Habib v. The Immigrant Services Society of British Columbia and others,
2024 BCHRT 224
Date Issued: August 2, 2024
File: CS-000245
Indexed as: Habib v. The Immigrant Services Society of British Columbia and others,
2024 BCHRT 224
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Gulalai Habib
COMPLAINANT
AND:
The Immigrant Services Society of British Columbia and Chris Friesen and Kathy Sherrell
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT,
FILE FURTHER SUBMISSIONS, AND FOR COSTS
Sections 27(1)(c) and (d)(ii), 37(4), and Rule 28(2)
Tribunal Member: Devyn Cousineau
Counsel for the Complainant: Clea Parfitt and Eileen Myrdahl
Counsel for the Respondents: Alec C. Burke (in part) and James D. Kondopulos, Tamara Navaratnam, and Jaime H. Hoopes (in part)
I INTRODUCTION
[1] This is a decision about whether to dismiss all or part of Gulalai Habib’s complaint without a hearing.
[2] Ms. Habib is a Muslim woman who was born in Afghanistan. From 2004 until 2017, she worked in the Settlement Services program of the Immigrant Services Society of BC [Society]. During the relevant time, the individual respondent Chris Friesen was the Director of Settlement Services. The individual respondent Kathy Sherrell was the Associate Director of Settlement Services.
[3] Ms. Habib alleges that, between 2007 and 2017, the Respondents discriminated against her in her employment because of her gender, race, ancestry, place of origin, and religion, in violation of s. 13 of the Human Rights Code. Generally, her allegations are that, throughout her employment, the Respondents failed to recognize and compensate her fairly for her work, mentor and support her advancement within the organization, or promote her to a managerial position she was qualified for. In 2017, the Respondents terminated Ms. Habib’s employment because of her conduct during a staff meeting. Ms. Habib says that this conduct related to her advocacy on behalf of racialized immigrant/refugee women and, as such, her termination was discriminatory. Finally, Ms. Habib alleges that the Respondents’ conduct after her termination damaged her reputation and cost her a volunteer opportunity.
[4] The Respondents deny discriminating. They say that Ms. Habib was treated fairly throughout her employment, and that her employment was terminated because her conduct during a staff meeting was insubordinate and a fundamental breach of her duty of fidelity to her employer. In this application, they ask the Tribunal to dismiss the complaint because Ms. Habib has no reasonable prospect of proving that she was adversely impacted in her employment based on personal characteristics protected by the Code: s. 27(1)(c). In the alternative, they argue that the complaint should be dismissed against Mr. Friesen and Ms. Sherrell because it does not further the purposes of the Codeto proceed against them as individuals: s. 27(1)(d)(ii).
[5] For the following reasons, I grant the application to dismiss three of Ms. Habib’s specific allegations regarding training, failure to pay overtime, and an outside volunteer opportunity. I deny the application to dismiss the remainder of the complaint as a whole or against the individual Respondents. I begin with preliminary issues raised by the parties.
II PRELIMINARY ISSUES
[6] There are four preliminary issues: (1) Ms. Habib’s application to file a further submission and the Respondents’ corresponding application for costs, (2) the Respondents’ argument that Ms. Habib has improperly expanded the scope of her complaint, (3) Ms. Habib’s argument that the Respondents’ documents do not form part of their application, and (4) the Respondents’ argument that I should disregard parts of Ms. Habib’s affidavit evidence. I consider each in turn.
A. Applications to file further submissions and for costs
[7] Generally speaking, the Tribunal’s application process involves three submissions: the application, the response, and the reply: Rule 28(2). The Tribunal may accept further submissions where fairness requires that a party be given an opportunity to respond to new issues raised in reply: Tribunal Rules of Practice and Procedure [Rules], Rule 28(5); Kruger v. Xerox Canada Ltd (No. 2), 2005 BCHRT 24 at para. 17. The overriding consideration is whether fairness requires an opportunity for further submissions: Gichuru v. The Law Society of British Columbia (No. 2), 2006 BCHRT 201, para. 21. An application to file further submissions must be filed within one week of the reply: Rule 28(5).
[8] Ms. Habib has applied to file a further submission to address issues which she says the Respondents have raised for the first time in reply. She brought her application four days late. Before considering the merits of the application, I provide some procedural history to put it in context.
[9] The procedural history of this dismissal application is a bit unusual. The Respondents initially filed their application in August 2019. Their argument was nine pages. After that, there were disputes about document disclosure that delayed the application process. While that was ongoing, the Respondents’ original legal counsel retired, and they retained new counsel. New counsel sought leave to amend their dismissal application. That request was mostly denied, except that they were granted leave to apply to dismiss the complaint against the individual Respondents. They were granted an additional six pages of argument, to keep their total argument within the Tribunal’s 15-page limit. At the same time, although she had not yet filed her response, Ms. Habib was granted permission to “file a sur-reply to the extent of identifying any materials or arguments that the Tribunal should not consider when deciding the ATD”: letter decision dated October 7, 2021.
[10] Counsel for Ms. Habib then applied for a page limit extension, to file a response of up to 45 pages. They argued this was necessary to address the substance of the Respondents’ Complaint Response, which they said was 30 pages. In fact, the format of the Response was that it set out the allegations in the Complaint Form (18 pages), and then inserted the Respondents’ response. As a result, the substantive portion of the response was closer to 12 pages. Regardless, the Tribunal granted the page limit extension: letter decision dated January 1, 2022. The Respondents applied for reconsideration of that decision, which was denied: letter decision dated February 4, 2022. To address the Respondents’ concerns, the Tribunal extended the page limit for their reply from five to ten pages. Ultimately, the Respondents’ argument in the dismissal application was 15 pages, Ms. Habib’s response was 40 pages and the Respondents’ reply was 10 pages. None of the parties were restricted in the amount of evidence they could submit.
[11] The Respondents’ reply was filed on February 28, 2022. On March 11, 2022, Ms. Habib filed her application to file a further submission. The application is four days late. The first issue that arises, then, is whether to accept the late-filed application.
[12] Ms. Habib’s legal counsel explains that, due to other work commitments which they had advised the Respondents and Tribunal of in advance, they were unable to complete the application within the time limit. They argue that, given the delays in resolving the complaint, there is no prejudice to extending the time limit.
[13] The Respondents oppose the extension of time. They cite the lengthy procedural history of the matter, which included Ms. Habib’s counsel overlooking their deadline to file the application response and ultimately being granted a one-month extension to do so. In granting that extension, the Tribunal said it was doing so on a “one-time basis only”. The Respondents argue that Ms. Habib’s counsel have repeatedly “chosen to ride roughshod” over the Rules, and have not identified proper grounds for an extension. They argue that the request amounts to improper conduct, and ask for an order for costs: Code,s. 37(4).
[14] On balance, I exercise my discretion to extend the time limit and accept Ms. Habib’s application to file a further submission. In doing so, I consider that the extension is brief and that there is no prejudice to the parties or the process. I also consider that Ms. Habib’s counsel had raised a concern about the timeline for a further submission when the Respondents were granted an extension to file their reply, from February 7 until February 28, 2022. At that time, counsel had identified that there may be grounds for an application to file a further submission and that they would be unable to do so because of pre-existing work commitments. In these circumstances, I cannot conclude that Ms. Habib’s counsel has flouted the Rules or acted improperly to warrant an order of costs.
[15] In saying this, I do acknowledge the Respondents’ concern and stress the importance of following the Tribunal’s Rules. Throughout this process, both parties have cited and relied on the Tribunal’s observation in Schofield v. Towers and Affordable Lazorplus Ltd,2003 BCHRT 77, that “If [the Tribunal’s Rules] are not consistently applied, the mandate of the Tribunal could be compromised due to the inefficient use of the Tribunal’s resources”: para. 21. I expect the parties to follow the Tribunal’s deadlines and Rules.
[16] I turn now to the substance of the application.
[17] Ms. Habib applies to file a further submission to address new issues that she says were raised for the first time in the Respondents’ reply. She argues, first, that the Tribunal had pre-emptively granted her leave to file further submissions and, second, that a further submission is in the interest of fairness. I consider each argument in turn.
[18] First, I do not agree that the Tribunal pre-emptively granted Ms. Habib leave to file the further submission. In its October 7, 2021, letter decision, the Tribunal was addressing the Respondents’ request to amend and expand its dismissal application. With one narrow exception, it denied that request. In doing so, it granted Ms. Habib’s request for leave to file a further submission for the sole purpose of “identifying any materials or arguments that the Tribunal should not consider when deciding the [dismissal application]”. This was not a blanket permission for a further submission, but one contemplating a very narrow situation, in which the Respondents may have sought to circumvent the Tribunal’s order by expanding the scope of their dismissal application. Importantly, at this point, Ms. Habib had not been granted a page limit extension to file a response up to 45 pages.
