Duarte v. City of Richmond, 2024 BCHRT 347
Date Issued: December 18, 2024
File: CS-007358
Indexed as: Duarte v. City of Richmond, 2024 BCHRT 347
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:
Nathan Duarte
COMPLAINANT
AND:
The City of Richmond
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Theressa Etmanski
On their own behalf: Nathan Duarte
Counsel for the Respondent: Kacey Krenn and Aman Atwal
I INTRODUCTION
[1] Nathan Duarte works for the City of Richmond. He is a member of the Canadian Union of Public Employees, Local 394 [ Union ] and previously served on the Union’s executive. Mr. Duarte describes himself as having two types of political beliefs, namely “pro-union” beliefs and beliefs opposing mandatory vaccination policies. In his complaint, he alleges that he was treated adversely by the City because of these political beliefs.
[2] The City applies to dismiss the complaint pursuant to s. 27(1)(c) of the Code and argues that the complaint has no reasonable prospect of success. The City says Mr. Duarte has no reasonable prospect of establishing that membership in a union is a political belief within the meaning of the Code . Further, the City says the allegations in the complaint are speculative and they are reasonably certain to establish that any alleged adverse treatment was based on the application of the City’s established policies and procedures rather than because of any political belief.
[3] To decide this application, I must consider the following issues:
a. Is there no reasonable prospect that Mr. Duarte can prove that either his union membership or his opposition to vaccination policies are political beliefs within the meaning of the Code ?
b. Is there no reasonable prospect that Mr. Duarte can prove that the City treated him adversely, and if not, that his political beliefs were a factor in that treatment?
[4] The City also raises concerns that Mr. Duarte has improperly added new allegations in his response to this application to dismiss. As a preliminary issue, I must decide if the allegations identified by the City are new allegations that expand the scope of the complaint, or if they are merely further particulars of the allegations in the initial complaint.
[5] For the following reasons, I grant the application. 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.
II BACKGROUND
[6] The following is taken from the information provided by the parties. I make no findings of fact.
[7] Mr. Duarte is employed by the City as a Stores Attendant and a member of the Union. He served as Vice President of the Union from June 19, 2020, to on or around October 27, 2021.
[8] Mr. Duarte says that during his term as Vice President, he experienced resistance from the City when he tried to book time off for Union-related activities. He says this impacted his ability to adequately represent Union members and attend Union meetings. The City denies this allegation and says it was not included in the initial complaint.
[9] In or around October 2021, the City announced it was considering a COVID-19 vaccination policy for City staff [ Vaccination Policy ].
[10] On or around October 25 or 28, 2021, Mr. Duarte wrote a post on Facebook expressing his opposition of the City’s Vaccination Policy, and vaccination mandates in general [ Facebook Post ].
[11] On or around October 26, 2021, Mr. Duarte emailed the City’s Chief Administrative Officer [ CAO ], expressing his concerns about the announcement of the City’s decision to implement the Vaccination Policy. His concern included the “little to no discussion” about the announcement, which he says left “answered questions and staff members in limbo regarding the future of their employment.” He stated that staff felt “undervalued” by the announcement, and that he was “disappointed” with the City’s course of action. The CAO responded to Mr. Duarte’s email the same day, and copied the City’s Mayor in his response.
[12] On or around October 28, 2021, the City says a discussion took place between Mr. Duarte, his manager, and other senior staff, whereby Mr. Duarte was reminded about the City’s Social Media directive and the City’s expectations regarding his communications moving forward.
[13] The City states that Mr. Duarte removed the Facebook Post and the City did not discipline him for the Facebook Post or his email to the CAO.
[14] Sometime in or around 2021, Mr. Duarte injured his back. The City says he made two WorkSafeBC claims in 2021 related to this injury.
[15] The City has policies with respect to medical accommodations for employees. These policies specify when medical documentation is necessary to support an employee’s absences from work.
[16] The parties agree that on January 31, 2022, Mr. Duarte’s physician provided a medical note indicating that he was unable to work from January 31, 2022, to February 4, 2022. The City’s Disability, Health and Wellness Specialist [ DHW Specialist ] contacted Mr. Duarte by telephone and confirmed that Mr. Duarte needed to be off work due to his back injury. The City says the DHW Specialist told Mr. Duarte that he would need to provide medical forms substantiating that he was medically cleared to return to work on February 7, 2022, and to determine whether he had any restrictions or limitations that may require accommodation.
[17] Mr. Duarte returned to work on February 7, 2022, but did not provide the requested medical forms. He worked again on February 10, 2022. On February 11, 2022, the parties agree that Mr. Duarte called in sick to work. Mr. Duarte says he travelled to Ottawa for the Freedom Convoy protest that day. He had booked off February 14, 2022, as a vacation day.
