BC Human Rights Tribunal

Blaine v. Vancouver Island Health Authority, 2025 BCHRT 41

Date Issued: February 21, 2025
File: CS-002945

Indexed as: Blaine v. Vancouver Island Health Authority, 2025 BCHRT 41

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:

Becky Blaine
COMPLAINANT

AND:

Vancouver Island Health Authority
RESPONDENT

REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(b), 27(1)(c), 27(1)(d)(ii), and 27(1)(g)

Tribunal Member: Robin Dean

Counsel for the Complainant: Emily Zarychta

Counsel for the Respondent: Alon Mizrahi

I INTRODUCTION

[1] Becky Blaine alleges that she is Indigenous and has anxiety, borderline personality disorder, agoraphobia, and a needle phobia. In her complaint, she alleges that Vancouver Island Health Authority [ Island Health ] discriminated against her in the provision of a service based on mental disability and race contrary to s. 8 of the Human Rights Code . She says that the discrimination is ongoing.

[2] In particular, Ms. Blaine alleges that she has experienced and continues to experience a pattern of poor treatment by Island Health including handling her roughly, making negative comments towards her and showing her disrespect, making medical mistakes, involving security frequently, removing her from hospitals by force, and failing to supply an Indigenous liaison or support. She describes herself as a “regular” at Island Health’s hospitals and says she is almost always “mistreated”.

[3] Ms. Blaine’s complaint focuses on several events which she says demonstrate a pattern of mistreatment, in particular:

1. placing a violence alert in her medical file in the form of a purple dot in 2013;

2. treating her roughly during triage on January 15, 2020;

3. stabbing her with needles as well as refusing to give her the prescription for medication that she was prescribed while at one of Island Health’s hospitals, both on June 6, 2020;

4. overprescribing her medication and assaulting her on November 5, 2020; and

5. failing to provide her with culturally safe care through an Indigenous Liaison Nurse.

[4] Ms. Blaine says the alleged mistreatment was based, at least in part, on stereotypical and prejudicial assumptions about her Indigeneity and mental health. She says that her cultural and disability-related needs were not accommodated in a way that would have supported her ability to access Island Health’s services. She relies on In Plain Sight: Addressing Indigenous-specific Racism and Discrimination in B.C. Health Care , a report about discrimination experienced by Indigenous persons in the BC health care system. She says that because of the discrimination she has experienced, she is afraid to go to the hospital, including for important preventative care.

[5] Island Health denies discriminating and applies to dismiss Ms. Blaine’s complaint under s. 27(1)(b), 27(1)(c), 27(1)(d)(ii), and 27(1)(g) of the Code . The issues I must decide are:

a. whether Ms. Blaine’s complaint fails to allege a contravention of the Code ;

b. whether there is no reasonable prospect Ms. Blaine will establish that her race and/or mental disability was a factor in the poor treatment she alleges;

c. whether proceeding with the complaint about the violence alert would not further the purposes of the Code because Island Health investigated the violence alert and purportedly removed the purple dot from Ms. Blaine’s medical record; and

d. whether the Complaint is out of time.

[6] For the following reasons, I deny Island Health’s application. 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.

II BACKGROUND

[7] Ms. Blaine’s complaint consists of her original complaint and three amendments. The parties disagree about the scope of the complaint. Therefore, it is helpful to go through the background of the complaint in the context of what is alleged by Ms. Blaine in her complaint and the amendments.

[8] In her original complaint, which was filed with the Tribunal on September 24, 2020, Ms. Blaine alleges that Island Health labelled her medical files with a purple dot, which “identifies me as aggressive & violent”. The original complaint also alleges that on June 6, 2020, hospital staff acted in a rude and hostile manner towards her, hospital security harassed her, a nurse stabbed needles into her, another nurse failed to provide Ms. Blaine with her prescription, and hospital staff violated her medical privacy.

[9] Ms. Blaine’s original complaint was not accepted for filing because it did not allege a connection between the treatment she described and her protected characteristics. However, the Tribunal offered Ms. Blaine an opportunity to provide more information, which she did in her first amendment. In the first amendment, Ms. Blaine explains:

On first appearance I identify as a native woman, my race is very clear from my appearance. As a native woman with anxiety attacks and agoraphobia, they perceived me as a violent person and put a purple dot on my file in 2013 without telling me. This resulted in hospital staff approaching me differently, seeing me as hostile, so there was no safe and quality treatment for me right away…I could not access safe treatment because of this purple dot. This is discrimination. It’s been 7 years of racism and abuse. They misused the purple dot. I don’t get quality care and full medical treatment.

….

I found out about the purple dot in 2016.

[10] The first amendment also alleges that on January 15, 2020, hospital staff treated Ms. Blaine “aggressively” and “abusively” and called the police, who “chased me around to arrest me under the Mental Health Act ”.

[11] The first amendment contains allegations that predate September 24, 2019, which the Tribunal determined would be treated as background information to Ms. Blaine’s complaint.

[12] The Tribunal accepted the complaint and the first amendment for filing after determining that the first amendment set out facts that, if proven, could be a contravention of the Code .

[13] After the complaint was accepted for filing, Ms. Blaine hired counsel, who filed the second and third amendments. The second amendment sets out further particulars, rather than new allegations. The second amendment also describes incidents that occurred prior to September 24, 2019, which Ms. Blaine says were provided as “context”.

