Al Edwan v. The Immigrant Services Society of British Columbia, 2025 BCHRT 66
Date Issued: March 11, 2025
File: CS-001564
Indexed as: Al Edwan v. The Immigrant Services Society of British Columbia, 2025 BCHRT 66
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:
Dana Al Edwan
COMPLAINANT
AND:
Immigrant Services Society of British Columbia
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(b), (c), (d)(ii), and (g)
Tribunal Member: Kylie Buday
Counsel for the Complainant: Jenson Leung
Counsel for the Respondent: James Kondopulos and Shannon Vairo
I INTRODUCTION
[1] This is a decision about whether to dismiss Dana Al Edwan’s human rights complaint without a hearing.
[2] On January 7, 2019, Ms. Al Edwan began working for the Immigrant Services Society of British Columbia as a Settlement Case Worker. On May 2, 2019, Ms. Al Edwan alleges a co-worker sexually assaulted her in an elevator at work. Ms. Al Edwan reported the assault to the Society on May 3, 2019. On June 4, 2019, Ms. Al Edwan filed a complaint against the Society alleging discrimination in employment on the grounds of sex and race, contrary to s. 13 of the Human Rights Code.
[3] The Complaint alleges the Society discriminated against Ms. Al Edwan by inadequately responding to her reported sexual assault. Specifically, Ms. Al Edwan says the Society’s response was inadequate and adversely impacted her because: (a) one of its employees investigating the assault asked her if the Co-worker’s behaviour amounted to “flirting” in her culture; (b) the Society did not inform her of the findings of its investigation; and (c) after the investigation, the Society moved her from its Surrey to its New Westminster office, exacerbating her mental distress.
[4] In an amendment to the Complaint filed on June 12, 2020, Ms. Al Edwan further alleges the Society contravened s. 13 of the Code because it did not accommodate a back injury she says she sustained during the assault. She alleges this amounts to discrimination based on physical disability. Ms. Al Edwan further alleges the Society violated s. 13 of the Code because it did not accommodate her mental distress following the assault. She alleges this constitutes discrimination based on mental disability.
[5] The Society denies discriminating and applies to dismiss all or part of the complaint against it under ss. 27(1)(b), (c), (d)(ii) and (g).
[6] I allow the application under s. 27(1)(b) in part and dismiss the part of the Complaint alleging discrimination based on mental disability. I deny the applications under s. 27(1)(c), (d)(ii) and (g). The allegations of discrimination based on sex, race, and physical disability will proceed.
[7] While I do not refer to it all in my decision, I have considered all the information filed by the parties in relation to this application. In these reasons, I only refer to what is necessary to explain my decision.
II BACKGROUND
[8] Ms. Al Edwan started working for the Society on January 7, 2019, as a Settlement Case Worker. She alleges that around four months after starting work, on May 2, 2019, a male co-worker sexually assaulted her in an elevator [ Co-worker ]. This event is described in more detail below.
[9] On May 3, 2019, Ms. Al Edwan reported the assault to her direct supervisors: Richa Karkee and Kathy Sherrell. The Society says they responded by suggesting Ms. Al Edwan contact the police and by organizing for her to meet with Ms. Sherrell and Theo Madeley, the Director of Human Resources on May 6. The Society then sent Ms. Al Edwan home with pay and the contact information for its Employee Assistance Program. None of this appears to be in dispute.
[10] Next, the Society says it contacted the Co-worker to inform him a complaint had been made about him, and to tell him that it would be investigating the allegations against him. The Society also says it sent the Co-worker home with pay.
[11] On May 6, Ms. Al Edwan met with Ms. Sherrell and Ms. Madeley. During that meeting, Ms. Al Edwan recounted the details of the alleged assault. On the information before me, the parties appear to agree that Ms. Al Edwan shared the following with the Society during the May 6 meeting.
[12] Ms. Al Edwan said that on May 2 she and the Co-worker were in an elevator together. While they were in the elevator, the Co-worker raised his hand as if to brush Ms. Al Edwan’s hair away from her shoulder and he leaned in as if to kiss her. Ms. Al Edwan then pushed the Co-worker away. The Co-worker tried to touch her a few more times and, at some point, he grabbed or pinched her bum. Ms. Al Edwan also told Ms. Sherrell and Ms. Madeley that on prior occasions, the Co-worker had tickled her and on one occasion he had grabbed her hand as if to read her palm.
[13] Ms. Al Edwan says that during the May 6 meeting, Ms. Madeley asked her if the Co-worker’s behaviour was considered “flirting in her culture.” The Society disputes Ms. Madeley said this. In a sworn statement before me, Ms. Madeley attests that she asked Ms. Al Edwan if she had “indicated” to the Co-worker “at any point in time that his behaviour was inappropriate or bothersome in any way.” The Society says Ms. Al Edwan responded by telling Ms. Madeley that she did not understand her culture. The Society further says Ms. Al Edwan then explained to Ms. Madeley that in her culture you do not complain about this “kind of thing.”
[14] Next, Ms. Sherrell and Ms. Madeley met with the Co-worker. The Society says that during their meeting, the Co-worker admitted to engaging in some “inappropriate behaviour” generally, such as tickling Ms. Al Edwan, and trying to read her palm. However, they say he denied trying to kiss Ms. Al Edwan in the elevator. He reported that they were laughing and had hugged in the elevator. He also informed them that he and Ms. Al Edwan had hugged previously at work.
