Taylor v. Vancouver Coastal Health Authority (No. 2), 2025 BCHRT 118
Date Issued: May 13, 2025
File: CS-000929
Indexed as: Taylor v. Vancouver Coastal Health Authority (No. 2), 2025 BCHRT 118
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:
Lodesha Taylor
COMPLAINANT
AND:
Vancouver Coastal Health Authority
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Devyn Cousineau
On their own behalf: Lodesha Taylor
Counsel for the Respondent: Matthew Desmarais
I INTRODUCTION
[1] This is a decision about whether to dismiss Lodesha Taylor’s human rights complaint without a hearing.
[2] Ms. Taylor identifies as a Black woman, of African descent, and an immigrant. She was hired by Vancouver Coastal Health Authority [ VCHA ] as a registered nurse to work in operating rooms. As a first step, she was required to successfully complete VCHA’s Regional Perioperative Education Program [ Education Program ]. Ms. Taylor says that she was one of two Black nurses in the Education Program. In her human rights complaint, she alleges that she was singled out and harassed because of her race, colour, and place of origin. She alleges that, after she complained, the mistreatment escalated, culminating in the termination of her employment within her three-month probationary period. She alleges that this was discrimination, in violation of s. 13 of the Human Rights Code.
[3] VCHA denies discriminating. Its staff deny treating Ms. Taylor poorly or differently from other participants in the Education Program. They say that Ms. Taylor struggled in the Program and failed to demonstrate an acceptable level of skill in certain areas. They say that Ms. Taylor responded poorly to feedback. They say that, ultimately, they decided to terminate her employment because of her poor performance and refusal to accept constructive criticism. In this application, they ask the Human Rights Tribunal to dismiss the complaint because it has no reasonable prospect of success: Code, s. 27(1)(c).
[4] For the following reasons, I dismiss Ms. Taylor’s complaint. Based on the evidence the parties have presented, there is no reasonable prospect that the Tribunal could find that Ms. Taylor’s race or place of origin was a factor in any negative employment impacts she experienced. This means that the complaint cannot succeed, and does not warrant the time and expense of a hearing.
II ISSUE
[5] VCHA brings this application under s. 27(1)(c) of the Code, which allows the Tribunal to dismiss complaints that have no reasonable prospect of success. It bears the burden of persuading the Tribunal to dismiss the complaint.
[6] In this application, I do not make findings of fact. Instead, I look 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. I must base my 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 942 at para. 77 .
[7] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority , 2021 BCSC 2176 at 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 .
[8] 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.
[9] In this case, there is no dispute that Ms. Taylor is protected under s. 13 of the Code from discrimination based on her race, colour, and place of origin. There is also no dispute that VCHA terminated her employment. This application turns on whether Ms. Taylor has no reasonable prospect of proving, at a hearing, that:
a. staff at VCHA treated her poorly, and her protected characteristics were a factor in that negative treatment; and/or
b. her protected characteristics were a factor in the termination of her employment.
Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33
[10] I turn now to the events giving rise to the complaint. I summarize these events based on the material filed by the parties. I only refer to what is necessary to make my decision. I make no findings of fact.
III Events giving rise to complaint
[11] Ms. Taylor is a nurse with 18 years’ experience as a registered nurse and midwife. As I have said, she identifies as an immigrant and a Black woman of African descent.
[12] On September 5, 2019, VCHA offered Ms. Taylor a position as a registered nurse in “Operating Rooms”. Under the terms of this offer, Ms. Taylor’s employment would begin upon her successful completion of the Education Program, sponsored by VCHA. Her employment was also subject to a three-month probationary period. Ms. Taylor accepted the offer on September 8, 2019.
[13] The Education Program is designed to educate nurses to provide care before, during, and after surgery. It includes training about how to set up the operating room, prepare and monitor the patient, help the surgical team, and provide postoperative care. VCHA describes it as a rigorous program, which includes time in the classroom and onsite. At the end, participants must pass a final exam.
[14] Ms. Taylor began the Education Program on September 30, 2019. In the early weeks, VCHA says that Ms. Taylor showed “decent promise”. Around week four, however, it says that she began to demonstrate some struggles with important skills. These struggles continued through weeks six and seven. At the same time, VCHA says that Ms. Taylor was not receptive to feedback.
