Pigeau v. School District No. 82 and another, 2024 BCHRT 340
Date Issued: December 11, 2024
File(s): CS-002592
Indexed as: Pigeau v. School District No. 82 and another, 2024 BCHRT 340
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:
Danielle Gloria Pigeau
COMPLAINANT
AND:
Board of Education of School District No. 82 (Coast Mountains) and Surinder Dhaliwal
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Sections 27(1)(c), (d)(ii), (g)
Tribunal Member: Laila Said Alam
On their own behalf: Danielle Gloria Pigeau
Counsel for the Respondent: Ilan B. Burkes and Madeline Lusk
I INTRODUCTION
[1] Ms. Pigeau’s complaint, filed on September 10, 2020 and amended on April 1, 2022, alleges that the Board of Education of School District No. 82 (Coast Mountains) [ School District ] and Mr. Dhaliwal [together, Respondents ] discriminated against her in employment on the basis of her ancestry, race, colour, religion, sex, political belief, mental and physical disability and Indigenous identity contrary to the Human Rights Code .
[2] The timeline of events set out in the complaint are from 2006 to 2021.
[3] Ms. Pigeau alleges that the Respondents failed to accommodate her disabilities or engage in discussions regarding possible accommodations; forced her to accept an Indigenous Language and Culture teaching position though she is not from the local Indigenous nations and does not speak the language; and subjected her to discriminatory comments and conduct.
[4] The Respondents deny discriminating. The Respondents apply to dismiss the complaint pursuant to ss. 27(1)(g), 27(1)(c), and 27(1)(d)(ii) of the Code on the basis that, the complaint is out of time, has no reasonable prospect of success, and/or that it would not further the purposes of the Code to proceed against Mr. Dhaliwal as an individual because he was acting at all material times in the course of his employment, and the School District will assume full responsibility for his actions.
[5] For the following reasons, I allow the application to dismiss in part. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. In this decision, I first provide a brief background of the facts of this complaint. Second, I consider the argument under s. 27(1)(g) and narrow the temporal scope of the complaint. I then consider the arguments under s. 27(1)(c) and dismiss the grounds of sex and political belief. Lastly, I explain why the complaint against Mr. Dhaliwal as an individual respondent is dismissed.
II BACKGROUND
[6] The following background is taken from the materials filed by the parties. Ms. Pigeau’s complaint spans a period of around 15 years. To provide context to the 15-year period as it relates to her complaint, this section is divided into subsections as they relate to her complaint. I first introduce the parties and briefly summarize Ms. Pigeau’s employment with the School District. Next, I provide a general overview of the School District’s assessments and accommodations offered for her mental and physical disabilities during her employment from 2006 to 2019. I then provide background related to her allegations that the School District failed to accommodate her dyslexia by not providing proper supports for report card writing. Lastly, I provide background to Ms. Pigeau’s allegation that the School District did not reasonably accommodate her when they forced her into the Language and Culture Role in 2019.
A. Introduction of the parties and Ms. Pigeau’s employment at the School District
[7] Ms. Pigeau is a Sto:lo woman and a person of colour. Her paternal ancestors are the Sto:lo people from the Peters and Seabird area near Chilliwack, BC. Her maternal ancestors are of Scottish, Irish, French and Piikani ancestry. Her cultural practices as an Indigenous person are part of her daily life, and inform her religion, spiritual practices, philosophy and pedagogy as a teacher.
[8] Ms. Pigeau has dyslexia. It makes it difficult for her to complete reading and writing activities. She has a degenerative spinal condition which limits her ability to bend, squat, or engage in various physical activities.
[9] The School District is a public school District of education constituted pursuant to the School Act offering public school education from kindergarten to grade 12.
[10] The individually named respondent, Mr. Surinder Dhaliwal, has been employed by the School District since 2009 and was at all material times the Principal of Thornhill Elementary School, a School District-operated school.
[11] Ms. Pigeau has been employed by the School District since 2004 in various capacities. Ms. Pigeau is a member of the British Columbia Teachers Federation [ Union ], and the terms of her employment are governed by a collective agreement between the School District and the Union. Ms. Pigeau believes strongly in the representation of teachers by the Union and has served on several Union committees.
[12] The First Nations in and around Terrace, BC, the area served by the School District, are Tsmishian. The Tsmishian language is Sm’algyax. In or about September 2006, Ms. Pigeau applied to the School District for a full-time, temporary Language & Culture teaching position for the 2006-2007 school year. In her application, Ms. Pigeau stated that she had a “strong background in the local Tsmishian [Indigenous] culture” [as written] and that, while she did not speak the Sm’algyax language, she had a “vast knowledge” of individuals who could facilitate classroom lessons at her request.
[13] On October 18, 2006, the School District offered Ms. Pigeau the Learning & Culture teaching position for the 2006-2007 school year.
[14] After Ms. Pigeau completed her one-year contract for the Learning & Culture teaching position, she remained employed with the School District as a “Teacher-On-Call.” She remained in various temporary teaching positions until the start of the 2015 school year.
[15] On May 20, 2015, Ms. Pigeau initiated a transfer to a permanent, full-time classroom teacher position at Thornhill Primary School. Beginning in September 2015, Ms. Pigeau taught grade 5. Mr. Dhaliwal was Thornhill’s principal for the duration of Ms. Pigeau’s employment at the school.
[16]
B. Physical Disability Assessments and Accommodations
[17] In August 2013, the Union gave the School District an ergonomic accommodation assessment report. The School District provided Ms. Pigeau with the recommended ergonomic chair, stool, and anti-fatigue mat.
[18] In December 2016, the Union gave the School District an ergonomic accommodation assessment report. The School District provided Ms. Pigeau with the recommended ergonomic rolling saddle-style chair.
[19] Ms. Pigeau took medical leave for “stress and harassment in the work place” from October 25, 2017 to October 30, 2017. During her leave, Mr. Dhaliwal moved Ms. Pigeau’s ergonomic chair from her classroom into his office. Ms. Pigeau had labelled her ergonomic equipment. When Ms. Pigeau returned from her leave, she found her ergonomic chair in the library. The parties dispute whether it was the same ergonomic chair, or merely similar. Mr. Dhaliwal told her not to label her ergonomic equipment.
[20] On November 21, 2018, the Union gave the School District an ergonomic accommodation assessment report, which included some of the equipment previously provided to Ms. Pigeau in 2016, such as a saddle-like stool and 29-inch computer monitor. Ms. Pigeau subsequently requested the removal of the saddle-like stool and computer monitor from her classroom, and the School District provided her with the remainder of the items listed in the report.
[21] On January 24, 2020, the Union gave the School District an updated ergonomic accommodation assessment report, and Ms. Pigeau received the recommended items. The report also recommended that Ms. Pigeau be able to dim the lights in her classroom, which was approved on a modified basis.
C. The School District’s 2006 Assessment of Ms. Pigeau’s Learning Disability
[22] Sometime in 2006, Ms. Pigeau told the School District she thought she had a learning disability and required support with proofreading. The School District arranged for Ms. Pigeau to undergo a psychoeducational assessment. The assessment found that Ms. Pigeau had a learning disability that affected her written and language skills. It recommended that she have teaching support when instructing students with writing and spelling skills at her own level or higher. It also recommended that she have access to a scribe, reader or audio-recordings of books.
[23] On December 12, 2006, the School District met with Ms. Pigeau and the Union to discuss the 2006 Report. A plan of assistance was captured in summary notes after the meeting. The parties agreed Ms. Pigeau would develop a Language & Culture unit to be taught to one class and then taught to other classes. Ms. Pigeau agreed to identify teachers who would permit her to teach the unit to their classes and who might mentor her with respect to her plan of instruction.