[14] The second amendment explains some of the history surrounding the purple dot issue. Ms. Blaine says that she first learned about the purple dot in November 2016 but that the purple dot dates back to at least 2007, which is the earliest medical record that Ms. Blaine has access to.

[15] As I understand it, Ms. Blaine alleges that she made inquiries with Island Health about the purple dot in her file. She says that on July 5, 2019, Island Health representatives wrote to her confirming that they were unable to determine who had placed the purple dot in Ms. Blaine’s medical record, nor could they tell Ms. Blaine the reason why it had been placed there.

[16] Ms. Blaine says that she then initiated a complaint with the BC Ombudsperson regarding the origin and continued use of the purple dot in her medical records. As I understand it, the BC Ombudsperson and the Patient Quality Care Review Board investigated the purple dot issue, and the purple dot was purportedly “expunged” from Ms. Blaine’s medical record in or around October 16, 2020. Despite being removed from her medical file, Ms. Blaine alleges that she continues to find purple dots in her medical records with Island Health.

[17] The second amendment gives further details as to what allegedly occurred on January 15, 2020 at the Royal Jubilee Hospital. Ms. Blaine says that when she arrived at the hospital, a nurse checked her blood pressure on her left arm. She says she had recently undergone surgery to remove some of her lymph nodes, and the nurse lifted her arm beyond its capacity. She says that the nurse ignored her request to be gentle and continued to lift her arm, causing her pain. Ms. Blaine says that she asked for the charge nurse but decided to leave when she found out that the nurse checking her blood pressure was the charge nurse.

[18] After she left, Ms. Blaine says that three security guards followed her even though she told them she was leaving and asked to be left alone. She says this caused her to have a panic attack, when a nurse intervened, telling the security guards to leave. As they were leaving, Ms. Blaine says that one of the security guards told her, “You’ll be back, I know how this works, and I’ll get you.”

[19] The second amendment also details what Ms. Blaine alleges occurred on June 6, 2020 at a visit to the same hospital. Ms. Blaine says that she disclosed her fear of needles to the nurse who was attending to her because she was about to receive a medication by injection. She says she asked that the needle be injected into her hip rather than her arm because that would allow her to manage her needle phobia better. Ms. Blaine says the nurse told her: “you will take it where we give it to you”, harshly stabbing the needle into Ms. Blaine’s arm. Ms. Blaine says she began to cry when the charge nurse approached her along with a “male employee” to speak with her. Ms. Blaine says that she asked to speak in a more private location, but the charge nurse refused. The “male employee” also refused to leave to give her privacy with the charge nurse.

[20] At that point, Ms. Blaine alleges that the doctor informed her of her diagnosis and gave her instructions on care. She alleges that a nurse, Nurse C, handed Ms. Blaine her medical file, which had the purple dot on it, and said to the charge nurse: “she’s a troublemaker. I have had problems with her before.” Nurse C had Ms. Blaine’s prescription but did not give it to her. Instead, Ms. Blaine had to arrange to have it faxed to her pharmacy. Ms. Blaine says that Nurse C laughed at a comment made by another nurse in 2016 that “The Indians are on the war path.” Nurse C denies laughing at this comment.

[21] At a visit to the Victoria General Hospital on November 5, 2020, Ms. Blaine says that she was again treated poorly. She alleges that she called the hospital’s Indigenous Liaison Nurse to support her when she arrived at the hospital. The Indigenous Liaison Nurse allegedly said that she was too busy to assist Ms. Blaine and that in any event she only works in the community, not in the hospital.

[22] Ms. Blaine says that she asked the triage desk whether the purple dot was still on her file and asked for a specific nurse, Nurse M, to come help her. She says that another nurse, Nurse J, came by the desk and said, “you deserve that purple dot” and told the triage desk, “this is the third time she has been here today, she is spoiled.” Ms. Blaine says that it was her second time at the hospital that day.

[23] Ms. Blaine alleges that Nurse J then involved hospital security, telling security, “she is a troublemaker”. Ms. Blaine says at that point she felt anxious and started crying.

[24] Ms. Blaine alleges that she was then put in a room where Nurse M ordered that she be given double her normal dose of Lorazepam, also known as Ativan. Ms. Blaine says that this amount of Ativan rendered her impaired. She asked Nurse M to stay with her until she was discharged from the hospital because she was concerned that security would become involved if she were left alone. Nurse M left, however, and Ms. Blaine decided that she would leave the hospital. She said she was not comfortable staying without support.

[25] After leaving the hospital, Ms. Blaine tripped and fell into a bike lane and was returned to the hospital by ambulance. She says that she was experiencing neck and back pain from the fall. Once back at the hospital, Ms. Blaine says that she asked for Nurse M or the Indigenous Liaison Nurse, who were not available. When Ms. Blaine found out that neither nurse was available, she rolled off the hospital bed and started crawling towards the exit. She says that two security guards approached her and grabbed her wrist, twisting her arms behind her back. She says she heard one of the security guards say to the other one, “listen for the pop.” Ms. Blaine says she screamed due to shoulder pain. In the evidence before me is a video showing Ms. Blaine crawling across the hospital floor and the interaction she had with security and hospital staff. While the video appears to show two security guards lifting Ms. Blaine off the hospital floor by her arms, the video has no sound.