[15] On the information they gathered, Ms. Sherrell and Ms. Madeley determined they could not reach a conclusion about what exactly happened in the elevator. However, they decided that the Co-worker had acted inappropriately and gave him a written warning. That warning letter is before me. In it, the Society informed the Co-worker that any “inappropriate behaviour” in the future could result in his immediate termination. The Society also decided it would send the Co-worker for bullying and harassment training.
[16] The Society then determined the Co-worker and Ms. Al Edwan could no longer work in its Surrey office together. It decided to relocate Ms. Al Edwan from its Surrey to its New Westminster office. The Society says it relocated Ms. Al Edwan and not the Co-worker because there was a vacant position at its New Westminster office that was like her position at the Surrey office. The Society also says Ms. Al Edwan had previously indicated that she wanted to work closer to Vancouver, where she lived, and had been applying for other positions, including positions in New Westminster. It further says it could not relocate the Co-worker for logistical reasons related to funding and his language skills.
[17] Ms. Al Edwan disputes the position at the New Westminster office was like her position at the Surrey office. She says she focused on helping mothers and their children in her role in Surrey, whereas in New Westminster, she would have to interact with entire families, including male clients. Ms. Al Edwan also disputes the Co-worker did not have the language skills required for the position in New Westminster.
[18] On May 13, the Society met with the Co-worker to share the outcome of its investigation.
[19] On May 14, Ms. Madeley contacted Ms. Al Edwan by phone to inform her of the outcome of the investigation. During that call, Ms. Madeley informed Ms. Al Edwan that she and Ms. Sherrell were unable to conclude the Co-worker engaged in “wrongdoing that warranted termination.” Ms. Madeley also informed Ms. Al Edwan that he was not exonerated entirely and would be disciplined. During the phone call, Ms. Madeley also told Ms. Al Edwan that she would be moved to the New Westminster office.
[20] Ms. Al Edwan sent the Society an email on May 15, 2019, stating that she felt the resolution to the reported assault remained unclear and felt unfair. She says the Society’s conduct during the investigation and its decision to relocate her negatively affected her mental health.
[21] On May 21, 2019, Ms. Al Edwan met with Ms. Sherrell and Ms. Madeley to discuss the outcome of the investigation and the Society’s decision to move her to the New Westminster office further. The Society says Ms. Al Edwan told Ms. Sherrell and Ms. Madeley that she thought the Co-worker had “won” because he got to stay at the Surrey location.
[22] Ms. Al Edwan started working at the New Westminster office on May 22, 2019.
[23] Ms. Al Edwan alleges she injured her back when she pushed her Co-worker away from her in the elevator. On May 30, 2019, Ms. Al Edwan visited a walk-in clinic because of back pain. She says a Doctor advised her that in addition to back pain, her mental health had deteriorated resulting in panic attacks. She says the Doctor told her to take two weeks off work and start counselling.
[24] Ms. Al Edwan visited her family doctor on June 4, 2019. She says he diagnosed her with emotional trauma secondary to sexual assault and mechanical back pain. She further states the Doctor informed her that he expected she would be off work for between 14 and 20 days. Ms. Al Edwan visited her doctor for a follow up appointment on June 18.
[25] Ms. Al Edwan alleges she reported the physical injury to the Society on June 7, 2019. She does not say to whom she reported the injury. The Society says Ms. Al Edwan never informed it about a back injury or any mental health conditions, during the investigation or afterwards.
[26] Ms. Al Edwan has remained on unpaid leave since around June 4, 2019.
[27] On June 6, 2019, the Co-worker resigned.
III DECISION
A. Section 27(1)(g) – Timeliness of the June 12, 2020 amendment
[28] Ms. Al Edwan filed her discrimination complaint based on sex and race on June 4, 2019. She filed further particulars to the allegations of sex discrimination and race discrimination on July 2, 2019 [ First Amendment ]. On June 12, 2020, Ms. Al Edwan filed a second amendment to the Complaint [ Second Amendment ]. On August 17, 2020, the Tribunal accepted the Second Amendment for filing. In that amendment, Ms. Al Edwan again adds further particulars to her allegations of discrimination based on sex and race. The Second Amendment also adds mental and physical disability as grounds of discrimination to the Complaint.
[29] In its application under s. 27(1)(g), the Society applies to have the mental and physical disability allegations dismissed as untimely. As I explain next, I find those allegations timely. I therefore deny the Society’s application under s. 27(1)(g).
[30] 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. Under s. 27(1)(g) of the Code , the Tribunal may dismiss all or part of a complaint if the “contravention alleged in the complaint or that part of the complaint occurred more than one year before the complaint was filed unless the complaint or that part of the complaint was accepted under section 22(3)” of the Code .
[31] The first issue I must decide is whether the disability discrimination allegations in the Second Amendment occurred outside of the time limit for filing. If the disability discrimination allegations are untimely, I must then decide whether to exercise my discretion to accept the late-filed allegations 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 .
[32] The Society also asks the Tribunal to consider whether Ms. Al Edwan violated Rule 24(4)(a) of the Tribunal’s Rules of Practice and Procedure when she filed the Second Amendment. Under Rule 24(4)(a), a complainant must apply to amend a complaint if the amendment adds an untimely allegation.
[33] In any timeliness decision, the Tribunal starts by determining the applicable dates for calculating the timeliness of a complaint. The Society takes the position that June 4, 2019, the date Ms. Al Edwan filed the Complaint, is not the date from which one calculates the timeliness of the disability allegations in the Second Amendment. Rather, the Society submits the Tribunal must calculate the timeliness of the disability allegations based on the date the Tribunal accepted the Second Amendment, which was August 17, 2020. Whether the alleged disability discrimination contravention is said to have occurred on May 2, 2019, or as late as June 3, 2019, when Ms. Al Edwan went on leave, the Society submits the disability allegations are late filed. Based on this line of argument, the disability discrimination allegations are late filed by between one and three months.
