Fournier v. Canfor Pulp Ltd., 2025 BCHRT 35
Date Issued: February 20, 2025
File: CS-004522
Indexed as: Fournier v. Canfor Pulp Ltd., 2025 BCHRT 35
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:
Mary-Jane Fournier
COMPLAINANT
AND:
Canfor Pulp Ltd.
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Edward Takayanagi
Counsel for the Complainant: Kieran Meehan
Counsel for the Respondent: Maggie Campbell
I INTRODUCTION
[1] Mary-Jane Fournier is a woman who worked in a male-dominated environment at Canfor Pulp Ltd. She alleges that when she was training for a new job at Canfor’s pulp mill, she was treated differently from male colleagues including being blamed inappropriately for errors and being disciplined more severely. She alleges discrimination in employment on the basis of sex contrary to s.13 of the Human Rights Code .
[2] Canfor denies discriminating and applies to dismiss the complaint without a hearing under s. 27(1)(c) of the Code . It says there is no reasonable prospect that the complaint will succeed because Ms. Fournier was disciplined solely for her inappropriate conduct, and insubordination.
[3] In this decision I consider whether Ms. Fournier has no reasonable prospect of proving her complaint at a hearing. For the reasons that follow, I am satisfied that Canfor is reasonably certain to establish that it had legitimate non-discriminatory reasons for its actions. I find therefore there is no reasonable prospect Ms. Fournier would be able to establish a connection between her sex and the adverse impact and dismiss the complaint under s. 27(1)(c).
[4] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.
II BACKGROUND
[5] Ms. Fournier was employed by Canfor from 2008 to 2021. During the period of the complaint, Ms. Fournier was being trained for the “A” digester operator position where she would operate and monitor processing machinery to produce pulp and paper.
[6] Ms. Fournier says the workplace was predominantly male and she was bullied and harassed during her employment. Specifically, she makes three allegations of discrimination by Canfor.
[7] First, she says that on March 23, 2020, she made a complaint of harassment by her trainer saying he was rude and abrasive. She says she met with Canfor’s representatives and gave evidence about her complaint, but Canfor failed to respond in a meaningful way.
[8] Second, she says that on June 1, 2020, she was disciplined for insubordination and unsafe operation of equipment by her Team Lead. She says the Team Lead called her workstation and noted elevated levels of a gas in a storage tank she was operating and instructed her to shut down the tanks. When she said she intended to fill the tanks to their maximum capacity she was reprimanded and told this was improper procedure. The Team Lead ordered Ms. Fournier to shut down the system, which she did.
[9] The Team Lead instructed Ms. Fournier to report to his office with a union shop steward. Ms. Fournier did not do so. After Ms. Fournier did not report to the Team Lead’s office, he came to find her and immediately suspended her.
[10] Third, Ms. Fournier says that on November 20, 2020, while working with another employee on the “A” digester she was treated dismissively and belittled. She says that she asked the employee a number of questions about the operation of the equipment throughout her shift. When she was unable to resolve an issue with the equipment the employee told her, “For the fifth time it’s your flow”. In response Ms. Fournier jumped out of her chair, yelled at the employee, and left the room. Ms. Fournier was disciplined for her conduct towards the employee.
III DECISION
[11] Canfor applies to dismiss Ms. Fournier’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c). The onus is on Canfor to establish the basis for dismissal.
[12] 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.
[13] 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.
[14] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority , 2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission , [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.
[15] To prove her complaint at a hearing, Ms. Fournier will have to prove that she has a characteristic protected by the Code , she was adversely impacted in employment, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33.
[16] Canfor does not make submissions on the first two elements of Moore . The issue for me to decide on this application is whether there is no reasonable prospect that Ms. Fournier can establish at a hearing that her sex was a factor in the handling of her harassment complaint and being disciplined.
[17] Based on the information and materials before me at this stage, in my view there is no reasonable prospect the Tribunal would find after a full hearing that Ms. Fournier’s sex was a factor in the adverse impacts. I consider each of Ms. Fournier’s allegations in turn.
