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.

COVID-19 Amounts to Disability & Employers Must Accommodate Employees Amidst the Crisis, BC Human Rights Commissioner States

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On March 23, 2020, BC’s Human Rights Commissioner Kasari Govender released a statement on COVID-19, saying that in her view, COVID-19 amounts to a disability. While she recognized that in the rapidly changing circumstances, there has not been time for courts of the BC Human Rights Tribunal to weigh in on the matter, she was prepared to provide her opinion. She gave the following reasoning:

The seriousness of this illness – and the potential stigma that attaches to it – make it more akin to the legal protections that apply to HIV than to the common cold. Therefore, discrimination on the basis of someone having (or appearing to have) COVID-19, is prohibited under the Code except where the duty bearer can justify such treatment (for example, to prohibit or diminish the transmission of the virus).

Commissioner Govender also 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.”

Additionally, she stated, discrimination based on family status is protected. This means that with the closure of daycares and schools, duty bearers must accommodate parents so that they can ensure their children are cared for.

According to Commissioner Govender, employers have a number of duties in the midst of COVID-19. They cannot make discipline or firing decisions based on someone having (or exhibiting symptoms of) COVID-19 (although they can lay employees off if there is not enough work for the as a result of the impacts of COVID-19). They must accommodate employees that may have COVID-19, or are particularly vulerable to COVID-19 (for example if they are elderly or immunocompromised) by providing flexible arrangements, such as working from home.

Commissioner Govender also presented a survey for citizens to complete in order to assist her with carrying out her duties and advocate for people facing discrimination during the pandemic. The survey asks about how your human rights are being impacted during COVID-19 and you are encouraged to fill it out.

Landlord Ordered to Pay Indigenous Tenant $23,000 for Discrimination Over Smudging

On February 28, 2020, in Smith v. Mohan (No. 2), 2020 BCHRT 52, the BC Human Rights Tribunal 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 tribunal member who made the decision found that complainant Crystal Smith, a member of the Tsimshian and Haisla Nations, was a credible witness, and the Respondent Parminder Mohan was not.

In making her arguments, Ms. Smith relied on the evidence of an expert who wrote a report and testified about the impacts of smudging on air quality and human health. Social context evidence that she relied on included the Final Report of the Truth and Reconciliation Commission of Canada, Volume One and Social Determinants of Health: Aboriginal Experiences with Racism and its Impacts. Ultimately, the tribunal member did not rely on this evidence.

Ms. Smith’s description of smudging is set out as follows:

[50] To smudge, Ms. Smith testified she lights the sage in the abalone shell and fans it with the eagle feather to create smoke. She testified the smoke cleanses negative energy from a person or space. She explained different methods for smudging a person, where you use the smoke to wash over yourself – your head, your eyes, your heart, your whole body; whereas for
a house, you start from the left and smudge the whole house. Ms. Smith testified that a typical smudge lasts for around 10 minutes and there is no ash, except what is left in the shell. She testified that in her experience, the sage creates a white smoke that has a smell that lasts for a few hours, and that after burning the sage she would put what remained in a jar to return to the land.

The tribunal stated the following about a landlord’s ability to prevent a tenant from smudging:

[245] In my view, a policy that prohibits an Indigenous tenant from smudging entirely due to concerns about “nuisance” or “property damage” unless they can persuade their landlord the smudging would not create a risk of nuisance or property damage would adversely impact Ms. Smith and persons with her protected characteristics in and of itself.

Mr. Mohan was ordered to cease contravening the BC Human Rights Code and pay Ms. Smith the following damages:

i. $1,500 for compensation for wages lost as a result of the contravention;
ii. $1,800 as compensation for expenses incurred as a result of the
contravention;
c. $20,000 as compensation for injury to her dignity, feelings, and self‐respect;

for a total of $23,300 plus post-judgement interest.

Landlord’s Harassment Forces New Mother to Vacate Suite 12-days after C-Section

In a decision issued on February 19, 2020, Valdez v Bahcheli, the BC Human Rights Tribunal held that a landlord’s conduct amounted to discrimination on the basis of sex and family status, in violation of section 10 of the BC Human Rights Code.

A few days after Germaine Valdez gave birth, her landlord Meltem Bahcheli texted her saying that she would need to find a new place to live. The day Valdez returned from the hospital, Bahcheli came to the suite and began yelling at her. Bahcheli told Valdez that if her family did not cooperate and agree to vacating the suite, she would be evicted and refused a reference. Further, Bahcheli would not allow Valdez to stay present in the suite while it was shown to prospective tenants. This meant Valdez would have to walk around outside in the cold with her baby for two hours while recovering from her recent c-section. Her baby was 11 days old.

The Tribunal ordered that Bahcheli pay Valdez $1,923.56 for moving expenses and $9,000 as compensation for injury to her dignity, feelings, and self-respect.

In delivering reasons, the Tribunal held as follows:

[30] Ms. Bahcheli’s behaviour was having a serious impact on Mrs. Valdez. She was frequently crying. She was having to physically exert herself more than she should have been, immediately following a c‐section. As a result, she experienced some unusual bleeding that required medical attention. Mr. Valdez testified emotionally about this time. He explained that all he wanted to do was make sure his wife was safe, but they had very limited resources. He was working and going to school and so could not be at the apartment all day to intervene with Ms. Bahcheli. They could not afford to hire movers and he wanted to make sure Mrs. Valdez was doing as little physical activity as possible.

[40] There were no issues in the Valdezes’ tenancy until Mrs. Valdez told Ms. Bahcheli that she had given birth. A person’s family status includes the size and composition of their family: Fakhoury v. Las Brisas Ltd (1987), 8 CHRR D/4028 (Ont. Bd. Inq). It includes having a baby: Cha v. Hollyburn Estates Ltd., 2005 BCHRT 409. In the housing context, the protection from discrimination based on family status “exists precisely to protect families, and others who may be screened out of tight housing markets, from being unjustifiably excluded from safe and secure housing”: Abernathy v. Stevenson, 2017 BCHRT 239 at para. 15.

[43] The birth triggered Ms. Bahcheli to begin what would become a torrent of accusations that the Valdezes had lied to her and misrepresented themselves. Over the next few weeks, she refused to meet and deal with the Valdezes in a professional way, threatened to start legal action against them and charge them sums of money for wasting her time, and insisted on frequent, uninterrupted access to their apartment at her own convenience. I am satisfied that Ms. Bahcheli’s conduct over this period constituted harassment at a point when Mrs. Valdez was particularly vulnerable. The harassment was directly connected to the birth of Mrs. Valdez’s child.