[24] Also at the December meeting, the School District asked Ms. Pigeau to identify a suitable voice recognition program that would meet the recommendation in the 2006 Report for a scribe. Ms. Pigeau requested a program, and the School District purchased it for her on December 30, 2006.
[25] In 2010, the Union encouraged its members to review their personnel files and request the removal of documents that were in their files without proper notice by the employer. Ms. Pigeau requested to remove the 2006 Report from her personnel file. Handwritten notes captured Ms. Pigeau and her Union’s reasons for doing so, highlighting their concerns about the “tone of the assessment” and “singling out” Ms. Pigeau, a “[First Nations] teacher.” The notes confirm that a School District administrator “has completed his task to destroy copies of the [2006 report]” [as written]. On May 14, 2010, the employer removed other documents relating to the 2006 assessment and Ms. Pigeau’s learning disability from her personnel file.
D. Report Cards, Learning Disability, 2019 Assessment
[26] As stated above, Ms. Pigeau started teaching grade 5 at Thornhill Primary School in September 2015. Mr. Dhaliwal was Thornhill’s principal.
[27] Full-time teachers are required to prepare report cards for each of their students at several scheduled times in a school year. Teachers submit report cards to their principal in advance for the principal to review and send back to the teachers to make any changes before the scheduled date of release to the students.
[28] In November 2016, Mr. Dhaliwal asked the teachers to submit their December report cards by November 10, 2016. Ms. Pigeau submitted her report cards 5 days later, and they contained errors which needed to be corrected. Mr. Dhaliwal corrected the errors and returned them to Ms. Pigeau to make the required changes. Ms. Pigeau and Mr. Dhaliwal exchanged multiple rounds of reviews before the report cards were completed to Mr. Dhaliwal’s satisfaction.
[29] On December 8, 2016, Mr. Dhaliwal met with Ms. Pigeau, her Union representative, and C.M., then-Director of Human Resources for the School District, to discuss her report cards. The parties developed a plan where Ms. Pigeau would use spell/grammar check, proofread her report cards, and ask for peer-review before sending her report cards to Mr. Dhaliwal. She would also be required to provide her report cards to Mr. Dhaliwal a week in advance of the deadline that he set for other teachers. That same day, the Director of Human Resources issued Ms. Pigeau a Letter of Expectation that outlined the School District’s expectations for the timeline and quality of her report cards going forward. It also outlined the plan Ms. Pigeau would follow to meet those expectations.
[30] A meeting was held on May 24, 2017, with Ms. Pigeau, her Union representative, Mr. Dhaliwal, and the Director of Human Resource for the School District. Notes from that meeting include the comment, “No paperwork on learning disability.”
[31] In mid-June 2018, Mr. Dhaliwal requested Thornhill teachers to submit their report cards for him to review. Ms. Pigeau’s report cards were submitted late and contained errors.
[32] In mid-November 2018, Ms. Pigeau sent Mr. Dhaliwal draft report cards that contained errors. Mr. Dhaliwal met with her to provide feedback and requested that the report cards be redrafted and returned to him by November 19, 2018. Around this time, Ms. Pigeau’s Union president, M.W., was assisting Ms. Pigeau in proofreading her report cards. M.W. sent an email to Mr. Dhaliwal requesting an extension to Mr. Dhaliwal’s deadline, “considering…I will assist with the proofreading, as per her accommodation.”
[33] On December 19, 2018, the School District issued a written warning to Ms. Pigeau. The letter of discipline concerned her “failure to submit [her] report cards following the strategy agreed to by the union and [School District].”
[34] Ms. Pigeau sent the School District a response to the warning letter on or around July 2, 2019. Ms. Pigeau wrote:
It is well known to my principal, Surinder Dhaliwal and Former Director of Human Resources [C.M.] that I have a disability which at times can affect my ability to prepare written reports such as report cards. Mr. Dhaliwal is also aware that my disability is exacerbated in times of high stress and that I may require additional support and accommodation from my employer with written reports under such circumstances (I have not received any supports only threats of possible discipline up to dismissal). I had been engaged in an evaluation of my teaching since early in the 2018/2019 school year, as well as previous detrimental conditions in my toxic work environment which has resulted in increased stress upon me.
[35] She wrote that the discipline letter “is inappropriate and insensitive, given the failure by [the School District], my employer, to accommodate my disability. Further, it is evidence of the continued lack of support and extreme criticism of me by Mr. Dhaliwal and [C.M.], which is clearly harassment and discrimination.”
[36] The School District responded on July 4, 2019. The letter said the School District did not have medical documentation regarding her disability, “despite numerous requests for this information.” The School District requested the following information from her medical practitioner:
Is Ms. Pigeau suffering from a medical condition that affects her ability to prepare written reports?
Has Ms. Pigeau been provided with a treatment plan for her condition and is she following that plan?
If she is suffering from a medical condition, please provide a functional assessment specifically indicating the aspects of Ms. Pigeau’s work as a teacher that are affected by her condition.
What is the prognosis for improvement of Ms. Pigeau’s condition?
[37] In response, Ms. Pigeau’s Union facilitated a psychoeducational assessment to identify strategies and accommodations to deal with her disability. The assessment was completed on August 10, 2019, by a Registered Psychologist and an addendum was drafted on August 30, 2019, by a different Psychologist.
[38] On November 29, 2019, a Union Rehabilitation Consultant and Occupational Therapist [ OT ] issued an accommodation assessment report that he drafted based on the August 10, 2019, assessment and August 30, 2019 addendum. The OT’s 2019 Report referenced the 2006 Report.
[39] The 2019 Report indicated that Ms. Pigeau had a learning disorder. It recommended that:
a. Ms. Pigeau will excel in a teaching environment where she is provided with work in areas of her ability and expertise. Situations that utilize her oral language strengths and story-telling abilities, and that call upon her extensive knowledge of First Nations culture and heritage will add to her success.
b. Ms. Pigeau will need “extra time” to “master material before presenting to students,” learning new curriculum, tasks and policies. She would benefit from a “support worker,” or a Teaching Assistant.
c. She needs more support and time to complete report cards.
d. She needs extra prep time.
e. It would be beneficial to “break tasks into smaller, more manageable chunks.”
f. She would benefit from the opportunity to see the application of new concepts. This could be achieved by observing another teaching a new part of a curriculum.
g. She would benefit from having “samples of written materials that need to be completed, which can be used as a comparison aid for planning and time management.”
[40] The 2019 Report also proposed the following accommodations:
a. Problem-solve how Ms. Pigeau’s report cards can get to the end product in such a way that meets everyone’s needs. Currently her report cards are being edited by the Union president, “but this is not sustainable. Instead, a process should be considered where a person is committed to assisting Ms. Pigeau, possibly a [Teaching Assistant], leading up to report card deadlines, including editing report cards before and after printing.”
b. Allow Ms. Pigeau to receive feedback from administration related to her report cards at least a few days in advance of them being due.
c. Provide her with “new information or expectations in advance, in written and oral form, with time to process this information before needing to act on it or respond.”
d. Information is best given in writing, followed by a conversation. If it cannot be given in writing, provide information, “where possible, in a more structured manner – such as a meeting time where Ms. Pigeau can prepare herself to receive the information without other distractions. [She] should then be given time to consider what is being asked of her, before needing to make a response or to provide her opinions. Consideration should be given to allowing [her] to record conversations…”
e. Increase Ms. Pigeau’s prep time by one block, or 55 minutes, per week. It is currently 110 minutes total divided over two blocks per week.
f. Provide a designated Teaching Assistant to, for instance, assist with marking math. This would decrease her anxiety and time she takes on this task. Her performance decreases when she is experiencing high levels of stress. While stress cannot be eliminated from a teaching role, finding ways to minimize stress and anxiety will result in her increased ability to manage within her teaching role.
