Complainant v. Care Home and others, 2024 BCHRT 354
Date Issued: December 31, 2024
File: CS-002457
Indexed as: Complainant v. Care Home and others, 2024 BCHRT 354
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:
Complainant
COMPLAINANT
AND:
Care Home and Care Worker and Manager and Funder
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(b), 27(1)(c), & 27(1)(g)
Tribunal Member: Robin Dean
Counsel for the Complainant: Andrew Robb
Counsel for the Care Home, Care Worker and Manager: Alon Mizrahi
Counsel for the Funder: Justin Mason
I INTRODUCTION
[1] A warning that these reasons for decision discuss allegations of sexual assault.
[2] The Complainant is a woman in her 30s with cerebral palsy, PTSD, depression, and a learning disorder, which affects her ability to read and write. At all relevant times to the complaint, the Complainant lived in a staffed care home funded in part by a provincial crown corporation.
[3] On October 20, 2020, the Complainant filed a complaint against the Respondents alleging discrimination in services and tenancy based on sex, physical disability, and mental disability contrary to ss. 8 and 10 of the Human Rights Code . The Care Home, Care Worker, and Manager [ Care Home Respondents ] filed one application to dismiss, while the Funder filed a separate application to dismiss. I refer to the Respondents’ applications as ATDs throughout. In these reasons, I address the Care Home Respondents’ ATD, the Funder’s ATD, and the Complainant’s application to file further submissions.
[4] The Complainant’s discrimination claim relates to events that allegedly occurred on February 2, 2019, when the Complainant says the Care Worker sexually assaulted her [ Sexual Assault Allegation ]. It also relates to the Respondents’ response to the Sexual Assault Allegation, which the Complainant alleges was discriminatory, including failing to adequately investigate the Sexual Assault Allegation [ Inadequate Investigation Allegation ], telling the transit service HandyDART that the Complainant had a history of making similar allegations [ HandyDART Allegation ], and assigning two care workers to assist her in her daily tasks when she says only one was needed [ Two-Person Care Allegation ]. Finally, she says that the Respondents retaliated against her when they found out about her intention to file a human rights complaint by accelerating plans to move her from the Care Home [ Retaliation Allegation ].
[5] The Respondents deny discriminating. The issues I must decide on the ATDs are:
a. whether the complaint is timely, and, if not, whether I should nonetheless exercise my discretion to accept it;
b. whether the complaint alleges an arguable contravention of the Code ; and
c. whether the Two-Person Care, HandyDART, and Retaliation Allegations have no reasonable prospect of success.
[6] For the following reasons, I dismiss the Sexual Assault Allegation and Inadequate Investigation Allegation because they are untimely, and it is not in the public interest to accept them. I do not dismiss the Two-Person Care Allegation, but I dismiss the HandyDART Allegation and the Retaliation Allegation as there is no reasonable prospect that the Complainant will prove a contravention of the Code . To make this decision, I have considered all the information filed by the parties. In these reasons, I refer only to what is necessary to explain my decision. I make no findings of fact on the merits.
II BACKGROUND
[7] From January 2018 until December 2020, the Complainant lived in the Care Home, which provides staffed housing for people with disabilities who require personal support and care. The Care Worker and Manager were employed by the Care Home at all times relevant to the complaint.
[8] The Funder is a provincial crown corporation that provides funding and services to people with disabilities, including the Complainant. The Funder paid for the majority of the costs of the Complainant’s Care Home. The other costs were paid for by the Complainant herself.
[9] The Complainant, who is in a wheelchair, requires assistance with daily activities, including cooking, cleaning, dressing, bathing, and toileting, due to her physical disability, which limits her control over her body.
[10] The Complainant says on February 2, 2019, the Care Worker was assisting the Complainant in cleaning her perineal area. The Care Worker allegedly completely undressed the Complainant, although the Complainant says that it was not necessary to take off her top. The Care Worker then allegedly made sexual comments about the Complainant’s breasts. The Complainant asked the Care Worker to stop. However, after cleaning the Complainant’s perineal area, the Complainant alleges that the Care worker continued to touch the Complainant’s genitals while making sexual comments about the Complainant’s breasts and genitals. The Complainant says she kept asking the Care Worker to stop.
[11] The Care Worker denies she engaged in any of the conduct alleged.