[19] In my view, Ms. Habib’s proposed further submission does not fall within what the Tribunal contemplated in its October 7, 2021, decision. She has not identified areas where the Respondents effectively seek to expand their dismissal application. While Ms. Habib points to cases that the Respondents cite for the first time in reply, I am satisfied that the Respondents’ reply is properly responsive to her lengthy submissions. They did not make arguments presenting a new or expanded scope for dismissal of complaint.
[20] Second, Ms. Habib argues that the Respondents have raised new issues in their reply such that fairness requires she be given an opportunity to respond. She specifically cites the Respondents’ reply arguments that:
a. Ms. Habib is required to prove an “attenuated causation” between her protected characteristics and adverse impact,
b. The Tribunal does not have jurisdiction to consider whether Ms. Habib was wrongfully dismissed,
c. Ms. Habib improperly expanded the scope of her complaint in her response, and
d. The Tribunal should disregard or give little weight to some of the affidavit material submitted by Ms. Habib.
[21] In my view, the Respondents’ arguments about the first two issues arise squarely in response to Ms. Habib’s arguments, and do not warrant further submission. The fact that they were made for the first time in reply is not surprising or unfair. A reply argument should not merely repeat what was, or could have been, said in an original submission. It is intended as a narrow response to arguments raised in the opposing party’s submission. By its nature, it gives the replying party the last word. I deny the application to file further submissions about these issues.
[22] The second two issues are slightly different. In some circumstances, I accept that fairness may support giving a complainant an opportunity to respond to these types of issues, which can only be raised in reply. However, in the unique circumstances of this case, I am not satisfied that it furthers the fair and timely resolution of the complaint to permit further submissions.
[23] As I have said, because of the unusual procedural history, Ms. Habib has been permitted to file 20 more pages of argument than the Respondents. To allow further submissions on the two issues I have identified would add another six pages, adding to the lopsidedness. More importantly, however, I do not consider that Ms. Habib’s further submissions are necessary for a fair resolution of the issues. I agree with the Respondents that the proposed submissions seek to cure deficiencies that could have been addressed in Ms. Habib’s response and do not add to what I can fairly assess using the material filed within the parties’ original submissions. Granting the application for further submissions would condone the type of “endless submission process” that the Tribunal seeks to avoid: Murphyat para. 10.
[24] The application to file further submissions is denied.
B. Adding new allegations to complaint
[25] The second preliminary matter that arises is the Respondents’ argument that Ms. Habib has improperly added two new allegations in her response to the application to dismiss: (1) that the termination of her employment was discrimination based on political belief, and (2) that the Respondents failed to investigate Ms. Habib’s concerns over a change in staff job descriptions.
[26] A complainant who wants to amend their complaint during an outstanding application to dismiss must apply to do so: Rule 24(4)(b). The purpose of this rule is to ensure that a respondent who files an application to dismiss a complaint does not face a moving target: Pausch v. School District No. 34 and others, 2008 BCHRT 154 at paras. 28-29. Respondents are entitled to know the allegations against them to assess whether, or on what basis, to bring their application to dismiss the complaint: Purdy v. Douglas College and others, 2016 BCHRT 117 at paras. 35-37.
[27] At the same time, the Tribunal’s complaint forms are not the equivalent of pleadings in a civil litigation process: White v. Nanaimo Daily News Group Inc. and Klaholz, 2004 BCHRT 350at para. 23. It is not uncommon, or a violation of the Rules, for a complainant to add new particulars of their complaint in response to an application to dismiss. The distinction between particulars and new allegations was set out in Powell v. Morton, 2005 BCHRT 282at para. 20:
… I must consider whether the amendment contains, on the one hand, further details of the facts on which the complainant intends to rely, or whether, on the other, it constitutes an expansion of the allegations made against the respondents. If the former, it will constitute particulars; if the latter, an amendment. This determination is not to be made in a narrow or technical way, but in a manner which will ensure that the parties are accorded procedural fairness, and that particulars are not used to expand a complaint beyond what can reasonably be said to have been alleged in it. Another way of looking at the questions is to ask whether the materials in issue come within the scope of the complaint filed with the Tribunal, or whether they seek to expand the scope of the complaint.
[28] In this case, Ms. Habib’s complaint was filed, and allowed to proceed, as a complaint of discrimination in employment based on her age, race, sex, place of origin, ancestry, and religion. I agree with the Respondents that her reference, at paras. 65 and 98 of her submission, to discrimination based on political belief is a new allegation of discrimination that is not fairly considered in this application. Ms. Habib is represented by experienced counsel who could have, and should have, applied to amend the complaint if they felt it necessary to add a new ground of discrimination after the dismissal application had been filed. Absent an application, it is unfair to present the Respondents with a moving target. I do not consider the allegation of discrimination based on political belief in this decision.
[29] I reach a different conclusion about the Respondents’ second objection. Here they refer to Ms. Habib’s submissions at paras. 105-108 of her response, where she argues that, instead of terminating her employment, the Respondents were obliged to treat her conduct as notice of a potential human rights concern and respond accordingly. I do not agree that this is a new allegation of discrimination. Rather, it is a legal argument supporting Ms. Habib’s allegation that the termination of her employment was discriminatory. It does not rely on any new facts or present a fresh basis for liability. I have considered these arguments in making my decision.
C. Respondents’ documents
[30] Ms. Habib says that the Respondents’ dismissal application refers to the Respondents’ document disclosure but “does not provide these documents in any form”. She argues that the documents cannot be considered as part of the application.
[31] Respectfully, I do not understand Ms. Habib’s submission. The Respondents’ documents were enclosed in a single 110-page pdf, which included the Respondents’ Form 7.2-Dismissal Application and their written submission on the application. I have considered these documents in making my decision.
D. Ms. Habib’s affidavit evidence
[32] In support of her response to this application, Ms. Habib has submitted two affidavits: one which she swore on January 25, 2022, and another sworn by counsel’s office assistant dated January 26, 2022. The Respondents object to these affidavits. They argue that the affidavits contain unsubstantiated speculation, stereotypical assumptions, statements of belief without factual foundation, argument, hearsay, and double hearsay. They argue that the affidavits should be disregarded or accorded little to no weight.
[33] This Tribunal has discretion to admit evidence that would not be admissible in court if it is necessary and appropriate: Code , s. 27.2. In the context of affidavits submitted in an application to dismiss a complaint, the Tribunal has observed that “affidavits will only be as useful as the probative value of the evidence contained in them”: Becker v. Cariboo Chevrolet Oldsmobile Pontiac Buick GMC Ltd. (No. 2), 2004 BCHRT 80 at para. 18, overturned in part on other grounds in 2006 BCSC 43. Notwithstanding the Tribunal’s flexible approach to evidence, the same dangers that courts seek to avoid in developing exclusionary rules remain applicable in Tribunal proceedings. Some information is so inherently unreliable as to have little or no probative value: Batson-Dottin v. PHSA, 2018 BCHRT 246 at para. 21.
[34] I begin with Ms. Habib’s affidavit. I do not agree with the Respondents’ assessment that this affidavit contains inadmissible or improper material. For example, paragraphs where Ms. Habib talks about the racial makeup of the workplace (paras. 4-7) are not “unsubstantiated speculation” or “stereotypical assumptions”: they set out facts which Ms. Habib was in a position to observe. Many of the paragraphs that the Respondents identify are places where Ms. Habib addresses a disparity in how she observed white staff being treated in comparison with racialized staff, including herself (i.e.. paras. 4-7, 20, 25-26, 53). This is a factual issue within Ms. Habib’s direct knowledge and at the heart of allegations in the complaint. Further, I do not agree with their characterisation of parts of Ms. Habib’s affidavit as argument (paras. 2, 6, 11, 1,4, 18, 20, 23-24, 31, 42, 46-47, 49-50, and 53). Those paragraphs set out facts that Ms. Habib is deposing to, albeit with a purpose of proving her complaint. Finally, I do not agree with all the Respondents’ descriptions of “hearsay” evidence. For example, in paras. 21 and 29, Ms. Habib describes a conversation that she had directly with Mr. Friesen. To the extent some paragraphs include hearsay (including, potentially, a reference to Mr. Friesen’s note describing Ms. Habib as “insubordinate”), any concerns are addressed as a matter of weight, taking into account that a dismissal application is not the same as a hearing and that the assessment at this stage is simply whether the complaint has no reasonable prospect of success. In that regard, I also observe that the Respondents have submitted many documents whose authors did not provide affidavit evidence, including the Manager’s notes about what happened in the April 6, 2017, staff meeting. I have considered all those documents, and I decline to disregard any or all of Ms. Habib’s affidavit.
