Shaikh v. GN Johnston Equipment Co. Ltd. and another, 2025 BCHRT 53
Date Issued: February 28, 2025
File: CS-001160
Indexed as: Shaikh v. GN Johnston Equipment Co. Ltd. and another, 2025 BCHRT 53
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:
Ali (Alex) Shaikh
COMPLAINANT
AND:
GN Johnston Equipment Co. Ltd. and Steve Davie
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(b)
Tribunal Member: Devyn Cousineau
On their own behalf: Ali (Alex) Shaikh
Counsel for the Respondents: Dianne D. Rideout
I INTRODUCTION
[1] This is a decision about whether to dismiss Ali Shaikh’s human rights complaint without a hearing.
[2] Mr. Shaikh worked for GN Johnston Equipment for two months. He describes himself as a brown man, of South Asian background, of the Muslim faith. He alleges that two of his co-workers, including the individual respondent Steve Davie, made anti-Muslim comments. He says that his employment was terminated in circumstances which suggest that his religion, race, ancestry, and colour were a factor. He says this was discrimination in employment, in violation of s. 13 of the Human Rights Code.
[3] The Respondents deny discriminating. They say that the alleged discriminatory comments could not be discrimination. They say that the decision to terminate Mr. Shaikh’s employment was made by his supervisor and was based only on poor performance during his probationary period. They ask the Tribunal to dismiss the complaint because it does not allege facts that could violate the Code and has no reasonable prospect of success: ss. 27(1)(b) and (c). In the alternative, they ask the Tribunal to dismiss the complaint against Mr. Davie because it does not further the purposes of the Code to proceed against him as an individual: s. 27(1)(d)(ii).
[4] I can most efficiently address this application under s. 27(1)(b). For the following reasons, I am satisfied that Mr. Shaikh’s complaint does not allege facts that could, if proven, establish a violation of the Code. The complaint is dismissed.
II PRELIMINARY ISSUE
[5] As a preliminary matter, Mr. Shaikh objects to the Tribunal’s decision to grant the Respondents multiple extensions of time to complete their document disclosure. He says the Tribunal should decline to consider the dismissal application because the Respondents did not comply with the Tribunal’s rules and timelines regarding disclosure.
[6] I appreciate that the extensions were frustrating to Mr. Shaikh, and he perceived that the Tribunal held him to a different standard than the Respondents, who were represented by legal counsel. However, the extensions were overseen and granted by the Tribunal, including in decisions by the Tribunal Chair. It is not open to me to make a different decision now. I will consider the dismissal application.
III BACKGROUND
[7] I begin with a brief background to the complaint. This background is taken from the material filed by the parties. I make no findings of fact.
[8] Mr. Shaikh began working for GN Johnston Equipment on May 1, 2019. He worked in the same office as Steve Davie and another co-worker I will call Mr. G.
[9] In his complaint, Mr. Shaikh alleges that Mr. Davie made two discriminatory comments around him:
a. May 20, 2019: “If there’s a book out there that promotes violence, it should be burned”. Mr. Shaikh says that he believes this was a reference to Islam. He says that he was extremely offended by the comment. He says that, after this, it was very difficult to continue working with Mr. Davie.
b. May 31, 2019: “The demographics are changing. People are coming here and they don’t want to change. We need to realize not all cultures are meant to get along”.
[10] Mr. Shaikh also alleges that Mr. G made the following discriminatory comment to him:
a. June 28, 2019: Mr. G asked Mr. Shaikh what he had eaten at a company barbeque. Mr. Shaikh replied that he had eaten a vegetarian burger because he didn’t feel like meat. Mr. G responded, “but I’ve seen you eat chicken”. Mr. Shaikh says that this comment seemed “to imply that the Complainant had chosen not to eat meat for religious reasons”.
[11] Mr. Shaikh also details several other interactions with Mr. Davie and Mr. G in which he alleges that they were rude, sarcastic, and belittling to him. He alleges that, throughout his employment, this treatment made him “feel like an outsider, intimidated, and singled out when compared to the cheerful and friendly treatment of other employees from different racial and religious backgrounds”.