[12] The Complainant alleges she reported what happened to the Manager of the Care Home on February 6, 2019. The Complainant says that the Manager did not investigate the allegations. She says the RCMP did, and the Care Worker was not charged with a criminal offence. The Complainant alleges that the Care Manager told the RCMP that the Complainant had a history of making false allegations. The Complainant says that the Care Worker was transferred to another facility but that there were “no disciplinary measures or formal consequences of any kind” for the Care Worker.
[13] The Complainant alleges that immediately after she reported the Care Worker’s conduct, the Manager began assigning two workers to assist the Complainant with her daily activities. Generally, she says, one worker would assist her while the other worker watched or “chaperoned”.
[14] The Complainant says that the two-person care policy was put in place because the Care Home believed that she had made a false accusation against the Care Worker. Therefore, according to the Complainant, it was a policy to protect the care workers at the Care Home, not to protect the Complainant. Neither Respondent gives their explanation for why the policy was instituted except to say that it was a measure for everyone’s safety.
[15] Apparently, the Complainant was not consulted in this decision, and she consistently complained to the Care Manager and the Funder about having two workers present. She says that having two workers present at all times during her care was “humiliating” and “undignified” and “a constant reminder that I was assaulted and that no one believed me.” The Complainant says that her complaints about the two care workers were not addressed by the Care Home or the Funder while she lived at the Care Home.
[16] The Complainant further alleges that in October 2019, the Care Manager told an employee of HandyDART, an accessible transit service, that the Complainant had made an allegation against the Care Worker. She says that HandyDART then made the decision to require the Complainant to be accompanied on board by an attendant, which is something she cannot afford. She says, as a result, she has stopped using HandyDART, which has significantly limited her mobility around the area in which she lives.
[17] In August 2020, the Complainant says her counsel notified the director of the Care Home that the Complainant was thinking about filing a human rights complaint. At that time, there were already plans to move the Complainant from the Care Home to another facility. However, the Complainant alleges that the plans to move her were accelerated after the director found out about the prospective human rights complaint.
III PRELIMINARY ISSUE – APPLICATION FOR FURTHER SUBMISSIONS
[18] The Complainant makes an application to file further submissions, or a sur-reply, because, she says, the Respondents introduced new evidence and argument in reply. She says it would only be fair to give her a chance to respond to the new evidence and argument.
[19] Generally speaking, the Tribunal’s application process involves three submissions: the application, the response, and the reply: Rule 28(2). The Tribunal may accept further submissions where fairness requires that a party be given an opportunity to respond to new issues raised in reply: Tribunal Rules of Practice and Procedure [ Rules ], Rule 28(5); Kruger v. Xerox Canada Ltd (No. 2), 2005 BCHRT 24 at para. 17. The overriding consideration is whether fairness requires an opportunity for further submissions: Gichuru v. The Law Society of British Columbia (No. 2) , 2006 BCHRT 201, para. 21.
[20] The Complainant says that the Funder submitted 59 pages of new evidence and argued that she has a history of making false allegations, an argument that was not raised in the Funder’s response to the complaint or the ATD.
[21] In terms of the Care Home Respondents, the Complainant says that the reply focuses on the scope of the complaint which was not previously identified as an issue.
[22] The Respondents do not oppose the application, and I find that fairness dictates that I consider the sur-reply in coming to my decision on the ATDs. There is new evidence and argument in the replies, to which the Complainant should be able to respond.
IV PRELIMINARY ISSUE – SCOPE OF THE COMPLAINT
[23] The Care Home Respondents argue that the Complainant expanded the scope of her complaint in the response to their application to dismiss. They say that the Complainant raises for the first time in her response that the Care Home Respondents conducted a discriminatory investigation, specifically that the Care Manager failed to respond to the complaint of sexual assault in a professional and sensitive manner. I disagree. Among the allegations listed in the Complainant’s complaint is that the Care Home Manager discriminated against her on the basis of sex by “failing to investigate [the Complainant’s] allegations about [the Care Worker].”
[24] In my view, the additional specifics about how the Care Home Manager conducted a discriminatory investigation of the sexual assault complaint are further particulars, which do not add allegations to the discrimination complaint. A complainant is permitted to add details, or further particulars, to their complaint anytime, Tribunal’s Rules of Practice and Procedure , Rule 24(1), and this is often done in the response to an application to dismiss. The new details do not expand the scope of the complaint; the Care Home Respondents were on notice from the complaint that the Manager’s investigation of the sexual assault was alleged to have also been discriminatory.
V DECISION
A. Section 27(1)(g)
[25] 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.
