Shane v. British Columbia Hockey League, 2025 BCHRT 61
Date Issued: March 6, 2025
File(s): CS-003030
Indexed as: Shane v. British Columbia Hockey League, 2025 BCHRT 61
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:
Nicole Shane
COMPLAINANT
AND:
British Columbia Hockey League and JMRH Hockey Development ULC
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c) and (g)
Tribunal Member: Laila Said Alam
Counsel for the Complainant: Aleem Bharmal
Counsel for the Respondent, BCHL: Christopher McHardy
Counsel for the Respondent, JMRH: Andrew Schafer and Margaret McConnell
I INTRODUCTION
[1] On January 13, 2021, Nicole Shane filed a complaint with the Human Rights Tribunal alleging the British Columbia Hockey League [ BCHL ] and JMRH Hockey Development ULC [ JMRH , together with BCHL, Respondents ] discriminated against her in the area of employment because of her sex and marital status, contrary to s. 13 of the Human Rights Code .
[2] Ms. Shane was employed by the West Kelowna Warriors, a hockey team in the BCHL. In October and November 2019, the owner of the Warriors negotiated the sale of the team to JMRH. The sale was facilitated by BCHL, and Ms. Shane remained employed with the Warriors under JMRH’s ownership. Ms. Shane alleges that during the negotiation the Respondents treated her differently than male employees, by reducing her salary and ignoring her previous employment contract because of her sex and relationship with her ex-husband, the prior owner of the team [ Remuneration Allegation ]. Ms. Shane also alleges that JMRH hired a male President in November 2019, instead of offering her the role, and then terminated her employment on January 21, 2020.
[3] The Respondents deny discriminating. The Respondents separately apply to dismiss the complaints against them under s. 27(1)(c) and (g). BCHL says Ms. Shane’s complaint is out of time, her allegations do not form a continuing contravention and should be dismissed. JMRH says that the Remuneration Allegation is out of time and should be dismissed. Both argue that Ms. Shane has no reasonable prospect of successfully proving her complaint at a hearing.
[4] The Remuneration Allegation was filed outside of the one-year time limit for filing a complaint. The only issues I need to decide on BCHL’s application are whether it is in the public interest to accept Ms. Shane’s late filed complaint, and whether no substantial prejudice will result to any person because of the delay.
[5] On JMRH’s application I must first decide under s. 22 of the Code whether Ms. Shane’s Remuneration Allegation is a continuing contravention, whether it is in the public interest to accept Ms. Shane’s late filed complaint against them, and whether no substantial prejudice will result to any person because of the delay. I must then decide whether Ms. Shane’s other allegations against JMRH have no reasonable prospect of success at a hearing.
[6] For the following reasons, I grant the applications to dismiss the complaint against the Respondents. 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.
II Preliminary issue
[7] BCHL objects to Ms. Shane’s reliance on what it says is information subject to settlement privilege. In her submissions on this application, Ms. Shane referenced and disclosed a letter from BCHL dated March 4, 2020 and marked “without prejudice”, written in response to the demand letter she wrote to BCHL to settle her grievances after she was terminated by JMRH.
[8] Ms. Shane relies on BCHL’s letter as evidence of discrimination. She also uses the letter to anchor her argument that her complaint against BCHL should be accepted as timely or part of a continuing contravention, because that is the date she “discovered” her claim against BCHL. She says the words “without prejudice” alone does not make the letter privileged.
[9] BCHL argues that reference to, and disclosure of, the letter is improper and cannot be considered. I agree.
[10] It is not in dispute that BCHL’s letter was responding to and rejecting Ms. Shane’s offer of settlement. What is in dispute is whether BCHL’s letter contains privileged communications in furtherance of settlement, and whether an exception to settlement privilege should be made because justice requires it.
