Okhrimchuk v. Domino’s Pizza and others (No. 2), 2025 BCHRT 37
Date Issued: February 20, 2025
File: CS-000476
Indexed as: Okhrimchuk v. Domino’s Pizza and others (No. 2), 2025 BCHRT 37
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:
Alexey Okhrimchuk
COMPLAINANT
AND:
Mad Pizza Company Inc. dba Domino’s Pizza and Bryan Dobb and Sandeep Kaur
RESPONDENTS
REASONS FOR DECISION
Tribunal Member: Edward Takayanagi
On their own behalf: Alexey Okhrimchuk
Counsel for the Respondents: Michelle Quinn, Esra Yacout
Dates of Hearing: November 18-22, 2024
Location of Hearing: Via Videoconference
I INTRODUCTION
[1] This is a complaint alleging discrimination based on race in a workplace. Alexey Okhrimchuk is from Russia and alleges his former employer, Mad Pizza Company Inc. dba Domino’s Pizza, discriminated against him on the basis of his race, ancestry, colour, and place of origin contrary to s. 13 of the Human Rights Code . Mr. Okhrimchuk says Domino’s, its owner Bryan Dobb and the general manager Sandeep Kaur, favoured employees of Indian origin and reduced his hours of work. He says that when he complained about the reduction of hours to Mr. Dobb, his employment was terminated.
[2] The Respondents deny discriminating. They say they reduced Mr. Okhrimchuk’s hours because of performance issues and they terminated his employment solely because of his inappropriate conduct toward management and violation of Domino’s policies.
[3] This case turns on whether Mr. Okhrimchuk has proven that his race, ancestry, colour, and place of origin were a factor in Domino’s reducing his hours and, ultimately, terminating his employment. For the reasons that follow, I find that Mr. Okhrimchuk has not established on a balance of probabilities, that his protected characteristics were a factor in the reduction of his hours of work or the termination of his employment. Therefore, Mr. Okhrimchuk has not established a breach of the Code , and I dismiss the complaint.
[4] The parties called witnesses and introduced evidence over the course of a five-day hearing and provided closing submissions in writing. While I do not refer to it all in my decision, I have considered all of the evidence and submissions of the parties. This is not a complete recitation of that information but only what is necessary to come to a decision.
II BACKGROUND
[5] Mr. Dobb is the owner of Mad Pizza and the franchisee of multiple Domino’s stores in Vancouver. Domino’s is a fast-food pizza chain that offers delivery. Each store is operated by a general manager. Ms. Kaur was the assistant general manager of the store where Mr. Okhrimchuk was employed during 2017 and became the general manager of the store in July 2018.
[6] Mr. Okhrimchuk began working for the Respondents as a part-time delivery biker on May 20, 2017. He was provided an electric bicycle by the Respondents to deliver orders to customers. He was interviewed, hired, and onboarded by the previous general manager. Mr. Okhrimchuk says that his hours of work varied because he was a full-time student, but he would generally work a minimum of 20 hours a week during the school semester and up to 39 hours a week during summer months.
[7] Around February 2018, the store relocated to the Granville entertainment district. Mr. Dobb says the move was a business decision to increase the volume of sales.
[8] Ms. Kaur was promoted from assistant manager of the Granville store to general manager of a Domino’s store in the Kitsilano neighborhood in March 2018. Ms. Kaur returned to the Granville store on or about July 6, 2018, when she was made general manager of the Granville store. She was tasked with improving the overall performance of the store.
[9] Mr. Okhrimchuk says that Ms. Kaur began hiring employees from India and reduced the work hours of all employees who were not of Indian origin. Mr. Okhrimchuk says that when he asked Ms. Kaur why she cut his hours, she told him that his labour costs were higher because he was being paid a higher hourly rate than new hires who could be paid less than minimum wage “under the table.”
[10] The Respondents deny these allegations. Ms. Kaur says she reduced Mr. Okhrimchuk’s hours solely because of his poor job performance. She says he was slow at completing deliveries and performing tasks inside the store and he failed to improve despite coaching.