1. Sexual Assault Allegation
[26] The Care Home argues that the Sexual Assault Allegation is late filed and should be dismissed under s. 27(1)(g) of the Code. I must decide two issues: (1) whether the complaint is late filed, and (2) if so, whether to exercise my discretion to accept it because it is in the public interest to do so and there is no substantial prejudice to any person because of the delay: Code, s. 22(3) , School District v. Parent obo the Child , 2018 BCCA 136 at para. 68 .
[27] The Complainant says the conduct underlying the Sexual Assault Allegation occurred on February 2, 2019. The complaint was filed on October 20, 2020, 20 months later. The Sexual Assault Allegation is therefore late filed by some eight months. Because the complaint is late filed, I consider whether to accept the complaint under s. 22(3). The burden is on the Complainant to persuade the Tribunal to accept the complaint. I must consider two things: public interest and substantial prejudice.
[28] 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 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.
[29] The delay here, eight months, is lengthy but not insurmountable, depending on whether the other factors weigh in favour of accepting the complaint: Hale v. University of British Columbia Okanagan and another , 2018 BCHRT 34 at para. 60. Sexual assault cases deserve special consideration in relation to the time it takes to bring an allegation forward: Mr. C v. Vancouver Coastal Health Authority and another , 2021 BCHRT 22 at para. 74. The Tribunal must be alive to the unique barriers to filing a timely complaint that complainants alleging sexual assault face: Mr. C at para. 76.
[30] The Complainant explains that the delay occurred for a variety of reasons. She says she felt shame after the assault occurred, and she did not think that anyone would believe her given that the police did not pursue charges against the Care Worker. She says she was unaware of the further legal avenues available to her until she was able to get legal advice in 2020. Finally, she says that she could not complete a human rights complaint on her own, as she has difficulties reading and writing.
[31] The Complainant likens her case to that of Mr. C, an Indigenous man whose complaint of sexual assault against a nurse was accepted in the public interest even though it was late filed. In Mr. C , the Tribunal found that the following aspects of the complaint militated in favour of accepting it for filing (at para. 72):
a. Mr. C lives in a small and remote community where legal advice and resources are limited. He didn’t know that bringing a human rights complaint was an option until about a year after the assault, when he was able to obtain legal advice;
b. He disclosed the sexual assault to his spouse, and health professionals five to six weeks after the assault. His physician encouraged him to speak to hospital staff, which led to an internal investigation within VCH. He was waiting to see if the internal VCH complaint process resolved his concerns and filed his complaint to the Tribunal when it did not;
c. Due to his challenges with reading and processing, and other disabilities, he needed assistance with paperwork;
d. He was recovering from surgery during the sexual assault. In the following months he sought emergency medical care and required medevac on at least a few occasions;
e. He completed a human rights complaint with the assistance of a social worker;
f. He felt guilty, dirty, ashamed, depressed, anxious, and traumatized after the sexual assault. The trauma made it hard to come forward; and
g. It was hard to come forward, because he has experienced his complaints not being taken seriously in the past. He attributes this to issues involving Aboriginal people being swept under the rug, as a form of discrimination.
[32] The Complainant says that many of the same factors are relevant to her complaint. Further, she says that like Mr. C she raises a unique and novel issue. She says that she is not aware of the Tribunal ever considering allegations of sexual harassment and assault by a resident of a staffed residence for people with disabilities. She says the Tribunal has rarely considered the rights of women in staffed residences for people with disabilities in any context. She says that she and other women are “highly vulnerable to sexual assault and other violations of their rights” and that it is in the public interest to make the Tribunal accessible to them.
[33] The Complainant’s case does have some similarities to that of Mr. C, in that her disabling condition combined with the shame of the assault led in part to the delay in filing her complaint. However, I do not think the other factors weigh in favour of accepting this complaint. In particular, I am not satisfied that this complaint is unique or novel. This case does not in my view raise a distinct or undecided legal issue. Rather, this sexual assault complaint is a highly fact specific credibility contest and individual to the Complainant. While the Tribunal to my knowledge has not considered sexual assault allegations in this specific context—i.e. a staffed care home—the Canadian legal system including the Tribunal has a vast body of law about sexual assault against women. Mr. C’s case was unique in part because he was an Indigenous man.
[34] Finally, the Complainant says she seeks systemic remedies. She indicates on her complaint form that she wants “steps or programs to address the discrimination”, which could have larger effects at the Care Home. However, I am not persuaded that this alone is a reason to accept her late-filed complaint. Further, the Two-Person Care Allegation will proceed. If the Tribunal finds that the two-person care policy was discriminatory, then it will still be available to the Complainant to seek broader remedies that address that discrimination systemically.