[26] Ms. Blaine says that she did not seek medical attention for her shoulder until January 2021 because she was waiting for Island Health to confirm that there was no longer a purple dot in her medical records. During that visit, a doctor ordered a sling. The nurse preparing the sling allegedly told Ms. Blaine that she could not afford a “proper” sling and refused to give her one. Instead, she gave Ms. Blaine a “free” sling, which was tied with zap straps which Ms. Blaine was concerned could cut her. Ms. Blaine ended up paying 21 dollars for the sling.

[27] In February 2021, Island Health confirmed that on November 3, 2020 the purple dot was re-applied to her medical record because hospital staff read a notation on her file that said “V/Care Plan” to mean “violence”. Island Health confirmed that on November 5, 2020, hospital staff involved in her care thought that “V/Care Plan” meant violence as well.

[28] Ms. Blaine says that she has at one point had a purple dot on her medical records at Royal Jubilee Hospital, Victoria General Hospital, Saanich Peninsula Hospital, and Campbell River Hospital. She says in her third amendment that she still has issues with the purple dot being in her medical records, finding one again on January 12, 2022.

[29] The third amendment, which was filed just prior to the application to dismiss, outlines what Ms. Blaine refers to as “ongoing discrimination”. She also says that she did not attend an MRI appointment that had been long awaited because she feared discrimination and harassment when accessing this health care. She says that she has not been provided with access to an Indigenous Liaison Nurse except when she is actively receiving care in hospital. She says her privacy continues to be invaded and security called when she tries to access care.

III Preliminary issue: scope of the complaint

[30] There is an issue about the scope of the complaint. The parties disagree on what are allegations and what are particulars in the complaint and its amendments. Their understandings about the scope of the complaint have guided their arguments on this application. I must resolve the dispute about the scope of the complaint so that it is clear whether any unfairness has resulted to Island Health in their ability to respond to what has been set out by Ms. Blaine in her complaint form and the three amendments. In other words, the issue is whether Island Health faced a moving target affecting the procedural fairness of this process.

[31] The complaint form, including any amendments that the Tribunal accepts, sets out the scope of the complaint, but the Tribunal distinguishes allegations from details or particulars: Kirchmeier v. University of British Columbia , 2021 BCHRT 149 at paras. 9 to 10. The Tribunal described the distinction between details and new allegations at para. 20 of Powell v. Morton , 2005 BCHRT 282:

… I must consider whether the amendment contains, on the one hand, further details of the facts on which the complainant intends to rely, or whether, on the other, it constitutes an expansion of the allegations made against the respondents. If the former, it will constitute particulars; if the latter, an amendment. This determination is not to be made in a narrow or technical way, but in a manner which will ensure that the parties are accorded procedural fairness, and that particulars are not used to expand a complaint beyond what can reasonably be said to have been alleged in it. Another way of looking at the question is to ask whether the materials in issue come within the scope of the complaint filed with the Tribunal, or whether they seek to expand the scope of the complaint.

[32] Island Health asserts that the facts alleged in the original complaint and the first amendment contain Ms. Blaine’s allegations. Their position is that the details in the second and third amendments are particulars and not additional allegations. Island Health focuses their arguments on the purple dot, the events of January 15, 2020, and the events of June 6, 2020, briefly addressing November 5, 2020 and Ms. Blaine’s access to an Indigenous liaison nurse in their reply and sur-reply submissions.

[33] Ms. Blaine says that Island Health ignores large parts of her complaint at their peril. She says that her complaint broadly alleges ongoing discrimination, pointing to the following statement in the first amendment:

I have been prevented from safe and quality care, they target me and discriminated against me. I want the system to change and without discrimination against people like me.

[34] As I read Ms. Blaine’s complaint, the allegation is that she has been prevented from receiving safe and quality care in accessing Island Health’s services. This is a broad allegation, which has been further particularized in the complaint form and the amendments. These particulars include facts about the purple dot, the events of January 15, June 6, and November 5, 2020, and access to an Indigenous liaison nurse.

[35] In the case of the first and second amendments, Island Health was aware of the allegations and further particulars contained in them at the time that they filed their application to dismiss. Island Health was able to address the information in the third amendment in their reply submissions as permitted by the Tribunal given how close the third amendment was filed to the application to dismiss. Because Island Health was given notice and a full opportunity to address the allegations and particulars in the application to dismiss materials, there is no moving target issue here and no unfairness that would result to Island Health from a holistic consideration of all the allegations and their particulars contained in the complaint and the three amendments.

IV Preliminary issue: further submissions

[36] Ms. Blaine and Island Health have both filed applications to file a further submission, also known as a sur-reply. The Tribunal’s process regarding applications usually involves three rounds of submissions: the application, the response, and the reply: Rule 28(2). However, the Tribunal has discretion to accept further submissions where fairness requires that a party be given an opportunity to respond to new issues raised in a reply: Kruger v. Xerox Canada Ltd (No. 2) , 2005 BCHRT 24; Rule 28(5). A party who wants to apply to make further submissions is required to immediately notify the Tribunal and file the application within one week of the reply: Rule 28(5).

[37] The sur-reply applications were filed on time, therefore, the only question before me is whether the parties raised new issues in the reply and sur-reply and whether fairness requires that I give the parties an opportunity to make further submissions.