[18] Mr. Duarte says that prior to leaving for Ottawa, his manager informed him that they would be monitoring his social media accounts. His manager denies making this comment.
[19] Mr. Duarte states that when he returned home from Ottawa on February 14, 2022, he tested positive for COVID-19. At the time, he says that public health guidance called for two weeks of isolation for a positive infection. He states that he informed his supervisor and stayed home sick from work. However, Mr. Duarte states that the City continued to request return-to-work paperwork and medical notes related to his back injury, which was no longer the reason for his absence. Mr. Duarte says he refused to provide a medical note related to his COVID-19 infection, because it went against public health guidance at the time as such medical notes created a strain on the health care system and risked spreading infection to the public.
[20] The City says that it was aware that Mr. Duarte reported having COVID-19 upon his return from Ottawa. However, because Mr. Duarte had not yet provided medical forms confirming that he was fit to return to work after his back injury, they reminded him to do so. The City says it had concerns about the tone of Mr. Durte’s emails to the DHW Specialist regarding this issue. The City says it did not request a medical note related to COVID-19.
[21] According to the City, Mr. Duarte returned to work on February 21, 2022, without providing medical clearance related to his back. After multiple conversations between Mr. Duarte and the DHW Specialist, Mr. Duarte provided a letter from his doctor indicating that he was cleared to return to work effective February 5, 2022. The City permitted Mr. Duarte to return to work following receipt of that letter.
[22] On March 7, 2022, Mr. Duarte attended an investigation meeting with his manager, the DHW Specialist, other Human Resources employees, and a Union representative. The City says the meeting was held to address Mr. Duarte’s back pain and what they describe as inappropriate emails Mr. Duarte sent to the DHW Specialist regarding his clearance to return to work in February. The City says his manager communicated expectations about respectful behaviour to Mr. Duarte.
[23] In contrast, Mr. Duarte says that during the March 7 meeting City staff in attendance asked him about his activities in Ottawa. He further says that City staff in attendance questioned the legitimacy of his back injury and advised that his prolonged absence was not “good optics”. The City denies this.
[24] The City says it supports various types of training for employees, subject to eligibility and approval. On August 4, 2022, Mr. Duarte requested approval from the City for funding for a Supervisor Skills Course at the British Columbia Institute of Technology [ BCIT ]. The City denied his request.
III ADDING NEW ALLEGATIONS TO COMPLAINT
[25] As a preliminary matter, the City argues that Mr. Duarte has improperly added new allegations in his response to the application to dismiss. Specifically, the City says that Mr. Duarte has raised the following new allegations:
a. He participated in an Independent Medical Evaluation in 2022, which recommended an ergonomic chair for his back. However, he alleges that the City did not provide the ergonomic chair until 2024.
b. He received a serious medical diagnosis unrelated to his back injury in October 2022 and went on medical leave. He alleges that the City unreasonably delayed his return to work following his doctor providing medical clearance, which caused financial hardship and added stress for his family. He says he eventually returned to work in November 2023.
[26] The City says that these allegations do not relate to the allegations of discrimination based on political belief. They say these are new allegations that are alleged to have occurred after the filing of the complaint. The City says it would be unfair for the Tribunal to consider these new allegations as it would create a “moving target” for the City. I agree.
[27] A complainant who wants to amend their complaint during an outstanding application to dismiss must apply to do so: Tribunal Rules of Practice and Procedure , Rule 24(4)(b). The purpose of this rule is to ensure that a respondent who files an application to dismiss a complaint does not face a moving target: Pausch v. School District No. 34 and othe rs, 2008 BCHRT 154 at paras. 28-29. Respondents are entitled to know the allegations against them to assess whether, or on what basis, to bring their application to dismiss the complaint: Purdy v. Douglas College and others , 2016 BCHRT 117 at paras. 35-37.
[28] At the same time, the Tribunal’s complaint forms are not the equivalent of pleadings in a civil litigation process: White v. Nanaimo Daily News Group Inc. and Klaholz , 2004 BCHRT 350 at para. 23 . It is not uncommon, or a violation of the Rules, for a complainant to add new particulars of their complaint in response to an application to dismiss. The distinction between particulars and new allegations was set out in Powell v. Morton , 2005 BCHRT 282 at para. 20 :
… I must consider whether the amendment contains, on the one hand, further details of the facts on which the complainant intends to rely, or whether, on the other, it constitutes an expansion of the allegations made against the respondents. If the former, it will constitute particulars; if the latter, an amendment. This determination is not to be made in a narrow or technical way, but in a manner which will ensure that the parties are accorded procedural fairness, and that particulars are not used to expand a complaint beyond what can reasonably be said to have been alleged in it. Another way of looking at the questions is to ask whether the materials in issue come within the scope of the complaint filed with the Tribunal, or whether they seek to expand the scope of the complaint.
