Herr v. Workers’ Compensation Board and another, 2025 BCHRT 42
Date Issued: February 21, 2025
File: CS-001218
Indexed as: Herr v. Workers’ Compensation Board and another, 2025 BCHRT 42
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:
Akval Herr
COMPLAINANT
AND:
Workers’ Compensation Board and Jennifer Moran
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(b), 27(1)(c), 27(1)(f), and 27(1)(g)
Tribunal Member: Robin Dean
On his own behalf: Akval Herr
Counsel for the Respondent: Ben Parkin and Johanna Goosen
I INTRODUCTION
[1] In April 2019, Akval Herr had a meeting with Workers’ Compensation Board [the Board ] employee Jennifer Moran to get advice about an upcoming job interview. Mr. Herr recorded the conversation. During the meeting, Ms. Moran told Mr. Herr that he should take off his baseball cap during the job interview because it was more professional and “[b]ecause it darkens your face too. It sort of – everything’s, like, darker. As soon as you took it off you look more light if that makes sense.” He says that shortly after this comment was made, the Board ended his job search and his benefits.
[2] Akval Herr filed this complaint on May 1, 2020, alleging that the Workers’ Compensation Board and Ms. Moran discriminated against him in services based on colour contrary to s. 8 of the Human Rights Code .
[3] The Respondents deny discriminating and apply to dismiss Mr. Herr’s complaint under ss. 27(1)(b), 27(1)(c), 27(1)(f), and 27(1)(g) of the Code .
[4] Mr. Herr responded to the application to dismiss via email with a link to a GlobalNews article from January 2020 reporting on the comment. He says that the article clearly prints what Ms. Moran said, which he argues was racist. Mr. Herr says that he recorded the conversation with Ms. Moran because she had previously made comments about his culture and his name, but he does not say what those comments were, nor are they included as allegations in his complaint.
[5] I can decide the Respondents’ application under s. 27(1)(c), which requires me to consider whether there is no reasonable prospect Mr. Herr’s complaint will succeed. Taking into account all the circumstances of the complaint, I find that there is no reasonable prospect Mr. Herr will be able to prove that Ms. Moran’s singular comment rises to the level of discrimination contrary to the Code . Further, I am satisfied that the Respondents are reasonably certain to prove that there are solely non-discriminatory reasons why Mr. Herr’s job search ended and his benefits stopped. I dismiss Mr. Herr’s complaint in its entirety.
[6] 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
[7] Mr. Herr was employed in the HVAC industry as a sheet metal worker. In October 2017, Mr. Herr was injured on the job while lifting a bathtub. As I understand it, after the injury, Mr. Herr could no longer work in his previous position, and the Board offered Mr. Herr vocational rehabilitation services, the goal of which was to return Mr. Herr to the workforce in a suitable occupation.
[8] During this process, Mr. Herr was actively looking for jobs, and the Board referred him to Ms. Moran to help with his search, including interview preparation. It was during a meeting to help him prepare for an upcoming interview that Ms. Moran made the impugned comment. Ms. Moran says that she was not referring to Mr. Herr’s skin colour when she made the comment. Rather, she says she was referring to the shadow cast over Mr. Herr’s eyes by the brim of his cap. She says she often gives this advice to workers, regardless of their skin colour.
[9] During this time, Mr. Herr was also receiving job search benefits, which are usually provided for a total of 12 weeks. The Board can extend job search benefits to 26 weeks under certain criteria. Any further extensions must be approved by the Director of Vocational Rehabilitation Services. Mr. Herr’s job search benefits began on March 11, 2019. In June 2019, they were extended to a total of 26 weeks, ending September 9, 2019. Also in June 2019, Mr. Herr was referred to external job support services. The Respondents say that Ms. Moran had no involvement in the decision to bring his job search benefits to an end or to close his vocational rehabilitation services file.
III DECISION
A. Section 27(1)(c) – No reasonable prospect of success
[10] The Respondents apply to dismiss Mr. Herr’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c) The onus is on the Respondents to establish the basis for dismissal.
[11] 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.
[12] 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 .
[13] 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 .
[14] To prove his complaint at a hearing, Mr. Herr will have to prove that he has a characteristic protected by the Code , he was adversely impacted in services, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33. If he did that, the burden would shift to the Respondent to justify the impact as a bona fide reasonable justification. If the impact is justified, there is no discrimination. The Respondents do not advance a justification argument in the materials before me.
[15] The Respondents say that there is no reasonable prospect Mr. Herr will prove that Ms. Moran’s comment was connected to his colour. In the alternative, they say that the singular comment could not constitute discrimination under the Code. Accepting, for the sake of this decision, that Ms. Moran’s comment was about Mr. Herr’s colour, not every negative comment connected to a protected characteristic will violate the Code : Brito v. Affordable Housing Societies , 2017 BCHRT 270 at para. 41. I am satisfied that Ms. Moran’s comment, while perhaps unfortunate, does not warrant state intervention.
[16] In coming to this decision, context is critical. Some of the factors that the Tribunal has identified as significant are “the egregiousness or virulence of the comment, the involved parties, the context in which the comment was made, whether an apology was offered, and whether or not the recipient of the comment was a member of a group historically discriminated against”: Pardo at para. 12.
[17] I do not have any information on whether an apology was offered. And while I gather from the materials before me that Mr. Herr is a racialized person, a group historically discriminated against, I find that the other factors weigh in favour of dismissing the complaint. The comment, while hurtful to Mr. Herr, was not particularly egregious or virulent. The comment did not involve, for example, an egregious racial slur: see Sarba v. Ruskin Construction Ltd. and others , 2022 BCHRT 35 at para. 52. Further, the context in which it was said does not demonstrate any particular virulence towards Mr. Herr. While Ms. Moran could have chosen her words more carefully, I have reviewed the entire transcript of the meeting, which supports my view that the comment was not more virulent than it appears on its face.
[18] In his response, Mr. Herr says that having had “this colour of skin” his whole life, he is particularly attuned to racist scenarios. I pause here to acknowledge that racialized people experience micro-discriminations or “everyday racism”, which is often subtle, despite it being plain to the person experiencing it: Francis v. BC Ministry of Justice (No. 3) , 2019 BCHRT 136 at para. 288, quoting Ontario, Human Rights Commission, Policy and Guidelines on Racism and Racial Discrimination . Though an individual incident may be minor, the cumulative effects of micro-discriminations are serious, and can perpetuate the patterns of inequality associated with discrimination prohibited by the Code : Code, s. 3(d); Clarke v. City of Vancouver and another , 2024 BCHRT 298 at para. 64.
[19] This case, however, is not about the cumulative effects of micro-discriminations. Rather, it is about a single comment. Again, the context is critical when determining whether one comment rises to the level of discrimination. As I have discussed above, while Ms. Moran’s comment was upsetting to Mr. Herr, I am persuaded, given the context, there is no reasonable prospect that Mr. Herr could prove that it amounted to discrimination under the Code .
[20] In terms of the termination of Mr. Herr’s job search benefits, I take it that Mr. Herr is asking the Tribunal to infer from the proximity of the comment to the termination of the benefits that his colour was a factor. I am satisfied that the Respondents are reasonably certain to prove the benefits were terminated for a solely non-discriminatory reason – i.e. the end of the 26-week extension period. Mr. Herr’s suggestion that his colour was a factor is speculation and conjecture.
IV CONCLUSION
[21] I dismiss Mr. Herr’s complaint under s. 27(1)(c) in its entirety. Mr. Herr’s complaint will not proceed to a hearing.
Robin Dean
Tribunal Member