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Spielberger v. Sofo Kitchens Ltd., 2025 BCHRT 1

Date Issued: January 7, 2025
Files: CS-004469

Indexed as: Spielberger v. Sofo Kitchens Ltd., 2025 BCHRT 1

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:

Violeta Spielberger

COMPLAINANT

AND:

Sofo Kitchens Ltd.

RESPONDENT

REASONS FOR DECISION

Tribunal Member: Sonya Pighin

Counsel for the Complainant David Brown

Counsel for the Respondent: Negrin Alavi

Date of Hearing: February 27 – 29, 2024 and March 14, 2024

Location of Hearing: Videoconference (Microsoft Teams)

TABLE OF CONTENTS

I INTRODUCTION

[1] Violeta Spielberger is a trades person who worked for Sofo Kitchens Ltd. from July 2017 to sometime in the summer of 2018, and from November 2018 to June 2020.

[2] Sofo is a company that designs, manufactures, and installs base kitchen cabinets and custom finished cabinets. It operates a shop with large machinery in it, including a CNC machine that cuts cabinet pieces, and a Tape-H machine that I understand wraps cabinet pieces to protect them during transport. As I understand it, the shop also has a sanding area, a painting area, and an area where staff assemble the cabinets and prepare them for installation. During Ms. Spielberger’s employment with Sofo, she worked in all areas of the shop.

[3] On February 16, 2021, Ms. Spielberger filed a complaint with the Tribunal alleging that Sofo discriminated against her, regarding her employment and based on her sex, contrary to s. 13 of Human Rights Code . In the complaint, she alleges that Mario Vulcano, Ciprian Chiorlise and Nico Hritcu, each of whom she describes as her co-workers, Matthew Lindl, who she describes as her foreman, and Flavious Porime, who she describes as her supervisor [collectively, her Work Colleagues ] treated her badly at work “because she is a woman.” She says her Work Colleagues bullied and harassed her, called her “stupid” and “idiot,” refused to help her with tasks and delayed helping her with tasks, yelled at her, demanded that she stop using the CNC machine in the middle of a task so they could use it, told her that she was overpaid “because even a seventeen year old can do the same job,” blamed her for injuries they sustained, told her she is “not good enough” at her job, and refused to let her use the sanding machine to complete a task then required that she do it by hand.

[4] Ms. Spielberger further alleges that her Work Colleagues’ collective bad treatment of her created a hostile work environment that resulted in her not being able to fulfill her duties at work, and that Sofo terminated her employment because she could not fulfill her duties at work.

[5] Last, Ms. Spielberger alleges that Sofo decreased her wages during her employment, which was part of its pattern of sex-discrimination.

[6] Sofo filed a response to the complaint, in which it denies all of Ms. Spielberger’s allegations. Sofo says that Ms. Spielberger’s Work Colleagues did not treat her badly at work, and that her sex was not a factor in either its reduction of her wages or its termination of her employment. It gives non-discriminatory reasons for both.

[7] On February 27 to 29 and March 14, 2024, I conducted a hearing of the complaint, where I received the parties’ evidence via Microsoft Teams. Ms. Spielberger appeared as a witness on her own behalf. Three people appeared as witnesses for Sofo: Ms. Monika Soos, who is a co-owner of Sofo, Mr. Chiorlise, and Mr. Lindl.

[8] On May 8 and 28, 2024, the parties provided their written closing submissions to the Tribunal. I have considered all the parties’ evidence and submissions in this decision. However, I only refer to those parts that are necessary to explain it.

II PRELIMINARY MATTERS

A. New details and allegations made at the hearing

[9] Next, I wish to address some preliminary matters regarding the scope of the complaint, which has shifted over time. First, at the hearing, Ms. Spielberger’s allegations about her Work Colleagues treatment of her shifted. In the complaint, she did not allege that her Work Colleagues made any comments toward her, or in the work environment, about her being a woman. At the hearing, she provided evidence and made new allegations about:

a. Mr. Chiorlise telling her that if she choses a position as a man, she should work as a man, and yelling to Mr. Porime that Ms. Spielberger is in love with Mr. Porime;

b. Mr. Hritcu calling her a whore, which I will refer to as the W-slur; and

c. Mr. Porime saying to her “what is you business here, you’re a woman,” and “you’re a woman, what do you understand?”

[10] She also provided evidence and made new allegations about:

a. Mr. Chirolise pretending not to have work materials that she knew he had piled up on a cart earlier in the day, hiding her glasses on her, throwing balled up tape at her, telling her he doesn’t want to eat in her presence, eating lunch at a different time than her, and changing the settings on the CNC machine, which made it so she could not use it for projects she was working on; and

b. Her reporting her Work Colleagues bad treatment of her to Sofo, and Sofo not responding reasonably and appropriately to those reports.

[11] I recognise that Ms. Spielberger did not comply with the Tribunal Rules of Practice and Procedure regarding amendments, to add new details and new allegations to the complaint: See Rules 24(1), (2), (3) and (4)(c). Regardless, I vary the Tribunal’s requirements for amendments in these circumstances, and I accept Ms. Spielberger’s complaint as including these new details and allegations: Tribunal Rules at Rule 2(2). First, I find it appropriate to treat the complaint as including Ms. Spielberger’s allegations that her Work Colleagues made the above-alleged comments toward her, and that Mr. Chiorlise treated her badly in the ways she alleges he did, because those allegations are based on the same grounds and the same area as the original complaint she filed. Furthermore, Ms. Spielberger named Mr. Chirolise, Mr. Hritcu, and Mr. Porime in the complaint as persons who treated her in a discriminatory manner. Sofo had notice that Mr. Chirolise, Mr. Hritcu, and Mr. Porime’s conduct toward Ms. Spielberger was at issue. Sofo has also not raised issues regarding any unfairness it will experience because of me treating the complaint in this manner.

[12] I also find it appropriate to treat the complaint as including Ms. Spielberger’s new allegation about reporting her Work Colleagues bad treatment of her to Sofo, and Sofo not responding reasonably and appropriately to those reports because, at the hearing, both parties treated the complaint as including this allegation.

B. Changes to part of Ms. Spielberger’s complaint at the hearing

[13] Ms. Spielberger’s allegation about why Sofo terminated her employment also shifted at the hearing. Ms. Spielberger provided no evidence, and made no arguments, about Sofo terminating her employment because she could not fulfill her duties at work due to it being a hostile work environment. Instead, she argued that:

a. Mr. Chiorlise, Mr. Hritcu, and Mr. Porime’s discriminatory comments and conduct toward her directly contributed to Sofo’s eventual termination of her employment; and

b. Sofo’s refusal to believe or take seriously her reported allegations of harassment were factors in its eventual termination of her employment.

[14] Moving forward, I treat Ms. Spielberger’s new arguments as her allegations about why Sofo terminated her employment.

C. Credibility and reliability

[15] Next, I explain how I will address issues of credibility. Credibility has to do with the truthfulness of a witness’s testimony. Reliability has to do with the accuracy of that testimony, including the witness’s ability to accurately observe, recall, and recount what happened. Credibility addresses whether a witness is telling the truth, and reliability is about an honest mistake: R. v. J.M. , 2021 BCCA 263 [ J.M. ] at para. 53.

[16] Where I have made decisions about a witness’s credibility, I have started from the presumption that the witness is telling the truth: Hardychuk v. Johnstone , 2012 BCSC 1359 at para. 10. I have then considered whether the person’s testimony:

a. is internally consistent, including whether they change it in cross-examination and whether they resist influences put to them in cross-examination to modify their recollections of events: Bradshaw at para. 186; J.M. at para. 53.

b. harmonizes with independent or external evidence that I accept, such as a corroborating witness’s evidence, documentary, or other evidence: Bradshaw at para. 186; J.M. at para. 53.

c. seems unreasonable, impossible, or unlikely : Bradshaw at para. 186; J.M. at para. 53.

d. is in “balance,” meaning they had an apparent willingness to be fair and forthright considering any potential interests, motives, or biases : Bradshaw v. Stenner , 2010 BCSC 1398 [ Bradshaw ] at para. 186; Van Hartevelt v. Grewal , 2012 BCSC 658 [ Van Hartevelt ] at para. 31; J.M. at para. 53.

e. is overall plausible, meaning it fits into the general picture revealed by all the evidence, or it is “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognise as reasonable in that place and in those conditions: Faryna v. Chorny , [1951] B.C.J. No. 152 at para. 11; Bradshaw at para. 186; Van Hartevelt at paras. 33 and 34.

f. the existence of prior inconsistent statements or previous occasions on which the witness has been untruthful: R. v. S.A.S., 2021 BCPC 69 [ S.A.S. ] at para. 25.

[17] I will also consider the attitude and demeanour of the witness. Are they evasive or forthcoming, belligerent, co-operative, defensive or neutral? In assessing demeanour, I will consider all possible explanations for the witness’ attitude, and be sensitive to individual and cultural factors, which may affect demeanour. Because of the danger of misinterpreting demeanour, I will not rely on this factor alone: S.A.S. at para. 25.

D. Liability of Sofo Kitchens Ltd.

[18] I also wish to clarify Sofo’s liability for its employee’s conduct. In each instance where a Sofo employee has discriminated against Ms. Spielberger, Sofo is responsible for that discrimination because any act done by a Sofo employee within the scope of their authority as an employee of Sofo, is deemed to be an act done by Sofo: Code , at s.44(2).

III PROVING AND DEFENDING AGAINST DISCRIMINATION UNDER S. 13 OF THE CODE

[19] Next, I explain what each party must prove to succeed in this case. Ms. Spielberger must prove the following three things to establish that Sofo discriminated against her contrary s.13 of the Code :

a. She is a person with a protected characteristic under s.13 of the Code , which includes sex;

b. She experienced an adverse – or negative – impact regarding her employment, the terms and conditions of her employment, or Sofo’s termination of her employment; and

c. Her sex was a factor in those adverse -negative – impacts that she experienced: Code at s.13; Moore v. BC (Education), 2012 SCC 61 [ Moore ] at para 33.