[41] The OT highlighted the August 30, 2019 addendum in his report. Specifically, that “reducing the gap between the dominant culture and Aboriginal customs and pedagogy in her workplace is imperative.” He quoted the addendum as follows:
My understanding of Aboriginal reconciliation consists of personal and professional relationships and all environments featuring the following elements:
Openness with regard to discussions of different perspectives; this includes a consideration that all perspectives have value, as opposed to finding a right/wrong perspective during conversations (inclusiveness).
Understanding of one another’s positions through calm and accepting discussion and interactions wherein all parties have an opportunity to thoroughly [participate].
An environment that is non-reactive to mistakes; through the reconciliation model of interaction, functioning and conflict resolution, a welcoming of potential mistakes is key to allow all parties to speak freely without fear of reprisal, shame, or negative consequences.
An environment that encourages gentleness in interactions and decisions; gentle language, tone, and body language.
An atmosphere that fosters truth, restitution, and apology where appropriate.
Regard for the respect of the wisdom of Elders and mentors in the community.
[42] On December 6, 2019, the School District’s Acting Director of Human Resources asked the OT for a copy of the underlying psycho-educational assessment report from August 2019 for the purpose of seeking “clarity” and “expert advice to provide the proper supports.” The OT said that he could not make that decision, that the 2019 psycho-educational assessment report was owned by the Union, and Ms. Pigeau would have to consent to its release to the School District. The School District pointed out that the 2006 Report was not in Ms. Pigeau’s file, and the OT acknowledged the same. Lastly, the School District asked the OT to present Ms. Pigeau with the option to accept the Language & Culture teaching position, which they thought might address the recommendations and accommodations highlighted in the 2019 Report. The OT said he would raise it with her and noted that perhaps Ms. Pigeau would like to stay in the classroom.
[43] On December 16, 2019, the School District asked for a redacted version that:
includes and clearly indicates all matters related to Ms. Pigeau’s employment and requests for accommodations due to medical conditions. This information will allow the [School District] to evaluate the accommodation request based on the complete and unabridged information pertaining to her employment.
[44] On February 19, 2020, the OT denied the School District’s request for a redacted version. He said that the accommodations that should be prioritized were:
a. Addressing expectations regarding report cards, possible with the provision of a [Teaching Assistant] or other committed person to assist with this process, and improved planning around timelines
b. Providing new information or expectations in advance, written and oral, with time to process before needing to act or respond
c. Considering where information is being provided so [Ms. Pigeau] had the best chance of retention – for example, setting up a meeting as opposed to discussions in the hallway
d. Increased prep time – perhaps to one extra prep block per week
e. Providing a designated TA for a designated amount of time per week/month.
The OT noted that, “the recording of information can be put aside for now.”
E. Language & Culture Teaching Position
[45] As I set out above, on December 6, 2019, the School District asked the OT to present Ms. Pigeau with the option to accept the Language & Culture teaching position.
[46] By letter dated February 24, 2020, the School District offered Ms. Pigeau the Learning & Culture Teaching position as a medical accommodation. The duties and responsibilities of the Language & Culture teaching position were as follows:
a. Developing and implementing Aboriginal programs and resources in schools;
b. Developing and delivering 20–30 minute introductory Aboriginal Language & Culture programs for Kindergarten to Grade 3 students at four different schools;
c. Working in collaboration with school-based personnel to strengthen Aboriginal programs and cultural activities in schools; [as written] and
d. Identifying opportunities to promote awareness and acceptance of First Nations language and culture and facilitate and encourage positive interactions between First Nations students/families and others in the school community.
[47] The letter noted that, “Should you forgo this offer of accommodation, the [School District] assumes you are essentially committed to continue with your current assignment without the requirement of accommodation.”
[48] The Union replied on Ms. Pigeau’s behalf. They raised her concerns that she was not Tsimshian and did not speak Sm’algya̱x. The School District responded that she would be provided with a “language and culture coach” to assist her.
[49] By letter dated April 24, 2020, the School District wrote confirming that Ms. Pigeau did not accept the position as an accommodation. They wrote:
We have heard and understand your concerns but feel we are unable to accommodate your needs in your current classroom assignment. Consequently, the [School District] will be proceeding with the following accommodation in response to your submitted medical documentation. You are assigned to [the Language & Culture Teaching Position as outlined in the letter dated February 24, 2020]…effective September 1, 2020.
[50] The School District said this was a reasonable accommodation for the functional limitations outlined in the request for a medical accommodation concerning her learning disability because:
a. The position was increased from part-time to full-time employment to offer her a position which was equal to her current full-time position.
b. The position would lighten her workload with regards to report cards; however, she was expected to inform the classroom teacher of student progress for inclusion in the student’s report card. This work is later described as “a one page summary three times a year at reporting periods” for the parents.
[51] The School District arranged for Ms. Pigeau to dedicate the first month on the job to researching, lesson planning, meeting with principals, developing a schedule, and connecting with colleagues in other communities. After that, the School District expected her to work one day in each of four schools and use the fifth day of the week for preparation.
[52] Ms. Pigeau began her new position on September 1, 2020, with in-class instruction beginning on October 5, 2020.
[53] Ms. Pigeau went on a medical leave of absence on October 8, 2020, and remained on leave. On April 23, 2021, Ms. Pigeau was approved for long-term disability benefits.
F. Other Interactions with Mr. Dhaliwal
[54] Ms. Pigeau alleges a series of interactions with Mr. Dhaliwal where he made comments or took action that she says was discrimination based on her Indigenous identity, race, place of origin, ancestry, religion, and political beliefs. These allegations are detailed in the s. 27(1)(g) and 27(1)(c) decision sections, below.
III DECISION
A. Further Submissions
[55] Ms. Pigeau applies to file further submissions to the Respondents’ Reply to the application to dismiss. She specifically wants an opportunity to respond to the Respondents’ position that the Tribunal should dismiss her affidavits and other evidence as hearsay. The Respondents oppose the application. As I said at the outset of my reasons, I have reviewed the materials before me. Ms. Pigeau was entitled to submit affidavits, and the Respondents were entitled to make arguments or submit evidence responsive to those affidavits in their Reply. Here, the Respondents made arguments to the weight of Ms. Pigeau’s supporting evidence. This is not a new issue that merits a reply in these circumstances. To the extent that I prefer to rely on either party’s evidence in support of my decision, I will explicitly state my reasons for doing so. Mr. Pigeau’s application for further submissions is denied.
B. Section 27(1)(g)
[56] Section 27(1)(g) permits the Tribunal to dismiss a late-filed complaint. There is a one-year time limit for filing a human rights complaint: Code , s. 22. Section 22 is meant to ensure that complainants pursue their human rights remedies promptly so that respondents can go ahead with their activities without the possibility of a dated complaint: Chartier v. School District No. 62, 2003 BCHRT 39 at para. 12.
[57] Ms. Pigeau’s complaint was filed on September 10, 2020. She alleges that the Respondents discriminated against her since 2006. Under s.22(2) of the Code , any allegation before September 10, 2019 is late-filed unless the allegation constitutes a continuing contravention.
1. Timely Allegations
[58] There is no dispute that this complaint includes timely allegations of discrimination, specifically:
a. After the 2019 assessment, the School District failed to reasonably accommodate her mental and physical disabilities.
b. The School District forced her into the Language and Culture role despite her stated concerns that 1) the role was not a reasonable accommodation of her disabilities, 2) she did not speak the language, 3) she is not Tsimshian, and 4) forcing her into the role was an act of discrimination based on her Indigenous identity, race, ancestry, colour, and religion.
c. Mr. Dhaliwal discriminated against her from September 30, 2019 and May 2020 based on her Indigenous identity, race, ancestry, colour, and religion.