1. Did BCHL’s letter contain privileged communications in further of settlement?
[11] Without prejudice settlement discussions are privileged and inadmissible before the Tribunal: Dar Santos v. University of British Columbia, 2003 BCHRT 73 at para. 64 . This principle holds whether the without prejudice communications accepts or rejects the settlement proposal: Sable Offshore Energy Inc. v. Ameron International Corp. , 2013 SCC 37 at para. 15-17; Bains v. Metro College Inc. and others (No. 2) , 2004 BCHRT 7, at paras. 25-26. As noted above, it is not in dispute that BCHL’s letter rejected Ms. Shane’s settlement proposal.
[12] There is a general privilege which applies to communications in furtherance of settlement. As the Tribunal found in Dar Santos at para. 70, there are three conditions which must be present for the privilege to be recognized. First, a litigious dispute must exist or be within the parties’ contemplation; second, the communication must be made with the express or implied intention that it would not be disclosed to the court in the event negotiations failed; and, third, the purpose of the communication must be to attempt to effect a settlement.
[13] It is reasonable to accept that the tone and substance of Ms. Shane’s letter, as she describes it, raises concerns that a litigious dispute was within contemplation. Ms. Shane describes her demand letter to the BCHL after termination as “challeng[ing] the fact that my contract and salary alone were disregarded” and says it included an offer of settlement. Further, BCHL’s communication clearly states, “without prejudice” and Ms. Shane says the letter is “admittedly responding to and rejecting” her offer of settlement. I understand that the purpose of the communication was to effect a settlement, explicitly to provide reasons to Ms. Shane to persuade her that she has no claim against BCHL. I understand BCHL’s reasons to include the specific language Ms. Shane takes issue with, which I will not replicate here because I find that the communication is privileged and inadmissible.
[14] Ms. Shane argues that the Tribunal should find an exception to privilege in this instance because “justice…requires it”: Sable Offshore Energy Inc v Ameron International Corp , 2013 SCC 37 at para. 12. To find that privilege should be excepted, Ms. Shane must show, on balance, “a competing public interest outweighs the public interest in encouraging settlement”: Sable , at para. 19. These countervailing interests have been found to include allegations of misrepresentation, fraud or undue influence, and preventing a plaintiff from being overcompensated: Sable , at para. 19.
[15] As stated in Dos Santos , at paras. 19-20:
[T]he test for discharging the burden to establish an exception should not be set too low. The public policy behind settlement privilege is a compelling one. It is so compelling that even threats arising in the context of settlement negotiations may not justify an exception: [Unilever plc v. The Proctor & Gamble Co., [2000] 1 W.L.R. 2436 (C.A. , at p. 2449-2450].
An exception should only be found where the documents sought are both relevant , and necessary in the circumstances of the case to achieve either the agreement of the parties to the settlement, or another compelling or overriding interest of justice.
[emphasis in the original]
[16] I am not persuaded by Ms. Shane’s arguments that there is a public interest here that outweighs the public interest in encouraging settlement.
[17] First, Ms. Shane argues that the Tribunal should apply an estoppel exception to the privilege. She says it is a well-accepted concept in US common-law that where a party reasonably relies on a clear and unambiguous statement made in without prejudice communication, the party which made the statement is estopped from objecting to putting that statement into evidence: Hodgkinson & Corby Ltd v Wards Mobility Services Ltd [1997] FSR 178. I do not find Ms. Shane’s position persuasive. Ms. Shane has not put any Canadian case law before me in support of her suggestion to accept an estoppel exception to pierce settlement privilege, nor has she argued how doing so is in the interest of justice.
[18] Ms. Shane further submits that should the Tribunal find the letter and the statement at issue to be inadmissible, there is nevertheless ample other evidence to infer discrimination based on family status. The complainant bears the onus of proving her complaint at a hearing. If she says she can prove her case without relying on the disputed documents, they are irrelevant and cannot be excepted from privilege: Dos Santos , at para. 22.