[38] I begin with Ms. Blaine’s application. Ms. Blaine says that Island Health introduced new arguments and new evidence in their reply, including two new affidavits. Ms. Blaine also says she should be allowed to make submissions about new evidence that Island Health disclosed after she filed her response, specifically two new videos. These videos capture the November 5, 2020 incident where she crawled across the hospital floor. She provides further submissions on these videos as well as the admissibility of the Ombudsperson and Patient Care Quality Review Board materials and findings. She also includes an argument that Island Health’s reply submissions confirm that credibility is a significant issue in this case.

[39] I allow Ms. Blaine’s application to file a sur-reply. I accept that Island Health’s reply did introduce new evidence, which Ms. Blaine should have an opportunity to respond to. Fairness requires that I give Ms. Blaine the opportunity to make further submissions on these issues and evidence.

[40] I turn to Island Health’s application to file a sur-reply. I also allow this application. I consider Island Health’s arguments with respect to the issues raised by the two new affidavits, as Ms. Blaine’s sur-reply raised new matters that Island Health should have an opportunity to respond to. In terms of the videos, this is also the first time that Island Health has been able to provide submissions on them; therefore, I consider their arguments in reply to Ms. Blaine’s further submissions on the videos.

[41] While I have not found the need to resort to the Ombudsperson and Patient Care Quality Review Board materials and findings in this decision, as discussed below, I did consider the parties’ arguments with regards to my ability to do so.

V DECISION

A. Social Fact Evidence

[42] I pause to note Ms. Blaine’s argument that I must assess the parties’ submissions against the backdrop of the widespread systemic racism against Indigenous peoples that continues to exist within BC’s health care system, and which has been discussed previously by this Tribunal in Mr. C. v. Vancouver Coastal Health Authority and another , 2021 BCHRT 22 and Broersma v. Fraser Health Authority , 2024 BCHRT 26. It was also the subject of a public inquiry, which resulted in the In Plain Sight report. Finally, I am guided by the report of now Justice Walkem, Expanding Our Vision: Cultural Equality & Indigenous Peoples’ Human Rights, where healthcare was identified as a common area of vulnerability for Indigenous peoples in BC. These sources confirm that Indigenous people are a marginalized group, disproportionately impacted by discrimination in the provision of health care services. This is especially true for Indigenous people, like Ms. Blaine, who have intersecting points of vulnerability, such as Indigenous women and Indigenous people living with mental disabilities.

[43] Further, Ms. Blaine asks me to consider the damaging stereotypes about people with mental illness, which continue to pervade our society, and which were considered by the Tribunal in Customer v. A Restaurant and a manager , 2018 BCHRT 38:

People living with mental illness notoriously experience stigma from their wider community: Saadati v. Moorhead, 2017 SCC 28 at para. 21; Battlefords and District Co-operative Ltd. v. Gibbs, 1996 CanLII 187 (SCC), [1996] 3 SCR 566 at para. 31. Its effect is to “unjustly and unnecessarily [impede] their participation … in civil society”: Saadati at para. 21. Unlike other types of disability, mental illnesses “often become a master status; that is, a person’s identity is engulfed by their illness, which dictates how they are perceived and treated by society”: [James D. Livingston, “Mental Illness- Related Structural Stigma: The Downward Spiral of Systemic Exclusion Final Report” (Mental Health Commission of Canada, October 2013)] at p. 8. Stereotype and stigma can lead to profiling people based on preconceived ideas about their character, with the effect that they are treated with suspicion, marginalized, or altogether excluded from significant areas of public life: Ontario Human Rights Commission, “Policy on preventing discrimination based on mental health disabilities and addictions” (2014) [OHRC Policy] at p. 27.

A common stereotype about people with a mental illness is that they pose a danger to others: Davis v. Sandringham Care Centre and another, 2015 BCHRT 148; OHRC Policy at pp. 13-15 and 27-28. For example, in Petterson and Poirier v. Gorcak (No. 3), 2009 BCHRT 439, the Tribunal held that a housing provider acted upon “a stereotypical view that some mentally ill persons … are unpredictable, dangerous and a threat to the safety of others”: at para. 476… [at paras. 36-37]

[44] These stereotypes and prejudices against Indigenous peoples and people with mental disabilities “intersect and overlap, with compounding effects”: RR v. Vancouver Aboriginal Child and Family Services Society (No. 6) , 2022 BCHRT 116 at para. 350.

[45] Social context alone is not determinative of the outcome of a particular complaint: Campbell v Vancouver Police Board (No. 4) , 2019 BCHRT 275 at para. 104. Ms. Blaine still bears the burden to prove the elements of her case, based on evidence properly submitted at a hearing. However, as the Tribunal said in Campbell (No. 4) :

Social context can be helpful to interpreting demeanour or understanding why parties might be likely to act in a certain way, given their social background and history: see e.g . O.P.T. v. Presteve Foods Ltd. , 2015 HRTO 675 at e.g. para. 132. In this case, Ms. Campbell’s behaviour during the police encounter is directly at issue in this complaint, and so social context evidence may assist the Tribunal to better understand her reaction in the circumstances. Social context can also shed light on the link between a person or group’s protected characteristics and their adverse treatment: see e.g. Radek v. Henderson Development (Canada) and Securiguard Services (No. 3) , 2005 BCHRT 302. I have already identified that Ms. Campbell’s complaint turns on an inference of discrimination, and that social context may be relevant to that issue.