[11] On August 15, 2018, Mr. Okhrimchuk sent an email to Mr. Dobb complaining about the lack of work hours. Mr. Okhrimchuk alleged that Ms. Kaur was exclusively hiring people of Indian origin and reduced his hours because he is Russian. He also alleged that Ms. Kaur did not allow him to use the washroom during his shifts. Mr. Okhrimchuk asked that Mr. Dobb intervene by increasing his weekly hours to 25-30 hours per week, pay him $1,474 for “lost profit” from the previous four weeks, and eliminate discrimination against him. Mr. Okhrimchuk concluded the email by saying:
I hope for an understanding and peaceful solution of this issue. In case of my dissatisfaction with my requirements for 100%, I would have to turn to all sorts of competent authorities for the protection of my rights, and also to provide a lot of additional “interesting” information. Please to inform me about your decision.
[12] Mr. Dobb took Mr. Okhrimchuk’s letter as a threat.
[13] Mr. Dobb says he investigated Mr. Okhrimchuk’s complaint that his hours had been reduced because he is Russian and concluded it was unfounded. He says that as part of his investigation, he interviewed the store supervisor and Ms. Kaur and was told that Mr. Okhrimchuk’s job performance was poor and not improving. Mr. Dobb says that after completing his investigation he accepted Ms. Kaur’s decision to reduce Mr. Okhrimchuk’s hours based on his poor performance. Mr. Dobb also concluded that Ms. Kaur had not prevented Mr. Okhrimchuk from using the washroom.
[14] During the course of his investigation Mr. Dobb learned that Mr. Okhrimchuk had taken photographs of work schedules and had sent them to a non-employee in violation of the company policies. Mr. Dobb decided to terminate Mr. Okhrimchuk because of his violation of policies and threats to management. On August 16, 2018, Mr. Dobb sent Mr. Okhrimchuk an email terminating the employment saying “Threats have no place in my company. We also have a company policy of no cell phone (camera) of company competitive information (schedule).”
III ANALYSIS AND DECISION
[15] To succeed in his claim of discrimination under s. 13 of the Code , Mr. Okhrimchuk must prove, on a balance of probabilities, that: (1) he has a protected characteristic, in this case his race, ancestry, colour, and place of origin; (2) he experienced an adverse impact in his employment; and (3) his protected characteristics were a factor in the adverse impact: Moore v. BC (Education) , 2012 SCC 61 at para. 33.
[16] There is no dispute that Mr. Okhrimchuk has the protected characteristics of race, ancestry, colour and place of origin. (For ease of reference, I will refer to these protected characteristics collectively as “place of origin” throughout the remainder of the Decision). The Respondents do not dispute that they reduced Mr. Okhrimchuk’s hours of work and terminated his employment. Both of which are adverse impacts. Therefore, the issue I must determine is whether there is a connection between Mr. Okhrimchuk’s protected characteristics and the reduction of his hours and termination.
[17] In order to prove there was a connection between his place of origin and his reduction of hours or termination, Mr. Okhrimchuk needs not show that his place of origin was the sole or overriding factor: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para. 52; Stewart v. Elk Valley Coal Corp. , 2017 SCC 30 at paras. 45 and 46. The test requires him to show it was “a factor”, on a balance of probabilities.
A. Was Mr. Okhrimchuk’s place of origin a factor in the reduction of his work hours?
[18] It is undisputed that Ms. Kaur reduced the number of shifts Mr. Okhrimchuk was assigned a few weeks after she became the general manager of the Granville store on July 6, 2018. Between June 18 to July 8, prior to Ms. Kaur assigning work hours, Mr. Okhrimchuk worked an average of 30 hours each week. Mr. Okhrimchuk continued to work between 25 to 30 hours each week during July. For the week of August 6 to 12, Mr. Okhrimchuk worked 13 hours and for the week of August 13 to 19, Mr. Okhrimchuk was assigned to work 8 hours.