[15] For her part, Ms. Taylor denies that there were any problems with her performance. She says that she was being singled out by Kristin Kudzin (formerly Kristin Stevens), one of the Clinical Educators. She alleges that Ms. Kudzin rolled her eyes at her, mocked her, publicly called attention to her mistake, told her a learning goal made “no sense”, and gave other students preferential treatment. Ms. Kudzin vehemently denies these allegations.
[16] On November 14, 2019, Ms. Kudzin met with Ms. Taylor. She says that the purpose of the meeting was to “review feedback, progress, and strategies to improve [Ms. Taylor’s] practice”. She invited a colleague to join them. Ms. Kudzin says that, during the meeting, Ms. Taylor refused to accept the feedback and told her that she did not believe Ms. Kudzin was there to help her. Ms. Kudzin says she offered Ms. Taylor one-on-one skills lab time to practice, but Ms. Taylor declined. Ms. Taylor denies refusing one-on-one support.
[17] In her complaint, Ms. Taylor says that she felt “interrogated” during this meeting. After the meeting, she texted Ms. Kudzin the following:
Kristen I do believe I am being isolated and feel like I am not been given a fair chance to correct my mistakes. I do not believe that this is being innocently done to help me but to defame my character. Hope I am wrong. [as written]
[18] Following this text, Ms. Taylor was called into a meeting with Heather MacMillan, Regional Manager for Clinical Education, and Ms. Kudzin. Ms. MacMillan summarized their meeting in an email two days later. According to the email, the discussion in the meeting was about (1) Ms. Taylor’s performance in the Education Program, including concerns about specific areas, and (2) professional communication. VCHA says that Ms. Taylor acknowledged in the meeting that the text she sent to Ms. Kudzin was not appropriate, and agreed to professional communication going forward.
[19] In response to Ms. MacMillan’s email, Ms. Taylor asked that she be assessed by a different clinical instructor other than Ms. Kudzin. She explained:
I am coming from another health authority where I was harassed and bullied and hoped that would not happen again it made me wonder is it because I am black or is it because I am not from Canada an outsider. Because I do often feel as if I have to prove myself 100 times more than persons who are not black based on my observations treated with disrespect and ridiculed, and treated as if I do not belong. Please understand where I am coming from with this.
The email I sent to Kristin, should have been done in a more professional way I agree as I still do question her intentions as it pertains to me and how I feel whenever I interact with her based on previous experiences feelings begin insignificant, inferior and embarrassed on separate occasions … [as written]
[20] The parties met again to address this email on November 19. VCHA explained to Ms. Taylor that Ms. Kudzin would continue to teach her in the regular course. Privately, however, management and Ms. Kudzin agreed that she would limit her interactions with Ms. Taylor and only talk to her with others present. They also determined that any feedback would be given to Ms. Taylor with at least two people present. At this point, VCHA says there were still significant gaps in Ms. Taylor’s skills and, barring improvement, it planned to put Ms. Taylor on a learning plan by the end of that week.
[21] Ms. Taylor alleges that it was only after she spoke up about her treatment that VCHA staff began “making reports on me of how unsafe I was” – which she denies. She calls VCHA’s concerns about her performance “made up stories”.
[22] On November 25, Ms. Taylor says she was “coerced” to sign an evaluation form. It is not clear to me what form this refers to.
[23] On November 29, VCHA gave Ms. Taylor a learning plan. Ms. Taylor says she was told she had seven days to be successful.
[24] On December 4, Ms. Taylor was called into a meeting with Carrie Edge, the Regional Manager for Clinical Education. She was told that she was being removed from the Education Program because she was not meeting required competencies relating to clinical judgment, and her clinical performance was below the required standards to ensure patient safety. The employer agreed to meet again with Ms. Taylor, with her union present. Ms. Taylor was placed on unpaid leave.
[25] VCHA subsequently terminated Ms. Taylor’s employment. The union grieved the termination. The grievance was resolved after VCHA allowed Ms. Taylor a period to apply for internal vacancies within VCHA, with “priority access”. It appears that Ms. Taylor ultimately found employment in a different position.
IV DECISION
[26] For Ms. Taylor’s complaint to proceed, there must be more than a mere possibility of success, since there “will almost always be some evidence of the possibility of discrimination when a member of a minority group is passed over in favour of a member of the majority group”: Berezoutskaia at para. 26. There must be evidence capable of proving discrimination.
