Disability Accommodations and the Limits of the COVID-19 Vaccine Card Orders

Will service providers bear a duty to accommodate people unable to get vaccinated due to their disabilities? The uncertainty surrounding the question is discussed in my post regarding the lack of accommodation for unvaccinated people with disabilities in the new public health orders requiring proof of vaccination. It may depend on whether the mandatory vaccination card orders apply. This post provides information on the limits of the orders’ applicability.

The BC Government Website has their own summary of where and when the orders apply here. It is only a summary. The website is not the law itself. This post offers information on what is stated in the orders. It is only legal information and should not be taken as advice.

General Organization of the Orders

Service providers and unvaccinated potential service users are likely to be confused about exactly who can attend what facilities and services, when. The government announcement on August 23, 2021 framed the vaccination passports as being required primarily at “non-essential” services. However, the orders are framed differently. One order applies to post-secondary housing (the “Post-Secondary Housing Vaccine Order”), the second to food and liquor service premises (the “Food and Liquor Services Vaccine Order”), and the third to “gatherings and events” (the “Gatherings and Events Vaccine Order”). Together, I will call these the “Orders.”

Determining whether one of these orders applies, from a strictly legal standpoint, is not so much about determining whether the service is essential or non-essential. With respect to the third order, the determination is about whether the service constitutes an event or gathering covered by the order.

Who the Orders do not Apply to

The orders do not apply to people who are under 12-years of age.

These three orders do not require employees/staff to have a vaccine passport (unless, for example, the staff member attends a restaurant as a patron, or a faculty member lives in university housing). They are directed at residents who reside in post-secondary housing, patrons of food and liquor serving premises, and persons who attend “events” as participants.

However, note that there are two other provincial health officer orders (here and here) that do require proof of vaccination for health care workers in long term care and assisted living facilities, private hospitals, and provincial mental health facilities. Those two orders do not specifically provide for disability accommodations on human rights grounds, although human rights protections may still exist.

Post-Secondary Housing Exceptions

The order regarding vaccine card requirements in post-secondary housing applies to most student housing at universities and colleges in British Columbia.

As per the definition of “post-secondary housing” in the order, “family or apartment housing” for students is not included. As such, it seems that the Post-Secondary Housing Vaccine Order is mainly meant to target dorms rather than family on-campus housing and apartments.

Food and Liquor Services Exceptions

The Food and Liquor Services Vaccine Order applies to food establishments that have table service/patron seating. Restaurants (including buffets) and cafes with table service are included. Food primary or liquor primary establishments such as pubs, bars, lounges, night clubs, private clubs, and liquor manufacturing facilities with tasting rooms or private seating are included.

According to the preamble of the Food and Liquor Services Vaccine Order, paragraph M, it does not apply to:

Gatherings and Events Applicability

The Gatherings and Events Vaccine Order mandates proof of vaccination for participants in certain indoor “places” where “events” are held.

Applicable Places

A “place” is defined in the order as a venue, including the following places (but not including a “private residence”):

**vacation accommodation is defined in the order as: a house, townhouse, cottage, cabin, apartment, condominium, mobile home, recreational vehicle, hotel suite, tent, yurt, houseboat or any other type of living accommodation, and any associated deck, garden or yard, in which a person is residing, but which is not the person’s primary residence.

Applicable Event Purposes

The Gatherings and Events Vaccine Order defines “event” so that the order only applies to activities happening at places for the following Applicable Event Purposes:

For some clarity, the definition of “event” in the vaccine card portion of the order stipulates that the following event types constitute events held for the Applicable Event Purposes:

a ticketed sports activity, concert, theatrical production, dance or symphony performance, festival, conference, convention, trade fair, home show, workshop, wedding reception, funeral reception not at a funeral home, and a sponsored, ticketed party

Number of Participants Involved

When it comes to having to provide proof of vaccination, the Gatherings and Events Order only applies to “gatherings” of participants in the activity. Exactly what “gathering” means is not set out in the order, but, presumably, there would need to be more that one participant involved in the activity for it to constitute a gathering.

As described above, when the event constitutes a gathering of 50 or less people and is not for the purpose of “an adult sports activity” or “an exercise, fitness or dance activity or class,” the Gatherings and Events Order does not apply.

Inside v. Outside

As per section D. 2. of the order, proof of vaccination applies only to activities occurring inside. Per section A.2. of the order, an event held in a tent with two or more sides is an inside event, and per section A.3., an event held in a tent without sides is an outside event. It’s unclear whether the definitions regarding tents and inside and outside events apply to the proof of vaccination section of the order. Either way, for proof of vaccination requirements to apply, the activity needs to be happening inside.

Specific Exceptions

The Gatherings and Events Vaccine Order includes a specific list of who and what activities it is not meant to apply to in the preamble at paragraph L. The specific exceptions are as follows:

Summary Checklist

Taken together, the following checklist describes the conditions that need to be met for the Gatherings and Events Vaccine Order to be applicable:

If any of the conditions of the checklist are not met, the Gatherings and Events Vaccine Order likely does not apply.

Do the BC COVID-19 Vaccination Passport Orders Prevail Over Human Rights Legislation Requiring Disability Accommodation?

The law regarding BC’s COVID-19 vaccination passport and entry into various establishments in the province was published today. This post discusses the publication of the relevant orders, their lack of human rights (disability) accommodations, the issue of whether they prevail over the discrimination protections set out in the Human Rights Code, their relationship with the Charter, and the protections available to service providers who follow them. Activities that are not covered by the orders will be set out in a later post.