[35] Turning to the office assistant’s affidavit, it is difficult to understand some of the Respondents’ objections. For example, I do not agree that a description of the Tribunal process, and documents disclosed by the Respondents, constitute argument (paras. 2, 6, 10, 17). And, while I accept that it is not particularly helpful to have an affiant relay a hearsay interpretation of the Respondents’ evidence (para. 9), I cannot accept that this is a basis to disregard the affidavit.
[36] Finally, I am not persuaded to disregard the secondary sources appended to the office assistant’s affidavit. In some situations, secondary sources may be admissible to situate a complaint in its social context: Campbell v. Vancouver Police Board (No. 4),2019 BCHRT 275. In others, particularly where the social context is disputed, expert evidence may be required. At this stage, I do not need to decide whether Ms. Habib’s secondary sources would be admissible at a hearing. Rather, I consider that they are demonstrative of the type of evidence that she may produce at a hearing to support a social context in which she says racialized immigrants and refugees face barriers in the Canadian labour market, which can create conditions for their exploitation at work. This evidence supports Ms. Habib’s allegations. It would be unduly onerous to require complainants to produce expert evidence of social context in response to an interim dismissal application, and I decline to do so here.
[37] I dismiss the Respondents’ arguments about Ms. Habib’s affidavit material.
[38] I turn now to the background giving rise to this complaint.
III BACKGROUND
[39] This background is taken from the materials filed by the parties. I only refer to what is necessary to make my decision. I make no findings of fact.
[40] Ms. Habib is a Muslim woman who was born in Afghanistan. She has degrees in civil engineering and computer programming. She has international experience in community development and human rights, including at the United Nations. She came to Canada as a refugee in 1999. She identifies as a woman of colour.
[41] The Society is a non-profit society that provides services to newcomers to Canada. During the relevant time, the individual Respondent Chris Friesen was the Director of Settlement Services. The individual Respondent Kathy Sherrell was the Associate Director of Settlement Services. I understand that both of the individual Respondents are white.
[42] Ms. Habib worked for the Society from 2003 until the termination of her employment in April 2017. In her complaint, Ms. Habib alleges broadly that there was a pattern within the Society whereby “highly skilled immigrant staff of colour remained in lower-level and lower-paid jobs, while white staff, and in particular white staff raised in Canada, tended to be hired for or promoted into almost all upper level management positions, and tended to be promoted more quickly than persons of colour”. She alleges that, throughout her 14 years at the Society, she did not receive the mentoring, support, or opportunities to advance within the organization that she saw were offered to white staff.
[43] The Respondents deny that the Society’s workforce is stratified along racial/religious lines, or based on immigration status. They dispute that the members of the leadership team and upper management are predominantly white with a Christian background. They say that the leadership team is comprised of the CEO and four directors. They do not identify the racial or religious background of this team. Below them are five Division Managers. At the relevant time, the Respondents say that all of the Division Managers were women, four were born outside of Canada, and only one identifies as white. They further dispute Ms. Habib’s assertions about how certain white employees have advanced through the organization. I do not find it necessary to detail the issues regarding other employees in this application.
[44] In June 2007, Ms. Habib was appointed to the position of Assistant Manager in the Resettlement Assistance Program [RAP]. In this role, she was responsible for the daily monitoring and supervising of client services and case management, revising the RAP system, initiating a new case management database, and ensuring effective referrals.
[45] Ms. Habib says that she often raised concerns about how immigrant and refugee staff were treated, but that management was not receptive. In 2010, on her own volition, she prepared a report for Mr. Friesen about the RAP program and the role of immigrant staff within the Society. Among other things, she cited “scoffing attitude toward immigrants in leadership positions” and an irony of “client-dependent services being run, fundamentally, by individuals who’s only sympathetic attachment to the clients is theoretical” [as written]. She stressed the importance of incorporating the expertise of racialized people, including immigrants and second-generation people, into all levels of the Society. She questioned how many immigrants and refugees were currently in management or leadership positions within the Society, and set out her own observation that – with some exceptions around middle management –management positions were held by people in the “dominant culture”. She said that the organizational structure dissuaded racialized people in lower-level positions from bringing concerns forward to management, in contrast with people who were culturally Canadian. She concluded: “While the senior managers are busy at the national and international level in raising awareness about immigrants and refugees, immigrants and refugees are silently suffering and treated as second class citizens within Immigrant Services Society of BC”.
[46] Ms. Habib gave Mr. Friesen her report in June 2010. She says they met to discuss it, and Mr. Friesen told her that her comments about immigrant staff were unacceptable and disrespectful, and that her job may be in jeopardy if she continued talking about that issue. This is consistent with records disclosed by the Respondents, which include handwritten notes on the report, and a draft letter prepared in Mr. Friesen’s name to respond to the report. In the draft letter, which was never sent, Mr. Friesen says that the “manner and tone” of the report was “completely inappropriate, showing poor communication and judgement” and that it included statements that were “accusatory, demeaning, inaccurate and could easily be interpreted in places as acts of insubordination”. He described parts of the reports as “personal philosophical rants” and said that, by advancing the notion that certain employees “do not have a voice within the organization,” Ms. Habib is perpetuating an “unhealthy working environment that is not acceptable as a member of the middle management team”. The handwritten notes record a view that there was “no evidence of truth” in Ms. Habib’s report, and her concerns were “not valid”. The draft letter concludes by saying that if Ms. Habib did not improve her performance regarding communications, Mr. Friesen would consider “disciplinary actions up to and including dismissal”.
[47] In the meantime, also in 2010, Ms. Habib raised concerns about a Coordinator, a white woman, in a different program. In doing so, she says she was bringing forward the concerns of staff supervised by the Coordinator, who were mostly immigrants of colour. She says that the situation with the Coordinator deteriorated to the point that the Coordinator complained that Ms. Habib was bullying her. As a result, in July 2010, a mediator was brought in. The mediator eventually resolved the dispute through a Memorandum of Understanding. The mediator also made recommendations to the Society, including that it investigate whether staff concerns were reaching management. Ms. Habib says this was in line with what she had been saying to management. She says she is not aware of the Society taking any steps to follow up on this recommendation. The mediator also observed that Ms. Habib had a “strong cultural lens” and a “good sense of how the Canadian system works”. The mediator concluded:
[Ms. Habib] is intent on challenging management to meet the needs she sees the employees as having. Her intention is positive, her views are strong, and she has the capacity to temper her approach as needed. I would suggest continuing to reality check her when she makes statements about Canadians being privileged or immigrant employees as being weak.
These incidents provide some context for Ms. Habib’s relationship with the Society’s management, including Mr. Friesen, over the years of her employment.
[48] In her human rights complaint, Ms. Habib alleges that she was not given opportunities or support to advance within the organization, including to the level of RAP Manager. Ms. Habib says that, between 2007 and 2012, she was frequently asked to step in and complete the work of the RAP Manager on top of her own work. This was especially true, she says, in 2012, when the then-Manager was hospitalized for most of the year. She says that she oversaw the program in his absence, but received no increase in pay or recognition of this work. There is support for this in the recommendations of the mediator, in July 2010, that the Society review Ms. Habib’s workload because it appeared that she was “carrying on many of [the manager’s] tasks”.
[49] In 2012, the Society posted an opening for the position of RAP Manager. Ms. Habib applied and interviewed for the position, but was not successful. Mr. Friesen was one of the five panel members who made the hiring decision. Ms. Habib says that he told her she had been “disqualified” from the competition.
[50] Mr. Friesen says that the hiring panel was unanimous in its assessment that Ms. Habib was not suitable for the position, citing her demeanour and what he describes as Ms. Habib’s “preference for hectoring rather than engaging in a courteous and well-considered exchange of ideas”. The successful candidate was a Society employee who already held a managerial position in the organization, and who was not born in Canada.
[51] After Ms. Habib learned she was “disqualified”, she sent Mr. Friesen an email setting out her achievements and her view that she had kept the program running smoothly despite several challenges. She questioned why her career should be affected by the failure of Mr. Friesen or the former manager to support her through performance reviews and feedback. She questioned whether the interview for the position had been too focused on language ability, with the effect of undermining the “many other skills and strengths [an] immigrant applicant can bring”, particularly in circumstances when “many of us come from a background that selling your skills and qualifications is culturally not the norm”. She questioned whether the hiring process had been fair to all applicants, and advised Mr. Friesen that the Society needed to review and revise its interviewing format “to accommodate the necessary diversity of tools and systems of assessments of immigrants, refugees and other applicants of an immigrant serving agency”. Mr. Friesen did not respond to this email, though he did forward it to the Director of Human Resources, with the note “A gift from me to you”.