[20] There are two ways that Sofo can succeed in proving it did not discriminate against Ms. Spielberger. First, it can convince the Tribunal that Ms. Spielberger has failed to establish one of those matters set out above. Sofo has both provided evidence and made arguments to this effect in its closing submissions.

[21] Alternatively, if Ms. Spielberger proves each of those matters set out above, Sofo may prove that its actions did not breach the Code because they were based on a bona fide occupational requirement: Code , at s. 13(4); British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) , [1996] 3 S.C.R. 868 at para 20. Sofo has not argued that its actions were based on a bona fide occupational requirement. So, I do not set out the legal requirements for proving such a requirement.

[22] Next, I move on to my decision.

IV DECISION

[23] Ms. Spielberger has proven that Sofo discriminated against her, contrary to s. 13 of the Code , when Mr. Chiorlise and Mr. Porime treated her badly at work. Their bad treatment of her creating an overall hostile work environment for her, in addition to other adverse impacts. The sex-based nature of three of Mr. Chiorlise’s comments toward Ms. Spielberger connect her sex to the adverse impacts she experienced and were contributing factors to her overall hostile work environment.

[24] Ms. Spielberger has not proven that Sofo discriminated against her, contrary to s.13 of the Code :

a. When Mr. Vulcano, Mr. Hritcu, or Mr. Lindl treated her badly at work. She has not established that either of them treated her badly.

b. By failing to provide her with a discrimination-free workplace regarding Mr. Chiorlise and Mr. Porime’s bad conduct toward her. Sofo took reasonable steps to ensure that employees who experience bullying and harassment at work were aware of how to report it to Sofo. Ms. Spielberger did not fulfill her duty to report Mr. Chiorlise or Mr. Porime’s conduct to Sofo, which would have triggered Sofo to take further action.

c. When Sofo reduced her wages. Ms. Spielberger has not proven that Sofo’s reduction of her wages was part of a pattern of sex-based discrimination.

d. When Sofo terminated her employment. Ms. Spielberger has not proven that Sofo terminated her employment because the sex-based discrimination she experienced in the workplace left her unable to fulfill her duties.

[25] I now explain my reasons for this decision.

V HAS MS. SPIELBERGER PROVEN SHE HAS A PROTECTED CHARACTERISTIC UNDER SECTION 13 OF THE CODE ?

[26] The parties are not in dispute over whether Ms. Spielberger has proven that she has the protected characteristic of sex under s.13 of the Code , and I accept that she has proven this part of the complainant’s case. Ms. Spielberger provided testimony that she identifies as a woman. I treat her use of the term woman as a reference to herself as a person of the female sex, who also self-identifies as a woman. I take this approach because up until 2016, the Tribunal treated cases regarding gender-based discrimination as a type of sex-based discrimination: For example, see Dawson v. Vancouver Police Board (No. 2) , 2015 BCHRT 54. In 2016, the Legislature added gender identity and expression as a protected characteristic in all areas under the Code , except for discrimination in wages: Human Rights Code Amendment Act, 2016 . The Tribunal now treats sex and gender identity and expression as separate protected characteristics . However, for some people, including Ms. Spielberger, their sex and their gender identity and expression align. In such cases, they refer to their sex and their gender identity and expression as one and the same.

[27] Next, I turn to Ms. Spielberger’s allegations against each of her Work Colleagues and explain whether she has proven their conduct toward her.

VI HAS MS. SPIELBERGER PROVEN THAT HER WORK COLLEAGUES’ BAD TREATMENT OF HER WAS DISCRIMINATORY?

A. Has Ms. Spielberger proven that she experienced an adverse impact regarding her employment because of her Work Colleagues treating her badly?

[28] I start with the parties’ general arguments. As I explain my reasons, I will come back to those arguments the parties make about specific Work Colleagues’ conduct.

[29] Ms. Spielberger argues that her Work Colleagues treated her badly at work, creating a hostile work environment that left her feeling distressed and unsupported. She says she experienced verbal abuse in the form of name-calling and derogatory insults based on her sex and gender, which were at the core of her Work Colleagues’ bad treatment of her. She further argues that her Work Colleagues’ yelled at her, which was an aggressive form of communication that exacerbated the hostile nature of her work environment. She argues that the hostile work environment she was experiencing impacted upon her ability to perform her duties effectively, was psychologically distressing for her, and caused undue stress and anxiety for her.

[30] Sofo argues that Ms. Spielberger’s Work Colleagues did not call her names, or otherwise treat her badly at work. Sofo also argues that in Ms. Spielberger’s complaint, she made no allegations about Mr. Chiorlise telling her if she choses a position as a man, she should work as a man, Mr. Hritcu calling her the W-slur, or Mr. Porime telling her that her feedback was not welcome because she is a woman or that she was not welcome to participate in a technical discussion because she is a woman. It argues that, at the hearing, Ms. Spielberger fabricated evidence about Mr. Chiorlise, Mr. Hritcu and Mr. Porime making these statements, and that if they were true Ms. Spielberger would have included them in her complaint.

1. Has Ms. Spielberger proven that Mr. Vulcano treated her badly at work?

[31] I now turn to each of Ms. Spielberger’s allegations about her Work Colleagues’ bad conduct toward her. I start with Mr. Vulcano. Ms. Spielberger alleges that Mr. Vulcano bullied and intimidated her at work. However, she has provided no further details or arguments regarding this part of the complaint.

[32] Ms. Spielberger has not convinced me that Mr. Vulcano treated her badly at work. She provided no evidence regarding Mr. Vulcano’s conduct toward her to support her allegations.

2. Has Ms. Spielberger proven that Mr. Hritcu treated her badly at work?

[33] Next, I turn to Ms. Spielberger’s allegations about Mr. Hritcu treating her badly. I start with her allegations. In the complaint, Ms. Spielberger alleges that Mr. Hritcu bullied and intimidated her. She provides no further details about his alleged conduct toward her at work.

[34] Next, I turn to the parties’ evidence. Ms. Spielberger testified that one day she had to sand a product that Mr. Hritcu had finished working on to repair his work. She told him she had to go back and do this, and he called her names, including the W-slur. She asked him if he would like it if someone said this to his wife at work. He responded by excusing himself and “playing it off as a joke.” Ms. Spielberger provided no further evidence about Mr. Hritcu treating her badly at work.

[35] Sofo presented no evidence about any interactions between Ms. Spielberger and Mr. Hritcu at work. Mr. Hritcu did not attend as a witness. As such, I do not have the benefit of his evidence.

[36] I now turn to the parties’ arguments. Ms. Spielberger argues that Sofo’s failure to present any counterevidence or witnesses to challenge her allegations against Mr. Hritcu is significant. She points out that despite the seriousness of her allegations against Mr. Hritcu, Sofo did not call him as a witness.

[37] Sofo argues that Mr. Hritcu did not call Ms. Spielberger the W-slur, and that Ms. Spielberger has fabricated her evidence about this interaction. Sofo further argues that it did not call Mr. Hritcu as a witness because up until the hearing, it did not know that Ms. Spielberger was alleging that he called her the W-slur. Last, it argues that if Mr. Hritcu had called Ms. Spielberger a W-slur, this would have been significant to her complaint, and she would have mentioned it in the complaint. As I understand it, Sofo is asking the Tribunal to make an adverse credibility finding on this part of Ms. Spielberger’s testimony based on her decision not to allege in the complaint that Mr. Hritcu called her the W-slur.

[38] In reply, Ms. Spielberger argues that the purpose of the initial complaint was to provide a high-level overview of her allegations, enabling Sofo to understand the nature of her claims as opposed to the granular specifics of it. She further argues that she had sufficiently particularized her allegations against Mr. Hritcu. Last, she argues that Sofo’s decision not to have Mr. Hritcu testify should not be used to discredit her testimony.

[39] I now turn to my findings. Ms. Spielberger has not convinced me that Mr. Hritcu treated her badly at work by calling her the W-slur. First, I recognise that her evidence on this point is uncontradicted. However, I do not find it to be credible because Mr. Hritcu calling her the W-slur does not fit within general picture revealed by all the evidence. Based on the evidence that is before me, there are no other instances where Mr. Hritcu treated Ms. Spielberger badly at work. Their relationship outside of this alleged incident was uneventful. Considering these factors, I find it unlikely that he would suddenly call her the W-slur, simply because she had told him that she was working on repairs to something he had worked on prior.

[40] Second, I struggle with Ms. Spielberger’s testimony on this point because her allegation about this incident having occurred is centrally significant to her claim that her Work Colleagues treated her badly at work because she is a woman. I am unable to reconcile her evidence on this point with her decision not to include details about this allegation in her complaint.

3. Has Ms. Spielberger proven that Mr. Lindl treated her badly at work?

[41] Next, I move on to Ms. Spielberger’s allegation that Mr. Lindl treated her badly at work when he:

a. Repeatedly yelled at her regarding her work duties and shouted at her in front of her colleagues.

b. On numerous occasions, approached her while she was working on the CNC machine and demanded that she cut his jobs instead of hers.

c. Assigned her tasks, that she would begin working on, then return after 15 to 20 minutes and claim that he had told her to work on a completely different task.

d. On numerous occasions, delayed helping her with tasks when she requested his assistance, until after she followed up with him many times for help.

e. Shouted at her that she is “not good enough” at her job, and said to her that Sofo is paying her too much.

f. Made her sand materials entirely by hand that she could have used the sanding machine for.

[42] I now turn to the parties’ evidence. Ms. Spielberger testified that there were times where she needed help to assemble something, she would ask Mr. Lindl to help her, and he would delay doing so. She said one day he told her he will be back in five minutes and then left. He spoke to other people in the shop and then went to Mr. Porime’s office, and did not return. Ms. Spielberger said she waited until half an hour after her shift ended and then left to go home. When she was leaving, she saw Mr. Lindl in Mr. Porime’s office. Mr. Lindl looked at her and said “Sorry, Violetta, I forgot about you.”

