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.

Tribunal Awards Over $38,000 Damages to Esquimalt Denture Clinic Employee Fired Following Sexual Harassment

sexual harassment at work, office woman and her lustful boss

In reasons released for the case of Basic v Esquimalt Denture Clinic and another, 2020 BCHRT 138 on July 7, 2020, BC Human Rights Tribunal Chair Diana Juricevic held that the Complainant Jasmine Basic was sexually harassed by her employer Andrew Lee at an Esquimalt, BC Denture Clinic and that this harassment was a factor in the termination of Ms. Basic’s employment. This constituted discrimination based on sex and Mr. Lee and his clinic were ordered to pay Ms. Basic over $38,000 in damages.

Ms. Basic had been employed as a receptionist at Mr. Lee’s Esquimalt Denture Clinic Ltd. While at the clinic, Mr. Lee engaged in a extensive conduct of a sexual nature. The conduct is outlined by the Tribunal at paragraphs 94 and 95 of the decision as follows:

He repeatedly commented on the size of her breasts and asked whether her “boobs” were fake. In the context of one conversation, he remarked that she was so attractive that she would likely be sexually assaulted in another workplace. He complimented parts of her body – skin, legs, breasts – and overall appearance.

…..

[95] Mr. Lee also engaged in physical conduct of a sexual nature. Mr. Lee slapped Ms. Basic’s butt with a magazine. He repeatedly grabbed her breasts and looked down her shirt. On one occasion, he tried to look down her pants. He hugged her, rubbed her back, rubbed her leg, rested his head on her shoulder, and kissed the top of her head. He pressed his body up against hers when she was putting away an air compressor. He pulled her onto his lap when she was trying on scrubs.

The case largely turned on whether Mr. Lee’s conduct was unwelcome. Mr. Lee argued that the interactions were consensual in the context of an intimate personal relationship. Regarding this issue, the Tribunal held as follows at paragraph 118:

As explained further below, I have no difficulty reconciling the facts that Ms. Basic enjoyed many aspects of working with Mr. Lee, shared personal information, and at the same time, did not welcome his sexual advances.

Mr. Lee asserted that Ms. Basic sexualized the workplace by engaging in sexualized behaviour and wearing provocative attire. Those arguments were rejected, partly because it is a “myth or stereotype that ‘promiscuous’ or ‘party’ individuals are more likely to consent or less worthy of belief.” Ultimately, found the Tribunal, Ms. Basic was touched sexually by Mr. Lee, she told him to stop, and he persisted.

All of this sexual harassment, held the Tribunal, resulted in Ms. Basic being immersed in a poisoned work environment and terminated.

The Tribunal made the following damages awards against Mr. Lee and his clinic:

  1. $11,796.04 for wage loss and wage differential that flowed from the discrimination;
  2. $1,612 for expenses associated with the hearing; and
  3. $25,000 for injury to dignity, feelings, and self-respect.

Tribunal Denounces Use of Prior Sexual History as Consent Defence and Orders Employer pay over $40,000 Damages for Sexually Assaulting House Cleaner

AdobeStock_186130511

In reasons released on June 26, 2020, the BC Human Rights Tribunal awarded a woman nearly $45,000 in damages after she was sexually assaulted by a man who employed her for cleaning services in his home.

The events occurred on October 17, 2017. The case turned on whether the Respondent JS’s conduct towards the Complainant MP was unwelcome (their identities were anonymized by the Tribunal). The evidence about both parties was at odds and they were the only witnesses to the events, so JS and MP’s credibility was a major issue in the case. JS was an 87-year-old man who immigrated to Canada as a youth and owned a house where he lived with his wife until her death in 2013 (paragraph 27). He also owned a second home abroad. MP was a middle-aged woman who immigrated to Canada with her husband in 2009 and eventually began working as a house cleaner.

Tribunal Member Emily Ohler stated at paragraph 3 of her decision that at the hearing, she heard extensive evidence about ongoing sexual relations between the parties prior to October 17, 2017. In JS’s response, he asserted that the Complainant MP had consented to sexual contact with him in exchange for money over the course of years. In response to this evidence, the tribunal stated as follows at paragraph 4:

I would like to acknowledge the issues that arise from seeking to defend against sexual assault allegations on the basis of prior sexual history. Evidence of a complainant’s prior sexual history to argue a greater propensity to consent to the encounter at issue is presumptively inadmissible because of its reliance on myths and stereotypes: R. v. Seaboyer; R. v. Gayme, [1991] 2 SCR 577, R. v. Barton, 2019 SCC 33 [Seaboyer].