[59] Concerning her complaint against Mr. Dhaliwal, I find that there are four discrete timely allegations against him.
[60] First, on Orange Shirt Day, September 30, 2019, she chose not to wear an orange shirt. She says this was her way of encouraging questions about residential schools and to symbolically allow non-Indigenous people to carry the burden for one day, that Indigenous survivors and their families must carry every other day of the year. She gave her shirt to a student who did not have one. Mr. Dhaliwal asked her where her orange shirt was. When she tried to explain her reasons for not wearing it, he cut her off with, “Well, it’s your day, you should be wearing it,” and walked away down the hall [ Orange Shirt Day Incident ].
[61] Second, Mr. Dhaliwal complained to the School District that Ms. Pigeau gave certain students gifts, despite knowing of the cultural importance of gift-giving in Indigenous cultures. She also says Mr. Dhaliwal’s suggestion that if she needed to give any student gifts, she should do so at the end of the day so as not to confuse other students, was discriminatory [ Gift Giving Incident ].
[62] Third, in May 2020, Mr. Dhaliwal allegedly had an education assistant remove a sacred bear skull and posters depicting First Nations elders from a wall in a classroom because the wall needed to be painted. She alleges that the bear skull was on a wall that did not need to be painted, and that several of her posters were ripped in the process. After the painting was complete, Ms. Pigeau replaced the items and Mr. Dhaliwal was allegedly displeased and asked the school custodian, “Who said [Ms. Pigeau] was to put things back?” [ Classroom Bear Skull and Posters Incident ].
[63] Fourth, on May 25, 2020, Mr. Dhaliwal put up various coloured paper t-shirt posters throughout the school bearing the slogan “Every Child Matters” and a graphic of variously coloured children. Ms. Pigeau felt strongly that this was inappropriate given the significance of the slogan and Orange Shirt Day for Indigenous people. She approached Mr. Dhaliwal, and he dismissed her concerns. She sent a follow up letter, but Mr. Dhaliwal did not respond [ Every Child Matters Posters Incident ].
2. Untimely Allegations
[64] Ms. Pigeau also alleges facts that fall outside the time limit.
[65] From 2015 to September 10, 2020 Ms. Pigeau makes several allegations that the School District knew about her disability but placed Letters of Direction and notes in her teaching file about the quality of her report cards, including spelling, grammar, and content. The Respondents do not put these allegations in dispute and explicitly accept that these allegations form part of a continuing contravention. I agree that these allegations form part of Ms. Pigeau’s complaints about accommodations for her disability. These allegations will form part of Ms. Pigeau’s complaint at a hearing.
[66] The Respondents say, and I agree, that, with the exception of the post-2015 allegations against the School District pertaining to Ms. Pigeau’s report card writing difficulties, all of the allegations prior to September 10, 2019 are late filed, are not part of a continuing contravention, and should be dismissed.
[67] A complaint is considered to be 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 .
[68] 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 . For the following reasons, I find that the allegations are not part of a continuing contravention.
a. Untimely Allegations from on or before September 10, 2019 that do not form part of a continuing contravention
[69] I find that five allegations do not form part of a continuing contravention because they do not relate to the 2019 assessment, Ms. Pigeau’s difficulties with report card writing, or about a series of discriminatory interactions with Mr. Dhaliwal that relate to her Indigenous identity, race, ancestry, colour, and religion.
[70] First, from 2006 to 2007, Ms. Pigeau alleges she was subjected to discrimination based on mental disability by the doctor who conducted the 2006 assessment. This was done in the presence of then-School District Director of Instructor, C.F. She alleges the School District did not accommodate her and C.F. singled her out for her work performance.
[71] Second, Ms. Pigeau also alleges that in 2018 she was wrongly investigated by the School District for alleged misuse of sick leave. A letter was placed in her file for not properly communicating her reason for medical leave prior to the investigation.
[72] In March 2017, Mr. Dhaliwal complained that Ms. Pigeau had labelled items in her classroom which belonged to the School District with her name, including the rolling stool required for her physical disabilities and a CD player.
[73] In May 2018, Mr. Dhaliwal allegedly removed a CD player and her special rolling stool and objected to her attempt to retrieve the stool. He also reprimanded her for labelling the stool with her name.
[74] Further, I am not satisfied the following allegations are an arguable contravention of the Code . That is because Ms. Pigeau has not set out facts that support inferences that her protected characteristics were factors in the adverse treatment she received. Therefore, I dismiss the following allegations on the basis that they are untimely and could not form part of a continuing contravention:
· From 2007-2008, prior to Ms. Pigeau being hired to Parkside Alternative School, the principal of Skeena Junior Secondary told the principal of Parkside that he had had a discussion with then-School District Director of Instructor, C.F., which led him to believe that she was not capable of teaching at Skeena.
· Ms. Pigeau says that she applied for a teaching position sometime between 2008-2014, but was not hired for the position. Her local Union president told Mr. Pigeau that Caledonia’s principal said she hadn’t hired Ms. Pigeau because Ms. Pigeau was better suited to a lower grade and that a teaching assessment was started, and discontinued when it appeared Ms. Pigeau would not pass. Ms. Pigeau says she has no knowledge of any teaching assessment conducted while she worked at Caledonia – to the contrary, the principal told her that no assessment was required and he had no concerns about her teaching abilities.
· In 2015, Mr. Dhaliwal and the School District had numerous meetings with her, often on short notice, to discuss perceived issues with her teaching. The issues raised by Mr. Dhaliwal included her use of classroom lights, choice of classroom furniture and decorations, students wearing outside shoes in the hallway, report cards, field trips, curriculum concepts, cultural practice, and more.
· In March 2016, Mr. Dhaliwal came into her classroom during a math lesson and asked a student to explain the math they were doing. After hearing the student’s explanation, he told Ms. Pigeau that she needed to re-teach the lesson. She says he did so in front of the students.
· In January 2017, Mr. Dhaliwal allegedly told Ms. Pigeau, “I have seen you teach PE, you are not a PE teacher.” Ms. Pigeau believes that Mr. Dhaliwal comments “made it clear he took issue with her physical limitations.”
· In February 2017, a student’s parent posted something negative about Ms. Pigeau on Facebook. Mr. Dhaliwal contacted the parent to discuss the student. Without informing Ms. Pigeau of the reason for his request, he asked her to provide him information about the student. When Ms. Pigeau later learned of the situation and raised it with Mr. Dhaliwal, he responded that he did not want to bother her with it. She said she then contacted the parent herself and resolved the situation.
· In May 2017, Mr. Dhaliwal unilaterally changed a lesson plan that she had left for a Teacher-On-Call, because he claimed the students were not capable of completing the planned lesson.
· In or around September or October 2017, Ms. Pigeau applied to take part in the School District’s teacher mentorship committee, facilitated by the principal of a high school. Her local Union president learned from the principal of the high school that the District’s Director of Human Resources advised the principal that Ms. Pigeau should be removed from the list of participants because her “teaching practice was too weak for her to act as a mentor to another teacher.” Ms. Pigeau says that her name was removed from the list and, as a result, she had to tell a new teacher at Thornhill that she would not be able to mentor her.
· When she returned to work from a medical leave, the School District told her in May 2018, that she would have to undergo a teaching evaluation. She says she was notified of the evaluation shortly after she filed a harassment grievance against Mr. Dhaliwal. She said the teaching evaluation took place between November 2018 and February 2019, and the final report was complimentary and positive of many of her teaching skills and methodology. Around this time, Mr. Dhaliwal had also moved two long shelving units and art supplies to another area of the school, and they were used by other people.
