BC Human Rights Tribunal

I          INTRODUCTION

[1]               Katherina Tarnai-Lokhorst alleges her former employer, Camosun College, and the Chair of her department, Ross Lyle, discriminated against her on the basis of sex contrary to s. 13 of the Human Rights Code. She says she was one of few women working at the College and she was ignored, isolated, dismissed, and disparaged. She says she was passed over for jobs in favour of less qualified male candidates.

[2]               The Respondents deny discriminating and apply to dismiss the complaint under s. 27(1)(c) of the Code because it has no reasonable prospect of success. They also say some of the allegations in the complaint should be dismissed under s.27(1)(g) of the Code because they relate to events that occurred more than one year before the complaint was filed and are out of time. Finally, they argue that if the complaint is not dismissed against all the Respondents, it should be dismissed against Mr. Lyle under s. 27(1)(d)(ii) because it would not further the purposes of the Code to proceed against him.

[3]               I find it most efficient to consider the application under s. 27(1)(c) of the Code. My decision turns on whether there is no reasonable prospect Dr. Tarnai-Lokhorst will prove her sex was a factor in the adverse impact she alleges. For the reasons that follow, I am persuaded that Dr. Tarnai-Lokhorst has not taken her allegations out of the realm of conjecture.

[4]               To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.

II       BACKGROUND

[5]               Dr. Tarnai-Lokhorst was a faculty member of the College from 2003 to 2022. Mr. Lyle was the Chair of the department and Dr. Tarnai-Lokhorst’s workplace leader.

[6]               Dr. Tarnai-Lokhorst says that during her employment she was one of the only female members in her department. She says she was subjected to what she characterizes as bullying during her employment. She provides few precise dates of specific incidents or interactions. She says she was singled out and excluded from social events, her suggestions and recommendations were disregarded, her expertise and knowledge were undermined, she was reprimanded for a student complaint without adequate investigation, and her honorific of Doctor was not used when being addressed. Dr. Tarnai-Lokhorst says she was overlooked for leadership positions at the College when she applied in 2017 and 2019. She says that when she returned to work from medical leave in June 2020, she requested to teach courses in a different department and the Respondents denied her request. She says that as a result of the Respondents’ conduct the work environment became toxic. Dr. Tarnai-Lokhorst believes the conduct of the Respondents was discrimination based on her sex.

[7]               On February 25, 2021, Dr. Tarnai-Lokhorst filed her discrimination complaint with the Tribunal.

[8]               On February 26, 2021, Dr. Tarnai-Lokhorst filed an internal complaint with the College under its Respectful Workplace Policy. The College appointed an external investigator to investigate the complaint. The investigator concluded their investigation in June 2021. They determined that there was insufficient evidence to support Dr. Tarnai-Lokhorst’s allegations and therefore found the complaint was unsubstantiated.

[9]               In or about February 2021 Dr. Tarnai-Lokhorst also filed a WorkSafeBC complaint alleging systemic discrimination, which was denied by WorkSafeBC in June 2021.

[10]           Dr. Tarnai-Lokhorst resigned in October 2022.

III     DECISION

[11]           Section 27(1)(c) of the Code is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.

[12]           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.

[13]           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.

[14]           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 942 at para. 77.

[15]           To prove her complaint at a hearing, Dr. Tarnai-Lokhorst will have to prove that she has a characteristic protected by the Code, she was adversely impacted in employment, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33.

[16]           The Respondents argue that Dr. Tarnai-Lokhorst has no reasonable prospect of proving a nexus between her sex and any adverse treatment by the Respondents. They say most of her allegations are vague, unparticularized, and lack any factual foundation from which the Tribunal could reasonably draw an inference of discrimination. I agree.

[17]           Discrimination can and usually does take on subtle forms. However, the recognition of the subtlety of prejudice does not transform it into a presumption of prejudice under the Code: Student A v. Institutional Respondent and others, 2017 BCHRT 13 at para. 94. A complainant must provide a factual basis for drawing an inference of discrimination. Without a factual basis, a complainant’s personal belief of discriminatory treatment, no matter how sincerely felt, “can only be said to be based on speculation and conjecture, rotted in feelings, suspicions and beliefs”: Ibrahim v. Intercon Security, 2007 BCHRT 201 at para. 80.