[19] Mr. Okhrimchuk argues that I should draw an inference that his place of origin, Russia, was a factor in Ms. Kaur’s decision to reduce his hours because the reduction of his hours coincides with the increase of work hours for delivery drivers from India and the hiring of additional delivery drivers from India. Mr. Okhrimchuk says that Ms. Kaur told him that the reason for the reduction of his hours was because newcomers to Canada could be paid less than minimum wage “under the table.” Mr. Okhrimchuk also says that Ms. Kaur said, “I hate you Russian mafia.”
[20] I find that Mr. Okhrimchuk has not established on a balance of probabilities that his protected characteristics were a factor in the reduction of his work hours.
[21] First, the undisputed evidence is that delivery drivers and delivery bikers are two different positions. The evidence before me is that drivers deliver orders across longer distances, while bikers are used for shorter distances. Therefore, because the Granville store received delivery orders from customers over longer distances, there was a greater need for drivers rather than bikers. Mr. Okhrimchuk does not suggest and there is no evidence before me that could show that delivery drivers began making deliveries for distances that were previously serviced by bikers. Ms. Kaur testified that upon becoming the general manager of the Granville store she hired two or three drivers but no additional bikers. Because drivers and bikers are different positions and there is no evidence before me that drivers usurped the role of bikers, I cannot draw a reasonable inference that hiring additional delivery drivers or increasing the work hours of drivers has a connection with the reduction of Mr. Okhrimchuk’s work hours, regardless of those drivers’ places of origin.
[22] Second, the parties disagree about Mr. Okhrimchuk’s work performance. Mr. Okhrimchuk asserts that he was never told his performance was not meeting expectations, and he was never cautioned, coached, or instructed to improve his performance. Ms. Kaur testified that she tried to help Mr. Okhrimchuk improve his speed and efficiency, first while an assistant manager, and in July 2018 when she became general manager of the Granville store. Both Ms. Kaur and the store supervisor testified that they had conversations with Mr. Okhrimchuk about improving his turnaround time. The store supervisor testified that the store has timers on all screens to track how long it takes to deliver orders and he observed that Mr. Okhrimchuk’s delivery times were slower than other bikers. Ms. Kaur testified she coached Mr. Okhrimchuk to assemble side dishes, dips and utensils for his order in advance of his order being cooked and to always use the electric bicycle to deliver orders.
[23] Because the parties disagree on what happened, I have assessed the credibility and reliability of the witnesses’ evidence to make findings of fact. Credibility and reliability are distinct concepts. Credibility considers the truthfulness of a witness’s testimony while reliability considers its accuracy: Christensen v. Save-a-Lot Holdings Corp. (No. 3) , 2023 BCHRT 125 at para. 13.
[24] In assessing the credibility and reliability of the witnesses I have considered such factors as the witness’ ability to accurately observe, recall, and recount what occurred, whether the evidence is plausible, whether supporting or contradictory evidence exists, and whether their evidence is internally or externally consistent: Harder v. Tupas-Singh and another , 2022 BCHRT 50 at para. 6. Where the parties give conflicting evidence, I have examined whether each witness’s evidence was in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”: Faryna v. Chorny , 1951 CanLII 252 (BC CA) at para. 11.
[25] For the following reasons I find I prefer the evidence of the Respondents that Mr. Okhrimchuk’s performance as a delivery biker was poor, and his performance did not improve despite coaching.
[26] Mr. Okhrimchuk’s version of events is inconsistent with his own testimony and the preponderance of probabilities in this case. Mr. Okhrimchuk testified that he was never provided feedback on his performance from any supervisor and that he never spoke with Ms. Kaur outside of asking her why his work hours were reduced. He also testified that Ms. Kaur told him to speed up his deliveries and “turn around time” in the store. I find that these comments are a form of feedback that Ms. Kaur provided to Mr. Okhrimchuk.