[12] On July 4, 2019, the employer terminated Mr. Shaikh’s employment without cause during his probationary period. Mr. Shaikh’s supervisor has sworn an affidavit in which he says that he made the decision to terminate Mr. Shaikh’s employment. He says the decision was not made based on Mr. Shaikh’s protected characteristics, but rather was based on performance issues related primarily to Mr. Shaikh’s inability to communicate effectively with the company’s clients.
[13] Mr. Shaikh disputes this rationale, saying that he never communicated directly to any of the company’s clients during his employment. He alleges that the decision to terminate his employment was based on negative feedback from Mr. Davie and Mr. G, who were biased against him based on his protected characteristics.
[14] After his termination, Mr. Shaikh filed a harassment complaint against Mr. Davie and Mr. G. The employer investigated the complaint and concluded that it was unfounded.
[15] Mr. Shaikh filed this human rights complaint on March 2, 2020.
IV Decision
[16] 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.
[17] In this case, Mr. Shaikh must set out facts that, if proved, could establish that he has characteristics protected by the Code, was adversely impacted in his employment, and his protected characteristics were a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33.
[18] There is no dispute that Mr. Shaikh has alleged facts that could prove that he is brown and Muslim, and protected from discrimination based on his religion, race, ancestry, and colour. There is also no dispute that the termination of Mr. Shaikh’s employment was an adverse impact. The issues in this application are whether Mr. Shaikh has alleged facts that could prove:
a. Mr. Davie and/or Mr. G made comments that adversely impacted his employment, and were connected to Mr. Shaikh’s protected characteristics; and
b. Mr. Shaikh’s protected characteristics were a factor in his termination.
In my view, he has not. I begin with the comments.
A. The comments
[19] Mr. Shaikh alleges that, throughout his employment, Mr. Davie and Mr. G made rude, sarcastic, and belittling comments to him. He alleges that three of those comments were directly and expressly connected to his protected characteristics. I infer that he alleges that, although the other comments do not have any apparent connection to his protected characteristics, they are based in Mr. Davie and Mr. G’s discriminatory views about him. I begin with the comments which Mr. Shaikh related expressly to his protected characteristics.
[20] The first comment was allegedly made by Mr. Davie: “If there’s a book out there that promotes violence it should be burned”. There are no facts in Mr. Shaikh’s complaint that could prove this comment related to Islam or, presumably, the Qur’an. There are no facts in the complaint that set out the context for this comment, or the basis for Mr. Shaikh’s conclusion that this was a reference to his faith. This connection is not apparent on the face of the comment, which could refer to any number of books – religious or not.
[21] The second comment was made by Mr. Davie: “The demographics are changing. People are coming here and they don’t want to change. We need to realize not all cultures are meant to get along”. Again, Mr. Shaikh has not alleged facts that could prove that this comment related to his protected characteristics. I accept that, if this comment was made, it appears to express an anti-immigrant sentiment that is inconsistent with the values of the Human Rights Code. However, Mr. Shaikh has not set out any facts to give context to this comment or explain how it related to him. Mr. Shaikh says he is of a South Asian background, but does not say that he is an immigrant to Canada. He does not explain what “cultures” Mr. Davie was talking about, and how it related to Mr. Shaikh.
[22] The final comment was made by Mr. G: “but I’ve seen you eat chicken”. Mr. Shaikh has not alleged facts that could prove this comment was connected to his protected characteristics. Although Mr. Shaikh says he felt this comment implied something about religious dietary restrictions, that is not evident on the face of it. Further, the facts in the complaint do not provide further context for the comment to support a finding that the comment was derogatory or adversely impacted Mr. Shaikh in his employment.