[43] Ms. Spielberger also testified that whenever Mr. Lindl spoke to her, he was shouting. She said her biggest complaint about Mr. Lindl is that he would yell at her. She said he yelled at her more and more when she was working on the CNC machine. She also said he yelled at her once to get down from the forklift and said she doesn’t know how to operate it. She said prior to this, someone else had been operating the forklift and damaged a water pipe. Mr. Lindl had pointed his finger at her and said that it was her fault, and that she had hit the water pipe with the forklift. She said she did not operate the forklift that day.

[44] Mr. Lindl testified about his relationship with Ms. Spielberger. He described it as one where there were good times and not so good times. He said they had chats, shared a lot with one another, and she would share personal things about her life with him. He described these times as the parts that were ok in their relationship. He said their relationship became more challenging when it came to professional matters because she had her own ideas about how to do things in the shop, but she did not have the necessary experience to understand why her ideas were not better than the status quo approach to things. He described Ms. Spielberger as a person who was opinionated, stubborn, and could sometimes be difficult to work with.

[45] Mr. Lindl testified that there was a time where he had to speak to Ms. Spielberger about safety regarding her operation of the forklift. He said she was not good at operating it and she had difficulties grasping the concept that it “steers in the back,” which I understand to mean that it is a rear-wheel drive machine. Mr. Lindl also admitted that he told Ms. Spielberger to stop driving the forklift and he did so because she was not good at operating it.

[46] Last, Mr. Lindl testified that he speaks loudly with everyone in the shop at Sofo because he has hearing problems. In support of his testimony on this point, he provided a copy of hearing test results that show he has between moderate and severe hearing damage. He denied that he ever raised his voice specifically with Ms. Spielberger when he talked to her.

[47] Next, I turn to the parties’ arguments about Ms. Spielberger’s allegation that Mr. Lindl treated her badly at work. Ms. Spielberger made no arguments on this point.

[48] Sofo argues that I should accept Mr. Lindl’s evidence over Ms. Spielberger’s evidence because Mr. Lindl was forthright and consistent in his testimony. He freely admitted to having unpleasant conversations with Ms. Spielberger, but also said they had good times. He also took ownership of the fact that he uses a loud voice in the shop environment, and he explained that he does so because he has hearing loss. Ms. Spielberger provided no reply to Sofo’s arguments on these points.

[49] I now turn to my findings. Ms. Spielberger has not convinced me that Mr. Lindl treated her badly at work. First, I am not convinced that Mr. Lindl treated Ms. Spielberger badly at work when he:

a. Assigned her tasks, that she would begin working on, then return after 15 to 20 minutes and claim to her that he had told her to work on a completely different task.

b. Shouted at her that she is “not good enough” at her job, and said to her that Sofo is paying her too much.

c. Made her sand materials entirely by hand that she could have used the sanding machine for.

d. While she was working on the CNC machine, demanded that she cut his jobs first instead of hers.

[50] Ms. Spielberger has provided no evidence to support these allegations.

[51] I am also not convinced that Mr. Lindl treated Ms. Spielberger badly at work by delaying his help to her, on numerous occasions, until after she followed up with him many times for help. First, Ms. Spielberger has only provided details about one time where Mr. Lindl said he would be right back and then did not come back. In that example, Ms. Spielberger did not follow up with Mr. Lindl regarding her request for help and Mr. Lindl apologized to her for having forgotten about her. One incident of Mr. Lindl failing to help Ms. Spielberger with a task does not support a finding that he treated her badly by delaying his help to her, on numerous occasions, until after she followed up with him many times.

[52] Second, the vague quality of a person’s evidence is a relevant factor from which I may draw a negative inference regarding their credibility on a matter: Newhouse v. Garland , 2022 BCCA 276 at para. 130. I draw a negative inference regarding the vagueness of Ms. Spielberger’s testimony that on a regular basis Mr. Lindl delayed his help to her, and her failure to adduce evidence about further incidents where he did so, to conclude that Mr. Lindl did not delay his help to her, on numerous occasions, until after she followed up with him many times.

[53] I am also not convinced that Mr. Lindl treated Ms. Spielberger badly at work by repeatedly yelling at her regarding her work duties and shouting at her in front of her colleagues. First, I consider “yell” and “shout” to be descriptive words that encompass situations where a person shouts out loudly to another person either to get their attention, so the person can hear them from a distance, or as an expression of a strong emotion like anger, pain, fear, or excitement. Not all instances of a person yelling or shouting will implicitly be instances of them treating the person that they yell or shout at badly.

[54] Second, Ms. Spielberger has said that Mr. Lindl “yelled at her more and more when she was working on the CNC machine.” Without more details about these instances of alleged yelling, I can not assess whether Mr. Lindl’s communication with Ms. Spielberger during them was him speaking loudly, or him yelling at her. If he was yelling, then without more detail I am also not able to assess whether his yelling was implicitly him treating her badly.

[55] Third, I accept that Mr. Lindl yelled at Ms. Spielberger once to get down from the forklift. Ms. Spielberger’s evidence on this point is consistent with Mr. Lindl’s evidence that he told her to stop driving the forklift, and that he did so because she was not good at operating it. However, without more details regarding this incident, I am unable to conclude that his yelling at her was implicitly him also treating her badly at work. The parties agree that the shop was a loud work environment. It is just as likely that Mr. Lindl yelled at Ms. Spielberger to stop driving the forklift because it was loud in the shop and he had to get her attention, as it is that he yelled at her to do so as an expression of anger or frustration with her. If Ms. Spielberger had provided more evidence to the Tribunal that supports a finding of the latter type of yelling, I would have concluded that his yelling in this instance was bad treatment of her. However, this still would not have supported a finding that he repeatedly yelled at Ms. Spielberger regarding her work duties and shouted at her in front of her colleagues.

4. Has Ms. Spielberger proven that Mr. Chiorlise treated her badly at work?

[56] Next, I move on to Ms. Spielberger’s allegations about Mr. Chiorlise treating her badly at work. In the complaint, Ms. Spielberger alleges that Mr. Chiorlise bullied and intimidated her at work. She alleges that he:

a. Refused to carry out tasks that she had told him Mr. Porime wanted him to do, because she is a woman.

b. Regularly, verbally bullied her, which included him calling her stupid and an idiot for disagreeing with him, because she is a woman. She said when he found out that she goes to a Hebrew church, he began to regularly harass her and said to her that “all the Jewish people will be first executed.”

[57] At the hearing, Ms. Spielberger made new allegations about Mr. Chiorlise’s conduct toward her. She alleged that Mr. Chiorlise:

a. Yelled out to Mr. Porime that Ms. Spielberger is in love with Mr. Porime.

b. Told her that if she choses a position as a man, she should work as a man.

c. Pretended not to have work materials that she knew he had piled up on a cart earlier in the day.

d. Hid her glasses on her.

e. Threw balled up tape at her.

f. Told her he doesn’t want to eat in her presence and ate lunch at a different time than her.

g. Changed the settings on the CNC machine so she could not use it for projects she was working on.

[58] I now turn to the parties’ evidence. Ms. Spielberger testified that on an almost daily basis, Mr. Chiorlise either did or said something to her that she considered to be bullying. She said that between July 25, 2017 and the summer of 2018:

a. There were times where she would need to move a large, heavy piece of a cabinet, and she would need help. When Mr. Chiorlise was not busy doing other things, she would ask him to come give her a hand, and he once answered saying “well if you chose a position as a man you should work as a man.” Sometimes, he would refuse to help her.

b. She was distributing cards to staff, and when she gave one to Mr. Chiorlise, he pushed it to the side. He was putting materials onto a cart, and he packed the cart so full that many materials piled up on the cart. He then claimed not to have the materials he needed, and Ms. Spielberger pointed out to him that it was there. He responded that he didn’t see it.

[59] Ms. Spielberger testified that in January 2019, she went to help Mr. Chiorlise move some material. She put her glasses down before going to help him, and when she returned from helping him, she could not find them. She asked Mr. Chiorlise if he took them, and he said he did not. However, she believes that he took them.

[60] Last, Ms. Spielberger testified that:

a. One time, Mr. Chiorlise stopped her and said that even his wife can do the work she is doing.

b. When Mr. Chiorlise found out she goes to a Hebrew church, he said to her that if something is going to happen in the world, she would be the first to be executed in the gas chamber.

c. During a work meeting, where staff provided feedback on things, Mr. Chiorlise called her stupid and idiot, and he moved far away from her. Other times, he called her stupid and idiot, and told her she “should not be in that company,” which I understand to mean she should not be working at Sofo.

d. One day, she was looking for Mr. Porime. Mr. Porime was in the bathroom. Mr. Chiorlise called out to Mr. Porime, “come out of the bathroom. She’s in love with you and wants to see you.”

e. Mr. Chiorlise put tape he was working with into a ball and threw it at her while she was walking away.

f. Mr. Chiorlise told her in the lunchroom that he doesn’t like to see her face or eat in her presence, and that it bothers him. After this, she tried to take her breaks at different times than him.

g. One day, she went to the office to pick up a file. Mr. Porime asked her to tell Mr. Chiorlise to go into his office. She passed the message on to Mr. Chiorlise, and he said to her that he is not listening to a woman.

h. There were times where she let Mr. Chiorlise interrupt work that she was doing on the CNC machine so that he could cut something he was working on. When she would go back to working on the CNC machine, it would not work because Mr. Chiorlise had changed the setting on it, and she had no ability to change the settings back. She would then need to complete what she was cutting manually.

[61] Ms. Spielberger also provided the Tribunal copies of social media posts where Mr. Chiorlise used offensive gender-based language and phrases in his comments on other users posts.