[34] In my view, the Society has misunderstood how the Tribunal calculates the timeliness of an amendment. The Tribunal has consistently held that the timeliness of an amendment is based on when the events outlined in the amendment occurred, and whether they are timely based on when the original complaint was filed, not on the date the amendment was filed: Kruger v. Xerox Canada (No. 3) , 2005 BCHRT 284 at para. 22 ; Forsyth v. Bulkley Valley Wholesale and others , 2014 BCHRT 268 at para. 20 ; Ashton v BC Ministry of Children and Fami ly Development and another , 2017 BCHRT 202 at paras. 25-26 ; Kun v UBC 2011 BCHRT 102 at paras. 34-36 ; Graham v West Coast Family Support Institute , 2010 BCHRT 11 at paras. 44-48 ; Singh v. Chartered Professional Accountants of BC and others, 2023 BCHRT 128 at para. 18. This is consistent with the language used in s. 27(1)(g) of the Code . Under that provision, the two dates I must use to calculate timeliness in an application to dismiss are: the date of the alleged contraventions and the filing date of the complaint, not the filing date of the amendment to the complaint.
[35] As I understand it, the alleged disability discrimination contraventions are as follows. First, Ms. Al Edwan says the Society did not accommodate her “mental distress” in their response to her sexual assault allegations. Second, Ms. Al Edwan says that on June 7, 2019, a few days after she went on leave, she informed the Society that she was physically injured during the assault. She says the Society has not taken any steps to address her injuries and alleges they have failed in their duty to accommodate her. She alleges this amounts to discrimination based on mental and physical disability.
[36] There is no dispute that Ms. Al Edwan went on leave without pay in June 2019, making the allegations of disability discrimination set out in the Second Amendment timely allegations based on the date Ms. Al Edwan filed the Initial Complaint.
[37] I deny the application under s. 27(1)(g).
B. Section 27(1)(d)(ii) – Proceeding would not further the purposes of the Code
[38] Section 27(1)(d)(ii) allows the Tribunal to dismiss a complaint where proceeding with it would not further the purposes of the Code . These purposes include both private and public interests: Code , 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.
[39] The Society applies under s. 27(1)(d)(ii) on two bases. First, the Society submits it made Ms. Al Edwan a reasonable settlement offer, and it would not further the purposes of the Code to proceed because she rejected that reasonable offer. Second, the Society submits it investigated and remedied the conduct Ms. Al Edwan complained of and it would not further the purposes of the Code to proceed with the complaint in this context.
[40] Next, I explain why neither of the Society’s arguments persuade me that it would not further the purposes of the Code to proceed with the Complaint against it.
1. Reasonable Settlement Offer
[41] The Society asks the Tribunal to dismiss the complaint in full under s. 27(1)(d)(ii) on the ground that it made Ms. Al Adwan a reasonable settlement offer. I have read the settlement offer and the Society’s submissions and do not agree.
[42] There are two pre-requisites for the Tribunal to consider when dismissing a complaint based on a reasonable settlement offer. First, the settlement offer must be made “with prejudice” because the Tribunal cannot rely on information about settlement discussions that is inadmissible based on privilege: at Dar Santos v. University of British Columbia , 2003 BCHRT 73 para. 64; Carter at para. 25. Second, the offer must remain open for the complainant’s acceptance regardless of the outcome of the application to dismiss: Issa v. Loblaw , 2009 BCHRT 264 at para. 35.
[43] Only if those prerequisites are met does the Tribunal move on to determine whether it does not further the purposes of the Code to proceed. In this case, I find the Society has not met the second perquisite. Its settlement offer expired on a specific date and did not remain open for acceptance as required. It is arguable they also failed to meet the first prerequisite. However, I do not need to decide that issue to make my decision under s. 27(1)(g) because I find they clearly failed to meet the second prerequisite.
[44] On February 25, 2021, the Society presented Ms. Al Adwan with an offer to settle. A copy of the letter in which the Society sets out the terms of that offer is before me.
[45] In the letter, the Society states:
This Offer is made on a “without prejudice” basis except for the purpose of an application to dismiss under section 27(1)(d)(ii) of the BC Human Rights Code.
If this Offer is not accepted by Ms. Al Edwan, the Respondent expressly reserves the right to bring the Offer to the attention of the Tribunal in an application to dismiss the Complaint on the basis of her failure or refusal to accept a reasonable settlement offer.
[46] The letter then sets out the terms of the Offer. At the conclusion of the Offer, the letter states:
This Offer will remain open for acceptance until 4:40 p.m. on Thursday March 4, 2021, at which time it will automatically expire and be incapable of acceptance.
[47] The settlement offer remained open for seven days only. It did not remain open for acceptance regardless of the outcome of the application to dismiss. Therefore, the settlement offer does not meet one of the two prerequisites that must be met for the Tribunal to consider dismissing Ms. Al Edwan’s complaint under s. 27(1)(d)(ii) because she rejected its offer.
[48] In sum, I decline to exercise my discretion to dismiss the complaint on the basis of the Society’s settlement offer.
2. Underlying dispute has been remedied
[49] The Society also argues that it would not further the Code’s purposes for the Complaint to proceed because the underlying dispute has been resolved or remedied: Williamson v. Mount Seymour Park Housing Coop , 2005 BCHRT 334 .
[50] 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. I am not persuaded that this is the case in Ms. Al Edwan’s circumstances for the straightforward reason that the Complaint alleges the Society’s response in and of itself was discriminatory.