A. Was sex a factor in how Canfor responded to Ms. Fournier’s complaint of harassment?
[18] Ms. Fournier says Canfor failed to respond to her complaint about her trainer. In her response submissions, she concedes that Canfor took some action but says it did not respond “in a meaningful way.” While Ms. Fournier does not articulate what she found to be inadequate in Canfor’s response or what she found not to be meaningful, I understand that Ms. Fournier was dissatisfied with the outcome of her complaint.
[19] Canfor disputes that they did not respond to Ms. Fournier’s complaint of harassment. It says after Ms. Fournier complained of her trainer’s behaviour on or about March 1, 2020, it took appropriate action by investigating her complaint. It says Canfor’s human resources team interviewed the trainer alleged to have acted inappropriately, reviewed documentary materials about Ms. Fournier’s work training, and met with Ms. Fournier and her union shop steward on a number of occasions. Canfor says while the investigation was ongoing, it supported Ms. Fournier by switching her shift schedule so she would not work with the trainer. Canfor says the COVID-19 pandemic caused some delay of its investigation process, but it concluded its investigation on or about April 23, 2020, and found that Ms. Fournier’s complaint fell outside the scope of its bullying and harassment policy and no further action was required.
[20] An employer has an obligation under the Code to take allegations of discrimination seriously and to respond accordingly, including by investigating a complaint of discrimination in a reasonable and appropriate manner: Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others , 2021 BCHRT 137 at para. 90.
[21] In the present circumstances, Canfor has provided contemporaneous documentary materials including its bullying and harassment policy that guided their investigation of Ms. Fournier’s complaint, notes from the investigation, and internal correspondence about the complaint.
[22] In light of Canfor’s evidence about their response to Ms. Fournier’s complaint, I am not satisfied that Ms. Fournier’s assertion that Canfor did not respond in a meaningful way has been taken out of the realm of conjecture. Neither Ms. Fournier’s allegation that Canfor did not respond to her complaint nor that it did not respond in a meaningful way is supported in the evidence.
[23] I appreciate that Ms. Fournier was disappointed by the result of the investigation. However, I cannot draw a reasonable inference that Ms. Fournier’s protected characteristic was a factor in Canfor’s response to her complaint because Canfor has provided evidence contradicting the assertion that they did not respond in a meaningful way and are reasonably certain to prove at a hearing that they conducted an investigation with Ms. Fournier being given a full and fair opportunity to participate and present her version of events. The assertion that Ms. Fournier’s sex was a factor in Canfor’s handling of her harassment complaint has not been taken out of the realm of conjecture.
[24] I next consider the allegation of being crisis suspended on June 1, 2020.
B. Was sex a factor in Canfor disciplining Ms. Fournier on June 1, 2020?
[25] In my view, there is no reasonable prospect that the Tribunal would find after a full hearing the Ms. Fournier’s sex was a factor in her being disciplined on June 1, 2020. I am persuaded that Canfor has provided a reasonable non-discriminatory explanation that is supported in the documentary materials.
[26] Canfor says that its decision to suspend Ms. Fournier was based solely on her insubordinate acts – arguing with her Team Lead about the operation of the equipment, and failing to report to the Team Lead’s office as directed. Canfor has provided contemporaneous notes from the Team Lead detailing how he noted the pooling of gas in the tank, how he contacted Ms. Fournier to deal with the issue, and that Ms. Fournier argued that she was operating the equipment normally. The Team Lead believed Ms. Fournier’s response to be inappropriate and dangerous. He says he directed Ms. Fournier to shut down the equipment and report to his office with a union shop steward. When Ms. Fournier did not come to his office, he went to her worksite and found her smoking outside. He says the reason for her crisis suspension was her inappropriate response over the phone and her failure to report to his office as directed.
[27] Ms. Fournier asserts that her sex was a factor in how Canfor treated her because she was reprimanded for allowing gas to pool in a tank when other male employees who do so are not disciplined. She also says that being suspended was a disproportionate reaction to her not subsequently reporting to the Team Lead’s office. Ms. Fournier says that a hearing is necessary because there are credibility issues arising out of the conflict in the parties’ evidence.
[28] 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. It is only when there are foundational or key issues of credibility, that the complaint must go to a hearing: Francescutti v. Vancouver (City) , 2017 BCCA 242 at para 67.