[19] Ms. Shane erred in referring to and disclosing “without prejudice” settlement communications in her submission. In these circumstances, it is not necessary or appropriate for me to consider the “without prejudice” settlement communications. I have disabused myself of this information and I have not considered it in reaching my decision.
[20] I note here Ms. Shane’s argument that the Tribunal should adopt and apply a discretionary “discoverability” finding to the termination of her employment and the letter at issue. This approach would effectively start the one-year time limit from either the date of termination or receipt of the letter to make all of Ms. Shane’s allegations timely. What flows from my decision not to consider the without prejudice settlement communications is that Ms. Shane’s reliance on the document to argue timeliness, a continuing contravention, or accepting the late filed complaint in the public interest in the context of s. 27(1)(g) are now moot.
[21] I now turn to an assessment of the merits of the dismissal application.
III BACKGROUND
A. The parties’ relationship
[22] The BCHL is a society that governs the operation of 17 Junior A ice hockey teams in BC consisting of players between 16-20 years old. Ms. Shane is a former employee of one of those teams, the West Kelowna Warriors.
[23] Kim Dobranski was the owner and president of the Warriors, and KD Sports Limited. Mr. Dobranski is Ms. Shane’s former spouse. Ms. Shane volunteered with KD Sports from August 15, 2018 to March 2019. She worked there part-time from March 2019 to August 2019. In April 2019, Ms. Shane successfully applied to become a member of the Business of Hockey Institute [ BHI ]. Through BHI’s academic partner, she could obtain the designation of Certified Hockey Professional. Her studies would commence in May 2019 and, if she continued her studies without a break, she could complete the designation by September 2021. Beginning sometime in August 2019, Ms. Shane worked full-time as KD Sports’s Business Manager.
[24] On or around November 8, 2019, JMRH became the Warrior’s owner and operator, in a transaction facilitated by BCHL. The transaction proceeded by simultaneous closing whereby BCHL purchased certain assets of the Warriors from Mr. Dobranski and KD Sports Limited, and immediately sold those assets to JMRH.
[25] Ms. Shane was employed by JMRH as the Warriors’ Business Manager from on or about November 12, 2019 until JMRH terminated her employment on January 21, 2020.
B. Lead up to Warriors’ transfer
[26] In or around September 2018, the BCHL became concerned that Mr. Dobranski was having difficulty managing the Warriors’ finances and reputation. The Warriors had unpaid debts of more than $10,000. In addition the BCHL was aware that there was a rift between the team and its official league sponsor, unflattering media coverage concerning alleged breach of contract with the former head coach, and player walk outs. The Warriors had also apparently run afoul of several provisions in the BCHL’s Bylaws, Constitution, and his purchase agreement of the Warriors.
[27] For a year the BCHL provided Mr. Dobranski with opportunities to address its concerns. Eventually, on October 3, 2019, its Board of Governors voted to convene a Special Meeting to address whether the Warriors franchise was at risk of not being able to complete the upcoming season due to budget shortfalls. A Sale Agreement and Release was made on the same day for Mr. Dobranski and KD Sports to sell all of the assets and inventory used to operate the Warriors to the BCHL.
C. Transfer of Warrior assets and remuneration discussions
[28] The Sale Agreement and Release stated that all existing employees would continue their employment with the Warriors on substantially the same terms as those that existed on the day immediately prior to the closing date. This term was subject to the BCHL’s ability to sell the Warriors, at which time the Warriors’ employees and any terms of their employment would be subject to terms of sale.
[29] On October 18, 2019, the BCHL’s Coordinator for Financial Services and Events emailed Ms. Shane asking for a list of Warrior employees and contractors “with all of their titles, salaries, commissions, and any other arrangements related to employment. If there are contracts for any of these then please add them as well. Even if it is an email stating the contract.”
[30] At 9:38 am on October 22, 2019, Mr. Dobranski emailed Ms. Shane the following:
In absence of an official contract, here was the general intent and terms of your employment.