While Tribunal Member Emily Ohler recognized that the rules of evidence in the named court cases did not apply to the Tribunal, she noted that the myths and stereotypes referred to in those court cases are similar to three myths and strereotypes recently identified by the Tribunal regarding a sexual harassment complaint in The Employee v. The University and another (No. 2), 2020 BCHRT 12. Those myths and stereotypes were as follows, per paragraph 4:

First, a lack of protest. The Tribunal said at para. 178, “[i]t is not necessary for a complainant to expressly object to the conduct and the law recognizes that a person’s behaviour “may be tolerated and yet unwelcome at the same time”: Mahmoodi, para. 141.” Second, a delay in reporting. The Tribunal observed at para. 179, “I acknowledge that non‐reporting is a stereotype that privileges complainants who resist and report immediately. … A person may choose not to report for a variety of reasons including fear of negative job‐related consequences, not being believed, attacks on their reputation, or the difficult nature of the investigations: Hastie.” Third, participation in prior behaviour. At para. 180, the Tribunal rejected an argument suggesting “a pattern of consent”, saying that such evidence does not support “a finding that the Employee welcomed the conduct, that she is less worthy of belief, or that it is unreasonable to know that the conduct would be unwelcome.”

Consent always needs to be obtained on an ongoing basis. Prior consent does not amount to current consent and is no defence for sexual assault.

Ultimately, the Tribunal made the following findings of fact:

a. JS had a friendly relationship with MP and her family. This included periodic visits
to each other’s houses; a handful of outings together; and MP and her family
sometimes turning to JS for favours.

b. Around 2015, JS began touching MP in a sexual way that was unwelcome. At the
same time, he warned her that if she said anything or stopped working for him,
he would tell her Husband and break up her family.

c. One day, in response to this continuing treatment, MP told JS that she would no
longer return to work for him. After a few weeks of MP not attending the House,
JS visited MP’s Husband to tell him that MP had stopped working for him and ask
the Husband to speak with her. MP reasonably viewed this as a signal that JS
would make good on his threats to tell her Husband about what had been going
on. MP returned to work.

d. The unwelcome sexual contact continued. On October 27, 2017, just before JS
left for overseas, he sexually assaulted her. At this time, MP decided she had
enough and told him she would not be returning to work for him.

e. Once JS left for overseas, MP’s Husband noticed her phone logs showed frequent
telephone calls with JS. When he questioned her, she told him the entire story.
MP and her Husband cut off contact with JS.

f. JS’s conduct has had a lasting impact on MP, leaving her depressed and less able
to engage with work and her family life.

According to MP’s evidence, the unwelcome touching started when JS would brush up against her as she was changing the garbage, for example. Then he asked her for hugs and if she said no, he would hug her from behind. Then, when she was changing the sheets on his bed, he would approach her and push or pull her by the waist on the bed and put his legs over hers when she would try to retreat. He would grab her and grope her, tell her to be quiet, and say that he only wanted to “have fun.” She said that he would try to convince her to have sex with him by complaining that his other cleaners in his home abroad would do it (paras 64 to 73).

Around 2015 or 2016, MP took a break from working for JS as a result of the unwelcome sexual contact. She returned after JS’s visit to her husband, as noted above. The sexual contact and JS’s force escalated, with him forcing himself upon her and then giving her extra money afterwards. The Tribunal made the following findings of fact about the October 27, 2017 events at para 112:

On a balance of probabilities, on the whole of the evidence, I find that it is more likely than not that on October 27, 2017, JS pushed MP onto the bed, put his hands under her clothing, and touched her in a sexual way that she did not want. I find that it is more likely than not that JS touched MP’s breasts, put his fingers into her vagina, and put her hand on his penis. I find that after this encounter, MP told JS that she would not return to work for him when he got back from abroad.