[27] At a hearing, Ms. Taylor must prove that her race, colour, and/or place of origin were a factor in her termination and any adverse treatment in her employment: Québec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para. 52. She does not have to prove that any of the VCHA staff intentionally or consciously discriminated against her, or that their conduct is consistent only with the allegation of discrimination and not any other rational explanation: Code , s. 4; Radek v. Henderson Development (Canada) and Securiguard Services (No. 3), 2005 BCHRT 302 at para. 482.
[28] Most race-based complaints, like this one, turn on inference. This is because there is rarely direct evidence of racial discrimination. It operates subtly. Today, most people do not express racial prejudices openly or even recognize them in themselves: Mezghrani v. Canada Youth Orange Network (No. 2), 2006 BCHRT 60 at para. 28; Ontario Human Rights Commission , Policy and Guidelines on Racism and Racial Discrimination (2005) [ OHRC Guidelines ] at p. 21, adopted in Brar and others v. BC Veterinary Medical Association and Osborne, 2015 BCHRT 151 at paras. 712-724; Francis v. BC Ministry of Justice (No. 3), 2019 BCHRT 136 at para. 288; Mema v. City of Nanaimo (No. 2), 2023 BCHRT 91 at paras. 6-7, 20, and 288.
[29] Social context may support an inference of discrimination: Campbell v. Vancouver Police Board (No. 4), 2019 BCHRT 275 at paras. 16-19. This includes an understanding of applicable stereotypes and prejudices, as well as the historical and ongoing marginalization and oppression of a protected group, and the myriad ways that discrimination against the group can manifest. Social context can help to interpret individual incidents which may otherwise be “ambiguous or explained away”: OHRC Guidelines at p. 21; cited with approval in Campbell (No. 4) at para. 103 and Francis at paras. 288-289.
[30] Ms. Taylor’s complaint arises in a broader social context of ongoing and pervasive anti-Black racism in Canada: Perry v. Honu Boat Charters and another (No. 2 ), 2022 BCHRT 68 at paras. 67-68; Young Worker v. Heirloom and another, 2023 BCHRT 137 at paras. 53-58; Mema at paras. 6-12; and Clarke v. City of Vancouver and another, 2024 BCHRT 298 at paras. 98-103. This racism manifests in many ways, including in the subconscious application of negative stereotypes, which can seep into the “interstices of our institutions”: R v. Parks (1993), 15 OR (3d) 324 (CA).
[31] At the same time, the subtlety of prejudice, and the availability of inference, does not create a presumption of discrimination: Zhou v. Copper Mountain Mine (BC), 2017 BCHRT 22 at para. 51. The social context of anti-Black discrimination is not enough, on its own, to prove that Ms. Taylor was discriminated against. In other words, the fact that she is Black and was terminated from her job does not mean she was discriminated against. An inference of discrimination must be drawn “reasonably and logically … from a fact or group of facts established by the evidence”: Smith v. Mohan (No. 2), 2020 BCHRT 52 at para. 188; Bombardier at para. 88.
[32] In this application, VCHA has presented evidence denying that its staff singled Ms. Taylor out or treated her poorly, and supporting a non-discriminatory explanation for her termination. In response, it is incumbent on Ms. Taylor to point to some evidence capable of proving a connection between any adverse treatment and her protected characteristics. Accounting for the social context of anti-Black discrimination, I am not persuaded that she has done so. As a result, her complaint has no reasonable prospect of success.
A. Allegations of harassment
[33] Ms. Taylor makes specific allegations of negative treatment by three clinical educators in the Education Program. There are some disputes in the evidence about whether the behaviour that Ms. Taylor alleges occurred and, if it did, about the relevant context.