[46] As Ms. Blaine relies in part on social fact evidence, it is important to keep these principles in mind as the parties’ arguments are assessed, particularly under s. 27(1)(b), s. 27(1)(c), and s. 27(1)(g).

B. Section 27(1)(g)

[47] There is a one-year time limit for filing a human rights complaint: Code, s. 22. Section 22 is meant to ensure that complainants pursue their human rights remedies promptly so that respondents can go ahead with their activities without the possibility of a dated complaint: Chartier v. School District No. 62 , 2003 BCHRT 39 at para. 12.

[48] Island Health argues that the purple dot allegation is late filed and should be dismissed under s. 27(1)(g) of the Code. I must decide two issues: (1) whether the complaint is late filed, and (2) if so, whether to exercise my discretion to accept it because it is in the public interest to do so and there is no substantial prejudice to any person because of the delay: Code, s. 22(3) , School District v. Parent obo the Child , 2018 BCCA 136 at para. 68 .

[49] The complaint is not late filed. The earliest purple dot allegation in the complaint dates to June 6, 2020, which is in time given that the complaint was filed on September 24, 2020.

[50] Island Health argues that the complaint about the purple dot is late given that Ms. Blaine discovered it in her medical files in 2016. As I read the complaint and its amendments, Ms. Blaine is not asking the Tribunal to find a contravention of the Code dating back to 2016 or even 2007, which is the earliest medical record that Ms. Blaine has access to, and which Ms. Blaine says shows the purple dot. Rather, Ms. Blaine has provided information about finding the purple dot in these earlier instances as context and background information to the allegations in the complaint.

[51] This case is not like Downer v. Northern Health Authority , 2011 BCHRT 2, where the complainant tried to bring a complaint about a notation in his medical record from one and half years prior, back when the timeline for filing a complaint was six months. The Complainant argued that he should be allowed to bring his complaint because he had only discovered the notation three months before he filed his complaint. Although the Tribunal acknowledged that the discoverability issue weighed in favour of accepting the complaint for filing, the Tribunal was ultimately persuaded that it would not be in the public interest to do so because the complainant seemed to have named the wrong respondent and the merits were weak. Here, the circumstances are different. While the notation only occurred once on Mr. Downer’s medical records, Ms. Blaine continues to find the purple dot on hers. The alleged discrimination is ongoing, and, as discussed above, in time.

[52] For these reasons, I decline to dismiss Ms. Blaine’s complaint about the purple dot under s. 27(1)(g). Because the complaint is not late filed, I need not consider public interest or substantial prejudice.

C. Section 27(1)(b) – No arguable contravention

[53] Section 27(1)(b) of the Code gives the Tribunal the discretion to dismiss all or part of a complaint if it does not allege facts that could, if proven, contravene the Code . Under s. 27(1)(b), the Tribunal only considers the allegations in the complaint and information provided by the complainant. It does not consider alternative scenarios or explanations provided by the respondent: Bailey v. BC (Attorney General) (No. 2), 2006 BCHRT 168 at para. 12; Goddard v. Dixon , 2012 BCSC 161 at para. 100; Francescutti v. Vancouver (City), 2017 BCCA 242 at para. 49. The threshold for a complainant to allege a possible contravention of the Code is low: Gichuru v. Vancouver Swing Society , 2021 BCCA 103 at para. 56.

[54] In this case, Ms. Blaine must set out facts that, if proved, could establish that she has a characteristic protected by the Code , she was adversely impacted in services, and her protected characteristic was a factor in the adverse impact : Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33.

[55] Island Health says that Ms. Blaine’s complaint regarding the June 6, 2020 incident does not allege facts that could, if proven, breach the Code . Specifically, Island Health says that Ms. Blaine has “not alleged that she was told anything discriminatory that day.” Rather, Island Health argues that she uses the complaint about the June 6, 2020 incidents to complain about the “war path” comment that Nurse C allegedly laughed at in 2016.

[56] As I read it, however, Ms. Blaine’s complaint is about what she alleges happened on June 6, 2020, not in 2016. Her complaint is that she was handled roughly by a nurse while injecting medication into her arm, that she was called a “troublemaker” by Nurse C, and that Nurse C refused to give her the prescription that the doctor had written and instead required her to arrange with hospital administration to get the prescription faxed to her pharmacy. Ms. Blaine further alleges that during these interactions, her privacy was not respected and that the purple dot was on her medical file. Like all the allegations contained in the complaint and its amendments, the backdrop to these allegations is that she received poor treatment in accessing Island Health’s medical services because she has mental disabilities and is Indigenous.

[57] I understand Ms. Blaine’s argument to be that the Tribunal could infer that her protected characteristics were a factor in the poor treatment she says she received, based on the frequency of the negative interactions she experienced and the social fact evidence regarding the discrimination that Indigenous peoples and people with mental disabilities experience in the health care system. She says the poor treatment she experienced was animated by stereotype and assumption. Ms. Blaine also alleges that Nurse C called Ms. Blaine a “troublemaker” on June 6, 2020. Ms. Blaine says this view was based on stereotype, causing her to be singled out for heightened scrutiny in the hospital setting. These allegations are enough to overcome the low bar of s. 27(1)(b).

[58] I deny the application to dismiss the June 6, 2020 allegations under s.27(1)(b).