[35] Because I find that it is not in the public interest to accept the Complainant’s sexual assault complaint, it is unnecessary for me to consider whether accepting the late-filed complaint would give rise to substantial prejudice.
[36] I dismiss the Sexual Assault Allegation under s. 27(1)(g).
2. Inadequate Investigation Allegation
[37] The Care Home Respondents say that the Inadequate Investigation Allegation is also untimely since it allegedly occurred around the same time as the alleged sexual assault. The Complainant responds that this allegation is part of a continuing contravention and is thus timely.
[38] A complaint is filed in time if the last allegation of discrimination happened with 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 .
[39] 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 .
[40] The Complainant acknowledges that the investigation began as soon as the Complainant reported the sexual assault; however, she says it continued up until October 23, 2019, when the Care Manager told HandyDART that the Complainant had made allegations against the Care Home’s workers similar to her allegation against a HandyDART bus driver. The crux of the Complainant’s argument is that the Inadequate Investigation Allegation was ongoing, anchored in time by the Care Manager telling HandyDART that the Complainant had a history of making similar allegations.
[41] The Care Home Respondents argue that Care Manager’s conversation with another service provider over a year after the alleged sexual assault could not create a continuing contravention. I agree. The Care Manager’s alleged failure to adequately investigate a claim using their own internal processes, in my view, is separate from the allegation that the Care Manager told other, external service providers that the Complainant had a history of making similar allegations. The Complainant has not explained how the conversations with other service providers were a part of the Care Manager’s investigation. Indeed, the Complainant also says that the Care Manager did not investigate the complaint at all. For these reasons, I am satisfied that the HandyDART Allegation is not of the same character as the Inadequate Investigation Allegation. Further, the allegations are separated in time by over a year – a substantial unexplained gap.
[42] I find that the Inadequate Investigation Allegation is not timely, and I dismiss it on this basis. I do not consider whether it would nevertheless be in the public interest to accept the untimely Inadequate Investigation Allegation because the Complainant has not put this argument forward in her submissions.
3. Two-Person Care Allegation
[43] The Respondents argue that the Two-Person Care Allegation is late filed by eight months. They say that putting the policy in place was one act that had continuing effects or consequences and is thus not a continuing contravention. I disagree. I find that the two-person care allegation is part of a continuing contravention, and, as such, is not late filed.
[44] The Complainant alleges that the two-person care policy was in place from February 2019 until at least October 2020, when the complaint was filed. She says that this was an ongoing state of affairs, as described in Dove v. GVRD and others (No. 3) , 2006 BCHRT 374 at para. 17:
… there is the kind of case in which there is an ongoing state of affairs, for example, a public building which is inaccessible to wheelchair users or a policy withholding certain employment benefits for married persons from those in same sex relationships…So long as the building remains inaccessible, the policy remains in place , or the discriminatory conditions otherwise continue to exist, the discrimination is ongoing and a continuing contravention may be alleged.
[emphasis added]
[45] Here, the materials before me indicate that the policy remained in place and was put into effect at least once a day every day that the Complainant lived at the Care Home up until the complaint was filed. While the policy may have been put into effect for the first time more than a year before the complaint was filed, the last alleged act of discrimination happened within a year. Because the policy remained in place up until she filed the complaint, and there are no significant, unexplained gaps in time that have been brought to my attention, I am satisfied that the two-person care allegation is an alleged continuing contravention.
[46] I do not dismiss the two-person care allegation under s. 27(1)(g).
B. Section 27(1)(b) – No arguable contravention
[47] The Funder applies under s. 27(1)(b) of the Code , arguing that the complaint should be dismissed because the facts or omissions alleged in the complaint do not contravene the Code .
[48] Section 27(1)(b) of the Code gives the Tribunal the discretion to dismiss all or part of a complaint if it does not allege facts that could, if proven, contravene the Code . Under s. 27(1)(b), the Tribunal only considers the allegations in the complaint and information provided by the complainant. It does not consider alternative scenarios or explanations provided by the respondent: Bailey v. BC (Attorney General) (No. 2), 2006 BCHRT 168 at para. 12; Goddard v. Dixon , 2012 BCSC 161 at para. 100; Francescutti v. Vancouver (City), 2017 BCCA 242 at para. 49. The threshold for a complainant to allege a possible contravention of the Code is low: Gichuru v. Vancouver Swing Society , 2021 BCCA 103 at para. 56.