[52] In November 2012, Ms. Habib says that she sought a reclassification of her position retroactive to June 2007, based on a comparison with a similar position. The Respondents did not agree to this request. The Respondents say that there was no basis to increase her pay, and that Mr. Friesen told her so. They dispute that she was doing more than the regular duties of the RAP Assistant Manager.
[53] Ms. Habib says that, after 2012, the Respondents took no steps to support her career development and, specifically, to equip her to move into the RAP Manager role. When the RAP Manager resigned on September 30, 2016, Ms. Habib did not apply for the position. She says that she did not expect her application would be supported by senior management.
[54] The Respondents say that a new RAP Manager began on October 3, 2016. Ms. Habib says she provided several months of training to the new Manager. The Respondents deny this, and say she provided 56 hours of training. It is undisputed that the new RAP Manager was a man of colour, without a background in refugee resettlement services or case management. Ms. Habib says his employment was terminated within his probationary period.
[55] By the spring of 2017, Ms. Habib says she was exhausted from work and required medical attention due to work-related stress. She says that she felt it was time to “speak up and to help others raise their concerns as well”. The Respondents say they were not aware that Ms. Habib was experiencing work-related stress.
[56] In early 2017, the RAP Manager position was posted again. Ms. Habib says that she was encouraged by staff, partner agencies, and the funder to apply for the position. She says she was hesitant to apply because she did not believe that senior management would consider her for the position. Mr. Friesen says that Ms. Habib asked for his view about whether she should apply. He says that he advised her to consider that the position demanded a high level of budgetary responsibility, the work was not frontline work and involved a lot of administrative tasks, and that the position managed more staff than she was used to. He says that he encouraged Ms. Habib to apply for the manager position in a smaller program, to gain experience. In this human rights complaint, Mr. Friesen also says that he did not consider Ms. Habib to be qualified for the role in circumstances where she consistently objected to the Society’s top-down management hierarchy.
[57] In the meantime, on February 14 and 20, 2017, Ms. Habib raised concerns with Mr. Friesen about Ms. Sherrell. She says that, in doing so, she was advancing complaints on her own behalf as well as from other staff. She says the complaints included “micro-management, misleading and unreliable information, lack of cultural sensitivity and disrespectful communications”. She says that she told Mr. Friesen that she was considering withdrawing her application for RAP Manager because the position reported directly to Ms. Sherell. For his part, Mr. Friesen says that the premise underlying all of Ms. Habib’s concerns was her “belief that the RAP program should be a consensus-based cooperative of staff and management”, which was not consistent with its actual structure. Mr. Friesen says that he spoke to the CEO about Ms. Habib’s concerns and they determined no action was required. They did not inform Ms. Sherrell of the complaints.
[58] On February 23, 2017, Mr. Friesen and Ms. Sherrell met with Ms. Habib. Ms. Habib says they told her that the job description for RAP Manager had been changed, and that she was no longer qualified. Ms. Habib expressed concern about Ms. Sherrell being involved in hiring decisions in circumstances where she was the subject of a complaint by Ms. Habib. The Respondents say that it was necessary to include Ms. Sherrell in the hiring process because the RAP Manager would report to her, and they had to be a good “working fit”.
[59] Instead of the RAP Manager position, Mr. Friesen and Ms. Sherrell offered Ms. Habib a position managing a smaller program with six employees. Ms. Habib says she considered the offer, including by visiting the program and talking to the exiting manager. However, she says that it was not related to her experience and qualifications and, as a small program, the funding was insecure. She says that, after talking to the exiting manager, she also had concerns about reporting directly to Ms. Sherrell. She decided not to pursue the position. The Respondents dispute the basis for some of Ms. Habib’s concerns. They say it was a permanent position, and within Ms. Habib’s experience providing services to refugee women and children. Mr. Friesen says that he felt that the position presented an opportunity for Ms. Habib to gain experience managing a budget and staff, at a level higher than her current role.
[60] In late February 2017, Ms. Habib says that she met with Mr. Friesen to tell him about her decision not to accept the position, and to ask further questions about her disqualification from the RAP Manager position. She says that Mr. Friesen told her that the hiring committee felt that she was not qualified to manage the size of the budget and staff. She says that, in fact, she had already managed budgets and teams of that size and that she was denied the opportunity to learn on the job, which had been extended to previous RAP Managers.
[61] Around this same time, Ms. Habib complained to Mr. Friesen about Ms. Sherell in writing. She says that Mr. Friesen never responded to her complaint. Mr. Friesen says that he met with Ms. Habib and responded to each of her concerns in person. Beyond that, he says he was not obliged to “report back” to Ms. Habib.
[62] The person hired as the new RAP Manager had previously been a manager of another Society program. Ms. Habib says that she had previously trained him in various capacities, and that he told her he was shocked to learn she had not been hired for the position. The Respondents dispute this. There is no dispute that this manager was a Muslim man of colour.
[63] In April 2017, the Society made changes to the job descriptions, job titles, and salaries within the RAP Program. The Respondents say that these were part of broader changes that the Society was making in order to make job titles, descriptions, and salaries within the Settlement Program more accurate and consistent with the Society’s other programs.
[64] The changes were announced to the RAP team on April 3, 2017. Ms. Habib’s job title changed from “Assistant Manager” to “Case Manager”, her pay was increased, and her job description changed. The parties dispute the effect of the changes. The Respondents say that Ms. Habib’s job stayed the same. She disagrees and says that the changes removed mention of the managerial/supervisory responsibilities she had been carrying out. Ms. Habib says that other staff were also concerned about the changes.
[65] On April 4, Ms. Habib met with the Acting CEO of the Society to share her concerns about the proposed changes, and her concern that she was being targeted because she had raised complaints about Ms. Sherrell.
[66] On the morning of April 5, Mr. Friesen received a petition signed by several RAP staff expressing concern about the changes to their job titles and descriptions. In response to the concern, Mr. Friesen and Ms. Sherrell held all-staff meeting later that day. Ms. Habib was not at work and so was not present at the meeting. She says that it was unusual for the Respondents to hold a meeting in her absence. She says that staff were coming to her with their concerns about the changes, and that the meeting should have been held when she could attend.
[67] The next day, April 6, Ms. Habib was back at work. The RAP Manager convened an all-staff meeting with the RAP program staff. Mr. Friesen and Ms. Sherrell were not present. This is the meeting that led to the termination of Ms. Habib’s employment.
[68] Ms. Habib says that, in this meeting, she was raising issues regarding the ongoing power imbalance between “visible minority staff who have refugee and immigrant backgrounds and management who do not”. She says she was trying to educate the new RAP Manager about these power dynamics in order to “improve communication between frontline workers and senior staff”, including by pointing out that it could be intimidating for “visible minority refugees/immigrants (who were mostly women)” to meet one-on-one with Mr. Friesen, a “strong white male”. She says she was using language of power and inequality that had been discussed in recent anti-oppression training, and the discussion was positive.
[69] After the meeting, the RAP Manager reported to Mr. Friesen and Ms. Sherrell about Ms. Habib’s conduct during the meeting. In Ms. Sherrell’s notes of their conversation, she recorded that Ms. Habib was talking about how the staff were being treated by Mr. Friesen and Ms. Sherrell, likening the situation to “colonialism”, “white folks divide + rule”, and “white supremacy”. She wrote that, in response to one staff saying that the title change did not bother him, Ms. Habib said, “We are strong [together] + cannot accept this”. In a handwritten note dated the next day, April 7, the RAP Manager said that Ms. Habib had made statements that “injected very negative vibe among the team” and made it difficult for him to run the meeting. He cited the following comments, which he says Ms. Habib made: “We don’t agree with the title changes, it is a type of colonialism”, “We are funded to help refugees and immigrants, the 3 white people in top leadership (Chris, Kathy, Theo) is ruling us and keeping all benefits and good titles to themselves and pushing us down every year”, “We need to get together as a group and stand for change”, and “They are oppressing us immigrants and refugee workers and getting all benefits to themselves”.
[70] Ms. Sherrell promptly reported the issue to the Director of Human Resources. They decided to terminate Ms. Habib’s employment effective immediately.
[71] Within one hour of the end of the April 6 meeting, Ms. Habib was called into a meeting with the Director of Human Resources and Ms. Sherrell, where her employment was terminated. Ms. Habib says they told her it was because of something she had said in the meeting, and that they would give details in her letter of termination. Ms. Sherrell’s notes of the meeting cite “gross insubordination”.