[62] Mr. Chiorlise gave evidence on behalf of Sofo. He testified that he trained Ms. Spielberger on how to use the CNC machine, which he described as being finicky sometimes. He said he trained her on how to place materials on the CNC machine and use the elevator on it, how to let the machine automatically clean up dust particles, how to empty the dust from it, and how to change the rutters on it. Mr. Chiorlise also said he discussed standard operating procedures with Ms. Spielberger regarding how the shop operates and safety requirements in the shop. This included training her on the sequences within which to complete work.

[63] Mr. Chiorlise said that Ms. Spielberger did not follow his instructions on letting the CNC machine automatically clean up dust particles, and that she would blow the dust off the machine instead, making them airborne.

[64] Mr. Chiorlise also said that Ms. Spielberger would leave materials behind when she finished working with them. He said every month he had to spend approximately two hours moving materials around with the forklift to stack them properly because Ms. Spielberger did not do this with the materials she was working with when she finished tasks.

[65] During cross-examination Mr. Chiorlise could not recall any incident where he told Ms. Spielberger that he does not take orders from women. He denied:

a. Refusing to help Ms. Spielberger, and instead telling her that if she choses the position of a man, she needs to work as a man. He said the only time he would refuse to help her is if he was busy working on something that he could not stop in the middle of doing. If that was the case, he would tell her he is busy so please go ask someone else. He said he would work with anyone, and that doing so is a job requirement.

b. Calling Ms. Spielberger stupid, idiot, or using any other insults toward her. He said he does not call any other person names because doing so is toxic and not constructive. He said he does not curse, and that if he must vent, he will go somewhere to cool down.

c. Throwing pieces of tape at Ms. Spielberger. When asked if he had done this, he laughed and said “no.” He said “I’m 53 years old, it would be stupid of me to do that. I deny this allegation.”

d. Swearing or using derogatory words toward Ms. Spielberger. He said doing so is obscene and its not him. It is degrading and toxic and offensive.

e. Telling Ms. Spielberger that he can not eat when looking at her face. He said most of the time he would eat in the lunchroom with his wife, and that there was very little overlap in the times he and Ms. Spielberger would be in the lunchroom together. He said he was there to eat and then work, and that was it.

f. Ever insulting any women or calling them terrible names.

g. Making any anti-Semitic comments to Ms. Spielberger.

h. Ever moving materials, or hiding them, on Ms. Spielberger.

[66] Mr. Chiorlise could not recall any incident where Ms. Spielberger told him that Mr. Porime wanted to see him in the office, and he responded to her that he does not take orders from women. He said that in his work relationship with Ms. Spielberger, if she needed something he would have to respond to it, and that the only time he would not is when he’s busy and he must finish what he is doing.

[67] Last, Mr. Chiorlise provided various comments throughout his testimony about what he thought of Ms. Spielberger. He said that:

a. After a few months of observing Ms. Spielberger at work, he concluded that she was not qualified. Her CNC skills and organizational skills were limited.

b. Ms. Spielberger understood how things worked but did not follow through all the way on tasks. She did not understand the small stuff about how to do things in a safe manner. She would stumble over something or do work in the wrong sequence. Ms. Spielberger’s biggest issue was not following the order of operations in accordance with her training. Mr. Chiorlise had to repeat himself to her many times regarding the same thing, which became annoying. Every time something was wrong, Ms. Spielberger needed to be trained again.

c. He thinks Ms. Spielberger was spoiled and treated better than others at work.

d. He felt sorry for Ms. Spielberger because she had opportunities for a great career but had the wrong attitude towards the job, and that when a person does not do their job, someone will tell them to do it and retrain them again and again.

e. He had concerns about her physical strength, and he would need to help her with big pieces, even when the machinery had suction cups to help her move things around.

[68] Ms. Soos also provided testimony about her observations of Ms. Spielberger and Mr. Chiorlise. She said she never once witnessed anything abnormal between the two of them, and she never heard him call any person stupid or an idiot at work.

[69] Last, Mr. Lindly testified that he could not think of any times where his coworkers made rude or inappropriate comments toward Ms. Spielberger.

[70] I now turn to the parties’ arguments. Ms. Spielberger argues that the Tribunal should not accept any of Mr. Chiorlise’s evidence because it is not credible, and that the content in his social media posts significantly undermines his credibility. She provides no other arguments about why I should not find his testimony to be credible.

[71] In response, Sofo argues that when viewed in their context, Mr. Chiorlise’s social media posts show no evidence of him having negative attitudes about the female sex. Sofo says that Mr. Chiorlise’s evidence is credible and that he was forthright and consistent in his testimony. Sofo further argues that Ms. Spielberger’s testimony is not credible regarding Mr. Chiorlise’s conduct toward her and that the Tribunal must consider the fact that she provided no documentary evidence whatsoever to support her allegations about his conduct toward her.

[72] Ms. Spielberger provides no reply to Sofo’s arguments.

[73] Before I turn to my findings about Mr. Chiorlise’s conduct toward Ms. Spielberger at work, I address the parties’ arguments about the value the Tribunal should attribute to Mr. Chiorlise’s social media posts in assessing his credibility. When I admitted Mr. Chiorlise’s social media posts as evidence, I advised the parties that I am admitting them for the purpose of establishing whether Mr. Chiorlise lied to the Tribunal about any matters relevant to the complaint. Mr. Chiorlise gave evidence that he has never used derogatory language toward Ms. Spielberger at work. Ms. Spielberger has argued that the Tribunal should reject that evidence. She asks the Tribunal to treat Mr. Chiorlise’s social media posts as evidence that contradicts his claims of respectful professional behaviour. I decline to do this. Mr. Chiorlise’s social media posts were not about work-related matters, and he did not make them in his professional capacity. They are not examples of him having engaged in disrespectful professional behaviour, or examples of him using derogatory language at work.

[74] As I understand it, Ms. Spielberger also asks the Tribunal to treat Mr. Chiorlise’s social media posts as evidence that he has a negative disposition toward women, and because of that negative disposition, he has a propensity to treat them badly on the basis that they are women. She argues that this supports her versions of events about him treating her badly because she is a woman. When I admitted Mr. Chiorlise’s social media posts as evidence, I advised the parties that I am not admitting them for use as character evidence about Mr. Chiorlise. Consistent with the practices of the Supreme Court of Canada and B.C. Court of Appeal, I decline to rely on bad character evidence from social media posts in this decision because those posts are unrelated to Mr. Chiorlise’s conduct at work: For example, see R. v. Handy , 2002 SCC 56 at para. 31 and R. v. R.K.K ., 2022 BCCA 17 [ R.K.K .] at para. 60; R. v. Lawrence , 2015 BCCA 358 at paras. 47 to 51.

[75] I now turn to my findings about Mr. Chiorlise’s conduct toward Ms. Spielberger at work. First, Ms. Spielberger has convinced me that Mr. Chiorlise treated her badly at work by:

a. Refusing to carry out tasks that she had told him Mr. Porime wanted him to do, because she is a woman.

b. Calling out to Mr. Porime, stating that she is in love with him and wants to see him.

[76] Ms. Spielberger gave uncontradicted evidence that these events occurred. Absent any evidence to the contrary, I accept her versions of these events. Sofo has not pointed me to any of those factors set out in paragraphs 16 and 17 of this decision upon which I should make an adverse credibility finding regarding this part of Ms. Spielberger’s testimony. As such, my starting assumption in the credibility analysis, which is that she is telling the truth, stands.

[77] Ms. Spielberger has also convinced me that Mr. Chiorlise treated her badly at work by:

a. Saying to her that even his wife can do the work that she is doing.

b. Telling her she should not be working at Sofo.

c. Telling her that if she choses a position as a man, she should work as a man.

d. Calling her stupid and an idiot.

e. Saying to her that if something is going to happen in the world, she would be the first to be executed in the gas chamber.

f. Throwing balled up tape at her.

g. Telling her he doesn’t like to see her face or eat in her presence, and that it bothers him.

[78] Overall, I believe Ms. Spielberger’s evidence on these points over Mr. Chiorlise’s evidence on them. First, when Ms. Spielberger testified about these events, she described most of them in detail and she was able to recall them with ease, as if she was reliving each moment as she told her story. Her testimony was also internally consistent regarding these events. During cross-examination, Sofo did not challenge her on her evidence about any of these events. On the other hand, when Mr. Chiorlise denied these events, he often overcompensated in his answers by exaggerating on how if he had behaved in the way that he was accused of, it would be toxic, non-constructive, obscene, degrading, or offensive. He also went far beyond answering the questions put to him by explaining what he would have done in each situation had it taken place. Mr. Chiorlise’s exaggerated and overcompensative answers made him less believable than Ms. Spielberger.

[79] Second, Ms. Spielberger’s evidence about Mr. Chiorlise saying even his wife could do the work she is doing, that she should not be working at Sofo, and that if she choses a position as a man, she should work as a man, fits best within the overall evidence before me, which includes the fact that Mr. Chiorlise did not think Ms. Spielberger was skilled at her job, he became annoyed by having to retrain her over and over on how to do tasks, and he thought she lacked the physical strength required to do the job.

[80] Ms. Spielberger has not convinced me that Mr. Chiorlise treated her badly by:

a. Hiding her glasses on her.

b. Changing the settings on the CNC machine so she could not use it for projects she was working on.

[81] Ms. Spielberger has provided no evidence that Mr. Chiorlise did these things. Her evidence on these points is speculative.

5. Has Ms. Spielberger proven that Mr. Porime treated her badly at work?

[82] Next, I turn to Ms. Spielberger’s allegations about Mr. Porime’s conduct toward her. In the complaint, Ms. Spielberger alleges that Mr. Porime bullied and intimidated her at work. She alleges that he:

a. Said she was overpaid “because even a seventeen-year-old can do the same job,” that she was “not good enough” at her job, and that “they were paying her too much.”

b. Shouted at her in front of her co-workers, claiming that it was her fault he injured his leg, when he had injured his leg because he neglected to wear the appropriate clothing and footwear.