[29] In my view, the conflicts in the evidence are not foundational to the issues raised in the complaint and the response to the complaint and can be resolved on the basis of the documentary materials before me. The parties agree on the central facts. Ms. Fournier agrees that she was allowing gas to pool in the storage tank and that she was instructed by the Team Lead to take steps to prevent this. The parties agree that Ms. Fournier interrupted the Team Lead multiple times during their phone call and told him she would not continue the conversation unless he spoke to her respectfully. She also agrees that she was told to report to the Team Lead’s office with a union shop steward after shutting down her workstation, she did not report to the office nor contact a union shop steward, and she was having a cigarette when he came down and suspended her.
[30] Discrepancies in the parties’ recollection of the tone of voice of the Team Lead and Ms. Fournier when they spoke on the phone, who hung up on the other, or whether 17 or 30 minutes elapsed between Ms. Fournier being told to report to the office and being found having a cigarette is not foundational to the issue of whether Ms. Fournier’s sex was a factor in Canfor’s decision to discipline her. Similarly, because Canfor says the sole reason Ms. Fournier was disciplined was her insubordination, whether she operated the equipment in the same manner as male employees is not a foundational issue that must be tested through cross-examination. Canfor has provided documentary evidence including the contemporaneous notes and correspondence showing that the sole reason for disciplining Ms. Fournier was her conduct rather than the operation of equipment.
[31] Canfor has provided a reasonable explanation for disciplining Ms. Fournier that is supported in the contemporaneous documentary evidence by way of the Team Lead’s notes and internal communications. The materials support Canfor’s position that its decision to discipline Ms. Fournier by placing her on a suspension was based solely on her insubordination on June 1, 2020. In light of this, the assertion that Ms. Fournier’s sex was a factor in her discipline has not been taken out of the realm of conjecture.
C. Was sex a factor in how Canfor disciplined Ms. Fournier on November 20, 2020?
[32] Finally, I find there is no reasonable prospect that Ms. Fournier could succeed in establishing that her sex was a factor in Canfor’s discipline of her on November 20, 2020.
[33] Here, Ms. Fournier says there are foundational discrepancies in the parties’ version of events that requires the complaint to proceed to a hearing. I do not agree. The parties have provided a consistent version of events that culminated in Canfor disciplining Ms. Fournier.
[34] The parties agree that on November 20, 2020, Ms. Fournier was training with another employee on the “A” digester. The parties agree that during the shift, Ms. Fournier asked a number of questions about the operation of the equipment to which he provided information and guidance. The parties agree that the employee eventually said to Ms. Fournier in response to a question, “For the fifth time it’s your flow.” The parties also agree that in response, Ms. Fournier yelled at the employee saying, “I will not be belittled” and left her workstation.
[35] Canfor has provided documentary evidence including notes from meetings involving Canfor’s human resources team, Ms. Fournier, and her union shop stewards where she confirmed what occurred on November 20, 2020. The materials support Canfor’s explanation that the sole reason Canfor decided to discipline Ms. Fournier was because she confirmed that she acted contrary to Canfor’s rules and policies toward the employee and she refused to commit to abide by Canfor’s rules and policies including its bullying and harassment policy, respect in the workplace policy, and code of conduct.
[36] Ms. Fournier asserts that she was simply standing up for herself and was disciplined for behaviour that a male employee would not receive. Ms. Fournier says that her sex was a factor in her treatment by Canfor because the workplace has long been a toxic and hostile environment for women.
[37] While I appreciate Ms. Fournier believes her sex was a factor in her discipline by Canfor, in my view the materials before me do not support such a conclusion. I am persuaded that Ms. Fournier has no reasonable prospect of succeeding in her complaint because on the basis of the materials before me I cannot reasonably conclude that her assertion that her sex was a factor in her treatment by Canfor has been taken out of the realm of conjecture. Canfor has provided evidence contradicting Ms. Fournier’s assertion that she was disciplined because of her sex and supporting its non-discriminatory explanation for disciplining Ms. Fournier. I am persuaded that Ms. Fournier has no reasonable prospect of succeeding in her complaint. Accordingly, I dismiss the complaint under s. 27(1)(c).
IV CONCLUSION
[38] I dismiss the complaint in its entirety under s. 27(1)(c).
Edward Takayanagi
Tribunal Member