Publication of the Orders

While BC Premier John Horgan, Provincial Health Officer Dr. Bonnie Henry, and Health Minister Adrian Dix announced the upcoming provincial health order(s) on August 23, 2021, the law itself was not published here on the BC Office of the Provincial Health Officer website until yesterday evening and this morning. The Provincial Health Officer Order regarding post-secondary institution housing and the COVID-19 vaccine cards is dated September 9, 2021 but was published yesterday evening. The Provincial Health Officer Orders regarding the COVID-19 vaccine passport and food and liquor serving premises is dated yesterday September 10, 2021 but was published today, and the Order regarding COVID-19 vaccination passports and “gatherings and events” is also dated yesterday but was published this morning. In this post, I will call all three of these, taken together, the “Orders.”

Lack of Human Rights (Disability) Accommodations

Further to my post of August 23, 2021 and in line with what Dr. Henry stated at the press conference regarding the anticipated Orders on August 23, 2021, the Orders do not provide exemptions for people who cannot get vaccinated or provide proof of vaccination for medical reasons. The only people who the orders make exemptions for are those under 12 years of age. This means that the orders will conflict with the BC Human Rights Code, which prohibits discrimination and requires service providers to accommodate people with disabilities to the greatest extent possible. The orders also conflict with the guidance of BC’s Human Rights Commissioner, who released a policy guidance document in July, 2021 affirming that service providers must seek to accommodate people who are unable to get vaccinated on the grounds of their BC Human Rights Code protected characteristics (disability, religion, family status, etc.).

The orders are more restrictive than the current order regarding face coverings in indoor spaces, which does include human rights exemptions for people with disabilities, as follows:

Requests to Reconsider Order

Though there is not specific provision for disability accommodations in the Orders, there is mention that persons who want to avoid complying with the Orders can ask the Provincial Health Officer (Dr. Bonnie Henry) directly for reconsideration of the Orders applying to them. The process is set out in section 43 of the Public Health Act as follows:

The manner of making requests is set out by the Provincial Health Officer as follows:

As such, the Order can only be varied in relation to certain individuals in a limited set of circumstances, when a request is made to the Provincial Health Officer with documentation from a medical practitioner that the health of a person would be “seriously jeopardized” if the person were to receive the vaccine, as well as the person’s relevant medical records. And consideration of these requests is discretionary; there’s no guarantee for an exemption even with the required medical documentation.

Do the Orders Prevail Over the Human Rights Code?

There is uncertainty surrounding whether service providers who are in breach of the Human Rights Code due to acting in accordance with the Public Health Officer orders will be shielded from liability for discrimination. On the one hand, there are Public Health Act provisions meant to protect those who are following the Orders from legal and other adverse action. However, at the same time, there is a paramountcy provision in the Human Rights Code stipulating that if there is a conflict between the Human Rights Code and another enactment (such as the Public Health Act), the Human Rights Code prevails.

Public Health Act Provisions Regarding Immunity from Legal Proceedings

The provisions of the Public Health Act that give immunity to service providers responsible for the vaccine passport screening are as follows:

As such, it may be that service providers acting in accordance with the order but contrary to the Human Rights Code cannot have a human rights complaint brought against them successfully UNLESS they are acting in bad faith. It is a high threshold for finding bad faith conduct and it would need to involve something uniquely egregious.

However, sections 92 and 93 of the Public Health Act may also be read narrowly so that they only capture court actions (for example in tort or contract) for damages, but not human rights complaints brought in the BC Human Rights Tribunal. Or the provisions could be interpreted so that they allow a complainant to successfully bring a human rights complaint, but not be entitled to any damages.

Further uncertainty comes with analyzing the Public Health Act provisions in the context of the Human Rights Code‘s paramountcy provision, and that is discussed further, below.

Additional Public Health Act Protection from Adverse Action for Service Providers

In addition to being shielded from legal proceedings, potentially including human rights complaints, service providers acting in accordance with the orders are also generally shielded from any “adverse action,” which is defined as “an action that would adversely affect, or that threatens to adversely affect, the personal, financial or other interests of a person, or a relative, dependent, friend or business or other close associate of that person, and includes any prescribed action.” This means that if someone feels aggrieved by a service provider carrying out an order and so attempts to take adverse action against that service provider in some way, they’re potentially contravening the Public Health Act section 94. One such contravention might include the recent rumours that opponents of the vaccination passports plan to call restaurants carrying out the order and make fake take out orders to harm the businesses.

It is possible that this provision may also be interpreted as preventing potential complainants from successfully bringing a complaint under the BC Human Rights Code, because doing so could potentially be interpreted as an “adverse action.” However, it does not appear that the intention of this provision was to capture human rights complaints, and this section of the Public Health Act is so broad that it may potentially be unconstitutional. And again, further uncertainty comes with analyzing the Public Health Act provisions in the context of the Human Rights Code‘s paramountcy provision, and that is discussed further, below

As per section 99 of the Public Health Act, contraventions of section 94 are an offence. Section 99 offences can come with alternative penalties under section 107 such as paying a person compensation and/or, additionally under section 108 of the Public Health Act, a fine of up to $25,000, imprisonment of up to 6 months, or both.