[29] The Tribunal may allow an amendment under Rule 24(4)(b) if it would be procedurally fair to do so, and further the purposes of the Code: Hawknes v. Vancouver Public Library (No. 2), 2017 BCHRT 250 at para. 86. However, I find that it would not be appropriate to do so in this case.
[30] The allegations raised in Mr. Duarte’s response are new and are not of the same character as the allegations in the complaint. While the complaint alleges adverse treatment on the basis on Mr. Duarte’s political beliefs, the new allegations appear to be disability related. Specifically, Mr. Duarte appears to be alleging that the City failed to accommodate his back injury in a timely manner, and would not let him work due to his medical diagnosis. While these allegations, if proven, could support a nexus to his disabilities, he does not explain how these allegations could be related to his political beliefs.
[31] I accept that the allegations in question could not have been included in the initial complaint because they are alleged to have occurred after it was filed. I also acknowledge that Mr. Duarte has health issues and is unrepresented in this process. However, Mr. Duarte has not applied to amend his complaint, nor has he provided an explanation for why he could not have amended his complaint earlier. It would be unfair to require the City to respond to these allegations now, after an application to dismiss has been filed. Mr. Duarte has not provided any explanation for why these new allegations should be accepted at this late stage of proceedings. Accordingly, I do not allow the amendment in these circumstances.
IV DECISION
[32] The City applies to dismiss Mr. Duarte’s complaint on the basis that it has no reasonable prospect of success: Code , s. 27(1)(c) The onus is on the City to establish the basis for dismissal.
[33] 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.
[34] 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 .
[35] 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 at para. 27 .
[36] To prove his complaint at a hearing, Mr. Duarte will have to prove that he has a characteristic protected by the Code , he was adversely impacted in employment, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33. If he did that, the burden would shift to the City to justify the impact as a bona fide occupational requirement. If the impact is justified, there is no discrimination.
[37] The City says Mr. Duarte has not presented information to support that protection based on political belief is invoked in this case because membership in a union or a position on the Union executive is not a political belief under the Code . The City further says that Mr. Duarte did not experience any adverse treatment because all the alleged acts by the City were based on established policies and procedures.
1. Has Mr. Duarte taken out of the realm of conjecture that he holds political beliefs, within the meaning of the Code?
[38] The Tribunal gives political belief a broad and purposive interpretation. Case law has established that one’s political beliefs are not confined to partisan political beliefs: Jamieson v. Victoria Native Friendship Centre , [1994] B.C.C.H.R.D. No. 42 at para. 13. However, what may constitute a political belief is not unlimited: Prokopetz and Talkkari v. Burnaby Firefighters’ Union and City of Burnaby , 2006 BCHRT 462 at para. 31. For example, views about matters such as business or human resources decisions an employer may make do not come within its ambit: Williams v. City of North Vancouver , 2004 BCHRT 441 at para. 56; Bratzer v. Victoria Police Department (No. 3) , 2016 BCHRT 50 at para. 267.
[39] The Tribunal has also held that political beliefs should be genuinely held, and not “a passing idea nor position taken for convenience or advantage in the circumstances in which the conflict arises.” To that end, political beliefs must be “broader than an individual’s own personal interests”: Pozsar v. City of Maple Ridge , 2018 BCHRT 107 at para. 34. At the same time, the political beliefs should be “core to a person’s concept of a system of social cooperation”: Pozsar at para. 34.
[40] In the complaint, Mr. Duarte has identified two types of political beliefs for which he says the City subjected him to adverse treatment.
[41] First, Mr. Duarte describes himself as “pro-union”. He says his political beliefs involve being Vice President of the Union and “making sure the collective agreement was followed.” This is the primary basis for his complaint.
[42] Second, Mr. Duarte has beliefs opposing mandatory vaccination policies. In his complaint, he says that a supervisor told him that management was “concerned” about his “political interests”, and he was “indirectly punished for attending events.” Mr. Duarte does not provide any further details in his complaint, nor does he make submissions on this application about how his political interests constitute political beliefs within the meaning of the Code . However, I find that he has provided additional particulars in his response to the application to dismiss. Specifically, Mr. Duarte alleges that he was disciplined for expressing his opposition to the Vaccination Policy both in the Facebook Post and by email to the City’s CAO. He alleges this discipline included denial of funding for a training opportunity. This allegation appears to have been included in Mr. Duarte’s original complaint, although he does not specify which training opportunity was denied, and there he only alleged that it was because of his Union activities. He maintains that his Union involvement was also a factor in the decision.