D. Section 27(1)(c) – No reasonable prospect of success

[59] Island Health applies to dismiss Ms. Blaine’s complaint in its entirety on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c). The onus is on Island Health to establish the basis for dismissal.

[60] 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.

[61] 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 .

[62] 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 .

[63] 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.

[64] To succeed at a hearing Ms. Blaine would have to prove that she is protected from discrimination on the grounds of race and mental disability, and that those characteristics were a factor in Island Health’s conduct in the context of the medical care she received: Moore v. BC (Education) , 2012 SCC 61 at para. 33. A connection may be proven by inference.

[65] An inference of discrimination may arise “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 at para. 44. The question is whether an inference of discrimination is more likely than Island Health’s explanation for the conduct complained of. It is not necessary that Island Health’s conduct be consistent only with the allegation of discrimination and not any other rational explanation. Like any case of discrimination, Ms. Blaine’s disabilities need only be a factor in the adverse treatment she alleges: Québec (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.

[66] Island Health argues that there is no reasonable prospect Ms. Blaine will establish that her protected characteristics were a factor in the decision to place a purple dot on her file. They further argue that her complaints about poor treatment, particularly the January 15, June 6, 2020, and November 5, 2020 incidents, do not have “an air of reality” and are contradicted by Island Health’s evidence. They essentially argue that things did not happen as Ms. Blaine says they did.

1. Purple Dot

[67] Island Health says there is no reasonable prospect Ms. Blaine will be able to prove a connection between her protected characteristics and placing a purple dot on her medical file. They say the purple dot complaint cannot succeed given that there is no evidence of who placed the purple dot on her file and no understanding of the reasons why it was placed there. They say that a hearing will not elicit any further evidence on this point as they have already investigated the matter and found no information.

[68] This argument, however, goes both ways. The Tribunal may infer that discrimination is more probable than not based on all of the circumstantial evidence, including a respondent’s explanation for their conduct: Young Worker v. Heirloom and another , 2023 BCHRT 137 at para. 47. While Ms. Blaine has not produced any direct evidence about why the purple dot was placed on her file, neither has Island Health produced any evidence of non-discriminatory reasons for placement of purple dot. It is Island Health’s burden on this application to persuade the Tribunal that a complaint has no reasonable prospect of success. Ms. Blaine need only point to some evidence that takes her complaint out of the realm of conjecture.

[69] Ms. Blaine says that she is visibly Indigenous and informs hospital intake about her mental disabilities upon arrival. She says that when she is anxious, she talks loud and fast and says that because of this “they perceive me as a violent person right away.” She says that since the purple dot has been on her file, “hospital staff approach[ed] me differently” and that she has been deprived of safe and quality health care as a result. She says that the addition of the purple dot on her medical file, while discrimination in and of itself, pervaded all her dealings with the hospital.

[70] This information combined with the social context in which these events happened, showing that Indigenous peoples with mental disabilities are likely to be seen as violent, aggressive, and untrustworthy, could lead to an inference that Ms. Blaine’s protected characteristics were a factor in the decision to place a violence alert on her file. More information may be needed at the hearing, but I am satisfied that Ms. Blaine has taken her complaint out of the realm of speculation and conjecture. And while a respondent can rebut an inference of discrimination by providing a reasonable, non-discriminatory explanation for the conduct, Probyn v. Vernon Dodge Jeep , 2012 BCHRT 87at para. 28, again, here, there is no evidence as to the reason why the purple dot was put on Ms. Blaine’s file, non-discriminatory or otherwise. In light of no explanation, it is open to the Tribunal to infer that stereotype guided the decision, at least in part.

[71] I am not persuaded that this aspect of Ms. Blaine’s complaint has no reasonable prospect of success, and I decline to dismiss it under s. 27(1)(c).

2. January 15, 2020, June 6, 2020, & November 5, 2020

[72] Turning to the events on January 15, June 6, and November 5, 2020, the parties’ versions as to what happened generally differ. Island Health acknowledges this, saying that their evidence contradicts Ms. Blaine’s. They say that despite these contradictions, a hearing is not necessary because Ms. Blaine’s version of events has “serious inconsistencies” and no “air of reality”. They say that their evidence states the “true facts” of the matter.

[73] In terms of January 15, Island Health says Ms. Blaine made a false report to the police because she told the police that the triage nurse struck her in the head. They say that her complaint, which does not allege that the nurse struck her in the head, is inconsistent with this police report; therefore, Ms. Blaine’s evidence should not be accepted. In the materials before me, the triage nurse denies striking Ms. Blaine in the head.

[74] I do not find the inconsistency between the police report and the allegations before this Tribunal to be a reason to dismiss Ms. Blaine’s complaint. There are many reasons why Ms. Blaine may have decided not to include this physical assault allegation in a human rights complaint. Making a false accusation is not the only possible explanation.

[75] Island Health also says that there is no evidence that hospital staff knew Ms. Blaine was Indigenous and had mental disabilities on January 15. They say that “a respondent should not make assumptions about a person’s background based on their appearance.” I have noted above Ms. Blaine’s evidence in terms of her Indigeneity and mental health issues — i.e. she is visibly Indigenous and reports her mental disabilities. I have also explained the social context and stereotypes surrounding these identities, which persist. These stereotypes exist and are based on assumptions that people make based on a person’s appearance and behaviour. While the triage nurse says she did not know, Ms. Blaine says she did. I find the central conflict in the evidence about what people knew about Ms. Blaine’s protected characteristics necessitates a hearing.