No Mention of Human Rights Code in Events and Gatherings Order

Interestingly, there is no mention of the BC Human Rights Code in the third order regarding events and gatherings. In contrast, the other two Provincial Health Officer orders regarding food and liquor establishments and university housing have included a provision in their preamble regarding the Provincial Health Officer’s consideration of the Human Rights Code. For example, in the preamble to the order regarding vaccine passports at university housing, the following is stated about the Human Rights Code:

O. In addition, I recognize the interests protected by the Human Rights Code, and have taken these into consideration when exercising my powers to protect the health interests of residents, staff and faculty at post-secondary institutions;

Human Rights Code Paramountcy Provision

Although there is no mention of the Human Rights Code in one of the Orders, the code still generally applies when someone experiences an adverse effect (such as being denied entry to a venue) as a result of their disability not being accommodated by a service provider.

The Public Health Act sections potentially shielding service providers from human rights code liability for discrimination, or having to pay damages for discrimination, must be read and analyzed with reference to section 4 of the Human Rights Code, which stipulates as follows:

Code prevails

4   If there is a conflict between this Code and any other enactment, this Code prevails.

Given this section of the Human Rights Code, a complainant could argue before the Human Rights Tribunal that although the Orders mandate vaccination cards without any reasonable exemption to accommodate for disability, this conflicts with the Human Rights Code, which requires accommodation. Per section 4 of the Human Rights Code, the code, with it’s accommodation requirements, prevails.

Further, a complainant could also potentially argue before the Human Rights Tribunal that although the Public Health Act provides immunity from legal proceedings for damages and protection from adverse actions to service providers when they follow the Orders, this conflicts with the Human Rights Code, which allows complainants to bring a human rights complaint, for damages, when they have been discriminated against. Per section 4 of the Human Rights Code, the prevailing provisions are those of the Human Rights Code that allow a complainant to bring a human rights complaint for damages.

Constitution/Charter of Rights and Freedoms Consideration

All three of the recent orders regarding vaccination passports do include a provision regarding the Canadian Charter of Rights and Freedoms. I often hear people bringing up the issue of these types of orders violating their charter rights and therefore being of no force and effect. That is not necessarily true. Under Canada’s Charter, it is possible for law to violate constitutionally protected rights, but in a way that is considered justified per the Charter. And so in that case, a court considering a Charter challenge can uphold a law even though it was considered unconstitutional, because the Court finds this justified under the Charter. The Orders bring up this issue by stating as follows in their preambles:

I further recognize that constitutionally-protected interests include the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms, including the right to life, liberty and security of the person, along with freedom of religion and conscience, freedom of thought, belief, opinion and expression. These rights and freedoms are not, however, absolute and are subject to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. These limits include proportionate, precautionary and evidence-based restrictions to prevent loss of life, serious illness and disruption of our health system and society. When exercising my powers to protect the health of the public from the risks posed by COVID-19, I am aware of my obligation to choose measures that limit the Charter rights and freedoms of British Columbians less intrusively, where doing so is consistent with public health principles;

Activities Not Covered By the Orders

Service providers and unvaccinated potential service users are likely to be confused about exactly who can attend what facilities and services, when. The government announcement on August 23, 2021 framed the vaccination passports as being required primarily at “non-essential” services. However, the orders are framed differently. One order applies to university housing, the second to food and liquor service premises, and the third to “gatherings and events.”

I plan on discussing what is not covered by the Orders in a separate post, which will follow.

Vancouver’s Toscani Coffee Bar Ordered to Pay $4,000 for Racial Discrimination in Refusing Service

In a decision issued on February 24, 2021, the BC Human Rights Tribunal held that the owner of Vancouver’s Toscani Coffee Bar discriminated against four complainant patrons based on their race when she refused one of them service and referred to him and his friends as “you Arabs.”

Each of the four complainants had previously immigrated from North Africa to Canada. They speak Arabic and identify as having Arabic ancestry. The coffee shop owner is a woman of colour who was raised in a Muslim family in Indonesia. One of the complainants told the owner’s Italian husband, who also works at the coffee shop, that they were unhappy with her service. The owner felt that a few of the complainants were disrespectful towards her in her own business.

On July 8, 2019, the store owner refused to serve one of the complainants, as she did not desire to serve someone who did not want to be served by her. The owner and complainant then spoke outside. Tribunal Member Devyn Cousineau accepted the complainant’s evidence about the conversation. According to him, the owner said “I don’t want you Arabs here, and you should tell your friends that I don’t want you here. You are not welcome anymore.” The tribunal accepted the owner’s explanation for refusing service as well, stating as follows:

[32] I accept Ms. Conforti’s explanation for why she told Mr. Haouas, Mr. Gharbi and Mr. Ben Maaouia that she would not serve them. She felt they had disrespected her in her own business. She understood that they had talked to others about not wanting her to serve them, and that she was simply granting their wish. She was frustrated that they did not recognize her authority in her own business and went around her to her husband for service or to complain about her. As an immigrant woman of colour raised in a Muslim household, running a business that serves immigrants from all over the world, I accept that Ms. Conforti did not refuse to serve the Complainants because they are Arab.