[72] The Respondents say that Ms. Habib’s employment was terminated because her behaviour at the April 6 staff meeting was a “fundamental breach” of her “duty of fidelity”. They say that Ms. Habib was inciting “all-staff insubordination”, a culmination of her “long-held desire to make RAP Program staff equal to their managers; and her the most equal of all”.
[73] The Society issued a termination letter to Ms. Habib on April 11, 2017. The letter was signed by the Director of Human Resources. It said:
This letter is to confirm that you have been dismissed, effective the end of business on Thursday, April 6, 2017.
Following the receipt of legal advice, your behaviour leading up to, and culminating in the April 6, 2017 staff meeting, has so undermined the employer/employee relationship that we have lost confidence in your ability to work within the mandate, mission, vision and values of this organization. Your immediate dismissal is the only appropriate response.
The Society offered to pay Ms. Habib two weeks’ salary in exchange for a release. She declined.
[74] Ms. Habib alleges that, after her termination, Mr. Friesen and Ms. Sherrell told the RAP staff that the Society was “not a place for anyone who was against the mission and vision of the organization”. She says that this implied that she had been terminated for being against the Society’s mission and vision, and that this damaged her reputation. The Respondents deny this. Mr. Friesen says he told the staff that Ms. Habib did not support the organizational structure of the Society. The Respondents have disclosed notes handwritten by Ms. Sherrell after the termination, which record that the team felt “fragile/shocked” and that some felt the termination undermined their sense of job security: “GH our hero, + she was let go”. The notes also refer to someone’s view that “nothing extraordinary” was said at the meeting.
[75] Ms. Habib also alleges that, after her termination, Mr. Friesen caused her to lose an outside volunteer position by telling the organization that the Society would not attend a particular meeting if Ms. Habib was present. Mr. Friesen denies this. He says that he simply told the organization that Ms. Habib no longer spoke on behalf of the Society.
[76] Ms. Habib filed this human rights complaint on October 30, 2017.
IV DECISION
[77] The Tribunal has gatekeeping powers to dismiss all or part of a complaint without a hearing under s. 27(1) of the Code.In this case, the Respondents argue that the whole complaint should be dismissed because Ms. Habib has no reasonable prospect of proving that she was adversely impacted in her employment based on personal characteristics protected by the Code:s. 27(1)(c). In the alternative, they argue that the complaint should be dismissed against Mr. Friesen and Ms. Sherrell because it does not further the purposes of the Codeto proceed against them as individuals: s. 27(1)(d)(ii). The onus is on the Respondents to establish a basis for dismissal.I consider each of their arguments in turn.
A. Complaint has no reasonable prospect of success
[78] Section 27(1)(c) of the Codeallows the Tribunal to remove complaints which have no reasonable prospect of success, such that they do not warrant the time and expense of a hearing.
[79] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan, 2013 BCSC 942at para. 77.
[80] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority, 2021 BCSC 2176at para. 20; SEPQA v. Canadian Human Rights Commission, [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.
[81] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia, 2008 BCSC 1026 at para. 34. However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City), 2017 BCCA 242 at para 67.
[82] To prove her complaint at a hearing, Ms. Habib will have to prove that she was adversely impacted in her employment and that her protected characteristics (race, colour, ancestry, gender, place of origin, and religion) were a factor in that adverse impact: Moore v. BC (Education), 2012 SCC 61 at para. 33. Contrary to some of the Respondents’ submissions, Ms. Habib does not have to prove a causalconnection between her protected characteristics and adverse impacts in her employment: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 [Bombardier] at para. 51. This sets too high a bar. Rather, Ms. Habib must simply prove a connection; that her protected characteristics were a factor in the adverse impact: Bombardier at para. 52. In allegations of racial discrimination, this connection must often be inferred: Mann v. JACE Holdings,2012 BCHRT 235 at para 105; Mezghrani v. Canada Youth Orange Network (CYONI) (No. 2), 2006 BCHRT 60 at para. 28; Radek v. Henderson Development (Canada) and Securiguard Services (No. 3), 2005 BCHRT 302 at para. 482. The Tribunal may rely on circumstantial evidence and the broader social context of the interactions to make an inference of discrimination: Campbell v. Vancouver Police Board (No. 4), 2019 BCHRT 275 at paras. 101-104; see also summary of principles in Young Worker v. Heirloom and another, 2023 BCHRT 137 at para. 47.
[83] If Ms. Habib proves the elements of her complaint, then the burden would shift to the Respondents to justify the adverse impacts as a bona fideoccupational requirement.
[84] At this stage, the Respondents do not advance a defence of bona fideoccupational requirement. Rather, they argue that Ms. Habib has no reasonable prospect of proving the elements of her case, specifically that:
a. She was adversely impacted by a lack of training or mentorship opportunities;
b. She was underpaid between 2007-2012 and 2015-2018, and/or her protected characteristics were a factor;
c. Her protected characteristics were a factor in the Respondents’ decisions not to hire her for the RAP Manager position in 2012 and 2017;
d. She was adversely impacted by the change to her job description in 2017;
e. Her protected characteristics were a factor in the termination of her employment; and
f. The Respondents’ conduct after her termination adversely impacted her in employment.
[85] Here I pause to acknowledge that some of Ms. Habib’s allegations arise years before the complaint was filed. When the complaint was filed, the time limit for bringing a complaint was six months. In her complaint, Ms. Habib argued that all of her allegations were timely, because they form part of a continuing contravention of the Code, culminating in the termination of her employment. The Tribunal accepted the complaint for filing on this basis. In this application, the Respondents have not argued that any part of the complaint should be dismissed because it is out of time: s. 27(1)(g). As such, I do not consider the timeliness of any of Ms. Habib’s allegations.
[86] I will consider each of the Respondents’ arguments in turn. First, however, I situate the allegations within what Ms. Habib alleges is an environment of systemic discrimination.
1. Context
[87] Ms. Habib’s allegations can only be understood within what she describes as a broader context of systemic discrimination within the Society, against racialized and immigrant/refugee staff. This is because:
Individual acts themselves may be ambiguous or explained away, but when viewed as part of the larger picture and with an appropriate understanding of how racial discrimination takes place, may lead to an inference that racial discrimination was a factor in the treatment an individual received.
Ontario Human Rights Commission, Policy and Guidelines on Racism and Racial Discrimination (2005) at p. 21
At a hearing, a broader context of discrimination may support an inference that Ms. Habib’s protected characteristics were a factor in the various employment-related adverse impacts that she alleges: see e.g., Campbell at paras. 104-105.
[88] At this stage, I emphasise that this context is highly contested by the Respondents. I am not making any findings about whether Ms. Habib has proven these contextual factors; rather, I am considering whether she has pointed to evidence taking them out of a realm of conjecture. In my view, she has.
[89] Important contextual factors include:
a. An alleged racial stratification within the workplace, with white people of Christian heritage, and/or who grew up in Canada predominantly at the top of the hierarchy, and racialized immigrant/refugee people predominantly at the bottom. While the Respondents dispute this description of the workforce, their limited evidence is not sufficient for me to conclude that Ms. Habib’s allegation has no reasonable prospect of success. Ms. Habib attributes this stratification to patterns of preferring academic credentials over lived experience and front-line work, and greater internal support and mentorship for white employees to advance. She points to evidence of highly qualified racialized and/or immigrant/refugee employees spending years in entry-level or frontline positions, while white employees with more academic credentials advance upwards in the hierarchy.
b. A pattern of disregarding or minimizing the issues that Ms. Habib raised over the years about the relationship between predominantly racialized front-line staff and management. In support of this, Ms. Habib points to Mr. Friesen’s response to her 2010 report, which cast her concerns as “insubordinate” and did not consider whether they may have any merit. She further points to a disparity between the Society’s response when a white woman complained about her in 2010 and its response when she complained about Ms. Sherrell in 2017. The first instance triggered a highly documented response, mediated resolution, and a letter of expectations, whereas in response to her complaint, Mr. Friesen determined it was unnecessary to take any action or even talk to Ms. Sherrell.
c. A broader social context where Ms. Habib alleges that immigrants and refugees face greater barriers to employment, and which she alleges makes them vulnerable to exploitation in their work. In support of this, Ms. Habib cites articles about immigrants’ experiences in the Canadian labour market. One article concludes that “visible minority immigrants have significantly lower levels of employment and [Socio-Economic Scale] compared to white immigrants”: M. Reza Nakhai and Abdolmohammed Kazemipur: “Social Capital, Employment and Occupational Status of the New Imimgrants in Canada”, Int. Migration & Integration (2013) 14:419-437.
[90] Though it is contested, Ms. Habib has pointed to evidence capable of supporting these contextual considerations. The Respondents’ evidence to the contrary is not sufficient for me to conclude that her allegations have no reasonable prospect of success.