[27] Further, I do not accept Mr. Okhrimchuk’s testimony that he received no job training and signed no paperwork when he was hired. This is inconsistent with the documentary evidence before me. The Respondents provided onboarding documents signed by Mr. Okhrimchuk and acknowledging that he had been presented with and would conduct himself in accordance with Domino’s policies and procedures. Mr. Okhrimchuk says that all of the Respondents’ documentary evidence are forgeries. The Respondents deny this. The director of operations testified that it is Domino’s standard business practice to provide new employees with these onboarding documents, give employees and opportunity to review them, and have them sign to acknowledge Domino’s presented them with the documents and they agree to conduct themselves in accordance with policies and procedures included in the onboarding materials. Mr. Dobb corroborated this and testified that Domino’s follows this practice. Mr. Okhrimchuk argues that the documents are forgeries because the handwriting is messy, and he has difficulty reading the dates. Mr. Okhrimchuk has provided no proof that the documents are forged – an extremely serious allegation – and I decline to accept it.
[28] Mr. Okhrimchuk says the evidence of the Respondents is not credible because Ms. Kaur was unable to recall with certainty how many delivery drivers she hired, and there are no documentary materials showing that he was cautioned about his performance. I do not agree. I find that witnesses’ fading memories of events that occurred over five years ago is to be expected. Ms. Kaur was forthright about her inability to recall certain facts. I find Ms. Kaur’s inability to recall the number of drivers she hired does not undermine her credibility regarding Mr. Okhrimchuk’s performance issues and how she addressed those issues. I find that Ms. Kaur’s testimony on the central issue – whether she cautioned Mr. Okhrimchuk about his job performance – is consistent, supported by the testimony of the store supervisor, Mr. Dobb, and Mr. Okhrimchuk’s own witnesses who testified they saw Ms. Kaur speaking to him about his pace when they were in the store.
[29] I appreciate the Respondents have not put before me documentary evidence that corroborates their position that Mr. Okhrimchuk had performance issues. However, I find there is consistent testimony from multiple witnesses on which I can rely. The evidence of Ms. Kaur, the store supervisor, Mr. Holden and Mr. Bradulov, – the latter two who were Mr. Okhrimchuk’s witnesses – was that delivery bikers are expected to make deliveries speedily. Mr. Holden and Mr. Bradulov also testified that delivery bikers are expected to perform additional duties inside the store including cleaning, assembling boxes, and restocking the fridge. The witnesses all agreed that the role of the general manager is to provide coaching, feedback, and assistance to employees.
[30] Mr. Okhrimchuk disagrees with the evidence of his own witnesses and says that he had no additional duties as a delivery biker. He says that he was not required to restock the fridge or do anything but make deliveries. He further disagrees that speed is an important metric for measuring the performance of a delivery biker and testified that there were many reasons why he would not make prompt deliveries including the weather, the distance of the delivery address, and whether elevators at the delivery address were in use.
[31] Mr. Okhrimchuk denies he was told his job performance was inadequate or that he was coached to improve his performance. I find the Respondents’ evidence on this point more persuasive. Both Ms. Kaur and the store supervisor testified that they observed Mr. Okhrimchuk was slow at completing deliveries. Each said they spoke to Mr. Okhrimchuk, but he was resistant to improving his performance and refused to accept criticism or coaching. Further, Mr. Okhrimchuk’s own testimony is that Ms. Kaur told him he was spending too much time in the store between deliveries.
[32] Based on the evidence I find that Mr. Okhrimchuk’s performance as a delivery biker was not meeting expectations, and that he was cautioned and coached to improve his performance.
[33] I next consider Mr. Okhrimchuk’s allegation that Ms. Kaur told him that she prefers newcomers to Canada because they could be paid less than minimum wage and that she said, “I hate you Russian mafia.” Ms. Kaur denies making such statements. Because the parties disagree on what happened, I again consider the credibility and reliability of the witnesses’ evidence to make a finding of fact. Based on the totality of the evidence I find the Respondents’ version of events to be more persuasive.