[23] None of the other conduct that Mr. Shaikh details in his complaint has any apparent relation to his protected characteristics. Specifically, he alleges that Mr. G:
a. questioned Mr. Shaikh’s response to a question by saying “is this based on a Google search or a scholastic terminology”?
b. called Mr. Shaikh, screamed “Where are you?”, and hung up
c. used a hostile tone to correct Mr. Shaikh during a demonstration, saying “you are supposed to loosen the buckles” on a harness
d. made a motion to impersonate Mr. Shaikh after Mr. Shaikh said “yea” and asked, “why would you say yea?”
e. accused Mr. Shaikh of spilling a muffin on the floor, then asking “what’s wrong with you?” when Mr. Shaikh responded that he did not like muffins in the morning
f. turned down his request for certain training, saying “what do you need it for”
The complaint does not set out facts that could connect any of these comments to Mr. Shaikh’s protected characteristics.
[24] Even if I accepted that Mr. Shaikh had alleged facts that could connect Mr. Davie and Mr. G’s comments to his protected characteristics, I am not satisfied that the comments would rise to the level of adverse treatment within the meaning of the Code. In that regard, the Tribunal has recognized that not all comments, on their own, could constitute a contravention of the Code: Pardo v. Coquitlam School District No. 43, 2003 BCHRT 71 at para. 12. Context is critical. The Tribunal considers factors like “the egregiousness or virulence of the comment, the nature of the relationship between 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; Brito v. Affordable Housing Societies and another, 2017 BCHRT 270 at paras. 40-42.
[25] Here, I understand that Mr. Shaikh says that the comments were part of a pattern of negative interactions he had with Mr. Davie and Mr. G that made him feel belittled and like an outsider. I have already acknowledged that one of Mr. Davie’s alleged comments appears to express an anti-immigrant sentiment. I also acknowledge the social context of Islamophobia in Canada: Shahadat v. Northern School of Spa Therapies (No. 3), 2024 BCHRT 120 at para. 23. Finally, I acknowledge the cumulative impact of micro-discrimination, which can include micro-insults, micro-invalidations, and micro assaults. Though an individual incident may be minor, the cumulative effects of micro-discrimination are serious, and can perpetuate the patterns of inequality associated with discrimination prohibited by the Code. Applying a contextual approach, there are circumstances where micro-discrimination can violate the Code.
[26] However, Mr. Shaikh has not alleged facts that could support a finding that, considered contextually, the alleged comments violated the Code. Mr. Shaikh has not alleged facts to suggest that the most offensive comment, about “changing demographics”, was directed at Mr. Shaikh, or people sharing his protected characteristics. The other impugned comments do not, on their face, appear to relate to Mr. Shaikh’s protected characteristics or communicate a message that would perpetuate historic disadvantage against people with his background. None of the alleged comments can fairly be described as virulent or egregious. If they were made, they may be described as unprofessional and rude, and may have negatively impacted Mr. Shaikh at work. However, based on the very limited information that Mr. Shaikh has presented, they could not be discrimination.
[27] Mr. Shaikh argues that this is a case like Hadzic v. Pizza Hut Canada, 1999 BCHRT 44. Respectfully, I disagree.
[28] In Hadzic, Mr. Hadzic was the only Bosnian Muslim man working in an environment marked by enmity between Serbs, Croatians, and Bosnians during the Balkan war: para. 46. The Tribunal found that Mr. Hadzic’s Serbian co-worker told him that he would “kill all Muslims in Sarejevo” and that “he and other Serbs would harm [Mr. Hadzic] and his family”: para. 45. The co-worker used a term which referred to decapitation or partial decapitation, and was a favoured method used to kill people in Mr. Hadzic’s homeland: paras. 7 and 46. The Tribunal found that “this is not a case of jokes made in poor taste or a political or religious discussion between people of different views”: para. 46. It found that this was discrimination based on Mr. Hazik’s Bosnian heritage, ancestry, place of origin, and religion. The facts of Hadzi c differ markedly from the allegations in Mr. Shaikh’s complaint, including based on the social context of the comments, the virulence of the comments, their repetition, and the fact that they were directed at Mr. Hadzic.