[83] At the hearing, Ms. Spielberger made new allegations about Mr. Porime’s conduct toward her. She alleged that Mr. Porime said to her, “what is you business here, you’re a woman,” and “you’re a woman, what do you understand?”

[84] I now turn to the parties’ evidence about these allegations. Ms. Spielberger testified about comments that Mr. Porime made to her about the amount of money she made at Sofo. She said that, in either February or March 2020, she was sanding something, and Ms. Soos’ mother was present. She said Ms. Soos’ mother asked her if she had looked for another job. Ms. Spielberger turned to Mr. Porime and asked him why Ms. Soos’ mother would say this. Mr. Porime responded to her that she is “getting paid very well and should be getting paid less.” He also said that she is not really working more than a student, or something to that effect.

[85] Next, she said there was an incident where Mr. Porime used the CNC machine while wearing shorts and slippers. He hurt his leg and yelled as loud as he could that he had hurt his leg because of Ms. Spielberger. She said this incident also repeated itself, only the next time it happened, Mr. Porime was wearing runners. The second time it happened, she said that Mr. Porime said to her that a sixteen-year-old could do the same job as hers.

[86] Last, Ms. Spielberger testified that there was an electrical problem with the CNC machine. There is a part of the CNC machine that needs a special key to open it, and sometimes the dust needs to be cleaned out so that the electrical cables do not heat up. She said she doesn’t know if the breaker went out or something else happened, but Mr. Hritcu and Mr. Porime started working on the CNC machine to address the problems. Ms. Spielberger said she asked them what was going on and asked them to explain it to her. When she asked them this, Mr. Porime responded by saying to her, “what is your business here, you’re a woman.” In reply, she told Mr. Porime that it might be good for her to know because she works on the CNC machine. She said that because she insisted, he gave her the key and showed her how to open it. He showed her that if they were to lose electricity there was a button to push to get it started again.

[87] Ms. Spielberger further said that there was a meeting at one point, a feedback meeting, and when she gave her feedback / opinion, Mr. Porime said to her “you’re a woman, what do you understand?”

[88] Sofo provided evidence about Mr. Porime’s demeanour, and about the overall relationship between Ms. Spielberger and Mr. Porime, both of which are contextually relevant to the complaint. First, during Ms. Soos’ testimony, she testified that Mr. Porime is a person who speaks slowly and is overall mellow in demeanour. Second, during Mr. Lindl’s testimony, he gave evidence about a time where he was venting to Mr. Porime about frustrations he had regarding Ms. Spielberger. He said, in response to his venting, Mr. Porime said to him, “she is a single mom trying to make a go of it, just see it from her point of view, it’s a new country, it’s a new job.”

[89] Sofo provided little direct evidence in response to Ms. Spielberger’s evidence about her interactions with Mr. Porime. During Ms. Lindl’s testimony, he said that he attended meetings where people would share ideas on things like how to improve what is happening in the shop and shop processes. He said he could not recall hearing Mr. Porime make any comments at those meetings about Ms. Spielberger being a woman.

[90] I now turn to the parties’ arguments. Ms. Spielberger argues that Sofo’s failure to present any counterevidence or witnesses to challenge her allegations against Mr. Porime is significant. She points out that despite the seriousness of her allegations against Mr. Porime, Sofo did not call him as a witness.

[91] Sofo argues that it did not call Mr. Porime as a witness because up until the hearing, it did not know that Ms. Spielberger was making an allegation about Mr. Porime saying, “what is your business here, you’re a woman” or “you’re a woman, what do you understand?” to her. Sofo says the Tribunal should not draw an adverse inference against it regarding its failure to produce Mr. Porime as a witness. Sofo further argues that if Mr. Porime had said these things to Ms. Spielberger, this would have been significant to her complaint, and she would have mentioned it in the complaint. As I understand it, Sofo is asking the Tribunal to make an adverse credibility finding on this part of Ms. Spielberger’s testimony based on Ms. Spielberger’s decision not to make an allegation in the complaint about Mr. Porime saying these things to her.

[92] In reply, Ms. Spielberger again argues that the purpose of the initial complaint was to provide a high-level overview of her allegations, enabling Sofo to understand the nature of her claims as opposed to the granular specifics of it. She further argues that she sufficiently particularized her allegations against Mr. Porime. Last, she argues that the Tribunal should not allow Sofo’s decision not to have Mr. Porime testify discredit her testimony.

[93] Sofo also argues that Ms. Soos is not a credible witness because she indicated in her testimony that she did not follow the general rules regarding Ms. Spielberger’s immigration process, and she admitted to reducing Ms. Spielberger’s wages contrary to her commitments to Canada to pay Ms. Spielberger a specific wage. Ms. Spielberger provided no reply to this part of Sofo’s arguments.

[94] Next, I turn to my findings. First, I am convinced that Mr. Porime treated Ms. Spielberger badly at work when he shouted at her in front of her co-workers, claiming that it was her fault that he injured his leg. Absent any evidence to the contrary on this point, I accept Ms. Spielberger’s evidence as true. Her evidence on this point had an overall flow to it that was consistent, and believable. Sofo has not pointed me to any of those factors set out in paragraphs 16 and 17 of this decision upon which I should make an adverse credibility finding regarding this part of Ms. Spielberger’s testimony. As such, my starting assumption in the credibility analysis, which is that she is telling the truth, stands.

[95] I am also convinced that Mr. Porime treated Ms. Spielberger badly at work when he made a comment to her in front of Ms. Soos’ mother about her being overpaid for the work she did at Sofo. Mr. Porime’s making of this comment aligns well with the overall evidence before me, which shows that people at Sofo did not think Ms. Spielberger was good at her job. Ms. Soos gave evidence, which I will come back to in more detail later, about Sofo reducing Ms. Spielberger’s wages because she was unable to perform the duties of a cabinetmaker. Mr. Lindl gave evidence that Ms. Spielberger was not experienced enough to understand why her ideas were not better than the status quo approach to things.

[96] I am not convinced that Mr. Porime told Ms. Spielberger that even a teenager could do her job. I am also not convinced that Mr. Porime said to Ms. Spielberger “what is your business here, you’re a woman” or “you’re a woman, what do you understand?” First, I accept Mr. Lindl’s evidence about Mr. Porime making empathetic statements to him about Ms. Spielberger being a single mom. I treat his empathy toward her as evidence that he was understanding of the struggles she had at work, and able to understand her female perspective on things. Ms. Spielberger’s evidence that he said these harmful things to her does not harmonize well with his otherwise empathetic approach to her in the workplace.

[97] Second, I do not draw a negative inference from Sofo’s failure to produce Mr. Porime as a witness regarding Ms. Spielberger’s allegations about comments that he made toward her about her being a woman. Up until the hearing, Sofo did not know that Ms. Spielberger made these allegations about his conduct toward her. There is no way that it could have known before the hearing to call him as a witness to speak to these points.

[98] Last, I struggle with Ms. Spielberger’s evidence that Mr. Porime said to her, “what is your business here, you’re a woman” and “you’re a woman, what do you understand?” because evidence about this having occurred is centrally significant to her complaint. I am unable to reconcile her evidence about Mr. Porime making these statements with her decision not to include details about them in her complaint.

6. Summary of findings

[99] I will now provide a summary of my findings about whether Ms. Spielberger’s Work Colleagues treated her badly.

[100] Ms. Spielberger has not convinced me that Mr. Vulcano, Mr. Hritcu, or Mr. Lindl treated her badly at work.

[101] Ms. Spielberger has convinced me that Mr. Chiorlise treated her badly at work by:

a. Refusing to carry out tasks that she had told him Mr. Porime wanted him to do, because she is a woman.

b. Telling her that if she choses a position as a man, she should work as a man.

c. Calling out to Mr. Porime, stating that she is in love with him and wants to see him.

d. Saying to her that even his wife can do the work that she is doing.

e. Telling her she should not be working at Sofo.

f. Calling her stupid and an idiot.

g. Saying to her that if something is going to happen in the world, she would be the first to be executed in the gas chamber.

h. Throwing balled up tape at her.

i. Telling her he doesn’t like to see her face or eat in her presence, and that it bothers him.

[102] However, she has not convinced me that Mr. Chiorlise treated her badly at work by:

a. Hiding her glasses on her.

b. Changing the settings on the CNC machine so she could not use it for projects she was working on.

[103] Ms. Spielberger has convinced me that Mr. Porime treated her badly at work by:

a. Shouting at her in front of her co-workers, claiming that it was her fault that he injured his leg.

b. Made a comment to her in front of Ms. Soos’ mother about her being overpaid for the work she did at Sofo

[104] However, she has not convinced me that Mr. Porime treated her badly at work by:

a. Telling her that even a teenager could do her job

b. Saying to her “what is your business here, you’re a woman” or “you’re a woman, what do you understand?”

[105] Next, I turn to whether Ms. Spielberger has proven that she experienced an adverse impact regarding Mr. Chiorlise and Mr. Porime’s bad treatment of her.

B. Has Ms. Spielberger proven that she experienced an adverse impact regarding her Work Colleagues’ bad treatment of her?

[106] I start with the parties’ arguments. Ms. Spielberger argues that at the core of this issue lies the verbal abuse she endured, which included name-calling and derogatory insults based on her sex. Such behavior not only created an intimidating and hostile work environment but also infringed upon her dignity and self-esteem, manifestly impacting her ability to perform her duties effectively. Ms. Spielberger further argues that the incidents of name-calling and insults were not isolated but were part and parcel of her daily work experience, contributing to the overall hostile environment. The persistent nature of these incidents amplified their impact on Ms. Spielberger, creating a psychologically distressing environment that was far removed from the congenial and respectful workplace she was entitled to.