· In January 2019, Mr. Dhaliwal told two of Ms. Pigeau’s students who were completing a written health project instead of attending P.E. that, “if they were able to play outside [at recess] then they were able to go to the gym.” The students had serious physical issues which prevented the students form participating in P.E. He did not consult with Mr. Pigeau and sent both children outside.
· Mr. Dhaliwal told students not to visit Ms. Pigeau’s classroom during recess or before or after school because he was concerned that she was “counselling students,” and that he allegedly gave a Teacher-On-Call “other duties” than what Ms. Pigeau had instructed and required the Teacher-On-Call to document a telephone conversation with Ms. Pigeau.
[75] None of these allegations will be considered further in the continuing contravention analysis.
a. Untimely Allegations against Mr. Dhaliwal from on or before September 10, 2019 do not form part of a continuing contravention
[76] Ms. Pigeau makes five allegations from 2016 to 2019 against Mr. Dhaliwal, that are of the same character as the timely allegations against Mr. Dhaliwal because they allege discrimination based on her Indigenous identity, race, ancestry, colour, and religion. I identify them below. In the sections that follow, I explain why the gaps between allegations are significant and weigh against finding that they are part of a continuing contravention
[77] In March 2016, Mr. Dhaliwal asked her to stop teaching the required residential school curriculum until further notice and asked for a list of the resources that she used to teach this aspect of the curriculum. He told Ms. Pigeau that the District Instructor for Indigenous Education, A.C., had also requested this list. Mr. Dhaliwal said, “Just so you know, I have had someone tell me that they had a good experience at residential school.” She was not allowed to resume teaching the required residential school curriculum until May 2016, and was never given a reason for the stoppage.
[78] In September 2016, Mr. Dhaliwal came into Ms. Pigeau’s classroom and inquired about how the Indigenous masks on display in her classroom were mounted. He stood on a chair and began to remove a Bear mask from the wall. She immediately asked him to stop touching the mask, explaining that it was a sacred item which should not be touched without proper care. Mr. Dhaliwal replied, “I don’t care, they need to come down.”
[79] In February 2017, in a brief discussion at his office door, Mr. Dhaliwal informed Ms. Pigeau that her teaching methods were “too Social Studies heavy” for the curriculum, which she believed to refer to her frequent use of Indigenous content in her teaching. In response, Ms. Pigeau tried to explain her methodology was to teach the required curricular concepts while weaving in Indigenous content wherever appropriate (such as during art or reading or language arts).
[80] In March 2017, Mr. Dhaliwal complained to Human Resources that Ms. Pigeau replaced the required French language in the curriculum with Sm’algyax.
[81] In June 2019, Ms. Pigeau selected several students in her class to receive special year-end awards at the school assembly. She consulted with local Indigenous community members and teachers about weaving Indigenous themes into her specific awards. She submitted the awards, titled “Knowledge Keeper,” “Elder in Residence,” and “Water Carrier” to Mr. Dhaliwal with a brief explanation attached. The District’s Director of Instruction for Indigenous Education and Mr. Dhaliwal informed her that the awards were not appropriate and she should return to the regular form of awards with titles relating to citizenship or diligence. Ms. Pigeau then told Mr. Dhaliwal the cultural significance of each award in detail, and told him that if he felt the names of the awards needed to be changed, he could do so. Mr. Dhaliwal joked that “Water Carrier” was a girl who used the washroom a lot. Her students were left off the assembly’s award list recipients.
[82] I refer to the above five allegations as the “2016-2019 allegations against Mr. Dhaliwal” in the section below.
c. The gaps in time between the 2016-2019 allegations against Mr. Dhaliwal weigh against finding that they are part of a continuing contravention .
[83] The 2016-2019 allegations against Mr. Dhaliwal occurred in March 2016, September 2016, February 2017, March 2017, and June 2019. These allegations are, respectively, spaced 6 months, 5 months, 1 month, and 2 years and 3 months apart. The June 2019 allegation occurred 3 months before the one-year filing deadline (September 10, 2019).
[84] Gaps in time between allegations may weigh against finding a continuing contravention. In considering the gaps I must be mindful of how Ms. Pigeau explains them: Bjorkland v. BC Ministry of Public Safety and Solicitor General , 2018 BCHRT 204 at para. 14. Ms. Pigeau asserts that the conduct she complains of has been repeated and ongoing throughout the term of her employment at Thornhill. For this decision, I accept that the one-month gap between allegations is not particularly significant. I also accept Ms. Pigeau’s explanation that she was on medical leave and absent from the workplace from November 2017 to May 2018, which would account for 6-months of the 2 year and 3-month period.
[85] Ms. Pigeau has not provided a sufficient explanation for why the substantial gaps in time between allegations exist for the period immediately preceding and following her leave (9-months and 11-months, respectively), and the 5-month period between September 2016 to February 2017. In reference to the 11-month period, she says that in October 2018, her lawyers sent the School District a proposal and invitation to engage in a reconciliation process she had developed which she felt would allow her to address the discrimination she believed she was experiencing and to move forward in a positive way with the School District. The School District refused to engage in the process or even to discuss the possibility of a mediation or reconciliation meetings. It does not appear that this process took place at all, nor does Ms. Pigeau explain what impact the October 2018 proposal had on the substantial gap in time between her allegations during the 11-month period.
[86] I cannot find that Mr. Dhaliwal’s conduct was continuous and ongoing. I am not satisfied that Ms. Pigeau has explained the large gaps in time between the untimely allegations. I decline to exercise my direction to include the allegations as part of a continuing contravention.
3. It is not in the public interest to exercise my discretion to accept the 2016-2019 allegations against Mr. Dhaliwal
[87] Lastly, I consider whether, despite finding that the allegations are untimely, it would be in the public interest to allow the 2016-2019 allegations against Mr. Dhaliwal to proceed to a hearing, and whether allowing the late filed allegations would cause substantial prejudice to the Respondents: Code s. 22(3), School District at para 68. The burden is on the complainant to persuade the Tribunal to accept the complaint. Because I find that it is not in the public interest to exercise my discretion to allow the 2016-2019 allegations to proceed to a hearing against Mr. Dhaliwal, I do not need to consider the substantial prejudice it would cause to him if they were to proceed.
[88] The Tribunal assesses the public interest in a late-filed complaint in light of the purposes of the Code . These include identifying and eliminating persistent patterns of inequality, and providing a remedy for persons who are discriminated against: s. 3. It may consider factors like the length of the delay, the reasons for the delay, the complainant’s interest in accessing the Tribunal, the respondent’s interest in being able to continue its activities without worrying about stale complaints, whether the complainant got legal advice, and the public interest in the complaint itself: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite , 2014 BCCA 220 [ Mzite ] 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 [ Complainant ] at para. 18. These are important factors, but they are not necessarily determinative and not every factor will be relevant in every case: Goddard v. Dixon , 2012 BCSC 161 at para. 152; Mzite at para. 55. The inquiry is always fact and context specific.
[89] The June 2019 untimely allegation is made 3 months before the one-year filing deadline. The Tribunal has declined to accept a complaint for filing that was two days late: Adolphs v. Boucher Institute of Naturopathic Medicine , 2014 BCSC 298 at paras. 1 and 6 . Ms. Pigeau explains she delayed in filing her complaint with the Tribunal because filing a human rights complaint “is a last resort” for her, as she has “previously made every effort to resolve her complaints through the other processes available to her, including but not limited to grievance processes through her union.” She also filed a harassment complaint with the School District against Mr. Dhaliwal, and later invited the Respondents to engage in a mediation process. She says that none of these attempts to resolve her complaints have succeeded in stopping the discriminatory conduct by the Respondents.