It was therefore accepted that the owner did not refuse service due to the complainants being Arab. That did not end the matter, however. Discrimination occurred nevertheless because a racial comment was connected to a negative effect on the complainants. The Tribunal held the following about this:

[34] In a discrimination complaint, it is not the respondents’ intention that matters but the effect of their behaviour: Code, s. 2. In this case, the effect of Ms. Conforti’s words was to connect the Complainants’ Arab ancestry to her communication that she would not serve them. The discriminatory words were “spoken at the very same time and place” as she told Mr. Haouas she would not serve him, and they were “inextricably linked” to that communication: Gichuru v. Purewal, 2019 BCSC 484 at para. 484. The effect was discrimination.

For injury to their dignity, feelings, and self-respect, the Tribunal awarded $1,000 to each of the four complainants.

Survivor Stories Project Shares Multiple Accusations of Sexual Harassment, Abuse, and Assault Perpetrated by Former Victoria Restaurant Employee

image property of https://vancouverisland.ctvnews.ca/victoria-restaurant-fires-employee-following-allegations-of-sexual-assault-1.5291169

TW: sexual violence

On January 31, 2021, the Survivor Stories Project began sharing multiple stories of anonymous people claiming to have been sexually harassed, abused, or assaulted by a former employee at Chuck’s Burger Bar in Victoria. Thirteen accounts have now been published on the Survivor Stories Project instagram page. The stories allege that the Chuck’s Burger Bar employee acted in a predatory manor, coercing them into becoming highly intoxicated or drugged, or drugging their drinks. According to many of the accounts, the employee would then bring the women to his home and sexually assault them.

Chuck’s Burger Bar has made two posts on it’s social media regarding the allegations and has received many negative comments in response. Most recently, Chuck’s stated publicly that they have terminated the employee.

The Victoria police have also taken to social media to state that they are ready to hear survivors about the alleged assaults.

MacIsaac & Company is currently investigating potential claims regarding this matter.

BC previously warned that “birth alert” system disproportionately affecting Indigenous parents was “illegal and unconstitutional”

“Birth alerts” in BC refer to the controversial practice where social workers flag expectant parents to hospital staff without their consent when they believe the expectant parent poses a risk to the newborn. The birth alert directs hospital staff to alert the social worker when the baby is born. Ministry of Children and Family Development (“MCFD”) records from 2019 show that birth alerts result in the removal of a newborn from their parents “approximately 28% of the time.” Indigenous families are disproportionately affected by the birth alert system. According to MCFD’s records, 58% of parents impacted by birth alerts in 2018 were Indigenous. Birth alerts have been referred to in a report by the National Inquiry Into Missing Indigenous Women and Girls as “racist and discriminatory” and a “gross violation of the rights of the child, the mother, and the community.” Former Representative for Children and Youth Mary Ellen Turpel-Lafond stated the following to IndigiNews about the practice:

“Apologies and amends are necessary, as there has been harm done, including promoting the stereotypes that Indigenous families require intense surveillance because they cannot safely care for their own children,”

https://indiginews.com/vancouver-island/birth-alerts

On May 6, 2019, the BC Attorney General’s office sent a memo to the MCFD confirming that:

“the use of hospital alerts, and other activities involving the disclosure of information without the consent of expectant parents is both illegal and unconstitutional.”

https://indiginews.com/vancouver-island/birth-alerts

However, the practice was not banned by the BC government until September 16, 2019.

If a newborn has been traumatically removed from your family shortly after birth, you may not even know yet that the removal resulted from a birth alert. According to MCFD, it has not advised families that their privacy rights have been breached with the issuance of birth alerts.

One spokesperson for MCFD claimed in a statement to IndigiNews that this was because MCFD did not want to “retraumatize” affected families by providing notifications of past birth alerts. In my view, this response only reinforces that the MCFD takes a discriminatory and paternalistic approach in its interactions with Indigenous families. The baby alert approach promoted a stereotype that Indigenous families are not capable of safely caring for their own children. The comment from the MCFD about retraumatization again reinforces a stereotype that Indigenous families are not capable of deciding what is best for them.

The MCFD should notify families that their privacy was breached by the issuance of a birth alert and then the families can decide for themselves whether they wish to potentially face retraumatization by going through a process of seeking an apology and amends. MacIsaac and Company is currently investigating potential claims regarding this matter.

 

BLACK LIVES MATTER! BC Human Rights Tribunal Finds Discrimination Against BIPOC

TL;DR: Racism is widespread in BC, as evidenced by cases heard at the Human Rights Tribunal, and there is a better way forward.

The violent death of George Floyd under the knee of police officer Derek Chauvin in Minneapolis triggered mass protests in the United States and calls for action to address systemic racism worldwide. In what is now known as British Columbia (BC), citizens, activists, politicians, and lobbyist groups have been rallying for change within our own systems. These calls to action have been dismissed by some who claim that racism either does not exist in BC or is not as big of an issue in BC as it is in the United States. For example, on June 17, 2020, Jagmeet Singh (leader of the New Democrat Party of Canada and Member of Parliament (“MP”) for the Riding of Burnaby South), was ordered out of the House of Commons (the “House”) after he refused to apologize for calling Bloc Quebecois MP Allain Therrien racist. Singh made a motion asking the House to recognize that there is systemic racism within the Royal Canadian Mounted Police (“RCMP”) force, he asked that the RCMP release all “use of force reports and the associated settlement costs,” and he called for an “increase in non-police investments in non-violent intervention, de-escalation, and mental health and addictions supports,” among other things. Therrien rejected the motion, so it was not passed, and that is when Singh called him racist.