We agreed the Warriors would pay for your Online Masters of Business and Hockey management program which was approximately 3 years. (Approx $60,000 paid monthly over 3 years) Program commenced May 2019.
Starting Aug 15/2018 you would work as a volunteer until end of March 2019 (Completed)
From March 2019 until Aug 2019 – $18/h (Approx $1000 a month)
Aug 2019 onwards $5000/month salary with annual adjustment of 2% or the inflation rate/whichever was higher.
There was no set term of employment but the intent was to assist you in your training programs then retain you as the business manager for the foreseeable future.
[31] Ms. Shane emailed the BCHL Coordinator for Financial Services and Events at 10:20 AM on October 22, 2019 with a spreadsheet of “all payroll details.” The spreadsheet stated her income at $60,000.
[32] JMRH did not agree to offer Ms. Shane employment on the terms of the October 22, 2019 email without evidence of a pre-existing agreement, record, or documentation pre-dating negotiations of the Warrior’s transfer. BCHL reviewed Ms. Shane’s previous payroll statements and determined that she had been earning an hourly rate of $18/hour. From November 5 to 7, 2019, Ms. Shane negotiated her remuneration directly with the President of JMRH. Ms. Shane and JMRH executed a new employment contract on November 7, 2019 for full-time employment as the Warrior’s Business Manager. It set out her monthly salary at the time of transfer as $4,500. Her negotiations were reflected in the transfer agreement as “$18.00 per hour (offer of employment to be made on basis of $4,500.00 per month).”
[33] JMRH offered Ms. Shane full-time employment as Business Manager on November 7, 2019. The letter states, “Within this position, you will report directly to the President and Owners.” She commenced employment with JMRH on November 12, 2019.
D. Hiring new President
[34] Around October 2019, JMRH recruited a candidate to be the new President of the Warriors. The position was not posted internally or externally. The candidate was offered the position on October 24, 2019, and commenced employment with JMRH on November 11, 2019.
[35] The President reported directly to the owners. The President was responsible for management and oversight of business staff, hiring of key staff, including the head coach and general manager, sponsorship and ticket sales, marketing and brand development, hockey operations and game night execution, budgeting, and community impact.
E. Termination
[36] On January 21, 2020, JMRH’s owner informed Ms. Shane that her employment was terminated without cause, effective immediately. In the follow up termination letter, JMRH enclosed a cheque purporting to represent all wages owed to Ms. Shane, as well as two weeks’ pay representing the termination pay she was entitled to under the British Columbia Employment Standards Act .
IV DECISION
A. Section 27(1)(g)
[37] 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.
[38] Ms. Shane filed her complaint on January 13, 2021. Any allegation before January 13, 2020, is filed late.
[39] BCHL argues that all the allegations in this complaint are late filed and should be dismissed under s. 27(1)(g) of the Code. JMRH argues that Ms. Shane’s Remuneration Allegations are late filed and should be dismissed under s. 27(1)(g). Both allegations stem from the same event: the November 8, 2019, transfer of Warrior assets from Mr. Dobranski to BCHL to JMRH. I must decide: (1) whether the complaint against BCHL is late filed, (2) whether the Remuneration Allegation is part of a continuing contravention, and (3) whether to exercise my discretion to accept the complaint against BCHL and/or the Remuneration Allegation against JMRH 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 .
1. Late-Filed Complaint – BCHL
[40] I find the complaint against BCHL was filed outside the one-year time limit. The complaint against BCHL relate to events that ended on November 8, 2019. The complaint must have been filed by November 8, 2020, to be considered timely filed. Ms. Shane delayed filing her complaint by just over 14 months.