[91] I turn now to the Respondents’ arguments to dismiss Ms. Habib’s complaint.
2. Lack of training or mentorship
[92] Ms. Habib alleges that, throughout her time as RAP Assistant Manager between 2007 and 2017, the Respondents failed to support her career advancement through mentoring, training, or constructively evaluating her performance. She says this is in contrast with the experience of Ms. Sherrell – a white woman, whom she says was mentored by Mr. Friesen. Further, she argues that, as a Muslim refugee woman in Canada, she is vulnerable in the labour market. In this situation, she says she was particularly reliant on her employer to “ensure that she progressed in the workplace” and that their failure to support her with that had a disproportionate effect on her because of her protected characteristics.
[93] Ms. Habib offers one specific example of being denied training. She says that she asked to receive training in budget management but Mr. Friesen did not approve that training, suggesting instead that she take a course on communication. Eventually, Ms. Habib was told there was no budget for the communications course.
[94] The Respondents say that there is no evidence that Ms. Habib was denied opportunities for training. To the contrary, they say that she has disclosed 15 training requests, all of which were granted. They point out that Ms. Habib’s materials also refer to other opportunities she availed herself of, including Canadian conferences and an African tour. They say that Mr. Friesen arranged and supported these opportunities. They say that they provided Ms. Habib with promotion opportunities as far back as 2005-2006. They say that the one instance that Ms. Habib referred to does not amount to discrimination.
[95] The Human Rights Coderequires employers to provide any training and mentoring opportunities without discrimination. It does not, however, impose a positive obligation on employers to train and mentor their employees. Rather, its focus is on Code-related barriers impeding an employee’s full and equitable participation in the workplace. In this case, Ms. Habib has no reasonable prospect of proving that the Codeimposes a positive obligation on the Society to ensure she progressed in the workplace, because of barriers that she faces in the broader labour market. Rather, s. 13 of the Codemakes the Society responsible for removing Code-related barriers to Ms. Habib’s employment with the Society:see e.g. v. Finamore (No. 2), 2018 BCHRT 9 at para. 59.
[96] With one exception, Ms. Habib does not identify specific training or development opportunities that she was denied. This makes it difficult to articulate an adverse impact that is isolated to Ms. Habib’s allegations regarding training and mentorship. Rather, as I understand Ms. Habib’s complaint, she says that one of the reasons she was never promoted to RAP Manager was that the Society and Mr. Friesen did not support her professional development in the same way as they did for white employees of Christian heritage. She gives examples of other white employees whom she says she observed receiving mentorship, opportunities, and promotions. The adverse impact at issue concerns the RAP Manager position, which I address below.
[97] I dismiss Ms. Habib’s allegation that the Codeimposes a positive obligation on the Society to ensure she progressed in the workplace, because of barriers she faces in the broader labour market. I do not dismiss Ms. Habib’s other allegations regarding training and mentorship, but find they are better assessed in relation to her allegations regarding the RAP Manager position.
3. Underpaid between 2007 – 2012
[98] Ms. Habib alleges that, between 2007 and 2012, she undertook increasing amounts of work beyond her position as RAP Assistant Manager. In particular, she says that she performed much of the work of the RAP Manager, who was ill and absent for work for some of this time. She says she was not properly compensated or recognized for this work and that it is reasonable to infer her protected characteristics were a factor in this treatment.
[99] The Society argues that Ms. Habib was paid at the hourly rate for her position, which is set by the funder. It disputes that she was doing significant aspects of the position of RAP Manager.
[100] In my view, there are critical factual disputes in relation to this allegation that must be determined in a hearing. The Society’s submission that Ms. Habib was paid a funder-directed rate for the position of RAP Assistant Manager does not completely answer her allegation that her RAP Manager work was uncompensated and unrecognized. The parties dispute the extent to which Ms. Habib was in fact performing the work of the RAP Manager during this period. Ms. Habib has pointed to some evidence to support that she was, including the notes of the mediator and her own affidavit evidence. If Ms. Habib proves that she was performing the RAP Manager’s work, then she may be able to prove that she was adversely impacted by the lack of financial compensation. In addition to the financial impact, Ms. Habib may prove that the Society’s failure to recognize her RAP Manager work was a reason she was later considered unqualified for that position.
[101] Further, the Respondents have not persuaded me that Ms. Habib has no reasonable prospect of proving a connection between these impacts and her protected characteristics. The allegation must be considered in light of the broader context of alleged systemic discrimination which I have outlined above, as well as the rest of Ms. Habib’s allegations about being under-recognized and unsupported in her work. If the Tribunal accepted Ms. Habib’s evidence about the general racial dynamics in the workplace, and that she lost other opportunities because of her protected characteristics, it could infer that her protected characteristics were also a factor in the Society underpaying her for performing the work of the RAP Manager.
[102] Ms. Habib has taken this allegation of out a realm of conjecture, and I decline to dismiss it.
4. Underpaid between 2015-2017
[103] Ms. Habib says that, during the influx of Syrian refugees between late 2015 and 2017, she and her staff were required to work extraordinarily hard, including on evenings and weekends. She says that they received a slight pay increase but were told that the Society could not pay overtime that had not been pre-approved. She says that the often-emergency nature of the work did not make pre-approval possible. She argues that it is reasonable to infer that the Society’s “perception of the frontline immigrant and refugee staff working with refugees, including the Complainant, was a factor in how the overtime issue was handled”.
[104] The Society says that Ms. Habib was treated the same as all its employees regarding overtime. It says that, as part of the Syrian refugee re-settlement project, staff were asked to increase their hours of work to 40 hours per week over three weeks. They received a 7% increase in their hourly rate of pay. Ms. Habib accepted these terms of employment. It says that it did pay for overtime on this project, but that Ms. Habib did not apply for overtime during this period.
[105] On balance, I am persuaded that this allegation has no reasonable prospect of success. The parties agree that the Society offered overtime. They also appear to agree that Ms. Habib did not receive overtime because she did not apply for it to be pre-approved. While I appreciate that Ms. Habib says that the nature of the work made pre-approval difficult, there is no evidence that could support a connection between Ms. Habib’s failure or inability to get pre-approval for overtime and her protected characteristics. I dismiss this allegation.
5. RAP Manager position
[106] The Respondents argue that Ms. Habib has no reasonable prospect of proving that her protected characteristics were a factor in the decision not to hire her for the RAP Manager position in 2012 and 2017. They say that Ms. Habib lacked necessary qualifications for the position, specifically regarding budgeting, and that her critical views about the Society’s hierarchical structure made her ill-suited for the position. They say there is no evidence beyond conjecture that Ms. Habib’s protected characteristics played any role.
[107] I disagree. To begin, there is evidence that some of the Respondents’ concerns about Ms. Habib were rooted in her pattern of raising concerns about racial and power dynamics in the workplace. For example, in her 2010 report to Mr. Friesen, Ms. Habib included a section titled “Are immigrants and refugees equal within the sector?”. She identifies the “racial stratification of the organization” and concludes that it is evidence of “institutional racism”. Rather than engaging with the substance of Ms. Habib’s concerns, there is evidence that Mr. Friesen concluded it was insubordinate and disrespectful. I appreciate that the Respondents’ position is that Ms. Habib’s concerns were unfounded and were rooted in her dissatisfaction with the organizational hierarchy rather than legitimate issues related to inequality. However, I cannot resolve the parties’ dispute about this issue in this application.
[108] On their face, many of the issues that Ms. Habib were raising – and which seem to have informed Mr. Friesen’s perception that she was ill-suited to a higher-level management position – were connected to Ms. Habib’s identity as a racialized Muslim refugee woman. Though neither party cited it, I observe that human rights law has long recognized the propensity to label a person raising issues of discrimination as “problematic or difficult to deal with”: Monsson v. Nacel Properties,2006 BCHRT 543 at para. 33; Naraine v. Ford Motor Co. of Canada (No. 4), 1996 CanLII 20056 (Ont. Bd. Inquiry) at paras. 90-92; rev’d on other grounds, 2001 CanLII 21234 (ON CA). A negative response to a person’s complaints of discrimination can support an inference that their protected characteristics were a factor in adverse treatment or impact: Nelson v. Goodberry Restaurant Group Ltd dba Buono Osteria and others, 2021 BCHRT 137 at paras. 104-107.