Writer, activist, and comedian Baratunde Thurston, in his April, 2019 TED Talk, “How to Deconstruct Racism, One Headline at a Time,” provides a framework for analyzing how to deconstruct racism in a way that is inclusive, rather than discriminatory or dismissive. He examines the “phenomenon of white Americans calling the police on black Americans who have committed the crimes of … eating, walking or generally ‘living while black.'” He breaks down news headlines in relation to this phenomenon and reveals that each one is defined by a 1) subject, 2) action, 3) target, and 4) activity. This is the structure to white supremacy. For example, the following can be broken down as follows: White Woman [subject] Calls Police On [action] Eight-Year-Old Black Girl [target] Selling Water [activity]. This headline is real, by the way. Thurston argues that we need to “level up” and change the action. For example, for the story to look more inclusive, the headline would read: White Woman [subject] Buys All Inventory From [action] Eight-Year-Old Black Girl [target] Selling Water [activity]. When we level-up and change the action, we change the story, which “changes the system that allows those stories to happen” and we “write a better reality for us all to be a part of.”

Therrein’s rejection of a motion partly to recognize that there is systemic racism within the RCMP is just one example of calls to action against systemic violence being dismissed in Canada. Contrary to these dismissals, racism is pervasive in the RCMP, “Canada” generally, and more specifically, here on the West Coast. This blog post outlines just some of the recent findings of racial discrimination in the BC Human Rights Tribunal (the “BCHRT”). The BCHRT is responsible for hearing complaints made under the BC Human Rights Code, RSBC 1996 c. 210, which prohibits discrimination against people in certain areas of daily life. In this post, I demonstrate the pervasiveness of racism in BC by reflecting on cases over the last decade where the BCHRT has held that someone from the Black, Indigenous, and People of Colour (BIPOC) community was discriminated against based on their race. After summarizing four cases, I use Thurston’s framework to demonstrate how the cases could have been inclusive rather than discriminatory.

Case Summaries

Balikima obo Others v. Khaira Enterprises and Others, 2014 BCHRT 107 (“Balikima“)

In this 2014 case, the complainant tree planter was successful in alleging that his employer discriminated against him and at least 55 other Black tree planters in BC’s interior on the basis of their race. Per paragraph 8 of the decision, the allegations included “‘deplorable’ living conditions, inappropriate, inadequate and scant food, slave-like working conditions, consistent exposure to racial taunting and harassment, violent behaviour (in particular by Sunny), inadequate or no payment of wages, and sexual harassment” of one person in particular. Several of the workers testified at the hearing that the conditions at the tree planting camps were slave-like.

Ultimately, the tribunal did not find that all of these allegations were made out, largely because according to the tribunal, South Asian and white employees had to work in conditions just as terrible as those the Black employees worked in. However, the tribunal found that the employer discriminated against the employees by taunting them nearly daily with racial slurs like the N word and “lazy dogs.” The employer also did not pay them in full, but did pay special friends of their principals and white workers in full. One of the principals of the employer company sexually harassed a white woman by telling her “move your pussy,” calling her a “lazy pussycat,” telling her he’d marry her if she wore purple underwear, staring at her backside when she turned around, and telling a Black worker she was in a relationship with that his “lips would turn red” from sucking her and that he should “put a little Colgate on his dick and fuck her.”

An expert in anti-black racism testified on behalf of the complainants in the case. The Court noted her evidence about racism in Canada as follows:

[479]      Dr. Bernard testified that black men and women coming as refugees to Canada have expectations that it will be a safe haven and hopefully a better place to live and raise a family. In Africa, Canada is seen as the Promised Land.

[480]      The actual experience is not as nice. Their qualifications are not recognized in Canada. A racism violence health study carried out between 2002 and 2007 identified that highly educated blacks are the most under-employed. They were least likely to have employment in their field of expertise; many had to return to school to be retrained. Some could not afford that and, as a result, took jobs to support their family, hence the under-employment.

[481]      Other research looked at the experience of witnessing racism. The conclusions were that witnessing racism was just as damaging as experiencing it. What was observed was the everydayness of racism. This all had an impact on the physical, mental, emotional and spiritual health and well-being of African Canadians.

[484]      It is suggested that the everydayness of racism shows up in employment. Black Canadians may change their name to have a better opportunity to find employment. Their ideas are minimized in the workplace. They are given the worst jobs in the workplace. Typically, concerns they take to supervisors, in most cases, are not addressed which makes them feel undervalued, worthless, desperate and trapped.

Ultimately, the Tribunal held that in this case, there were “open racial taunts and clear distinctions in the areas of payment of wages drawn along racial lines which equally clearly establish the nexus for more subtle issues such as toilet arrangements in Golden.” It ordered that the employer cease contravening the Human Rights Code and pay each of the 55 or more workers $10,000 for injury to their dignity and self-respect plus $1,000 per 30-day period worked or portion thereof between a certain 3-month period.

Smith v. Mohan (No. 2), 2020 BCHRT 52 (“Smith“)

This case is summarized in my post “Landlord Ordered to Pay Indigenous Tenant $23,000 for Discrimination Over Smudging.” The BCHRT issued its reasons for deciding that a landlord contravened the BC Human Rights Code by making discriminatory statements to his Indigenous tenant and attempting to evict her after learning that she smudged in her apartment. The landlord in this case made various comments towards the complainant which were based on stereotypes about Indigenous peoples and which she found exhausting and burdensome. For months, he fought with her over whether she could smudge, and ultimately, she had no meaningful choice but to move out of her home. The Tribunal ordered the landlord pay the complainant just over $23,000 for lost wages, expenses, and injury to her dignity, feelings, and self-respect.