[34] Mr. Okhrimchuk’s version of events is inconsistent both internally and with the other evidence. Mr. Okhrimchuk testified that the only conversation he had with Ms. Kaur was when he asked her why she reduced his hours. He testified that she told him she preferred employees she could pay less than minimum wage in cash “under the table.” This is inconsistent with Mr. Okhrimchuk’s testimony about other conversations he says he had with Ms. Kaur about his use of the washroom and when she said, “I hate you Russian mafia.”
[35] Further, it defies credulity that Ms. Kaur would tell one of her employees that she was making covert payments to other employees the first and only time she spoke to him. Ms. Kaur was an experienced manager, working at an established business, who gave evidence in a straightforward manner. I prefer her evidence that she did not tell Mr. Okhrimchuk she preferred to hire newcomers to Canada because she could pay them under the table.
[36] In addition, Mr. Okhrimchuk’s evidence does not accord with the payroll summary entered in evidence. That document lists many employees who are paid a rate of $11.00 an hour. Mr. Okhrimchuk did not point to anyone who was not on the list who worked at Domino’s, nor did he suggest there are additional employees of Domino’s who are not listed on the documents. Viewed in totality, I find that Mr. Okhrimchuk’s suggestion that Ms. Kaur said she was making payments to employees under the table is not supported in any evidence.
[37] Finally, I address the allegation that Ms. Kaur said, “I hate you Russian mafia”. Mr. Okhrimchuk says the statement shows that his protected characteristics were a factor in Ms. Kaur reducing his work hours. Ms. Kaur denies making such a statement. I accept that Ms. Kaur did not make this statement.
[38] As the Respondents point out, this is a new allegation that Mr. Okhrimchuk raised for the first time in the hearing. Mr. Okhrimchuk did not include this allegation in his complaint, nor did he mention this in the letter he sent to Mr. Dobb alleging discrimination by Ms. Kaur. When asked why Mr. Okhrimchuk had not mentioned this allegation before, he first said that a clinician at the legal clinic who assisted him in completing his complaint form instructed him not to include the allegation. He next responded that the Tribunal’s complaint form did not provide sufficient space to include all of his allegations. He also said that he did not believe that Ms. Kaur making such comments was relevant to his complaint of discrimination and placed “no value” on the statement.
[39] Mr. Okhrimchuk’s evidence is sparse, internally inconsistent, and defies credulity. First, Mr. Okhrimchuk does not provide any context for the alleged statement. Mr. Okhrimchuk says it occurred when Ms. Kaur was not the general manager but provided no other information. When asked, Mr. Okhrimchuk was unclear if the statement was directed at him and could not say what the circumstances were that prompted Ms. Kaur to make the comment.
[40] Second, Mr. Okhrimchuk’s witness did not corroborate his evidence, despite the fact he questioned her on the subject. Mr. Okhrimchuk asked his witness, Ms. Cherkashyna if she heard Ms. Kaur make such a statement. She said she did not hear Ms. Kaur say, “I hate you Russian mafia.” In his closing submissions Mr. Okhrimchuk alleges that the statement Ms. Kaur made was that she hates “Russian and Ukrainian mafia.” Whether the allegation is that Ms. Kaur said Russian or Russian and Ukrainian, the fact remains Ms. Cherkashyna did not corroborate Mr. Okhrimchuk’s version of events. And the shifting nature of his allegation weighs against finding his evidence credible.
[41] Finally, I have trouble accepting Mr. Okhrimchuk’s evidence about why he did not include this allegation in the complaint. It is difficult to accept that a legal advocate would advise Mr. Okhrimchuk not to include Ms. Kaur’s comment in his complaint given the complaint is based on place of origin and this was the most direct evidence going to a central issue in the complaint. Mr. Okhrimchuk’s explanation that the Tribunal’s complaint form did not have enough space to include this statement, is equally hard to accept. It is one sentence, and under “How to use this form”, the Tribunal instructs that “You can add up to 5 pages to Step 3 if this form does not have enough space”. Step 3 is the portion of the complaint form that asks complainants for details of the discrimination.