[107] Sofo argues that Ms. Spielberger has failed to present sufficient evidence about its conduct causing the alleged adverse impacts that she claims. Sofo further argues that Ms. Spielberger’s only evidence about experiencing an adverse impact because of Mr. Chiorlise and Mr. Porime’s bad treatment of her is her own testimony, which it says it challenges.

[108] I now turn to the parties’ evidence. Ms. Spielberger testified that hearing Mr. Porime talk about how much money she makes made her very upset. She did not provide any further details about how Mr. Porime’s specific bad treatment of her impacted her.

[109] She further testified that after Mr. Chiorlise told her he didn’t like to see her face in the lunchroom, she started to avoid him and take her lunch at a different time. When he first called her stupid and idiot, she endured it because she needed the job. She talked to her brother about it, but he told her to keep it inside and endure it so she would not get a bad work reference later. She said that eventually Mr. Chiorlise moved to a different area of the shop than her and his comments stopped. She also said when Mr. Chiorlise would treat her badly, she would try to hide her feelings and her pain through singing, and sometimes she would cry.

[110] Ms. Spielberger also provided general evidence about how the bad treatment she experienced at work affected her. She said:

a. She felt she wasn’t valued for what she was, and that her Work Colleagues did not take her values or assets into consideration.

b. She is very upset and drastically affected by what happened.

c. What happened was always in her mind and she worried that she would arrive at a new workplace not knowing anything or anybody, and the same things that happened at Sofo would occur again.

d. She lost trust in people, and locked herself inside her house, where she lived with the pain of what had occurred.

e. When someone asked her to do something new, she had no confidence because it always echoed in her head that she is an idiot, and she is stupid.

[111] Sofo provided no evidence on this point.

[112] Next, I turn to my findings. I accept Ms. Spielberger’s evidence about how Mr. Chiorlise and Mr. Porime’s bad treatment of her impacted her. Sofo has not pointed me to any of those factors set out in paragraphs 16 and 17 of this decision upon which I should make an adverse credibility finding regarding this part of Ms. Spielberger’s testimony. As such, my starting assumption in the credibility analysis, which is that she is telling the truth, stands.

[113] I am also convinced that the impacts Ms. Spielberger experienced were adverse in nature. She experienced harmful feelings, isolation, discomfort, and pain because of Mr. Chiorlise and Mr. Porime’s bad treatment of her. Mr. Chiorlise’s conduct toward Ms. Spielberger was overall hostile; It made her overall work environment feel hostile to her. The repetitive and mean nature of Mr. Chiorlise’s bad treatment of Ms. Spielberger left her feeling uncomfortable and intimidated in her work environment. Mr. Porime’s two comments toward her, which I have found to be bad treatment, also contributed to her feelings of discomfort at work, adding to the hostile nature of her work environment.

C. Has Ms. Spielberger proven her sex was a factor in the adverse impact she experienced because of her Work Colleagues’ bad treatment of her?

[114] Next, I turn to whether Ms. Spielberger has proven that her sex was a factor in the adverse impact she experienced because of Mr. Chiorlise and Mr. Porime’s conduct. I start with the parties’ arguments. Ms. Spielberger argues that Mr. Chiorlise’s comments toward her were derogatory and gender-specific, which I treat as meaning sex-specific. She argues that even those comments made by Mr. Chiorlise that were not sex-specific indicate a clear bias he had against her based on her sex.

[115] Sofo argues that most of the allegations that Ms. Spielberger made have no apparent connection to her sex or gender. Sofo points to Endacott v. 0880984 B.C. Ltd dba MCL Motor Cars and others , 2020 BCHRT 164 in support of this argument, where the Tribunal stated that not every derogatory and offensive comment rises to the level of discrimination: at para. 35. It further argues that any comments or acts that related to sex are insufficient to establish discrimination on the ground of sex.

[116] I now turn to my findings. I am convinced that Ms. Spielberger’s sex, being that of a female person who also identifies as a woman, was a factor in the adverse impacts she experienced because of Mr. Chiorlise’s bad treatment of her and the hostile work environment that resulted from his bad treatment of her. First, sex discrimination does not need to be inherently or overtly sexual: see The Sales Associate v. Aurora Biomed Inc. and others (No. 3) , 2021 BCHRT 5 at paras. 112-121 ; see also Ms. L v. Clear Pacific Holdings Ltd. and others , 2024 BCHRT 14 and Loiselle v. Windward Software Inc. (No. 2) , 2021 BCHRT 7 . It can also be subtle, and difficult to spot. This is especially the case when it is not obvious and direct. In Clarke v. City of Vancouver and another , 2024 BCHRT 298 at para 64, the Tribunal explained that:

… seemingly minor incidents can accumulate … [as] “micro-discriminations” – defined by Professor Sallie Chisholm as “the subtle, mostly nondeliberate biases and marginalizations that ultimately [add] up to serious assaults”: cited in Ardith Walpetko We’dalx Walkem, KC, Expanding Our Vision: Cultural Equality & Indigenous Peoples Human Rights (2020) at p. 21; OHRC Guidelines at pp. 12-14; Brar at para. 713; Balikama v. Khaira Enterprises Ltd., 2014 BCHRT 107 at paras. 585-586 . Micro-discrimination can include micro-insults, micro-invalidations, and micro-assaults. Though an individual incident may be minor, the cumulative effects of micro-discriminations are serious, and can perpetuate the patterns of inequality associated with discrimination prohibited by the Code : s. 3(d).

[117] Sometimes it is necessary for the Tribunal to draw an inference to conclude that a person’s protected characteristic is a factor in a series of micro-insults, micro-invalidations, and micro-assaults they experienced. In this case, I am prepared to do just that. When drawing inferences, the Tribunal must consider the whole of the evidence before it. This approach is set out in Hill v. Best Western and another , 2016 BCHRT 92 at para. 28 , where the Tribunal said:

Human rights jurisprudence has consistently recognized that a decision that the Code has been contravened may be based on circumstantial evidence, and in inferences that are reasonable to draw from that evidence: Clouatre v. Takhar and Kahala Enterprises Ltd., 2004 BCHRT 15 , para. 45 . In Vestad, the Tribunal noted that “an inference of discrimination may be drawn where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses”: para 44.

[118] I am prepared to infer from Mr. Chiorlise’s refusal to carry out tasks that Ms. Spielberger had told him Mr. Porime wanted him to do, because she is a woman, his comment to her that “if she choses a position as a man, she should work as a man,” and his calling out to Mr. Porime, stating that she is in love with him and wants to see him, that Ms. Spielberger’s sex was a factor on the adverse impacts she experienced as a result of his and Mr. Porime’s bad treatment of her. Each of these comments are implicitly insulting toward persons of the female sex. Furthermore, their degrading nature is amplified within the context that they were made here, where Ms. Spielberger was the only female tradesperson working in the shop.

[119] I have now explained my reasons for finding that some, but not all, of Ms. Spielberger’s Work Colleagues conduct toward her was discriminatory. Next, I move on to whether Sofo discriminated against Ms. Spielberger by not responding reasonably and appropriately to those reports she made to it about Mr. Chiorlise and Mr. Porime’s conduct toward her.


VIII HAS MS. SPIELBERGER PROVEN THAT SOFO KITCHENS LTD. DISCRIMINATED AGAINST HER BY FAILING TO PROVIDE A DISCRIMINATION-FREE WORKPLACE?

[120] I start by commenting that in Francis v. BC Ministry of Justice (No. 3) , 2019 BCHRT 136, at para. 372, the Tribunal explained that:

An employer is required to provide a respectful work environment that is free from discrimination: Canada (Treasury Board) v. Robichaud, 1987 CanLII 73 (SCC) , [1987] 2 S.C.R. 84 [ 8 C.H.R.R. D/4326]. The primary, but not exclusive, responsibility for ensuring a discrimination-free workplace rests with the person in control of the employee’s employment, a responsibility that is recognized in s. 44(2) of the Code : Schrenk, para. 56 . Preventing employment discrimination is a shared responsibility among those who share a workplace, including both supervisor and colleagues. This is especially so where the employer’s best efforts are inadequate to resolve the issue: Schrenk .

[121] Where the employer fails in its duties to provide a respectful workplace that is free from discrimination, their conduct in doing so is in itself discriminatory because it creates an additional adverse impact on the employee, who has to endure the discriminatory workplace.

[122] I now turn to the parties’ arguments. Ms. Spielberger argues that Sofo was aware of Mr. Chiorlise and Mr. Porime’s conduct toward her and failed to protect her against it. She argues that she reported their conduct to her superiors, but Sofo did not take the necessary steps to address their conduct. She says instead of investigating her complaints and taking remedial action, Sofo disregarded her complaints. She further argues that Sofo’s failure to take these steps contributed further to a hostile work environment.

[123] Sofo argues that it provided Ms. Spielberger with comprehensive training on how to deal with harassment at work, as set out in its workplace policies. Sofo says Ms. Spielberger did not report any harassment to it in accordance with its workplace policies and that it did not know she had complaints about Mr. Chiorlise or Mr. Porime’s conduct toward her. Sofo says her allegations that she reported their behaviour to Sofo are false.

[124] Next, I turn to the parties’ evidence. The parties agree that Sofo has policies and procedures in place that set out how issues of bullying and harassment will be dealt with at Sofo. Ms. Spielberger gave evidence that she had been told about and understood Sofo’s policies and procedures regarding both discriminatory and non-discriminatory bullying and harassment. At some point, Sofo had held a staff meeting and presented its policies and procedures on the matter to all staff. Ms. Spielberger said those policies and procedures required her to report incidents of bullying and harassment to Mr. Lindl. She said that if she were to report a bullying and harassment incident to Mr. Lindl and it was left unresolved, then she was required to report it to Mr. Porime. If she were to report a bullying and harassment incident to Mr. Porime and it wasn’t resolved, or if the incident involved Mr. Porime, then she was required to report it to Ms. and / or Mr. Soos

[125] Ms. Spielberger testified that when Mr. Chiorlise threw balled up tape at her, she told Mr. Lindl about it. She said that she asked Mr. Lindl to talk to Mr. Chiorlise about it and tell him to stop bullying her. She said she also told Mr. Lindl about other incidents of Mr. Chiorlise bullying her. She did not specify when she did so, or what she told him.