Campbell v. Vancouver Police Board No 4, 2019 BCHRT 275 (“Campbell“)

In this 2019 case, the Vancouver police responded to a call about a man in distress. When an officer arrived, the man said that a young woman had been chasing him with a knife. He said that the young woman was with a young “Native” man. The police found a young man who they thought was the subject. He was the BCHRT complainant’s son. The complainant happened to be in the area walking her dog. She saw her son and the police vehicle and approached the scene to find out what was happening. More officers and police vehicles came. The tribunal held that the officers treated the complainant mother adversely based on the following:

  • they would not answer her questions about her son;
  • they repeatedly told her to go home;
  • one of them physically removed her from the site of her son’s arrest and roughly took her about 35-40 feet away;
  • one of them stonewalled her in response to her questions and threatened to charge her with obstruction of justice;
  • one of them physically blocked her ability to witness her son’s arrest and ensure his safety; and
  • generally, they “treated her as an annoyance and an ‘erratic, uncooperative’ woman rather than a mother with legitimate concerns about her son.”

In determining whether the complainant’s identity as an Indigenous woman was a factor in the adverse treatment, the BCHRT accepted that the officers were sincere in asserting that the complainant’s indigeneity had nothing to do with their treatment of her. However, stated the tribunal at paragraph 101 of the decision, “discrimination is much more complex than the thoughts at the top of a person’s mind.” At paragraph 102, the tribunal held that

[r]acial discrimination is most often subtle and pernicious. While there are no doubt still incidences of deliberate, open, racist attacks, it is more common that people do not express racial prejudices openly or even recognize them in themselves.

Factors that supported the Tribunal’s conclusion that the adverse treatment was due to the complainant’s indigeneity included that the police officers lacked culturally appropriate training and awareness,  misunderstood the complainant and treated her conduct as suspicious; and reacted to the complainant in a way that was neither proportionate nor responsive.

She was awarded $20,000 for injury to dignity, feelings, and self-respect. Further, the Vancouver Police Board was ordered to provide better training to employees who would be engaging with Indigenous people.

Francis v BC Ministry of Justice (No 4), 2019 BCHRT 136 (“Francis“)

The complainant in this case was a Black correctional officer who worked at the North Fraser Pre-Trial Centre. The Tribunal held that he was discriminated against in his employment on the grounds of race and colour. Colleagues and supervisors allegedly made racial comments to him, about him, or about other coworkers. The employer did not take the complainant’s allegations seriously. The BCHRT made the following findings:

  • that the complainant was stereotyped as “slow” when opening doors in Control when there was no credible basis for his colleagues to conclude that he was
  • that someone at work said to the complainant, “because you’re Black” as a sarcastic remark because he was aware that the complainant had, in the past, alleged that he was being picked on because he is Black.
  • that one supervisor said to another supervisor about the complainant, words along the lines of “maybe if you turn on the lights you can see him,” because of the complainant’s skin colour
  • that a colleague, while telling a story about a former fellow officer who had the appearance of a Black-skinned person, used the N word slur
  • that the complainant was singled out and treated differently than other employees
  • that someone called the complainant a “Toby” at work, which carries the same connotation as slave
  • that one colleague called the complainant an “LBM,” referring to a “Lazy Black Man”
  • that a colleague circulated a photo to the complainant of an African warlord accompanied by a news article about killing inmates
  • that a colleague stated to another colleague something like “sorry you have to work with that [N word]” in relation to the complainant
  • that the complainant was called a “rat” and told he had a “target on his back” after complaining about the above behaviour

Ultimately, the complainant left his position and, understandably, did not go back. The BCHRT found that he had been subjected to a poisoned work environment. When there is a poisoned work environment, departing may be the only reasonable option. The remedy portion of the case was not completed.

A Way Forward: Baratunde Thurston on How to Deconstruct Racism

Baratunde
Captured from https://www.ted.com/talks/baratunde_thurston_how_to_deconstruct_racism_one_headline_at_a_time#t-4129

The above-noted stories of discrimination in British Columbia demonstrate that racism continues to impact the daily lives of BIPOC here. As stated by Thurston, we need to level-up and change the action, which will change the story, which “changes the system that allows those stories to happen” and allows us to “write a better reality for us all to be a part of.”

Regarding the case of Balikima, one news article read: “Tree-planters endured slave-like conditions, lawyers tell BC rights body.” It might be broken down as something like this:

Corporate Employer (Allegedly) [subject]

Creates Slave-Like Conditions for [action]

(Black) Tree-Planters [target]

Trying to Make a Living at Tree Farms [activity]

An alternative, more inclusive reality and version of that article might read something like this:

Corporate Employer [subject]

Creates Profit-Share Model with [action]

Black Tree-Planters [target]

Trying to Make a Living at Tree Farms [activity]

There were also several news articles related to the case of Smith. One of them was titled “Landlord who tried to evict Indigenous woman for smudging ceremonies ordered to pay $23K.” The first part of that could be broken down like this:

Landlord [subject]

Tries to Evict [action]

Indigenous Woman [target]

For Smudging [activity]

Why not a different action/story/system/reality? It might look something like this:

Landlord [subject]

 Sends dinner invite to [action]

Indigenous Woman [target]

For Smudging [activity]

These are just some examples of how we may create a more inclusive climate for BIPOC in BC.