[43] Mr. Duarte further alleges that the City threatened to monitor his social media accounts while he was attending the 2022 Freedom Convoy in Ottawa, and was subsequently brought into a meeting where management questioned his activities on that trip.
[44] I am satisfied that these allegations fall within the scope of the original complaint. In reaching this conclusion, I have considered that Mr. Duarte is self represented, and the fact that his complaint appears in a somewhat “ragged form” should not prevent the Tribunal from considering potentially meritorious allegations: Lord v. Fraser Health Authority , 2021 BCSC 2176 at para. 38 and recently discussed by the Tribunal in PL v. BC Ministry of Children and Family Development and others , 2023 BCHRT 58 and Rush v. Fraser Health Authority (No. 2) , 2024 BCHRT 13.
[45] I am also satisfied that it is not procedurally unfair to the City for the Tribunal to consider these allegations in this application. Notably, the City appears to have understood Mr. Duarte’s reference to his “political interests”, as they have provided information and relevant evidence in their materials on this application which is responsive to these allegations. I also note that the City has not objected to Mr. Duarte’s allegations related to the Vaccination Policy or attendance at the Freedom Convoy as being beyond the scope of this complaint, or creating a moving target, although they specifically signalled out other allegations presented in his application response for that reason, as discussed above. Rather, the City addressed some of these allegations through further submissions and affidavit evidence in their reply. I am thereby satisfied that there is no fairness issue with the Tribunal considering these allegations without an application from Mr. Duarte to amend the complaint.
[46] I address each of these alleged political beliefs separately.
a. Does Mr. Duarte have no reasonable prospect of establishing that his pro-Union views are a political belief under the Code ?
[47] Simply being a member of a union is not, in itself, a protected characteristic under the Code, and cannot form the basis for a complaint in the area of employment. However, I accept that there are circumstances where an individual’s pro-union beliefs could constitute political beliefs. Indeed, the Tribunal has held that an individual’s beliefs about unions, and the appropriate scope of their power, authority and actions, is inherently political, in the broad sense of the word: Manning v. Sooke Teachers’ Association and others , 2004 BCHRT 281 at para. 16.
[48] In Croxall v. West Fraser Timber , 2009 BCHRT 436 at paras. 22-23, the Tribunal held that, given the right factual circumstances, political belief could extend to a belief in trade unionism. However, such a determination requires a factual foundation, “such as the nature of the belief at stake, and whether the belief is core to a person’s concept of a system of social cooperation”. The determination would also require legal argument, “including the appropriate application of the rules of legal interpretation and consideration of the historical context of the legislative drafting.” In that case, the Tribunal held that the complainant had not provided the necessary information to provide a foundation for his complaint.
[49] In Pozsar , the Tribunal agreed with the requirement for a factual foundation to support a finding of a political belief. The Tribunal added that the factual foundation “should include a reasonable level of cogency and cohesion […] to ensure there is sufficient tangibility to the belief” (at para. 34).
[50] Here, Mr. Duarte has only provided vague statements about his support for Union activities and upholding the collective agreement. He has not provided any information to explain the nature of his beliefs or how his involvement with the Union was political in nature in these circumstances. I am not persuaded that there is a sufficient tangibility to his beliefs, as he has not clearly articulated what it is about the Union’s activities or the collective agreement that he believes in or provided any basis for these beliefs. Without additional information from Mr. Duarte, I am unable to assess whether his beliefs related to the Union are genuinely held, or a passing position taken for convenience in these circumstances. Similarly, I cannot discern if his pro-Union beliefs are about his own personal interests, or something broader than himself.
[51] On an application to dismiss, the Tribunal only considers the information before it and not what evidence might be given at a hearing: University of British Columbia v. Chan , 2013 BCSC 942 at para. 77. While Mr. Duarte may sincerely hold political beliefs that are related to his Union involvement, it was incumbent on him to put that evidence forward on this application. He has not done so. On the very limited materials before me, I am not persuaded that his allegations of discrimination based on his pro-union beliefs could succeed, and I dismiss this element of his complaint.