[90] As in Complainant at para. 22, it is apparent that Ms. Pigeau “was capable of, and actively engaged in, filing complaints and pursuing avenues of regress against [the School District].” Ms. Pigeau filed grievances with her Union and filed a harassment claim against Mr. Dhaliwal in 2017. As in Complainant , there is no apparent reason why she could not have also filed her human rights complaint within the timeline for doing so. This factor weighs against accepting the complaint for filing: see eg. Liew v. Vancouver (City) , 2005 BCHRT 267 at para. 38 ; Chunik Chrunik v. BCIT , 2004 BCHRT 39 at para. 25 .
[91] Another consideration is whether the complainant benefited from legal advice. Here, Ms. Pigeau had legal counsel from the time she filed the complaint to at least on or after April 27, 2022. Her legal counsel filed the Form 3 Amendment Form to amend her complaint. Having the benefit of legal counsel is a factor that weighs against accepting the complaint for filing.
[92] In determining whether accepting a late-filed complaint is in the public interest, the Tribunal may also consider whether there is anything particularly unique, novel, or unusual about the complaint that has not been addressed in other complaints: Hau v. SFU Student Services and other s, 2014 BCHRT 10 at para. 22 ; Bains v. Advanced Air Supply and others , 2013 BCHRT 74 at para. 22 ; Mathieu v. Victoria Shipyards and others , 2010 BCHRT 224 at para. 60 . Where a complaint raises a novel issue on behalf of a vulnerable group which advances the purposes of the Code , this factor may weigh in favour of finding a public interest in accepting the complaint: Mzite at paras. 65-66 .
[93] Ms. Pigeau says hearing her complaint will not just benefit her, but also “other Indigenous educators and educators with mental and physical disabilities who have been subjected to [similar treatment].” Ms. Pigeau hopes for her complaint to bring about systemic change, and such an order for policy changes could foreseeably be made at a hearing based on the complaints proceeding against the Respondents. The issue of whether Mr. Dhaliwal discriminated against Ms. Pigeau in employment based on her Indigenous identity, race, ancestry, colour, and religion is already proceeding to a hearing because related timely will proceed to a hearing. Complaints against the School District is also proceeding to a hearing. As such, Ms. Pigeau has an opportunity to pursue a remedy related to these allegations. For these reasons, this factor holds less weight in my analysis.
[94] On the whole, I am not persuaded that it is in the public interest to allow the 2016-2019 allegations against Mr. Dhaliwal to proceed to a hearing. Ms. Pigeau had the benefit of legal counsel in filing her complaint. The delay in this case is substantial, and I am not convinced that Ms. Pigeau’s reasons for late filing does adequately explain this delay. The timely allegations related to Mr. Dhaliwal will proceed in substance, even though, as I explain in my analysis of s. 27(1)(d)(ii), he will not be named as an individual respondent moving forward. It is therefore unnecessary for me to consider whether accepting the late-filed complaint would give rise to substantial prejudice.
C. Section 27(1)(c) – No Reasonable Prospect of Success
[95] The Respondents apply to dismiss Ms. Pigeau’s complaint on the basis that it has no reasonable prospect of success: Code , s. 27(1)(c). The onus is on the Respondents to establish the basis for dismissal.
[96] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[97] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan , 2013 BCSC 942 at para. 77 .
[98] A dismissal application is not the same as a hearing : Lord v. Fraser Health Authority , 2021 BCSC 2176 at para. 20 ; SEPQA v. Canadian Human Rights Commission , [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill , 2011 BCCA 49 [ Hill ] at para. 27 .
[99] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia , 2008 BCSC 1026 at para. 34 . However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City) , 2017 BCCA 242 at para 67.
[100] To prove her complaint at a hearing, Ms. Pigeau will have to prove that she has a characteristic protected by the Code , she was adversely impacted in employment, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33. If she did that, the burden would shift to the Respondents to justify the impact as a bona fide occupational requirement. If the impact is justified, there is no discrimination.
[101] The Respondents have applied to dismiss Ms. Pigeau’s discrimination complaints under 27(1)(c) of the Code on the grounds that there is no reasonable prospect that any of the allegations in her complaint will succeed. They also say there is no reasonable prospect Ms. Pigeau will prove she was adversely impacted by being placed in the Language and Culture position. Additionally, Mr. Dhaliwal denies that the conversations about her union activity, and the incidents involving Orange Shirt Day, Gift Giving, the Classroom Bear Skull and Posters, Every Child Matters Posters occurred as alleged by Ms. Pigeau.
[102] The Respondents also argues they are reasonably certain to prove a defence at the hearing: Purdy v. Douglas College and others , 2016 BCHRT 117 at para. 50]. They say that Ms. Pigeau did not disclose her mental disability until 2019 despite the School District’s inquiries into whether she had a disability. They say that, once informed of her mental disability, the School District reviewed the medical information and offered her the Language & Culture Position, which was a reasonable accommodation.
[103] To justify placing the accommodation at a hearing, the Respondents would have to prove that: (1) they adopted the standard for a purpose rationally connected to the performance of the job, (2) they adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and (3) the standard is reasonably necessary to the accomplishment of that legitimate purpose. This third element encompasses their duty to accommodate Ms. Pigeau to the point of undue hardship: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin Grievance) , [1999] 3 SCR 3 [ Meiorin ] at para. 54 .
[104] In summary, the Respondents argue that the complaint should be dismissed in its entirety because there is no reasonable prospect Ms. Pigeau can prove her complaint at a hearing, and that they are reasonably certain to establish a defense at a hearing. The issues I need to decide, then, are whether Ms. Pigeau has taken her complaint about her protected characteristics out of the realm of conjecture, whether the adverse impact she alleges from being placed in the Language and Culture position is merely speculative, and whether the Respondents are reasonably certain to prove that 1) they reasonably did not know or ought to have known of her mental disability before 2019, and 2) the Language & Culture teaching was a reasonable accommodation.
4. Has Ms. Pigeau taken her complaints about sex, and political beliefs out of the realm of conjecture?
[105] Ms. Pigeau has not taken her allegation that there is a connection between her sex and any adverse impact in her employment by Mr. Dhaliwal out of the realm of conjecture. In Ms. Pigeau’s complaint, she stated, “I identify as a woman” but has not made allegations of discrimination based on sex. It is not enough that Ms. Pigeau asserts that she is a member of a protected group and that she has experienced adverse treatment: Schnurr v. Douglas College, 2007 BCHRT 40 at para. 23, upheld in Schnurr v. Douglas College , 2008 BCSC 1799; Soliman v. Maysam Pharmacy Ltd. Dba Shoppers Drug Mart #263 , 2024 BCHRT 184 at para 41. The facts alleged must be capable of supporting a reasonable inference that there is a nexus between the adverse treatment and a prohibited ground of discrimination: Hales v. ICBC , 2012 BCHRT 197 at paras. 38-39 . Ms. Pigeau has not alleged such facts, nor has she explained or provided evidence to support that her sex was a factor in Mr. Dhaliwal’s alleged adverse treatment of her.
[106] Ms. Pigeau’s allegation that Mr. Dhaliwal discriminated against her on the basis of her political belief also remains speculative. She describes her political belief generally as being an active member of her Union and having a strong belief in the representation of teachers by the Union. She identifies two discrete incidents which she alleges were discrimination based on her political beliefs. Ms. Pigeau says that in September 2015, she attended a Union meeting which took place on a Professional Development Day. Ms. Pigeau alleges that Mr. Dhaliwal questioned her about her involvement with the Union, what her “role” at the meeting was, and checked with the District Director of Human Resources to confirm that a union meeting had taken place on that day. She alleges that, in October 2016, Mr. Dhaliwal said in front of colleagues, “Hey, it’s part-time Pigeau, you’re away more than I am! I’ll have to check on this with [Human Resources]” after he knew that she had been away as a delegate at a union conference.