[76] Finally in terms of the January 15 allegations, Island Health says that Ms. Blaine decided to leave and that they did not deny her care. They say that this is “most detrimental” to her claim. It is unclear from Island Health’s argument how this is a basis to dismiss her claim. Even if Ms. Blaine did choose to leave the hospital, the Tribunal could still find discrimination based on what Ms. Blaine alleges occurred while she was at the hospital, which she says caused her to leave. This situation is analogous to the employment context where losing employment can be an adverse impact even if the employee resigns, for example where a work environment becomes poisoned as a result of discriminatory harassment and the employee leaves as a result.

[77] Turning to June 6, Island Health says that Ms. Blaine did not allege any discriminatory conduct on this date. This is a 27(1)(b) argument, and I have addressed it above. As Island Health has not made an argument under s. 27(1)(c) in relation to June 6, I decline to consider this further.

[78] With respect to November 5, Island Health says that Ms. Blaine elected to crawl from her bed and leave the hospital. They say in doing so, she was not assaulted by security. As with the January 15 incident, even if Ms. Blaine chose to leave the premises, she says she left because she felt unsafe due to Island Health’s alleged conduct. As discussed above, this Tribunal could still find discrimination if she left voluntarily. And while Island Health says that Ms. Blaine was not assaulted by security, she says that she was. She says this allegation is supported by the video evidence. I am satisfied that a hearing is necessary for both parties to explain what happened in the video in order to resolve this foundational contradiction in the evidence.

3. Indigenous Liaison Support

[79] Ms. Blaine alleges that Island Health failed to consistently supply an Indigenous liaison or support to her.

[80] Island Health submits correspondence between Ms. Blaine and hospital staff including with the Indigenous Health Services team, which it says encapsulates the “difficulties that [Island Health] has faced when trying to provide [Ms. Blaine] with services.” It characterizes Ms. Blaine’s communications as “hostile” and “escalated”. It says that Island Health tried to provide Ms. Blaine with Indigenous liaison services, but that Ms. Blaine’s communications inhibited her ability to access this care in a meaningful manner. It points out that Ms. Blaine “went so far as to call the members of the [Indigenous Liaison] team ‘too white’ for her.” I understand Island Health’s argument to be that it tried to accommodate Ms. Blaine by providing her with Indigenous Health Services, and it did what it reasonably could have given Ms. Blaine’s behaviour.

[81] I must be careful when determining whether I should parse out allegations, which considered in context might amount to discrimination. In Byelkova v. Fraser Health Authority , 2021 BCSC 1312, the BC Supreme Court said the Tribunal should consider that dismissing part of a complaint could “later prove embarrassing, in the sense of prompting inconsistent adjudicative decisions or foreclosing otherwise appropriate findings due to past rulings”: Byelkova at para. 115. At para. 214 of Fraser v. Tolko Industries Ltd. , 2021 BCHRT 118 the Tribunal said:

I decline to parse out, and dismiss, any of Mr. Fraser’s particular allegations between January 29 and November 8, 2018. I consider the Court’s recent comments in Byelkova . Mr. Fraser’s many allegations of adverse treatment after his injury must be considered in context with each other. Some allegations on their own might not rise to the level of discrimination or might not appear connected to a ground of discrimination, but might do so when viewed contextually.

[82] I find similar situation here. Ms. Blaine’s complaint and its amendments allege an ongoing pattern of negative treatment that she has experienced from Island Health, which she says prevented her from accessing culturally safe healthcare as an Indigenous person. Ms. Blaine says the behaviour that Island Health points to, which it says is hostile and escalated, actually shows frustration and the increasing desperation of “an aging woman who fears deeply for her health and the possible consequences of feeling unsafe in accessing health care services.” In my view, the Indigenous liaison allegation is part and parcel of the larger allegation that Ms. Blaine has been denied safe and quality medical care. While some of the allegations might not rise to the level of discrimination on their own, they might when viewed in context. I therefore decline to parse out and dismiss this part of Ms. Blaine’s complaint.

[83] Further, I am not satisfied that there is no reasonable prospect that the complaint will succeed. Island Health says that Ms. Blaine will not be able to prove nexus. But Ms. Blaine alleges that she required Indigenous health services as an accommodation because of her Indigeneity and mental disability. Here, the connection, or nexus, between the adverse impact alleged and Ms. Blaine’s protected characteristics is inherent. While it will be open to Island Health at the hearing to argue that it accommodated Ms. Blaine up to the point of undue hardship, I do not have enough information or argument before me on this application to determine whether it is reasonably certain to do so. I do note, however, the Tribunal’s decision in Radek v. Henderson Development (Canada) and Securiguard Services (No. 3) , 2005 BCHRT 302, where the Tribunal stated that a justification defence that centres on people’s reaction to discrimination would be tantamount to blaming them “for refusing to continue to tolerate the discriminatory treatment she was receiving”: para. 484.

[84] I deny the application to dismiss under s. 27(1)(c).