[51] The Complaint includes allegations that the Society discriminated against Ms. Al Edwan in its response to the reported assault. For example, Ms. Al Edwan alleges Ms. Madeley made an inappropriate comment about Ms. Al Edwan’s culture during one of the meetings she attended and that this amounts to discrimination based on sex and race. Ms. Al Edwan also alleges the Society did not accommodate her physical and mental disabilities. Those allegations were not addressed by the Society’s response to Ms. Al Edwan’s sexual assault complaint. Given the scope of the Complaint, I am not persuaded that it would not further the purposes of the Code to proceed based on the Society’s position that it investigated and resolved the sexual assault allegations.
[52] I am also unpersuaded by the Society’s reliance on paragraphs 30-31 of Horner v. Concord Security Corporation , 2003 BCHRT 86 [ Horner ] in support of its application under s. 27(1)(d)(ii). In my view, Ms. Al Edwan’s case is distinguishable from Horner . At paragraph 31 of Horner , the Tribunal states:
Given the minor nature of the conduct complained of, the doubtfulness that it constituted sexual harassment, the fact that the Respondent investigated and considered the allegations to be unproven, and the fact that the Complainant and Mr. Korda were not regular co-workers, this was a reasonable informal resolution to the problem.
[53] In contrast, Ms. Al Edwan’s allegations are not what I would consider to be of a “minor nature,” involving two individuals who were “not regular co-workers.” Indeed, the Society determined the Co-worker had engaged in at least some inappropriate behaviour that warranted a disciplinary letter and training.
[54] In sum, Ms. Al Edwan’s complaint is not just a complaint about a sexual assault. Ms. Al Edwan’s complaint includes allegations that the Society’s response to her sexual assault complaint was, itself, discriminatory. It also includes allegations that the Society discriminated against her based on her mental and physical disabilities. Thus, even if I was prepared to accept that the Society’s response to the sexual assault complaint was adequate, which I am not, I cannot find that the Society’s investigation adequality addressed all the allegations in the Compliant such that it would be contrary to the purposes and principles of the Code to proceed to a hearing.
C. Scope of Complaint
[55] Before I address the Society’s submissions under s. 27(1)(b) and (c), I first address an argument the Society raises in its reply submission. The Society submits Ms. Al Edwan has not complied with Rule 24(4)(b) of the Tribunal’s Rules . It says she has improperly used her response submission to expand her Complaint by asserting new facts and adding new allegations.
[56] The Society submits “to the extent the Response raises new allegations which were not included in the Complaint and/or are not supported by evidence, such issues do not form part of the matter presently before the Tribunal and should be disregarded as a whole.” The Society argues it is prejudiced by the new allegations because they present a “moving target”: Parchment v. B.C., 2010 BCHRT 345 at paras. 26 to 27. It asks me to disregard paragraphs 10, 14 to 23, 26, 31 to 33, 38 to 39, 51 and 53 in Ms. Al Edwan’s response submission. The Society submits that if the Tribunal accepts the “new allegations”, it reserves the right to amend and expand its application to dismiss.
[57] Ms. Al Edwan filed an application for sur-reply to address this part of the Society’s reply. The Society opposes the application for sur-reply.
[58] I find I can address the Society’s objection to certain paragraphs of Ms. Al Edwan’s response submissions without considering the application for sur-reply. For the following reasons, the Society has not persuaded me that Ms. Al Edwan’s response contains improper amendments to the Complaint that the Tribunal must disregard.
[59] The Society is correct that a party must file an application to amend a complaint if there is an outstanding application to dismiss: Rule 24(4)(b). That said, the Tribunal’s complaint and response forms are not equivalent to pleadings in a civil litigation process: Nelson v. Pinnacle Renewable Energy and another , 2024 BCHRT 165 at para. 20; White v. Nanaimo Daily News Group Inc. , 2004 BCHRT 350 at para. 23 . 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. It is not uncommon, or a violation of the Rules, for a complainant to add new particulars of their complaint in response to an application to dismiss: Kirchmeier v. University of British Columbia, 2021 BCHRT 149 at paras. 9 to 10 .
[60] The distinction between particulars and new allegations was well articulated in Powell v. Morton , 2005 BCHRT 282 at para. 20 :
I must examine the complaint originally filed with the Tribunal, and the amendment which the complainant seeks to file, to determine whether, in substance, the amendment constitutes further and better particulars of the complaint. In making this determination, 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 questions 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.
[61] The Society argues the above-listed paragraphs contain assertions of fact and allegations that are not set out in the Complaint.
[62] Having reviewed the impugned paragraphs, I am satisfied they do not present a moving target but rather fall within the scope of the Complaint. The paragraphs set out further particulars and/or Ms. Al Edwan’s response to issues the Society has raised in its application. They do not expand her complaint.
[63] For example, paragraphs 10 and 14-19 include: (a) further particulars related to what happened in the elevator on May 2, 2019; (b) submissions on how the Tribunal should interpret statements Ms. Madeley made in an affidavit the Society submitted in support of its application; and (c) argument. I am satisfied that these paragraphs do not contain improper amendments to the Complaint.
[64] Paragraph 20 contains argument and added particulars in response to the Society’s position that it was justified in its decision to move Ms. Al Edwan to its New Westminster office. Ms. Al Edwan argues the Society reassigned her from her original role – which focused on helping mothers and their children – to a new role that required her to interact with men, some of whom might be aggressive. She argues this was insensitive and callous. These alleged facts add detail to Ms. Al Edwan’s allegation that she was adversely impacted by the Society’s decision to move her. Paragraph 21 is also proper response and adds particulars that are relevant to Ms. Al Edwan’s position on the Society’s argument that it was justified in its decision to relocate Ms. Al Edwan.