[49] In this case, the Complainant must set out facts that, if proved, could establish that she has a characteristic protected by the Code , she was adversely impacted in services and tenancy, and her protected characteristic was a factor in the adverse impact : Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33.
[50] The Funder asserts that the allegations are based on speculation or are contradicted by its own evidence. However, the Funder’s arguments are more properly considered under s. 27(1)(c), where the Tribunal asks whether the evidence as a whole takes the complaint out of the realm of speculation and conjecture. Section 27(1)(b) is not the place to consider the Funder’s information – here, I am permitted to consider only the allegations in the complaint and the information provided by the Complainant. I therefore look at the Funder’s arguments in the next section of these reasons.
C. Section 27(1)(c) – No reasonable prospect of success
[51] The Funder applies to dismiss the Two-Person Care Allegation on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c). Both Respondents apply to dismiss the HandyDART Allegation and the Retaliation Allegation under s. 27(1)(c). The onus is on the Respondents to establish the basis for dismissal.
[52] 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.
[53] 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 .
[54] 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 .
[55] 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.
1. Two-Person Care Allegation
[56] The Care Home Respondents did not apply to dismiss the two-person care allegation on the merits – rather, they rely on their timeliness arguments, which I have rejected.
[57] The Funder says that this allegation should be dismissed against it under s. 27(1)(c) because it is speculative. The Funder says that it was not part of the decision to start assigning two care workers to the Complainant. As I understand it, the Funder’s submission is that the Care Home alone decided to institute the policy. This is not an argument that they develop, although they could have: see Jones v. British Columbia (Ministry of Advanced Education and Skills Training) , 2023 BCHRT 18 at paras. 24-27. Because I do not have full submissions on this argument, I decline to dismiss the Two-Person Care Allegation on this basis.
[58] The Funder also argues that there was a solely non-discriminatory reason for instituting the policy – i.e. the Complainant’s alleged history of making unsubstantiated claims against Care Home workers. The Funder says that the Complainant will be unable to establish that her sex and disabilities were factors in the decision to assign two care workers.
[59] There is limited information in the evidence about why the two-person care policy was implemented. A care plan for the Complainant dated February 11, 2019, says:
Client will ask for assistance with her care at times. Assist client as needed. Two care staff to help with assistance with her care ( client can be accusatory towards a staff member if alone with client ). [Emphasis added]
[60] Even if the Complainant had a history of making accusations against the Care Home’s workers, which is something that is disputed between the parties, I am not satisfied that there is no reasonable prospect that the Complainant will prove that her sex and/or disabilities were a factor in the decision to institute the policy.
[61] To prove a nexus between her protected characteristics and the adverse impact, the Complainant must establish only that her sex and/or disabilities were one factor that led to the policy, not that they were the only or overriding factor. The Complainant argues that she will be able to establish nexus because the two-person care policy was instituted directly after the Complainant notified the Respondents about the alleged sexual assault. She says it was put in place in response to this allegation and was a part of the Respondents’ inadequate response to the allegations. I agree that the Complainant has taken this allegation out of the realm of speculation and conjecture. Sexual harassment and assault are inherently gendered: Ms. K v. Deep Creek Store and another , 2021 BCHRT 158 at para. 72. Further, “adverse impacts from an inadequate response are inherently connected to the protected characteristics engaged by the underlying discrimination”: Hale , 2023 BCHRT 121 at para. 20. A complaint about how the sexual harassment or assault was handled can therefore also amount to discrimination based on sex. The Complainant has provided some evidence on which, if proven, the Tribunal could find a nexus between the two-person care policy and her sex.
2. HandyDART Allegation
[62] The Respondents apply to dismiss the HandyDART Allegation. In February 2020, the Complainant accused a HandyDART driver of sexually harassing her. The Care Manager admits that she had a conversation with and told BC Transit that the Complainant had a history of making similar allegations. It appears undisputed that after BC Transit completed its own investigation, it made the decision to bar the Complainant from using HandyDART without an attendant accompanying her.
[63] The Respondents say that the Care Manager’s comment to BC Transit was true and therefore was not discriminatory. Further, they say that the Complainant relies on speculation because there is no evidence that the Care Manager’s comment influenced BC Transit’s decision in any way. Finally, they say that it would not further the purposes of the Code to permit this allegation to proceed because the Complainant had an outstanding case against BC Transit based on the same background.