[52] I pause here to note that Mr. Duarte provided three cases which he states stand for the position that this Tribunal has previously recognized union affiliation as a basis for protection against discrimination. Although he provides the names and years of these cases, he does not provide citations. The City says it tried to review these decisions but could not find them. I also could not find the cases in my own searches. The City offers the conclusion that the cases either do not exist or were fabricated by a generative artificial intelligence [ AI ] application. The City points to one example cited by Mr. Duarte: “ R v. C.P. Rail (1994).” The City says the “R” suggests a criminal case, and Canada Pacific Railway is a federally-regulated organization. Further, the City says the Tribunal does not have authority over criminal or federal matters, and the Canadian Human Rights Act , which does apply to federal organizations, does not include political belief as a protected characteristic. As a result, the City says it is unlikely that any such case was decided by either this Tribunal or the Canadian Human Rights Tribunal.
[53] While it is not necessary for me to determine if Mr. Duarte intended to mislead the Tribunal, I cannot rely on these “authorities” he cites in his submission. At the very least, Mr. Duarte has not followed the Tribunal’s Practice Direction for Legal Authorities, which requires parties, if possible, to provide a neutral citation so other participants can access a copy of the authority without cost. Still, I am compelled to issue a caution to parties who engage the assistance of generative AI technology while preparing submissions to the Tribunal, in case that is what occurred here. AI tools may have benefits. However, such applications have been known to create information, including case law, which is not derived from real or legitimate sources. It is therefore incumbent on those using AI tools to critically assess the information that it produces, including verifying the case citations for accuracy using legitimate sources. Failure to do so can have serious consequences. For lawyers, such errors have led to disciplinary action by the Law Society: see for example, Zhang v Chen , 2024 BCSC 285. Deliberate attempts to mislead the Tribunal, or even careless submission of fabricated information, could also form the basis for an award of costs under s. 37(4) of the Code . The integrity of the Tribunal’s process, and the justice system more broadly, requires parties to exercise diligence in ensuring that their engagement with artificial intelligence does not supersede their own judgement and credibility.
b. Does Mr. Duarte have no reasonable prospect of establishing that his beliefs opposing mandatory vaccination policies are political beliefs under the Code ?
[54] The City does not address whether Mr. Duarte has no reasonable prospect of establishing that his beliefs opposing mandatory vaccination policies are political beliefs under the Code .
[55] Mr. Duarte simply describes his beliefs as opposition to the City’s COVID-19 vaccination policy, but he does not explain how these beliefs are political in nature. Nevertheless, I am satisfied based on the record before me that this allegation has been taken out of the realm of conjecture.
[56] In particular, the Facebook Post, provided by the City on this application, contains a description of Mr. Duarte’s views about mandatory vaccination policies generally, and the City’s Vaccination Policy in particular:
[…] I am very disheartened today as City Council just announced December 20 th the date their Vaccination policy comes into effect. The City of Richmond has no obligation to come out with this policy, they are pushing a political agenda that aligns with the Federal/Provincial Mandates. They are incapable of making decisions themselves , without serious, thought and discussion with their staff, they tend to follow what other leaders do locally/globally, like Metro Vancouver who announced their policy last week. […]
These mandates are becoming punitive, and have no place in the workforce. Dr. Tam, Canadas Chief Public Health Officer, has previously stated there is no data that passports actually work. Richmond Council also acknowledged that just because your vaccinated doesn’t make them prevent transmission. Most senior staff have been working from home since the start of this pandemic, yet they are only concerned about health and safety of staff now that it benefits their political needs. I speak as an employee of this organization, and in my personal opinion this Is distasteful and I think it’s pathetic they couldn’t even spend more than 60 seconds discussing this in tonight agenda. […]
I’m at a loss for words, the leadership displayed in this community is pathetic. For a corporation that’s mission statement, and core values are “PELTI”, People, Excellence, Leadership, Team, Innovation, they lack all of those. Leadership is built from the ground up, and they display none of these characteristics. […]
I speak on my own behalf, but I assume other employee share the same concerns/ sentiments. The vaccine mandate was used as political leverage during the federal election by the liberals. They called a 600million dollar election that they didn’t have to which funds could have been allocated to so many useful things, like healthcare […]
They are playing politics with people’s lives. This has to end right now, this is no joke, your friends, Neighbours, co-workers, and loved ones need your help. This affects everyone. I urge everyone, this is more than choosing sides. I am fully Vaccinated, but I made that choice for myself. Be Respectful to peoples whose health is compromised as we want, and need to ensure their safety while maintaining out medical autonomy. EVERYONE, is in this together, but very urgent attention is needed to protect the wellbeing of everyone’s livelihood.
[As written]
[57] In reaching the conclusion that Mr. Duarte’s beliefs opposing mandatory vaccination policies could amount to a political belief, I have considered the following decisions from the Tribunal.