2. Continuing Contravention – Remuneration Allegation against JMRH and BCHL
[41] Ms. Shane argues that the allegations in the complaint are part of a continuing contravention of the Code . She says the continued conduct of both BCHL and JMRH were coordinated together to form a pattern of distinct but related discriminatory actions that extended from the time of the Respondents’ “initial reluctance and refusal to believe and accept her salary and benefits, despite the evidence she and Mr. Dobranski were providing them, to her ultimate termination of employment, which the evidence supports had been predetermined and set up from the start.” She also alleges that JMRH gradually reduced her duties.
[42] JMRH argues that the Remuneration Allegations do not form part of a continuing contravention because they are late-filed and are not of the same character as the remainder of her complaint against JMRH and should be dismissed.
[43] A complaint is filed in time if the last allegation of discrimination happened within one year, and older allegations are part of a “continuing contravention”: Code , s. 22(2); School District v. Parent obo the Child , 2018 BCCA 136 at para. 68 . In order to be a continuing contravention, at least one of the allegations must be timely. Ms. Shane’s allegation that JMRH discriminated against her when they terminated her employment on January 21, 2020, is filed in time. For the Remuneration Allegation to be considered a continuing contravention, Ms. Shane needs to establish it is “a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code , and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City), 2015 BCCA 57 at para. 23 ; School District at para. 50 .
[44] The assessment of whether discrete allegations are a continuing contravention is a “fact specific one which will depend very much on the individual circumstances of each case”: Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para. 17 . A relevant consideration is whether there are significant gaps between the allegations: Dickson at paras. 16-17.
[45] I do not find that there is a continuing contravention between the Remuneration Allegation and her termination. Ms. Shane does not specify what duties were gradually reduced, nor does she provide a timeline to orient the alleged reduction of duties with the termination of her employment. Finally, there are no allegations to infer a coordinated, predetermined effort by the Respondents to terminate her after the Remuneration Allegation.
3. Public interest in accepting the complaint
[46] Because the complaint against BCHL is late filed and the Remuneration Allegation against JMRH is late filed, but that does not end the inquiry. I now consider whether to accept all or part of the complaint under s. 22(3). The burden is on the complainant to persuade the Tribunal to accept the complaint. I must consider two things: public interest and substantial prejudice.
[47] The Tribunal assesses the public interest in a late-filed complaint in light of the purposes of the Code . These include identifying and eliminating persistent patterns of inequality, and providing a remedy for persons who are discriminated against: s. 3. It may consider factors like the length of the delay, the reasons for the delay, the complainant’s interest in accessing the Tribunal, the respondent’s interest in being able to continue its activities without worrying about stale complaints, whether the complainant got legal advice, and the public interest in the complaint itself: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite , 2014 BCCA 220 [ Mzite ] at para. 53 and 63; Hoang v. Warnaco and Johns, 2007 BCHRT 24; Complainant v. The Board of Education of School District No. 61 (Greater Victoria) , 2022 BCHRT 44 at para. 18. These are important factors, but they are not necessarily determinative and not every factor will be relevant in every case: Goddard v. Dixon, 2012 BCSC 161 at para. 152 ; Mzite at para. 55 . The inquiry is always fact and context specific.
[48] Ms. Shane says the reason for the delay was that after the asset transfer, she “continued to try and deal in good faith with the Respondents in pursuit of her strong desire to maintain the position she had worked so hard to achieve as a business manager in the hockey industry.” Further, she was “in great distress and suffering deep depression.” She says she found the whole situation extremely difficult and overwhelming, and it had a real impact on how effectively she could deal with the matter legally, in a timelier way. Ms. Shane says the two-month delay for filing some of her allegations, which I understand to be the Remuneration Allegation, should be accepted by the Tribunal in the public interest for the same reason.
[49] I understand Ms. Shane’s argument to be that she delayed filing her complaint because she sought to engage with the Respondents informally to pursue her professional and economic interests, she feared losing her position, and her emotional and mental state impacted her ability to file on time. Ms. Shane’s explanation does not, in my view, justify accepting the late-filed complaint in the public interest.