[126] Ms. Spielberger testified that Ms. Soos knew about all the bullying she experienced at Sofo. She said she told Ms. Soos about it. Specifically, she said she told Ms. Soos about:

a. Mr. Chiorlise telling her he couldn’t stand her.

b. Mr. Chiorlise telling her in the lunchroom that he doesn’t like to see her face or eat in her presence.

c. Mr. Chiorlise trying to sabotage her work when she was on the CNC machine.

d. Mr. Chiorlise pretending not to know where materials were on the cart.

e. Mr. Chiorlise behaving evil toward her and calling her both stupid and idiot. She said that Ms. Soos did not ask her to put this into writing for her.

[127] Ms. Spielberger also said that Mr. Porime knew about Mr. Chiorlise’s comments toward her because “he could hear it.” In addition, she said that Ms. Soos’ mother told her that Ms. Soos knows Mr. Chiorlise is bullying her. I do not give any weight to these parts of her evidence because they are hearsay.

[128] Mr. Lindl testified that Ms. Spielberger did not report any incidents to him regarding Mr. Chiorlise bullying her. He said she never reported any bullying to him. He also said she had never told him that she wants to bring forward any allegations of discrimination at work. Last, he said that he did not recall observing any of Ms. Spielberger’s colleagues making rude or inappropriate comments toward her at work.

[129] Ms. Soos testified that on February 28, 2019, Sofo conducted a staff meeting where they discussed bullying and harassment. She said that Sofo presented a bullying and harassment policy to all staff, they discussed it, they reviewed the investigation forms and procedures, and they discussed examples of bullying and harassment to make it as interesting and directive as possible. All staff signed a piece of paper confirming they had participated. Ms. Spielberger was present and signed the form. Ms. Soos said that she provided translation at the meeting, but Ms. Spielberger does understand English, so translation was not necessary for her. She said Ms. Spielberger never asked her any questions at the meeting.

[130] Ms. Soos further testified that she did not have any other discussions with Ms. Spielberger that related to bullying or harassment. She also said she never had any conversations with Ms. Spielberger about her relationships with her Work Colleagues, other than one time where Ms. Spielberger raised concerns with her about Mr. Chiorlise ignoring her, but she was vague about what she was saying. She said Ms. Spielberger did not say anything about her sex being a part of why he was ignoring her. Ms. Soos said she asked Mr. Chiorlise what it was about, and he said that he did not know what she was talking about. She did not follow up with Ms. Spielberger again because she did not think doing so was necessary.

[131] Next, Ms. Soos testified that Ms. Spielberger did not communicate with her by email, text message or otherwise about bullying and harassment. She said that if she had received a verbal complaint from Ms. Spielberger in this regard, she would have put it into writing in accordance with the policies and procedures. She said she did not get verbal reports, so she never had a need to complete the necessary forms. She also said that if Ms. Spielberger had completed a complaint form, Sofo would have retained a copy of it.

[132] Ms. Soos also testified that she never witnessed or observed anything abnormal about Ms. Spielberger’s interactions with Mr. Chiorlise. She said that Ms. Spielberger did not attend the group events that Sofo put on, and she opted out of group pictures. She said she never saw Ms. Spielberger cry at work. She said she would check in with Ms. Spielberger approximately two times per week, but did not otherwise work very closely with her.

[133] Last, Ms. Soos testified that Mr. Chiorlise spoke to her about Ms. Spielberger’s performance at work being poor, and there were times where he was frustrated with her. However, she did not know of any times where he had lost his temper with her. She said the first time she heard of any allegations about Mr. Chiorlise’s conduct toward Ms. Spielberger was when she received the notice of complaint proceeding from the Tribunal. She said she thought that Ms. Spielberger was happy at Sofo.

[134] Neither party challenged the other party’s witnesses on their testimony about Ms. Spielberger reporting instances of bullying and harassment to Mr. Lindl and Ms. Soos.

[135] Last, I turn to my findings. Ms. Spielberger has not convinced me that Sofo failed to provide her a discrimination-free workplace. First, I am satisfied that the responsibility to ensure a discrimination-free workplace for Ms. Spielberger rested with Mr. Lindl, Mr. Porime, Ms. and Mr. Soos. As Ms. Spielberger’s direct supervisors, superiors and the owners of Sofo, each of them were in control, to at least some extent, of her employment. This was reflected in the bullying and harassment policies and procedures that required Ms. Spielberger to report any incidents of bullying and harassment, first to Mr. Lindl, then to Mr. Porime, and last to either Ms. or Mr. Soos.

[136] Second, I am satisfied, based on Ms. Soos’ unchallenged testimony, that the procedure Mr. Lindl, Mr. Porime, she and Mr. Soos would need to follow if they received a verbal report of bullying and harassment was to complete a written complaint form to document the report.

[137] Third, I am convinced that neither Mr. Lindl, Mr. Porime, Ms. or Mr. Soos knew or should have known about Mr. Chiorlise’s bad treatment of Ms. Spielberger. I accept that Ms. Spielberger told Mr. Lindl that Mr. Chiorlise had thrown balled up tape at her. However, I do treat this as evidence that she reported Mr. Chiorlise’s bad treatment of her to Mr. Lindl. I also do not accept that Mr. Lindl knew or should have known that Mr. Chiorlise treated Ms. Spielberger badly just because he knew about Mr. Chiorlise throwing balled up tape at Ms. Spielberger one time. Out of context, throwing balled up tape at another employee is not an obvious sign that the employee who threw the tape is treating the other employee badly.

[138] I also do not accept that Ms. Spielberger reported Mr. Chiorlise’s bad treatment of her to Ms. Soos. I accept Ms. Soos’ testimony on this point over Ms. Spielberger’s testimony. First, Ms. Soos testimony was forthright, overall, and she admitted times where she had done things that she should not have done. She came across to me as a very honest person, who took her oath to tell the truth seriously, even when doing so may make her look bad. Second, throughout Ms. Soos’ testimony, she expressed empathy toward Ms. Spielberger many times. She did not express any anger toward Ms. Spielberger regarding the complaint. Instead, she expressed disappointment regarding the complaint. She said it came as a surprise to her, and that she had no idea Ms. Spielberger had these complaints to make about her work at Sofo. She expressed feelings of defeat because she said she felt she had gone over and above to help Ms. Spielberger with her permanent residency application. Her overall demeanour was one of disappointment and sadness regarding the complaint. Last, Ms. Soos provided personal information about her own immigration history, and she talked about her extensive efforts to support Ms. Spielberger in having a life in Canada because she understood Ms. Spielberger to have had similar experiences to hers. I believe that if Ms. Spielberger had reported bullying and harassment to Ms. Soos, Ms. Soos would have been equally supportive of addressing it, and followed the appropriate procedures set out in Sofo’s policies and procedures for doing so. I also do not accept that Ms. Soos knew or should have known about Mr. Chiorlise’s bad treatment of Ms. Spielberger. Ms. Soos is not a person who worked in the shop environment at Sofo, so she would not have had much in terms of opportunity to observe any of the events that occurred in the shop.

[139] Last, Ms. Spielberger provided no evidence about reporting Mr. Chiorlise’s bad treatment of her to Mr. Porime. I am also not convinced that Mr. Porime knew or should have known about Mr. Chiorlise’s bad treatment of Ms. Spielberger. Ms. Spielberger said that he knew about Mr. Chiorlise’s comments toward her, and he could hear them. However, she provided no further evidence or details about this that could help me conclude it is true. For example, she does not say which incidents of Mr. Chiorlise’s bad treatment Mr. Porime was present for. I recognise that Mr. Chiorlise called one of the discriminatory comments out toward Mr. Porime while Mr. Porime was in the bathroom. However, Ms. Spielberger provided no evidence that can illustrate whether Mr. Porime heard the comment or said anything about it afterwards.

[140] I am also not convinced that Ms. Spielberger reported Mr. Porime’s bad treatment of her to either Mr. Lindl, Ms. or Mr. Soos. She has provided no evidence that she did so. I am also not satisfied that either Mr. Lindl, Ms. Soos or Mr. Soos knew or ought to have known that Mr. Porime engaged in bad treatment of Ms. Spielberger. There is no evidence to support a finding that when he shouted at her that it was her fault he injured her leg, either of them were present. Even if they were present, out of context they would not have known this was him treating her badly. When it comes to Mr. Porime’s comment about Ms. Spielberger being overpaid, there is no evidence that anyone other than Ms. Soos’ mother was present at the time, and there is no evidence that Ms. Soos’ mother would have told either Mr. Lindl, Ms. or Mr. Soos about that comment.

[141] In summary, neither Mr. Lindl, Mr. Porime, Ms. or Mr. Soos knew or ought to have known that Mr. Chiorlise was treating Ms. Spielberger badly. Nor did Ms. Spielberger report to them that Mr. Chiorlise was doing so. Likewise, neither Mr. Lindl, Ms. or Mr. Soos knew or ought to have known that Mr. Porime was treating Ms. Spielberger badly. Nor did she report to them that he was doing so.

[142] Without knowing that they were treating Ms. Spielberger badly at work, there is nothing more that those persons responsible for providing Ms. Spielberger a discrimination-free workplace could have done to ensure that her workplace was discrimination-free. There were no further reasonably necessary steps for them to take.

IX HAS MS. SPIELBERGER PROVEN THAT SOFO KITCHENS LTD. DISCRIMINATED AGAINST HER WHEN IT REDUCED HER WAGES?

[143] Next, I move on to Ms. Spielberger’s allegation that Sofo discriminated against her when it reduced her wages. She alleges that Sofo reduced her wages as part of a pattern of its sex-discrimination toward her.