[64] First, I am not persuaded to dismiss this allegation on the basis that there was a case against BC Transit. This is a different Respondent, and the Respondent’s actions in this case – i.e her statements to BC Transit – were not at issue in the other case. Further, that case is not going to a hearing; therefore, the Respondents’ arguments about multiple proceedings are no longer persuasive. Second, even if the Care Manager’s statement to BC Transit were true, the Tribunal could still find discrimination. However, I do agree with the Respondents that the Complainant’s allegation is speculative, particularly with regards to adverse impact.
[65] The Complainant asserts that the Care Manager’s comment resulted in BC Transit’s decision to require her to be accompanied when she used HandyDART. To support this assertion, she says that when she asked the person who investigated her complaint why BC Transit decided to implement the attendant policy, they said it was because she had “a history of making false allegations.” But the Complainant must prove under s. 8 of the Code that she was adversely impacted in the services provided by the Respondents – the Care Home Respondents or the Funder Respondents. A complainant can establish an adverse impact, under s. 8 of the Code by showing that:
a. they have been meaningfully denied access to a service provided by the Respondent: Section 8(1)(a); Rubin obo another v. Vancouver Coastal Health and others , 2012 BCHRT 432 at para. 39; or
b. services are provided by the Respondent, but the way the services are provided leads to an adverse impact: Section 8(1)(b); A.B. v. Regional District and another , 2021 BCHRT 59, paras. 126-127.
[66] The Complainant does not articulate the adverse impact she experienced in relation to these comments regarding the service she was accessing from the Respondents. In my view, it is too attenuated to rely on BC Transit’s actions as evidence of an adverse impact.
[67] Under these circumstances, I am persuaded that there is no reasonable prospect that the Complainant will prove that the Care Manager contravened s. 8 of the Code when she told BC Transit that the Complainant had a history of making similar accusations.
3. Retaliation Allegation
[68] The Complainant says that the Respondents retaliated against her by accelerating plans to move her from the Care Home after they found out about the human rights complaint.
[69] Section 43 of the Code says:
A person must not evict, discharge, suspend, expel, intimidate, coerce, impose any pecuniary or other penalty on, deny a right or benefit to or otherwise discriminate against a person because that person complains or is named in a complaint, might complain or be named in a complaint, gives evidence, might give evidence or otherwise assists or might assist in a complaint or other proceeding under this Code.
[70] To succeed in her complaint of retaliation at a hearing, the Complainant must prove that:
a. The Respondents were aware that she had made a human rights complaint;
b. The Respondents treated her adversely; and
c. There is a sufficient connection between the adverse treatment and the human rights complaint. This connection can be established by proving that the Respondents intended to engage in that conduct or can reasonably have been perceived to have engaged in that conduct in retaliation, with the element of reasonable perception being assessed from the point of view of a reasonable complainant, apprised of the facts, at the time of the impugned conduct.
Gichuru v. Pallai , 2018 BCCA 78 at para. 58 .
[71] There is no dispute about the first two elements of this test. The issue here is whether the Complainant has no reasonable prospect of proving that the Respondents’ conduct in moving her to a different care home could reasonably be perceived to be retaliatory. I am satisfied that she does not.
[72] The evidence shows that at the time that the Respondents learned about the possibility of the Complainant’s human rights complaint, they were already planning to move the Complainant. The Complainant was not the only person to be moved from the Care Home; indeed, all the Funder’s clients were moved out of the Care Home around the same time as the Complainant. The Complainant says that it was planned for her to move one month before the other people who were moved from the Care Home; however, she ultimately ended up moving at the same time as the others. She says this was a planned eviction contrary to s. 43 of the Code .
[73] It is not enough to be evicted in order to contravene s. 43. Rather, there must be a connection to a human rights complaint. I acknowledge from the materials before me that this was a stressful time for the Complainant in part because she was not privy to what was going on behind the scenes between the Funder and the Care Home. In my view, however, any connection between the early move-out date and the Complainant’s human rights complaint is speculative. The Care Home found out about the potential of litigation around August 7, 2020. But they had decided to move the Funder’s clients around June 2020, before finding out about the human rights complaint. The Complainant has not provided any direct evidence, or evidence capable of grounding an inference, that the earlier move was retaliatory.
[74] In sum, I am satisfied that the Complainant has no reasonable prospect of proving her complaint of retaliation under s. 43 of the Code. This part of her complaint is dismissed; Code, s. 27(1)(c).
VI CONCLUSION
[75] I grant the application to dismiss all the allegations except the Two-Person Care Allegation. That aspect of the complaint will proceed.
Robin Dean
Tribunal Member