[65] For similar reasons, I find paragraphs 22-23, 26, 31 to 33, 38 to 39, 51 and 53 also contain further particulars and/or argument in response to issues raised in the Society’s application.
[66] In paragraph 22, Ms. Al Edwan says her mental health was negatively affected by the Society’s “insensitive conduct” and decision to relocate her. This is not a new allegation. The Complaint alleges the Society “actively took steps in her employment that further exacerbated her mental state on grounds protected by the Code .”
[67] Paragraph 23 states Ms. Al Edwan requested accommodation but did not “receive any indication that such accommodation would be granted.” Paragraph 26 also relates to Ms. Al Edwan’s allegation that the Society has not accommodated her. These paragraphs do not set out new allegations.
[68] In paragraph 31, Ms. Al Edwan says the Society gaslit, dismissed and marginalized her during its investigation. Ms. Al Edwan is presenting an interpretation of events in this paragraph, not a new allegation. For similar reasons, I disagree with the Society’s interpretation of paragraphs 51 and 53 as improper response.
[69] In paragraph 33, Ms. Al Edwan adds particulars by stating she broke down into tears during meetings with the Society. This is allowed.
[70] Paragraph 38 for the most part is also fine. I do however agree with the Society that I should disregard the final sentence of paragraph 38 and all of paragraph 39. Those sentences do not appear to have any connection to the Complaint. They concern a job termination and severance package and appear to be included in error.
[71] Given that the paragraphs identified by the Society do not contain new allegations, there is no basis for a request to amend the Society’s dismissal application, should one be made.
[72] I now address the Society’s application under s. 27(1)(b).
D. Section 27(1)(b) – No arguable contravention
[73] 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.
[74] In this case, the Complaint must set out facts that, if proved, could establish that Ms. Al Edwan has one or more characteristics that are protected by the Code , she was adversely impacted in her employment, and one or more of her protected characteristics factored into the adverse impact : Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33.
[75] Under s. 27(1)(b), the Society submits the allegations on race and disability do not contravene the Code and should be dismissed. For the following reasons I decline to dismiss Ms. Al Edwan’s case of race and physical disability discrimination under s. 27(1)(b). However, I am persuaded Ms. Al Edwan has not alleged an arguable contravention of the Code with respect to discrimination based on mental disability. Accordingly, I dismiss that part of the Complaint.
1. Allegations of racial discrimination
[76] On race, the Society submits Ms. Al Edwan’s allegation if proven does not constitute a contravention of the Code . First, it says Ms. Al Edwan has not provided sufficient particulars on a nexus between her race and an adverse impact in her employment to meet the threshold under s. 27(1)(b). The Society submits the vagueness of her complaint makes it impossible for it to ascertain what Ms. Al Edwan is alleging.
[77] I do not find the allegation of racial discrimination vague. In her Initial Complaint, which she drafted as a self-represented litigant, Ms. Al Edwan alleges the following occurred during a meeting with Ms. Madeley:
I was asked if in “my Culture” this is considered flirting which was very offensive to be asked such a question after what happened. Culture doesn’t give anyone an excuse for sexual assault.
[78] In the Amended Complaint, Ms. Al Edwan states that in making a statement about her culture in this way, Ms. Madeley downplayed the incident. She alleges this assertion violates the Code on the grounds of race and sex. When this comment is put in the context of the Complaint as a whole, I do not find Ms. Al Edwan’s allegation vague. She is alleging that in addition to her sex, her race is connected to alleged deficiencies in the Society’s response to her sexual assault report, because of this alleged comment.
[79] Second, the Society argues an allegation about a “simple mention of the Complainant’s culture” does not amount to discrimination under the Code . It argues that to succeed in a case of racial discrimination, a complainant must usually show evidence of repeated conduct. In Ms. Al Edwan’s case, she has only pointed to one instance of alleged racial discrimination. The Society also argues the circumstances in Ms. Al Edwan’s case are not analogous to cases where the Tribunal has found single comments to amount to discrimination, such as Hadzic v. Pizza Hut, 1999 BCHRT 44 and Dastghib v. Richmond Auto Body and others (No. 2), 2007 BCHRT 197 at para. 214.
[80] I am not persuaded that Ms. Al Edwan’s allegation regarding the comment about her culture is not an arguable contravention of the Code because it is a single comment. I reach this conclusion because of the context in which the comment is alleged to have occurred. Ms. Al Edwan says Ms. Madeley asked if the Co-worker’s behaviour was considered “flirtation” in her culture in the context of a sexual assault investigation. A comment that minimizes or attempts to explain away allegations of sexual assault based on racial or cultural stereotypes, may rise to the level of discrimination under the Code if proven at a hearing. Further, this allegation concerns Ms. Al Edwan’s intersectional identity as a racialized woman, and I am not prepared to parse out allegations at this preliminary stage. In my view, the Complaint includes sufficient particulars to allege an arguable contravention of the Code regarding racial discrimination, which is all that is required at under s. 27(1)(b).
2. Allegations of disability discrimination
[81] The Society submits the Complaint does not include sufficient particulars to establish it discriminated against Ms. Al Edwan in connection with a physical or mental disability under s. 13 of the Code . For the following reasons, I am not persuaded Ms. Al Edwan has not alleged an arguable contravention of the Code based on physical disability. However, I am persuaded that she has not alleged an arguable contravention of the Code based on mental disability.
a. The physical disability discrimination allegation
[82] The Society asks the Tribunal to dismiss this part of Ms. Al Edwan’s Complaint under s. 27(1)(b) because the particulars before me, if true, do not contravene the Code . I am not so persuaded.
