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.

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.

Province Ordered to Compensate Former Corrections Officer Over $964K Following Racial Discrimination

image property of CBC news: https://www.cbc.ca/news/canada/british-columbia/corrections-officer-compensation-north-fraser-1.5893104

In a decision released on January 28, 2021, Francis v. BC Ministry of Justice, 2021 BCHRT 16, the BC Human Rights Tribunal ordered that the BC Ministry of Justice compensate a former corrections officer over $964,197 plus interest following racial discrimination in his employment. The award was for past and future wage loss, and included the highest award the tribunal has ever made in its history for injury to dignity, feelings, and self-respect. The Complainant, Mr. Francis previously worked for the North Fraser Pre-Trial Centre in Port Coquitlam. His colleagues and supervisors made racist comments to him, about him, and about other coworkers.

The tribunal’s initial decision of July 4, 2019, which found that discrimination occurred, 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.

In the recent decision regarding a remedy for this discriminatory conduct, the BC Human Rights Tribunal made the highest award for injury to dignity, feelings, and self-respect in its history. Previously, the tribunal’s highest award under this heading was for $75K. However, in the precedent-setting decision, Mr. Francis was awarded $176,000 under this heading after it was reduced from $220,000 by a 20% contingency.

The reasons for the Tribunal’s relatively high award are set out by the Tribunal as follows:

[216] The Contraventions amounted to an exceptionally damaging affront to Francis’ dignity. The evidence presented to this effect was abundant, clear, and compelling. The nature of the discrimination was serious. This is not a case where the connection to Francis’ race and colour was subtle. The comments and actions of his coworkers and supervisors struck at the core of Francis’ identity and feelings of self-worth and emotional well-being. What Francis experienced encompasses virtually the entire spectrum of racial discrimination and harassment in the workplace, escalated into retaliatory behaviour, and resulted in a poisoned work environment, necessitating a significant award of compensation. Francis was particularly vulnerable because of the nature of his job. His physical safety was threatened and compromised by the discriminatory and retaliatory behaviour of officers and supervisors who he needed to count on to be safe at work. He had a genuine fear that if something dangerous were to happen at work, he could not count on his colleagues for help. The impacts on Francis were extreme, and as Dr. Macdonald observed, his mental illness has become more deeply rooted over time. As Dr. Smith observed, Francis is “seriously ill from a psychiatric point of view”. Not only did Francis lose his employment, but he has also lost his ability to work. His wife feels sickened by how this case has impacted her husband — “it has destroyed him as a human”. That is what happened to Francis and, as such, he is entitled to an award commensurate with that loss of security and dignity.

The Tribunal stated the following about whether the Complainant was too sensitive and over reactive:

[161] Francis experienced “everyday racism” in the form of racialized comments and slurs. The Respondent seeks to minimize the severity of four of these comments on the grounds that Francis was not present when the “nigger” and “turn on the lights” comments were made, the supervisor apologized after directing Francis to do something “because you’re black”, his Control partner stopped calling Francis a “Toby” after he made clear that he did not like the name. Regardless of the view taken by the Respondent, all of these comments and slurs were found in the Liability Decision to amount to racial discriminatory harassment in contravention of the Code. That Francis was not present when two of them were made does not detract from the finding that the cumulative effect of the Contraventions was profound on Francis: Liability Decision, para. 336. Attempts to trivialize the impact of racialized comments and slurs on Francis plays into the myth and misconception that, as a racialized person, Francis was too sensitive and overreactive: Liability Decision, para. 289.

The past and future wage loss amounts awarded by the tribunal reflected that Mr. Francis lost his employment and likely his ability to ever work again as a result of the discrimination. The amounts were based on economist reports and reduced by a 20% contingency to reflect that about 80% of the losses Mr. Francis experienced flowed from the discriminatory conduct that the province was held responsible for. The past loss of earnings award was $262,060, the future loss of earnings award was $431,601, and the pension loss award was $65,881.

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.

 

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 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

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.

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

AdobeStock_329127953

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.

COVID-19 and International Day for the Elimination of Racial Discrimination

Today on the UN’s International Day for the Elimination of Racial Discrimination, Prime Minister Trudeau called our for us to be kind to one another, rather than discriminatory, in the face of fear. Fear is a powerful emotion that unfortunately can bring up so much prejudice and hate. Shame on President Trump for continuously calling COVID-19 a “Chinese” virus. This Coronavirus has resulted in a pandemic. It does not discriminate, and neither should we.