A. Has Ms. Spielberger proven she experienced an adverse impact because Sofo Kitchens Ltd. reduced her wages?

[144] On May 22, 2020, Sofo reduced Ms. Spielberger’s wage from $23.00 per hour to $20.00 per hour, which resulted in Ms. Spielberger experiencing an adverse impact in the form of a $3.00 loss for each hour she worked for Sofo after that date.

B. Has Ms. Spielberger proven that her sex was a factor in the adverse impacts she experienced when Sofo Kitchens Ltd. reduced her wages?

[145] Ms. Spielberger has asked the Tribunal to draw an inference between the timing of Sofo’s reduction of her wages and the timing of her colleagues’ discriminatory comments toward her, along with other non-discriminatory bullying and harassment she experienced at work, to conclude that her sex was a factor in Sofo’s reduction of her wages. As I understand it, she argues that her colleagues discriminatory comments toward her, and her complaints about them to Sofo, directly contributed to Sofo’s reduction in her wages.

[146] I do not accept Ms. Spielberger’s argument. It is undisputed that decisions about Ms. Spielberger’s wages were solely within Ms. and Mr. Soos’ authority. I have already found that Ms. and Mr. Soos did not know, and could not have known, about Mr. Chiorlise and Mr. Porime’s bad treatment of Ms. Spielberger. It follows that her alleged complaints to Ms. and Mr. Soos about Ms. Chirolise and Mr. Porime’s bad treatment of her could not have contributed to their decision to reduce her wages.

[147] Last, I turn to why I am not convinced that Sofo’s termination of Ms. Spielberger’s employment was discriminatory based on her sex.

X HAS MS. SPIELBERGER PROVEN THAT SOFO KITCHENS LTD. DISCRIMINATED AGAINST HER WHEN IT TERMINATED HER EMPLOYMENT?

A. Has Ms. Spielberger proven that she experienced an adverse impact when Sofo Kitchens Ltd. terminated her employment?

[148] It is undisputed that decisions about Ms. Spielberger’s wages were solely within Ms. and Mr. Soos’ authority. On June 26, 2020, Sofo terminated Ms. Spielberger’s employment, which resulted in Ms. Spielberger experiencing an adverse impact in the form of unemployment and a complete loss of income. I have found that Ms. Spielberger’s sex was not a factor in that adverse impact and dismissed this part of the complaint on that basis. I will now explain these findings.

B. Has Ms. Spielberger proven that her sex was a factor in the adverse impact she experienced when Sofo Kitchens Ltd. terminated her employment?

[149] Ms. Spielberger argues that the timing and pretext surrounding Sofo’s termination of her employment is suspect in that it coincided with a period during which she was experiencing ongoing harassment and had voiced her concerns to Sofo about a hostile work environment. As I understand it, she argues that her colleagues discriminatory comments toward her, and her complaints about them to Sofo, directly contributed to Sofo’s termination of her employment.

[150] I do not accept Ms. Spielberger’s argument. My reasons at paragraph 148 apply equally here, except I replace my references to Sofo’s reduction of Ms. Spielberger’s wages in that paragraph with references to Sofo’s termination of Ms. Spielberger’s employment.

[151] I now turn to my orders.

XI TRIBUNAL ORDERS

A. Order to dismiss parts of the complaint

[152] Under s. 37(1) of the Code , I make an order that the Tribunal dismiss the complaint as it relates the following allegations, because Ms. Spielberger has not proven them:

a. The complaint that Mr. Vulcano, Mr. Hritcu and Mr. Lindl treated Ms. Spielberger badly at work.

b. The complaint that Sofo did not provide Ms. Spielberger with a discrimination-free workplace regarding Mr. Chiorlise and Mr. Porime’s bad treatment of her.

c. The complaint that Sofo reduced Ms. Spielberger’s wages as part of a pattern of sex-based discrimination.

d. The complaint that Sofo terminated Ms. Spielberger’s employment as part of a pattern of sex-based discrimination.

B. Denial of request for order regarding wage loss

[153] I deny Ms. Spielberger’s request for an order under s.37(2)(d)(ii) that Sofo pay her compensation for wages lost as a direct result of Sofo’s discriminatory treatment of her.

[154] The purpose of compensation under s. 37(2)(d)(ii) is to restore a complainant, to the extent possible, to the position they would have been in had the discrimination not occurred: Gichuru v. The Law Society of British Columbia (No. 9) , 2011 BCHRT 18 at para. 300 [ Gichuru ]; upheld in Gichuru v. The Law Society of British Columbia , 2014 BCCA 396 [ Gichuru BCCA ]. The burden of establishing an entitlement to compensation is on the complainant: Gichuru at para. 301. To do so, the complainant must show some causal connection between the discriminatory act and the loss claimed: Gichuru at para. 302.

[155] Ms. Spielberger has not provided any evidence that can prove she experienced a wage loss because of Mr. Chirolise and Mr. Porime’s bad treatment of her. Even if Ms. Spielberger were to have established that their treatment of her caused her to experience lost wages, there is insufficient evidence upon which I could determine the value of that wage loss. There is insufficient evidence regarding the difference between the amount of money that Ms. Spielberger made when she worked at Sofo compared to what she made after working there.

C. Order to refrain from the same or similar conduct

[156] Under s.37(2)(a) of the Code , I order that Sofo cease and refrain from committing the same and similar contraventions of the Code that I describe in paragraph 23.

D. Order of compensation for injury to dignity, feelings and self-respect

[157] Under s.37(2)(d)(iii) of the Code , I order that Sofo pay compensation in the amount of $6,000 to Ms. Spielberger for the injury she experienced to her dignity, feelings and self-respect because of the discrimination she experienced at work. I will now provide the parties’ arguments on this point and explain why I find this to be an appropriate amount of compensation.

[158] Ms. Spielberger seeks an order, under s.37(2)(d)(iii) of the Code , that Sofo pay her $35,000 in compensation for injury to dignity. She argues that this is an appropriate amount because of the emotional toll that the discrimination had on her, the severity of the derogatory comments and behaviours she experienced, and her testimony about the distress and negative impact that the discrimination had on her self-esteem and dignity. She provides no further arguments on this point.

[159] Sofo disagrees with the amount that Ms. Spielberger seeks. It argues that Ms. Spielberger has not pointed to any case law that supports such an order. Ms. Spielberger did not reply to Sofo’s opposition on this point. Sofo argues that compensation for any injury to Ms. Spielberger’s dignity, feelings and self-respect should be no more than $1,500. In support of this argument, Sofo points to a past case where the Tribunal ordered an employer to pay its employee $2,000 in compensation for injury to that employee’s dignity, feelings and self-respect: Gardner and another v. Geldenhuys , 2014 BCHRT 150 [ Gardner ]. The Tribunal had found that one of the complainant’s colleagues singled her out for her dress choices and made a slur to her about people of her racial background being gossips: at paras. 45 and 46. The complainant’s supervisor had also made race-based slurs toward her: at para. 50. Ms. Spielberger did not reply to Sofo’s argument on this point.

[160] I start by noting that the Tribunal is not bound by its past decisions regarding how much compensation it orders for injury to dignity. However, I will keep Gardner in mind. I will also keep in mind that Gardner is ten years old, and that the value of the award in it must be viewed considering inflation.

[161] In deciding an appropriate amount of compensation, I am guided by the factors considered in Gichuru v. The Law Society of British Columbia (No. 9) 2011 BCHRT 185, which include the time and nature of the discrimination, the period and frequency of the discrimination, any vulnerability of the complainant, the impact of the discrimination upon the complainant, and the totality of the relationship between the complainant and respondent: at para. 260; upheld in 2014 BCCA 396. Neither party provided me with meaningful arguments about any of these factors. Regardless, I have assessed them against the evidence before me.

[162] I start with the nature, period and frequency of the discrimination. Mr. Chiorlise’s bad treatment of Ms. Spielberger was frequent throughout the whole course of her employment. The nature of Mr. Chiorlise’s comments toward Ms. Spielberger were moderate on the scale of severity. They were derogatory, degrading, and demeaning, but they were not obscene or indecent.

[163] I now move on to Ms. Spielberger’s vulnerability, which is a term that the Tribunal uses to describe the social and historical context within which she experienced the discrimination. This includes things like systemic patterns of inequality and oppression, and a person’s individual situation as a member of a group that society has stereotyped, disadvantaged, or marginalized: Client v. Spruce Hill Resort & Spa , 2021 BCHRT 104 at para 42; Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others , 2021 BCHRT 137 at para 32 to 35; Ms. K v. Deep Creek Store and another , 2021 BCHRT 158 at paras 139 and 140. I take notice that women are historically and currently under-represented within trades environments. At the time of the discrimination, Ms. Spielberger was the only female person working in a trades shop full of men. She was also an immigrant, and was dependent on Sofo for a job so that she could pursue her permanent residency application and stay in Canada. Her immigration status would have been at risk if she were to lose her employment at Sofo. These factors exacerbate the seriousness of the effects on her of the discrimination that she endured.

[164] Next, I comment on the totality of the relationship between Ms. Spielberger and Sofo who is responsible for the discriminatory conduct toward her. At the time of the discrimination, Ms. Spielberger was only allowed to work for Sofo. She was fully financially dependent on them, and also dependent on them for her immigration status in Canada to continue. This exacerbates the seriousness of the discrimination that she endured.

[165] Last, I comment on the impact of the discrimination on Ms. Spielberger. Ms. Spielberger gave little evidence on this point, which I have summarised at paragraphs 108 to 110. Based on the evidence she did provide, I consider the impact that she experienced to be within the moderate range, which mitigates the merit of a higher compensation amount.

XII Conclusion

[166] Ms. Spielberger has proven her complaint, in part. Those parts she has proven are remedied by the orders I have made. Those parts she has not proven have been dismissed.

Sonya Pighin
Tribunal Member
Human Rights Tribunal