[18]           Here, Dr. Tarnai-Lokhorst says her allegations are “not about particular comments made by an individual.” She makes a broad allegation of bullying and imputes discriminatory intent to the students, staff, and management of the College. However, she fails to provide details of the alleged incidents or why she believes they are related to her characteristics protected under the Code. Without sufficient particulars about what happened and how they are related to her sex, Dr. Tarnai-Lokhorst’s blanket allegation of discriminatory bullying does not rise above conjecture or speculation. I deal with each of her allegations in turn.

[19]           Dr. Tarnai-Lokhorst says she was excluded from social events that male colleagues attended but fails to provide details of specific events she says she was excluded from or which employees excluded her. She says colleagues from her department would go to lunch without her but there is little other information before me about these events.

[20]           Dr. Tarnai-Lokhorst alleges that her suggestions and recommendations were disregarded, and her expertise and knowledge were undermined but does not provide details about specific events, individuals involved, what happened, or why she believes such incidents are related to her sex.

[21]           She alleges her students were “coached or encouraged by other faculty members” to make complaints about her because the students made similar, consistent complaints about her teaching style. She says she was reprimanded because of student complaints. What is missing in the materials before me is any details about the alleged reprimand, the student complaints, or why she believes her sex was a factor in the complaints or the reprimand.

[22]           Dr. Tarnai-Lokhorst says her honorific of Doctor was not used when she was being addressed while a male colleague was called “Doctor Steve.” She says she voiced her concerns about her doctoral designation not being used but was ignored. Dr. Tarnai-Lokhorst provides no additional information about who did not call her Doctor or to whom she voiced her concerns and when it was that she did so. The only information before me to suggest Dr. Tarnai-Lokhorst’s sex was a factor in not being called Doctor is her assertion that a male colleague was referred to as “Doctor Steve.” In my view, this information, on its own, if put forward at a hearing could not support a reasonable finding by the Tribunal that the conduct violated the Code because Dr. Tarnai-Lokhorst has not provided additional information providing context for this allegation. As such, there is no reasonable prospect these allegations could succeed.

[23]           Finally, Dr. Tarnai-Lokhorst says she was excluded from jobs because of her sex. In 2017 she applied for the Associate Dean role and was unsuccessful. In 2019 she applied for a position as a Bridge Program Coordinator and was unsuccessful. Dr. Tarnai-Lokhorst alleges that her not being selected for the roles is discrimination because the successful candidates were male. She also requested to teach classes in a different department in 2020 and was refused.

[24]           In my view, Dr. Tarnai-Lokhorst’s allegation does not provide sufficient details to give her complaint a reasonable prospect of success. Her allegation of discrimination is not taken outside of the realm of the speculative. I understand Dr. Tarnai-Lokhorst to be arguing that because she was denied jobs and because she has the protected characteristic of sex, her sex must have been a factor in the denial. However, in order for this Tribunal to make a finding of discrimination there must be some evidence to support such an inference. It is not enough to say that a person’s protected characteristic must have been a factor in adverse treatment. There must be some evidence that raises the allegation from a mere possibility.

[25]           In this case, Dr. Tarnai-Lokhorst has not done so. Her allegation that she was denied the jobs she applied for in 2017 and 2019 because of her sex is speculative based solely on the fact that the successful candidates were male. Without more, I cannot say these allegations have been taken out of the realm of conjecture. For her allegation that she was denied a request to teach classes in a different department, Dr. Tarnai-Lokhorst has provided no other information from which the Tribunal could draw a reasonable inference that her sex was a factor in the denial.

[26]           On the whole of the evidence, I am persuaded by the Respondents that Dr. Tarnai‑Lokhorst’s allegations of discriminatory behaviour have no reasonable prospect of succeeding at a hearing because they have not been taken out of the realm of speculation and conjecture.

IV    CONCLUSION

[27]           I dismiss the complaint under s.27(1)(c).

Edward Takayanagi

Tribunal Member