Disability Discrimination Complaint Against Maple Ridge Hyundai Dismissed

Cardiff, UK: June 02, 2020: Hyundai Car Dealership. The Hyundai Motor Company, commonly known as Hyundai Motors, is a South Korean multinational automotive manufacturer. Illustrative Editorial

In reasons released today regarding the case of Verozinis v Kot Auto Group dba Maple Ridge Hyundai, 2020 BCHRT 156, Tribunal Member Norman Trerise dismissed a human rights complaint against the Hyundai car dealership located in Maple Ridge, BC.

The Complainant, Spyros Verozinis, alleged that when he attended the Maple Ridge Honda Dealership with his wife to buy a vehicle, the Finance Manager engaged in high pressure communications regarding the details of the vehicle and he was unable to fully understand what was occurring due to his disability – congenital deafness. He alleged that he ended up purchasing a vehicle he would not have purchased if his disability were not taken advantage of and he fully understood the terms of the sale. As such, he complained he was discriminated against on the grounds of mental and physical disability in the area of service contrary to the BC Human Rights Code.

Following a 2-day hearing, the Tribunal found that the Complainant’s mental and physical disabilities were not a factor in him being sold the vehicle. Mr. Verozinis was successful in establishing that he had a physical or mental disability. However, he failed to established that he experienced adverse treatment related to his disability and the car sale. The Tribunal held that he was too inconsistent on this issue to be reliable and instead preferred the evidence of the car dealership’s witness. Regarding the inconsistency, the Tribunal found the following at paras 45 and 46:

[45] Mr. Verozinis has testified both that he was adversely impacted because the vehicle was purchased by his wife rather than by him and that he did not receive the vehicle he wanted being a hybrid or electric vehicle but instead received a gas‐powered vehicle. However, Mr. Verozinis has testified to his awareness that a vehicle in the category that he desired was not within the financing capability of his wife. In other words, Mr. Verozinis had to know and I find that he did know that the vehicle his wife was purchasing at the time of the transaction with the Respondent was a gas‐powered vehicle. Accordingly, I find that Mr. Verozinis was not adversely impacted by the purchase of a gas‐powered vehicle as opposed to a hybrid or electric‐powered vehicle.

[46] More contentious is Mr. Verozinis’ inconsistency around understanding that the vehicle was purchased by his wife. It is clear on the evidence that Mr. Verozinis understood that his wife was financing the purchase of the vehicle, either because Mr. Verozinis believed that his bankruptcy prevented him from purchasing the vehicle at all or because he understood that if the vehicle was purchased in his name it would be at a higher interest rate than if his wife purchased the vehicle. In either event, Mr. Verozinis clearly understood that the financing of the vehicle was dependent upon his wife’s income rather than his own.

Further, the Respondent was successful in demonstrating that it took all reasonable and practical steps to avoid an adverse impact on the Complainant because their employees offered to use a microphone, spoke loudly and clearly, and sat so he could see their faces at all times.

The Tribunal also held at para 55 that “generally, a person seeking accommodation must give the service provider the facts needed to accommodate, facilitate the implementation of reasonable accommodation proposals, and accept reasonable accommodation.”

This case demonstrates that those alleging discrimination should ensure they are clear and consistent when giving evidence at a hearing. It also demonstrates that people with disabilities who need accommodation must assist service providers in accommodating them before they can allege that the service provider has failed to do so. Further, it demonstrates that service providers should make all reasonable and practical efforts to accommodate those with disabilities.

ER Staff “Game” of Guessing Indigenous Patients’ Blood-Alcohol Levels is Potential Human Rights Code Violation

Fontaine

CEO Daniel Fontaine of the Métis Nation of British Columbia (MNBC) and the British Columbia Association of Aboriginal Friendship Centres (BCAAFC) advised  the BC government this week that they have heard emergency room health care staff are playing a “game” of guessing the blood-alcohol concentration levels of Indigenous patients. The allegation became public today, when Provincial Health Minister Adrian Dix held a news conference to advise that he had been made aware of the allegations yesterday and the MNBC issued a media release stating that the “game” is unacceptable.

According to Fontaine, it has been reported that hospital staff called the game “the Price is Right.” They try to guess the blood-alcohol levels as close as they can, without going over. Fontaine stated that the practice is “deeply disturbing and must immediately come to an end.” Dix stated that “if true, it is intolerable, unacceptable, and racist and its effect on patient care is intolerable, unacceptable, and racist.” The MNBC and BCAAFC have called upon the Ministry of Health to accept the following four recommendations:

  1. A public inquiry into Indigenous specific racism in health care in B.C with a focus on hospitals and emergency departments.
  2. Ensure that all front-line staff are required to take mandatory First Nations, Métis and Inuit training that results in increased health professional personal accountability in the delivery of safe health care.
  3. Commit to structural and systemic changes to dismantle indigenous specific racism to ensure culturally safe health care experiences for Indigenous people.
  4. Ensure that Indigenous governments play a stronger role in the development and implementation of anti-racism programs and training throughout BC.