[42] For the above reasons, I prefer Ms. Kaur’s evidence that she never made a comment about hating Russian (or Ukrainian) mafia.
[43] Based on the totality of the evidence, I find Mr. Okhrimchuk has failed to prove that his place of origin was a factor in the Respondents decreasing his hours.
B. Was Mr. Okhrimchuk’s employment terminated because of his place of origin?
[44] Mr. Okhrimchuk says that his termination is connected to his place of origin. I understand Mr. Okhrimchuk to be asking me to infer that there is a connection because there were no issues with his performance and the reasons given by the Respondents for his termination: the threat made in the complaint letter and the breach of company policy by sending non-employees schedules, is not credible.
[45] Human rights jurisprudence has consistently recognized that a decision that the Code has been contravened may be based on circumstantial evidence, and in the inferences that are reasonable to be drawn from that evidence: Hill v. Best Western and another , 2016 BCHRT 92. The applicable test is 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”: Vestad v. Seashell Ventures Inc. , 2001 BCHRT 38 para. 44.
[46] I have found above that Mr. Okhrimchuk’s poor job performance was an issue for the Respondents. I next consider the letter Mr. Okhrimchuk sent to Mr. Dobb.
[47] I find Mr. Okhrimchuk’s letter to Mr. Dobb speaks for itself. Mr. Okhrimchuk states that if his demands, including being scheduled for additional work hours are not met to his 100% satisfaction, he will turn to authorities and provide them interesting information. Mr. Okhrimchuk testified that he considered the letter a warning to Mr. Dobb to do as he demands. I find a reasonable interpretation of Mr. Okhrimchuk’s letter is that it is a threat. Moreover, whether it is characterized as a threat or a warning is a distinction without a difference in this context. There is a clear implication that should Mr. Okhrimchuk not be given what he wants there will be consequences for Mr. Dobb and Domino’s.
[48] Mr. Dobb testified that threats and blackmail have no place in his business. He said that he considered the letter wholly inappropriate and decided to terminate Mr. Okhrimchuk’s employment because of the letter.
[49] Mr. Dobb also said that he learned that Mr. Okhrimchuk had violated the company policies by using a cell phone at work to take photographs of the work schedule and distributed it to a non-employee. The Respondents provided a copy of Domino’s policies into evidence. The relevant portions state, “Employees cannot use personal cell phones (this includes texting & emailing) during work hours, on company property” and that confidential information including work schedules “is to be kept confidential and not distributed.” The policy provides that the consequence of violating policies is disciplinary action up to and including termination.
[50] It is undisputed that Mr. Okhrimchuk violated Domino’s policies. He testified that he took photographs of the work schedule and that he distributed it to a former employee. I also accept Mr. Dobb’s evidence that he learned of this violation on August 16, 2018, in the course of investigating Mr. Okhrimchuk’s complaints.
[51] Mr. Okhrimchuk says Mr. Dobb is not a credible witness because he, and Domino’s, have been involved in other litigation including a complaint by another employee before the Tribunal. I am not persuaded that a respondent being named in multiple complaints is a basis for finding a witness is not credible. Insofar as Mr. Okhrimchuk is saying that Mr. Dobb is not credible because he did not recall with precision the details of his involvement in other litigation, I find this is not an issue in the present complaint and does not affect Mr. Dobb’s recollection about the reason he terminated Mr. Okhrimchuk.
[52] I find the timing of the termination on August 16, 2018, after Mr. Dobb received Mr. Okhrimchuk’s letter the previous day and learning about the breach of Domino’s policies does not support an inference that Mr. Okhrimchuk’s place of origin was a factor in the decision to terminate Mr. Okhrimchuk.
IV CONCLUSION
[53] Based on the evidence, I find the Respondents did not violate the Code . Accordingly, the complaint is dismissed in its entirety under s. 37(1) of the Code .
Edward Takayanagi
Tribunal Member