[58] In the Tribunal’s screening decision Complainant obo Class of Persons v. John Horgan [ Horgan ], 2021 BCHRT 120 at para. 11, the Tribunal accepted that “a genuinely held belief opposing government rules regarding vaccination could be a political belief within in the meaning of the Code .” In this case, I accept that Mr. Duarte is reasonably certain to prove that his beliefs about vaccine mandates are genuinely held, in light of the undisputed evidence about his statements and actions related to this issue.
[59] In Bratzer v. Victoria Police Department (No. 3) , 2016 BCHRT 50 at para. 271, the Tribunal described political belief as encompassing “public discourse on matters of public issue which involve or would require action at a governmental level, be it the federal government, as with drug laws, or a municipal council with policing issues.” The Tribunal in Bratzer cited B.C.T.F. v. British Columbia Public School Employers’ Assn. , 2009 BCCA 39, where the Court of Appeal accepted that the unions’ strikes were political in nature because they were “directed at government action” and aimed to exert pressure on the government (at paras. 2 and 37).
[60] In Fraser v. BC Ministry of Forests, Lands and Natural Resource Operations (No. 4) , 2019 BCHRT 140 at para. 59, the Tribunal concluded that to be a political belief protected by the Code , “It should involve public discourse on matters of public interest which involves or would require action at a governmental level. Beliefs based on regulation of one’s profession will usually be found to fall within the definition of political belief.”
[61] Here, there is evidence before me from which the Tribunal could conclude that Mr. Duarte’s concerns engage public discourse on the actions and decisions of a municipal government on a matter of public interest and social policy: the City’s Vaccination Policy, enacted by Richmond City Council. More broadly, his Facebook Post refers to the decisions and policies of the provincial and federal government with respect to vaccination mandates, which at the time were a highly divisive issue in Canada. On the evidence before me, it would be open to the Tribunal to conclude that the statements appear intended to influence government action and public opinion on these issues, as he calls for others to adopt his concerns. The record before me also shows that in addition to the Facebook Post, Mr. Duarte emailed the City’s CAO to further advance his concerns regarding the Vaccination Policy, and the CAO included the City Mayor in his response. This evidence could support a conclusion that Mr. Duarte’s views are political in nature, consistent with the Tribunal’s findings in Bratzer and Fraser .
[62] Finally, I accept that the information before me establishes beyond conjecture that Mr. Duarte’s beliefs about vaccination policies were expressed for reasons beyond personal benefit: Pozsar at para. 34. He specifically expresses concern about the livelihoods of other employees who did not comply with the policy, even though he himself had complied.
[63] Having accepted that Mr. Duarte may have a political belief within the meaning of the Code , I turn now to whether he has provided information to take out of conjecture that he experienced adverse treatment in employment and his political belief was a factor in that treatment.
2. Has Mr. Duarte taken out of the realm of conjecture his allegation that he experienced adverse treatment in employment, and if so, that his political beliefs were a factor in that treatment?
[64] Mr. Duarte alleges City management was “concerned” about his political interests, which I understand to be his views about vaccination policies, and he was “indirectly punished” for attending events. Specifically, he says he was disciplined because of his participation in the Freedom Convoy Protest in Ottawa. Mr. Duarte has provided particulars detailing the following three allegations:
a. On March 7, 2022, upon return from Ottawa, he attended a meeting with senior staff in which he was asked about his activities in Ottawa. He was also questioned about the legitimacy of his back injury and advised that his “prolong [ sic ] absence was not good optics.”
b. The City denied his request for training funding for a supervisory skills course at BCIT, in part because he voiced his opposition to the Vaccination Policy.
c. Prior to leaving for Ottawa, his manager told him that management was aware of his plans to attend the Freedom Convoy, and they would be monitoring his social media accounts.
[65] These are the only remaining allegations in the complaint, and the only allegations where Mr. Duarte has specified a connection to his political beliefs about vaccination policies. I have dismissed all other allegations in the complaint as the information provided indicates that they were related to Mr. Duarte’s pro-union beliefs alone.
a. Meeting to question activities in Ottawa
[66] The City agrees that it held an investigation meeting with Mr. Duarte on March 7, 2022. However, the City denies that the purpose of the meeting was to question the legitimacy of Mr. Duarte’s back injury or to question him about his activities in Ottawa. Rather, they say the meeting was to discuss the tone of his email communications to the DHW Specialist and to clarify that the required medical clearance during the February 2022 period was related to his back injury, not COVID-19. The City says Mr. Duarte’s trip to Ottawa was only discussed in the context of concern that he had flown while he was off work sick with COVID-19. This account conflicts with Mr. Duarte’s version of events.
