegations occurred. Mr. Rana alleges some of the allegations occurred regularly when he attended work from mid 2016 until mid 2020. These include price checker co-workers mocking his accent and frustrating his efforts to obtain codes for items. The continuous allegations also include daily harassment about his age and hearing disability. Mr. Rana also provides multiple allegations related to him seeking redress for the discrimination from Loblaws over almost all the period from mid 2016 until mid 2020. These requests for redress came in the form of oral complaints and written complaints. Mr. Rana’s complaint also includes examples of specific allegations identifying those involved by name on specific dates, setting out what was said and done.
[37] Loblaws did not provide any arguments about significant gaps in the allegations occurring in this case such that it is not a continuing contravention of the Code . While I recognize that the Complaint spans a considerable amount of time, I am satisfied that Mr. Rana has set out allegations that are not separated by any significant gaps. While I appreciate that not every allegation has been particularized by date, with Mr. Rana providing examples to demonstrate the extent of the discrimination alleged, I have no reason for the purposes of this decision to doubt his claim that the discrimination occurred regularly over the multiple years in question.
[38] Overall, I am satisfied that Mr. Rana has set out a timely allegation of discrimination on July 7, 2020, constituting a continuing contravention with earlier allegations of a similar nature extending back in succession to mid 2016. Having found the Complaint is a timely continuing contravention of the Code it is, therefore, unnecessary for me to determine whether it is in the public interest to allow any late filed allegations to proceed.
IV. CONCLUSION
[39] For these reasons, the Complaint is accepted for filing as a continuing contravention of the Code : s. 22(2).
Steven Adamson
Tribunal Member