E. Section 27(1)(d)(ii) – Proceeding would not further the purposes of the Code

[85] Island Health says that the Ombudsperson has reviewed the complaint about the purple dot, [1] and that Island Health has removed the purple dot, changed its policies surrounding violence alerts, apologized, and offered Ms. Blaine counselling services as a result of the review. Island Health asserts that “[i]t does not further the purposes of the Code for the Tribunal to use its resources on this case where the subject matter has been reviewed and the situation has been remedied.” [2] They say that outside of injury to dignity there are no further orders that the Tribunal could make and that the hearing will take days or weeks to complete.

[86] Ms. Blaine submits that this is not the kind of situation where the Tribunal should dismiss under s. 27(1)(d)(ii). She says the violence alert issue has not been resolved as she continues to find purple dots on her file. She says she still feels like she cannot safely access Island Health’s services. Ms. Blaine argues that the impact on her has been severe and has eroded the trust that she has in Island Health. She says that the apology from Island Health was not prompt and happened only after years of complaints and investigations. Finally, she says that she neither wanted nor asked for the counselling services offered by Island Health.

[87] For the reasons that follow, I agree that the situation has not been remedied such that dismissal under s. 27(1)(d)(ii) would be inappropriate.

[88] The Tribunal can 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.

[89] Generally, where a complaint of discrimination has been appropriately resolved, proceeding with the complaint would not further the purposes of the Code because the discrimination has already been remedied: Williamson at para. 13. The Tribunal’s ability to fulfill the purposes of the Code is harmed when its resources are taken up with complaints that have already been adequately addressed, whether through settlement, unilateral respondent action or other proceedings: Williamson at para. 13.

[90] For the Tribunal to dismiss a complaint under s. 27(1)(d)(ii) on the basis that the respondent has appropriately addressed the alleged discrimination, the respondent must persuade the Tribunal that:

a. The respondent took the complainant’s discrimination claim seriously;

b. The respondent appropriately addressed the impact on the complainant; and

c. Where necessary, the respondent took appropriate steps to ensure the discrimination would not happen again: see, e.g., Horner v. Concord Security Corp , 2003 BCHRT 86; Williamson ; Aflakian v. Fraser Health Authority , 2011 BCHRT 170; Baker v. Brentwood College School and another , 2011 BCHRT 170.

[91] The Tribunal’s analysis under s. 27(1)(d)(ii) is contextual and case specific. Alongside the above requirements for dismissing a complaint on the basis that the alleged discrimination has been addressed, the Tribunal may also consider relevant contextual factors, such as: the seriousness of the alleged discrimination; the timeliness of the respondent’s response to the allegation; the nature of its response (e.g., whether the respondent investigated the allegation); whether the respondent acknowledged the discrimination; whether the complainant was compensated for their losses; whether the respondent has a discrimination policy; and the importance of encouraging parties to address allegations of discrimination in a timely and constructive manner: see Baker at para. 47. Not every factor listed is relevant to every case.

[92] Here, I am persuaded that the purple dot problem and its impact on Ms. Blaine has not been remedied or resolved. The alleged discrimination is serious; indeed, it implicates Ms. Blaine’s health. Ms. Blaine continues to find purple dots on her medical files when she goes to the hospital, and Ms. Blaine says the presence of the purple dot discourages her from seeking medical attention.

[93] Island Health acknowledges that there was a purple dot in Ms. Blaine’s medical record on November 3, 2020 and January 12, 2022, after it was purportedly expunged from her files. In terms of November 3, 2020, it explains that a nurse mistakenly put a purple dot of Ms. Blaine’s file because the nurse misinterpreted a notation on Ms. Blaine’s file reading “V/Care Plan” to mean that Ms. Blaine was violent.

[94] Island Health says Ms. Blaine caused the purple dot to be added to her file on January 12, 2022. According to Island Health, Ms. Blaine told hospital staff that day that she had an “aggression history” and a history of having a purple dot on her file. As the electronic medical record system was down, the triage nurse put a purple dot on Ms. Blaine’s file because she thought hospital policy required her to do so. As soon as Island Health was alerted to the issue, it says it removed the purple dot.

[95] While the issue may have been taken seriously and investigated through Island Health’s own and external processes, and while Island Health may have determined that the purple dot should have never been put on Ms. Blaine’s medical records, I cannot say that it would not further the purposes of the Code to proceed with Ms. Blaine’s complaint about the purple dot. Island Health explains why there were purple dots on Ms. Blaine’s file in November 2020 and January 2022, however, these explanations fall short of persuading me that the issue has been resolved or remedied.

[96] Further, the purposes of the Code include providing redress, including financial compensation for injury to dignity, feelings and self-respect, for persons who suffer discrimination: Scott v. Otis Canada (No. 3) , 2009 BCHRT 254 at para. 62. On the materials before me, Island Health has not offered such compensation to Ms. Blaine. While Island Health has offered an apology and counselling services, I am not persuaded that an apology or counselling services have appropriately addressed the impact on Ms. Blaine. Ms. Blaine characterizes the impact on her as severe and ongoing. The complaint involves an alleged pattern of behaviour with respect to the purple dot, which Ms. Blaine says she has spent many years trying to resolve. Under these circumstances, I find that a hearing is necessary to determine whether an injury to dignity award would be appropriate.

VI CONCLUSION

[97] I deny Island Health’s application to dismiss Ms. Blaine’s complaint. The complaint will proceed.

Robin Dean

Tribunal Member