[29] In sum, Mr. Shaikh has not alleged facts that could violate the Code in respect of comments made by Mr. Davie or Mr. G during his employment.
B. The termination
[30] I also agree with the Respondents that Mr. Shaikh has not alleged facts that could prove his protected characteristics were a factor in the termination of his employment.
[31] At the outset, I acknowledge and agree with Mr. Shaikh’s submission that his protected characteristics only need to be one factor in his termination; they do not have to be the overriding or main factor: Québec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 [ Bombardier ] at para. 52. I also accept that discrimination can be subtle and must often be proved by inference: Radek v. Henderson Development (Canada) and Securiguard Services (No., 3), 2005 BCHRT 302 at para. 476, 482. However, the subtlety of prejudice, and the availability of inference, does not create a presumption of discrimination: Richardson v. Great Canadian Casinos and another, 2019 BCHRT 265 at para. 144. Any inference of discrimination must be rooted in the evidence of a particular case: Bombardier at para. 88. Here, Mr. Shaikh must allege facts that could support an inference that his protected characteristics were a factor in his termination. Respectfully, he has not.
[32] Mr. Shaikh points to three allegations which he says supports an inference of discrimination: (1) that Mr. Davie and Mr. G were involved in the decision to terminate his employment, and harboured discriminatory views towards Mr. Shaikh, (2) that the employer’s stated reason for terminating his employment was pretextual, and (3) that senior staff made comments about his appearance. I consider each in turn.
[33] First, Mr. Shaikh alleges that the decision to terminate his employment was based on feedback from Mr. Davie and Mr. G. He alleges that they harboured discriminatory views towards him, which tainted their assessment of his performance. The facts that Mr. Shaikh points to as evidence of their discriminatory views are the comments I have addressed above. For the reasons I have already explained, those comments could not, if proven, support a finding that Mr. Davie and/or Mr. G harboured discriminatory views towards Mr. Shaikh based on his protected characteristics.
[34] Second, Mr. Shaikh disputes the employer’s reasoning for his termination. I accept that, in some cases, a pretextual explanation may support an inference of discrimination. However, it is not enough to simply disagree with the reasons for termination – again, there must be facts that could prove the employer’s reasoning was a pretext for discrimination. Here, the only thing that Mr. Shaikh says is that he never directly communicated with the corporate clients for the projects he managed. He says this undermines his supervisor’s explanation, that his employment was terminated because he was not able to communicate effectively with corporate clients or understand the company’s products and relate them to the company’s customers. In my view, these facts on their own would not be enough to support an inference of discrimination. They still do not explain how the decision was connected to Mr. Shaikh’s protected characteristics. Rather, I agree with the Respondents that his allegations relate to a “belief” in a connection, without pointing to the factual basis for that belief. Belief alone is not enough to support a claim of discrimination: Marusyk v. 1180749 Ontario Inc., 2004 BCHRT 254 at para. 18; Skerry v. British Columbia (Human Rights Tribunal), 2024 BCCA 345 at para. 51-52.
[35] Finally, in his response to the dismissal application, Mr. Shaikh refers to comments made by two senior staff in the employer’s investigation after his termination, which describe Mr. Shaikh’s appearance as “disheveled”, “ratty”, and “unkempt”. He says these comments “lend credence to the existence of racial prejudice among senior ranks”. Respectfully, the basis for this conclusion is not clear to me. Mr. Shaikh does not explain how his appearance relates to his protected characteristics, or how the senior staff were involved in decision making about his employment. These comments could not support an inference that his termination was connected to his protected characteristics.
[36] On the whole, I am satisfied that Mr. Shaikh’s allegation of a connection between his protected characteristics and the termination of his employment is based on speculation rather than facts capable of proof. This is not enough to ground a complaint of discrimination: Martin v. First Nations Urban Community Society, 2006 BCHRT 47 at para. 29.
V CONCLUSION
[37] Mr. Shaikh’s complaint does not set out facts that could violate the Code. It is dismissed.
Devyn Cousineau
Vice Chair
Human Rights Tribunal