Potekhin v. Brancy One Holdings Ltd. dba Canadian Tire #438 and others, 2025 BCHRT 31
Date Issued: February 12, 2025
File: CS-003979
Indexed as: Potekhin v. Brancy One Holdings Ltd. dba Canadian Tire #438 and others, 2025 BCHRT 31
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:
Alexander Potekhin
COMPLAINANT
AND:
Brancy One Holdings Ltd. dba Canadian Tire #438,
Hodgkinson-Kristoff Inc. dba Canadian Tire #438, and James Arsenault
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(b), 27(1)(c), and 27(1)(d)(ii)
Tribunal Member: Robin Dean
Agent for the Complainant: Ekaterina Potekhina
Agent for the Respondent Hodgkinson-Kristoff Inc. dba Canadian Tire #438: Michelle Hodgkinson-Kristof
Agent for the Respondents Brancy One Holdings Ltd. dba Canadian Tire #438 and James Arsenault: Brad O’Neill
I INTRODUCTION
[1] In December 2020, Alexander Potekhin went to a Canadian Tire where he says he intended to have a key cut and custom paint made, as well as to return an item. At that time, face coverings were mandatory indoors by ministerial order, subject to certain exemptions, and the Canadian Tire had a mandatory mask policy. Mr. Potekhin entered the store without a mask, he says due to his anxiety and depression. He says that he cannot breathe with a mask on and that when he wears a mask, he has panic attacks, and his depression immediately worsens.
[2] According to Mr. Potekhin, the store’s General Manager, James Arsenault, escorted him out of the Canadian Tire even though Mr. Potekhin told him why he was not wearing a mask. Mr. Potekhin says that Mr. Arsenault made him leave the store without offering him any accommodation. On January 12, 2021, Mr. Potekhin filed this complaint alleging discrimination based on mental disability under s. 8 of the Human Rights Code .
[3] The Respondents deny discriminating. They make two applications to dismiss Mr. Potekhin’s complaint. Brancy One Holdings Ltd., the former owner of the Canadian Tire, and Mr. Arsenault [the Brancy One Respondents ] apply to dismiss the complaint under s. 27(1)(c) and 27(1)(d)(ii). They say it was the store’s policy at the time to ask customers who declined to wear masks to leave the store after offering curbside pickup for an online or phone-in purchase. The Brancy One Respondents say Mr. Arsenault was just doing his job that day by following store policy.
[4] Hodgkinson-Kristoff Inc., the current owner of the Canadian Tire, applies under s. 27(1)(b) and 27(1)(c) to dismiss Mr. Potekhin’s complaint against it. It says that it was not the owner of the Canadian Tire at the time that Mr. Potekhin was allegedly ejected from the store and refused service.
[5] In these reasons, I first consider whether the complaint against Hodgkinson-Kristoff has no reasonable prospect of success. In the materials before me is a purchase and sale agreement indicating that Hodgkinson-Kristoff became the current owners of the Canadian Tire in April 2021, four months after the incident, and that Hodgkinson-Kristoff purchased Brancy One Holdings Ltd.’s assets only and not its liabilities. I therefore dismiss the complaint against Hodgkinson-Kristoff.
[6] Next, I consider whether it would not further the purposes of the Code to continue the complaint against Mr. Arsenault. I find that it would not and dismiss the complaint against him.
[7] Finally, I consider whether the complaint has no reasonable prospect of success. Because I am not persuaded that the complaint has no reasonable prospect of success, I allow the complaint to proceed against Brancy One Holdings Ltd. alone.
[8] To make this decision, I have considered all the information filed by the parties. In these reasons, I refer only to what is necessary to explain my decision. I make no findings of fact on the merits.
II DECISION
A. Section 27(1)(c) – No reasonable prospect of success – Hodgkinson-Kristoff
[9] Hodgkinson-Kristoff applies to dismiss Mr. Potekhin’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c) The onus is on Hodgkinson-Kristoff to establish the basis for dismissal.
[10] 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.
[11] 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 .
[12] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority , 2021 BCSC 2176 at para. 20 ; SEPQA v. Canadian Human Rights Commission , [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 [ Hill ] at para. 27 .