[34] I begin with Ms. Taylor’s allegations about Ms. Kudzin. Ms. Taylor alleges:
a. Ms. Kudzin rolled her eyes and rarely made eye contact with her. Ms. Kudzin denies ever doing this and says that she always treated Ms. Taylor professionally.
b. On October 21, 2019, Ms. Kudzin called attention to Ms. Taylor’s mistake in class, which she did not do to anyone else. Ms. Kudzin says that she was teaching a session about proper gowning and gloving techniques. When Ms. Taylor dropped the tie of her sterile gown, Ms. Kudzin used it as a teaching moment for the group. From her perspective, this was an appropriate strategy to allow the students to identify solutions to a situation that would almost certainly occur in practice. She says that, after the session, Ms. Taylor told her she did not appreciate what she had done. She says she apologized, and explained it was not her intention to single her out.
c. On October 23, when three students were discussing their goals, Ms. Kudzin told Ms. Taylor that her goal “makes no sense”, which was humiliating. Ms. Kudzin says that she pointed out that Ms. Taylor had set a goal to perform two skills that could not be concurrently performed. In a text exchange afterwards, which is before me, the two resolved the miscommunication in a positive way.
d. On November 6, Ms. Kudzin gave two other students priority for choosing a paper topic. Ms. Kudzin explains that she did not intend to give other students priority. She says she made suggestions to the students based on their previous experience and interests.
[35] Next, Ms. Taylor makes allegations about Ms. Parker, another clinical educator. She alleges:
a. Ms. Parker treated her differently than white and Asian students, including speaking to her in a louder tone. Ms. Parker denies this.
b. On the first day of class, while Ms. Taylor was trying to understand the computer system, Ms. Parker said in front of the class that Ms. Taylor “had too many windows open”. Ms. Parker says that Ms. Taylor had asked for her help, and she pointed out that she had too many internet windows operating, which could hamper the efficacy of the learning platform.
c. On November 1, 2019, Ms. Taylor said “I was just thinking about you” and Ms. Parker said, “What were you thinking – unkind thoughts?”. Ms. Parker says she was on vacation during this time and this interaction did not happen.
d. On November 1, 2019, Ms. Parker was overly focused on Ms. Taylor, spending more time with her than other students. Again, Ms. Parker says she was on vacation and had no direct dealings with Ms. Taylor on this day.
e. On November 18, 2019, Ms. Parker made a public example of her, by handing her a light handle that had fallen to the floor in the operating theatre, saying “you will remember this”. Ms. Taylor says she had never seen Ms. Parker do that to anyone else, and everyone was laughing. Ms. Parker says that she asked Ms. Taylor for permission to share the teaching moment with the group, and Ms. Taylor agreed. She says this has been her practice ever since an incident earlier in her teaching career where a student expressed embarrassment at their mistake being used to teach the group. She denies laughing at Ms. Taylor.
f. On November 29, 2019, Ms. Taylor overheard Ms. Parker saying to a group of students “Lodesha was having a difficult time in that room too”, without having gotten permission to talk about her. Ms. Parker explains that she was talking to a student who’d had a difficult interaction with a surgeon. She shared that Ms. Taylor had had the same experience, to give the students a chance to connect.
[36] Finally, Ms. Taylor alleges that, on November 13, Maria Brinza, another instructor, said rudely: “Do you have problems communicating with others?” When Ms. Taylor said she was nervous, Ms. Brinza responded, “why are you nervous do you need to see someone”? Ms. Brinza did not provide an affidavit in this application, and so I do not know her response to this allegation.
[37] It is apparent that the parties dispute some important parts of Ms. Taylor’s allegations and those disputes would require findings of fact based on an assessment of credibility. I cannot make those findings in this application, and in my view I do not need to. That is because, even if Ms. Taylor proves that these issues occurred, she has not pointed to any evidence that could prove that these events amounted to adverse treatment based on her race, colour, or place of origin.
[38] Put at its highest, Ms. Taylor’s allegation is that the Tribunal should draw an inference of discrimination from the facts that: (1) she was one of two Black students in the Education Program, and (2) she was treated differently than other students. In some circumstances, I accept that this could be enough to support an inference of discrimination. However, in all the circumstances of this case, I am not satisfied that it could.
[39] First, Ms. Taylor has not presented any evidence about how other students were treated, to support that she was treated differently. She has said she does not recall details of what happened, or specific instances of what happened. She says she has lost contact with other students from the Education Program and has no other evidence to produce. In contrast, VCHA has submitted affidavits from each of the individuals involved, except Ms. Brinza, which explain their teaching practices and give a non-discriminatory context for the incidents that Ms. Taylor has complained about.
[40] Second, VCHA agrees that Ms. Taylor received some extra attention from the instructors but explains that this is because she was struggling. This is supported by contemporaneous records, from several different people, documenting performance concerns related to patient safety and communication. Aside from generally denying any performance issues, Ms. Taylor has not presented any evidence to support that she was being singled out in connection with her protected characteristics.