[107] The materials before me all point toward an understanding that Ms. Pigeau’s relationship with Mr. Dhaliwal was a fraught one. In this context, I appreciate how she could find that Mr. Dhaliwal’s questions and comments about her union activities were unwelcome. However, even if I were to assume that she could prove at a hearing that the incidents occurred exactly as she described, I am persuaded that there is no reasonable prospect that her evidence before the Tribunal could support an inference that there was any adverse impact in employment related to her political beliefs, or for that matter, that there is a connection between her political beliefs and any adverse treatment she has alleged by Mr. Dhaliwal.
5. Has Ms. Pigeau taken her complaint about the Orange Shirt Day, Gift Giving, the Classroom Bear Skull and Posters, Every Child Matters Posters incidents out of the realm of conjecture?
[108] These incidents involving Mr. Dhaliwal engage the intersecting grounds of Ms. Pigeau’s race, colour, ancestry, place of origin, religion, and Indigenous identity. I understand from Ms. Pigeau’s submissions that these intersecting grounds are bound together for her as an Indigenous person. The Tribunal has recognized that intersecting grounds require a nuanced approach, and it would be inefficient to attempt to parse out under s. 27(1)(c) whether there is no reasonable prospect a complainant can prove one protected characteristic or the other is a factor in the discrimination they allege: Radek v. Henderson Development (Canada) and Securiguard Services (No. 3) , 2005 BCHRT 302, at paras. 463-464; Byelkova v Fraser Health Authority , 2021 BCSC 1312, at para 115; Matias v. The Hudson’s Bay Company and another , 2022 BCHRT 17, at para. 38 .
[109] Ms. Pigeau and Mr. Dhaliwal present competing versions of the Orange Shirt Day, Gift Giving, Classroom Bear Skull and Posters, Every Child Matters Posters Incidents. Their credibility is squarely at issue, and I cannot resolve the factual disputes by corroborative affidavit or contemporaneous documentary evidence: Smyth v. Loblaw and another , 2017 BCHRT 73 at para. 41 . These competing versions of events is a key issue of credibility that cannot be resolved on this preliminary application, and must go to a hearing: Francescutti at para. 67 .
6. Whether the adverse impact Ms. Pigeau alleges from being placed in the Language and Culture position is merely speculative
[110] I am satisfied that Ms. Pigeau’s allegation that she was adversely impacted by being placed in the Language and Culture position is beyond the realm of conjecture.
[111] The B.C. legislature unanimously passed the Declaration of the Rights of Indigenous Peoples Act , which came into effect on November 29, 2019. The Declaration Act establishes the United Nations Declaration of the Rights of Indigenous Peoples [ UNDRIP ] as the Province’s framework for reconciliation, as called for by the Truth and Reconciliation Commission’s Calls to Action. Ms. Pigeau points to the Calls to Action to highlight Indigenous-specific harms perpetuated in the education system. In particular, she points to Call to Action #12, which calls upon the provincial government to “develop culturally appropriate early childhood education programs for Aboriginal families.” Article 40 of UNDRIP calls for “effective remedies for all infringements of their individual and collective rights” with consideration of “the customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights.”
[112] Ms. Pigeau has pointed to specific Indigenous customs, traditions, and rules to support her allegation that she was adversely impacted by the School District placing her in the Language & Culture teaching position did not take into consideration Article 40 or Call to Action #12. In particular, she points to the School District’s pan-Indigenous perspective as a harmful and racist practice, and that it is not respectful or culturally ethical to enter another territory and appropriate their language or ways of being without permission and mentorship by the community. She explains the historical trauma caused to her identity by being “forced” to take on the “cultural position,” and says the Respondents’ pan-indigenous perception of her as a Indigenous person best suited to teach Indigenous language and culture is an example of how the Respondents “have continued to use the weapon of a settler colonial lens, while purposely making decision for us about us without consent or really understanding or caring [about] the harm caused by their destructive attempts to assimilate Tsimshian culture into their colonial ways of practice in education.” She explains that for her to take on the role would have been “a breach of traditional laws and cultural practices.” She says that the School District’s actions led to her taking, and remaining on, disability leave shortly after being forced into the Language & Culture teaching position. I am satisfied Ms. Pigeau’s allegation that she was adversely impacted by the School District’s decision to place her in the Language and Culture position is not merely speculative.
7. Are the Respondents reasonably certain to prove that the Language & Culture teaching was a reasonable accommodation for her disability?
[113] Ms. Pigeau has an obligation to participate in the accommodation process, and to accept solutions that are reasonable, without insisting on perfection: Central Okanagan School District No. 23 v. Renaud , 1992 CanLII 81 (SCC) , [1992] 2 SCR 970 [ Renaud ] at 994‐995. The Respondents were not obligated to provide a perfect accommodation, but a reasonable one: Renaud . What is reasonable and what constitutes undue hardship is fact specific and will turn on the specific circumstances of a particular case: Renaud .
[114] For the following reasons, the Respondents are not reasonably certain to establish at a hearing a defense that the Language and Culture position was a reasonable accommodation.
[115] I am brought to this conclusion because it does not appear that the Respondents are reasonably certain to prove that they engaged in a conversation with Ms. Pigeau or her Union about what a reasonable accommodation would be. I find the communication between the School District and Ms. Pigeau’s union in February 2020 particularly persuasive. The School District’s February 24, 2020 letter outlines the duties and responsibilities of the position and informs Mr. Pigeau that “should you forego [the Language and Culture position as an] offer of accommodation, the [School District] assumes you are essentially committed to continue with your current assignment without the requirement of accommodation.” When the Union replied on her behalf that Ms. Pigeau was concerned that it was not appropriate for her to teach the course because she was not Tsmishian and did not speak Sm’algyax, the School District responded that they would provide Ms. Pigeau with a “language and culture coach” and that she was being assigned to the position effective September 2020. The School District does not appear to have considered any other option to accommodate Ms. Pigeau. Considering the particular circumstances, I cannot find that the Respondents are reasonably certain to prove they accommodated Ms. Pigeau to the point of undue hardship.
8. Are the Respondents reasonably certain to prove that they did not know, or ought to have known about Ms. Pigeau’s learning disability until 2019?
[116] The Respondents say that they are reasonably certain to prove that they did not know about her learning disability until 2019. I am not satisfied that they will. Notes from a meeting in May 2017 between Ms. Pigeau, the Union, Mr. Dhaliwal, and the School District’s Director of Human Resources capture, “no paperwork on learning disability.” The meeting was in relation to quality and timelines of Ms. Pigeau’s report card writing. When Ms. Pigeau raised concerns that the July 2019 warning letter was not appropriate considering the Respondents’ knowledge of her disability, the Respondents said the School District did not have medical documentation regarding her disability, “despite numerous requests for this information.” The May 2017 notes and the School District’s reference to “numerous requests” suggests that the Respondents are not reasonably certain to prove that they did not know, or ought not to have known, of her learning disability prior to her July 2019 email.
[117] Additionally, Mr. Dhaliwal expressly denies having any knowledge of Ms. Pigeau’s mental disability when she started working at Thornhill. He says that neither Ms. Pigeau, nor her union, informed him that she had a mental disability or required any accommodations. He says that he was not given any documentation concerning any limitations or restrictions related to a mental disability or any related accommodation. Around November 19, 2018, Ms. Pigeau’s Union President sent Mr. Dhaliwal an email to request an extension to Mr. Dhaliwal’s report card submission deadline, “considering…I will assist with the proofreading, as per her accommodation.” This email suggests that Mr. Dhaliwal knew that she needed an accommodation for report card writing. The Respondents are not reasonably certain to prove that Mr. Dhaliwal did not know, or ought not to have known to have known of her need for accommodation in proofreading her report cards.
[118] Considering the above, I cannot find that the Respondents are reasonably certain to prove that they did not know about her learning disability until 2019.