[50] First, the Tribunal has acknowledged that the while the pursuit of informal efforts to resolve complaints is to be encouraged, this does not suspend or relieve a complainant against the consequence of missing the filing deadline: Bissell v. Jeld-Wen of Canada and others , 2005 BCHRT 99, at para. 32 ; Daughter M by Mother K v. Board of Education of a Vancouver Island School District , 2019 BCHRT 274, at para. 79. Ms. Shane has not provided any specifics of her attempts to deal with her concerns about discrimination in good faith with the Respondents. In this case, I am not satisfied she was precluded in any significant way from filing her complaint on time by her continued attempts to “deal in good faith with the Respondents”.
[51] Similarly, the Tribunal has repeatedly held that fear of job loss or retaliation does not overcome the consequences of missing the filing deadline. Section 43 of the Code protects individuals against retaliation for filing a complaint. With this protection in place, I do not find absent exceptional circumstances the fear of job loss or retaliation can generally be considered as being in the public interest to accept a late-filed complaint: Mullholland v. City of Vancouver , 2015 BCHRT 170 at para. 52 ; Fehr and another v. Alexander Laidlaw Housing Co-operative , 2012 BCHRT 232 at para. 16 ; and Kafer v. Sleep Country Canada and another , 2013 BCHRT 137 at para. 29 . In this case, Ms. Shane has not provided any specific reasons fearing retaliation by the Respondents if she filed a complaint with the Tribunal. As such, I do not see her fears or concerns about maintaining her position to attract any public interest in allowing her late filed complaint to proceed.
[52] The Tribunal has accepted that it may be in the public interest to accept a late-filed complaint when the delay is due to a disabling medical condition: MacAlpine v. Office of the Representative for Children and Youth , 2011 BCHRT 29 ; Naziel-Wilson v. Providence Health Care and another, 2014 BCHRT 170, at paras. 20-21. In her affidavit, filed with her response to the application to dismiss, Ms. Shane provided a March 2022 doctor’s certificate from a psychiatrist which attests to her diagnosis, but which are focused on a possible return to work with an employer that is not either of the Respondents. It does not address the issue of Ms. Shane’s inability to pursue a human right complaint, nor does it address the time period at issue, namely November 2019 to January 2021. This factor does not militate in favour of accepting the complaint in the public interest.
[53] Finally, it appears Ms. Shane had access to legal counsel, referencing her labour lawyer in multiple communications with the Respondents during the Remuneration negotiations, and immediately after her termination. She has not provided any information to the contrary. This consideration weighs against finding that it is in the public interest to accept the complaint.
[54] Ms. Shane says her complaint raises serious and novel issues. She says she was only the second woman to be accepted into the BHI MBA program for hockey administration and there is a scarcity of women in the type of position that the Ms. Shane held in the hockey industry. While the Tribunal may not have decided many issues in relation to minor hockey, employment discrimination complaints based on sex – particularly arising from male dominated professions – are not novel. This factor does not weigh in favour of accepting the late-filed complaint in the public interest.
[55] I find that it is not in the public interest to accept for filing the complaint against BCHL or the Remuneration Allegation against JMRH. It is therefore unnecessary for me to consider whether accepting the late-filed complaint would give rise to substantial prejudice.
B. Section 27(1)(c) – No reasonable prospect of success
[56] JMRH applies to dismiss the remainder of Ms. Shane’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c) because the allegations in her complaint do not fall outside the realm of conjecture and they are reasonably certain to prove a defence at the hearing. The onus is on JMRH to establish the basis for dismissal.
[57] 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.
[58] 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 .
[59] 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 .
[60] 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.
[61] To prove her complaint at a hearing, Ms. Shane will have to prove that she has a characteristic protected by the Code , she was adversely impacted in employment, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33. If she did that, the burden would shift to JMRH to justify the impact as a bona fide reasonable justification. If the impact is justified, there is no discrimination.