As a result of all of this, MP attended counselling and was diagnosed with depression and PTSD. The sexual assaults impacted her marriage, her relationship with her children, and her work. She stopped working, had suicidal ideations, and retreated from her family and community (para 201).

The Tribunal made the following awards:

  1. $4,300 to replace the income MP would have earned from JS but for the discrimination;
  2. $49.98 for antidepressant medication;
  3. $106.50 for MP’s parking expenses to attend the hearing; and
  4. $40,000 for injury to dignity, feelings, and self-respect

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.

Human Rights Tribunal Rules Burden on Mother to Consider Non-Corporate, Home-Based Daycare as Solution to Work Schedule/Childcare Conflict

child plays with wooden blocks with letters on the floor in the room a little girl is building a tower at home or in the kindergarten.

In reasons issued on June 5, 2020, the BC Human Rights Tribunal dismissed the complaint of a Pacific Blue Cross (PBC) employee who alleged that her employer failed to accommodate her in relation to her family status.

The complainant was a team leader in PBC’s customer service department. She had just returned from maternity leave, which was already cut short due to a childcare issue.

Childcare can be difficult to find in BC. As parents of young children know, you often need to put your child on a childcare wait list, especially if you are looking to get them into childcare as an infant. It can take over a year to get off of a wait list. As a result, some parents in BC put their children on childcare wait lists before they are even born. Once your child’s turn on the wait list comes up, you need to choose to either put them in care or lose your spot.

Thus, when a spot became available for the complainant’s child at 10 months old, she decided to take the opportunity to get him into the facility and go back to work for PBC. Her office was in Burnaby and her home and childcare facility were in Langley. With traffic, the commute can be between 45 and 90 minutes.

The complainant’s work schedule prior to her maternity leave ended at 4:30pm and she understood it would continue to end at that time when she returned. Her son’s childcare required pick up by 6:00pm.

When she returned to work, she was told that her schedule would change to require her to work until 5:00pm for one week every four weeks. The complainant told PBC that she could not do this because it would not allow her time to reliably pick up her child by 6:00p.m. She expected PBC to accommodate her childcare schedule. They did not. As a result, she filed a human rights complaint asserting that she was discriminated against on the basis of her family status.

Tribunal Member Norman Trerise noted in his reasons that the law puts the onus on a the complainant to prove that the employer changed a term or condition of the employment and that the change seriously interfered with a substantial parental duty or obligation. Mr. Trerise held that the complainant did show there was a change to a term of the complainant’s employment. He held, however, that the change did not seriously interfere with a substantial parenting duty or obligation.

According to the member, this was because the complainant did not do enough to explore alternate childcare options. He held as follows:

It is clear that Ms. Ziegler made insufficient efforts to ascertain whether she could arrange alternate daycare which would allow her to work the altered shifts which PBC imposed on the TLs. She eliminated, without any visits to ascertain their suitability for her child’s needs, all home‐based private daycare facilities between Burnaby and Langley from her search. She did this out of a pre‐conceived idea that
“corporate” daycares were the only daycares which could provide suitable care to meet her standards. No evidence was placed before me to support such a position other than Ms. Ziegler’s bald assertion to that effect.

Further, he held:

[66] Instead of searching for a suitable daycare her energies went into fighting a battle to get PBC to provide her with an exemption from their revised work schedules for TLs and alternatively a search for alternate employment.

[68] Ms. Ziegler has made it clear in her evidence that she felt it was unfair for PBC to put her in the position where she must alter the childcare arrangement she had in place. In particular, she was not prepared to consider a non‐corporate, home‐based daycare as a possible solution. Many parents might react similarly, particularly given the age of her child. The test for discrimination on the basis of family status under the Code, however, makes it clear that more is required.

This decision provides a lesson for parents alleging discrimination in failing to accommodate their childcare schedules in the future. As per this decision, parents need to show that they have made an effort to find a solution to the problem. This could mean exploring alternative types of childcare facilities, an alternate schedule with the daycare provider you have, or an alternate schedule with your spouse and their employment. Even if your efforts are fruitless because you still could not solve the problem, the point is to show that you tried.

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.

Kayla Bergsson Talks on Danish Podcast About Human Rights in Times of Crisis

 

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.