[83] The Society argues Ms. Al Edwan has not provided sufficient particulars to meet the threshold for 27(1)(b). However, the Society does not expand on why, in its view, the Complaint does not allege sufficient facts to prove the three elements of the test for discrimination. Rather, the Society submits Ms. Al Edwan has not pled sufficient particulars to prove she requested an accommodation or to show that the Society should have been aware she required an accommodation.
[84] The Society is correct that there is no standalone right to accommodation under the Code . Before an employer is under any obligation to engage in accommodation, the employee must be able to establish a disability-related adverse impact regarding their employment. However, the focus in an application under s. 27(1)(b) is whether the complainant has pled sufficient facts to meet the three elements of the test for discrimination. As such, the Society’s submission that its actions, or inactions, were justified does not persuade me the allegations of disability discrimination are not arguable contraventions of the Code .
[85] In any event, even if I could consider the Society’s justification argument, I would do so under s. 27(1)(c). Under that provision, the Society would have to persuade me it is reasonably certain to prove a justification defence for the physical disability discrimination allegation. On the materials before me, I am not so persuaded.
[86] The Society argues Ms. Al Edwan has not made any assertions that would demonstrate she requested an accommodation for a physical disability. The Society also says Ms. Al Edwan has not demonstrated that it knew the nature and extent of her physical disability, aside from her vague assertion that she “reported the physical injury” to the Society. The Society argues it cannot be expected to accommodate in circumstances where it is unaware of the need for a particular accommodation, citing Purdy v. Douglas College 2016 BCHRT 117 at para. 76.
[87] In the evidence before me is an email conversation between Ms. Al Edwan and Ms. Madeley dated June 25, 2019. In that conversation, Ms. Al Edwan asks Ms. Madeley:
Could you please tell me what are my options towards returning to work My physician and physiotherapist advices against prolong periods of sitting and walking and i have no idea how we can figure out something especially with the long commute. I am currently doing two sessions a week with my physiotherapist and have follow up appointment with my physician.
I would appreciate your input because for me i would love to get back to work… [as written]
[88] In this email, Ms. Al Edwan provided Ms. Madeley information about her circumstances. She informed Ms. Madeley that she attends physiotherapy twice a week and asked for assistance to “get back to work.” If the Society responded, I do not have a copy of that response before me. Given that I do not have any evidence of a response, I am not persuaded the Society is reasonably certain to prove a justification defence at a hearing.
[89] I deny the application to dismiss the disability discrimination allegation under s. 27(1)(b). I would also deny an application to dismiss this part of the Complaint under s. 27(1)(c).
a. The mental disability discrimination allegation
[90] For the following reasons, I am persuaded Ms. Al Edwan’s allegation of mental disability discrimination is not an arguable contravention of the Code . I dismiss that part of her Complaint under s. 27(1)(b).
[91] I begin by acknowledging that experiencing any form of sexualized violence in the workplace may have adverse impacts on a person’s mental health. To the extent that Ms. Al Edwan is alleging the Society’s response to her report adversely impacted her mental health, however, that is not an allegation of discrimination based on mental disability. That alleged impact can be addressed as part of her complaint that the Society’s response to her sexual assault report was discrimination based on her sex and race.
[92] To the extent that Ms. Al Edwan is arguing the Society discriminated against her in relation to the adverse mental health impacts of the sexual assault itself, this allegation is not an arguable contravention of the Code . As the Society pointes out, in Vandale v. Town of Golden and other, 2009 BCHRT 219, the Tribunal explained:
In essence, Ms. Vandale alleges that [a coworker and manager] harassed her, and that that harassment led to stress and anxiety. Assuming that to be true, the fact that particular conduct results in an individual experiencing stress and anxiety, or even a mental disability, does not mean that that conduct constitutes discrimination on the grounds of mental disability. Ms. Vandale’s allegation is that the respondents caused her to suffer stress and anxiety, not that they discriminated against her because of or in relation to the stress and anxiety she alleges she experienced. An allegation of intentional infliction of mental distress of the kind Ms. Vandale makes might be a tort or some other kind of legal wrong; it is not a human rights complaint. [para. 43]
[93] Following Vandale , the Tribunal has consistently held the fact that an incident at work negatively affects a person’s mental health does not necessarily amount to evidence of discrimination: Moudakis v. Insurance Corporation of British Columbia and others, 2024 BCHRT 266 at para. 65. In Ms. Al Edwan’s case, she has not alleged sufficient particulars to prove her allegation of mental disability discrimination in employment.
[94] I allow the application to dismiss the mental disability discrimination allegations under s. 27(1)(b).
A. Section 27(1)(c) – No reasonable prospect of success
[95] 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.
[96] 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 .
[97] 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 .
[98] 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.
[99] To succeed at a hearing, Ms. Al Edwan must prove the three elements of her case: (1) she has characteristics protected under s. 13 of the Code ; (2) she was adversely treated or impacted in her employment; and (3) her protected characteristics were a factor in that adverse treatment or impact: Moore v. BC (Education) , 2012 SCC 61 at para. 33. If Ms. Al Edwan proves the elements of her case, then the burden shifts to the Society to justify its conduct under the framework for a bona fide reasonable justification. If the impact is justified, there is no discrimination.