[109] In addition, Ms. Habib has pointed to other factors that, taken together, could support her allegation that her protected characteristics were a factor in the decision not to promote her to RAP Manager. These include:
a. The Society’s differential treatment between her and other employees without her protected characteristics. Specifically, she alleges that other employees, predominantly white of Christian heritage, were trained and mentored, and afforded opportunities for advancement even in circumstances where they did not have all the requisite job skills. In contrast, she says that she was told she lacked qualifications in circumstances where either she could have learned skills on the job, or she did in fact have relevant experience. Further, as I have discussed above, she alleges that the Respondents did not support her professional development through training or mentorship in the same way as she observed was offered to other white employees of Christian heritage. She gives specific examples of this in her evidence.
b. The Society’s failure to recognize her years of experience working as RAP Assistant Manager, including periods where she was covering and/or supporting the work of the Manager.
c. The Society’s decision to hire people for the position who were less or equally qualified as she was, but who did not share her protected characteristics: see e.g., Oxley v. British Columbia Institute of Technology, 2002 BCHRT 33 at paras. 67-73. In support of this, Ms. Habib says that the RAP Manager hired in 2016 had no background in refugee resettlement services or case management, and she trained him on all aspects of the job. She says that he was terminated during his probationary period. She says that the RAP Manager hired in 2017 was not familiar with the RAP program at all, and described himself as her student. The Respondents have not submitted evidence regarding the qualifications of the RAP Managers they hired.
d. Systemic discrimination across the Society, reflected in the racial stratification of the workforce, which I have referenced above.
[110] Again, the Respondents dispute these circumstances. These disputes in the evidence relate to foundational issues in the hearing, and require findings of fact. The Respondents have not persuaded me that these allegations have no reasonable prospect of success, and I decline to dismiss them.
6. Change to job description
[111] The Respondents say that Ms. Habib has no reasonable prospect of proving that the change to her job title and description adversely impacted her employment. It says that the job description was updated to more accurately reflect the work she was doing. It relies on the right of the employer to make unilateral changes to an employment contract provided they do not amount to substantial changes of the terms of employment: citing Farber v. Royal Trust Co,[1997] 1 SCR 846 at para. 24.
[112] Again, I am not persuaded that these allegations have no reasonable prospect of success. The changes to Ms. Habib’s job description remove references to managerial or supervisory responsibilities. The title is changed from “Assistant Manager” to “Case Manager”. The new “position purpose” removes mention of assisting with preparation of program proposals, annual budgeting, and providing inputs into program enhancement. The new “responsibilities” of the position remove mention of supervising staff and conducting performance evaluations, overseeing volunteers, auditing a reporting system, budget monitoring and financial reporting. The new “qualifications” remove the requirement for “demonstrated supervisory experience including hiring, training, and staff evaluation”. The issue of what impact these changes had on Ms. Habib’s job, if any, is a factual one which cannot be resolved in this application. On their face, these changes support Ms. Habib’s argument that her supervisory duties were removed, which could affect how her work experience is perceived (for example, in other job competitions). Ms. Habib points out that the changes removed her budgeting and supervisory functions, in a circumstance where Mr. Friesen had previously told her she lacked the budgeting and supervisory skills to advance to the RAP Manager position.
[113] Though the Respondents say that these changes were routine and taking place across the organization, there is no evidence before me to support that other programs were similarly affected, or to explain how the changes brought Ms. Habib’s position more into alignment with other equivalent positions across the organization.
[114] These allegations cannot be untangled from Ms. Habib’s other allegations of being undervalued in connection with her work, in connection with her identity as a racialized Muslim refugee woman. She has taken them out of a realm of conjecture, and I decline to dismiss them.
7. Termination of employment
[115] There is no dispute that the termination of Ms. Habib’s employment is an adverse impact. The Respondents argue that she has no reasonable prospect of proving that the termination was connected to her protected characteristics. I disagree.
[116] There is no dispute that Ms. Habib was fired because of her statements in the April 6 meeting. While there is some dispute about what exactly she said, there is no dispute that those statements related to her concern that she and the RAP staff were being mistreated and taken advantage of because of their protected characteristics. Regardless of the merit of those concerns, their connection to Ms. Habib’s personal characteristics is express.
[117] Ms. Habib argues:
the instant termination of the Complainant over the mere suggestion that members of the dominant white Canadian majority in the workplace were benefitting at the expense of those who were not members of the white Canadian majority was a pure act of what has come to be described as ‘white fragility’, by which is meant the acute oversensitivity white people frequently exhibit to any suggestion that they experience privilege because of their race.
She invokes the case law about an employer’s duty to respond reasonably and appropriately to complaints of discrimination, with an aim to ensuring a discrimination-free workplace: The Sales Associate v. Aurora Biomed Inc. and others (No. 3), 2021 BCHRT 5 at para. 125. She says that the Society’s decision to terminate Ms. Habib’s employment without talking to her, investigating her conduct at the meeting, or considering the substance of the issues she was raising, runs completely counter to the human rights principles that call on employers to treat allegations of discrimination seriously and sensitively.
[118] The Respondents argue that Ms. Habib must prove that her protected characteristics “made her incapable of complying with the Respondents’ basic workplace standards”: citing Stewart v. Elk Valley Coal Corp, 2017 SCC 30. While I have doubts about this expression of the law, I do not need to resolve them because the facts about whether Ms. Habib complied with those standards are in dispute and cannot be resolved in this application.
[119] I agree with the Respondents that Ms. Habib’s protected characteristics do “not provide her with licence to act with impunity or excuse her insubordinate behaviour or insulate her from the consequences of that bad behaviour”. However, the parties dispute what exactly Ms. Habib said in the meeting. The Society has not produced any direct evidence from anyone who was present in the meeting, including the RAP Manager. It appears that Ms. Habib may dispute that she said “white folks divide and rule” or mentioned “white supremacy”. The Society made no efforts to ask Ms. Habib or others present at the meeting about what happened before terminating her. Ms. Habib says she felt that she was raising legitimate workplace issues, using language recently used in anti-oppression training offered through the Society. She says she felt the meeting was positive. There is some evidence, in Ms. Sherrell’s notes, that at least one person present did not feel anything extraordinary had happened and the team was shocked by the termination. Whether Ms. Habib’s conduct in fact breached her duties as an employee and constituted a non-discriminatory basis for her immediate termination is a contested question of fact that cannot be resolved in this application.
[120] Though the details of what Ms. Habib said in the meeting are disputed, there is no dispute that she was raising issues related to discrimination in the workplace. Where an employee is terminated in the context of an allegedly discriminatory work environment, careful attention must be paid to ensure there is no connection between the termination and the discriminatory environment: Vanderputten v. Seydaco Packaging Corp , 2012 HRTO 1977 at para. 81, citing Smith v. Ontario (Human Rights Commission), 2005 CanLII 2811 (ON SCDC) at para. 24. This may include a response that aligns with the principles cited by Ms. Habib, taking human rights concerns seriously and responding appropriately. In this case, a 14-year employee was fired for cause within one hour of a meeting where she raised issues related to racial inequality. This is not a circumstance where I am prepared to dismiss Ms. Habib’s complaint at a preliminary stage without a hearing.
[121] I distinguish Harvey v. Black and Lee,2013 BCHRT 49, relied on by the Respondents. Significantly, this was a final decision, made after a hearing on the merits of the complaint. In dismissing the complaint, the Tribunal relied on its findings of fact – which I cannot do here. The Tribunal found that the complainant misinterpreted her employer’s communication to mean that she had been laid off. In response, she texted her employer calling him a “lying piece of shit” and a “fucking asshole”. In this situation, the Tribunal found that her pregnancy was not a factor in the ending of her employment. In contrast here, the essential facts related to Ms. Habib’s conduct and the basis for her termination are highly contested and cannot be resolved in an interim application. They require a hearing.
[122] I also distinguish Geraskina v. ISSofBC,2008 BCHRT 323. This was another complaint where an immigrant employee alleged that the Society discriminated against her by terminating her employment for insubordination. The Tribunal dismissed the complaint on the basis that Ms. Geraskina had no reasonable prospect of proving that her protected characteristics were a factor in her termination. This decision was based on the evidence presented to support the complainant’s allegations in that complaint. In contrast here, I have determined that Ms. Habib has presented enough evidence to take her complaint out of a realm of conjecture and warrant a hearing.
[123] In reaching this conclusion, I acknowledge and agree with the Respondents that the issue for this Tribunal is not whether Ms. Habib was wrongfully dismissed under the common law: Geraskinaat para. 31. Rather, it is whether Ms. Habib’s protected characteristics were a factor in the termination of her employment. The Respondents have not persuaded me that she has no reasonable prospect of proving this element of her complaint.
[124] Finally, I note that Ms. Habib has alleged that the Respondents’ conduct in terminating her for cause, offering her two-weeks’ salary in exchange for release, and failing to provide her a letter of reference are separate instances of discrimination. In my view, these issues are part and parcel of the termination and its impacts. They can be considered at the hearing.