If the allegations are true, there is potential for this abhorrent conduct to give rise to a representative complaint under the BC Human Rights Code. The BC Human Rights Tribunal Form 1.3 – Complaint for Group or Class allows complainants to file complaints about discrimination on behalf of a group or class of people. A “group” is a “number of individuals who are or easily could be identified by name. For example, people who work for the same employer, or people who are members of the same society or association.” A “class” is a “number of individuals who can be identified by characteristics that they share. For example, residents of Vancouver who are visually impaired.” I would argue that the Indigenous targets of these acts are members of both a group and a class. If the staff members who played this “game” and times during which they did so are made available, the patients who they saw at those times could potentially be identified. Those patients would be members of a “group.” Additionally, Indigenous residents of the identified Health Authority, or of the province, may constitute a “class.”

The BC Human Rights Code is meant to prohibit discrimination in certain areas of daily life based on someone’s race, colour, ancestry, or place of origin, among other characteristics. Indigeneity, of course, falls within the protected characteristics. One of the areas of daily life that are meant to be protected is the provision of accommodation, services, and facilities customarily available to the public. As such, the provision of health care services falls within the code-protected areas of daily life.

Dix has appointed Mary Ellen Turpel-Lafond to investigate the matter and make recommendations about an immediate long-term response. She is a former judge and the former Representative for Children and Youth of BC, among many other accomplishments. She is now a professor at UBC and senior counsel in the area of Aboriginal Law.

In addition to Turpel-Lafond’s investigation or in response to her recommendations, it’s possible that a representative human rights complaint could be made.

Tribunal Dismisses Complaint Against Strata for Discrimination in Addressing Noisy Neighbour Situation

annoyed stressed woman covering her ears, looking up loud noise upstairs

In his reasons issued on June 16, 2020, BC Human Rights Tribunal Member Paul Singh dismissed a complaint against a strata for allegedly failing to enforce a noise bylaw against the complainant’s neighbours because of her sex and marital status. The complaint was made under section 8 of the BC Human Rights Code, as strata councils are considered to be providers of accommodation, services, or facilities customarily available to the public.

The complainant owns a condo in a strata. She alleged that the residents in the unit above hers were too loud. According to the Tribunal, several actions were taken by the strata and neighbours in an effort to address the complainant’s concerns. The strata:

  • sent caution notices to the upstairs neighbours,
  • conducted noise inspections,
  • tried to arrange a mediation and other voluntary dispute resolution processes between the neighbours and the complainant,
  • included a note in strata council meeting minutes to keep residents aware of the noise issue,
  • sent out “good neighbour” noise notices to all unit owners in the building,
  • sent a letter to the upstairs neighbours suggesting a change of flooring,
  • adopted a bylaw regarding installation of underlay for new flooring to reduce noise, and
  • retained an engineer to determine whether any structural deficiencies existed between the units.

The upstairs neighbours apparently changed their flooring and started wearing slippers.

The Complainant argued that all of these measures were inadequate.

She alleged that her sex and marital status were a factor in the strata’s failure to adequately address her noise concerns. She thought this was the case because of an exchange she had in the building’s parkade with a strata council member who said something to the effect of “you shouldn’t have to put up with that because you are a single woman.” She said that aside from the discrimination which should be inferred from the comment in the parkade, there was no other explanation for why the strata “did nothing” over three years.

The Tribunal held that there was no reasonable prospect of the complainant succeeding in showing a nexus between her sex or marital status and any adverse impact she experienced from the noise in her unit. It held as follows at paragraph 59 of the decision:

The Respondents do not specifically deny that the Comment was made to Ms. Dolinsky. However, the Comment, even if made, cannot reasonably be seen as anything other than an offhand remark made during a brief, casual conversation. A Strata Council member telling Ms. Dolinsky that she should not have to put up with noise issues because she was a “single woman” is simply not sufficient to establish discrimination under the Code given all the steps the Strata had taken through the years to help address and ameliorate Ms. Dolinsky’s noise concerns.

The Tribunal also held the following at paragraph 62:

…it is not the Tribunal’s role to assess the merits of a strata’s management decisions for its building, including the process for investigating and enforcing bylaws, so long
as those decisions are not used as a pretext for discrimination. What concerns the Tribunal is only whether a characteristic protected by the Code was a factor in these decisions: Li v. Options Community Services and others, 2020 BCHRT 104 at para. 84.

BC Premier John Horgan Scorns COVID-19-Related Racism

While announcing the province’s “Restart Plan,” the Premier of what is now known as British Columbia, John Horgan, expressed serious concern over COVID-19-related racism. He stated as follows:

When I heard about people of Asian descent being pushed to the ground and buildings being defaced with anti-Chinese slogans, I was angry. Hate has no place in British Columbia. Period. We need to stand together united against that type of racism whenever we see it. COVID-19 does not discriminate. British Columbians shouldn’t discriminate either. If we’re going to get through this, we have to stop finger-pointing, put our differences aside, and work together to get it done.

Previously on this blog, we also posted about the BC Human Rights Commissioner’s statement on COVID-19. Commissioner Govender asserted that in addition to the BC Human Rights Code protecting people with the virus from being discriminated against, it also protects people from being discriminated against based on the ethnicity, place of origin, race, colour, or ancestry. This means employers, landlords, and service providers “cannot discriminate against someone on the basis of whether a person comes from (or appears to come from) a COVID-19 hotspot such as Italy or China.”

These are important reminders for folks in the Province to be kind to one another, though it is sad that such reminders are necessary and though Premier Horgan has a lot of work left to do regarding racism in BC. No one should ever be subjected to discrimination or violence on the basis of their ethnicity.