[62] JMRH says Ms. Shane has no reasonable prospect of successfully proving her allegations because they are conjecture. They say she has no reasonable prospect of proving adverse treated with respect to not being considered for President or that there is a connection between her protected characteristics and not being considered for the position of president and her termination. I agree. Because I find that Ms. Shane has not taken her complaint out of the realm of conjecture, it is unnecessary for me to consider whether JMRH was justified in terminating her employment.
4. Allegation that she was not offered the role of president
[63] JMRH says there is no reasonable prospect that Ms. Shane could establish that not being offered the role of president constituted an adverse impact or that her protected characteristics were a factor in not being offered the role.
[64] JMRH says Ms. Shane never applied for the role, and was, in any case, not qualified for the highly specialized, senior, executive-level role.
[65] Ms. Shane points to the following with respect to her allegation that not being made president was discrimination based on her sex to support an inference that she experienced an adverse impact regarding employment due to her protected characteristics:
a. JMRH hired a male president to be the “new face” of the team, even though she had the experience and knowledge to fill his role;
b. She was never asked to apply for the newly created position and wasn’t aware there was an opening;
c. She taught the President everything he needed to know about the business; and
d. JMRH wanted a male as the face of the hockey franchise.
[66] Even if Ms. Shane could show that she was adversely impacted by not being offered the position, I am persuaded that there is no reasonable prospect that she could connect that to her protected characteristics.
[67] Ms. Shane offers her perspective for why she should have been considered for the position. Ms. Shane suggests that she had the requisite knowledge and expertise to perform the job and, that she taught the president everything he needed to know about the business. However, the materials before me all point toward an understanding that there is no reasonable prospect Ms. Shane will be able to establish that she had the educational requirements or professional experience to be recruited as President of the Warriors franchise.
[68] JMRH describes the President as “a key member of the leadership team [who] reports directly to the owners.” They say the President is responsible for, among other things:
(a) management and oversight of business staff; (b) hiring of key staff, including the Head Coach and General Manager; (c) sponsorship and ticket sales; (d) marketing and brand development; (e) hockey operations and game night execution; (f) budgeting; and (g) community impact. Ms. Shane does not put this description in dispute.
[69] Professionally, prior to volunteering and working for the Warriors, Ms. Shane worked for a construction company in an unknown capacity in 2014. Nothing in the record speaks to her experience from 2014 to 2018. She was several months into the BHI program when she joined JMRH. Ms. Shane does not particularize how her experience and knowledge relate to the responsibilities of the job and her ability to carry out those responsibilities. In summary, on the materials before me, it is merely speculative that Ms. Shane had the experience and knowledge to be recruited as President of the Warriors.
[70] Ms. Shane does not dispute the President JMRH identified was qualified for the role. The President held a Bachelor of Physical Education with a Major in Sports Management & Marketing. He had years of hockey-related experience as a coach and general manager, in marketing, business-development, and sales, and had guest lectured a class each semester for three years on sports marketing at a large U.S. university. While it may be that Ms. Shane, who had been with the organization longer, would have to teach the new President a lot of things specific to that workplace, Ms. Shane did not particularize what she taught the President after he had joined the organization. Ms. Shane has not particularized facts that explains her position that she taught him everything he knows. As such, this claim remains conjecture.
[71] Lastly, Ms. Shane asserts that JMRH wanted a male as the face of the hockey franchise and she is a female. A bald statement is insufficient to take her complaint out of the realm of conjecture. In order to rely on differential treatment as a factual basis for her complaint, she must provide the Tribunal with some evidence so it can consider it in this application. I have no basis to infer that the evidence is as in Schnurr v. Douglas College , 2007 BCHRT 40, Ms. Shane’s allegation suffers an absence of alleged facts that would tend to establish that not being told about the position of President, not being asked to apply for the position, having more knowledge and expertise than the candidate who was hired, and her teaching the candidate everything he needed to know about the business had any connection to her sex or her marital status.