8. Volunteer opportunity
[125] I dismiss Ms. Habib’s allegation of discrimination relating to her outside volunteer opportunity, which she alleges was lost because of what Mr. Friesen told the organization. This opportunity falls outside the scope of her employment with the Society and outside the scope of s. 13’s employment-related protection. It is better considered, if at all, as part of the impact of the termination on her. If the Tribunal finds that the termination was discriminatory, this may be relevant to the appropriate remedy.
9. Conclusion
[126] I dismiss three parts of Ms. Habib’s complaint because they have no reasonable prospect of success:
a. The allegation that the Codeimposes a positive obligation on the Society to ensure Ms. Habib progressed in the workplace, because of barriers that she faces in the broader labour market;
b. The allegation that Ms. Habib was underpaid for work between 2015 and 2017, in connection with the influx of Syrian refugees; and
c. The allegation that Mr. Friesen discriminated against her in respect of an outside volunteer opportunity.
[127] I deny the remainder of the Respondents’ dismissal application under s. 27(1)(c). Ms. Habib’s allegations will proceed to a hearing.
B. Complaint against the individual respondents does not further the purposes of the Code
[128] Next, the Respondents argue that it would not further the Code’spurposes to proceed against Mr. Friesen and Ms. Sherrell: Daley v. BC (Ministry of Health) , 2006 BCHRT 341. They ask that the complaint against the individuals be dismissed.
[129] There are strong policy reasons that favour complaints against individual respondents. As the Supreme Court of Canada has acknowledged, “the aspirational purposes of the Code require that individual perpetrators of discrimination be held accountable for their actions”: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62at para. 56. This is especially true for allegations of discrimination with a high degree of personal culpability, like sexual or racial harassment: Daley at para. 53.
[130] On the other hand, naming individual respondents can complicate and delay the resolution of complaints, exacerbate feelings of personal animosity, and cause needless personal distress to individuals who are accused of discrimination: Daley at para. 54. Because employers and institutional respondents are liable for the acts of their agents, they will be responsible for any remedy ordered by the Tribunal: Code, s. 44(2); Robichaud v. Canada, [1987] 2 SCR 84. In those situations, the remedial aims of the Codemay be most fairly and efficiently fulfilled without holding individuals liable.
[131] The Tribunal balances all these considerations to decide whether the purposes of the Code are best served by having a complaint proceed against individuals as well as an institutional respondent, or against the institutional respondent only. It has identified the following factors as relevant:
a. whether the complaint names an institutional employer as a respondent and that respondent has the capacity to fulfill any remedies that the Tribunal might order;
b. whether the institutional respondent has acknowledged the acts and omissions of the individual as its own and has irrevocably acknowledged its responsibility to satisfy any remedial orders which the Tribunal might make in respect of that individual’s conduct; and
c. the nature of the conduct alleged against the individual, including whether:
i. their conduct took place within the regular course of their employment;
ii. the person is alleged to have been the directing mind behind the discrimination or to have substantially influenced the course of action taken; and
iii. the conduct alleged against the individual has a measure of individual culpability, such as an allegation of discriminatory harassment.
Daleyat paras. 60-62.
[132] Here, the Respondents says that the Society has the capacity to fulfill any remedies the Tribunal may order. The Society has adopted the acts and omissions of the individual Respondents as its own, and has irrevocably acknowledged responsibility to satisfy any remedial orders the Tribunal might make respecting their conduct. The Society’s responsibility for this conduct is also statutory, found in s. 44(2) of the Code.
[133] The Respondents further argue that there are no allegations against Mr. Friesen or Ms. Sherrell that take their conduct outside the normal scope of their duties or which carry a measure of individual culpability. They argue that, even if the individual Respondents were the “directing minds” behind any of the alleged discrimination, that factor alone is not determinative: Artuso v. CEFA Systems Inc.,2017 BCHRT 53 at paras. 43-44; Propociou v. Metro Motors Ltd,2017 BCHRT 156 at paras. 16-17. They say that the remedial aims of the Codecan be met by proceeding against the Society: Kierstead v. Strathcona Hotel Victoria Ltd, 2020 BCHRT 211 at para. 44.
[134] Ms. Habib opposes dismissing the complaint against Mr. Friesen and Ms. Sherrell. She says that they were the directing minds behind the alleged discrimination, and that it is contrary to the Code’spurposes to allow senior managers to escape personal liability for their own discriminatory conduct.She alleges that Mr. Friesen and Ms. Sherrell demonstrated an individual animus and targeted her for discriminatory conduct, which is conduct that the Tribunal has said weighs in favour of personal liability: Skarbo v. Gateway Casinos and Entertainment and others, 2019 BCHRT 267 at para. 56; Gichuru v. Vancouver Swing Society and others (No. 2), 2018 BCHRT 221 at para. 32. She argues that the underlying policy concerns identified in Daley,including that individual respondents can complicate the resolution of a complaint, are not present here. Finally, she argues that, although the Society may take responsibility for the financial remedies, only the individual Respondents can be responsible for fulfilling an order to cease their own discriminatory behaviour – including if they leave their employment at the Society and work elsewhere.
[135] On balance, I am not persuaded to dismiss the complaint against Mr. Friesen and Ms. Sherrell.
[136] I accept that all of Ms. Habib’s allegations concern conduct that the individual Respondents undertook in the regular course of their employment – including making decisions regarding hiring, compensation, job descriptions, and termination of employment. However, that alone is not determinative. These kinds of decisions are always made by individuals. The Codecontemplates individual liability, and the Supreme Court of Canada has confirmed that individual liability fulfills important purposes of the legislation: Schrenkat para. 56.
[137] In my view, the nature of Ms. Habib’s allegations against Mr. Friesen and Ms. Sherrell are the type where it furthers the purposes of the Codeto proceed against them. While the Respondents argue that neither Mr. Friesen nor Ms. Sherrell was the “directing mind” behind any of the alleged discrimination, the evidence suggests otherwise.
[138] Mr. Friesen has given affidavit evidence about his direct role in making the impugned hiring decisions, and otherwise managing Ms. Habib in her work. He made decisions about whether and how to respond to the issues that Ms. Habib was raising in her employment, and there is evidence that he considered her allegations of racial inequality within the workplace to be disrespectful and insubordinate. He was involved, in some capacity, in the decision to terminate Ms. Habib’s employment for reasons aligned with his view that her allegations about discrimination within the Society were unfounded, and that her manner of raising those concerns was insubordinate and disrespectful.
[139] Ms. Sherrell was also directly involved in the decision to terminate Ms. Habib’s employment for cause. I am not persuaded that the fact that the Director of Human Resources was also involved, and says she made the final decision, means that neither of the individual Respondents influenced the decision to terminate Ms. Habib’s employment. Indeed, I do not understand them to argue otherwise.
[140] In all her allegations, Ms. Habib alleges there is evidence of personal animus towards her, including interpreting her conduct as disrespectful, insubordinate, and disloyal to the Society. This is a circumstance where the purposes of the Codeare furthered by allowing a complaint to proceed against individuals.
[141] Finally, I agree with Ms. Habib that many of the disadvantages of proceeding against individual Respondents are not present in this case. All Respondents are represented by the same counsel. The evidence of Mr. Friesen and Ms. Sherrell is central to the issues the Tribunal must decide, and they will most likely continue to participate in the complaint regardless of whether it is dismissed against them. There is no evidence that their ongoing involvement will complicate or protract the proceedings.
[142] In reaching this conclusion, I acknowledge that it is likely distressing to Mr. Friesen and Ms. Sherrell to be personally named in this complaint: Tuson v. Board of Education of School District No. 5,2020 BCHRT 195 at para. 240; Daleyat para. 54. This is the case for anyone accused of discrimination. They will each have the full opportunity, at a hearing, to give evidence and defend themselves against Ms. Habib’s allegations. Until then, I stress that the allegations against them are unproven.
[143] The application to dismiss the complaint against Mr. Friesen and Ms. Sherrell is denied.
V CONCLUSION
[144] Ms. Habib’s application to file further submissions is denied. The Respondents’ application for costs is denied.
[145] Three of Ms. Habib’s allegations have no reasonable prospect of success and are dismissed under s. 27(1)(c):
a. The allegation that the Code imposes a positive obligation on the Society to ensure Ms. Habib progressed in the workplace, because of barriers that she faces in the broader labour market;
b. The allegation that Ms. Habib was underpaid for work between 2015 and 2017, in connection with the influx of Syrian refugees; and
c. The allegation that Mr. Friesen discriminated against her in respect of an outside volunteer opportunity.
[146] The remainder of the Respondents’ application to dismiss all or part of the complaint is denied. The Tribunal will schedule a hearing.
Devyn Cousineau
Vice Chair
Human Rights Tribunal