[13] To prove his complaint at a hearing, Mr. Potekhin will have to prove that he has a characteristic protected by the Code , he was adversely impacted in services provided by the respondent, 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 Hodgkinson-Kristoff to justify the impact as a bona fide reasonable justification. If the impact is justified, there is no discrimination.
[14] Hodgkinson-Kristoff says that there is no reasonable prospect Mr. Potekhin will prove his case against it because it did not own the Canadian Tire at the relevant time. To support its position, it submits a contract of purchase and sale between it and Brancy One Holdings Ltd.
[15] Mr. Potekhin does not respond to Hodgkinson-Kristoff’s argument or provide any reason why the complaint should not be dismissed against Hodgkinson-Kristoff. Further, Brancy One Holdings Ltd. has stated its position that it is the proper and only respondent to be named in this complaint.
[16] Having reviewed the contract, I am satisfied that Mr. Potekhin’s complaint against Hodgkinson-Kristoff has no reasonable prospect of success.
[17] First, the contract of purchase and sale shows that Hodgkinson-Kristoff took over the Canadian Tire from Brancy One Holdings Ltd. in April 2021, several months after the incident that is the subject of this complaint and almost three months after the complaint was filed. Second, the sale was an asset purchase. Generally, an asset purchase agreement does not include responsibility for liabilities: Wilson v. Canwest Publishing Inc./Publications Canwest Inc. , 2019 BCCA 394 at para. 9. If responsibility for some liabilities is included in the sale, then typically the contract will list which liabilities have been taken on. There is no agreement by Hodgkinson-Kristoff to assume the liabilities of Brancy One Holdings Ltd. in the contract before me.
[18] Given that Hodgkinson-Kristoff did not begin to operate the Canadian Tire until well after the incident, and in light of the contract of purchase and sale, I am satisfied that Mr. Potekhin is not reasonably certain to prove that he was adversely impacted in services provided by Hodgkinson-Kristoff.
[19] I dismiss the complaint against Hodgkinson-Kristoff.
B. Section 27(1)(d)(ii) – Proceeding would not further the purposes of the Code
[20] Section 27(1)(d)(ii) allows the Tribunal to dismiss a complaint where proceeding with it would not further the purposes of the Code . These purposes include both private and public interests: s. 3. Deciding whether a complaint furthers those purposes is not only about the interests in the individual complaint. It may also be about broad public policy issues, like the efficiency and responsiveness of the human rights system, and the expense and time involved in a hearing: Dar Santos v. UBC , 2003 BCHRT 73 , at para. 59 , Tillis v. Pacific Western Brewing and Komatsu , 2005 BCHRT 433 at para. 15, Gichuru v. Pallai (No. 2) , 2010 BCHRT 125, at paras. 113-118.
[21] The Respondents argue that it would not further the Code’s purposes to proceed against Mr. Arsenault: Daley v. BC (Ministry of Health) , 2006 BCHRT 341. I agree.
[22] There are strong policy reasons that favour complaints against individual respondents. As the Supreme Court of Canada has acknowledged, “the aspirational purposes of the Code require that individual perpetrators of discrimination be held accountable for their actions”: British Columbia Human Rights Tribunal v. Schrenk , 2017 SCC 62 at para. 56. This is especially true for allegations of discrimination with a high degree of personal culpability, like sexual or racial harassment: Daley at para. 53.
[23] On the other hand, naming individual respondents can complicate and delay the resolution of complaints, exacerbate feelings of personal animosity, and cause needless personal distress to individuals who are accused of discrimination: Daley at para. 54. Because employers and institutional respondents are liable for the acts of their agents, they will be responsible for any remedy ordered by the Tribunal: Code , s. 44(2); Robichaud v. Canada , [1987] 2 SCR 84. In those situations, the remedial aims of the Code may be most fairly and efficiently fulfilled without holding individuals liable.