[72] In these circumstances, I am satisfied that there is no reasonable prospect of success that Ms. Shane could prove that her protected characteristics were a factor in not being made president of the Warriors. I have no basis to infer that the evidence Ms. Shane offers in support of her position is more probable than the inference that the candidate JMRH recruited for president was qualified for the role and Ms. Shane was not.
5. Timing of Termination
[73] Ms. Shane also points to the timing of her termination. She says that when JMRH took over the Warriors franchise, she was “slowly stripped of all [her] duties…and eventually terminated shortly after [the Warriors introduced the President to the public].” She says she was no longer invited to team meetings. She says,
it became clear that this had been the intention of JMRH before it had even purchased the team. I also believe the ongoing issues between the new owners and my former spouse, my ex-husband, [Mr. Dobranski], were delicate and confidential, and both BCHL and JMRH wanted to remove me from my position because I knew the details of both sides of the sale, and they both wanted me out because they were worried I would leak details to Mr. Dobranski, given that he was my ex-husband.
[74] Ms. Shane said she was let go without cause or any prior warning, and “thus [I] believe my sex (being a woman) and marital status (being the ex-wife of [Mr. Dobranski] were factors in my mistreatment.”
[75] The Tribunal is entitled to consider the timing of a termination, or other of a respondents’ acts and omissions that complainants allege adversely impacted them, when considering whether one can infer a protected characteristic is connected with the adverse impact: Munro v. Labour Unlimited , 2023 BCHRT 39 at para. 63 ; Parry v. Vanwest College , 2005 BCHRT 310 at para. 63 ; Morris v. BC Rail , 2003 BCHRT 14 at para. 231 . The Tribunal has explained that:
an inference arising from the timing of a termination is just that, an inference. It can be strengthened by other evidence to support discrimination or it can be displaced by evidence of a non-discriminatory reason for the termination: Harris v. Rize Alliance Properties and another , 2019 BCHRT 223 at para. 31 .
[76] Ms. Shane does not provide details of what duties were stripped from her, or the circumstances around which she stopped attending team meetings. A reduction in job duties in and of itself may not amount to an adverse treatment within the meaning of the Code : McBride v Orca Sand & Gravel and others (No. 2) , 2010 BCHRT 190 at paras. 131 – 133 .
[77] Ms. Shane does not provide any information for me to consider about her allegations around the timing of allegedly being stripped from her duties, or what constituted as “ongoing issues between the new owners and [her] former spouse…” The timing available to me to consider are: October 24, 2019, the date the Warrior President was offered the position; November 11, 2019, as the Warrior President’s start date, December 2019 as the month the Warriors decided to terminate Ms. Shane’s employment, and January 21, 2020 as the date Ms. Shane’s employment was terminated. I find the timing of things too speculative to root Ms. Shane’s allegation that her sex or marital status was a factor in her termination.
[78] Overall, this part of Ms. Shane’s complaint remains almost entirely speculative. It is not enough to say she has a protected characteristic and has been treated unfairly: Ingram v. Workers’ Compensation Board and others , 2003 BCHRT 57 at para. 20. There must be some connection or nexus between the two. In my view, Ms. Shane being terminated without cause does not take the allegation that sex or marital status was a factor in the termination out of the realm of speculation or conjecture.
[79] Considering these reasons, I cannot find Ms. Shane’s allegation that family status and/or sex was a factor in her not being offered the president role or in her termination is outside the realm of conjecture. I conclude that there is no reasonable prospect Ms. Shane’s complaint would succeed at a hearing. It is dismissed pursuant to s. 27(1)(c).
V CONCLUSION
[80] The application is granted.
[81] The complaint against BCHL is dismissed in its entirety under s. 27(1)(g).
[82] The complaint against JMRH is dismissed in its entirety under s. 27(1)(c) and s. 27(1)(g).
Laila Said Alam
Tribunal Member