[100] For the following reasons, the Society has not persuaded me Ms. Al Edwan has no reasonable prospect of proving her case. I am also not persuaded by the evidence that it is reasonably certain the Society would be able to establish a justification defence.
a. Legal Principles
[101] Under the Code, employers are responsible for maintaining a discrimination-free work environment: British Columbia Human Rights Tribunal v. Schrenk , 2017 SCC 62 at paras. 54 and 56 . This includes an obligation to investigate allegations of discrimination: Beharrell v. EVL Nursery Ltd., 2018 BCHRT 62 at para. 21 [ Beharrell ]. A failure to respond reasonably and appropriately may amount to discrimination, even if the underlying conduct complained about is determined not to be discriminatory: Jamal v. TransLink Security Management and another (No. 2) , 2020 BCHRT 146 , at para. 106 citing Employee v. The University and another (No. 2) , 2020 BCHRT 12 at para. 272 . The Tribunal has therefore recognized that a complainant may independently experience adverse impacts because of an inadequate response to discrimination: Martinez Johnson v. Whitewater Concrete Ltd. and others (No. 2) , 2022 BCHRT 129 at para. 54 .
[102] Generally, the Tribunal considers three aspects of an employer’s response to allegations of discrimination. Those are: “the conditions that allow a person to complain about discrimination, the response to that complaint, and the resolution of the complaint and restoration of a discrimination-free environment”: Hale v. University of British Columbia Okanagan (No. 5) , 2023 BCHRT 121 at para. 26. These criteria are a useful guide to assessing the effectiveness of an employer’s efforts to foster and, where necessary, restore a discrimination-free work environment.
[103] This Tribunal has also explained, “an effective response to an allegation of sexual violence can mitigate or eliminate adverse impacts on a survivor and restore a discrimination-free environment”: Hale at para. 16. In this way, an effective response may obviate the need for a human rights proceeding.
[104] On the other hand, “a failure to reasonably respond can exacerbate the harms of discrimination or even cause further harms” Hale at para. 17. An unreasonable or ineffective response may also generate further adverse impacts: Hale at para. 18. Finally, a respondent may also engage in further discriminatory conduct in its response to allegations of discrimination: Hale at 19.
b. Analysis
[105] Before I address the three elements of Ms. Al Edwan’s case, I first address the Society’s argument that there is no reasonable prospect Ms. Al Edwan can prove she was sexually assaulted based on the results of its internal investigation and on the affidavit evidence before me regarding that investigation. I am not persuaded that this is the case. A workplace investigation is not the same as a full hearing before the Tribunal, where witnesses are subject to cross-examination and findings of fact are made.
[106] In any event, the success of Ms. Al Edwan’s Complaint against the Society does not turn on whether she can prove she was sexually assaulted. The Complaint is about the Society’s response to her reporting the sexual assault. As noted above, a failure to respond reasonably and appropriately may amount to discrimination, even if the underlying conduct complained about is determined not to be discriminatory.
i. Is there no reasonable prospect Ms. Al Edwan would prove the elements of her sex and race discrimination?
[107] There is no dispute that as an Arab woman, Ms. Al Edwan is protected from discrimination based on her sex and race.
[108] This part of the application turns on whether the Society has persuaded me there is no reasonable prospect Ms. Al Edwan would prove its response to her sexual assault report adversely impacted her in her employment.
[109] Broadly speaking, Ms. Al Edwan alleges the Society’s response to her sexual assault report adversely impacted her by exacerbating the mental health impacts of the assault itself. She points to several alleged deficiencies in the Society’s response. Among other things, Ms. Al Edwan alleges Ms. Madeley made an offensive comment about her culture during the investigation. She also alleges the Society did not inform her about the results of the investigation. In addition, Ms. Al Edwan alleges the Society’s decision to relocate her, instead of her Co-worker, adversely impacted her mental health because it felt like her Co-worker had won. She argues this was a form of secondary victimization. She also says the decision to move her to New Westminster adversely impacted her because she would have to interact with male clients in her new role.
[110] I find there is no reasonable prospect Ms. Al Edwan would prove her allegation that the Society did not inform her of the outcome of its investigation. I reach this conclusion because the record before me does not appear to corroborate it. A copy of an email Ms. Al Edwan sent to the Society’s CEO on May 24, 2019 is before me. In that email, Ms. Al Edwan notes that the Society has concluded its investigation. She then explains that the findings were not “fully disclosed for privacy.” She also appears to have understood that while the investigation did not result in a finding that her Co-worker sexually assaulted her on May 2, it did reach some findings that resulted in disciplinary action. The information in this email is further corroborated by a copy of Ms. Sherrell’s notes from the meeting between her, Ms. Madeley and Ms. Al Edwan on May 21, 2019. For these reasons, there is no reasonable prospect Ms. Al Edwan would prove this specific allegation.
[111] In contrast, the Society has not persuaded me Ms. Al Edwan has no reasonable prospect of proving she was adversely impacted by a comment made by Ms. Madeley during the investigation and the Society’s decision to relocate her to its New Westminster office.
[112] The Society disputes Ms. Madeley made the alleged comment about Ms. Al Edwan’s culture and submitted a sworn statement by Ms. Madeley in support of its position. However, Ms. Al Edwan has not had an opportunity to test that evidence through cross-examination. For that reason, I am not prepared to rely on Ms. Madeley’s statement as evidence that the Society is reasonably certain to prove she did not make the alleged comment. In my view, the success of Ms. Al Edwan’s allegation that the Society did not treat her reported sexual assault with adequate seriousness or sensitivity turns in part on her ability to prove her version of events, namely that Ms. Madeley made a comment about her culture that she found offensive in the circumstances. I find a hearing is required to resolve this disputed fact.