[41] Third, Ms. Taylor has not pointed to anything about the nature of the allegations which might support an inference of discrimination. For example, she has not explained how the Tribunal might infer that the instructors’ conduct was based on anti-Black stereotyping or otherwise connect the instructors’ conduct to her protected characteristics. The connection is not apparent based on the nature of the allegations themselves, which are made against three different people.
[42] I acknowledge that Ms. Taylor says that she was warned by another Black nurse not to go into the program, because of racism. Respectfully, this is not evidence that I can rely on to send this complaint to a hearing. As this Tribunal has recognized, hearsay from unidentified sources is “little more than rumour”: Becker v. Cariboo Chevrolet Oldsmobile Pontiac Buick GMC Ltd. (No. 2), 2004 BCHRT 80 at para. 26. It has very little value in a legal proceeding.
[43] On the whole, I am not satisfied that the evidence is capable of supporting a finding that Ms. Taylor was singled out or treated poorly in the Education Program because of her protected characteristics. This part of her complaint has no reasonable prospect of success.
B. Termination
[44] There is no dispute that VCHA terminated Ms. Taylor’s employment. The issue in this application is whether Ms. Taylor has no reasonable prospect of proving that her race, colour, and place of origin were a factor in her termination.
[45] In my view, VCHA is reasonably certain to prove a non-discriminatory reason for the termination. It has produced substantial evidence of performance concerns during the Education Program. Those concerns, relating to patient safety, were identified by multiple people, and were documented in detail in contemporaneous records. At the same time, consistent with her position in this application, there is evidence that Ms. Taylor was unreceptive to feedback. In Ms. Parker’s final training summary before Ms. Taylor was removed from the Education Program, she summarized the concerns as follows:
In summary – Serious concerns with clinical judgement and patient safety. Consistent progress and demonstration of understanding in areas of count and basic principles of sterility was not demonstrated over a 10 week period. Several discussions with student that sterile awareness is the overarching problem. She may be able to stop after a contamination and correct the problem (i.e.: change a contaminated glove) but the more concerning issue is that she continues to make errors and have near misses (caught by educator/staff) that should not be happening any longer at this stage in her practice. This carries through with her unsafe practice with surgical counts. Both these issues put the patient in grave danger and require her to be heavily supervised by staff.
[46] I understand that Ms. Taylor denies there were performance issues, or that they were as serious as VCHA alleges. I understand that she agrees she received feedback during the program, broken down into categories of “keep doing”, “start doing”, “stop doing”, and “make a change”. She says that Ms. Parker told her that she did not have to worry if she did not see anything in the “stop doing” column. Even if this is true, there are several evaluations with practices listed in the “stop doing” column. It is difficult, then, to understand the basis for an argument that there were no serious performance concerns.
[47] As I understand it, Ms. Taylor’s explanation for this is that some of VCHA’s documents were “made up” and “those things you wrote never happened”. She does not explain exactly what she means by this, or offer her own evidence to dispute VCHA’s. Her bare allegation that VCHA has “made up” or doctored its records is not evidence capable of contradicting VCHA’s documented performance concerns.
[48] At the same time, there is no evidence, beyond Ms. Taylor’s speculation, capable of proving a connection between her protected characteristics and her termination. Again, I recognize the insidious and subtle context of anti-Black racism, which creates the possibility of discrimination. However, this possibility is not enough to warrant a hearing in the face of VCHA’s evidence of a non-discriminatory explanation for the termination: Lee v. British Columbia (Attorney General), 2004 BCCA 457 at para. 26.
[49] Finally, I acknowledge that Ms. Taylor had other concerns about her termination, including that some meetings happened without the union. However, as with her other allegations, there is no evidence capable of connecting these concerns to her protected characteristics. In this situation, these are not issues for the Human Rights Tribunal.
[50] In sum, there is no evidence before me which the Tribunal could rely on at a hearing to draw an inference that Ms. Taylor’s protected characteristics were a factor in the termination of her employment. This allegation of discrimination has no reasonable prospect of success.
V CONCLUSION
[51] I am satisfied that Ms. Taylor’s complaint has no reasonable prospect of success. It is dismissed: Code, s. 27(1)(c).
Devyn Cousineau
Vice Chair