D. S. 27(1)(d)(ii) – Whether proceeding with the complaint against the individual respondent, Mr. Dhaliwal, would not further the purposes of the Code
[119] The Respondents ask the Tribunal to dismiss the complaint against Mr. Dhaliwal as an individually named respondent under s. 27(1)(d)(ii) on the basis that it would not further the purposes of the Code to proceed against him. I deny that application, in part, for the following reasons.
[120] There are strong policy rationales that favour complaints against individual respondents. As the Supreme Court of Canada has acknowledged, “the aspirational purposes of the Code require that individual perpetrators of discrimination be held accountable for their actions”: British Columbia Human Rights Tribunal v. Schrenk , 2017 SCC 62 at para. 56.
[121] There are also policy arguments against naming individual respondents. Doing so can complicate and delay the resolution of complaints, exacerbate feelings of personal animosity, and cause needless personal distress to individuals who are accused of discrimination: Daley v. BC (Ministry of Health) , 2006 BCHRT 341 [ Daley ] at para. 54. Because employers and institutional respondents are liable for the acts of their agents and employees, they will be responsible for any remedy ordered by the Tribunal: Code , s. 44(2); Robichaud v. Canada , 1987 CanLII 73 (SCC), [1987] 2 SCR 84. In those situations, the remedial aims of the Code may be most fairly and efficiently fulfilled without holding individuals liable.
[122] The Tribunal balances all these considerations to decide whether the purposes of the Code are best served by having a complaint proceed against an individual as well as an institutional respondent, or against the institutional respondent only. In Daley , the Tribunal identified the following factors as guidance:
1. whether the complaint names an institutional respondent and that respondent has the capacity to fulfill any remedies that the Tribunal might order;
2. whether the institutional respondent has acknowledged the acts and omissions of the individual as its own and has irrevocably acknowledged its responsibility to satisfy any remedial orders which the Tribunal might make in respect of that individual’s conduct; and
3. the nature of the conduct alleged against the individual, including whether:
a. their conduct took place within the regular course of their employment;
b. the person is alleged to have been the directing mind behind the discrimination or to have substantially influenced the course of action taken; and
c. the conduct alleged against the individual has a measure of individual culpability, such as an allegation of discriminatory harassment.
Daley at paras. 60-62.
[123] The first two factors of Daley have been satisfied. Ms. Pigeau named the School District as a respondent. The School District agrees that the allegations about Mr. Dhaliwal’s conduct relate to his role as a Principal for the School District. They acknowledge that any liability resulting from Mr. Dhaliwal’s conduct would be attributable to the School District, and the School District is able to fulfil any ordered remedies.
[124] I understand Ms. Pigeau’s allegations against Mr. Dhaliwal to be of two separate natures. First, Ms. Pigeau makes allegations about accommodating her mental disability with respect to report card writing. Second, Ms. Pigeau alleges that Mr. Dhaliwal engaged in a series of discriminatory comments and conduct about her Indigenous identity, ancestry, colour, race, and religion.
[125] On the third factor of Daley , I view Mr. Dhaliwal’s conduct relating to Ms. Pigeau’s allegations about the report cards to be conduct that took place within the regular course of his employment. He was not the directing mind behind any discrimination that Ms. Pigeau alleged stemmed from report card writing because decisions about her accommodations or discipline were made in conjunction with other School District administrators and was not individually culpable for those events. Even if Mr. Dhaliwal was the directing mind, this is not conduct that, in my view, can be deemed morally reprehensible.
[126] Mr. Dhaliwal was also acting in the course of his employment when the alleged discriminatory comments and conduct occurred. Ms. Pigeau’s complaint is that Mr. Dhaliwal’s failure to appreciate Indigenous cultural protocols was discriminatory and lead to a pattern humiliation and belittlement. As stated previously, the Respondents deny the incidents occurred as alleged by Ms. Pigeau. In summary, those allegations are the Orange Shirt Day, Gift Giving, Classroom Bear Skull and Posters, Every Child Matters Posters Incidents.
[127] In my view, even if I accept the allegations as describe by Ms. Pigeau, with the exception of the Orange Shirt Day incident, there are no allegations against Mr. Dhaliwal which would arguably take him outside of the normal course of his supervisory and management duties. Mr. Dhaliwal complained to the School District that Ms. Pigeau gave students gifts and suggested that should she give students gifts she should give them at the end of the school day. This allegation falls within his supervisory capacity of overseeing teacher activities. Similarly, the Classroom Bear Skull incident where an education assistant allegedly removed posters and a sacred bear skull because the classroom walls needed to be painted, was made in his supervisory capacity of facility management. Relatedly, the Every Child Matters Posters incident also falls within Mr. Dhaliwal’s supervisory duties. As with the report card allegations, this is not conduct, in my view, that rises to the level of morally reprehensible behaviour that would weigh toward finding a high degree of individual culpability.
[128] As stated earlier, the possible exception is the Orange Shirt Day earlier. Here, Ms. Pigeau alleges that she explained why she was not wearing an Orange Shirt on Orange Shirt Day and Mr. Dhaliwal cut her off, saying, “Well, it’s your day, you should be wearing it,” and walked away. This type of conduct, if substantiated, does carry some degree of individual culpability. The facts around this are disputed and I cannot resolve the matter on the materials before me. What is clear, however, is that the relationship between Ms. Pigeau and Mr. Dhaliwal at the time of this incident was a fraught one. Overall, this specific allegation weighs in favour of allowing the complaint to proceed against Mr. Dhaliwal. However, this factor is not determinative of the analysis.
[129] Several factors weigh heavily in the opposite direction. First, Ms. Pigeau says the complaint against Mr. Dhaliwal should proceed because her case is “not just about her own experiences of racism and discrimination but is also about making schools and administrators accountable for cultural violence and to ensure that First Nation education priorities are respected, consistent with the Truth and Reconciliation Commission Call to Action.” The reason that this factor weighs in favour of dismissal is because it is further assurance that the School District is liable for any actions of Mr. Dhaliwal, which may be found discriminatory: Daley at para. 57 ; Code, s. 44(2); Klewchuk v. City of Burnaby and others , 2018 BCHRT 200, at para 30. If the Tribunal finds that Ms. Pigeau’s complaint is substantiated, she will receive a remedy: Klewchuk at para 30.
[130] I have also considered the materials before me that indicate that the majority of Mr. Dhaliwal’s acts and omissions were undertaken by him in the course of his employment, and find this weighs against allowing the complaint to proceed against Mr. Dhaliwal. Further, the facts that School District will clearly be liable for any discrimination ultimately proven against him, and that it has the capacity to satisfy any remedial orders the Tribunal might make, are significant factors in favour of dismissing the complaint against the individuals. I also find that in these circumstances, naming Mr. Dhaliwal has the potential to complicate and delay the voluntary resolution of complaint, the Tribunal’s pre-hearing processes, and eventual hearing: Daley at para. 54 . In these circumstances, the remedial aims of the Code may be fulfilled without holding the individual liable.
[131] Ms. Pigeau’s complaint against Mr. Dhaliwal as an individual respondent is dismissed.
IV CONCLUSION
[132] Ms. Pigeau’s application to file further submissions is denied.
[133] The allegations against the School District prior to 2015 are dismissed under s. 27(1)(g) of the Code , except for the allegations related to report card writing. The complaint will proceed against the School District in the areas of Indigenous identity, ancestry, colour, race, and religion, physical and mental disability.
[134] Allegations relating to the grounds of political belief and sex are dismissed under s. 27(1)(c) of the Code .
[135] The complaint against Mr. Dhaliwal is dismissed under s. 27(1)(d)(ii) of the Code .
Laila Said Alam
Tribunal Member