[113] The Society also argues that even if Ms. Madeley made such a comment, Ms. Al Edwan has not stated how the comment adversely impacted her. I am not persuaded that by not expanding on the specifics of how this comment impacted her, there is no reasonable prospect Ms. Al Edwan would prove Ms. Madeley’s alleged behaviour adversely impacted her. Ms. Al Edwan has alleged that this comment was offensive in the context of a sexual assault investigation. She has also alleged this in the context of her broader allegation that the Society’s response to her sexual assault report was inadequate and exacerbated the mental health impacts of the assault itself.
[114] Ms. Al Edwan alleges the decision to relocate her adversely impacted her by exacerbating her mental distress. She says she felt like the Co-worker “won.” In her Complaint, she states:
i have been moved to another location with a different job without being given any other option, while my male colleague who assaulted me is still at the same office and job, i didn’t have a chance to say goodbye to my colleagues and clients and i was moved like i am the one who did something wrong, and i was victimized twice. [as written]
[115] In her response to this application, Ms. Al Edwan frames the Society’s response to her sexual assault report as a form of “secondary victimization.”
[116] The Society submits there was nothing “adverse” about its decision to relocate Ms. Al Edwan to the New Westminster office. To the contrary, the Society says it was the most prudent and reasonable step it could take following the conclusion of its investigation. The Society also says it made this decision for bona fide reasons. That may or may not be the case. However, the Society’s reasons for moving Ms. Al Edwan do not mean she has no reasonable prospect of proving her allegation that its decision to do so adversely impacted her mental health, and, by implication, her employment. I find it more than mere conjecture for Ms. Al Edwan to allege the Society’s decision to move her and not the Co-worker adversely impacted her in her employment.
[117] Taking the above into consideration, I am not persuaded Ms. Al Edwan has no reasonable prospect of proving at least some of the alleged adverse impacts of the Society’s response to her sexual assault complaint. I find it is more than mere conjecture for Ms. Al Edwan to allege she was adversely impacted in her employment when she was relocated to the New Westminster office. I reach this conclusion because the relocation took place after her employer reached inconclusive findings in a sexual assault investigation, but acknowledged the Co-worker had engaged in “some inappropriate behaviour.” I accept that it is more than mere conjecture to allege the decision to move her felt like a form of secondary victimization.
[118] When these two alleged deficiencies are considered contextually, I find Ms. Al Edwan has taken her allegation that the Society’s response adversely impacted her out of the realm of conjecture, which is all that is required at this stage.
ii. Is the Society reasonably certain to prove any adverse impacts of its response to Ms. Al Edwan’s reported assault are justified?
[119] In the event the Society proves it had a bona fide reason for its decision, it may still succeed with its application under s. 27(1)(c).
[120] The Society argues it was justified in separating Ms. Al Edwan and the Co-worker because it was complying with WorkSafeBC safety requirements. The Society also says it made this decision for bona fide reasons. First, it says funding for the Co-worker’s position was tied to its Surrey office. Second it says it did not have a vacant position in its New Westminster office that the Co-worker could fill. Third, it says Ms. Al Edwan’s job description contemplated her working from either its Surrey or its New Westminster location. Fourth, the Society says the position in New Westminster was nearly identical to the position Ms. Al Edwan held in Surrey. Finally, the Society submits Ms. Al Edwan had previously informed them that she wanted to work closer to Vancouver, where she lived at the time, and had applied for vacant positions in its New Westminster office.
[121] The evidence before me supports the Society’s assertion that Ms. Al Edwan’s job already contemplated her working from the New Westminster office. Ms. Al Edwan’s appointment letter states:
We are pleased to offer you the position of Settlement Case Worker (Adult) for the Settlement/HIPPY programs in New Westminster and Surrey locations effective January 7, 2019.
[122] However, on the materials before me I am not persuaded the Society is reasonably certain to prove its assertion that the Co-worker could not be relocated instead.
[123] The Society says it could not relocate the Co-worker because his funding required him to work at the Surrey office and he did not meet the language requirements of the position in New Westminster. However, the Society has not directed me to a copy of that funding agreement or other evidence that demonstrates they are reasonably certain to prove these assertions at a hearing. In addition, Ms. Al Edwan has asserted the Co-worker did meet the language requirements for the position in New Westminster because he could speak Arabic. A hearing would be required to resolve this disputed fact.
[124] When I consider all of the above in the context of a sexual assault allegation, I find Ms. Al Edwan has taken her allegations of sex and race discrimination out of the realm of conjecture. Though the Society is reasonably certain to prove Ms. Al Edwan’s job contemplated her working from its New Westminster office, I am not satisfied it is reasonably certain to prove its decision to move her in the context of a sexual assault investigation was the only available option such that it would have caused the Society undue hardship to find an alternative solution to comply with its WorkSafeBC obligations. I find this because I am not persuaded the Society is reasonably certain to prove it could not have relocated the Co-worker on the evidence before me.
[125] For the reasons set out above, I deny the Society’s application under s. 27(1)(c). I am not saying the Society will not be successful in establishing a defence to its decision to relocate Ms. Al Edwan at a hearing or its position that Ms. Madeley did not make the alleged comment about Ms. Al Edwan’s culture. All I am saying is that a hearing is required so the Tribunal can make factual findings on a full evidentiary record.
IV conclusion
[126] I allow the application under s. 27(1)(b) in part and dismiss the part of the Complaint alleging discrimination based on mental disability. I deny the applications under s. 27(1)(c), (d)(ii) and (g). The allegations of discrimination based on sex, race, and physical disability will proceed.
Kylie Buday
Tribunal Member