[24] The Tribunal balances all these considerations to decide whether the purposes of the Code are best served by having a complaint proceed against individuals as well as an institutional respondent, or against the institutional respondent only. It has identified the following factors as relevant:
a. whether the complaint names an institutional employer as a respondent and that respondent has the capacity to fulfill any remedies that the Tribunal might order;
b. whether the institutional respondent has acknowledged the acts and omissions of the individual as its own and has irrevocably acknowledged its responsibility to satisfy any remedial orders which the Tribunal might make in respect of that individual’s conduct; and
c. the nature of the conduct alleged against the individual, including whether:
i. their conduct took place within the regular course of their employment;
ii. the person is alleged to have been the directing mind behind the discrimination or to have substantially influenced the course of action taken; and
d. the conduct alleged against the individual has a measure of individual culpability, such as an allegation of discriminatory harassment.
Daley at paras. 60-62.
[25] The test in Daley requires that the corporate respondent have the capacity to fulfill any remedies that the Tribunal might order. Here, the Brancy One Respondents have not provided any information on this point. Further, Brancy One Holdings Ltd. has not irrevocably acknowledged its responsibility to satisfy any remedial orders which may be ordered by the Tribunal in respect of Mr. Arsenault’s conduct. The absence of such information and acknowledgment by Brancy One Holdings Ltd. weighs against dismissing the complaint against Mr. Arsenault.
[26] However, in saying that Mr. Arsenault was just following company policy when he escorted Mr. Potekhin from the store, I find that Brancy One Holdings Ltd. has acknowledged the acts and omissions of Mr. Arsenault as its own, despite not using the language of Daley . This weighs in favour of dismissing the complaint against Mr. Arsenault. I also find that the rest of the Daley factors favour dismissing the complaint against Mr. Arsenault. The conduct alleged took place in the regular course of Mr. Arsenault’s employment as the manager of the Canadian Tire, and he was not the directing mind behind the alleged discrimination. Again, the Brancy One Respondents’ position is that he was adhering to the store’s COVID-19 safety protocols during the events in question. For this reason as well, the conduct alleged does not have a measure of individual culpability such that it would be appropriate to keep Mr. Arsenault as a respondent.
[27] Having balanced all the considerations set out in Daley , I dismiss the complaint against Mr. Arsenault.
C. Section 27(1)(c) – No reasonable prospect of success – Brancy One Holdings Ltd.
[28] Brancy One Holdings Ltd. also applies to dismiss Mr. Potekhin’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c) The onus is on Brancy One Holdings Ltd. to establish the basis for dismissal.
[29] Brancy One Holdings Ltd. seems to accept for the purposes of this application that Mr. Potekhin is reasonably certain to make out his case. Instead, Brancy One Holdings Ltd. argues that the complaint has no reasonable prospect of success because it is reasonably certain to prove a justification defence at the hearing: Purdy v. Douglas College and others , 2016 BCHRT 117 at para. 50.
[30] To justify the adverse impacts at a hearing, Brancy One Holdings Ltd. would have to prove that: (1) it adopted the standard for a purpose rationally connected to the function being performed, (2) it adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and (3) the standard is reasonably necessary to the accomplishment of that legitimate purpose. This third element encompasses the duty to accommodate Mr. Potekhin to the point of undue hardship: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 [ Grismer ] at para. 20.
[31] The third element is in dispute here.
[32] Brancy One Holdings Ltd. says that it was store policy at the time to offer those who could or would not wear a mask other alternatives to shopping inside the store including curbside pickup. It does not specify whether these options were offered in this particular case to Mr. Potekhin. Mr. Potekhin says they were not.
[33] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia , 2008 BCSC 1026 at para. 34. However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City) , 2017 BCCA 242 at para. 67.
[34] At best the materials before me on this application reveal a conflict in the evidence. I am satisfied that a hearing is necessary to resolve this conflict. The conflict goes to the heart of whether accommodation was offered to Mr. Potekhin, a foundational or key issue. This does not mean that Mr. Potekhin will necessarily be successful in his compliant. It simply means that I cannot resolve the dispute between the parties based on the materials before me.
III CONCLUSION
[35] I allow the Brancy One Respondents’ dismissal application in part and dismiss the complaint against Mr. Arsenault. I also dismiss the complaint against Hodgkinson-Kristoff. The complaint will proceed against Brancy One Holdings Ltd. alone.
Robin Dean
Tribunal Member