[67] 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 . The Tribunal must consider whether credibility can be resolved based on corroborative affidavit and contemporaneous documentary evidence: Smyth v. Loblaw and another , 2017 BCHRT 73 at paras. 41-42.
[68] In this case, the City has provided contemporaneous evidence in support of its version of the investigation meeting. Specifically, it has provided minutes from the meeting, containing the questions that would be asked of Mr. Duarte, and typed notes of what was said during the meeting. These notes indicate that the City asked Mr. Duarte about traveling and posting photos on social media while he claimed to be sick. There is also reference to a comment about the “optics” of Mr. Duarte getting on a plane the same day he called in sick to work. However, there is nothing in these materials to suggest that Mr. Duarte was treated adversely, or that his activities in Ottawa were discussed in this meeting. Based on this evidence, and in the absence of any further information from Mr. Duarte to explain the adverse treatment he experienced or how it was connected to his political beliefs, I find there is no reasonable prospect of success with respect to this allegation.
b. Denial of funding for supervisory skills training
[69] I accept that Mr. Duarte is reasonably certain to prove that he experienced an adverse impact when his application for professional training was denied by the City. However, I am not persuaded that Mr. Duarte has taken out of the realm of conjecture that his political beliefs were a factor in that decision. I emphasise that Mr. Duarte has not provided any information to explain the nexus between the City’s denial of funding and his political beliefs about vaccination policies, but I have nevertheless thoroughly reviewed the record with a view of whether there is any evidence before me that could support his allegation. I find that there is not.
[70] The City has provided various reasons for denying Mr. Duarte’s request for supervisory skills training in August 2022. First, the City says that denying Mr. Duarte’s request for training was a reasonable decision based on established City policies because he did not require supervisory skills in his role with the City. This is supported by the City’s Policy Manual for Training and Development Procedures [ Training Policy ], which states: “Any course request must be related to an identifiable career path at the City of Richmond. The City will not fund courses that have no immediate applicability, and/or no development plan for applying the learning back on the job.” The City’s evidence is that another employee within the Stores team had been identified as an individual who would benefit from supervisory skills training because that employee was already performing supervisory duties when needed.
[71] However, I note that the reasons related to Mr. Duarte’s role or duties were not referenced in any of the contemporaneous email communications provided by the City regarding the denial of funding. Rather, an internal email from Mr. Duarte’s manager to his supervisor, which summarizes the reasons for denying this request [ Internal Email ] suggests that Mr. Duarte could be eligible for the same training in the future, without any qualification about a change in his position or duties:
I advised he needs to concentrate on his job, not get embroiled in issues relating to the Union and demonstrate that he can exercise good judgment and that we will consider a similar training request at a future date.
[72] I am therefore not persuaded on the evidence before me that the City is reasonably certain to establish that the denial of Mr. Duarte’s requested training was based on the requirements of his job.
[73] Second, the City says that the training request was denied because there were issues with Mr. Duarte not meeting his job expectations; specifically, the City had concerns about his judgement and communication style. The City acknowledges that these concerns included the Facebook Post and his email to the CAO about the Vaccination Policy.
[74] The City says that staff who are not meeting the current expectations of their job need approval for external training funding from their supervisor, manager, and director. This is supported by the City’s Training Policy, which states: “Training is an earned privilege and not a right. Approval to attend training will be based on a combination of staff performance review and attached skill development/career development plan.”
[75] The evidence before me regarding the City’s decision to deny training supports the City’s assertion that it was concerned about Mr. Duarte’s judgment and communication style, rather than any of Mr. Duarte’s political beliefs. Specially, the City has consistently expressed concern that the Facebook Post could be damaging to the City’s reputation, which is a violation of the City’s Social Media Policy for employees. For example, the Internal Email summarizes the reason provided to Mr. Duarte by his manager for denying his request:
I cited the situations that occurred last year i.e. his inappropriate emails to the CAO, Mayor and Council and his Facebook posts. The tone of emails sent to our HR staff regarding the absences caused by his back injury were also disrespectful. I advised him that he exercised poor judgement on those occasions and that his actions caused embarrassment to both you, me and the reputation of the team.
[76] An email provided by the City from Human Resources to Mr. Duarte in follow-up to the meeting where the Facebook Post was first discussed says: “Your Facebook post was in violation of the Administrative Directive and you were advised that when a City employee uses social media on a personal basis, they must exercise due care in preserving and promoting the City’s reputation.” The City says that no notes were taken during the meeting itself, so the only record of the conversation that took place from Human Resources is the statement: “I recall that during the meeting we discussed the City’s Social Media directive, and our expectations of Mr. Duarte’s communication moving forward.” Mr. Duarte has not provided any information regarding his recollection of what was discussed during this meeting.
[77] A plain reading of the Facebook Post supports the City’s concerns that it contained comments that could harm the reputation of the City. For example, Mr. Duarte accuses the City of being “incapable of making decisions themselves”, and says the “leadership displayed in this community is pathetic”.
[78] Finally, emails between Mr. Duarte and his manager, following the denial of his supervisory skills training, emphasise the City’s expectation that Mr. Duarte work on his communication skills. Mr. Duarte’s email, dated August 10, 2022, states in part:
Is there anything you would like me to improve on, besides Your comments about my previous experience on my unions executive and my communication with senior management being poor being a deciding factor in your decision to deny me training is there any thing else you would like me to work on for the future. […] [As written]
[79] The manager’s reply states:
I would suggest focusing on your written communication skills in particular (including spelling and grammar), consider the tone of your communications and your audience and be especially careful what you post on social media. We all represent the department and the organization so it is important we act professionally and exercise good judgement at all times. In the meantime I would support an application to register for a respectful workplace course […]
[80] Accordingly, I find there is evidence before me from which the Tribunal could reasonably conclude that the City was concerned about Mr. Duarte poor judgement and poor communication, including when he posted comments on social media that could be damaging to the reputation the City. In contrast, Mr. Duarte has not provided any information to take out of the realm of conjecture that the City’s concern about the Facebook Post was because of his political beliefs about vaccination policies. As a result, I find that this allegation has no reasonable prospect of success.
c. Warning about monitoring his social media accounts
[81] The City denies that Mr. Duarte’s manager told him that management would be monitoring his social media accounts during his trip to Ottawa. The City says that Mr. Duarte and his manager did not have day-to-day contact, and Mr. Duarte communicated with his supervisor, not his manager, directly about vacation requests and sick time. They say Mr. Duarte’s manager was not aware of his Ottawa plans until after he had returned and was off sick with COVID-19.
[82] Mr. Duarte does not specify when his manager allegedly made this comment. The City notes that Mr. Duarte was absent from work due to his back injury from January 31, 2022 to around February 7, 2022, and then off again on February 11, 2022. These absences raise the question of when this alleged conversation could have taken place.
[83] The City acknowledges that Mr. Duarte’s manager had spoken to him at various points about his social media usage, specifically in reference to the Facebook Post. The evidence is that the manager says he told Mr. Duarte that the Facebook Post was a “poor decision on his part” and that he had “exercised poor judgement” on those occasions. There is also evidence that, following the Facebook Post, City management met with Mr. Duarte to discuss the City’s Social Media directive. I understand the City’s submission to imply, and this evidence to support, that Mr. Duarte was mistaken about the content, and possibly the timing, of the alleged statement his manager made to him about the City monitoring his social media use.
[84] Based on this information, I find there is a contradiction in the evidence before me about whether Mr. Duarte’s manager threatened to monitor his social media during his trip to Ottawa, that cannot be resolved on this application. However, upon review of the record, I am not persuaded that Mr. Duarte has taken out of the realm of conjecture that, even if he were to prove that someone from management said they would be monitoring his social media, the comment was connected to his political beliefs.
[85] As discussed above, the City’s evidence supports that any concern they expressed to Mr. Duarte about his social media use was instead about his adherence to the City’s Social Media directive and protecting the reputation of the City based on his prior conduct. While Mr. Duarte’s trip to Ottawa may have been related to his political beliefs, he has not said anything about how the City threatening to monitor his social media could be connected to any of his political beliefs. He has provided so little detail about the circumstances of this allegation that I cannot draw any reasonable inference in his favour. In the absence of any explanation or evidentiary foundation, I am left to speculate about if and why the City would want to monitor Mr. Duarte’s social media. This would not be appropriate on an application to dismiss, and in any event would not be sufficient to take the issue of nexus out of the realm of conjecture. I find this allegation has no reasonable prospect of success.
[86] Consequently, I am not persuaded that Mr. Duarte has taken out of the realm of conjecture that the City was concerned about his political interests around vaccination policies, or that he was indirectly punished for attending events, including the Freedom Convoy.
V CONCLUSION
[87] Mr. Duarte has not provided information to take out of conjecture that his pro-Union activities or views were based on political beliefs. I accept that Mr. Duarte’s opposition to vaccination policies could be political beliefs under the Code ; however, I find there is no reasonable prospect that Mr. Duarte can establish that these political beliefs were a factor in any adverse treatment he may have experienced.
[88] The complaint is dismissed in its entirety.
Theressa Etmanski
Tribunal Member